Where a national tax authority sent a request for information to the IRAS, held that the court’s role was to assess the request on the face of it and further held that the request could include information pertaining to a time period before the effective date of the relevant tax treaty:
— ABU v Comptroller of Income Tax [2015] SGCA 4 (Singapore, Court of Appeal, 22 January 2015)
Facts
The National Tax Agency of Japan (“JNTA”) had requested banking information relating to the Appellant from the Comptroller of Income Tax in Singapore (“Comptroller”) pursuant to the Agreement between the Government of the Republic of Singapore and the Government of Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (“Treaty”). The purpose of the request was to determine whether the Appellant had failed to declare distributions received from foreign securities investment funds.
As the Comptroller concluded that the bank statements sought were protected against unauthorised disclosure by the Banking Act, the Comptroller made an application to the court for the production of the statements under section 105J(2) of the Income Tax Act (“Act”). The Appellant sought to oppose the application on the basis that the request from JNTA was not valid and that the Treaty could not allow for the exchange of information which had arisen before the period that the Treaty was given effect.
Decision
The Court of Appeal upheld the decision of the High Court to allow the application and ordered the production of the bank statements requested. The provisions in the Act regarding the exchange of information were introduced to comply with the Organisation of Economic Cooperation and Development 2008 Model Tax Convention on Income and on Capital (“EOI Standard”). The Court noted that four pertinent features of the EOI Standard were:
- The touchstone for the exchange of information was whether the requested information was “foreseeably relevant” for carrying out the provisions of the relevant tax treaty or the enforcement of the domestic laws of the requesting state.
- It does not permit a contracting state to decline a request merely because it lacks a “domestic interest” in the information.
- It does not permit a contracting state to decline a request for information only because the information is held by a bank, a financial institution, or a person acting in a fiduciary capacity.
- It allows the sharing of information relating to all forms of taxes, not just income tax.
The Court noted that the High Court’s power to make an order for protected information under section 105J(2) of the Act was premised on whether the conditions in section 105J(3) were satisfied. These conditions were whether the making of the order was justified in all the circumstances of the case and that it was not contrary to public interest. As the Appellant did not contend that the making of an order for production of the bank statements was contrary to the public interest, the sole issue was whether the making of the order for production was justified in the circumstances of the case.
The Court noted that under section 105(D) of the Act, a request must provide certain mandatory information as prescribed in the Eighth Schedule of the Act. This information included the information sought, the identity of the individual, and the grounds for the request. A statement that the request conforms with the law of the country seeking the information must also be provided, along with a statement that the country has pursued all means in its own territory in obtaining the information.
In the present case, the Court held that there was no real dispute that, on its face, JNTA’s request met the requirements of the Eighth Schedule. The Court held that, whilst the High Court should be independently satisfied as to the justification of a request, it was not the intention of Parliament that the High Court substantively review a request to the extent of inquiring into the truth of the factual assertions contained in it. As a matter of international law, it was not for the courts to, in effect, adjudicate the validity of a request made by a foreign tax authority of our tax authority. If there were doubts concerning the validity of a request, it would fall on the Comptroller to resolve them through diplomatic channels. It was for the court to assess the justification for the request on the face of the request.
With regard to the Appellant’s contention that the statutory regime implementing the Treaty did not permit disclosure of information relating to periods before the Treaty came into effect, the Court held that in determining whether legislation has a retrospective application, a purposive approach should be applied. This would entail a single overarching enquiry as to parliamentary intent, and that would be found in the words of the law, its context and the relevant extrinsic aids to statutory interpretation. Only if ambiguity persisted on a purposive interpretation may recourse be had to the various presumptions.
The Court held that the relevant issue of statutory interpretation concerned whether the exchange of information regime applied to information relating to periods before the Treaty was given effect as a “prescribed arrangement” under the Act. The Court held that it was clear that Parliament had intended to permit the exchange of information relating to any period both before and after the date on which the Treaty was given effect. The point really was that the present request could only be made after the Treaty had been given effect as a prescribed arrangement, but once made, the request could relate to information pertaining to an earlier period. Put simply, the Court held that the temporal scope of information which could be exchanged under the exchange of information regime under the Act was unlimited save for where a contrary provision was made under the relevant tax treaty. This was not the case in the present tax treaty.
In the present case, the Court was satisfied that the letter of request contained all the information prescribed by the Eighth Schedule and accordingly the standard of foreseeable relevance had been met.
Our Analysis / Comments
The procedure has been changed when Part XXB of the Income Tax Act was amended in 2013. The Comptroller is no longer required to make an application to the High Court in circumstances similar to those in ABU v Comptroller of Income Tax. However, in those circumstances, a person required to comply with the Comptroller’s request for information may wish to apply for judicial review under the amended provisions. It is envisaged that in judicial review proceedings, insofar as the substantive issues relating to the request are concerned, the High Court would adopt a similar approach as that set out in ABU v Comptroller of Income Tax.
For further information, please contact:
Kay Kheng Tan, Partner, WongPartnership
kaykheng.tan@wongpartnership.com
