Stewart v Commissioner of Inland Revenue

• Jurisdiction: Caribbean States
• Judge: Field, J.
• Judgment Date: 06 November 1959
• Docket Number: Civil Appeal No. 1 of 1959
• Court: Federal Supreme Court (West Indies)
• Date: 06 November 1959

Federal Supreme Court

Hallinan, C.J., Lewis, J.A.; Marnan, J.A.

Civil Appeal No. 1 of 1959

Stewart

and

Commissioner of Inland Revenue

Appearances:

Mr. E.W. Barrow and Mr. A.K Walcott instructed by Messrs. Yearwood and Boyce for the appellant Stewart.

Honourable Attorney General and Mr. D.A. Williams for the respondent, the Commissioner.

Revenue law - Income tax — Assessment — Review — Misstatement by Commissioner of Inland Revenue to taxpayer about how he was to exercise his right of appeal which was time-barred.

Field, J.

1 The three appeals are against the additional assessments made by the Commissioner on one Percival Stewart on the 15th May, 1958 in respect of the years of assessment 1950, 1952 and 1953. The Attorney General has raised a point in limine as to whether there is any appeal properly before the court and which the court is competent to entertain. On the first day this matter came before the court after hearing counsel on both sides the court suggested that in order to determine this preliminary point, it would appear that the parties may be able to agree on the facts relevant to the determination of that issue only. Counsel on both sides accepted the suggestion and the matter was accordingly adjourned for such a statement to be submitted and further argument heard.

2 The Attorney General, stating that it may well be against his interest to raise the preliminary point submitted that the Commissioner on Inland Revenue having properly made an assessment in respect of each of the years 1950, 1952 and 1953, he was no longer competent to make any further or additional assessment in respect of either or all of those years except on review under section 36 after objection by the taxpayer or under section 44. He agrees that the additional assessment in respect of each such year was not made under section 44. In other words, the Attorney General contends that the Commissioner of Inland Revenue can make an assessment only in respect of any given year and having done so he is functus officio so far as that year is concerned unless an objection is made and the assessment reviewed and revised under section 36 or he acts independently under section 44.

3 From the statement of agreed facts as submitted it will be seen that notices of assessment for each of the years 1950, 1952 and 1953 containing the amounts of taxable income and the amounts of income tax for those years were sent out by the Commissioner of Inland Revenue to the taxpayer Stewart and received by him on 31st December, 1954. Apparently no prior notice of assessment had been sent out in respect of either or all of these years (Paragraph 1, subparas. 1, 2 and 3).

4 On 3rd January, 1955 the taxpayer lodged notice or objection in respect of the assessment for each of the years 1950, 1952 and 1953. These notices were acknowledged and correspondence and interviews followed which lasted through 1955 and well into 1956. On 22nd October, 1956 the Commissioner of Inland Revenue in the presence of the then solicitor of the taxpayer gave a verbal decision on the objections as follows: the 1950 assessment was increased by $1,389, the 1952 assessment was increased by $17,704 and the 1953 assessment was increased to $6,085. These revised assessments were communicated to the taxpayer in the form of amended notices of assessment dated 23rd October, 1956. Paragraph 1 subparagraphs (4) to (12).

5 Objection was taken to the revised assessments as communicated orally and in writing by the Commissioner of Inland Revenue on the 22nd October, 1956 and 23rd October, 1956 respectively. An appeal was lodged against these revised assessments to the Appeals Committee. This Committee had come into being as a result of the Income Tax (Amendment) Act, 1956 (1956-22). It was subsequently discovered that an appeal did not lie to that body under that amending Act as by section 22 of that Act the provisions of the Act were made to apply only to income in the year 1955 and subsequent years.

6 Then, the Commissioner of Inland Revenue was asked to consider re-opening the...