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| Sunday, 17 October 2004 |
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Is the appellant a compellable witness at an appeal? Observations by Cecil Aluthwela
Continued from last week When a husband makes a claim under anyone of the above circumstances, the assessor will naturally carry out a full scale inquiry, as separate assessments will result in a loss to revenue. The uncorroborated testimony of the husband will not invariably be accepted. The assessor may call for the Court Order or the Deed of Separation. Worst of all, he may pry deeply into the circumstances under which they are living in separation. The assessor may even summon the wife to testify to the veracity of the statements made by the husband. Questions will be directed at the most personal affairs of the parties. Information will be elicited which will be extremely unpalatable to both the husband and the wife. In the circumstances, it is unnecessary to labour the point that all this will not money be highly inquisitorial but seriously embarrassing. On its own the Commissioner-General or the Board of Review can carry out further investigation. They can summon anyone whom they consider necessary for the purpose of the appeal. Failure to attend when summoned is attended with penal sanctions. Having attended, refusal to answer questions lawfully put to him, without sufficient cause too is visited with penal sanctions. The Board of Review can decide what evidence it will accept and on what terms. It can admit evidence in total disregard of the provisions of the Evidence Ordinance. To cap it all, the appellate authorities can enhance the assessment and thereby not merely deny the relief the appellant prayed for but make his case worse than what it would have been had he not appealed. Once the appellant has stated his case, the appellate authorities can subject to the appellant to the most searching and gruelling inquiry. For instance when it comes to deciding on the appellants living expenses, the appellants most personal and private affairs can be inquired into. When it comes to deciding how much the appellant would have spent on his living, a question like how much he spent in maintaining his mistress in an apartment in Paris will be highly legitimate and relevant question. Quite contrary to the views of Mr. Fernando, that the proceeding before the Revenue Authorities can be inquisitorial is evidenced by two cases. In Treharne v Guiness Exports Ltd., the appellant contended that certain passages in the Case Stated if made public would be damaging. Some of these passages were in no way necessary for the purpose of the case. If deleted, they would not in any way affect the Commissioner's determination. Hence the appellant submitted to court that the case be sent back to the Commissioner to delete the passages in question. Court did not accede to this request. In another case the appellant wanted his name omitted from the Case Stated. The issue in appeal was the definition of living together for the purpose of higher personal allowances. The taxpayer contended that the facts if made public would be embarrassing and economically damaging. Yet the court refused to make an order to leave out his name. In these two cases, how deeply inquisitorial the proceedings before the Revenue Authorities is best left to anyone's imagination. The important point to remember is that the Revenue Authorities are not deciding litigation between two contending parties. Their sole function is to decide what the correct assessment is. To that end, they have unfettered discretion to carry out whatever inquiries they wish - however inquisitorial they may be. This is one of the reasons why their proceedings, unlike that of a court of law, are in camera. It is also why the Revenue Authorities are bound by the Oath of Secrecy. Hence Mr. Fernando's contention that "there is no law which compels him (appellant) to subject himself to an inquisitorial examination either by the commissioner-general, the assessor or the board of review" is based on a misconception of the proceedings in a tax appeal. A large part of Mr. Fernando's problem under this caption springs from an attempt to import into tax appellate procedure concepts from other areas of law, like criminal law. Hence the advertence to terms like "compellable witness", privilege against self-incrimination", which concepts have no relevance in tax appellate procedure. In a criminal trial the accused could stand in the dock and say nothing (Unless he pleads one of the exceptions from criminal liability). He cannot be compelled to say anything. It is the prosecution that files the case and the onus is right through on the prosecution to prove it. Notwithstanding the right of an accused to remain silent in a criminal trial this is what Lord Ellenborough said in R v Lord Cochrane and others. "No person accused of a crime is bound to offer any explanation of his conduct, or of the circumstances of suspicion which attach to him, but nevertheless, if he refuses to do so, when a strong prima facie case has been made out and when it is in his own power to offer evidence, if such exist, in explanation of such suspicious circumstances which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or not adduced would operate adversely to his interest". How much stronger would be the adverse inference drawn by an appellate tax authority against an appellant, who having set in motion the appeal proceeding refuses to subject himself to examination by such authority. In a tax appeal initially, it is the taxpayer who is the appellant. It is he who sets in motion the appeal proceeding. Hence, he should be vitally interested in its prosecution. If he does not attend the appeal hearing, produce evidence, make submissions, submit himself to examination and re-examination, however gruelling, so much the worse for him. |
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