Aspinden Holdings Ltd v Chief Assessor and Comptroller of Property Tax

• Jurisdiction: Singapore
• Judgment Date: 11 September 2006
• Date: 11 September 2006
• Docket Number: Civil Appeal No 12 of 2006
• Court: Court of Appeal (Singapore)

Aspinden Holdings Ltd

Plaintiff

and

Chief Assessor and another

Defendant

[2006] SGCA 31

Andrew Phang Boon Leong JA

,

Lai Siu Chiu J

and

Tay Yong Kwang J

Civil Appeal No 12 of 2006

Court of Appeal

Administrative Law–Judicial review–Chief Assessor amalgamating property tax accounts and reducing property tax rebates–Whether discretionary power of Chief Assessor to amalgamate accounts exercised unreasonably or improperly–Whether presumption of regularity rebutted–Section 116 illus (e) Evidence Act (Cap 97, 1997 Rev Ed)–Revenue Law–Property tax–Annual value–Property comprising subsidiary strata lots–Several strata lots occupied by each tenant–Whether each lot constituting separate property for purposes of assessing annual value–Whether Chief Assessor having power to reconfigure and amalgamate several strata lots into one property tax account–Whether Chief Assessor having power to regard several lots together and assess annual value as whole–Section 2 (7) Property Tax Act (Cap 254, 2005 Rev Ed)–Revenue Law–Property tax–Valuation list–Chief Assessor amalgamating property tax accounts without authorisation from owner thereby reducing property tax rebates–Chief Assessor seeking to amend Valuation List to reflect amalgamation of property tax accounts–Whether Chief Assessor entitled and having valid grounds to amend Valuation List–Sections 20 (1), 20 (2) Property Tax Act (Cap 254, 2005 Rev Ed)–Words and Phrases–“Lot”–Whether strata lot must be separately assessed–Section 2 (7) Property Tax Act (Cap 254, 2005 Rev Ed)

The appellant-taxpayer purchased various strata lots in a strata subdivided building governed by the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the building”). Each strata lot was issued with a separate subsidiary certificate of title. The strata lots were leased out by the appellant to various tenants. The tenants operated a total of 45 business units but occupied 155 strata lots (“the subject properties”).

The respondents (the Chief Assessor and Comptroller of Property Tax) decided to amalgamate the property tax accounts of the subject properties for the purposes of calculating the property tax payable by the appellant. This effectively reduced the amount of property tax rebates which the appellant would otherwise have enjoyed under the Property Tax (Non-Residential Buildings) (Remission) (No 2) Order 2001 (GN No S 553/2001) (“the 2001 Remission Order”) and the Property Tax (Commercial Property) (Remission) Order 2003 (Cap 254, O 19, 2004 Rev Ed) (“the 2003 Remission Order”).

The appellant appealed against the respondents' decision to amalgamate the property tax accounts, unsuccessfully, first to the Valuation Review Board and then to the High Court. The appellant then filed an appeal in the Court of Appeal which had to decide four main issues. First, what was the proper assessable entity, for the purposes of determining annual value, according to the Property Tax Act (Cap 254, 2005 Rev Ed) (“the PTA”)? Second, did the respondents have the right to reconfigure and amalgamate several subject properties into one property account if those properties were occupied as a single integral unit? Third, had the rebus sic stantibus principle been misapplied? Fourth, should the respondents' act of amalgamation be impugned on the basis that they had acted improperly in doing so?

Held, dismissing the appeal:

(1) Parliament did not intend for the 2001 and 2003 remission orders to override existing principles of valuation. While the language of the 2001 remission order rendered strata lots separately assessable, the 2003 remission order gave rise to the inference that the strata lot should be assessed on the basis of the rebus sic stantibus principle. It was therefore open to the respondents to assess the strata lots on an amalgamated basis, where they were occupied as multiple contiguous lots: at [14], [16], [17] and [29].

(2) Section 2 (7) of the PTA did not require each strata lot to be individually assessed. The reference to the mode of assessment in s 2 (7) merely served to clarify the position of strata lot owners by setting out the principles on which their lots would be assessed. The same principles of assessment which applied to freehold estates in land were equally applicable to strata lots. Therefore, the rebus sic stantibus principle was equally applicable to strata lots. Where several lots were combined and occupied as one, they would be regarded as a tenement. The respondents would thus have the power to assess their annual value on a combined basis, under s 10 of the PTA: at [18], [19] and [21].

(3) The rebus sic stantibus principle encompassed two limbs of “physical condition” and “use”, and these limbs could be used to identify the assessable entity. As such, the respondents could not overlook the fact that a site inspection had shown the removal of party walls between strata lots to create integral units. Further, s 2 (7) of the PTA did not displace any principle of assessment established under the common law. Consequently, therebus sic stantibus principle should still apply in assessing the annual value of the subject properties: at [31], [32]and [34].

(4) The respondents were entitled to amend the Valuation List under s 20 (2) (c) of the PTA, on the basis that alterations had been made to the units. The strata lots in the building qualified as “buildings” for the purposes of property tax. Thus viewed, the removal of dividing walls between distinct strata lots involved the demolition of walls between separate lots or “buildings” and were alterations of which the respondents had to be notified: at [44], [48]and [49].

(5) The presumption of regularity had not been rebutted as the appellant had not proven that the respondents had exercised their discretion for an unreasonable or improper purpose. The provisions of the PTA did not expressly require the respondents to take into account the benefits of individually assessing each strata lot. The fact that the respondents' decision to amalgamate the lots with retrospective effect coincided with the announcement of the remission orders was, without more, insufficient to rebut the presumption of regularity. The appellant had not adduced tangible evidence that the respondents' decision to amalgamate the subject properties was actuated by an intent to deprive the appellant of property tax rebates. Neither had the appellant shown that the respondents had exercised their power of amalgamation solely for the purposes of maximising their tax collections: at [55], [56] and [59].

CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (refd)

Dow Jones Publishing Co (Asia) Inc v AG [1989] 1 SLR (R) 637; [1989] SLR 70 (refd)

Ee Kim Kin v The Collector of Land Revenue, Alor Gajah [1967] 2 MLJ 89 (refd)

Intercontinental Properties (Pte) Ltd v Chief Assessor [1981-1982] SLR (R) 173; [1980-1981] SLR 561 (folld)

Irving Brown & Daughter v Smith [1996] 2 EGLR 183 (folld)

Robinson Brothers (Brewers), Limited v Assessment Committee for the No 7 or Houghton and Chester-le-Street Area of the County of Durham [1937] 2 KB 445 (folld)

Scottish & Newcastle Retail Ltd v Williams [2001] 1 EGLR 157 (folld)

Subiaco Municipal Council v Walmsley (1930) 32 WALR 49 (refd)

Toh Kim Soo Realty Pte Ltd v Chief Assessor (Singapore) Valuation Review BoardAppeal No 328 of 1981 (distd)

Evidence Act (Cap 97,1997 Rev Ed)s 116illus (e) (consd)

Land Titles (Strata) Act (Cap 158, 1999 Rev Ed)

Property Tax Act (Cap 144, 1970 Rev Ed)s 10 (3)

Property Tax Act (Cap 254, 1997 Rev Ed)s 2 (6)

Property Tax Act (Cap 254, 2005 Rev Ed)ss 2 (7), 20 (1), 20 (2) (consd);ss 2 (3),2 (5), 6,10

Chee Fang Theng and Leon Kwong Wing (KhattarWong) for the appellant

Julia Mohamed (Inland Revenue Authority for Singapore) for the respondents.

Lai Siu Chiu J

(delivering the grounds of decision of the court):

1 This was an appeal by Aspinden Holdings Limited (“the Appellant”) against the decision of Andrew Ang J (“the judge”) holding, inter alia, that the Chief Assessor and Comptroller of Property Tax (“the Respondents”) were entitled to amalgamate the Appellant's property tax accounts and thereby reduce the amount of property tax rebates which the Appellant was otherwise entitled to (see [2006] 3 SLR (R) 99). We dismissed the appeal and now set out our reasons.

The facts

2 The Appellant is a Singapore-incorporated company which purchased various strata title lots in Wisma Atria located at 435 Orchard Road, Singapore (“the Building”). The Building had been strata-divided in 1989 and was governed by the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“LTSA”). The strata lots were leased out to various tenants who operated retail or restaurant outlets.

3 The appeal involved the manner in which property tax was assessed for 155 lots (“the subject properties”). While the subject properties were each issued with separate subsidiary strata certificates of title (“SSCT”), in reality, the tenants of these properties only operated a total of 45 business units due to the fact that some retail or restaurant outlets physically occupied two or more strata-titled lots.

4 The present appeal arose from the Respondents' decision on 21 November 2002 to amalgamate the property tax accounts of the subject properties. This effectively reduced the amount of property tax rebates which the Appellant could otherwise have enjoyed under various property tax remission orders.

5 The Appellant contended that the Respondents had erred in re-configuring and amalgamating the property tax accounts. It argued that the Respondents ought to have assessed each individual lot separately, in order to ensure consistency with the language and purport of the Property Tax Act (Cap 254, 1997 Rev Ed) (“the 1997 Act”). The Appellant further alleged that the Respondents' act of amalgamation could not withstand scrutiny under the principles of administrative law as the Respondents had...