Hakik v Fiji Revenue and Customs Authority [2014] FJHC 714; Appeal Action 11.2013 (1 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Appeal Action No. 11 of 2013
(On appeal from the Tax Tribunal Action No. 16 of 2013)

BETWEEN:

ABDUL HAKIK of Laucala Beach Estate, Nasinu, Retiree
Appellant

AND:

FIJI REVENUE AND CUSTOMS AUTHORITY,
duly incorporated under Section 3 of the Fiji Revenue and Customs Authority Act 1998 having its registered office at Level 4, Building 3, Revenue & Customs Complex, Nasese, Suva
Respondent

Appearance : Mr N Tuifagalele for the Appellant

Mr S Ravono for the Respondent

Date of Judgment : 1 October 2014

JUDGMENT

1. The Notice of Appeal was filed by the Appellant on 26 November 2014 pursuant to Section 18 and Section 107 of the Tax Administration Decree 2009 against the Tax Tribunal Decision delivered on 5 November 2013 dismissing the application for extension of time. The grounds set out in the said Notice of Appeal are:

1. THAT the Learned Resident Magistrate Andrew J See erred in law and in fact in now allowing the Appellant ample time to prepare for hearing when the case was called on the 1st November 2013, for mention only.

2. THAT the Learned Resident Magistrate Andrew J See erred in law and in fact not allowing the Appellant leave to provide and/or amend grounds for the application when the case was called on the 1st November 2013, for mention.

3. THAT the Learned Magistrate Andrew J See erred in law and in fact in failing to consider the implications of the police investigation into the conduct of the Appellant.

4. THAT the Learned Magistrate Andrew J See erred in law and in fact in failing to consider, as per the police investigation correspondence dated 11th September 2013, that there was insufficient evidence to proceed on any charges by the Director of Public Prosecutions.

2. The Appellant made an application to the Tax Tribunal on 23 October 2013 pursuant to Section 82 of the Tax Administration Decree for an order to review the reviewable decision of the Respondent.

3. The Facts

3.1 The Respondent had conducted an audit of the Applicant's income for the Income Tax years ended on 31 December 1999 to 31 December 2002 inclusive of which was completed in 2004.

3.2 Several correspondence were exchanged between the Appellant and the Respondent prior to the completion of the audit. The Respondent did not receive any formal objection to the Respondent's Notices of Assessment for the subject years; which were issued to the Appellant on 10 March 2004 (The period for lodgment of objection should be made within 60 days from the date of the amended assessments under Section 62 of the Income Tax Act Cap 201).

3.3 The Respondent by its letter dated 20 May 2004 had informed the Applicant period allocated for any objection had expired and the amended assessments for the Income Years ended on 31 December 1999 to 31 December 2002 inclusive of are valid and binding (The period for lodgment of objection expired on 11 May 2004).

3.4 The Respondent commenced it recovery process on the Applicant's Debt from 26 April 2004. The Respondent registered its Charge No. 540454 Applicant's Native Lease No. 21219 on 16 March 2004 and Charge No. 540454 on the Applicant's Certificate of Title No. 15235 on 16 May 2007.

3.5 The Respondent demanded the payment of $555,276.17 which was due and owing by the Appellant for Income Tax and penalties and informed the Appellant Respondent may apply to the High Court for enforcement of charges registered on the properties pursuant to Section 28(7) of the Tax Administration Decree 2009.

3.6 On 19 March 2013 an application was made to the High Court since the Appellant had not paid the said sum of $555,242.04.

3.7 The Appellant by his letter dated 15 August 2012 requested the Respondent to review the assessment years ended 31st December 1999 to 31st December 2002 inclusive.

3.8 Although the said assessments were valid and binding upon the Appellant, the Respondent reviewed the assessments, at the request of the Appellant.

3.9 The Respondent having completed the review of the assessments issued a letter dated 20 September 2013 that the Respondent's stance on the issues in dispute are unchanged as per letter dated 20 May 2004.

4. The Applicant thereafter filed Notice for Application to review the reviewable decision of the Respondent on 23 October 2013. This application was made to the Tax Tribunal pursuant to Section 82 of the Tax Administration Decree.

5. The Tax Tribunal had taken up this matter and the decision was made on 5 November 2013 dismissing the application.

6. The Respondent alleged the application is not inconformity with the Section 82:

"82-(1) A person dissatisfied with a reviewable decision may apply to the Tax Tribunal for review of the decision.

(2) An application under Sub section (1) must:

(a) be in the approved form;

(b) include a Statement of reason for the application;

(c) be lodged with the Tax Tribunal within 30 consecutive days after the applicant has been served with Notice of the reviewable decision;

(d) accompanied by the prescribed fee.

(3) .....................................

(4) ....................................."

7. The application was made to the High Court Registry on 7 October 2013 pursuant to Section 82(3) of the Tax Administration Decree 2009 and stated inter-alia:

"Mr Hakik (The Appellant, the Respondent in this case) has been challenging the Petitioner for what he deems is money that was not income; therefore not taxable since 2004,

His case has been dealt with by many officials of the Petitioner (Respondent in this case), some of whom have relieved or resigned and moved on.

According to evidence provided by him (Applicant in this case), one particular official had informed him that they were going to withdraw any tax claim. Then other officials started demanding illegal personal payments from him in return for his tax matter to be dropped. (A complaint had been lodged with FICAC).

Then there was the attitude by his former counsel showing very little concern about this current high court case. She appeared only once but failed to appear in other occasions."

8. It was stated in the Tax Tribunal decision when the application for extension of time was pleaded in the Affidavit in Support dated 23 October 2013, the Appellant had failed to identify any grounds in which it was to rely on in the making of a review application (Tax Tribunal Record page 10 paragraph 12).

9. The Appellant's counsel Mr Ramanu had accepted at the Tribunal the substantive ground for making the application is that:

"certain loans paid to the Tax Payer not be considered to be income for the purposes of Section 11 of the Income Tax Act" (Tax Tribunal Record page 10 paragraph 13).

10. The Learned Tribunal also stated in its decision that the reason for applying extension of time is that the Appellant's former lawyer responsible for carriage of the case failed to lodge an appeal under Part IX of the Income Tax Act (Cap 201). Further the Appellant had assumed that since there was an investigation by the Fiji Police with regard to his tax affairs, there was no necessity to take further action to challenge the Respondent's objection decision.

I conclude there is no merit in this argument, the Appellant was a former Accountant and possessed adequate knowledge about his tax obligations. The annexed correspondence and the record of interview notes by the Criminal Investigation Department in the Appellant's Affidavit dated 23 October 2013 (Tax Tribunal Record pages 51-124) clearly establishes the Appellant had the knowledge of the Tax matters who is an Accountant. I note that the Appellant had replied all the letters sent by the Respondent in his personal capacity and it further establishes that the Appellant was well aware of his obligations and liabilities towards the payment of Income Tax and I conclude that he cannot shift the responsibility to his Counsel/Solicitor. I also find "AH 18" annexed to the said Affidavit is an assessment prepared by the Appellant which further proves that his application cannot be considered on the basis that proper legal advice not received from his Counsel. As such I determine the learned Tribunal's refusal to grant extension of time is justified.

11. FURTHER CONCLUSIONS

11.1 The Amended Notice of Assessments for the income years ended 31 December 1999 to 31 December 2002 inclusive were issued to the Appellant on 10 March 2004. The Section 62 of the Income Tax Act (Cap 201) states:

62 (1) Any taxpayer dissatisfied with our assessment may, personally or by his agent, within 60 days of the date upon which the Notice of Assessment has been served upon him or his agent, or where such notice has been posted, the date of posting, lodge with the Commissioner an objection in writing to the assessment in the form set out in Form 2 in the First Schedule stating the grounds on which he relies:

Provided that where the assessment is an amended assessment, the taxpayer shall have no further right of objection except to the extent to which, by reason of the amendment, a fresh liability in respect of any particular is increased.

11.2 The Appellant had failed to lodge the objection within the stipulated time in the Section 62(1).

11.3 The Charges on the properties were registered on 16 March 2004 [Charge No. 540543 on Native Lease No. 212219] and on 16 May 2007 [Charge No. 540454 Certificate of Title No. 15235]. The Respondent had written to the Appellant on 6 September 2012 to pay the sum of $555,276.17 within 7 days and informed in the same letter on his failure an application may be made to the High Court for the enforcement of the Respondent's chargers placed on the said properties.

11.4 On 19 March 2013 the Respondent lodged its petition to the High Court since the Appellant failed to pay the sum of $555,242.04.

12. The Appellant had given evidence in the Tribunal based on the Affidavit in Support dated 23 October 2013. The Appellant had by the letter dated 25 April 2004 stated that (Annexure AH 6 - page 72 of the Copy Record) the sum of $580,000.00 was provided by one Mr Nick Nemmari since 1999 (AH 7 – page 76 of the Copy Record). Mr Nemmari further stated the Appellants family would repay back $700,000.00. On 16 November 2012 Mr Nemmari had written a letter and stated he had forgiven the loan given to the Appellant (page 122 – AH 17). My conclusion is all these correspondence reveals that the Appellant had the benefit of $580,000.00 and his discharge from the Criminal proceedings cannot be taken into consideration when his tax liabilities are concerned as correctly decided by the Learned Tribunal (pages 13 and 14 of the Copy Record). The submission made by the Appellant carries no merits on this issue.

13. The Appellant had made lengthy submissions on the issue of Leave to file an application for Extension of Time. The Learned Tribunal had addressed this issue in pages 9 to 14. The Appellant had cited the case of Avery vs. No. 2 PSA Board [1973] 2 NZLR 86 (A) p. 91 and stated the court had unfettered discretionary power to grant leave. Such discretionary powers to be exercised taking in to consideration:

(a) the length of delay;

(b) the chances of the application for Leave to Appeal succeeding if time is extended?

(c) the reasons for the delay;

(d) the prejudice caused to the parties if the Leave is refused.

The Learned Tribunal had considered all these principles in its decision and cited the Fiji case NLTB vs. Ahmed Khan and Another [2013] FJSC 1; CBV0002.2013 (15 March 2013):

(a) Length of Delay

I agree with the Tribunals finding that there had been a delay of a 9 years and 6 months and the letters annexed to the Appellant's Affidavit in Support in the Tribunal marked AH 4 AH 5 and AH 6 and AH 7 (Copy Record – pages 68, 70, 72 and 74). The decision of the Tribunal the length of delay is not justified by the Appellant.

(b) Chances of Success

The Learned Tribunal had given due consideration to this principle in paragraphs 33 to 42 which I agree. The Appellant had cited the following statement of Calanchini JA in case of Datt vs. Datt [2013] FJCA 58 (unreported decided on 7 June 2013):

"[13] In cases where the delay is extreme and where the explanation for that delay is not wholly excusable, then an applicant will need t show good reason or special circumstances for the court to exercise the discretionary balance in his favour. This means that when the length of the delay is extreme and the explanations for it are wholly unsatisfactory, it is still necessary, in exercising the discretion given to the Court, to assess the chances of the proposed appeal succeeding. In Tevita Fa –v- Tradewinds Marine Ltd and Another (unreported) ABU 40 of 1994 delivered 18 November 1994 (CA) Thompson JA at page stated:

"However, as important as the need for a satisfactory explanation of the lateness is the need for the applicant to show that he has a reasonable chance of success if time is extended and the appeal proceeds."

[14] In a case such as the present, the Applicant must establish that his grounds raise more than just a reasonable chance of success to enable the Court to conclude that leave should be given. It is not sufficient for the Applicant to establish that his grounds of appeal are not wholly unmeritorious or wholly unlikely to succeed. In my opinion he must establish special circumstances."

The Appellant had brought to the notice of the court certain principles with regard to Islamic faith and religious tolerance and stated the monies received by him was a loan. This position cannot be considered to justify the merits of this case and there is no basis to apply religious beliefs in tax assessments. The Appellant fails.

(c) Reasons for Delay

The Appellant failed to address this issue and there is no material before me to consider this issue and at the Tribunal too, the Appellant failed to address this issue.

(d) Prejudice

The Appellant's submission states the prejudice was caused to him since there are two other High Court Actions pending on the issue. This is an application for extension of time which would have been justified. The Appellant failed to do so. By initiating different legal proceedings the Appellant cannot urge that the prejudice caused to him and such practices should not be entertained by the courts. The prejudice was in fact caused to the Respondent by delaying the recovery process and I hold in favour of the Respondent. I conclude there are no merits on the Grounds of Appeal.

14. Accordingly, I make the following Orders:
    

(1) The Learned Tribunal's Order in its decision dated 5/11/2013 affirmed.
(2) The Appellant should pay $1,500.00 costs summarily assessed to the Respondent within 30 days from this Judgment.

Delivered at Suva this 1st Day of October 2014.

..................................
C. KOTIGALAGE
JUDGE