Commissioner General of Internal Revenue Commission v Douglas Properties Ltd [2002] PNGLR 10 (22 March 2002)

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STAMP DUTY – Stamp Duties Act, 1952,ss.8 (2) (a) and (b), 20 (6A) and 20A (1) – Liability to pay the Ad Valorem stamp duty arises when the Notice of Assessment is issued – Notice of Assessment is conclusive evidence of the duty to be paid and that all the particulars of the assessment are correct.

STAMP DUTY – Stamp Duties Act, 1952, ss.8 (2)(a) and (b); s.20 (4A), (6A) and (20A
(1) and (2) – Liability to pay duty pending objection.

STAMP DUTIES ACT, 1952, s. 36 (2) – Practice and Procedure-The proper recourse for a person who is liable to pay duty but disputes the assessment is to lodge an objection against such assessment after paying the duty and if the objection is dismissed, to appeal against such dismissal, as provided under ss. 20A (1) and (2) and 21 of the Stamp Duties Act.

LEASE AGREEMENT – Stamp Duties Act, 1952, s. 36 (2) – A clause in the lease agreement that indemnifies a party who is liable to pay the duty is contrary to s. 36 (2) of the Stamp Duties Act and is illegal and unenforceable.

STAMP DUTIES ACT, 1952, ss. 3 (3) and 20 A (2) – Practice and Procedure – Commissioner General is a separate entity from the State and has power to collect duties including suing in his official name for and on behalf of the State in a Court of competent jurisdiction.

The plaintiff claimed the sum of K230,408.82 from the defendant being unpaid stamp duty assessed on a lease agreement between the defendant as landlord and the State as lessee, plus a penalty for non payment of the assessed duty. Notwithstanding numerous reminders the debt remained unpaid and the plaintiff sued for its recovery.

The defendant filed a defence pleading clause 14 of the lease agreement that provided that the State would pay all duty leviable on the lease. The defendant cross claimed for breach and obtained a default judgment in which the plaintiff/cross defendant was ordered to indemnify the defendant against any order made against it in the proceeding.

The issues before the Court were whether the defendant was liable to pay the duty and if the answer was in the affirmative, whether he was entitled to be indemnified by the plaintiff.

1. The liability to pay the Ad Valorem stamp duty arises when the Notice of Assessment is issued, which is conclusive evidence of the duty to be paid.

2. A person liable to pay the duty, although he has the right to object to the assessment, must still pay the duty.

3. The proper recourse for a person who is liable to pay the duty but disputes the assessment is to lodge an objection against such assessment and if the objection is dismissed, to appeal against such dismissals under ss 20A(1) and 21 of the Stamp Duties Act.

4. A clause in the lease agreement which indemnifies a party who is liable to pay duty under the agreement from paying the duty is contrary to s 36(2) of the Stamp Duties Act and is illegal and unenforceable.

Kappo No. 5 Pty Limited & Jenny Chin Hau & Ors v James Chi King Wong & Or [1998] PNGLR 544.
The Chief Collector of Taxes v T.A Field Pty Limited [1975] PNGLR 144.
The Chief Collector of Taxes v Lucky Star Cordials P/L [1988-89] 20.

The plaintiff is claiming K 230,408.82 against the defendant in assessed stamp duty (hereinafter referred to as 'the duty') on a lease agreement between the defendant and the Independent State of Papua New Guinea (hereinafter referred to as 'the State').

The defendant is the landlord of the property described as Section 278 Allotment 27, Hohola, NCD. The property is also known as the former Australian High Commission Building. The defendant entered into a lease agreement with the State as the lessee to lease the property. The lease which was executed on 5th June, 1998, attracted duty under Item 9 of the Schedule to the Stamp Duties Act, 1952 (as amended) (hereinafter referred to as 'the Act').

The Ad Valorem stamp duty was assessed by the Stamp Duties Office at K209,721.22, and the Notice of Assessment for the duty was issued to the defendant on 7 September 1998. The assessment was not issued to the State because it is exempted from paying duties under s 6 of the Act. The amount of duty assessed became due for payment on 8 October 1998, 30 days after the date of the assessment as required by s 20 (4A) of the Act.

The final Notice of Assessment was sent to the defendant on 13 July 1998, for the amount of K209,723.22, the extra K2.00 being for the cost of duplicate copies. The Notice is annexed as Annexure 'A' to Agnes Harihi's affidavit sworn on 30 July 1999.

On 7 September 1998, the plaintiff sent a letter to the defendant reminding it of the outstanding duty it owed to the plaintiff. In that letter, the defendant was given 30 days from the date of the letter to pay the duty. The defendant was also told in that letter that if the duty was not paid within the 30 days, additional penalty by way of interests at 20 % per annum, which was K114.92 per day, would accumulate. In the last paragraph of that letter, the defendant was also told that if it wished to object to the assessment, s 20A (1) of the Act, required the objection to be in writing stating in detail the grounds for such objection. The letter further advised that such objection should be lodged with the Stamp Duties Office within 30 days of the assessment.

In a letter dated 16 September 1998, the plaintiff again reminded the defendant of the outstanding duty. This letter also reminded the defendant once again of the additional penalty that was accruing daily at 20 % per annum. The letter went on to say: "If the debt is in dispute, please send advice to 'Debt Management Objections' to request that recovery action be deferred.... If you wish to apply for an extension of time for payment please send written advice to 'Debt Management Extensions'... Unless payment or written advice is received within fourteen (14) days, legal recovery action may be commenced to recover the debt plus any penalties accrued."

In a letter dated 13 October 1998, to the defendant, the plaintiff acknowledged a letter dated 06th October, 1998, from the defendant. The plaintiff told the defendant in that letter that the plaintiff would not accept non payment by company's creditors as an excuse for the non payment of the duty, and asked the defendant to provide details of when and how the payments of the duty were to be expected or made.

In the same letter, the defendant was again reminded of the 20% penalty on the outstanding amount and was again advised that if it wished to discuss the matter, it should contact the plaintiff on telephone number 322 6503.

On 30 October 1998, the plaintiff sent another letter to the defendant again reminding it of the outstanding duty and asked the defendant to provide details of how the outstanding duty would be paid. The defendant was again reminded of the 20% penalty on the outstanding duty and was invited to discuss the matter if it so desired. Telephone number 322 6503 was again given, in case the defendant wanted to discuss the matter.

When the defendant failed to respond to the plaintiff's letters and refused to pay the duty, the plaintiff issued these proceedings on 13 April 1999.

On 10 August 1999, the defendant filed its Defence, in which, the defendant pleaded clause 14 of the lease agreement, an indemnity clause that purportedly provided, that the State was to pay all duty leviable on the lease. The defendant in paragraph 2 (d) of its defence said that the State had refused or failed to pay the duty that was the subject matter in the plaintiff's statement of Claim.

The defendant's defence incorporated it's cross-claim, in which, the defendant cross-claimed the sum of K209,723.22, being the duty assessed on the lease agreement together with interest in the sum of K20,685.60 altogether to the sum of K230,408.82. The defendant's cross-claim was for the breach of clause 14 of the lease agreement by the State.

Subsequently, the defendant on 28 April 2000, and 10 August 2000, respectively, filed Notice to Admit Facts and the amended cross-claim. Then on 14 March, 2001, the defendant obtained a default judgement, in which the plaintiff/cross-defendant was ordered to indemnity the defendant/cross-claimant against any Order or Judgement made against it in these proceedings.

It is to be noted that, the defence and the cross-claim were served on the Solicitor General, not on the plaintiff.

Then on 5 April 2001, the defendant filed the Notice for Discovery and a verified list of documents.

On 13 September 2001, the parties requested the matter to be set down for trial.

On 30 October 2001, the defendant filed a Notice of Motion seeking Orders to restrain the plaintiff from seeking payment from the defendant for the outstanding duty. That application followed a statutory garnishee notice issued by the plaintiff against the defendant's bank to remit the amount equivalent to the duty owed by the defendant from the defendant's account to pay for the duty owed to the plaintiff by the defendant.

The plaintiff argued that the defendant is liable to pay the duty assessed on the lease agreement as required by s 20 (3) and (6A) of the Act. It further argued that even if the defendant was disputing the amount, the proper recourse for the defendant should have been to pay the duty then object to the assessment within 30 days of the assessment as required by s 20 A (1) of the Act. The defendant did not do that. The plaintiff submitted that these provisions make it obligatory on the defendant to pay the duty.

The Defendant on the other hand argued that it is not liable to pay the duty because under clause 14 of the lease agreement, it is indemnified by the State from paying the duty. It also argued that the Plaintiff being an agent of the State is bound by clause 14 of the lease agreement and it is therefore prohibited from claiming the duty.

It is noted that the Default Judgment, obtained by the defendant against the plaintiff on 14 March 2000, is still current.

The issue before me is whether the defendant is liable to pay the duty and whether the defendant is indemnified by the State from paying the duty under clause 14 of the lease agreement.

Section 3(3) of the Act empowers the plaintiff to administer the Act. The plaintiff therefore has the power to oversee the collection of duties as well as other revenue for the State under the Act.

(1) For the purposes of this Act, the Minister may appoint a Collector of Stamp Duties and such Assistant Collectors of Stamp Duties as are required.

(2) Until the Minister makes an appointment under Subsection (1), the person for the time being occupying the office of Commissioner of Taxation is deemed to be the Collector of Stamp Duties.

(3) The Collector of Stamp Duties has, subject to the direction of the Commissioner General, the general administration of this Act, and a reference in this Act to the Collector to Stamp Duties includes, where the context requires, a reference to the Commissioner General." (my emphasis).

The other relevant provisions in the Act for purposes of determining the issue before me are, ss. 8, 20 and 21.

"(2) A person who is liable for stamp duty under this Act is personally liable for payment of the stamp duty to the State in the manner provided for by or under this Act and, upon the stamp duty becoming due and payable, the amount of the stamp duty –

(b) may be sued for and recovered in any court of competent jurisdiction by the Collector of Stamp duties suing in his official name."

(3) Where an assessment is made under this section, the Collector of Stamp Duties shall cause a notice in writing of the assessment and the duty or penalty payable to be served on the person liable to pay it.

(3A)The failure of the Collector of Stamp Duties to serve a notice of assessment under subsection (3) shall not invalidate an assessment of duty or penalty.

(4A)The amount of duty or penalty specified in a notice of assessment served under Subsection (3) is due and payable on the date specified in the notice, being a date not less than 30 days after the date of service of the notice.

(4B)Where an amount of duty or penalty specified in a notice of assessment under this section is not paid on or before the date specified in the notice and the notice has been served on the person liable under the assessment not less than 30 days prior to the date for payment specified in the notice, the person liable under the assessment shall pay to the Collector of Stamp Duties, in addition to the duty or penalty so specified, a further penalty by way of interest calculated at the rate of 20% per annum of the duty or the penalty from the date for payment specified in the notice until the duty or penalty is paid.

(6A)The production of a notice of assessment, or of a document under the hand of the Collector of Stamp Duties or an Assistant Collector of Stamp Duties purporting to be a copy of a notice of assessment, is conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct. (my emphasis).

(1) Within 30 days after the date of an assessment or an amended assessment under this Act, and on the payment of duty and penalty in conformity with the assessment, a person who is dissatisfied with the assessment may object in writing to the Collector of Stamp Duties stating in detail the grounds for the objection.

(2) The Commissioner General shall consider the objection and serve notice in writing of his decision and the reasons therefore, on the person who lodged the objection. (my emphasis).

Section 21 sets out the appeal process in the event that the objection to the assessment is rejected by the plaintiff. This provision provides that a person who is dissatisfied with the decision on objection may within 60 days from the date of service of notice appeal to the National Court in accordance with the National Court Rules against the assessment, stating the facts of the case and the grounds of appeal. Section 21 (5), (6), (7) and (8) set out the procedure under which such appeal may be heard by the National Court.

Section 20(4B) empowers the plaintiff to impose penalty on the amount assessed if the amount is not paid within the period allowed as was the case here.

Section 20A(1) is fundamental, in that, it imposes on the person who is dissatisfied with the assessment of the duty to object in writing if he so desires to the Collector of Stamp Duties within 30 days after the date of the assessment or an amended assessment and on the payment of the duty assessed and any penalty, in conformity with the assessment. (my emphasis).

The defendant was given more than ample time to either pay the duty and lodge his objection, or to discuss the assessment with the Collector of Stamp duties, but it opted to defend the claim in Court. The defendant did not respond to the correspondences sent to it by the plaintiff. It appears that the defendant only sent one letter to the plaintiff, where it purportedly told the plaintiff that it could not pay the duty.

Section 20A(1) clearly states that, the person against whom an assessment has been made has to first pay the duty assessed before it can object to that assessment in writing. This the defendant did not do, instead it waited until the plaintiff instituted these proceedings, then filed its defence to defend the recovery action by the plaintiff.

In my opinion, the defence, the cross-claim as well other pleadings, including the Notice to Plead Facts filed by the defendant have no basis in law, because there is no provision for such pleadings in the Act. The only recourse for the defendant was to object to the assessment, then appeal if the objection was declined by the plaintiff. But the objection would not be to relieve the defendant from paying the duty, but to provide the basis of appeal if the objection was declined by the plaintiff. Under the Act, there is no defence to the plaintiff's action.

The issue before me, in my opinion, has been well settled in this jurisdiction. See The Chief Collector of Taxes v T.A Field Pty Limited [1975] PNGLR 144. See also The Chief Collector of Taxes v Lucky Star Cordials P/L [1988-89] PNGLR 20 at p.20. The question in The Chief Collector of Taxes v T.A Field Pty Limited (supra) was whether the defendant was obliged to pay the tax assessed on its income by the plaintiff. In that case, the plaintiff applied for summary judgement for the amount of tax assessed against the defendant. The defendant filed a defence to the plaintiff's claim raising various legal points.

In The Chief Collector of Taxes v T.A Field Pty Limited (supra) his Honour Raine J (as he then was) considered s 239 and other provisions of the Income Tax Act, 1959. Section 239 (1) is in these terms:

(1) [Notice of assessment.] The production of a notice of assessment, or of a document under the hand of the Chief Collector or an Assistant Collector purporting to be a copy of a notice of assessment, is conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct.

"The plaintiff claims that because of certain provisions in the Income Tax Act of 1959 there is no defence, and can be no defence, to the action. The Income Tax Act, although differently numbered, is similar to the Australian statute in so far as the provisions relied upon by the Chief Collector apply to this application for summary judgment. The plaintiff relies upon s 239 of the Income Tax Act 1959 which is the equivalent to s 177 in the Australian Act."

Thus, on the face of it, the Chief Collector is placed in a more privileged position than is the ordinary plaintiff. It is not particularly surprising that the legislature has both here and in Australia so provided. In Commissioner of Taxation of the Commonwealth of Australia v Cook (3), Lathan C.J. said:

"It is clear on the language of s 201 that the policy of the Legislature is that all taxes claimed by the Commissioner are liable to be paid by the taxpayer before this appeal is heard by the High Court."

Section 201 in the Australian Act is the equivalent of our s 257. On the face of it, s 239, in combination with the other sections I have quoted, makes it very easy for the Chief Collector to have resort to the summary procedures provided by O. XVIII r. 1. Referring to the Australian equivalent of s 239 in McAndrew v Federal Commissioner of Taxation (4) Dixon CJ, McTiernan and Webb JJ said:

"Then in our opinion the meaning and effect of s. 177 (1) is to give evidentiary effect to such an assessment over the whole ground which by law it is the function of an assessment to cover. Over part of that ground its evidentiary effect is absolutely conclusive, over the rest of the ground it is conclusive except in proceedings on appeal against the assessment. It is given such evidentiary effect by the production of a notice of the assessment or of a copy under the hand of the Commissioner, Second Commissioner or a Deputy Commissioner. The ground over which s. 177 (1) gives conclusiveness to the assessment is described as the due making of the assessment and the correctness of the amount and all the particulars of the assessment. But that appears to me to comprise the whole ground. It is the manifest policy, one may now almost say the historical policy, of the legislation on the one hand to give to the taxpayer full opportunity on objecting to his assessment of contesting his liability in every respect before a Court or before a Board of Review but on the other hand to require that in proceedings for the recovery of the tax the taxpayer will be concluded by the assessment and will not be entitled to go behind it for any purpose."

"... It may later turn out that the assessment was void, but the sub-section is in absolute terms, and, so it seems to me, one must pay up protesting, and live in hope that it will later be established that the Chief Collector was wrong, and have one's wrongly levied tax repaid".

Notwithstanding Mr. Griffin's argument, it seems quite clear to me that the plaintiff must succeed. The Notice of Assessment that is before me clears the factual decks. The Statute is clear enough. Turning back to what I quote earlier from the judgment of Sir Kenneth Street, I see no "serious conflict on questions of fact", or any conflict at all.

At first blush some might be offended at the situation I believe should be arrived at. But if one takes pause, and remembers that Parliament must have money to support its many existing operations and projects, to cite a few, hospitals, schools, defence, rural improvements, and the police, then it is not surprising to find provisions in the Income Tax Act that attempt to ensure that the money believed owing to the Chief Collector is not lost to the country while lengthy and difficult appeals are embarked upon. I can imagine taxpayers being very irritable in cases where they are sure, on good grounds, if you like, that the assessment is wrong, because they still have to hand over the amount they are sure was wrongly assessed, at least temporarily. But there are cases, or could be cases, where, but for the effect of s 257, in combination with other provisions, many assessments would never be paid, people would leave the jurisdiction, money channeled off, companies despoiled, and so on.

There will, on course, be cases where the Chief Collector would, or should, see the need to compromise, on terms that would preserve the amount assessed, if the assessment was later upheld on appeal, and, at the same time, allow a company or individual to continue to operate pending appeal". (my emphasis).

The fact that an appeal or reference is pending does not in the meantime interfere with or affect the assessment the subject of the appeal or reference and income tax may be recovered on the assessment as it no appeal or reference were pending."

The plaintiff has, in my view, sufficiently pleaded the amount of duty assessed in paragraphs 4 and 7 of it's Statement of Claim. In any case, the defendant has acknowledged and conceded the amount assessed in it's cross-claim.

I consider the principles in The Chief Collector of Taxes v T.A Field Pty Ltd (supra) relevant and applicable to this case and I respectfully adopt them. The observations made on the effects of ss. 239 and 257 of the Income Tax are applicable to s 20 (3), (3A), (4A), (4B) and (6A) of the Stamp Duties Act, in that the assessment issued to the defendant for the duty, the subject matter of these proceedings was pursuant to s 20 (6A) of the Stamp Duties Act, the due making of the assessment and that the amount assessed and all the particulars of the assessment were correct and conclusive and the defendant could not and cannot go behind it. The amount was due and payable within 30 days after the date of service of the notice of assessment (s 20 (4A).

The notice of assessment was in itself sufficient and no further facts were required for its proof. See The Chief Collector of Taxes v Lucky Star Cordials P/L Ltd (supra). In that case the defendant applied to have the summons dismissed for the failure by the plaintiff to plead facts. The defendant had filed the Notice to Plead Facts but the plaintiff declined and referred the defendant to the relevant provisions of the Income Tax Act.

"The law is quite clear that a plaintiff must plead all of the facts on which he relies for his claim. In this case the plaintiff has pleaded the notices of assessment duly issue under the Income Tax Act. Section 239 of the Income Tax Act clearly provides that a copy of a notice of assessment is conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct.

I find the plaintiff has pleaded sufficient facts and is not required to plead any further facts. I refer to the words of Raine J in Chief Collector of Taxes v T A Field Pty Ltd [1975] PNGLR 144 at 174; (1975) 6 ATR 38 at 40, when he said, "... the Chief Collector is placed in a more privileged position than is the ordinary plaintiff. It is not particularly surprising that the Legislature has both here and in Australia so provided."

The default judgement obtained by the defendant against the plaintiff on 14 March 2001, in my opinion, also has no basis in law. It is therefore unenforceable. It is void of any legal effect. It was based on the defendant's cross- claim, but the defendant had no legal capacity to make such cross-claim; for the reason that it had no basis in law. On this issue, the counsel for the plaintiff also submitted that s 36 (2) was not brought to the attention of the court, she submitted that had the court been made aware of this provision of the Act, which prohibits agreements from indemnifying another person from paying duty, the default judgement may not have been entered against the plaintiff. I accept that submission, as I have no doubt that had s 36 (2) been brought to the attention of the Court on 14 March 2000, the default judgement may not have been entered against the plaintiff. The Court's powers under Order 8 r 46 are wide and I will therefore set aside the default judgement entered against the plaintiff on 14th March, 2000. In Kappo No. 5 Pty Limited & Jenny Chin Hau, Charles Chan Cho Yan v James Chi King Wong & Kuen Mi Wong –SC-520, the Supreme Court adopted that approach. In that case, the respondents obtained a summary judgement against appellants under Order 12 Rule 38 of the National Court Rules; but the respondents claim was based on fraud; the appellants argued that under Order 12 Rule 37, the summary judgement procedure was not applicable; therefore the summary judgement entered against them, was in error of that Rule. The Supreme Court in upholding that submission at p. 6 of its judgment said:

"This rule (Order 12 Rule 37) clearly states that where there is a claim based on fraud, summary procedure is not applicable. It is clearly intended that such allegations must be dealt with at the substantive trial. We find that the trial judge, made no reference to this Rule in his judgement. If his attention was drawn to the Rule, he may not have entered judgement against the second appellants. We find that the trial judge erred in this regard."

No application has been made by the plaintiff for the default judgement to be set aside. However, I have found that the Court erred in entering that default judgement. Therefore even though the plaintiff has not applied to have the default judgement set aside, I have wider discretionary powers to set it aside under Order 8 r 46 of the National Court Rules.

I also think that the defendant has by its own conduct abandoned the default judgement, in that, although it was current, the defendant did not seek to enforce it. It instead defended the action brought by the plaintiff.

Counsel for the defendant also submitted that the plaintiff being an agent of the State is bound by clause 14 of the lease agreement between it and the State, therefore, it cannot issue these proceedings. I have already found that clause 14 of the lease agreement contravenes s 36(2) of the Act, therefore the clause is illegal and unenforceable to that extent and as such, cannot be relied upon by the defendant. There is one other reason why that argument cannot succeed. The plaintiff is a separate entity from the State, empowered to collect duties, taxes and other revenue for the State. This is very clear from the Income Tax Act, 1954 and the Stamp Duty Act, 1952 provisions, see s 263 of the Income Tax Act and s 8 (2) (a) and (b) of the Stamps Duties Act. The plaintiff is by virtue of its functions the revenue collector for the State. It therefore has the legal capacity under both legislations to institute legal proceedings under its official name. That function cannot be interfered with by the State. It is for this reason that the State cannot institute legal proceedings against tax defaulters. That function is given to the plaintiff by the legislature.

As Raine J (as he then was) observed in The Chief Collector of Taxes v T.A Field Pty Limited (supra), it may be that the plaintiff's assessment of the duty was wrong, but the statutory requirement is such that the defendant, once issued with the notice of assessment, was liable to pay the duty. Its remedy to recover its money if wrongly paid under such assessment lay in the appeal process as provided by s. 21 of the Act.

The defendant is therefore liable to pay K230,408.82 claimed by the plaintiff with interests at 8 % per annum. The interest is calculated from the date of the writ to the date of the judgement, which is today, 18 March 2002.

I allow interest at 8 % per annum which is K 18,432.71 (8 % of K 230,408.82) which at daily interest is K 50.50 (K 18,432.71 – 365 days per year).

The period is from the date of the writ which is 14 April 1999, to the date of the judgement, which is 22 March 2002.

1999	-	14th April to 31st December	-	262 days
2000	-	1st January to 31st December	-	365 days
2001	-	1st January to 31st December	-	365 days
2002	-	1st January to 22nd March	-	81 days

Total number of days from the date of the writ to the date of judgement is 1073
-K50.50 x 1073-days		= K54,186.50 in interest to the plaintiff

Lawyer for the plaintiff: IRC Legal Division.
Lawyer for the defendant: Warner Shand Lawyers.

Papua New Guinea Law Reports

Commissioner General of Internal Revenue Commission v Douglas Properties Ltd [2002] PNGLR 10 (22 March 2002)