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Volume 17 Second Supplement

Publication Date: Apr 2003

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DIGEST OF CASES REPORTED

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  Decision No. Download
PENALTY TAX    

assets betterment statement - amount of profit short returned agreed by the taxpayer - ss 82A and 82B of the Inland Revenue Ordinance ('IRO'). [Decision in Chinese]  

D52/02 Download D52/02 (DOC) - Traditional Chinese Download D52/02 (PDF) - Traditional Chinese

incorrect tax return  

D34/02 Download D34/02 (DOC) - English Download D34/02 (PDF) - English

submission of incorrect tax returns without reasonable excuse - substantial understatement both in actual amounts and in percentage terms - imposition of additional assessments at the average rate of 79.46% - a taxpayer could not rely on a practice note of the Revenue, when in fact he did not know about it at the time of furnishing his tax returns, as reason for understatement - applicability and coverage of the Departmental Interpretation and Practice Notes No 12 ('DIPN No 12') - wholly misconceived reliance by the appellant on DIPN No 12 - appeal was unmeritorious and an abuse of the process - penalized in costs - ss 9(1)(a), 68(4), 68(9), 82A and 82B(3) of the Inland Revenue Ordinance ('IRO')  

D53/02 Download D53/02 (DOC) - English Download D53/02 (PDF) - English
PROFITS TAX    

appeal out of time - whether reasonable cause  

D39/02 Download D39/02 (DOC) - English Download D39/02 (PDF) - English

deductions - deduct from gains arising from sale of property - appeal - withdraw appeal - s 68(1A) of the Inland Revenue Ordinance ('IRO')  

D44/02 Download D44/02 (DOC) - English Download D44/02 (PDF) - English

deductions - whether jockey entitled to deduct expenses for sauna, gymnasium and physical training - ss 16(1) and 17(1) of the Inland Revenue Ordinance ('IRO') - s 51(1) of the Income Tax Assessment Act 1936 (Australia) - Australian Taxation Rulings TR 95/20 - Australian Taxation Determination TD 93/114  

D46/02 Download D46/02 (DOC) - English Download D46/02 (PDF) - English

disposal of real property - the true intent of the taxpayers when the property was bought - s 68(4) of the Inland Revenue Ordinance ('IRO')  

D45/02 Download D45/02 (DOC) - English Download D45/02 (PDF) - English

property - whether trading asset  

D30/02 Download D30/02 (DOC) - English Download D30/02 (PDF) - English

property transaction - nominee. [Decision in Chinese]  

D47/02 Download D47/02 (DOC) - Traditional Chinese Download D47/02 (PDF) - Traditional Chinese

real property - whether the gain arising from the disposition of a property was liable for profits tax - ss 2, 14(1) and 68(4) of the Inland Revenue Ordinance ('IRO')  

D49/02 Download D49/02 (DOC) - English Download D49/02 (PDF) - English

real property - whether the gain arising from the disposition of property was liable for profits tax - ss 2, 14(1) and 68(4) of the Inland Revenue Ordinance ('IRO') - costs - frivolous and vexatious and abuse of the process - s 68(9) of the IRO  

D51/02 Download D51/02 (DOC) - English Download D51/02 (PDF) - English

sale and purchase of a property - whether profits tax should be assessed - depends on whether the sale of a property was trading in nature - it was crucial to ascertain the intention of the taxpayer at the time of acquisition of the property - mere declaration of intention was of limited value - objective facts and circumstances had to be considered - evidence was needed to substantiate the contention of the taxpayer - the circumstances and facts of the case cast doubt on the veracity of the taxpayer - burden of proof on the taxpayer - ss 14(1) and 68(4) of the Inland Revenue Ordinance ('IRO'). [Decision in Chinese]  

D48/02 Download D48/02 (DOC) - Traditional Chinese Download D48/02 (PDF) - Traditional Chinese

sale of property - intention at the time of purchase - whether the property was capital asset or trading asset - s 68(4) of the Inland Revenue Ordinance ('IRO') - onus of proof on the appellants  

D36/02 Download D36/02 (DOC) - English Download D36/02 (PDF) - English

sale of property - onus of proof on the taxpayer - s 68(4) of the Inland Revenue Ordinance ('IRO') - intention at the time of purchase  

D33/02 Download D33/02 (DOC) - English Download D33/02 (PDF) - English

sale of property - rules of evidence - s 68 of the Inland Revenue Ordinance ('IRO') - whether a property is a capital asset or a trading asset - intention at the time of acquisition - onus of proof on the appellant  

D32/02 Download D32/02 (DOC) - English Download D32/02 (PDF) - English

sale of property - s 68(4) of the Inland Revenue Ordinance ('IRO') - intention at the time of purchase - whether the properties were capital assets or trading assets - onus of proof on the appellant  

D41/02 Download D41/02 (DOC) - English Download D41/02 (PDF) - English

whether certain sums are deductible as outgoings and expenses under s 16(1) - mere compliance with s 16(1) is not sufficient, it must also not be excluded under s 17(1) - ss 14, 16, 17 and 68(4) of the Inland Revenue Ordinance ('IRO')  

D58/02 Download D58/02 (DOC) - English Download D58/02 (PDF) - English

whether request to provide particulars as to the nature of expense reasonable  

D50/02 Download D50/02 (DOC) - English Download D50/02 (PDF) - English

whether the sale of a property was trading in nature - it was crucial to ascertain the intention of the taxpayer at the time of acquisition of the property - the stated intention of the taxpayer was not decisive - actual intention had to be determined objectively - burden of proof on the appellant - incumbent on the appellants to substantiate their contention - s 68(4) of the Inland Revenue Ordinance ('IRO')  

D42/02 Download D42/02 (DOC) - English Download D42/02 (PDF) - English
PROPERTY TAX    

personal assessment - whether or not the appellant was permanent resident or temporary resident - ss 41 and 60 of the Inland Revenue Ordinance ('IRO'). [Decision in Chinese]  

D37/02 Download D37/02 (DOC) - Traditional Chinese Download D37/02 (PDF) - Traditional Chinese
SALARIES TAX    

s 9(1A)(a) of the Inland Revenue Ordinance ('IRO') - whether or not the sums in question were 'refunds' - whether or not the housing allowance is chargeable for tax  

D40/02 Download D40/02 (DOC) - English Download D40/02 (PDF) - English

secondment to mainland - whether all services rendered outside Hong Kong  

D35/02 Download D35/02 (DOC) - English Download D35/02 (PDF) - English

whether allowance to be granted under s 30 (dependent parent) and s 30A (dependent grandparent) - 'ordinarily resident in Hong Kong' is a precondition for any allowance to be granted under ss 30 and 30A - definition of 'ordinarily resident in Hong Kong' - the Board is obliged to give effect to the words stated in the legislature - the Board is also obliged to apply a binding decision of a superior court in Hong Kong - ss 30, 30A and 41 of the Inland Revenue Ordinance  

D57/02 Download D57/02 (DOC) - English Download D57/02 (PDF) - English

whether an appellant had rendered all the services in connection with his employment outside Hong Kong and thereby his income was thus excluded by s 8(1A) - various factors to be considered - dictated by the facts of the case - frequency and duration and arrival and departure times of the appellant's stays in Hong Kong - amounts of salary earned - job nature - the frequency and amounts of cash taken by the appellant on arrival and departure - onus of proof that any of the assessments appealed against is excessive or incorrect on the appellant - ss 8(1A), 8(1B) and 68(4) of the Inland Revenue Ordinance ('IRO')  

D54/02 Download D54/02 (DOC) - English Download D54/02 (PDF) - English

whether being employed personally or under service company  

D43/02 Download D43/02 (DOC) - English Download D43/02 (PDF) - English

 

Note: The latest position of unsettled appeals is shown in either (a) Table of Appeals to Court of First Instance or (b) Table of Appeals to Court of Appeal/Court of Final Appeal. When the final outcome of an appeal is known, the position is set out in either table and will disappear in the next issue of Board of Review Decisions.

To view "Table of Appeals to Court of First Instance/Court of Appeal/Court of Final Appeal" (position as at 28.2.2003), please click here.

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