|
|
 |
 |
| Sunday, 15 August 2004 |
 |
|
 |
Business |  |
| News Business Features Editorial
|
Can an appellant withdraw an appeal Continued from last week Observations by Cecil Aluthwela, former Deputy Commissioner (Appeals) Department of Inland Revenue on the article in the Journal of the Institute of Taxation Vol 1 No 1 - July 1993. Mr. Fernando goes on to state, "It is submitted that if a taxpayer does not wish to pursue his appeal he should refrain from attending the hearing fixed by the commissioner-general". I must hasten to say, that nothing could be more fatal to an appellant's case than not attending the appeal hearing. As said above, by not attending the appeal hearing an appellant cannot stop the Commissioner-General from determining. Furthermore, by not attending he will be giving the Commissioner-General a free hand to act on whatever material there is before him; indirect evidence, hearsay evidence, informants letters, circumstantial evidence, uncorroborated statements by the assessor so on and so forth. Had he appeared in person or through an authorized representative he may be have been able to rebut much of this evidence. The important point to remember is that an income tax appeal is not like a civil suit in a court of law. If the plaintiff does not appear in court his plaint will be struck off the roll. In an income tax appeal it is otherwise. With or without the appellant the appeal machinery, once set in motion, will continue to work till the appeal is finally agreed to or determined. Once the Commissioner-General determines the appeal, the appellant will have to pay the tax due on the determination. The Commissioner-General may not withhold recovery particularly in view of the appellant's conduct. If he appeals to the Board of Review, the appeal may not be listed for hearing for several months. Meanwhile if the tax is not held over, the appellant will have to go on paying the tax. The appeal at the Board of Review may take several months or even years. By the time the Board determines the appeal the appellant would have paid the full tax or a considerable part of it. If consequent to the Commissioner-General's determination no tax has been paid, penalties would be added and the recovery provisions set in motion. If the appellant appeals to the Board of Review, not having attended the appeal hearing before the Commissioner-General he will be at a tremendous disadvantage. He will have on his hand an almost insurmountable task. For what goes to the Board of Review following the Commissioner-General's determination is - (a) The determination of Commissioner-General (b) The record of evidence In a case where the appellant had not attended the appeal hearing before the Commissioner-General, there will be no record of evidence for the appellant, for he had not appeared and led evidence before the Commissioner-General. The appellant cannot as a matter of right lead any evidence before the Board of Review. He can do so only with the permission of the Board of Review and on such terms as the Board may stipulate, vide Section 121 (8) of the Inland Revenue Act. The Board of Review may refuse permission to lead any evidence in view of the fact that the appellant had refrained from appearing before the Commissioner-General. There are several instances where the Board of Review had refused permission to allow fresh evidence even in instances where the appellant had appeared before the Commissioner-General. A notable instance is Guillian v C.I.T. Thus serious consequences would ensure to an appellant, if he takes Mr. Fernando's advice seriously, and refrains from attending an appeal hearing before the Commissioner-General. There is also another very good reason as to why an appellant should attend an appeal hearing before the Commissioner-General, however weak or slender his case may be. It is not unknown for appellate authorities to have committed fundamental errors of law, which errors could vitiate their determinations. In the course of hearing an appeal, appellate authorities may step outside jurisdiction, act in excess of jurisdiction, deny jurisdiction and thereby forfeit jurisdiction. Might act on no evidence or on inadmissible evidence or refuse to consider evidence validly put before them. In these, and so many other ways, they may vitiate their determinations. From then on, the appeal takes a dramatic turn. The appeal to the higher appellate authorities is not merely on the original grounds but on the more forceful grounds that the appellate authority has vitiated its determination by violating the norms of public law. The case cited by Mr. Fernando of an Adjudicator summoning an appellant and requesting the assessor to examine him is a case in point. In that case, the Adjudicator had abandoned jurisdiction. Furthermore, an Adjudicators authority to hear an appeal is a delegated authority an authority flowing from the Commissioner-General. The Adjudicator cannot re-delegate such authority to an assessor, on the basis of the well known legal maxim - delegatus non protest delegare - delegated authority cannot be re-delegated. This was a fundamental error of law and is more than sufficient to vitiate the resulting appeal determination. As Lord Denning M.R. put it "Error of law goes to jurisdiction" - "The Discipline of Law" page 74 "whenever a tribunal goes wrong in law it goes outside the jurisdiction conferred on it and it's decision is void because parliament only conferred jurisdiction on the tribunal on the condition that it decided in accordance with the law". Now, if the appellant avoids attending an appeal hearing he would not be in a position to take advantage of situations like this. So with all respect to Mr. Fernando, it will be to the serious detriment of an appellant if he does not attend the appeal hearing before the Commissioner-General. Mr. Fernando has pointed out, in the United Kingdom the Commissioners can summon any person (other than an appellant) to appear before them. But even in the United Kingdom the travails that would befall an appellant who does not attend an appeal hearing will be obvious from some of the case decisions. In Hamilton v CIR the appellant did not attend the hearing on the first day, he appeared on the second day with inadequate information. He was warned to appear on the third day under threat of confirmation. He did not appear or produce the required information. The Lord President said "this is a hopeless appeal in which the appellant by his own conduct has put himself out of court". In Hudson v Humbles the appellant did not attend nor was any evidence given on his behalf. The judge did not agree that the Accountants submissions be treated as evidence. In Amis v Colls the appellant did not give evidence. The court rejected the counsels view that the Commissioners were wrong to attach weight to the fact that the appellant had not attended and given evidence. Thus, even in the United Kingdom, as the onus of displacing the assessment is on the appellant, it would be in his supreme interest to attend the appeal hearing. |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
