Constitutional recourse against finalized tax assessments dismissed as out of time and non-executory.

[*112] 1966 January 31

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Antonakis Pappous,

Applicant,

and

The Republic of Cyprus, through:

1, . The Commissioner of Income Tax

2. The Greek Communal Chamber, and/or

3. The Republic, through the Attorney-

General as successor to the Greek

Communal Chamber,

Respondents.

(Case No.154/64).

Revenue - Income Tax - Assessments - Recourse against finalized income tax assessments for the years of assessment 1959-1963 - Refusal of first Respondent to go again into the question of the assessments, after Applicant's objections had been finally determined according to law, not an "act" in the sense of Article 146 of the Constitution - Recourse dismissed, as not being within time under Article 146.3.

Chr. Mitsides, for the Applicant.

G. Tornaritis, for the Respondents.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J.: By this recourse Applicant challenges the validity of five finalized income tax assessments raised against him in respect of the years of assessment 1959, 1960, 1961 , 1962 and 1963.

When this recourse came up before the Court for Mention on the 11th January, 1966, it was fixed for Hearing on the 17th January, 1966, on the issue only of whether or not it is out of time, under Article 146(3) of the Constitution. [*113]

Such course was adopted as such issue has been raised by paragraph 1 of the grounds of law in the Opposition of Respondent No.1.

The relevant facts are as follows:-

The Applicant was originally assessed in respect of the aforementioned years of assessment by assessments raised on divers dates in 1963 and 1964, the last relevant date in this respect being the 17th July, 1964.

Applicant objected against the said assessments and the notices of determination of his objections, by means of which Respondent No.1 finalized the assessments in question, are all dated the 14th September, 1964; it is against these notices that this recourse has been filed (vide the motion for relief in the Application).

On the 21st September, 1964, Applicant wrote to Respondent No.1 , a letter, which is exhibit 1 in this Case, by which he referred to the said notices of the 14th September, 1964 and proceeded to say that he objected against them on the ground that his income, as computed for the years of assessment concerned, was not in accordance with the realities of things and, therefore, the assessments as raised were not proper.

On the 6th November, 1964, Respondent No.1 wrote back to Applicant a letter, which is quoted in paragraph 3 of the facts alleged in the Application, by which Applicant was informed that Respondent No.1 had no power to re-examine his case and that if Applicant felt aggrieved he could take the matter to the Supreme Court of the Republic - as he had already been informed by means of each one of the notices of the 14th September, 1964 [*114]

There can be no dispute that the recourse, having been filed on the 12th December, 1964, is out of time as regards the aforesaid notices of determination of objections dated 14th September, 1964, because it has been filed more than 75 days afterwards.

Counsel for Applicant has alleged, however, that this recourse is within time because it is aimed at the above letter of Respondent No.1, dated the 6th November, 1964, and such act is an "act" in the sense of Article 146.

It is well settled that an act is an "act" in the sense of Article 146(1), only if it is an executory act; (vide Kolocassides and The Republic 1965 6 J.S.C. p.674, 1965 11 J.S.C. p. 1128). In my opinion the letter of the 6th November, 1964, is not of such nature; it is merely a refusal to go again into the question of the assessments made against Applicant, after his objections had been finally determined according to law. It is not an act aimed at producing a legal situation concerning Applicant and entailing its execution by administrative means (vide Conclusions from the Jurisprudence of the Council of State in Greece, 1929-1959 pp. 236-237). It is, therefore, not executory and cannot be made, as such, the subject of a recourse under Article 146.

Furthermore, this recourse is not aimed at all at the aforementioned letter of the 6th November, 1964, itself: All that is stated in the said letter is that Respondent No.1 refused to revert on to the case of Applicant and Applicant by the motion of relief in the Application is not challenging this stand of Respondent N0.1 , as such, but is proceeding directly against the relevant assessments themselves - in respect of which this recourse, as already stated, is clearly out of time. [*115]

Counsel for Applicant has, also, referred me, inter alia, to the dicta in Mikromatis and The Republic (2 R.S.C.C. p.125, at p.129) to the effect that the review and revision of an original assessment must he regarded as a continuation or completion of the process of assessment. But such review and revision came to an end by means of the notices of determination of objections of the 14th September, 1964, and then time began to run against Applicant. In Mikromatis and The Republic (supra) it is stated "....it follows that the relevant date in this Case from which the period prescribed by paragraph 3 of Article 146 of the Constitution must be reckoned, is the date on which the result of the review and revision under section 42 came to the knowledge of the Applicant". And in the present case it is clear that the notices of the 14th September, 1964, came to the knowledge of Applicant at the latest on the 21st September, 1964, when he wrote exhibit 1 in relation to them i.e. more than 75 days before the 12th December, 1964.

In the circumstances this recourse cannot proceed and has to be

dismissed as being out of time, under Article 146(3), the provisions of which have to be enforced in the public interest

(vide Moran and The Republic 1 R.S.C.C. p.10).

Regarding costs it is hereby directed that Applicant shall pay £10 costs to Respondents; previous orders of costs in his favour, of the 25th June, 1965, and 2nd October, 1965, remain unaffected.

Recourse dismissed.

Order for costs as aforesaid.