Supreme Court dismisses tax recourse as pre-independence assessments are non-executory and beyond its jurisdiction.

[*674] 1965 June 19

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Nicos Kolocassides,

Applicant,

and

The Republic of Cyprus, through

the Minister of Finance,

Respondent.

(Case No.117/63).

Taxes - Income Tax - Assessments - Recourse against the assessment and collection of income tax due by Applicant in respect of the years of assessment 1953 and 1954 - Court has no competence to entertain the recourse to the extent to which it relates to such assessments as it cannot, under Article 146 of the Constitution, enter upon the validity of administrative acts or decisions which took place before Independence - Likewise, Court cannot interfere with the process for the collection of the tax due in the present case because such act is not itself an executory act and cannot, therefore, be the subject of a recourse - Moreover whatever done in the course of collecting the tax due by Applicant before Independence is not within the competence of this Court - Also the attempt made to effect such collection in 1963 by means of a court summons, is not a matter within the competence of this Court for the additional reason that it is a judicial matter - Lastly there is no proper reason which could lead the Court to the Conclusion that the intervention was warranted, even if it had competence to do so, because the assessments in question were and they remain final.

Fr. Markides, for the Applicant.

L. Loucaides, Counsel of the Republic, for the Respondent.

JUDGMENT

In this Case Applicant complains both against the assessment and, also, the collection of income tax due by him in respect of the years of assessment 1953 and 1954.[*675]

The relevant facts are found by me to be as follows:

On the 31st October, 1959, additional assessments were raised on Applicant under the then in force Income Tax Law, Cap. 323, in respect of the years of assessment 1 953 and 1954. These assessments were forwarded to Applicant by registered post on the 3rd November, 1959, but it seems that Applicant, having not collected the relevant Post Office notice-slips, never actually received the assessments in question. Nevertheless, he is deemed to have received, in November, 1 959, due notice thereof, because of the provisions of section 68 of Cap. 323·

In any case, later on, in March or April, 1960, such assessments were handed over to Applicant’s brother, who acted as his counsel; it was then agreed that a payment of £500.- was to be made by Applicant towards his liability arising in relation to such assessments (the total tax due being approximately £1650) and that Respondent was not to press for the immediate collection of the balance but would re-examine the matter of such assessments on submission by the Applicant of audited accounts.

It appears that such audited accounts were never submitted and eventually on the 3rd July, 1963, the accountant who had been entrusted by Applicant with their preparation wrote to the income tax authorities confirming that he had ceased acting for Applicant because he had not supplied to him any information for the purpose of preparing the relevant accounts.

On the 27th April, 1963, a summons was issued against Applicant calling upon him to appear before the[*676]

District Court of Nicosia in relation to the collection of the tax due by him under the assessments in question.

This recourse was filed on the 3rd July, 1963·

Much argument has centered around the question as to whether or not the Respondent has in fact agreed in 1 960 to accept, out of time, objections against the assessments made on the 31st October, 1959, and, if so, whether or not, such objections having not been formally determined at any time thereafter, it was proper for the machinery of collection to have been set in motion in relation to such assessments.

In the light of all relevant material before me I have come to the

conclusion that no question arises of formal objections, under section 42 of Cap. 323, having been filed and accepted out-of-time. What happened is that the income tax authorities agreed to reconsider the assessments concerned on production of proper accounts. This was quite a proper view to take because proper administration requires that responsible authorities should always be ready to reconsider their decisions when the occasion and need for doing so duly arises.

As the Applicant failed, in spite of a long time having elapsed, to place before Respondent the necessary material to enable a reconsideration to be made of the assessments in question, Respondent appears to have taken the view, and quite rightly so, that no further decision was required in the matter, no question of determining anything further arose, and the said assessments stood final, as they were indeed so since October 1 959 when first made. [*677]

To the extent to which this recourse relates to the said two assessments themselves, this Court has no competence to entertain it as it cannot under Article 146 enter upon the validity of administrative acts or decisions which took place before the 1 6th August, 1960. (Mustafa and The Republic, 1 R.S.C.C. p. 44).

To the extent to which this recourse is aimed at the steps taken for the collection of the tax due under the said assessments, it is clear, as it appears from exhibit 7 in this Case, which is a notice given to Applicant for the purpose by the Inland Revenue Office on the 26th April, 1960, that the

decision to effect collection was taken in 1960 and before the 1 6th August, 1960. The aforementioned issue of the court summons in April, 1963, is only a further attempt at collecting the tax payable by Applicant.

I cannot interfere with the above process for the collection of the tax due in this Case, for the following reasons:-

An administrative act (and decision also) is only amenable within a competence, such as of this Court under Article 146if it is executory (εκτελεστή) in other words it must be an act by means of which the "will" of the administrative organ concerned has been made known in a given matter, an act which is aimed at producing a legal situation concerning the citizen affected and which entails its execution by administrative means (see Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959, PP. 236-237). [*678]

I am quite aware that in Greece this attribute of an act, which may be the subject of a recourse for annulment, is specifically stated in the relevant legislation (section 46 of Law 3713 as codified in 1961) but in my opinion such express provision was only intended to reaffirm a basic requirement of administrative law in relation to the notion of proceedings for annulment and, therefore, such requirement has to be treated as included by implication, because of the very nature of things, in our own Article 146, though it is not expressly mentioned.

An act made in the course of the collection of income tax due, being an act made in execution of the assessment for such income tax, is not itself an executory act - as the assessment is - and cannot, therefore, be the subject of a recourse; it is well settled in administrative law that acts of execution are not executory acts (see Conclusions, supra, p. 240).

Moreover, whatever may have been done in the course of collecting the tax due by Applicant, before the 16th August, 1960, is not within the competence of this Court, in any case; also the attempt made to effect such collection in 1963, by means of the aforesaid court summons, is not a matter within the competence of this Court for the additional reason that it is a judicial matter (see Gavris and The Republic, 1 R.S.C.C. p. 88).

Lastly, there is no proper reason which could lead me to the conclusion that intervention by this Court was warranted, even if it had a competence to do so, because I have already held that the assessments in question were [*679] final and they remain final and, therefore, the only ground argued by counsel for Applicant in support of the contention that collection cannot as yet take place, to the effect that the assessments are not final, does not hold good.

For all the above reasons this recourse fails and Applicant is ordered to pay £15 costs to Respondent.

Recourse dismissed.

Applicant to pay £15.-

costs to Respondent.