Retail Company B v Fiji Revenue and Customs Authority [2013] FJTT 4; VAT Matter 4.2010 (7 February 2013)

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

VAT Matter No 04 of 2010

BETWEEN:

A RETAIL COMPANY B
Applicant

AND:

FIJI REVENUE & CUSTOMS AUTHORITY
Respondent

Counsel: Ms M Tikoisuva, as Town Agent for Krishna & Co
Ms F Gavidi, FRCA Legal Unit for the Respondent

Date of Hearing: Thursday 7 February 2013
Date of Decision: Thursday 7 February 2013

DECISION

VALUE ADDED TAX DECREE 1991- Non Disclosure of Directors Salaries and Wages; Duty to maintain financial records of taxpayers; Duties of Lawyers to Courts and Tribunals; Costs.

1. The Taxpayer filed a Notice of Appeal (Application for Review) against the Objection Decision of the Respondent. The issue in dispute related to undeclared sales for the period 2003 to 2007, that were incorporated into amended Value Added Tax assessments.
   
2. The matter was first brought on before the Tribunal on 6 July 2011.
   
3. After a series of callover hearings, on 2 April 2012, Ms Tikoisuva sought that no further Directions be issued until the May/June sittings of the Tribunal.
   
4. On 4 June 2012, Counsel, acting as Town Agent, advised that the Taxpayer sought further time for accountants to prepare preliminary reports.
   
5. On 22 June 2012, the parties agreed to develop a Statement of Facts and Issues, as a preliminary requirement to hearing.
   
6. On 20 August 2012, the parties were advised that the matter would be set down for hearing at the next report back of the Tribunal, on 14 September 2012.
   
7. On 14 September 2012, the matter was set down for hearing on 17 December 2012.
   
8. On 6 December 2012, only eleven days before the matter was due to be heard, Krishna & Co, wrote to the Respondent advising that they will be seeking an adjournment of the hearing date on the basis, "that (their) Office would be closed on the above-mentioned date."
   
9. On 17 December, this Tribunal granted the adjournment and in doing so was highly critical of the apparent disregard the parties, but specifically the lawyers for the Taxpayer had in the administration of the Tribunal. The fact was, that as soon as the date of 17 December was advised to Krishna & Co, their objection to it and negotiation for a substitute date, should have taken place. Eleven days prior to trial, particularly when the Tribunal sits in an ad-hoc basis, was seen as a complete disregard to the resources of Government.
   
10. The matter was therefore set down for today's date.
    
11. At the commencement of the matter today, Ms Tikoisuva has advised that Krishna & Co, were not aware that the matter was to be heard today and that her instructions were to take another date.
    
12. This is despite the fact that Counsel advises that she had telephoned that law firm immediately after the last aborted hearing date and advised that the matter would be heard today.
    
13. After hearing the submissions of the parties, I have decided to strike out this matter. The Respondent was ready to proceed and had brought a witness from Lautoka to give evidence. Ms Gavidi, spoke of the Taxpayer's lack of co-operation in its discussions and its failure to meet its basic record keeping requirements.
    
14. On 17 December 2012, Counsel acting as Town Agent, was given a very clear message from this Tribunal that court resources cannot be wasted in such a fashion.
    
15. If lawyers seek to outsource their representation responsibilities, they must do so ensuring that their two-way communications are clear and that no party is disadvantaged as a consequence of their own preference for having the matter advocated before the tribunal in that way.
    
16. On each occasion following the report back, one would have assumed that the Taxpayer would have also been apprised of developments. Against the backdrop of the previous vacation of hearing, I am not inclined to do so again.
    
17. Ms Tikoisuva has provided no adequate reason on behalf of Krishna & Co, why the matter should not be struck out. In accordance with Section 103(a) of the Tax Administration Decree, I order accordingly.
    
18. In relation to the question of costs of the Respondent. The Respondent's Legal Unit has had to attend this Tribunal on 12 occasions. A significant amount of time and effort has been expended in the preparation of this case and the liaison over time, with the Taxpayer. The Taxpayer and more specifically its lawyers[1] has shown a disregard for the proper progressing of this matter and the effective administration of this Tribunal.
    
19. In accordance with Section 104 of the Decree, I order that the Taxpayer pay costs to the Respondent in the amount of $5000.00. That payment is required to be made with 14 days.
    

DECISION

(i) The Application for review is struck out.

(ii) The Taxpayer must pay to the Respondent costs in the amount of $5000.00, within 14 days.

Mr Andrew J See
Resident Magistrate

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^[1] I am not speaking of Ms Tikoisuva here.