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(2010-11) Volume 25 Inland Revenue Board of Review Decisions

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(2010-11) Volume 25 Inland Revenue Board of Review Decisions (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS Case No. D45/09 Salaries tax – present in Hong Kong – transit days – sections 8(1), 8(2)(j) and 68(4) of the Inland Revenue Ordinance (‘IRO’), sections 2, 3 and 19 of the Interpretation and General Clauses Ordinance (Cap 1). Panel: Colin Cohen (chairman), Erik Shum and Mark Richard Charlton Sutherland. Date of hearing: 4 November 2009. Date of decision: 12 January 2010. The Taxpayer, a crew member, argued that his ‘transit days’ should not have been counted as days on which he was ‘present in Hong Kong’ for the purposes of section 8(2)(j) for the years of assessment 2006/07 and 2007/08. The ‘transit days’ were days in which the Taxpayer flew in to Hong Kong but did not pass through the Hong Kong Border and Passport Control before departing for Macau. Held: 1. Giving the word ‘present’ its ordinary meaning, once the Taxpayer landed in Hong Kong, he was indeed ‘present’ as provided for, and set out in, section 8(2)(j) of the IRO. 2. The Taxpayer during such period of transit in Hong Kong was neither present in Macau nor in any ‘no man’s land’ such that he must have been, and was, ‘present in Hong Kong’. 3. The precise time at which the Taxpayer becomes ‘present in Hong Kong’ can be accurately ascertained as being the specific time at which the aeroplane touches down on Hong Kong soil. Appeal dismissed. Cases referred to: Owen Thomas Mangin v Inland Revenue Commissioner [1971] AC 739 Pepper (Inspector of Taxes) v Hart [1993] AC 593 Commissioner of Inland Revenue v Loganathan [2000] 1 HKLRD 914 Commissioner of Inland Revenue v Common Empire Limited [2006] 7 HKTC 1 (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS D30/07, IRBRD, vol 22, 723 WT Ramsay v IRD [1982] AC 300 Taxpayer in person. J G A Grady, Chan Wai Yee and Wong Pui Ki for the Commissioner of Inland Revenue. Decision: Introduction 1. Mr A (‘the Taxpayer’) has objected to salaries tax assessments for the years of assessment 2006/07 and 2007/08. The Taxpayer is a Company D crew member. 2. The Taxpayer appeals against a Determination by the Deputy Commissioner of Inland Revenue dated 3 April 2009 in respect of salaries tax assessment for the year of assessment 2006/07 showing a net chargeable income of $612,931 with tax payable thereon in the sum of $90,956 and in respect of salaries tax assessment for the year of assessment 2007/08 showing a net chargeable income of $974,730 with tax payable thereon in the sum of $130,204. 3. The issue in respect of the present case before the Board is a narrow one. In short, it turns on whether the ‘transit days’ should be regarded as days in which the Taxpayer was ‘present in Hong Kong’ for the purposes of section 8(2)(j) of the Inland Revenue Ordinance (‘IRO’). The ‘transit days’ were days in which he flew in to Hong Kong but did not pass through the Hong Kong Border and Passport Control (‘Passport Control’) before departing for Macau. There was no dispute by the parties as to the number of such transit days involved. In respect of the year 2006/07, there were 11 transit days and in respect of the year 2007/08, there were 18 transit days. 4. The facts in this case were not in dispute. The Taxpayer argues for an exemption for salaries tax for the relevant years in question on the basis that his ‘transit days’ should not have been counted as days on which he was ‘present in Hong Kong’ for the purposes of section 8(2)(j). If those days were not counted as days on which he was present in Hong Kong, he would have satisfied the 60/120 days rule as provided for, and set out in, section 8(2)(j) of the IRO and hence would have qualified for the relevant exemption. In his communications and correspondence, he drew to the Board’s attention that when he arrived at Hong Kong, he did not pass through Passport Control, in turn, he made his way to Macau taking advantage of the transit/transport procedures provided by the Hong Kong International Airport Authority (‘the Hong Kong Airport’) with regard to passengers transitting into various ports in either Macau or China. When he arrived in Hong Kong, he purchased the relevant ferry tickets and in turn, he boarded a bonded bus that proceeded to a sky pier, at the sky pier, he then boarded a ferry to Macau. The evidence 2 (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS 5. The Taxpayer very helpfully confirmed that the facts upon which the Determination arrived at were agreed. These are now set out below and we find them as facts: ‘ (1) [Mr A] [“the Taxpayer”] has objected to the Salaries Tax assessments for the years of assessment 2006/07 and 2007/08 raised on him. The Taxpayer claims that his income should be excluded from the charge to Salaries Tax. (2) [Company B] and [Company C] are companies incorporated in Hong Kong. Their holding company is [Company D]. At all relevant times, [Company B] and [Company C] carried on a business of provision of [crew] services in Hong Kong. (3) For the year of assessment 2005/06, the Taxpayer was a [crew member] of [Company B] and his employment income from [Company B] was fully assessed to tax. The Taxpayer was present in Hong Kong for 74 days in that year. (4) [Company B] filed employer’s returns in respect of the Taxpayer showing, inter alia, the following particulars: 2006/07 2007/08 (a) Capacity in which : XXXXX XXXXX employed (b) Period of employment : 1.4.2006-31.3.2007 1.4.2007-31.12.2007 (c) Particulars of income : Salary $848,031 $649,519 Bonus 20,189 - Other rewards, allowances or perquisites 24,711 96,833 Total $892,931 $746,352 (5) [Company C] filed employer’s return in respect of the Taxpayer showing, inter alia, the following particulars: (a) Capacity in which employed : XXXXX (b) Period of employment : 1.1.2008-31.3.2008 (c) Particulars of income : Salary $328,378 3 (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS (6) In his Tax Returns – Individuals for the years of assessment 2006/07 and 2007/08, the Taxpayer declared the same income particulars as per Facts (4) and (5). The Taxpayer also claimed full tax exemption for these two years by reason that his respective number of days in Hong Kong was 43 days and 59 days. Hence, he should be exempt from tax under section 8(2)(j) of the Inland Revenue Ordinance [“the Ordinance”]. (7) To support his exemption claim, the Taxpayer furnished copies of the following documents: (a) 3 reports headed “Crew Days in HKG Report” [“the Days Report”] prepared by [Company B] and [Company C]. The reports showed the number of days that the Taxpayer was in Hong Kong during the relevant periods were as follows: Period Number of days in Hong Kong 1.4.2005 – 31.3.2006 74 1.4.2006 – 31.3.2007 57 1.4.2007 – 31.3.2008 85 (b) The Taxpayer’s duty rosters for the periods from April 2006 to March 2007 and from April 2007 to March 2008. (c) Lists of days in Hong Kong for the periods from April 2006 to March 2007 and from April 2007 to March 2008 prepared by the Taxpayer. (d) Fare receipts, boarding cards and passport records showing the Taxpayer’s arrivals and departures of Hong Kong and Macau. (8) In computing the number of days in Hong Kong, the Taxpayer excluded the following days from the Days Reports: (a) For the year of assessment 2006/07 No. of days No. of days Number of days in Hong Kong per the 57 Days Report Less: Date Reasons 01.08.2006[1] Transit to Macau 1 16.08.2006[1] Transit to Macau 1 01.09.2006[1] Transit to Macau 1 05.09.2006[1] Transit to Macau 1 4 (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS 18.09.2006[1] Transit to Macau 1 30.09.2006[1] Transit to Macau 1 04.10.2006[1] Transit to Macau 1 04.11.2006[1] Transit to Macau 1 25.12.2006[1] Transit to Macau 1 12.02.2007[1] Transit to Macau 1 17.02.2007[1] Transit to Macau 1 11 02.09.2006[2] Remained in Macau 1 13.02.2007[2] Remained in Macau 1 2 30.10.2006[3] Scheduled arrival was 1 1 delayed 14 Total 43 (b) For the year of assessment 2007/08 No. of days No. of days Number of days in Hong Kong per the 85 Days Report Less: Date Reasons 13.05.2007[1] Transit to Macau 1 30.05.2007[1] Transit to Macau 1 08.07.2007[1] Transit to Macau 1 28.07.2007[1] Transit to Macau 1 08.08.2007[1] Transit to Macau 1 18.08.2007[1] Transit to Macau 1 30.08.2007[1] Transit to Macau 1 03.09.2007[1] Transit to Macau 1 18.09.2007[1] Transit to Macau 1 27.09.2007[1] Transit to Macau 1 07.10.2007[1] Transit to Macau 1 26.10.2007[1] Transit to Macau 1 08.11.2007[1] Transit to Macau 1 20.11.2007[1] Transit to Macau 1 11.12.2007[1] Transit to Macau 1 26.02.2008[1] Transit to Macau 1 29.02.2008[1] Transit to Macau 1 25.03.2008[1] Transit to Macau 1 18 09.08.2007[2] Remained in Macau 1 04.09.2007[2] Remained in Macau 1 09.11.2007[2] Remained in Macau 1 21.11.2007[2] Remained in Macau 1 5 (2010-11) VOLUME 25 INLAND REVENUE BOARD OF REVIEW DECISIONS 22.11.2007[2] Remained in Macau 1 26.03.2008[2] Remained in Macau 1 6 16.10.2007[3] Scheduled arrival was 1 delayed 01.12.2007[3] Scheduled arrival was 1 2 delayed 26 Total 59 Note: 1.
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