Ng Chun-kwan v. The Commissioner of Inland Revenue Hong Kong
Read the full judgment text of CACV 49/1975 on BabelCite. This Court of Appeal judgment.
1. The respondent, the Commissioner of Inland Revenue, brought proceedings in the District Court to recover the sum of $762,647 profits tax. This sum was made up of eight amounts of tax being additional assessments on the profits of the appellant for the years 1970-1975.
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CACV000049/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 49 OF 1975 ----------------------------------------------------------------
Coram: Briggs, C.J., Huggins and Pickering, JJ. Date of Judgment: 16th January, 1976. ----------------- JUDGMENT ----------------- 1. The respondent, the Commissioner of Inland Revenue, brought proceedings in the District Court to recover the sum of $762,647 profits tax. This sum was made up of eight amounts of tax being additional assessments on the profits of the appellant for the years 1970-1975. 2. The appellant filed a defence to the claim in which it is pleaded that the additional assessments are nullities in that there were no grounds for making such additional assessments and that they are not arrived at by the exercise of the assessor's judgment and were arbitrary or capricious. 3. In proceedings brought under Order 18 rule 19 this defence was ordered to be struck out. 4. This is an appeal against that order. 5. The point at issue is of a very small compass-section 75 of the Inland Revenue Ordinance lays down the method by which tax is recoverable by the Commissioner. Jurisdiction is given to the District Court; and the tax is recoverable "as a civil debt due to the Crown." 6. Section 75 subsections (3) and (4) read as follows:-
7. The point at issue is therefore: Does the proposed defence of the appellant come within these subsections? 8. In my view it most clearly does. The proposed defence is in effect a plea that the tax assessed is "incorrect". To allege that the assessment is a nullity and has never been made is another way of saying that the tax which you are called upon to pay is "incorrect" giving that word its ordinary meaning. It is, of course, a word which has a very wide meaning. To plead that the Commissioner acted ultra vires when the "assessment" was made is merely saying that there was a wrong or incorrect assessment. 9. However, I would not decide this case only on this point. The Inland Revenue Ordinance distinguishes carefully between assessment and tax. It provides an elaborate method of appealing against the assessment of tax. This is to be found in Part XI of the Ordinance "Objections and Appeals". 10. The question whether an assessment is a nullity or not can be raised by way of an objection in an appeal under the provisions of that Part of the Ordinance. There is no question of shutting out the appellant from the Court. There are specific provisions which include an appeal to a Board of Review and from the Board an appeal lies to the Supreme Court. 11. As in all revenue statutes the person to be taxed has to provide information to the Commissioner to enable the correct amount of tax to be assessed. When he has been assessed he may object to the assessment. 12. Section 64(4) of the Ordinance reads as follows:-
13. This ensures that by the time the tax-payer reaches the Board of Review he will be fully aware of the facts on which the assessment was based and the reasons for making such an assessment. It is at this stage and in the proceedings before the Board of Review that the issue whether the assessment is a nullity or not must be raised. 14. Section 75 of the Ordinance is quite another matter. It deals with the recovery of the tax and not with assessments at all. The wording of subsection (4) of the section wraps up all the objections which can be made to the assessment. This is not to say that there is no defence to a claim for tax brought by the Commissioner. There may be question as to the identity of the tax-payer for example. As I see it section 75 of the Ordinance confers a limited, in fact a very limited, jurisdiction on the District Court rather than limits the jurisdiction of the courts as a whole. 15. The Ordinance therefore carefully differentiates between assessment and tax. Objections to the former are dealt with by a Board of Review and the Supreme Court-objections to the tax are dealt with by the District Court. I do not see how it can be suggested that matters for which an avenue of appeal is provided can be raised by way of a defence in another court. 16. Counsel quoted several cases during the course of their arguments, many of them from other jurisdictions and dealing with other enactments. I must confess that I have not found them of much assistance. To me, this is a question of the interpretation of the Inland Revenue Ordinance and I think that the relevant sections of that Ordinance are unambiguous. 17. I think that the decision of the District Court Judge was correct and I would dismiss this appeal.
Representation: Litton, Q.C. & K.H. Woo (K.C. Yung & Co.) for appellant. Johnson for crown/respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 49 OF 1975 -----------------------------------------------------
Coram: Briggs, C.J., Huggins and Pickering, JJ. Date of Judgment: 16th January, 1976. ----------------- JUDGMENT ----------------- Huggins, J.: The argument on behalf of the Appellant is based, as was the argument in Commissioner of Estate Duty v. Nanwani C.A. No.47 of 1975 (in which we have just delivered judgment), on the principle that the Court should interpret a statute as ousting the jurisdiction of the ordinary courts only where the intention of the Legislature so to oust the jurisdiction is clear. I considered that principle at length in the other case and shall say no more about it here. The question is whether the Legislature has made such an intention clear. 2. The provision relied upon by the Commissioner is s.75(4) of the Inland Revenue Ordinance, which is in these terms:
What, in effect, the Appellant submits is that, while that provision prohibits the court from inquiring whether the "tax" (as assessed) is excessive or incorrect, it does not prohibit the court from inquiring whether the assessment of that tax was incorrect. Consequently, the argument goes, the Appellant is entitled to defend on the grounds that there was no lawful foundation for an additional assessment and that the additional assessment was made in an arbitrary and capricious manner. Mr. Litton contends that it is open to the Appellant to plead by way of defence that the assessment was a nullity or should be set aside for some reason unconnected with the calculation of the tax claimed. He points to s.70, which reads in part:
The implication is that the assessment is not to be final and conclusive as regards matters other than the amount of the assessable income or profits. How then are such other matters to be disputed if not in an action brought in the courts? 3. Mr. Johnson concedes that the Appellant would be able to require a District Judge to scrutinize any certificate issued under s.75(3) which might be tendered in evidence and that the court might inquire into the identity of the taxpayer. As to the certificate, this concerns the admission of evidence and is not a matter which could be pleaded by way of defence anyway, but as to the point of identity I understand counsel to be conceding that a defendant may deny that he has been assessed. He did not seem to be prepared to go further. 4. Accepting that there may be matters which can be raised by way of defence to an action we have to consider whether they are as restricted as Mr. Johnson suggests and, in particular, whether the matters sought to be raised in the present case may properly be raised. It is desirable to set out the precise terms of the relevant part of the Defence filed. Paragraph 4 states:
The power to make an additional assessment is reserred by the proviso to s.70:
The only restriction on the making of an additional assessment is, therefore, that such assessment would involve the re-opening of a matter which had been determined on objection or appeal for the year. That immediately indicates one other possible ground of defence, but it is one not open in the present case because there is no allegation that the original assessment for the year was objected to or appealed. The crux of the first ground of defence was the Appellant's assertion that there were no grounds upon which the Assessor could lawfully have reached his conclusion that an additional assessment ought to be made. The Assessor obviously thought otherwise and the basis of his opinion could only have been either that the amount of the Appellant's assessable income or profits was more than previously determined or that a higher rate was chargeable. In fact it is said that he "reassessed the profits". Whether he was correct or not, the additional assessment became "final and conclusive as regards the amount" when the Appellant failed to lodge a valid objection. The fact that s.75(3) refers to a certificate's being "sufficient evidence" and not "conclusive evidence" of the amount due does not assist the tax-payer and I agree with the conclusion reached in Commissioner of Inland Revenue v. AU Yuk-shuet (1966) H.K.T.C. 489 that in the context of this Ordinance a certificate is to all intents and purposes conclusive evidence. Paragraph 4(i) of the Defence complains that there were no profits which had not already been assessed, but it has not been explained how that complaint can be made without ipso facto impugning the amount of the additional assessment, which is not allowed. 5. Reliance is placed on Argosy Co. Ltd. v. Guyana Commissioner of Inland Revenue 1971 A.T.C. 49. The headnote to the report reads as follows:
The ratio decidendi was that on the evidence
Mr. Litton contends that in the case at bar the right to make an additional assessment never arose, but in my view the facts of this case are distinguishable: the Appellant is unable here to point to evidence which shows that the additional assessment is not justified but rather relies on the argument that there is no evidence which shows that it was justified. We do not know on what the Assessor based his opinion that the Appellant made greater profits than those disclosed in his return and the only question is whether it can be shown on the other side that the Appellant cannot have made such profits. It is not suggested that it can. Although the Appellant alleges that the Assessor acted capriciously, he has not gone on to allege any facts upon which that wider allegation can properly be founded. 6. The only other case to which I find it necessary to refer is Anisminic Ltd. v. Foreign Compensation Commission 1969 2 A.C. 147. The case is authority for the proposition that although a statute may have conferred upon a tribunal or official jurisdiction to make determination which "shall not be called in question in any court of law" that does not prohibit the courts from inquiring whether a purported determination is in truth a nullity. As Lord Reid said at p.171:
I do not think that before us counsel for the Commissioner has thrown any doubt upon the correctness of the proposition laid down in that case. The substance of his argument is that the Defence filed by the Appellant does not allege any facts which would enable the District Judge to hold that the additional assessment was a nullity. 7. As to paragraph 4(ii) of the Defence, I do not see how this differs in substance from an allegation that the amount was excessive or incorrect - which could not be entertained -, for unless it can be shown that the amount was excessive or incorrect it is difficult to see how the Appellant could establish here that the assessment was arbitrary or capricious. I do not say that the Assessor could not, by coincidence, reach the right result in an improper manner, but where he has not stated his reasons for arriving at the amount demanded the only way in which arbitrariness or capriciousness could be established would be by showing that no reasonable assessor could have arrived at such a figure. Just as it is not sufficient to plead that an assessment is a nullity without alleging facts which would support that conclusion, so it is not enough to plead that an assessment was arbitrary or capricious without pleading also the primary facts from which arbitrariness or capriciousness may be inferred. Not only have such primary facts not been pleaded but no indication has been given that they exist. What the Appellant seeks to do is to embark upon a fishing expedition by way of interrogatories and discovery in the hope of landing some evidence that the Assessor acted improperly - but I do think that that should be allowed. 8. I would dismiss the appeal. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 49 OF 1975 (ON APPEAL FRON V.D.C. NO. 4568/75) -----------------
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ. Date of Judgment: 16th January, 1976. ----------------- JUDGMENT ----------------- Pickering, J.: Having carefully considered the arguments of counsel herein and having subjected my own ten-year-old decision in Commissioner of Inland Revenue v. Au Yuk Shuet(1) to a critical re-examination, I am of the opinion that the result there arrived at was correct. 2. I have had the advantage of considering the judgments given in this case by the learned Chief Justice and Huggins, J. and with these judgments I agree. 3. I too would dismiss the appeal.
Representation: (1) 1966 H.K.T.C. 489 1966 D.C.L.R. 29 |