Looby v The Board of Inland Revenue
| Jurisdiction | Trinidad & Tobago |
| Judge | Koylass, C.,Burke, M.,Julumsingh, M. |
| Judgment Date | 06 May 1983 |
| Court | Tax Appeal Board (Trinidad and Tobago) |
| Docket Number | I 8/1979 |
| Date | 06 May 1983 |
Tax Appeals Board
Koylass, C.; Burke, M.; Julumsingh, M.
I 8/1979
R. Nelson for the appellant.
I. Ramoo for the respondent.
Revenue Law - Assessment of Taxes — Gift — Whether the respondent was wrong to include in its chargeable income a gift made — Whether the sum was a gift — Credibility of witnesses — Appeal allowed — The matter was sent back for reassessment on the basis of a reduction of the adjusted chargeable income — Finding that the sum was a gift.
The appellant appealed against the decision of the respondent to include in his chargeable income the sum of $10,000.00 to him in 1972 as well as an affidavit deponed to by M.L. in which she stated she gave him a gift of $10,000.00 in 1971.
whether a sum is a gift or not is an issue of fact to be determined on the evidence In this case on a balance of probabilities the sum was a gift made to him by M.L. in 1971.
Appeal allowed, referred back for reassessment. No case referred to.
Appeal from assessment of income tax.
On 16th January, 1979, the appellant appealed against a decision of the respondent in regard to income tax in the sum of $13,994.75 and unemployment levy of $1,454.70 levied on the appellant for the year of income 1971.
The sole ground of appeal as stated at appendix B of the notice of appeal was as follows:–
The appellant will contend that the respondent was wrong to include in chargeable income a gift of $10,000.00 made to him by his step-mother Mrs. Manuelita Le Gendre and deposited to his Savings Account No. 20050 with Bank of Nova Scotia on June 11, 1971.
At the hearing of the appeal on 28th March, 1983, the appellant sought leave to argue the following five additional grounds of appeal:–
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(1) The respondent never issued to the appellant a demand for payment of any tax pursuant to the notice of decision of the respondent dated December 20, 1978.
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(2) The said assessment and the revised assessment were incorrect and/or excessive in that:–
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(a) The respondent applied the wrong income tax rate to the appellant's chargeable income and/or erred in the calculation of the said tax.
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(b) The respondent failed, neglected and/or refused to take into account payment of tax in respect of the year of income 1971 made on December 14, 1977 by receipt No. 111760A $10,000.00 and on March 17, 1978 by receipt No. 113137A $10,000.00.
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(3) The penalty levied upon the appellant pursuant to section 39 (4) ought properly to have been completely cancelled by the respondent.
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(4) The notice of assessment dated December 12, 1977 and for any later assessment are null and void and of no effect.
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(5) The respondent imposed the penalty of 50% upon the appellant in breach of the rules of natural justice particularly in breach of the rule against bias and of audi alteram partem.
In support of the application his counsel, Mr. Nelson, submitted that those grounds arose from a number of facts which emerged after the filing of documents and it would have been impossible for any adviser to be aware that those grounds had been available prior to the documents being filed.
Miss Ramoo for the respondent submitted that the contention of counsel was not a valid one as the filing of the notice of appeal must precede the filing of documents.
On an observation by the Court that the notice of appeal had been prepared by solicitors, Mr. Nelson informed the Court that it had in fact been settled by him but filed by solicitors.
The Court was of the view that the omission of the additional grounds from the notice of appeal was unreasonable and, therefore, refused the application.
The sole issue before the Court was whether the sum of $10,000.00 deposited to the appellant's savings account at the Bank of Nova Scotia was taxable income or whether, as was contended for the appellant, it was a gift and not taxable.
The appellant testified on his own behalf. For the respondent, Monico Ward, a Field Auditor IV on the staff of the respondent, testified.
In the course of his testimony the appellant stated that following upon reassessments to income tax and unemployment levy, he had objected to the inclusion in his adjusted chargeable income of a sum of $10,000, which he had claimed was a gift made to him by his stepmother, Manuelita Legendre. Thereafter, he gave to Ward, the Field Auditor, a document obtained from Legendre dated 28th February, 1978 – exhibit M.L.1.
Exhibit M.L. I reads as follows:–
I, MANUELITA LEGENDRE, Widow, of No. 38 Jubiliee Street, Tunapuna, do hereby declare that in 1972 I made a gift often Thousand dollars ($10,000.00) to my step son, MARTIN LOOBY, of Grace Gardens, Santa Cruz
This sum was drawn from my Bank Account in the Royal Bank San Juan.
Sometime after, he obtained an affidavit sworn to by Legendre. He gave it to Ward and Ward gave it back to him.
The affidavit was, with the consent of Counsel for the respondent, put in evidence as exhibit M.L.2. It reads as follows:–
I, MANUALITA LEGENDRE of 38 Jubilee Street, Tunapuna, in the Ward of Tacarigua in the Island of Trinidad, Widow, do solemnly and sincerely declare as follows:–
1. I am 81 years of age.
2. Martin Looby of Grace Gardens, Santa Cruz, is my step-son and only lawful next of kin.
3. Upon the death of my Sister, ESTHER GOMES I inherited certain properties including cash.
4. Sometime in the year 1971...
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