ABU v Comptroller of Income Tax [2015] SGCA 4

The Court of Appeal in ABU v Comptroller of Income Tax considered the parameters of a request for information under a double taxation agreement, including whether the court must probe into the intricacies of the request for information and the temporal scope of the information sought. The court found that the request here from the Japanese tax authorities met the requirements for such a request and granted the application of the Comptroller of Income Tax for an order to allow the release of the information sought.

Facts

The Comptroller of Income Tax (the “Comptroller”) sought certain banking information relating to the appellant, a Japanese national, further to a request put forward by the National Tax Agency of Japan (the “JNTA”) under the Agreement between the Government of the Republic of Singapore and the Government of Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the “Treaty”).

The JNTA sought the production of bank statements (the “Request”) for certain accounts held by the appellant, his son and their related entities with a specific bank (the “Bank”). The request sought to determine whether the appellant had failed to declare distributions received from foreign securities investment funds which he and his family had invested in. The JNTA had found documents during the appellant’s tax examination in Japan suggesting that he had not done so. The appellant was subject to income tax on his worldwide income under Japanese law.

The Comptroller applied to the court for an order to compel the Bank to produce the statements as required under the Income Tax Act (the “Act”) and the appellant opposed this application, arguing that the Request was not valid, and that the Act did not allow for the request of information from periods before the enactment of the Treaty.

Court of Appeal findings

The appellant did not contend that the making of an order for the production of the bank statements would be contrary to the public interest. The issue was therefore whether the making of such an order was justified in the circumstances of the case.

It was contended on behalf of the appellant that the information sought could not have been obtained under Japanese law, that the JNTA had failed to pursue all available means to obtain the bank statements in Japan before making the request, and that the request was not relevant as the JNTA had concluded its tax examination of the appellant. The court however noted that the Request met the requirements for requests for information by foreign tax authorities as stipulated in the Act, and each of the appellant’s contentions would in effect require the court going behind the JNTA’s statements in the Request. The High Court had held that the justification for a request was to be determined on the face of the request and whether it evidently complied with such requirements. The Court of Appeal agreed that the bona fides of a foreign authority’s request for information pursuant to a treaty should be assessed on face value.

The next contention was whether the Treaty was retrospective as the information sought by the JNTA predated its coming into force. The court found that the purposive approach to statutory interpretation as advocated by the Interpretation Act be applied to determine questions pertaining to the temporal application of the legislation. The court stated that whether legislation has retrospective application depends on the intention of Parliament, and the Court of Appeal found that Parliament had in fact intended to permit the exchange of information relating to any period both before and after the date where the Treaty was given effect. The Court of Appeal found that the present request could only be made after the Treaty had been given effect as a prescribed arrangement, but once made, the request could relate to information pertaining to an earlier period. The temporal scope of information which can be exchanged under the exchange of information regime under the Act is unlimited save for where a contrary provision is made under the relevant tax treaty. 

Judgment 

The Court of Appeal allowed the Comptroller’s application, finding that the requirements relating to the JNTA’s Request as set out in the Act had been fulfilled.