Establishment Interfibre (KMI) v C.I.T.
Jurisdiction - Revenue Court — Whether court has jurisdiction to assess non-resident of Jamaica
This matter first came before me on 21st April, 1977 by way of a summons in Chambers, for an Order for the respondent to file certain documents, when I decided to treat that Summons as a Summons for Directions and ruled, inter alia, that paragraph (4) sub-paragraphs (1) and (2) of the respondent's Statement of Case headed “Reasons” were in fact in the nature of a plea to the jurisdiction of this Court and should therefore be dealt with as a Preliminary Objection. As a result of that, I ordered that that point and that point only, should be set down for trial in the week set for the hearing of the substantive issues of the Appeal.
So said so done, and I have had the opportunity of hearing the fullest arguments of counsel on the point.
For the record, sub-paragraphs (1) and (2) of paragraph 4 of the respondent's Statement of Case read as follows:
“4. AND FURTHER TAKE NOTICE that the respondent will contend at the hearing of this Appeal that the aforesaid Decision has been validly made and should be confirmed by this Honourable Court for the following, inter alia, reasons–
(i) the SIA and not KMI is the proper appellant, for the reason that the Notice of Assessment was raised and served on the and it is made assessable, chargeable and liable for the payment of the tax by virtue of the provisions of Sections 54, 55, 56 and 57 of the Income Tax Act;
(ii) further, the SIA did not lodge a valid objection against the assessment raised on it by the respondent. The assessment is therefore final and conclusive as regards the amount of such chargeable income in accordance with Section 75(7) of the Income Tax Act.
The Court is therefore not competent to hear this I appeal.
Counsel for the respondent in dealing with the matter, sought an amendment to certain important aspects of sub-paragraphs (1) and (2). They were as follows:
(a) As regards sub-paragraph (1), Counsel stated that he was no longer contending that the assessment had been raised under SS 54-57. He stated that this was an incorrect statement of the matter and that the assessment was in fact raided under S.40. To be more accurate, he said s. 40(1). The amendment was approved and the matter thereafter proceeded on that basis.
(b) As regards sub-paragraph (2), it is less clear, but I understood counsel for the respondent to say that he was no longer contending that the SIA had not made a valid objection to the Assessment.
The effect of the foregoing was, that the respondent's case proceeded on the following basis:
(1) The assessment was raised on the SIA under S. 40 of the Act and not on the present appellants, KMI. The result therefore is KMI is not a person who has been assesses. in accordance with the Act. KMI is not a person who has filed a valid objection to any such assessment, and KMI is not therefore, a person in respect of whom the respondent has made a Decision upon an Objection to an assessment raised upon him, and in such circumstances can have no locus standi before this Court. This is so, Counsel contended, because upon a review of the statutory language, it is clear that the right of appeal to this court is only achieved in the following circumstances:
(i) There must be an assessment upon the appellant;
(ii) There must be a valid objection to that assessment by the appellant, and
(iii) There must be a decision by the R7
Respondent upon that Objection:
It is then, and only then, counsel submitted, that a taxpayer achieves a right of appeal to this Court. Since therefore the present appellants KMI are not in that position, they are not properly before the Court.
For the appellants it was argued that the assessment had in fact been made on them and not on the SIA; they were the persons who had, objected to that assessment, they were also the persons who had been dealt with by the respondent as the Objector, and in this second regard they referred to certain correspondence passing between themselves and the Respondent. Finally, they contended that on that sequence of events they were the persons whose objection had been the subject of a Decision by the Commissioner, and that they were therefore properly before this Court as appellants.
That then, stated in fairly brief terms, represents the relative contentions except what in effect became a subsidiary point raised by the appellants to the effect that even if they were wrong, in the sense that the assessment had not in fact been raised on them, the respondent was by his conduct, in particular by treating with them as Objectors, denied from now contending that they were not the appellants — in effect that he was estopped. These were the relevant contentions of the parties, and although the arguments in he case have ranged over an extremely wide area, it seems to me that the real issue in this case is of a very narrow compass, That issue is — was the present appellant the person assessed; has there been a decision of the respondent on that assessment?
In that regard I turn to some of the correspondence that has been put in this case. I refer in particular to a letter addressed to the appellants dated 5th January, 1976 and signed by Lloyd E. Perkins (who, the Court was informed, is the legal advisor to the SIA) and attached to that letter is a copy of the original assessment made by the respondent. I propose to mark that letter and. the, assessment attached thereto as Exhibits 1 and 2. That correspondence discloses that the Notice of Assessment dated 22nd December, 1975 was addressed to (and here I quote)
29 Barbican Road,
That Notice of Assessment also bears a notation thereon which reads as follows:
“Assessment under S. 22 (1) of Law 59 of 1954”
I pause there to point out that S. 22 (1) is the progenitor of the present S. 40 (1), so nothing turns on this. There is also a notation on that Notice of Assessment to the following effect:
“Take Notice that the CIT has assessed your liability in respect of a payment to N/R” Counsel informed the Court that “N/R” meant “non-resident”. There is also...
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