← Κύπρος

clr/1976/1976_3_303.pdf

~ . 1976 Oct. 9 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION LOIZOS XYDIAS, Applicant, and * THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND ANOTHER, Respondents. (Case No. 154/72). Constitutional Law—Constitutionality of legislation—Judicial control of—Principles applicable—Taxation Laws—Attacked as infringing theprinciple of equality—The legislativediscretion is permitted a great latitude in view of the complexity of fiscal adjustment. Constitutional Law—Taxes, duties or rates—Article 24.4 of the Constitution—Mere fact that the duty payable by the tax payer is higher than the net profit made by himfrom the business in connection with which the duty ispaid does not render the legislative enactment imposing it of a destructive nature and assuch contrary to the said Article 24.4—Bye-Law 163(l)(

  1. a)of the Villages(Administration and Improvement) (Aradippou) Bye-Laws, 1951 (asamended in 1971) not contrary to the said Article 24.4 or to the Villages(Administration andImprovement) Law, Cap. 243or to any other Law. Equality—Principle of equality—Meaning of—Article 28. 1 of the Constitution—Entertainment duty—Fact that such duty is collected by other Improvement Boards by payment of lump sum and by respondent Board by payment of a specified amount for each ticket does not infringe the principle of equality. Villages (Administration and Improvement) Law, Cap. 243—Constitutionality of Bye-Laws made thereunder. The applicant is a cinema and theatre enterpriser who is running in partnership with others two cinemas at Aradippou village. Following the amendment in 1971, of bye-law 163* of the See the new bye-law 163at pp. 308-309 post. 303 Loizos XYDIAS v. REPUBLIC (MINISTER OF INTERIOR AND ANOTHER) Oct.9 Loizos XYDIAS V. REPUBLIC (MINISTER OF INTERIOR ANDANOTHER) Villages (Administration and Improvement) (Aradippou) Byelaws 1951,respondent 2(the DistrictOfficer Larnaca)imposed a duty on cinema and theatre performances performed by applicant by affixing a stamp, of the value provided bythe new byelaw 163,on eachticket sold by him. 5 The applicant applied to respondent 2to reviseand reviewthe imposition ofthenewdutyandallowhimtocontinuepayalump sum of £ 10per month. Respondent 2 turned down his application on the ground that the relevant bye-laws do not permit the collection of a lump sum as entertainment duty. 10 Hence the present recourse. Counsel for the applicant contended: (
  2. a)That the new bye-law 163which provides for imposition of duty of about 10%on the amount collected by the applicant as admission fees, is contrary to Article 15 24.4 of the Constitution which provides that no tax duty or rateof anykind whatsoever other than customs duties shall be of a destructive or prohibitive nature. In this connection counsel alleged that the Improvement Board collects more duty than thenetprofits of 20 the applicant from his business. (
  3. b)That the new bye-law 163 in inconsistent with the enabling section 24

(1)of the Villages (Administration and Improvement) Law, Cap. 243, the inconsistency being the discrimination and the unreasonable amount 25 which renders the taxes or dues destructive for the business of the applicant. (c) That section 22of Cap. 243,asamendedby Law31/69, and the new bye-law 163,are unconstitutional because they create unfavourable discrimination as regards the 30 applicant and other cinema owners in other Improvement Boards such as the Improvement Board of Ayios Dhometios wherethecinema ownerspayafixedsumof £ 10per month as entertainment duty. Held,
(1)that the mere fact that the duty payable by the tax 35 payerishigher than thenetprofit madebyhimfrom thebusiness in connection with which the tax is paid, does not render the legislative enactment imposing such tax of a destructive nature, 304 and that in the present case it cannot be said that an amount of 10% imposed by the Improvement Board as entertainment duty on the admission fees collected by the applicant is an exhorbitant amount so as to render the new bye-law 163inconsistent with the provisions of Cap. 243, or any other Law. 10 15 ,
(2)(After stating the principles governing the question of constitutionality of a statuteand the question of "equality" and "discrimination" videpp.312-313post) that the fact that this kind of duty is collected by other Improvement Boards by the payment of a lump sum and not by affixing stamps on each ticket does not infringe the principle of equality; the principle of equality entails the equal or similar treatment of all those who are found to be in the same situation and it is not contravened by regulating differently matters which are different from each other (see Republic v. Arakian and Others
(1972)3 C.L.R. 294). Application dismissed. 20 Cases referred to: Boardfor Registration of Architects and CivilEngineers v. Kyriakides
(1966)3 C.L.R. 640 at p. 654; Matsis v. The Republic
(1969)3 C.L.R. 245 at p. 259; Mikrommatis and The Republic, 2 R.S.C.C. 125; Republic v. Arakian and Others
(1972)3 C.L.R. 294 at p. 299. 25 30 Recourse. Recourse against the refusal of the respondent to revise and review the imposition of duty on cinema and treatre performances. A. E. Georghiades, for the applicant. CI. Antoniades, Counsel of the Republic, for the respondents. C. Varda (Mrs.), for the Improvement Board of AradippouCur. adv. vult. The following judgment was delivered b y : - 35 MALACHTOS, J.: The Improvement Board of Aradippou is a Board established under the provisions of the Villages (Administration and Improvement) Law, Cap. 243, which came into force on the 2nd day of June, 1950. In exercise of the powers vested in them by section 24 of this Law, the said Improvement Board, made bye-laws, which were published on 18/4/51 in 305 1976 Oct. 9 Loizos XYDIAS v. REPUBLIC (MINISTER OF INTERIOR AND ANOTHER) 1976 Oct.9 Loizos XYDIAS v. REPUBLIC (MINISTER OF INTERIOR ANDANOTHER) Supplement No. 3to the Cyprus Gazette under Not. 189. Byelaw 2 provides that the Villages (Administration and Improvement) (Pedhoulas) Bye-Laws, 1951, published in Supplement No. 3to the Gazette of the 14th March, 1951,(hereinafter called "the model bye-laws") shall— 5 (
  1. a)be deemed to be bye-laws made by the Improvement Board of Aradippou and to be incorporated herein, and (
  2. b)apply to the improvement area of Aradippou: Provided that for the word "Pedhoulas" and for the word 10 "Nicosia" wherever they occur in the model bye-laws the word "Aradippou" and the word "Larnaca" shall be substituted respectively. The model bye-laws weremade by the Improvement Board of Pedhoulas by virtue of section 24(I)(
  3. b)of the Law which provides that a Board may, from time to time, make bye-laws not inconsistent with the provisions of this or any other Law in force for the time being for any of the following purposes, that is to say:(
  4. a)(
  5. b)to enable or assist the Board to carry out any of the provisions of section 22and to provide for the payment of any rates, fees, rents, tolls or charges in connection therewith. In this section 22 of the law the powers of the Board are enumerated under subsections (
  6. a)to (m). In particular sub-section (
  7. k)reads as follows: " (k)to grant, within the improvement area, licences and permits, and, subject to the provisions of this Law, attach to such licences or permits such terms and conditions as to the Board may seem necessary or desirable and suspend or revoke such licences and permits whenever the Board on good cause shown considers it advisable so to do". · Bye-laws 162 and 163 of the said model bye-laws read as follows: " 162.—(I) Within the improvement area no theatre, build-' -*3 - ing, tent or place shall be used for the performance of any306 15 20 25 30 5 stage play or cinematograph exhibition, for dancing, for any entertainment to which the public is admitted or for any public meeting without a licencefirstobtained therefor from the Board or the person authorized by the Board in that behalf. 1976 Oct. 9 LOIZOS XVDIAS V. REPUBLIC (MINISTER
(2)Such licence may be granted either for a single performance, cinematograph exhibition, dance, entertainment or public meeting or for any period not'exceeding one month. -" 10 15 Q) Any licence granted under this bye-law shall be granted to the owner,lesseeor occupier ofthepremisesand shall be in such form as the Board may from time to time .approve. 163.—
(1)The following fees shall be paid by every person obtaining a licence under this Part of these bye-laws, that is to say:(
  1. a)For a period of onemonth a fee, to bedetermined in each casebythe Board, not exceeding £6; 20 (
  2. b)For a period of one week a fee, to be determined in each caseby the Board, not exceeding £3; (
  3. c)For a single performance, cinematograph exhibition, dance, entertainment or public meeting a fee, to be determined in each case by the Board, not exceeding £2. 25
(2)Every such fee shall be paid to the person authorized by the Board in that behalf". It is clear from the above that the duty imposed on all payments made for admission to any publicentertainment byevery person obtaining a licence under the above bye-laws was paid 30 periodically either monthly or weekly or for a single performance. By section 6 of Law 31/69 section 22 of the Basic Law, Cap. 243, was amended by the addition after paragraph (k) thereof, of a new paragraph (ka). This paragraph which is identical to 35 section 124
(2)(n)(i), (ii)(iii) and (
  1. iv)of the Municipal Corporations Law, Cap. 240, reads as follows: " (ka)(
  2. i)to impose a duty on all paymentsmadefor admission to any public entertainment; 307 O F INTERIOR A N D ANOTHER) 1976 Oct. 9 Loizos XYDIAS V. REPUBLIC (MINISTER O F INTERIOR (
  3. ii)to provide that no person shall be admitted for pay­ ment t o any public entertainment except with a ticket stamped or marked in such manner as to denote that the duty has been paid; (iii) to prescribe the manner in which the duty shall be collected and paid; 5 AND ANOTHER) (
  4. iv)to exempt from the payment of the duty or remit the whole or any part of the duty in the case of any public entertainment the takings whereof either wholly or in part are devoted to philanthropic, educational or charitable purposes". 10 In 1971 the Improvement Board of Aradippou amended the existing bye-laws and as a result bye-law 163 was repealed and reenacted. The new bye-law, and in particular, bye-law 163(l)(a), (
  5. b)and (
  6. c)reads as follows: " 163.
(1)(σ) To Συμβουλίου 0ά έπιβάλλη τέλος (ευ τοις ΙφεΕής καλούμευου 'τέλος θεάματος') έττί δλωυ τώυ ττληρωμώυ τώυ γευομέυωυ δι' εισόδου είς οίουδήποτε θεάτρου, κινηματο­ γράφου ή κτίριου, τόπον ή σκηυήυ χρησιμοποιουμέυηυ διά τήν διεΕαγωγήυ οίασδήποτε θεατρικής παραστάσεως ή δια κινηματογραφικήυ προβολήυ ή δια χορόυ ή οίαυδήποτε δημο­ σίου ψυχαγωγίαυ ή δημοσίου συγκέντρωση;. (β) Τό τέλος θεάματος θα καταβάλλεται είς τόν Γραμμα­ τέα τοΰ Συμβουλίου Οπό τοΰ Διευθυντού ως ακολούθως: 15 20 25 (
  1. i)ΔΓ έκαστου είσιτήριου, δι' ευ άτομου, τοΰ οποίου ή άΕία 6έυ Οπερβαίυει τ α 50 μίλς, 5 μίλς. (
  2. ii)Δι 1 έκαστου είσιτήριου, δι1 ευ άτομου, τοΰ οποίου ή άϋία υπερβαίνει τ ά 50 μίλς άλλα δέυ Οπερβαίυει τα 100 μίλς, 10 μίλς. 30 (iii) Δι' έκαστου είσιτήριου, δι* ευ άτομου, τοΰ οποίου ή άΕία υπερβαίνει τ ά 100 μϊλς άλλα δέν Οπερβαίυει τ ά 150 μίλς, 15 μίλς. (
  3. iv)ΔΓ έκαστου είσιτήριου, δΓ ευ άτομου, τοΰ οποίου ή άΕία υπερβαίνει τ ά 150 μίλς, 25 μίλς. ( γ ) Τό τέλος θεάματος Θά καταβάλλεται κατόπιυ έπικολλήσεως ενσήμου έπϊ τώυ είσητηρίωυ είσόδου π ρ ο της π ω λ ή - 308 35 5 10 σεώςτων,τάόποια 6 Διευθυυτήςθάπρομηθεύεται παράτοΰ Συμβουλίου." 1976 Oct. 9 ("163.(l)(
  4. a)The Board shall impose duty (hereinafter referred to as 'entertainmentduty') on all payments made for admission in any theatre, cinema or building, place or stage used for the carrying out of any theatrical perfor­ mance or cinematographicprojection or for dancing, or for any public entertainment or public meeting. LOizos XYDIAS (
  5. b)Theentertainment duty shall be paid to the Secretary of the Board by the manager as follows:(
  6. i)Foreachticket,for oneperson,of which thevalue does not exceed 50 mils, 5mils. 15 (
  7. ii)Foreachticket,for oneperson, of which thevalue exceeds 50 mils, but does not exceed 100 mils; 10 mils. (iii) Foreachticket,for oneperson, of which thevalue exceeds 100 mils but does not exceed 150 mils, 15 mils. 20 (
  8. iv)Foreachticket,for oneperson,of which thevalue exceeds 150 mils, 25 mils. (
  9. c)The entertainmentduty should be paid by affixing stamp on the admission tickets, before their sale, which the Manager should be supplied by the Board"). 25 These amended bye-laws were published in Supplement No.3 to the Cyprus Gazetteof 3/12/71 under Not.No.963. The applicant in this recourse, who is a cinema and theatre enterpriser, and is running in partnership with others two cine­ mas at Aradippou village, on 21/2/72 applied to the District 30 Officer of Larnaca, who is the Chairman of the Improvement Board of Aradippou, toreviseandreviewtheimposition of duty on cinema and theatre performances, which was imposed as a result of thenew Bye-Law 163andallowhimtopay alumpsum of £10.-per month instead of affixing stamps on each ticket 35 sold. By letter dated 6th April, 1972, the District Officer replied as follows: 309 v. REPUBLIC (MINISTER O F INTERIOR AND ANOTHER) 1976 ^_9 LOIZOS XYDIAS v. REPUBLIC (MINISTER O F INTERIOR AND ANOTHER) " I have the honour to refer to your application of the 21st February, 1972, by which you apply that the Improvement Board of Aradippou should discharge you from payment of entertainment duty for your cinemas by the affixing of stamps on the tickets sold, and instead to pay to the Board 5 a monthly fee of £ 10.-, and to inform you that the Board has considered your application, but cannot accede to it, as the bye-laws of the Board do not permit the collection of a lump sum as entertainment duty but by the affixing of stamps on the sold tickets". 10 As a result the applicant filed the present recourse claiming a declaration of the Court that the decision of the District Officer of Larnaca dated 6th April, 1972, is void and of no legal effect whatsoever. The grounds which appear on the face of the application and 15 on which the application is based, read, verbatim, as follows: (
  10. a)The said decision is unconstitutional as it vitiates and/ or contravenes fundamental articles of the Republic. (
  11. b)The Rules made by the Improvement Board of Aradippou as regards the imposition of duty and/or dues 20 and/or fees and charges on Cinema and Theatrical performances are unconstitutional, arbitrary and most unfair and unreasonable as there is unfavourable discrimination with other Rules made in respect of imposition of such duty, and/or dues and/or fees and charges 25 by other Improvement Boards, namely the Improvement Board of Ayios Dhometios etc., which Boards impose similar duty, and/or dues and/or fees and charges by fair, just and reasonable monthly payment, i. e. £ 10-monthly for areas with much more greater 30 population in comparison with the inhabitants of Aradippou. (
  12. c)The right of imposition of such duty, and/or dues and/or fees and charges by way of stamps or otherwise on every Theatrical and Cinema performances in only 35 given to the Municipal Corporations, pursuant to s. 124(n)(
  13. i)of the Municipal Corporations Law Cap. 240. This Law does not make any provision for Improvement Boards and is therefore only applicable to Towns and as a matter of fact only the Town Municipalities 40 310 impose such duty, and/or dues and/or fees and charges until now and the respondents are among the first Improvement Boards who made such bye-laws and/or regulations. 5 (
  14. d)The said decision is inequitable and against the principles of natural Law, the Common Law and is therefore oppressive. As far as 1could make out from the above grounds as well as from the arguments put forward by counsel for applicant, his 10 complaint is that the new bye-law 163which provides for imposition of duty of about 10% on the amount collected by the applicant as admission fees, is contrary to Article 24.4 of the Constitution which provides that no tax, duty or rate of any kind whatsoever other than customs duties shall be of a destru15 ctive or prohibitive nature. In the present case, according always to the allegations of counsel for applicant, the Improvement Board collectsmore duty than the net profits of the applicant from his business. Counsel for applicant further argued that the power to make 20 bye-laws is given to the Board by section 24
(1)of The Villages (Administration and Improvement) Law, Cap. 243, which provides that any bye-laws made under this section should not be inconsistent with the provisions of this or any other law. He submitted that the new bye-law 163 is inconsistent with this 25 Law, the inconsistency being, as he put it, the discrimination and the unreasonable amount which renders the taxes or dues destructive for the business of the applicant. He also argued that section 22 of the Law, Cap. 243, as amended in 1971and thenew bye-law 163, which wasmade there30 under, are unconstitutional because they create unfavourable discrimination as regards the applicant and other cinema owners in other Improvement Boards such as the Improvement Board of Ayios Dhometios where the cinema owners pay as entertainment duty a fixed amount of £ 1 0 - per month. 35 I have considered the arguments of counsel for applicant, as far as I have been able to apprehend them, and I must say from the outset that I find no merit in them. The mere fact that the duty payable by the tax payer is higher than the net profit made by him from the business in connection with which the tax is 40 paid, does not render the legislative enactment imposing such tax of a destructive nature. 311 1976 Oct.9 LoizosXYDIAS V. REPUBLIC (MINISTER OF INTERIOR AND ANOTHER) 1976 Oct.9 Loizos XYDIAS V. REPUBLIC (MINISTER OF INTERIOR ANDANOTHER) In the case in hand it cannot be said that an amount of 10% imposed by the Improvement Board as entertainment duty on the admission fee collected by the applicant is an exhorbitant amount so as to render the new bye-law 163 inconsistent with the provisions of the Law, Cap. 243, or any other law. 5 In considering the question of constitutionality of a statute we have to be guided by certain well established principles governing the exercise ofjudicial control of legislative enactments. A rule of precautionary nature isthat no act or legislation will be declared void except in a very clear case or unless the act is 10 unconstitutional beyond all reasonable doubt. (The Board for Registration of Architects and Civil Engineers v. Kyriakides
(1966)3 C.L.R. 640 at page 654). When taxation laws are attacked on the ground that they infringe the doctrine of equality the legislative discretion is 15 permitted by the judiciary a great latitude in view of the complexity of fiscal adjustment; in other words, the power of the state to classify for purposes of taxation is of wide range and flexibility. (Matsis v. The Republic
(1969)3 C.L.R. 245 at page 259). The question of "discrimination" and "equality before the law" was considered in a number of decisions of this Court starting from the case of Mikrommatis and The Republic 2 R.S.C.C. 125. In the recent case of The Republic v. Nishian Arakian and Others
(1972)3 C.L.R. 294, this Court in its appel- 25 late jurisdiction reviewed the authorities on this point and repeated the principle enunciated in Mikrommatis case "that equality before the law in paragraph 1of Article 28 of the Constitution does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and 30 does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things". At page 299 of this report this Court adopted the principles enunciated in the following three cases of the Greek Council of State, namely, Case No. 1273/65 where it was stated that the principle of equality 35 entails the equal or similar treatment of all those who are found to be in the same situation. In Case No. 1247/67 it was held that the principle of equality safeguarded by Article 3 of the Greek Constitution of 1952—which corresponds to Article 28.1 of our Constitution—excludes only the not making of 40 differentiations which are arbitrary and totally unjustifiable. In 312 20 Case No. 2063/68 it was held that the principle of equality was not contravened by regulating differently matters which are different from each other. 10 The fact that this kind of duty is collected by other Improvement Boards by the payment of a lump sum and not by affixing stamps on each ticket does not infringe the principle of equality. As it has been stated in the Arakian case, supra, the principle of equality entails the equal or similar treatment of all those who are found to be in the same situation, and it is not contravened by regulating differently matters which are different from each other. For the reasons stated above this recourse fails. There will be no order as to costs. Application dismissed. No order as to costs. 15 313 1976 Oct. 9 Loizos XYDIAS .,v. REPUBLIC (MINISTER OF INTERIOR ANDANOTHER)

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.