Re Income Tax Act; Objection by Private Medical Clinic Pty Ltd [1988] PGNC 10; N695 (10 November 1988)

Unreported National Court Decisions

N695

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 163/88
IN THE MATTER OF THE INCOME TAX ACT, 1959 AS AMENDED
AND IN THE MATTER OF OBJECTION BY PRIVATE MEDICAL CLINIC PTY LTD TO ASSESSMENT OF INCOME TAX FOR THE YEARS OF INCOME ENDED 31 DECEMBER, 1982 TO 31 DECEMBER, 1985.
AND IN THE MATTER OF REFERENCE TO THE NATIONAL COURT OF THE DECISION OF THE CHIEF COLLECTOR OF TAXES ON THE SAID OBJECTION.

Waigani

Woods J
10 November 1988

INCOME TAX - CERTAIN EXEMPTION TO AUTOMATIC CITIZENS - NATURALISED CITIZEN - WHETHER ADOPTIVE PARENTS TAKEN INTO ACCOUNT

Legislation Cited:

Constitution

Income Tax Act

Counsel:

Mr Enda for Appellant

Ms Weigal for Chief Collector of Taxes

JUDGMENT

WOODS J: The Privedical Clinic Pty Pty Ltd has objected to the assessment of income tax based on income derived for the year 1985 on the basis that the Company is entitled to amption under the provision of Section 154 of the Income Taxe Tax Act because Dr. Glen Mola is an automatic citizen under the provisions of Part IV of the Constitution.

This objection has come to this Court as an Appeal pursuant to Section 247 of the Income Tax Act.

The Appellant has tendered to this Court a copy of a Certificate of Naturalisation whereby he was granted citizenship by Naturalisation in 1975.

Section 154B(1)(b)(i) of the Income Tax Act provides that Section 154C only applies to a qualifying corporation where the Chief Collector is satisfied that no present or future legal or equitable rights on interest in any share in the corporation is beneficially owned by any person other than a citizen (other than a naturalized citizen).

The Appellant company is owned by Dr. Glen Mola who came to Papua New Guinea in 1963 and was adopted into the Mola family a short time later. Dr. Mola contends that as he was adopted into a Papua New Guinea family according to the customs of his adoptive family his citizenship status when granted in 1976 was to be the same as an automatic citizen as by virtue of Section 78 of the Constitution his adoptive parents were taken into account when his citizenship was granted.

I firstly rule that my determination of this appeal does not involve a question arising on the interpretation of a Constitutional Law.

The only evidence produced on behalf of the tax-payer is the Certificate of Naturalisation of 1976 and some documents relating to an approach being made to the Citizenship Advisory Committee in 1985 for a review of Dr. Mola’s citizenship Application of 1975 and for a deliberate judgment to retrospectively allow the adoptive parents to be taken into account in the entitlement to citizenship. However there is no material presented to me to show that the Minister has in his deliberate judgment allowed such to be taken into account. I therefore find that the Appellant has failed to produce appropriate evidence to bring it within Section 154B(1)(b)(i). I therefore find that the Tax-payer is not entitled to exemption under that Section of the Act because he is not an automatic citizen.

I therefore find that the amount of K1446.00 the subject of this Appeal is subject to the Income Tax.

Lawyer for the Appellant: Martin Enda

Lawyer for the Respondent: State Solicitor