AXY and others v Comptroller of Income Tax
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 04 May 2018 |
Neutral Citation | [2018] SGCA 23 |
Defendant Counsel | Aurill Kam and Fu Qijing (Attorney-General's Chambers),Koh Meng Sing Alvin, Li Yourui Charles, Nai Thiam Siew Patrick and Pang Mei Yu (Inland Revenue Authority of Singapore) |
Date | 04 May 2018 |
Docket Number | Civil Appeal No 161 of 2016 |
Hearing Date | 05 September 2017 |
Plaintiff Counsel | Tan Chee Meng SC, Ho Pei Shien Melanie, Lim Ying Min, Rachel Ong, New Xiao Yan Charmaine and Ngiam Heng Hui Jocelyn (WongPartnership LLP) |
Year | 2018 |
Court | Court of Appeal (Singapore) |
Citation | [2018] SGCA 23 |
Published date | 09 May 2018 |
This appeal arose in the context of an exchange of information (“EOI”) request (“the Request”) made by the National Tax Service of the Republic of Korea (“the NTS”) to the Comptroller of Income Tax (“the Comptroller”). The NTS had been investigating possible tax evasion involving the four appellants in this appeal (“the Appellants”), and had sent the Request to the Comptroller pursuant to Art 25(1) of the Convention between the Republic of Singapore and the Republic of Korea for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income as amended by the Protocol signed on 24 May 2010 (“the Convention”). Further communications ensued between the NTS and the Comptroller over several months, in the course of which various clarifications were sought and obtained by the Comptroller, who then exercised his power to issue production notices to three banks in Singapore on 21 and 27 January 2014 for the disclosure of banking activities relating to three of the Appellants and 51 companies (“the Production Notices”). The entire EOI process, including the issuance of the Production Notices, was conducted covertly without notice to the Appellants and the companies concerned.
The Appellants filed Originating Summons No 106 of 2014 (“OS 106”) on 11 February 2014 seeking, among other things, leave to apply for a prohibiting order prohibiting the Comptroller from disclosing to the NTS the information which the latter sought and a quashing order in respect of the Production Notices. Having been served with the papers for OS 106 pursuant to O 53 r 1(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), the Attorney-General (“the AG”) participated in the proceedings to make submissions on the applicable legal principles governing the operation of Singapore’s EOI regime. The judicial commissioner who heard OS 106 (“the Judge”) dismissed the action on 15 September 2016, and furnished his written grounds of decision in
On 24 November 2016, the Appellants filed this appeal against the Judge’s decision. We heard the appeal on 5 September 2017 in camera. At the conclusion of the oral arguments, we dismissed the appeal and gave our brief reasons. As we indicated we would do, we now set out the detailed grounds for our decision.
This appeal raised the novel issue of whether subsequent objections and issues that were put forward to the Comptroller
The Appellants were, at the material time, a family of Korean nationals living in Indonesia. The first appellant (“the 1
At the material time, the NTS was conducting criminal tax investigations into the affairs of five individuals (“the five Korean taxpayers”): the 1
On 23 September 2013, the NTS submitted the Request to the Comptroller to obtain information relating to the five Korean taxpayers and the 51 implicated companies. The Request was made pursuant to Art 25(1) of the Convention. Article 25 of the Convention, which is incorporated into our domestic legislation via s 105D of the Income Tax Act (Cap 134, 2014 Rev Ed) (“the ITA”), reads as follows:
[emphasis added in bold italics]
Section 105D of the ITA also bears setting out in full:
Request for information
[emphasis added]
It was not disputed by the parties that the NTS was a “competent authority” and the Convention, a “prescribed arrangement”, for the purposes of s 105D of the ITA.
In the Request, the NTS sought, in relation to the five Korean taxpayers and the 51 implicated companies, Singapore bank account information and documents, including bank statements, account opening contracts, personal information of agents and consignees, cancelled cheques,...
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