November 30, 2022
CORAM
AI Generated Summary
The Supreme Court of Ghana considered a constitutional reference from the Court of Appeal arising from a dispute between a Kumasi lawyer and the Ghana Revenue Authority (GRA) over section 42(5) of the Revenue Administration Act, 2016 (Act 915). After the lawyer objected to assessed taxes for 2012–2016 and paid 30% of the disputed amount, he sought a tax clearance certificate in 2019, prompting GRA to request additional financial information. He challenged GRA’s reliance on section 42(5), arguing it violated Article 23’s guarantee of administrative justice by conditioning objections on prior payment. The Court reviewed Act 915 holistically, emphasizing the dispute resolution framework: the Commissioner's discretion to waive, vary, or suspend prior payment (section 42(6)), standards for exercising discretion (section 42(7)), and appellate and judicial review routes (sections 43–44). Weighing the public duty to pay taxes (Article 41(j)) and strict construction of fiscal statutes, the Court held that section 42(5) is a proportionate, constitutional mechanism that protects revenue while preserving fair access to redress.
TORKONOO (MRS.), JSC: -
BACKGROUND
This reference to the Supreme Court was sent by the Court of Appeal, Kumasi. The plaintiff/appellant (referred to as the appellant in this ruling) before the court of appeal is a lawyer who was given a tax assessment to pay in 2017. He objected to it and following various communications with the Ghana Revenue Authority (GRA), paid what was determined to be his
outstanding taxes from 2012 to 2016 inclusive of 30% of the tax in dispute and a sum computed as penalty.
In 2017 and 2018, he was suspended from law practice by the General Legal Council and in June 2019, he applied to the GRA for a tax clearance certificate (TCC). GRA demanded information on his client account, utility and medical expenses and all returns of income for 2018 and 2019. His response was that he did not engage in legal practice over the years 2017 and 2018. The counter response of GRA was that unless the documents requested were supplied, the tax objection by Plaintiff could not be decided on. They further pointed out that he had earlier failed to provide these sets of information to enable the GRA to properly assess his actual tax liability for 2012 to 2016.
The plaintiff brought an action in the high court Kumasi for the enforcement of fundamental human rights under Article 33 and for administrative justice under Article 23 of the Constitution. He sought the following reliefs in the high court:
1. A declaration that upon a true and proper interpretation of Article 23 of the 1992 Constitution, section 42 (5) of the Revenue Administration Act, 2016 Act 915 is inconsistent with and violative of his constitutional right to administrative justice guaranteed under the provisions of Article 23 of the 1992 Constitution and is accordingly unconstitutional.
2. A declaration that the GRA's letter of 26th July 2019 informing Plaintiff that he did not qualify for a TCC is null, void, and of no effect to the extent that it is inconsistent with Plaintiff's right to administrative justice as provided for in Article 23 of the 1992 Constitution.
The impugned section 42(5) of Act 915 is titled Objection to a tax decision. Section 42 (5) reads:
(5) An objection against a tax decision shall not be entertained unless the person has a. in the case of import duties and taxes, paid all outstanding taxes including the full amount of the tax in dispute; and b. in the case of other taxes, paid all outstanding taxes including thirty percent of the tax in dispute.
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