Jersey Unreported Judgments

Taxation - application for a special sitting of the Court of Appeal.

[2013]JCA130

Court of Appeal

26 June 2013

	Before     :		Sir Michael Birt, Kt., Bailiff, sitting as a single judge.
Between		Volaw Trust & Corporate Services Limited		First Appellant
		Mr Berge Gerdt Larsen		Second Appellant
And		The Office of the Comptroller of Taxes		Respondent

Application for a special sitting of the Court of Appeal.

Advocate A. D. Hoy for the First Appellant.

Advocate J. Harvey-Hills for the Second Appellant.

Advocate J. D. Kelleher for the Respondent.

JUDGMENT

THE bailiff:

1.        I am sitting as a single judge of the Court of Appeal and have before me an application by the Comptroller of Taxes ("the Comptroller") for a special sitting of the Court of Appeal. I have received written representations from the parties who have agreed that I should deal with the matter on the papers.

2.        The decision against which an appeal is being brought is that of the Royal Court on 16th May 2013. The Court, in a judgment of that date, dismissed the Appellants' appeal against the decision of the Comptroller to serve a notice on the First Appellant ("Volaw") under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 requiring the production by Volaw of certain categories of documents said to be relevant to the tax affairs in Norway of a Norwegian national, the Second Appellant ("Mr Larsen").

3.        On 31st May, Page Commissioner, granted a stay of the order for production of the information subject to certain conditions, including that the Appellants should cooperate with the Comptroller in endeavouring to secure the earliest possible hearing by a single judge of the Court of Appeal of any application which the Comptroller may make for an expedited hearing of the appeals or the setting of a timetable in connection with such appeal. This is the matter that has now come before me.

4.        Notices of Appeal were filed on 3rd June. On 6th June, Advocate Kelleher, on behalf of the Comptroller, wrote to the Greffier of the Court of Appeal applying for a special sitting of the Court of Appeal to take place "in early September 2013". The Appellants agree that the appeal should be heard at the sitting of the Court of Appeal to commence on 23rd September but object to a special sitting in early September.

5.        The Comptroller argues that a hearing in early September is required in order to avoid prejudice to the Norwegian authorities. It is said that this may arise in two respects:-

(i)        The information from Volaw is required to enable the Norwegian Tax Authority (NTA) to consider whether to issue an amended assessment to tax on Mr Larsen.  There is a deadline of ten years for altering previous assessments, although this may be interrupted by the issue of a notice. In relation to the tax year 2003, this means that any amended notice should be issued before the end of 2013. The NTA has said by e-mail that it would prefer to have a hearing take place in early September rather than late September in order to have time to go through the material before the end of the year.

(ii)       Mr Larsen has been subject to criminal prosecution in Norway in relation to his tax affairs. A trial has taken place and a verdict is expected shortly. From the material before me it seems likely that there may be an appeal by Mr Larsen if he is convicted and by the prosecutor if he is acquitted. It is said that any appeal would most likely commence in August 2014. It is further said that the prosecutor needs to have tax assessments made by the NTA by the time of the appeal and he is advised that, because of the volume of documents which must be processed, it will require approximately a year to undertake this assessment.

6.        Apart from the Bailiff and Deputy Bailiff, the Court of Appeal consists of judges who are not resident in the Island. Furthermore, they are not full time Jersey judges and have many outside legal commitments in their respective jurisdictions. For this reason, sittings of the Court of Appeal are fixed well in advance. The Court sits six times a year for up to a week at a time.  The identity of the three judges who will sit is established well in advance so as to ensure availability. There is no suggestion that this appeal would be ready for the July sitting of the Court of Appeal and the next regular sitting is in the week commencing 23rd September.

7.        The Court will fix special sittings when the interests of justice so require. However, given the practicalities of arranging a special sitting, the Court has to be satisfied that there is good reason why it is not sufficient for an appeal to be heard at the next regular sitting.

8.        I am not convinced in this case that such good reason has been shown. The delay between the requested sitting in early September and the regular sitting on 23rd September is 2-3 weeks, depending on exactly when any hearing in early September took place. I accept that it is important that the appeal be heard promptly but I am not satisfied from the evidence before me that there is a real risk of prejudice to the Norwegian Authorities by reason of such a short delay.

9.        The NTA says merely that it would 'prefer' an earlier date because of the need to amend any assessment for 2003 before the end of this year. The prosecution say simply that they require the assessments for the various years for the hearing of any appeal in the criminal case against Mr Larsen (which I accept) and state that they have been advised that it will require 'approximately a year' to undertake these assessments. That is a fairly general assertion and I cannot believe that, given the length of time before any appeal, a delay of some 2-3 weeks will make the difference between the assessments being available and not being available at that time.

10.      I am satisfied, from enquires I have made, there should be ample time for the hearing of the appeal at the sitting beginning on 23rd September. The Comptroller estimates that the appeal will take 2-3 days to argue. At present there is only one other appeal listed and there should be sufficient time for both to be heard.  I direct that this present appeal be listed first so as to commence on Monday 23rd September.

11.      I am comforted in my decision by the fact that the Commissioner, very wisely, made it a condition of granting a stay that Volaw lodge all the relevant documents with its advocates to hold to the order of the Court. It follows that, in the event of the appeal to this Court being dismissed, the documents could be made available to the Norwegian Authorities very promptly.

12.      For these reasons, I do not think that the Comptroller has made out sufficient grounds to justify the step of seeking to arrange a special sitting of the Court of Appeal in early September and I direct that the appeal be listed for the week commencing 23rd September.  As already stated, I accept that it is important that this appeal be heard at that time and it follows that any application by the Appellants for any postponement of the appeal from the regular September sitting is likely to face an uphill struggle.

No Authorities