George Daniel Defendant/Appellant v Comptroller of Inland Revenue Complainant/Respondent [ECSC]
| Jurisdiction | Dominica |
| Judge | RAWLINS, J.A.,ALLEYNE C.J. [AG.],Hugh A. Rawlins,Justice of Appeal,Chief Justice [Ag.],Brian Alleyne, SC,Denys Barrow, SC |
| Judgment Date | 24 April 2006 |
| Judgment citation (vLex) | [2006] ECSC J0424-2 |
| Court | Court of Appeal (Dominica) |
| Date | 24 April 2006 |
| Docket Number | CRIMINAL APPEAL NO.2 OF 2004 |
IN THE COURT OF APPEAL MAGISTERIAL
The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CRIMINAL APPEAL NO.2 OF 2004
Mr. Michael Bruney for the Defendant/Appellant
Mrs. Candia Carrette-George for the ComplainantRespondent
The main issue that this appeal raises is whether the appellant, a medical doctor, was liable to file and thereby furnish to the Comptroller of Inland Revenue, the complainant, an income tax return for the year 2000 pursuant to section 117 of the Income Tax Act.1 A secondary issue is whether, in a trial to determine whether a person who is a defendant is so liable, the burden of proof
shifts to a defendant at any stage. The questions, in the context in which they arose in this appeal, will be better appreciated against a brief background.The appellant was charged on a complaint that was preferred by the complainant. The respondent stated that between 3rd April 2001 and 29th September 2003, the appellant failed to furnish to the respondent an income tax return for the income year 2000, as and when required under section 119(1)(a) of the Act. This provision makes it an offence where a person fails or neglects to furnish a return or document to the Comptroller of Inland Revenue as and when required under the Act. The appellant was convicted. On 29th October 2003, he was fined $500.00. This sum was to be paid by 15th December 2003, or, in default, serve 3 weeks in prison. The magistrate also ordered him to file the return for the year 2000 by 31st December 2003. The appellant appealed on the ground that the decision is unsafe and unsatisfactory.
At the trial, only the acting Comptroller of Inland Revenue, Ms. Denise Edwards-Dowe, gave evidence on behalf of the respondent/complainant. She sought to call another witness, but the learned Magistrate did not permit that witness to give evidence because the person had sat in court while the complainant gave her evidence. I agree, however, with the suggestion by Alleyne CJ (Ag.), whose judgment I had the opportunity to read, that the proposed witness should still have been permitted to give evidence since this fact affects weight rather than admissibility.
In her evidence, the acting Comptroller stated that the records at her Department show that the appellant is registered as a taxpayer with the Department. He is a self-employed doctor, who paid for a professional licence as such. He should have filed income tax returns by 2nd April 2001 for the income year 2000, but had failed to do so.
In cross-examination, the witness stated,inter alia, that the appellant worked at the Global Medical Centre during the year 2000, although she did not see him work there. She did not know what income he earned during that year. She stated, further, that all self-employed persons are required to file or furnish income tax returns. She does not receive returns from all persons in Dominica, but she expects all persons who earn taxable income to file returns. According to the witness, taxable income is income that is not exempt from tax. Everyone who earns such income is liable to be taxed upon it, but self-employed persons such as the appellant must file returns whatever their income. The witness stated, on re-examination, that every person who earns taxable income, except employees with employment income of less than $15,000.00 per annum, is expected to file returns. Where there is no master/servant relationship, a person must file returns irrespective of the amount of income that the person earns.
A no case submission was made on behalf of the appellant after the witness for the respondent/complainant gave her evidence. This submission was made mainly on the ground that the complainant's evidence did not disclose that the appellant was a person who was liable to furnish an income tax return under the provisions of the Act, because there was no evidence that he earned more than $15,000.00 during 2000. The learned magistrate overruled the no case submission. The appellant thereupon elected to give no evidence in his defence and was convicted on the charge and fined.
In her reasons for decision, the learned magistrate noted the submission by the appellant's Counsel that the appellant would only have been liable to file or furnish a return if he earned more than $15,000.00 during 2000, and, further, that the burden was upon the complainant to prove that the appellant earned more than that sum. Counsel for the appellant pointed out that the complainant had providedno evidence to prove this. The learned magistrate considered these submissions in the light of sections 33(1), 47 and 66(5) of the Act, and, in addition, the definition of the word "employment" in section 2 of the Act.
Section 33(1) falls under Division 1 of Part V of the Act. Part V is under the rubric "Ascertainment of Assessable Income". Division 1 is under the rubric "Gains or Profits Forming Assessable Income". Section 33(1) states:
"Subject to this Part, the assessable income of any person shall include the gains or profits from or by way of —
-
(a) any business;
-
(b) any employment;
-
(c) …"
Section 47 of the Act, as amended, states that a resident individual is entitled to an allowance of $15,000.00 irrespective of the nature of his income.
Section 66 of the Act falls under Part IX of the Act, which is under the rubric "Returns and Information". Section 66(5)(a) as amended, provides that a resident individual whose income accrues entirely from employment and does not exceed $15,000.00 during a year of assessment shall be relieved from the obligation to furnish an income tax return. As defined in section 2 of the Act "employment" means any employment in which the relationship of master and servant subsists or an appointment or office whether public or not and whether or not that relationship subsists.
The learned magistrate found, correctly, that the appellant was a resident individual during the 2000 income year. She also found that the appellant was a self-employed individual in that year. She concluded her reasons for decision in the following terms:
"It is clear that a self employed individual is not covered by the section [section 66(5)(a) of the Act]. The uncontroverted evidence is that the Defendant was self employed in 2000. From the evidence which the Defendant sought to illicit on cross-examination the Defendant's case isthat he made less than $15,000.00 in the income year 2000 and as such was exempt from filing returns for that year pursuant to section 66(5).
The law is that where a Defendant relies on an exception or exemption or proviso in an enactment creating an offence the burden of proving that exception, exemption etc is on the Defendant and proof is on a balance of probabilities: seeR v Edwards (1975) QB 27 and R v Hunt (1987) A.C. 352.
It is my opinion that the Defendant did not discharge the burden of showing that he was not self employed and therefore not liable to file income tax returns for 2000. He was therefore found guilty of the charge of not filing income tax returns for 2000."
When the appeal was argued before this court the parties agreed, correctly, that since the uncontroverted evidence was that the appellant was a self employed doctor, any...
To continue reading
Request your trial