| 7/2/2012 |
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| Board of Special Commissioners - Cases |
| Case No. 17/66 |
Decided: 19 November, 1966 |
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Presumption of receipt of notice of refusal - article 51, Income Tax Act, now article 29, Income Tax Management Act
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A notice of refusal was delivered at the ordinary residence of appellant's parents with whom he lived. It was handed over to his mother who failed to pass on such notice to appellant who was attending a two-year, full-time study course in Italy. The appeal was lodged immediately he returned to Malta but not within thirty days from the delivery as required by law.
Revenue pleaded that the appeal was null, on the ground that, if properly addressed and sent by registered post, the refusal "is deemed to have been served, in the case of persons resident in Malta, not later than the third day succeeding the day when posted, and in the case of persons not so resident, the day succeeding the day on which the notice would have been received in the ordinary course by post and in proving such service it shall be sufficient to prove that the letter containing the notice was properly addressed and posted."
The Board rejected Revenue's plea of nullity because:
- the presumption quoted above is not tacit, but is preceded by the words "unless the contrary is proved";
- the Court of Appeal had held that the underlying condition of the said provision is that the refusal is to have been effectively brought to the notice of the person addressed;
- the words "persons resident in Malta" as against "ordinarily resident" used in other provisions, indicate that reference is made to the current real residence of the taxpayer;
- the Post Office Act provision that once a letter is delivered at a person's ordinary residence such consignment shall be deemed to be delivered to the addressee, cannot be extended to the Income Tax Act; unlike the Income Tax Act, the Post Office Act did not afford addressee the right to prove the contrary;
- a third party's failure to pass on the letter cannot prejudice appellant's position at law;
- Revenue's submission that it was sufficient for it to prove that the letter had been delivered by registered post at the correct address could not be entertained. Such interpretation would be denying taxpayer the statutory right to prove the contrary. Indeed such proof is essentially required to give rise to a presumption which shifts the onus of proof of delivery or otherwise from Revenue onto taxpayer.
An appeal was entered before the Court from this decision (see case no. 68).
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