Suncourt (Wholesalers) Ltd v Fiji Islands Revenue and Customs Authority [2004] FJHC 172; HBJ0026.2004 (8 December 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: HBJ0026 OF 2004

BETWEEN:

SUNCOURT (WHOLESALERS) LIMITED
Applicant

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Respondent

Counsel: Mr. Cameron & Mr. Parshotam – for the Applicant

Hearing & Ruling: 8th December, 2004

EX TEMPORE RULING

Background:

The applicant has been embroiled with the Fiji Islands Revenue and Customs Authority (FIRCA) over a dispute arising as a result of a tax audit.

The original allegation was that the applicant had omitted to return income of some $15.7m. After negotiation the allegation by FIRCA reduced to omitted income of $4.16m. An assessment for that sum issued throughout the latter part of 2003.

After further negotiation there then followed an independent audit of the applicant’s affairs conducted by staff from FIRCA. That resulted in a finding that the omitted income was more in the vicinity of $1.27m (Ex. H Bhikha’s affidavit of 7/12/04). The Commissioner rejected that independent finding and by letter dated the 26th of October, 2004 issued a new assessment (see Annexure N affidavit of Bhikha dated 7th December 2004).

In its supporting affidavit the applicant’s Managing Director deposes that all real taxes detailed in that assessment have been paid. The applicant adopted that option to preserve its rights. It eventually objected to the assessment and has thereby filed its appeal before the Court of Review.

After filing the appeal before the Court of Review the Commissioner has sent the applicant a letter on or about the 6th of December 2004 purporting to exercise his discretion to impose a 100% additional tax penalty.

It is that latter decision to impose penalty after the objection and appeal have been filed that is the subject of these applications.

The Application

The applicants come before me seeking in part a simple declaration that the Commissioner’s exercise of discretion demanding that penalty payment is an abuse of process and in breach of the tax payers legitimate expectations of fair dealing with FIRCA. At paragraph E a declaration is sought that the respondent is not entitled to depart from its undertaking (Ex. U in Bhikha’s affidavit letter 30/11/04).

The application before me is in that sense quite separate from the real tax assessment objection filed before the Court of Review. I note in passing that the Court of Review is a statutory authority. Its enabling legislation gives it wide powers to consider objections to Commissioner’s assessments but does not provide it with any powers of injunctive relief or stay.

I am advised by counsel based on the applicant’s affidavit that the Commissioner intends to enforce its “penalty” assessment of the 6th of December and may move to obtain payment of that penalty despite the objection and appeal filed before the Court of Review. If the Court of Review finds in favour of the tax payer then there would be no basis upon which the Commissioner could demand the quantum of penalty he now seeks.

The applicant is a substantial business concern. It has gross assets of approx. $15.2m secured debts to banks and other institutions of $9.5m and unsecured debts of approximately $4.9m. I infer from that ratio that the business is “highly geared”. Any action taken by FIRCA now seeking to pre-emptorily obtain payment of the penalty may have a drastic domino effect for the ongoing commercial viability of the company.

The application is made ex-parte with the applicant seeking to secure an order on a temporary basis during the period of the legal vacation, when the court is closed and access to a judge for interim relief may be difficult. I have considered the application on that basis.

Decision

The application in part seeks simple declaratory relief. I do not accordingly feel constrained by the need to consider the granting of leave for judicial review. I am satisfied that that issue may relay remain a live feature of the case to be considered in a more timely fashion at the resumption of the courts next calendar year on January 13th, 2005.

For present purposes I find there is sufficient urgency in the matter with the threat of immediate enforcement proceedings to consider the application on an ex-parte basis.

I am satisfied on the Cyanamid principles that there is a clear and serious issue to be tried concerning the imposition of the 100% additional tax penalty at a time after the taxpayer has paid the real tax on the original assessment and filed its objection and appeal before the Court of Review.

I am also satisfied at this time that the balance of convenience favours the taxpayer applicant. I accept for present purposes the affidavit statement that the company has paid all real taxes and the only matter at issue by these proceedings is the 100% additional tax penalty levied by the Commissioner. In that sense I see no prejudice to the role of the Commissioner as the nations’ tax gatherer in creating a short pause over the legal vacation before he further exercises enforcement proceedings. Indeed creating a short pause now may enhance rather than detract from the collection of any outstanding tax bearing in mind the usual increase in business cash flow over the Christmas trading period.

I do not find damages in these declaration proceedings to be an adequate remedy if FIRCA were to strike pre-emptorily over the Christmas period and scare the secured creditors into action against the applicant, the drastic domino affect thereby created would gain such momentum that it would be hard if not impossible to stop.

I am satisfied at this time that it is appropriate to grant the relief sought on a very temporary basis. This will allow the timely service of these proceedings on FIRCA and allow it time in which to reflect upon its future options in the light of the fact that the applicant has paid the State its real taxes and exercised its right of objection to assessment by filing an appeal before the Court of Review.

Conclusion and Orders

Accordingly, I order

1. An Order that until further order of the Court the respondent, its servants, agents and employees be restrained from enforcing in any way its decisions of 26 October 2004 and 6 December 2004 to levy penalties at the rate of 100% of Omitted Income against the applicant and to demand payment thereof and/or the respondent’s decision of 30 November 2004 to levy penalties at the lesser rate of 75% of Omitted Income against the applicant and to demand payment thereof or on any other decision it may take to levy any penalty on such Omitted Income (“the Penalty”);
   
2. A declaration that the respondent, its servants, agents and employees, is not entitled to take any further steps to enforce payment of the Penalty;
   
3. An Order staying until further order of the Court any enforcement proceedings that the respondent, its servants, agents and employees may issue against the applicant to enforce payment of the Penalty.
   
4. All orders are temporary and granted on an ex-parte basis until midnight on the 10th January, 2005.
   
5. I direct the proceedings as amended and the judgment be served together with the Order no later than 4.00pm Thursday 9th December, 2004.
   
6. Leave reserved for the respondent to come back to me on 7 days notice, after it has filed its response.
   
7. General leave to the respondent to file and serve its response by 9.00am on the 10th of January, 2005.
   
8. Matter to be re-listed before me for mention on the 10th of January, 2005 at 10.00am.
   
9. Costs in the cause.
   

Gerard Winter
JUDGE

At Suva
8th December, 2004