Volume 16 First Supplement
Publication Date: Jan 2002
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DIGEST OF CASES REPORTED
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Decision No. |
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PENALTY TAX |
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agreement on income tax undercharged - the taxpayer not in possession of the necessary books and accounts - ss 51(2), 68(4) and 82A of the Inland Revenue Ordinance ('IRO') |
D59/01 |
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submission of incorrect tax returns and failure of filing any tax return for several years of assessment without reasonable excuse - gross dereliction of duty - finality of the assessable profits once agreement was reached between the parties - general starting point for incorrect returns was 100% of the tax undercharged - some weight must be given to the length of delay and the level of award as reflected in past decisions of this Board - penalty imposed ranges from 15% to 97% of the tax undercharged - s 82A of the Inland Revenue Ordinance ('IRO') |
D50/01 |
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submission of incorrect tax returns by corporate taxpayer without reasonable excuse - ignorance or unfamiliarity with accounting matters or the fact that it entrusted professionals to discharge its legal duties on its behalf is no defence - no deliberate intention to evade profits tax or understate the same is not a defence - penalty imposed in the rate of 103% of the tax undercharged - ss 68(4), 82 and 82A of the Inland Revenue Ordinance ('IRO') |
D46/01 |
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taxpayer's return filed late - failure to inform Commissioner within time allowed his chargeability to tax - whether reasonable excuse for late filing existed - likelihood for continuing default without detection - ss 51(1), 51(2), 66(3), 68(4), 82A(1)(d) and 82A(1)(e) of the Inland Revenue Ordinance ('IRO') |
D32/01 |
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understatement - bad case - obstructive - whether 210% of the tax undercharged excessive - compound interest |
D43/01 |
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PERSONAL ASSESSMENT |
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deduction - home loan interest - refinance of mortgage - ss 42, 68(4), 68(8)(a) and 68(9) of the Inland Revenue Ordinance ('IRO') |
D39/01 |
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PROFITS TAX |
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acquisition and sale of property - adventure in the nature of trade - whether capital or investment asset - intention of purchaser at time of acquisition - burden of proof on taxpayer purchaser - whether tax chargeable on the profits of sale |
D21/01 |
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acquisition and sale of property - intention at time of purchase - burden of proof on purchaser to establish that property purchased for long term investment - adventure and concern in nature of trade - 'totality of evidence' approach - badges of trade - s 2(1) of the Inland Revenue Ordinance ('IRO') |
D28/01 |
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acquisition and sale of property - intention at time of purchase - burden of proof on purchaser to establish that property purchased for long term investment - rationale behind tendering a 'witness' - credibility - ss 14(1) and 68(4) of the Inland Revenue Ordinance ('IRO') |
D30/01 |
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deductible expenses - s 61 of the Inland Revenue Ordinance ('IRO') - whether entertainment expenses, office facilities expenses and equipment rental are incurred in the production of chargeable profit - onus of proof |
D33/01 |
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excessive - error or omission in the return - assessable profits not derived from Hong Kong - failure to supply information to the Inland Revenue Department ('IRD') - ss 64(1) and 70A of the Inland Revenue Ordinance ('IRO') |
D25/01 |
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operating charges - whether artificial - s 61 of the Inland Revenue Ordinance ('IRO') |
D56/01 |
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properties - whether for redevelopment |
D54/01 |
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property resold within short time - whether trade |
D26/01 |
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sale of property - s 2(1) of the Inland Revenue Ordinance ('IRO') - whether profits derived from the sale of the property assessable to profits tax - whether intention to purchase as family home 'genuinely held, realistic and realizable' - whether sole purchase in the name of taxpayers indicative of trading intention - onus of proof |
D36/01 |
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trader of or underwriter in the sale of foreign real property - whether sale proceeds taxable in Hong Kong - whether profit arose in or was derived from Hong Kong - ss 2, 14(1), 61 and 68(4) of the Inland Revenue Ordinance ('IRO') - Departmental Interpretation and Practice Note No 21 ('DIPN No 21') |
D38/01 |
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whether the sale of a property was trading in nature - the time span between the purchase and sale - the history of dealings in real property - burden of proof on the taxpayer - ss 2(1), 14 and 68(4) of the Inland Revenue Ordinance ('IRO') |
D45/01 |
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whether the sums payable by way of interest chargeable to tax - onus on the taxpayer to establish the identity of the lender - the twin conditions for deductibility imposed by s 16(2) of the Inland Revenue Ordinance ('IRO') - ss 14(1), 15(1), 16(1) and 16(2) of the IRO |
D58/01 |
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PROPERTY TAX |
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rental not received by the taxpayer but by third party - whether rental subject to property tax - ss 2, 5, 5B(2) and 60 of the Inland Revenue Ordinance ('IRO') |
D55/01 |
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SALARIES TAX |
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additional assessment - gratuity payment - refinance of mortgage - ss 8(1), 9(1) and 68(4) of the Inland Revenue Ordinance ('IRO') - ss 31I, 31IA and 31G of the Employment Ordinance ('EO') |
D51/01 |
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deduction - home loan interest - refinance of mortgage - s 26E of the Inland Revenue Ordinance ('IRO') |
D22/01 |
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employment - place of service - source of income - 60 days limit - whether liable to salaries tax - meaning of 'visit' - meaning of 'days' - s 8(1B) of the Inland Revenue Ordinance ('IRO') |
D37/01 |
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income - encashment of contribution of employer upon dissolution of superannuation scheme - ss 8(2)(cd) and 9(1)(ab)(i) of the Inland Revenue Ordinance |
D60/01 |
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whether an employment income arose in or was derived from Hong Kong - apportionment of the income - s 8(1A)(c) of the Inland Revenue Ordinance ('IRO') |
D34/01 |
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whether 'prevented' from giving the requisite notice of appeal - what are conclusive factors in determining the location of an employment - the 60-day rule - ss 8(1)(a), 8(1A)(b)(ii), 66(1A) and 68(4) of the Inland Revenue Ordinance ('IRO') |
D47/01 |
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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 30.11.2001), please click here.