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clr/1984/1984_3_1454.pdf

(1984)1984 December 19 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS CHRISTOPHIDES, Applicant, v. THE REPUBLIC OF CYPRUS,THROUGH
  1. THE MINISTER OF FINANCE,
  2. THE COMMISSIONER OF INCOME TAX, Respondents. (Case No. 70/81). income tax—Deductible expenditure—Child reveivingfull time edu­ cation abroad—Deduction in respect of—Production of a certifi­ cate of student's registration from the Minister of Education of the Republic not a mereformality but a clear statutory prere­ quisite—First proviso to sub-section 1(ϊϋ) of section 16 of the 5 Income Tax Laws, 1961 to
  3. Under sub-section l(iii) of section 16* of the Income Tax Laws, 1961 to 1979 any individual shall be allowed, in respect of a child receiving full time educationabroad,adeductionequal to the amount expended by him on such child's maintenance and educationbut notexceeding, inany case six hundredpounds; and under the first proviso to the above subsection " n o amount in excess of two hundred pounds shall be deducted unless the child obtains a student's registration by the Minister of Edu­ cation of the Republic". Applicant claimed relief for his two children studying abroad but did not enclose a certificate of student's registration as provided above. The respondent Commissioner turned down the claim for relief and hence this recourse. Section 16(lXui) is quoted at pp. 1458-1459 post. .1454 10 15 3 C.L.R. 5 10 Christophides v. Republic Held, that the requirement for a certificate of student's registration is not a mere formality but is a clear statutory prerequisite, before the Commissioner of Income Tax considers whether an allowance in this respect will be made; that inview of the position as it wasat the time the subjudice decision was taken and the material whichwasbefore the Commissioner of Income Taxwhen hetook the subjudice decision it wasreasonably open to the Commissioner to decide as he did, since no registration was produced to him to prove that applicant's daughter was a student at the material time, that is, 1979;and that, therefore, the recourse must fail. Application dismissed. Recourse. Recourse against the income tax assessment raised on the 15 applicant for the year
  4. Applicant appeared in person. M. Photiou, for the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant by 20 the present recourse challenges the validity of the decision of the respondent Commissioner of Income Tax by which applicant's assessment of income tax for the year 1979 was raised and determined at £387.700 mils. Applicant objected to such assessment on the ground that 25 an amount of£600.—spent byhim for hisdaughter's educational expenses abroad and which was an expenditure deductible underthelaw had not beendeductedfrom hisincome. According to thefacts set out in the opposition applicant in submitting his return of income for 1979 claimed relief for his two children 30 studying abroad but did not enclose with his return a certificate of student's registration by the Minister of Education of the Republic of Cyprus as provided by the first proviso to subsection 1 (in) of section 16 of the Income Tax Laws, 1961 to
  5. Therefore, the respondent Commissioner on assessing 35 applicant for the year 1979 granted relief of £200.—only for each child as provided by the aforesaid proviso. On the 11th November, 1980, applicant called on Mr.A. Zevlaris, Principal 1455 Sawides J. Christophides τ. Republic
(1984)Assessor, Income Tax Office, Limassol, and objected to such assessment. Applicant produced the required certificate from the Ministry of Education only in respect of one of his two daughters, namely Gloria, but failed to produce any such certificate in respect of his second daughter, namely, Maro. 5 As a result of the productionof such certificate, the respondent Commissioner revised his assessment by granting relief of £600.—for applicant'sdaughterGloriaandthenormal deduction of £200.—for applicant's daughter Maro for whom applicant failed to produce any registration certificate from the Ministry 10 of Education. It is thecontention of the applicant that in 1979his daughter Maro was a regular student in the University of Athens from which she graduated in February,
  1. In support of his contentionheproducedcopyof adiplomain law of the Univer- 15 sity of Athens dated 1st April, 1980, awarded to her and copy of a certificate of the same University issued by its Secretariat and dated 19th January, 1980, which reads as follows: "Christofidou Andrea Maro of Nicosia was registered on 20.9.1973 as a first year student of the School of Law 20 (Law Department) under Registration No. 14566 for the academic year 1973/74and is a studentof the4thyear for the academic year 1977-
  2. Thestudy of the Universityisof adurationof four years. The aforesaid person participated in the oral diploma 25 examinations in the periods of June-July, 1978, October -November, 1979, but has not yet completed same. She is entitled to complete her oral diploma examinations in the periods January-February, 1980 and thereafter". It is an undisputed fact that in 1979 applicant's daughter 30 was notattendingthe University regularly but was onlyvisiting Athens for the purpose of participating at the examinations. This is manifested from a written statement produced by the applicantonwhichthedatesofhisdaughter'spresenceinAthens, taken from the entries in her passport, are mentioned, which 35 was checked andinitialled by Mr. Zevlaris. According tosuch statement she had left Cyprus and stayed in Athens on four 1456 3 C.L.R. Christophides τ. Republic Sawides J. occasions in
  3. Thefirstonthe 17th January, 1979, fora stayof32 days,thesecondonthe 18thMarch, 1979,for29days, the third onthe12th June, 1979, for 16daysandthefourthon the 1stOctober, 1979 for 33days, thus making a total of110 5 days stay abroad. Itiscontendedbytheapplicantthatfor hisdaughter's attend­ ance atthe University fortheabovepurposehespent asumof £600.—(of which £330.—in respect of air tickets, travelling and other expenses) which he claims to deduct from his earned 10 income. He further contended that the requirement of a student's registration certificate from the Ministry of Education was introducedin May, 1979, by Law40/79 and that till then the Commissioner of IncomeTaxwassatisfied with theprodu­ ction of a certificate of studenship issued by the University. 15 Hefinallycontendedthattherequirementfor acertificatefromthe Ministryof Educationisamereformality andthatinany event hadheaskedfor sucha certificate itwould nothavebeendenied tohim,asmentionedinaletterfrom theMinistryofEducation dated the 3rdMay, 1982, which heproduced and which reads 20 as follows: 25 30 "It is hereby certified that during the academicyear 1977— -1978 a certificate was granted to Christofidou Andrea Maro that she was registered in the students' register of the Ministry of Education under No. 1956,for purposes of foreign exchange allowance. Duringthesaid academic year the student was attending lessons of the 4th year of the Law School of the University of Athens. Ifthe student had submitted applications to the Ministry of Education,a permitfor foreign exchange would have been granted tohertoparticipate tothe diploma examinations up toFebruary, 1980, when shewasawarded her diploma according to the certificates of the University of Athens submitted today". Applicant further inhis written address in reply to that of 35 counsel for the respondents, contended that students of the University of Athens are not required to attend classes or lectures andin consequence it makes nodifference whether a student stays inAthens continuously orwhether hegoesthere casuallyduringtheexaminationperiodstotakehisexaminations. 1457 Sawidcs J. Christophides v. Republic
(1984)Counsel for the respondents on the other hand submitted that the requirement for a certificate of registration is not a mereformality but that it isaprerequisite under thelaw before the Commissioner of Income Tax will consider whether an allowancefor suchexpenditureistobemade. Though,counsel 5 added, when applicant's assessment was under consideration, and applicant wasrepeatedly asked to produce such certificate, he failed to do so and as a result the Commissioner of Income Taxhad to determine theobjection on the basisof thematerial before him. 10 It was further the contention of counsel for respondents that applicant'sdaughter wasnot,inanyevent,in 1979receiving "full time"education in a university ascontemplated bysection 16of the Income Tax Laws, 1961-1979 as amended bysection 8 of Law 40/79. 15 The material part of section 8of Law 40/79 wherebysection 16 of the principal law was deleted and substituted by new section 16 reads as follows: "16.
(1)Subject to the provisions of subsections
(2)and
(3)of section 20, any individual who proves to the satis- 20 faction of the Commissioner that he has or had a child or children living at any time during the year of assessment, shall be allowed when his chargeable income is being ascertained— (
  1. i)(
  2. ii)(iii) inrespectof achildovertheageofsixteeen and under 25 the age of twenty-eight years at the commencement of theyearof assessment, receivingfull time education in a school, college, university or other recognised educational institution outside Cyprus——-— a decuction equal to the amount expended by such 30 individual on such child's maintenance and education but not exceeding in any case six hundred pounds: Provided that no amount in excessof two hundred pounds shall be deducted unless the child obtains a 1458 3 C.L.R. Christophides v. Republic Sawides J. student's registration by the Minister of Education of the Republic: Provided further that the tax so saved shall not exceed the amount of three hundred pounds". 5 It is an undisputed fact in the present case that when the assessment of applicant's income was being considered and before therespondent Commissioner of Income Taxhad finally determined applicant's objection and even up to thefilingof thepresentrecoursetheapplicant had not produced a student's 10 registration by the Minister of Education as contemplated by the Law. In fact, from the material before me it appears that no such certificate was ever issued. The requirement for such certificate is not a mere formality as contended by applicant, but is a clear statutory prerequisite, before the Commissioner 15 of Income Tax considers whether an allowance in this respect will be made. Inthecourseofthehearingasalreadymentionedtheapplicant sought to relyon a letterfrom the Ministry of Education dated the 3rd May, 1982,to the effect that had he applied for regi20 stration ofhisdaughter inthestudents' register of the Ministry of Education, such registration would have been effected in the light of the certificate of the University of Athens which was submitted on that day. Whatemanatesfrom thisletteristhattheapplicant'sdaughter 25 was registered as a student with the Ministry of Education up to and including the academic year 1977-1978 but after suchdatehernamewasnotre-registered againfor anyacademic year after 1978. It is also mentioned that she was attending the 4th year of the Law School of the University of Athens in 30 theyear 1977-1978andaccordingtothecertificateoftheUniversity of Athens, which was also produced, the course was only afour years'courseendingduringtheacademicyear 1977-1978. In view of the position as it was at the time the subjudice decision wastaken andthe material whichwasbeforetheCom35 missioner of IncomeTax whenhe took thesubjudice decision, I find that it was reasonably open to the Commissioner to decide as he did, since no registration wasproduced to him to prove that applicant's daughter, Maro, was a student at the 4459 Sawides J. Christophides v. RcpubJc
(1984)material time, that is, 1979. The recourse, therefore, fails on this issue. With regard to the other point raised by counsel, that is, whether applicant's daughter should be considered on the strength of acertificate issued bythe Ministryof Education and 5 produced in this Court, as a student within the meaningof section I6(l)(iii)oftheLaw,Ihavetoobservethatthiscertificate isnotconcernedwiththisrecourse,asitwasissuedandproduced at a much later stage and was not before therespondent when taking the sub judice decision. Reference to the above certi- 10 ficatedated 3.5.1982 has been made earlier in this judgment. The argument that applicant's daughter was not a full time student in 1979 wasfirstraised by counsel for the respondent in his written address, after he has considered the address of applicant wherethe datesofhis daughter's visit to Athens were 15 attached. It is not, therefore, an issue raised and decided by the sub judice decision and any pronouncement on it by menow will be,in my view, an interference with the discretion oftheCommissionerofIncomeTaxtodecideonitatany future time. In the result, thisrecourse fails on the ground that the applicant did not observe the requirements of the law and the sub judice decision was, in the circumstances, reasonably open to the respondent. However, having regard to the circumstances of the case, I make no order as to costs. 25 Recourse dismissed. No order as to costs. 1460 20

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