Decision No
 

PENALTY TAX -
 

incorrect tax return - whether interest rate excessive - s 82A of the Inland Revenue Ordinance ('IRO')
 

D78/02 (Word file)

PERSONAL ASSESSMENT -
 

whether result of personal assessment fair and equitable - whether the Commissioner should exercise the discretion provided in s 64(2) - whether the provisions of the Inland Revenue Ordinance ('IRO') are unfair or against the Basic Law - ss 5(1), 5(1A), 41, 42, 42A, 43 and 64(2) of the IRO - Articles 8, 11 and 25 of the Basic Law
 

D64/02 (Word file)

partnership - loss carried forward by a partner - whether set off available - s 19C of the Inland Revenue Ordinance ('IRO')
 

D65/02 (Word file)

whether the sale of a property was trading in nature - it was crucial to ascertain the intention of the appellant at the time of acquisition of the property - the stated intention of the appellant was not decisive - actual intention had to be determined objectively - burden of proof on the appellant - definition of 'trade' - incumbent on the appellant to substantiate his contention - ss 2, 14(1) and 68(4) of the Inland Revenue Ordinance ('IRO')
 

D70/02 (Word file)

whether certain sums are deductible as outgoings and expenses under s 16(1) - mere compliance with s 16(1) is not sufficient, it must also not be excluded under s 17(1) - whether the transaction was 'artificial or fictitious' - any contemporaneous document in support - must show he did incur liability for rental in respect of such user and the amounts claimed were attributable to the liabilities which he so incurred - burden of proof on the appellant - ss 14, 16, 17, 61 and 68(4) of the Inland Revenue Ordinance ('IRO')
 

D82/02 (Word file)

ss 16(1), 17, 61 and 68(4) of the Inland Revenue Ordinance ('IRO') - whether or not an expense was incurred for the production of assessable profits - whether or not management fees are capable of sub-division and analysis - whether or not artificial transactions - burden of proof on taxpayer
 

D85/02 (Word file)

sale of a three-storey house erected on a piece of New Territories land - definition of 'trade' - whether chargeable to property tax - depends on whether the sale of a property is trading in nature - it is crucial to ascertain the intention of the taxpayer at the time of acquisition of the property - the stated intention of the taxpayer is not decisive - actual intention has to be tested against objective facts and circumstances - evidence is needed to substantiate the contention of the taxpayer - the circumstances and facts of the case cast doubt on the veracity of the taxpayer - burden of proof on the taxpayer - ss 2, 14(1), 16 and 68(4) of the Inland Revenue Ordinance ('IRO')
 

D93/02 (Word file)

whether the gains arising from the disposal of property were liable for profits tax - whether expenses should be allowed - ss 14(1) and 68(4) of the Inland Revenue Ordinance. [Decision in Chinese]
 

D94/02 (Word file)

ss 14(1) and 68(4) of the Inland Revenue Ordinance - intention at the time of acquisition - onus of proof on the appellant to show that the intention to invest on capital asset was realistic and realizable. [Decision in Chinese]
 

D97/02 (Word file)

sale of small house building - whether beneficial owner. [Decision in Chinese]
 

D99/02 (Word file)

whether certain items can be deducted from the rental income for the purpose of arriving at a net sum chargeable to property tax - legislature allows a flat rate of 20% per annum deduction for 'repairs and outgoings' - includes any cost of repair of the building that the owner may have to contribute - deduction for rates - appellants must show the rates were the subject of agreement between them and the tenant - neither here nor there that the appellants may have incurred over 20% of their rental income on repair - burden on appellants to show what actual cost of repair or maintenance was incurred or whether they did incur repair or maintenance cost higher than the 20% allowance - ss 5, 5B and 42 of the Inland Revenue Ordinance ('IRO') - s 10B(1) and (2) of the Interpretation and General Clauses Ordinance
 

D71/02 (Word file)

whether rental income derived from the leasing of car-parking spaces in the common area of a housing estate subject to property tax - should all owners be named - uncertainty over the identities of co-owners - whether owners of non-residential units liable - ss 5(1), 5B(2), 51, 56A, 59(2)(b), 63 and 68(8) of the Inland Revenue Ordinance ('IRO')
 

D80/02 (Word file)

gratuity - whether upon termination of employment - s 9(2) of the Inland Revenue Ordinance ('IRO')
 

D60/02 (Word file)

onus of proof - s 68 of the Inland Revenue Ordinance ('IRO') - no legitimate expectation that the Inland Revenue Department ('IRD') would anticipate what the tax representative might say shortly before the hearing of the appeal - whether or not required to identify the employer concerned - grounds to challenge assessment based on assets betterment statement - frivolous and vexatious appeal
 

D69/02 (Word file)

s 12(1)(a) of the Inland Revenue Ordinance ('IRO') - whether medical expenses incurred in the course of producing income or for the purpose of producing income
 

D72/02 (Word file)

discourteous treatment by the Revenue - no relevance to tax liability
 

D73/02 (Word file)

ss 8, 9 and 68(4) of the Inland Revenue Ordinance ('IRO') - whether or not the bonus was part of the remuneration payable and paid to the taxpayer under the employment agreement
 

D74/02 (Word file)

employment - source of income - whether liable to salaries tax - whether rental value assessable - foreign marriage - ss 2, 8(1), 8(1A), 8(1B), 9(1)(b), 9(2) and 29(1)(a) of the Inland Revenue Ordinance ('IRO') - hearing in the absence of the appellant
 

D76/02 (Word file)

s 9(1) of the Inland Revenue Ordinance ('IRO') - whether expenses incurred in order to place the appellant in a position in which he was able to earn part of the assessable income or expenses incurred in the production of the assessable income - whether or not the bonus constitutes part of the appellant's income
 

D81/02 (Word file)

home loan deduction - attorney of estate - mortgage repayment - whether home loan interest - s 26E of the Inland Revenue Ordinance ('IRO')
 

D84/02 (Word file)

whether artificial transaction - whether contract of service - s 61 of the Inland Revenue Ordinance ('IRO') - whether delay in taking action by the Commissioner
 

D86/02 (Word file)

whether salaries tax is chargeable on a sum paid as provident scheme contribution by an employer directly to the provider of an employee's personal pension account overseas - it is neither paid to the taxpayer as salary - nor at no time did the taxpayer have direct control of - ss 8(1), 9(1), 9(2A), 11B, 11D and 68(4) of the Inland Revenue Ordinance ('IRO')
 

D89/02 (Word file)

application under s 70A of the Inland Revenue Ordinance ('IRO') for correction of the assessment - intention of s 70A of the IRO - powers of assessor to correct errors - what sort of error envisaged by s 70A - whether that error on the part of the assessor constituted an arithmetical error or omission in the calculation of the amount of the assessable income within the meaning of s 70A - erred in construing the word 'entitled' as 'paid' is not the sort of error envisaged by s 70A - laxity on the part of the appellant in processing its case - repeated opportunities to rectify the error - failed to properly exercise his rights to challenge the assessment under ss 64(1) and 66 of the IRO - ss 9A(1), 51(1), 59(2), 64(1), 66, 68, 70 and 70A of the IRO
 

D91/02 (Word file)

employment - source of income - s 8(1), 8(1A) and 8(1B) of the Inland Revenue Ordinance ('IRO') - costs - nature of advice
 

D95/02 (Word file)

whether salaries tax chargeable - whether relationship between employer and employee existed - whether provision of service by self-employment - the relevant guidelines and fundamental test - necessary to consider all the objective facts, evidence and overall circumstances of the case - burden of proof on the appellant - ss 8, 12(1), 14 and 68(4) of the Inland Revenue Ordinance ('IRO'). [Decision in Chinese]
 

D96/02 (Word file)