Government loses lengthy land tax battle
Former Premier Dame Pamela Gordon Banks and her husband have criticised the Land Valuation Department for waging a costly four-and-a-half year legal battle against them, instigated by a senior civil servant who overvalued their house.The Court of Appeal has ruled in favour of the couple, agreeing with an earlier tribunal that Chris Farrow, the Director of Land Valuation, proposed an “incorrect and unfair” annual rental value for their luxury home in Paget.The civil matter is likely to cost taxpayers hundreds of thousands of dollars in legal costs, since Government brought in a QC and junior barrister from London to argue its case, against the wishes of the Bermuda Bar Council.Dame Pamela told The Royal Gazette she and husband Andrew Banks were willing to fight the case as the outcome impacted hundreds of Bermudian homeowners.“We will never shy away from looking for justice and a just outcome,” she said, adding that they would “take it to the nth degree” to ensure justice was done.Businessman Mr Banks said the couple endured the “four-and-a-half year legal gauntlet” to “right the wrong that was inflicted upon us” and ensure it didn't happen to others.He alleged that Mr Farrow used “bully tactics” with them and said he'd heard similar complaints about inaccurate valuations from “many, many, many people” who didn't have the means to appeal such decisions.He also shared documents with this newspaper showing how the Director did not pass important paperwork about their property to the Tax Commissioner's office for a year, resulting in the couple receiving an inaccurate land tax bill for almost $215,000.The bill included $151,000 in arrears and interest, although it was the first demand they'd received.“When we heard from scores and scores of people who had [also] been mistreated we just felt like 'we can't let this go',” said Mr Banks. “People continue to tell us how they were treated unfairly. We were appalled.”The couple's argument with the Land Valuation Department began in December 2008 when Mr Farrow proposed that their newly built property, GateWood, on Inglewood Lane, should be deemed for land tax purposes as a single unit with an annual rental value of $852,000.The highest ARV given to a property in Bermuda is thought to be $1,182,000 for GoldenEye in Tucker's Town.GateWood comprises a main three-bedroom house, a two-bedroom staff apartment and a two-bedroom guest cottage, but Mr Farrow proposed giving it just one assessment number, instead of the three it had, increasing the amount of land tax payable.The Bankses objected to the proposal and to a proposal a year later giving the property an ARV of $768,000.Two tribunals heard their objections, with the first upholding their appeal and concluding that GateWood should have three assessment numbers.The second tribunal confirmed the same and decreed that the total ARV for the three units should be $360,000. It heard evidence from a realtor that the highest market rent ever achieved on the Island was $35,000 a month, or $420,000 a year.Mr Farrow had 21 days to appeal the decisions but he took almost 14 months to challenge the first one, with the AG's Chambers bringing in Jonathan Small QC and barrister Nathaniel Duckworth from London to make an “out of time” application.Bermuda Bar Council objected to the expensive silk and his junior coming here for the Supreme Court hearing in March last year, as its policy is that foreign counsel shouldn't be used for “interlocutory” proceedings and foreign junior counsel shouldn't be used at all.Bar Association president Justin Williams said the result was that at a hearing in then Chief Justice Richard Ground's chambers, counsel for the Attorney General's Chambers appeared with work permits for Mr Small and Mr Duckworth.“The Attorney General's Chambers obtained the work permits directly from the Department of Immigration,” he said. “Bar Council had put in place the procedure to protect the rights and engagement of Bermudian attorneys.”Mr Farrow's “out of time” application failed and his timely appeal of the second tribunal decision was also dismissed by Chief Justice Ian Kawaley.The judge agreed to look at the “wider public interest” issue of how residential properties are evaluated for tax purposes, with Mr Farrow giving evidence in an affidavit that there were 758 properties classified as single valuation units, despite having a main house and at least one guest house or pool house.The judge found there was no “coherent legal basis” for reclassifying high-end properties like GateWood as single units when there were “too many examples” on the Department's valuation list of “more humble” houses with apartments and cottages being treated as separate units.The Director appealed the Chief Justice's ruling in the Court of Appeal, where he lost again earlier this month, meaning all costs must be met by Government.Meanwhile, the appeal panel found no “pressing reason” to consider and rule on the issue of how the number of assessment units should be evaluated.Mr Justice Kawaley's judgement could open the door for the 758 homeowners whose properties are currently classed as single units to challenge that when the Department's next valuation list is compiled in 2014 — and be granted multiple assessment numbers.Dame Pamela, the Island's first female premier and a former Environment Minister, said the issue was an important one as many Bermudians relied on rental incomes to pay their mortgages.The Land Valuation Department and the AG's Chambers have failed to respond to numerous requests for comment from this newspaper since June 18 and have not shared any information on how much the case will cost taxpayers.* Read the full Court of Appeal judgement by clicking on the .pdf link above.Useful websites: www.landvaluation.bm and www.bermudabar.org.