ABU v Comptroller of Income Tax: Exchange of Information, Double Taxation, Banking Act
ABU appealed against the High Court's decision to dismiss his summonses to discharge an order for the production of bank statements requested by the National Tax Agency of Japan (JNTA) to the Comptroller of Income Tax, pursuant to the Agreement between Singapore and Japan for the Avoidance of Double Taxation. The Court of Appeal dismissed the appeal, varying the order to reflect the original request made by the JNTA. The primary legal issue concerned the interpretation of Section 105J of the Income Tax Act and the scope of review the High Court can undertake regarding requests for information from foreign tax authorities.
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Appeal dismissed in part; order varied to reflect the original request made by the JNTA.
1.3 Case Type
Tax
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal regarding an exchange of information request from Japan. The court dismissed the appeal, varying the order to reflect the original request.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| ABU | Appellant | Individual | Appeal dismissed in part | Partial | Sundareswara Sharma |
| Comptroller of Income Tax | Respondent | Government Agency | Order Varied | Partial | Vikna Rajah, Patrick Nai, Michelle Chee |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | Yes |
| Chao Hick Tin | Justice of the Court of Appeal | No |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Sundareswara Sharma | ATMD Bird & Bird LLP |
| Vikna Rajah | Inland Revenue Authority of Singapore |
| Patrick Nai | Inland Revenue Authority of Singapore |
| Michelle Chee | Inland Revenue Authority of Singapore |
4. Facts
- The National Tax Agency of Japan (JNTA) requested bank statements from the Comptroller of Income Tax.
- The request was made pursuant to Art 26(1) of the Agreement between Singapore and Japan for the Avoidance of Double Taxation.
- The JNTA sought bank statements for accounts held by the Appellant, his son, and related entities with [BLM] Bank.
- The Comptroller filed Originating Summons 331 of 2013 against the Bank for an order directing the production of the bank statements.
- The Appellant intervened in OS 331 and objected to the production of the bank statements.
- The High Court made an order in terms of OS 331, which the Appellant sought to discharge.
- The JNTA confirmed that it still required the information requested in the Letter of Request.
5. Formal Citations
- ABU v Comptroller of Income Tax, Civil Appeal No 150 of 2013, [2015] SGCA 4
6. Timeline
| Date | Event |
|---|---|
| JNTA sent the Letter of Request to the Comptroller. | |
| Comptroller sent a notice under s 105E of the ITA to the Bank and each of the account holders. | |
| Comptroller filed OS 331 against the Bank. | |
| OS 331 was first heard by the Judge. | |
| High Court made an order in terms of the Comptroller’s application in OS 331. | |
| Appellant filed Summons 3110 to discharge the order of court made on 31 May 2013. | |
| JNTA confirmed that it still required the information requested in the Letter of Request. | |
| Judge dismissed each of the summonses filed by the Appellant and the other account holders. | |
| Appellant filed his appeal to this Court in CA 150. | |
| Court granted leave to amend written case. | |
| Appeal was heard. | |
| Court dismissed the appeal save to the extent that the scope of the order made below on 31 May 2013 was to be varied. |
7. Legal Issues
- Scope of High Court's Review Power under Section 105J of the Income Tax Act
- Outcome: The Court held that the High Court is required to be independently satisfied as to the justification of a request, but this does not extend to inquiring into the truth of the factual assertions contained in it. The validity of a request is to be determined on its face.
- Category: Procedural
- Sub-Issues:
- Substantive review of Letter of Request
- Veracity of statements in Letter of Request
- Temporal Scope of Exchange of Information Regime
- Outcome: The Court held that the exchange of information regime applies to information relating to any period both before and after the date on which the Treaty was given effect as a “prescribed arrangement” under s 105D(1) of the ITA.
- Category: Substantive
- Sub-Issues:
- Retrospective application of legislation
- Application to periods before Treaty was given effect
- Justification for Order of Production of Bank Statements
- Outcome: The Court held that an order for the production of the bank statements for the eight accounts identified in the Letter of Request was justified in the circumstances of the case.
- Category: Substantive
- Sub-Issues:
- Compliance with Eighth Schedule
- Standard of foreseeable relevance
8. Remedies Sought
- Discharge of order for production of bank statements
- Stay of execution of order
9. Cause of Actions
- Application for production of bank statements
10. Practice Areas
- Tax Litigation
- Appeals
11. Industries
- Finance
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Comptroller of Income Tax v BJY and others | High Court | Yes | [2013] 4 SLR 801 | Singapore | Discussed the meaning of the phrase “justified in the circumstances of the case” under s 105J(3)(a) of the ITA. |
| Comptroller of Income v AZP | High Court | Yes | [2012] 3 SLR 690 | Singapore | Discussed the conditions that had to be satisfied before the High Court would make an order under s 105J(2) of the ITA. |
| Comptroller of Income Tax v BLM | High Court | Yes | [2014] 1 SLR 123 | Singapore | The written grounds for the Judge’s decision in the court below. |
| Lim Meng Suang and another v Attorney-General and another appeal and another matter | Court of Appeal | Yes | [2015] 1 SLR 26 | Singapore | Cited for the principle that international law and domestic law are regarded in Singapore as separate systems of law. |
| Maxwell v Murphy | High Court | Yes | (1957) 96 CLR 261 | Australia | Cited for the general rule of the common law that a statute changing the law ought not be understood as applying to facts or events that have already occurred. |
| In re A Solicitor’s Clerk | English Court of Appeal | Yes | [1957] 1 WLR 1219 | England and Wales | Cited for the principle that the presumption against the retrospective application of legislation does not arise unless the application of the statute to past events would alter the legal consequences which those events have. |
| Bakker v Stewart | Supreme Court of Victoria | Yes | [1980] VR 17 | Australia | Cited to contrast with In re A Solicitor’s Clerk regarding retrospective application of legislation. |
| Wright v Hale | Court of Exchequer | Yes | (1860) 6 H & N 227 | England and Wales | Cited for the principle that procedural enactments are presumed to apply to both pending and future actions. |
| West v Gwynne | Court of Appeal | Yes | [1911] 2 Ch 1 | England and Wales | Cited for the distinction between statutes which have retrospective effect and legislation which prospectively interferes with vested rights. |
| Gustavson Drilling (1964) Ltd v Minister of National Revenue | Supreme Court | Yes | [1977] 1 SCR 271 | Canada | Cited for the principle that legislation is presumed not to prospectively interfere with vested or accrued rights. |
| Wilson v First County Trust Ltd (No 2) | House of Lords | Yes | [2004] 1 AC 816 | England and Wales | Endorsed the aspect of Gustavson Drilling regarding vested rights. |
| Odelola v Secretary for State for the Home Department | House of Lords | Yes | [2009] 1 WLR 1230 | England and Wales | Endorsed Lord Rodger’s observations in Wilson. |
| Secretary of State for Social Security and another v Tunnicliffe | Court of Appeal | Yes | [1991] 2 All ER 712 | England and Wales | Cited for the principle that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. |
| L’Office Chefifien Des Phosphates and another v Yamashita-Shinnihon Steamship Co Ltd | House of Lords | Yes | [1994] 1 AC 486 | England and Wales | Cited for the doubts on the reliability of generalised presumptions and maxims in determining legislative intent. |
| Project Blue Sky Inc v Australian Broadcasting Authority | High Court of Australia | Yes | [1998] HCA 28 | Australia | Cited for the contemporary approach to the determination of parliamentary intention. |
| Attorney-General of New South Wales v World Best Holdings Ltd | New South Wales Court of Appeal | Yes | [2005] NSWCA 261 | Australia | Cited for the rejection of a formulaic application of the presumption against retrospectivity. |
| Dorsey James Michael v World Sport Group Pte Ltd | Court of Appeal | Yes | [2013] 3 SLR 354 | Singapore | Cited for the principle that the purposive approach takes precedence over all common law rules of statutory interpretation. |
| BFC Development LLP v Comptroller of Property Tax | Court of Appeal | Yes | [2014] 2 SLR 462 | Singapore | Cited for the principle that the purposive approach takes precedence over all common law rules of statutory interpretation. |
| Public Prosecutor v Low Kok Heng | High Court | Yes | [2007] 4 SLR(R) 183 | Singapore | Cited for the principle that common law rules of statutory interpretation may be relevant to confirm the court’s understanding of the purpose of the statute in question. |
13. Applicable Rules
| Rule Name |
|---|
| O 98 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Banking Act (Cap 19, 2008 Rev Ed) | Singapore |
| Income Tax Act (Cap 134, 2008 Rev Ed) | Singapore |
| s 105J of the Income Tax Act | Singapore |
| s 105D of the Income Tax Act | Singapore |
| s 23(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) | Singapore |
| s 16(1) of the Interpretation Act | Singapore |
| s 9A(1) of the Interpretation Act | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Exchange of information
- Double taxation
- Banking secrecy
- Foreseeable relevance
- Tax examination
- Letter of Request
- Competent authority
- Tax treaty
- Prescribed arrangement
- Tax position
15.2 Keywords
- Tax
- Exchange of Information
- Singapore
- Japan
- Double Taxation
- Banking Act
- Income Tax Act
16. Subjects
- Taxation
- Exchange of Information
- International Law
- Statutory Interpretation
17. Areas of Law
- Tax Law
- International Tax Law
- Statutory Interpretation
- Banking Law
- Exchange of Information