Lodging of an appeal
- in writing to the clerk to the Board
- with grounds of appeal
- with a copy of the Commissioner's determination
- within one month after the transmission to him the Commissioner's determination
Any person (hereinafter referred to as the appellant) may lodge an appeal by giving notice of appeal in writing to the clerk of the Board (hereinafter referred to as the clerk) if his case comes within one of the following sets of circumstances -
- He has validly objected to an assessment by the Commissioner of Inland Revenue (hereinafter referred to as the Commissioner), but the Commissioner has not agreed with the objection after consideration. He may lodge an appeal within one month after the transmission of the Commissioner's written determination. The notice of appeal must be accompanied by -
- a copy of the Commissioner's written determination; and
- a statement of the grounds of appeal.
- He has been assessed to additional tax under section 82A of the IRO. He may lodge an appeal within one month after the date of issue of the notice of assessment. The notice of appeal must be accompanied by -
- a copy of the notice of assessment;
- a statement of the grounds of appeal;
- a copy of the notice of intention to assess additional tax under section 82A(4), if any such notice was given by the Commissioner; and
- a copy of any written representations made under section 82A(4) by the appellant.
Formation of Hearing Panels by the Board
Composition and functions
A panel with at least three members, one of whom shall always be either the chairman or a deputy chairman (hereinafter referred to as presiding person), is formed to hear and determine a tax appeal. Decision is made on the basis of a majority of votes, and if there is an equality of votes, the presiding person has a casting vote in addition to his original vote.
Notice of hearing
On receipt of a notice of appeal, the clerk shall fix a time for the hearing of the appeal and give 14 days' notice to the appellant and the Commissioner. At any time before the hearing of an appeal, the appellant may withdraw the appeal by notice in writing addressed to the clerk; or the appellant and the Commissioner may reach a settlement on the amount at which the appellant is liable to be assessed. Where a settlement of an appeal is reached, the terms of the settlement shall be reduced in writing and signed by the appellant and the Commissioner. The settlement shall be submitted to the Board for endorsement.
Provision of Documents and Information
- provide documents and information in compliance with the directions given by the presiding person
- if presiding person decides to refuse admit in evidence any document or information, apply for relief against the decision
It is in the interest of both parties to an appeal that the case is heard by a panel hearing of the Board in a timely manner. The presiding person may take into account, among others, the impact of late submissions of documents and information by appellants in delaying the process of panel hearings in the past. The presiding person is empowered to –
(a) give directions on the provision of documents and information for the hearing; and
(b) refuse to admit in evidence any document or information that is not provided in compliance with directions given under (a) above.
If the presiding person decides to exercise the power to refuse to admit in evidence any document or information provided by a party, the presiding person must, as soon as practicable after making the decision, by notice in writing given to the party—
(a) notify the party of the decision; and
(b) give reasons for the decision.
The party may, within 14 days after the date on which the notice is given to the party or within a longer period that the presiding person allows, apply to the presiding person for relief against the decision. The application for relief—
(a) does not suspend the decision;
(b) must be supported by evidence proving the statements made in the application; and
(c) may be determined without a hearing.
The presiding person will consider all circumstances and will, as soon as practicable after determining the application for relief, notify in writing the party of the determination and give reasons for the determination.
In practice, any such directions to be issued by the presiding person would generally relate to the timing and manner of which documents and information are to be provided by the parties to an appeal to the Board. Parties to the hearing will be given reasonable notice for complying with the directions.
- in person / by representative
- prove to the Board that assessment is excessive/incorrect by giving evidence and / or making submissions
An appellant shall attend the meeting of the hearing panel at which the appeal is heard in person or by an authorised representative. Notwithstanding the above, the hearing panel may, if satisfied that an appellant will be or is outside Hong Kong on the date fixed for the hearing of the appeal and is unlikely to be in Hong Kong within such period thereafter as the panel considers reasonable, on the appellant's written application received by the clerk at least 7 days before the hearing date, proceed to hear the appeal in the absence of the appellant or his authorised representative. In such a case, the panel may consider the written submissions as the appellant may submit to the Board.
Please click here (PDF file) for hearing arrangements during increment weather.
All appeals shall be heard in camera. The onus of proving that the assessment appealed against is excessive or incorrect shall be on the appellant. He should therefore ensure that he has available at the hearing all witnesses he intends to call and all documents he intends to rely on in support of his appeal. Unless otherwise directed, the appellant should lodge all documents or information with the Board with a copy for the Commissioner before the scheduled hearing date, in compliance with the directions given by the presiding person.
An appellant may have to decide at the hearing on either only making an unsworn submission or alternatively giving evidence on oath in support of his appeal and make submission. The appellant will not be cross examined if the former option is adopted but will be cross examined by representative of the Commissioner should the latter option be chosen. If he gives no evidence, the Board may deal with the case by considering agreed facts (if any) and those documents, whose authenticity is not in dispute, as admissible documentary evidence. In deciding which of the two courses to adopt, the appellant should bear in mind that the onus of proving that the assessment appealed against is excessive or incorrect rests on him. The Board in general will not attach evidential weight on mere submission and will attach greater weight to evidence tested by the process of cross-examination. An appellant may also call other persons as witnesses in support of his appeal at the hearing and the usual practice is that the witness will give evidence on oath and be subject to cross-examination.
Privileges and Immunities
To ensure that the Board may perform its statutory duty of determining tax appeals impartially without fear or favour, the IRO provides that –
(a) the Chairman, a deputy chairman or any other member of the Board has, in performing such persons' duties as such, the same privileges and immunities as a judge of the Court of First Instance in civil proceedings in the High Court; and
(b) a party to a hearing before the Board, or any witness, counsel, solicitor or person representing a party appearing before the Board has the same privileges and immunities as that person would have in civil proceedings in the Court of First Instance of the High Court.
Delivery of Board of Review Decisions
After hearing an appeal, the Board shall deliver the decision of the Board which is normally in written form. The Board shall confirm, reduce, increase or annul the assessment appealed against or may remit the case to the Commissioner for re-assessment. Where the Board does not reduce or annul such assessment, the Board may order the appellant to pay as costs of the Board a sum not exceeding $25,000 which shall be added to the tax charged. Such order is in the discretion of the Board. It is a material consideration in the exercise of such a discretion by the Board to ask if the appeal has been conducted frivolously, vexatiously or an abuse of process.
Appeal to the Decision of the Board
An appellant or the Commissioner may make an application to the Court of First Instance of the High Court direct for leave to appeal against the Board’s decision on a ground involving only a question of law. Such application for leave must be:
(a) made by a summons supported by a statement setting out the grounds of the appeal, identifying and stating precisely the question of law involved in each ground;
(b) annexed to it a copy of the decision of the Board against which leave to appeal is sought;
(c) as concise as is practicable, and avoid repeating matters already set out in the decision of the Board;
(d) signed by counsel and solicitors if it has been prepared by them, or by the applicant himself if he has not engaged legal representative; and
(e) lodged with a Registrar of the High Court and served on the other party (i.e. the appellant or the Commissioner as the case may be) within 1 month after the date on which the Board’s decision is made or (if the Board’s decision is notified to the appellant or the Commissioner by notice in writing) the date of communication by which the Board’s decision is notified.
Please refer to the Practice Direction 34 issued by the Judiciary (http://legalref.judiciary.gov.hk/doc/npd/eng/PD34.htm) for detailed arrangement about the application for leave to appeal. For enquiries, please contact the Clerk to the High Court Office (Civil Matters) (Telephone: 2825 4672).
Case stated applications received by the Board before 1 April 2016 will be handled in accordance with the former arrangement. An application that has been made in writing and delivered to the Board before 1 April 2016 will continue to be processed in a manner as if the relevant parts of IRO concerning the abolition of case-stated procedure had not been enacted.
Submission of Electronic Information
Please see the format, manner and procedure (PDF file) for the submission of electronic information under law by virtue of the Electronic Transactions Ordinance (Cap. 553).
(Note: The above information is for general reference by members of the public. The conduct of hearing and disposal of appeals by the Board are governed by sections 65 to 69A and 82B of the IRO.)