Read the full judgment text of CACV 000261/2005 on BabelCite. This Court of Appeal judgment was delivered on 25 January 2007 before Rogers VP, Tang VP, Le Pichon JA.
Taxation – profits tax – additional assessment – objection and appeal – holdover of tax – Tax Reserve Certificate (TRC) – taxpayer's failure to purchase TRC within 14 days – 5% surcharge – default judgment – payment of tax – subsequent successful appeal to Board of Review (capital gain) – refund of tax – whether taxpayer entitled to interest on refunded tax – whether Inland Revenue Ordinance (Cap 112) s.79(1) applies – whether s.79(1) provides exclusive remedy displacing common law claim for unjust enrichment – whether taxpayer had a claim duly made in writing within the prescribed time – whether Board of Review appeal and correspondence constituted such a claim – construction of s.79(1) read with s.71 – whether s.79(1) impliedly confers power on Commissioner to pay interest – statutory scheme for holdover of tax – whether common law restitution under Woolwich Equitable Building Society v IRC [1993] AC 70 available where statute provides statutory refund remedy – British Steel plc v Customs and Excise Commissioners [1997] 2 All ER 366 – whether section 33 Taxes Management Act 1970 (UK) comparable – Basic Law – Article 105 – 'lawful deprivation of property' – whether payment of tax amounts to expropriation – Article 108 – independent taxation system – whether Articles 105 and 108 mutually exclusive – proportionality – Australian Tape Manufacturers Association Ltd v Commonwealth [1993] 176 CLR 480 – Federal Commissioner of Taxation v Barnes, MacCormick v FCT, FCT v Clyne – The National & Provincial Building Society v United Kingdom 25 EHRR 127 – Article 1 of Protocol No. 1 ECHR – 'fair balance' and 'margin of appreciation' – whether 14-day period for TRC purchase unreasonable – Departmental Interpretation and Practice Notes No. 6 (Revised) – discretionary holdover – whether taxpayer can challenge requirement to purchase TRC – claim for interest of HK$2,426,234.10 – unjust enrichment – restitution – whether Ordinance contains any 'gap' regarding interest on refunded tax – appeal dismissed with costs to respondent.
Legal issues: Whether section 79(1) of the Inland Revenue Ordinance applies to the taxpayer's claim for refund of overpaid tax · Whether section 79(1) provides the exclusive remedy, precluding a common law claim for unjust enrichment · Whether Article 105 of the Basic Law entitles the taxpayer to compensation/interest on refunded tax as a 'lawful deprivation' of property
Outcome: Appeal dismissed. The plaintiff's claim for interest on the refunded tax was refused.
Cited by 1 case