Namosi Joint Venture v Fiji Revenue and Customs Authority [2013] FJTT 11; Income Tax Appeal 10.2011 (30 August 2013)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE TAX TRIBUNAL

Income Tax Appeal No 10 of 2011

BETWEEN:

NAMOSI JOINT VENTURE
Applicant

AND:

FIJI REVENUE & CUSTOMS AUTHORITY
Respondent

Counsel: Mr W Clarke, Howards Lawyer for the Respondent

Mrs I Ratuvuku, FRCA Legal Unit, for the Respondent

Date of Hearing: Friday 30 August 2013
Date of Application: Friday 30 August 2013

DECISION

1. The Applicant has made an application to this tribunal to have this matter transferred to the Tax Court in accordance with Section 88 of the Tax Administration Decree 2009. The alternative pleading, is that the Tribunal refer a question of law to the Tax Court for its opinion in accordance with Section 87 of the Decree.
   
2. Those questions of law have been identified as follows:
   
   • (i) Having regard to the terms of Article 2 of the Agreement between Australia and Fiji for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (the DTA) does the DTA apply to the non resident withholding tax imposed by Section 8A of the Income Tax Act.
     
   • (ii) Does Article 3(3) of the DTA authorise Fiji to impose tax on a resident of Australia under Section 8A of the Income Tax Act.
     
   • (iii) In determining the allocation of taxing powers between Fiji and Australia under the DTA, does Article 7 of the DTA apply to income derived by a resident of Australia who is not an individual and who provides professional services to a resident of Fiji?
     
3. Having regard to the Application to have this matter transferred in accordance with Section 88 of the Tax Administration Decree 2009 and having heard the parties, it is understood that the Tax Court was not fully functioning for the purposes of Division II of Part III of the Decree. In part it was for that reason that the parties had submitted to the jurisdiction of the Tribunal.
   
4. It also needs to be acknowledged that the powers of this Tribunal would not ordinarily determine claims of amounts in dispute in excess of $50,000.00, unless by consent.
   
5. On the basis that the substantive procedural steps have not been taken in this matter, the fact of the quantum in dispute and to a lesser extent the claim there are important questions of law likely to arise (as it is not clear why the status of these matters would be any more important that other provisions requiring interpretation under the Act), I am prepared to recognise that the consent to determine the matter is not on foot.
   
6. For that reason in accordance with Section 81(2)(b) of the Tax Administration Decree 2009, I will accede to the request of the parties.
   
7. The files will be returned to the Registry of the Tax Court and the matter should thereafter be listed for directions at a time to be notified to the parties.
   

Mr Andrew J See
Resident Magistrate

30/8/2013