BSP Financial Group Limited (BSP) is in the process of filing a new application in the Supreme Court under Section 18 (1) of the Constitution to declare the amendments to the Income Tax Act, which introduces the “Additional Company Tax”, as unconstitutional, according to BSP CEO, Mr Robin Fleming who re-iterated that it has always been BSP’s intent to challenge the Act. BSP is also challenging those amendments that impose a Market Concentration Levy.
This follows the Supreme Court granting leave for BSP to withdraw the initial application on Thursday 25 August 2022, to allow BSP to meet certain new requirements imposed by the Supreme Court for Applications under Section 18 (1) of the Constitution.
The initial Application was filed by BSP on 20 May 2022, challenging certain amendments to the Income Tax Act which effectively imposes on BSP an Additional Company Tax of K190 million each financial year commencing in 2022 and/ or a Market Concentration levy of the same amount.
On 7 July 2022, in an unrelated Supreme Court proceeding, an application pursuant to section 18(1) of the Constitution by Justice Foundation For Porgera Limited was dismissed by the Supreme Court on the basis that the application did not meet certain signing requirements for a company making a Constitution Section 18 sub-section (1) application to the Supreme Court.
In light of the Supreme Court decision in the Justice Foundation Case, BSP decided that to ensure that there were no issues with the Board’s approval of the application, it was necessary to seek leave to withdraw its initial Application under Section 18 (1) of the Constitution, whereupon it will file a new Application in the same or similar terms whilst also attending to the requirements in the Justice Foundation Case.
It was on this basis that the Deputy Chief Justice his Honour Ambeng Kandakasi granted leave to BSP to withdraw the initial Application.
Mr Fleming advised that BSP’s lawyers are well progressed to lodge a new application incorporating the new requirements of the Supreme Court. He reiterated that the Additional Company Tax and Market Concentration levy are effectively an arbitrary tax or levy on BSP’s shareholders and the Application will seek to render this tax (levy) unconstitutional and invalid.