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Volume 18 Third Supplement

Publication Date: Aug 2004

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DIGEST OF CASES REPORTED

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  Decision No. Download
PENALTY TAX    

appellant appointed an attorney to handle her property before she emigrated — rentals received from the property — property tax was payable — but appellant had no actual knowledge of the returns sent — returns not submitted within the stipulated time limit — late returns submitted after a lapse of a few years — agreement on the assessable value of property reached — but the Revenue still levied additional tax for breaching s 51(1) and 51(2) without reasonable excuse —appellant claimed to be victim of the default of the attorney — non-receipt of tax return amounts to reasonable excuse under s 82A — plea of ignorance — personal duty to report — could not take refuge behind the alleged defaults on the part of the attorney — factors in favour of the appellant — factors against the appellant — quantum — additional tax should have been assessed in the light of similar decisions — ss 51(1), 51(2) and 82A of the Inland Revenue Ordinance ("IRO")  

D101/03 Download D101/03 (DOC) - English Download D101/03 (PDF) - English

fails to furnish a return in time — whether additional tax is excessive — ss 51(1), 59(3), 64(3) and 82A of the Inland Revenue Ordinance ("IRO"). [Decision in Chinese]  

D94/03 Download D94/03 (DOC) - Traditional Chinese Download D94/03 (PDF) - Traditional Chinese

late in submitting profits tax return — whether the lack of ability of appellant to pay penalty tax is a factor which should be taken into consideration — factors that affect the level of penalty - whether the assessments are excessive  

D88/03 Download D88/03 (DOC) - English Download D88/03 (PDF) - English

salary income omitted from return — whether additional tax is excessive — Penalty Loading Statement — ss 51, 68(4), 80(2), 82A & 82B(2) of the Inland Revenue Ordinance ("IRO") — Notice of Appeal — whether out of time — s 71(1) of the Interpretation and General Clauses Ordinance  

D96/03 Download D96/03 (DOC) - English Download D96/03 (PDF) - English

submission of incorrect tax return without reasonable excuse — attempt to claim dependent parent allowance and additional parent allowance — contradicted by facts — the claim was disallowed — imposition of additional tax assessments — claimed no intention to evade tax — merely forgot the passing away of his mother and habitually applied for dependent parent allowance — no reasonable excuse — the Revenue suffers no loss — no reasonable excuse but mitigating factor — but the mistake is just mere negligence — unlike those openly flout the rules and submit incorrect tax returns — the standard practice of imposing penalty equivalent to 100% of the tax underpaid as a starting point should not be applied — s 82A of the Inland Revenue Ordinance ("IRO"). [Decision in Chinese]  

D95/03 Download D95/03 (DOC) - Traditional Chinese Download D95/03 (PDF) - Traditional Chinese
PROFITS TAX    

assets betterment statement — ss 51C, 60 and 68(4) of the Inland Revenue Ordinance ("IRO")  

D93/03 Download D93/03 (DOC) - English Download D93/03 (PDF) - English

sale of a property — whether trading asset or capital asset — trading profit is chargeable to profits tax — ascertain the intention of the appellant at the time of the acquisition — intention to hold property as a capital investment must be definite — stated intention not decisive — actual intention must be determined objectively — onus of proof rests on appellant — analysis on the basis of the "badges of trade" as described in Marson v Morton — s 68(4) of the Inland Revenue Ordinance ("IRO")  

D100/03 Download D100/03 (DOC) - English Download D100/03 (PDF) - English
SALARIES TAX    

deductible expenses — maintenance deducted from salaries under court order — single parent allowance — predominant care — contribution to the maintenance and education — ss 12 and 32 of the Inland Revenue Ordinance ("IRO"). [Decision in Chinese]  

D82/03 Download D82/03 (DOC) - Traditional Chinese Download D82/03 (PDF) - Traditional Chinese

gain realised from exercise of share option — time for computation — whether matters personal to appellant relevant — s 9 of the Inland Revenue Ordinance ("IRO")  

D84/03 Download D84/03 (DOC) - English Download D84/03 (PDF) - English

income — whether rent refunds or cash allowances — whether artificial transactions — ss 9(1A) and 61 of the Inland Revenue Ordinance ("IRO")  

D78/03 Download D78/03 (DOC) - English Download D78/03 (PDF) - English

late appeal — whether being prevented from filing a timely notice of appeal — s 66(1A) of the Inland Revenue Ordinance ("IRO")  

D86/03 Download D86/03 (DOC) - English Download D86/03 (PDF) - English

s 12(1) of the Inland Revenue Ordinance ("IRO") - whether or not professional indemnity insurance is incurred in the production of assessable income - whether or not the professional indemnity insurance is a deductible expense of a qualified solicitor  

D91/03 Download D91/03 (DOC) - English Download D91/03 (PDF) - English

s 26E of the Inland Revenue Ordinance ("IRO") — home loan interest allowance - whether interest attributable to that part of the loan used to pay premium deductible - to what extent is the appellant entitled to deduct interest paid to bank that is attributable to another bank loan  

D87/03 Download D87/03 (DOC) - English Download D87/03 (PDF) - English

s 8(1)(a), 8(1A)(b)(ii), 8(1A)(c) and 8(1B) of the Inland Revenue Ordinance ("IRO") — whether income arises in or is derived from Hong Kong — whether the taxpayer is entitled to the exemption under s 8(1A)(b)(ii), 8(1A)(c) and 8(1B) of the IRO. [Decision in Chinese]  

D90/03 Download D90/03 (DOC) - Traditional Chinese Download D90/03 (PDF) - Traditional Chinese

termination of employment — whether payment in lieu of notice  

D80/03 Download D80/03 (DOC) - English Download D80/03 (PDF) - English

whether expenditure incurred for professional indemnity insurance is deductible for salaries tax purposes — claim for a deduction for expense incurred for annual professional subscription allowed as concession — Departmental Interpretation and Practice Note No 9, paragraph 17 (revised September 2002) — the Board cannot alter the basis on which deduction was allowed — comments on the inherent unfairness in the contrasting rules governing salaries tax and profits tax deductions — ss 12(1)(a) and 16(1) of the Inland Revenue Ordinance ("IRO")  

D102/03 Download D102/03 (DOC) - English Download D102/03 (PDF) - English

whether shares of employer company issued and allotted to its director to settle salary due chargeable to salaries tax — s 9 of the Inland Revenue Ordinance ("IRO")  

D98/03 Download D98/03 (DOC) - English Download D98/03 (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 31.5.2004), please click here.

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