Milton Brown t/a Karnack Hardware v The Commissioner General (formerly The Commissioner of Taxpayer Appeals)

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 23 June 2015
• Court: Revenue Court (Jamaica)
• Docket Number: REVENUE COURT APPEAL NO. 2 OF 2015
• Date: 23 June 2015

[2015] JMRC 3

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE REVENUE COURT

Cor:

Rattray, J.

REVENUE COURT APPEAL NO. 2 OF 2015

REVENUE COURT APPEAL NO. 3 OF 2015

Between:

Milton Brown t/a Karnack Hardware

Appellant

and

The Commissioner General (formerly The Commissioner of Taxpayer Appeals)

Respondent

Karen O Russell for the Appellants

Cecelia Chapman-Daley & Suesette Rogers for the Respondent

Revenue Appeal — Time within which to bring appeal expired — Whether extension of time to file appeal should be granted — Principles to be considered for such a grant

ORAL JUDGMENT

1 There are two matters before the Court filed in Revenue Court Appeals No. 2 and 3 of 2015, by the Appellant Milton Brown. In both matters, the Appellant is seeking an extension of time within which to appeal decisions of the Commissioner General made in November, 2009, as regards additional income tax and additional general consumption tax for the year 2007. Although a separate application was filed in each action, the issues and the time frames in both matters are almost identical. The parties also are the same, although the areas for which tax liability were imposed differed. I therefore found it advisable that Counsel address both applications at one time and this approach was adopted.

2 The main issue prompting these applications is the Notice of Decision of the Taxpayer Appeals Department in both matters decided on the 30 ^th December 2011, which confirmed the assessments made against the taxpayer Milton Brown. The last paragraph of both those decisions advised the Appellant of his right to appeal to the Revenue Court within thirty (30) days of the receipt of the Notices.

3 The Appellant contended that on the 19th January, 2012 Notice of Decision was delivered to his accountant, who referred him to attorney-at-law and chartered accountant, Ethlin Norton Coke. That individual requested the tax authorities by letter dated 20 ^th February, 2012, to review the decision and also pointed out that the Appellant did not receive a complete copy of those decisions. This was remedied by the said authorities under cover of their letter of the 21 ^st February, 2012 addressed to the Appellant, which enclosed copies of the decisions.

4 Shortly thereafter, by letter of the 2 ^nd March, 2012, the Taxpayer Appeals Department forwarded copies of the decisions to Mrs. Norton Coke and also indicated that the Appellant had thirty (30) days from receiving the Notices of Decision to appeal same in the Revenue Court. They went on thereafter to advise that, “That is his next option”. They also pointed out that the Commissioner of Taxpayer Appeals had no jurisdiction to review an appeal decision once issued to the parties and indicated that if her client was still dissatisfied, he must now appeal to the Revenue Court.

5 The Appellant in his affidavit stated that, as there was no meaningful settlement, nor any decision as to the way forward agreed on, the Appellant's accountant wrote to the Minister of Finance by letter dated 31 ^st July, 2013 seeking their assistance. In the meantime, the Appellant was served with summonses to appear before the Resident Magistrate's Court for the parish of St Ann, as regards the collection of taxes with respect to these matters.

6 Having received no response to the correspondence, a further letter dated 16 ^th September, 2013 was written by that accountant to the Honourable Horace Dalley at the Ministry of Finance and Planning, requesting assistance and seeking his intervention with respect to the Appellant's tax issues. By letter dated 19th August, 2014, the Minister of Finance responded to the Appellant's accountant. He advised that the Appellant utilise the provisions of the General Consumption Tax Act and Income Tax Act, appeal to the Revenue Court, and seek the Court's discretion to hear the application, even though the time for appealing may have expired.

7 Counsel for the Appellant argued that her client always intended to defend and to appeal the decisions and that he obtained the services of a new attorney-at-law to whom he gave instructions. The Court records indicate that the Notice of Application to Extend Time to file Appeal was lodged on the 21 ^st January, 2015. The affidavit evidence revealed that by the very latest, the...