Eugene Herrera Ltd v The Board of Inland Revenue

• Jurisdiction: Trinidad & Tobago
• Judge: Barnes, C.
• Judgment Date: 12 May 1995
• Court: Tax Appeal Board (Trinidad and Tobago)
• Docket Number: Nos. I 225 — I 226 of 1990
• Date: 12 May 1995

Tax Appeal Board

Barnes, C.; Burke, Mem.; Dean-Maharaj, Mem.

Nos. I 225 — I 226 of 1990

Eugene Herrera Limited

and

The Board of Inland Revenue

Mr. C. Hamel-Smith for appellant.

Mrs. E. Bridgeman-Volney and Mrs. C. Gopaul for respondent.

Revenue law - Practice and procedure — Service of notice of appeal — Counsel for the respondent alleged that the notices of appeal had not been served on the Board of Inland Revenue and consequently informed the court that the respondent would resist the appellant's application for any extension of time to do so — Held that the documents were served on the respondent in accordance with rule 8 of the Tax Appeal Board Rules, Chap. 4:50 — Appeals fully instituted in accordance with section 7(2) of the Tax Appeal Board, Chap. 4:50.

Barnes, C.

1 With the approval of the parties, this matter was heard on 15th and 16th June, 1993 by the Chairman and one member of the Tax Appeal Board.

2 In this matter the notices of appeal against assessments to corporation tax and unemployment levy for the year of income 1982 had been filed with the Registrar of the Tax Appeal Board on 15th June, 1990. At the hearing on 2nd April, 1993 counsel for the respondent had alleged that the said notices of appeal had not been served on the Board of Inland Revenue and consequently had informed the court that the respondent would resist the appellant's application for any extension of time to do so.

3 At the hearing of this matter, the only evidence presented by both parties was in the form of affidavits in respect of which there was no cross-examination of the respective deponents. For the appellant, two affidavits in respect of each one of the two appeals were filed on 20th April, 1993.

4 Two affidavits were deposed to by Christopher Hamel-Smith, attorney-at-law of 19 St. Vincent Street, Port of Spain, on 20/4/93, one in respect of Appeal No. I 225 of 1990 and the other, related to Appeal No. I 226 of 1990. As both affidavits contained similar statements, only one in respect of Appeal No. I 225 of 1990 is quoted in full, as under:–

“I, Christopher Hamel-Smith of No. 19 St. Vincent Street, Port of Spain, in the Island of Trinidad, attorney-at-law, make oath and say as follows:–

• 1. I am a partner in the firm of M. Hamel-Smith & Co. of No. 19 St. Vincent Street, Port of Spain, attorneys-at-law for the appellant, Eugene Herrera Limited. I have had and have conduct of this Action on behalf of Eugene Herrera Limited and I am duly authorized to make this affidavit on its behalf. Save where otherwise expressly stated, I depose to the truth of the matters stated herein of my own knowledge.

• 2. The Notice of Appeal herein was duly filed at Registry of the Tax Appeal Board on June, 15 1990. By Notice from the Registrar of the Tax Appeal Board dated January 6, 1993 the appellant and respondent were duly notified that the appeal herein would be heard on the 2nd day of April, 1993.

• 3. On the 2nd day of April, 1993 the respondent informed the Tax Appeal Board that they had not been served with the Notice of Appeal and the matter was adjourned.

• 4. In view of what was indicated by the respondent I immediately began to investigate into the circumstances. My first step was to carefully peruse all files relating to the Appeal herein and the related Appeal No. I 226 of 1990. First, I was able to ascertain that none of the copies of the Notice of Appeal herein in my firm's files bore the usual return of service. Second, I observed that only one of the copies of the Notice of Appeal herein bore the original stamp of the Tax Appeal Board. In this regard, it is my firm's practice in relation to court documents that sufficient copies are taken for filing with the Registry so as to ensure that we have at least one copy of each document bearing the original stamp for service and another copy of each document bearing the original stamp for the file. Based on this practice, I had expected that, if for some reason the Notice of Appeal had not been served on the Board of Inland Revenue, at least two copies pf the Notice of Appeal bearing the original stamp would have been in the file. The absence of any second copy in the file leads me to conclude that it was taken away to effect service.

• 5. I next interviewed each of the persons who were responsible for delivering documents for my firm at the relevant time, i.e. June 1990. One of these persons, Mr. Laurence George, informed me of the matters set out in his affidavit which is also sworn and filed herein and I verily believe the contents of his said affidavit to be true. Apart from Mr. George none of these persons had any recollection which is material to this matter.

• 6. Based on what I had learnt from Mr. George, I got in contact with the said Mrs. Martin to see if she could help identify whether or not the documents delivered by Mr. George were the Notices of Appeal in this matter and/or in the related Appeal No. I 226 of 1990. I am informed by the said Mrs. Martin and verily believe that she remembers the incident referred to by Mr. George but that she cannot now remember whether or not those documents related to the appeal herein. However, the said Mrs. Martin further informs me and I verily believe that the only two tax matters she dealt with as my secretary were the Eugene Herrera Limited appeals and the appeals for Well Services Limited so that the documents referred to by Mr. George related to either of those appeals. Apart from the Notices of Appeal, no other documents have been filed by the appellant either in the Appeal herein or in the related Appeal No. I 226 of 1990. I have examined the files in the Well Services Limited appeals and these indicate that the Notices of Appeal in that matter were filed on September 9, 1986 and served by the clients' accountants and not by my firm. Thereafter, no documents requiring service were filed by the Appellant in the Well Services Limited matter until the 14th day of January, 1991. Having determined this, I spoke to Mr. George again and he informed me and I verily believe that he is quite sure that the incident involving the deposit of documents in the box at Trinidad House did not take place as recently as January, 1991.

• 7. Having spoken to Mr. George, I recall in general terms the incident referred to by him in his said affidavit and, in particular, I remember Mr. George reporting it to me at or about the time that it occurred. I do not recall Mr. George telling me at the time that the reason for the Security Guard's instruction was that it was nearly 4:00 p.m. Rather, my impression was that Mr. George had been instructed by the Security Officer that it was the normal practice for documents for the Legal Section of the Board of Inland Revenue to be deposited in the said box. I cannot now positively recall whether or not the documents in question related to the appeal herein. I do, however, have a clear memory of the conduct of the Well Services Limited appeals and I am quite certain that the incident referred to by Mr. George did not relate to the Well Services Limited appeals. In the circumstances, I verily believe that the...