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3 C.L.R. 1984 June 26 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THE NICOSIA RACE CLUB, THROUGH ITS SECRETARY Y1ANNAKIS STROVOLIDES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH

Articles 24.4, 25 ami 28 of the Constitution. ConstitutionalLaw—Taxation—Destructive taxation—Right to exerciseany tradeorbusiness—Principle of equality—Articles24.4, 25 and28of the Constitution—Regulationsmadeundersection24(A)(t) of the Villages (Administration and Improvtmcnt) Law, Cap. 243 regulatingthe imposition andcollection of tax on swirpstakts and bets—Are not of a destructiveorprohibitive nature and/At;· do not contravenet/ie above Articles of the Constitution—Article 799 Nicosia Race Club τ. Republic

(1984)25protectsthe rightto exercise aprofession or to carry onany occupation, trade orbusinessfromdirect andnotindirectrestricti­ ons orinterference. The applicants were a club owning the Nicosia Race Course. On the25th June, 1982,by virtue of section24(h)(i)* of theVil- 5 lages (Administration and Improvement) Law, Cap. 243 (as amended by section 7(
  1. b)of Law 27/1982) Regulations were published regulating the imposition and collection of tax on sweepstakes and bets. Under regulation 163 of these Regula­ tions applicants were obliged to collect from each player and 10 pay over tothe respondentBoard a tax as specified in the afore­ said section 24(h)(i). Following the enactment of the said Regulations the respondents wrote** to the applicant club on the 27th August, 1982, requesting their compliance with the Regulations; and hence this recourse. 15 Counsel for the applicants mainly contended: (
  2. a)That the Regulations were ultra vires section 24(h)(
  3. i)of Cap. 243. Itwas argued in this respect thatsection 24(h)(
  4. i)provides that the tax has to be collected by the applicant and paid over to the respondent Board 20 in accordance with an agreement concluded between them; and since no such agreement has ever been concluded the Regulations are ultra vires. .(
  5. b)That the Regulations were unconstitutional as being

the provisions of Articles 24.4, and 25 25 of the Constitution. It was argued in thisconnection that such tax being 0.75% of the value of each sweep­ stake or bet, in effect entails such fragmentation of the currency that it is commercially impossible to deal in sweepstakes or bets by giving back to the player 30 the exact change; and that, consequently, the Regula­ tions will have a prohibitive and/or destructive effect on the applicants* business,

Art. 24.4 of the Constitution.

It was, also, argued that such obligation casts such a burden upon the applicants 35 • Section 24(hXi) is quoted at pp. 807-808 post. · * The letter is quoted at p. 804 post. 800 3 C.L.R. Nicosia Race Club τ. Republic that in effect it interferes with their freedom to carry on their business—such interference not being justified by the provisions of Article 25.2' of the Constitution, but being

it. 5 10 15 20 25 (c) That since such obligation has not been imposed on any other business within the Improvement area, applicants were, thus, being subjected to discriminatory treatment

Article 28

. Held, (I) On the preliminary objection of the respondents that'the decisioncomplained of is not an executoryadministrative act or decision but an''act of execution: That an act of execution is the subsequent act of the'admi­ nistration by which an executory act is realised; that as in the present instance there is no pre-existing. executory, act—the Regulations being a regulatory act and as.such not-capable of being challenged by a recourse—it is clear that' the sub' judice decision is not an act of execution since such act'requires the existerce of an executory act; that an executory act'must be an act by means of which the "will" of the administrative" organ' concernedhas been made known in a given matter;an'act which is aimed'at producing a legal situation concerning'.the citizen affected.and which entails its execution by,administrative.means: that in thepresent instancethesub judice letter of therespondent falls within the above definition of an executory act andcan-thus be challenged by the present recourse. Held, (II) on the merits of the recourse:' 30 35

(1)Thattheagreementcanonly refer tothemannerof payment" of thetax collected inaccordancewith theLaw andnot,"as arguedby the applicants to the question,of collection'of'tax;.since'th'ii 1 is already prescribed by theLaw itself; that. moreotfer^theRegu lations are within the framework as laid down by, the.enabling law their provisions being.no different fram the provisions of the said law; and they are intra vires Cap. 243.
(2)That the Regulations are not of a destnrrtive^oraprohibitive nature with adverse financial-effects-on t h e applicant!.1 business and.they,'are, therefore, not contraryjto Article 24.4* of the Constitution;that,-further, theobligation by theapplicant* to colleotsuch.tax:does<not.interfere-with their.frcedom to'-carry. 80U- Nicosia Race Club v. Republic
(1984)on their business in contravention of Article 25 because apart from the fact that the amount of such tax is so small that it cannotpossiblybeconsidered asonerous,suchtaxisnotimposed upon the applicants but on third parties, i.e. the players and consequently Article 25 has no application in any case since theprotection oftheArticleisinrespectofdirectandnotindh^ct restrictions or interference on a psrson's riant to exercise a profession or business. 5
(3)That though it is true that the said Regulations presently affect the Nicosia Race Course only there isnothing to suggest 10 that iftherewereor willbeinfuture other racecourses,thesaid Regulations would not apply to them also; that,in any case, the tax imposed ispayableby the playersandnot by the applicants, whose only duty under the Regulations is to collect such tax and pay it over to the respondent Board; and that since 15 theyalreadyarcunder thedutyofcollectingtaxfrom theplayers for thegovernmentbyvirtueofLawNo.23of 1976theirposition· cannot possibly be more onerous than it were before and it shouldalsobebornein mindthattheposition theapplicants find themselvesisnotuniquebecausetherearemanysimilarinstances 20 under Cyprus Law whereTax iscollected from 3rd parties and paid over to the Government; accordingly the Regulations are not

Article 28of the Constitution. Application dismissed. Cases referred to: 25 Colocassides v. Republic

(1965)3 C.L.R. 542 at p.551; Shanaham v. Scott
(1957)96 C.L.R. 245 at p. 250; Marangosv. Municipal Committee ofFamagusta
(1970)3 C.L.R. 7 at p. 13; Menicosand Othersv. Republic
(1983)3 C.L.R. 1130 at pp. 30 1135-1136; Apostolouv. Republic
(1984)3 C.L.R. 509; Xydias v. Republic
(1976)3 C.L.R. 303 at p. 312; KissonergaDevelopmentv.Republic
(1982)3C.L.R.462atp.487. Recourse. Recourse against the decision of the respondents to demand from applicants to submit all books, returns and statements for the period 25th June, 1982 to 27th August, 1982 containing 802 35 3 C.L.R. Nicosia Race Club v. Republic sweepstakes and bets placed in respect of the race meetings between the above dates. R. Stavrakis with G. TriantafyHides, for the applicant. E. Odysseos,for the respondents. 5 Cur. adv. vult. A. Loizou J. read the following judgment. Bythe present recourse the applicants seek a declaration that:- 10 15 20 25 30 (
  1. a)the decision of the respondents to demand from applicants to submit all books and returns and statementsfor theperiod of25thJune, 1982to27thAugust, 1982 containing the sweepstakes and bets placed in respect oftheracemeetingsbetweentheabovementioned dates as well as a summary of all the sums of sweepstakesand betsplaced for the race meetings that had taken place betweentheabovedates aswellasall thesumsofanytaximposedandcollectedontheabove sweepstakes and bets isnull and void and of no effect whatsoever. (
  2. b)thedecision of the respondentsto demand from applicantsto produceeachweekthe books andreturnsand statements containing the sweepstakes and bets placed inrespectofthepreviousweeks'racemeetingaswellas a summary statement showing the amounts of the sweepstakes and bets placed in respect of the race meeting of the immediately preceding week and the amounts of any tax imposed and collected on such sweepstakes and betsplaced isnulland void and of no effect whatsoever. (
  3. c)the decision of the respondents to demand from applicants to pay the above mentioned tax is null and void and of no effect whatsoever. The applicants are a Club owning the Nicosia Race Course. On the 25th June 1982, by virtue of section 24 (h)(
  4. i)of the Villages (Administration and Improvement) Law, Cap. 243,as 35 amendedbysection7(b)ofLawNo.27of 1982Notification No. 200was published in Supplement III to the Official Gazette of the Republic regulating the imposition and collection of tax on sweepstakes and bets. In accordance with regulation 163 C, 803 A. Loizou J. Nicosia Race Club v. Republic
(1984)applicantswereobliged tocollectfrom eachplayerandpayover to the lespondent Board of Ayios Dhometios a tax as specified in the aforesaid section 24(h)(i). As a lesult, theapplicantsfiled recouiseNo.310/82challenging the validity and constitutionality of such regulations; this 5 recourse,however,wasdismissed asitwasfound bymethat the said regulations bytheir verynature werea regulatory act of a legislative content and of a general application and not an executory administrative act and could not thus be challenged by a recourse under Article 146 of the Constitution. 10 Inthemeantime,therespondentswrotetotheapplicantClub, on the 27th August 1982, requesting their compliance to the regulations, stating, inter alia, as follows:"You are therefore requested to submit each week, during working hours at the offices.of the Improvement Board of 15 Ayios Dhometions,the books,forms and statementsshowingthe sweepstakes and betsplaced in respect ofthe horse race meeting of the immediately preceding week and that you produce a summaiy statement showing (a) the amountsofthesweepstakes and betsplaced during 20 the immediately preceding week in connection to the race meeting which took place at the Race-course situated at the Ayios Dhometions Improvement Area during the immediately preceding week, and, (b) the amounts of the tax imposed and collected on the 25 aforesaid sweepstakes and bets. The applicants as a result filed the present recourse which is based on the following grounds of law:1. The legulations have a prohibitive and/or destiuctive effect on the applicants' business,

Art. 24.4 30 of the Constitution. 2. Applicants are beingdiscriminated against becausein no othercase,withinthe

ImprovementBoardofAy.Dhometios or any other Improvement Board or indeed, any other taxingsituation, a tax payer isobliged to embark 35 upon the collection of a tax from third parties if such collection has such adverse effect on his business. 804 3 C.LR 5 A. Loizou J 3. Article 25 is also contravened because the obligation cast upon applicants, in effect, interferes with their freedom to carry on their business, such interference not being justified by any of the matters enumerated in Article 25.2 of the Constitution. 4. 10 Nicosia Race Club v. Republic In any case, it is alleged thatthe Regulations compla*ned of aie ultra vires the enabling law because the relevant section (s. 24(h)(i)) of Cap. 243 provides that the col­ lection and payment of the tax will be made by the Nicosia Race Club to the respondents in accoidance with an Agreement made between the paities. No such Agreement having been made, regulation 163 C is, therefoie, ultra vires the law. The respondents in theii opposition contena that the decision 15 complained of is not an executory administiative act oi decision and it is thus not subject to a recourse under Article 146 and/or alternatively that it is: 20 (

  1. a)an act of execution or application of the relative byelaws enacted by the respondent Improvement Board, and/or, (
  2. b)a request of the respondents to the applicants to comply with the provisions of the said bye-laws; and/ or 25 (
  3. c)a reminder and/or notification and/or a warning given by the respondents to the applicants to comply with the obligations imposed on applicants by the aforesaid bye-laws; It is necessary therefore' before going into the merits of this case to deal with this matter first. 30 35 An act of execution is defined in tsatsos Recoursefor Annul­ ment (3rd Edition 1971) as follows at pp. 127-129: "..-..της πράξεωςεκτελέσεως προϋποτίθεταιπρ'άξις εκτελεστή δεκτική·προσβολής· Η δια πράξεως*εκτελέσεωςεκφραζόμενη βόύλήσις' δεν είναι ποσώς" αυθύπαρκτος, αλλ* αναφέρεται ουσιωδώς ε'ις τήν τφαξιν',·της·οποίας άποτΐλούσιν έκτέλεσιν και την οποίαν'ηδύνάντό'να προόβάλώσιν οι- ενδιαφερόμενοι καν της' όττοίάς"ή ;άκύρωσις δια παράβασιν του νόμου" ήθελε καταστήσει αδύνατον την πράξιν εκτελέσεως". 805' A. Loizou J. Nicosia Race Club v. Republic

(1984)(In English) "... an executory act capable of being challenged is a pre­ requisite of an act of execution. The will expressed by an act of execution is by no meansself-existing but is essential­ ly related totheact,of whichtheyeffect executionand which the persons concerned would be able to challenge and of whichthe annulmentfor breach of the law would renderthe act of execution impossible." 5 And in Kyriakopoulos: Greek Administrative Law Vol. C p. 95: 10 "Αι πράξεις εκτελέσεως, ήτοι αι μεταγενέστεροι«νέργειαι της διοικήσεως δι* ων πραγματοποιείται η επιταγή εκτε­ λεστής πράξεως". (In English) "The acts of execution,thatis the subsequent actions of the 15 administration by which the order of an executory act is realised." As in the present instance there is no pre-existing executory act - the regulations being a regulatoiy act and as such not capable of being challenged by a recourse - it is clear thatthesub 20 judice decision is not an act of execution since such act requires the existence of an executory act. As regards the exact nature of the subjudice decision relevant is what is stated in the case of Nicos Colocassidesv. Republic
(1965)3 C.L.R. 542 at p. 551. 25 "An administrative act and decision also is only amenable within a competence, such as of this Court under Article 146, if it is executory (εκτελεστή); in other words it must be an act by means of which the 'will' of theadmi­ nistrative organ concernedhas been made known in a given 30 matter, an act which is aimed at producinga legalsituation concerning the citizen affected and which entails its exe­ cution by administrative means (see Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959, pp. 236-237)." 35 And in the present instance it is my view that the sub judice letter of the respondent falls within the above definition of an 806 3 C.L.R. Nicosia Race Club v. Republic A. Lolzou J. administrative act and can thus be challenged by the present recourse. I shall now proceed to deal with the grounds of law put for­ ward by the applicant Club. 5 I consider it pertinent to disposefirst of the question whether the Regulations are ultra vires section 24(h)(
  1. i)of Cap. 243 as amended by law No. 27 of 1982 section 7(b)(i). As argued, section 24(h)(
  2. i)provides for the imposition of the said tax on each sweepstakeor bet, which tax burdens theplayer; itis to be 10 collected from the players by the Authority which has the re­ sponsibility of collecting it and paying it over to the Board, in accordance with an agreement concluded between them. And it is argued since no such agreement was ever concluded, the Regulations are ultra viies. 15 20 25 30 35 The enabling section 24(h)(
  3. i)as amended by section 7 of Law No. 27 of 1982 provides as follows: "(
  4. i)να επιβάλλη εφ' εκάστου ιπποδρομιακούστοιχήματος και εφ' εκάστου ιπποδρομιακού λαχείου κατά την διε νέργειαν αυτών, είτε ταύτα διενεργούνται εντός του ιπποδρόμου είτε εκτός αυτού, φόρον μέχρι 0,75 % ή ποσόν αντιπροσωπεύον το 0,75% δ.α την περίοδον μέχρι της 31ης Δεκεμβρίου, 1983, και φόρον μέχρι 1 % ή ποσόν αντιπροσωπεύον το 1%απότης 1ης Ιανουαρί­ ου, 1984, επί του ποσού εκάστου ιπποδρομιακού στοι­ χήματος ή εκάστου ιπποδρομιακούλαχείου, αναλόγως της περιπτώσεως, το οποίον διενεργείται αναφορικά προς ιππόδρομου κείμενον εντός της πεοιοχής Βελτιώ­ σεως του Συμβουλίου τούτου: Νοείται ότι οεπιβαλλόμενος φόροςβαρύνει τον παίκτην και δεν λογίζεται cosσυνιστών μέρος τουιπποδρομιακού στοιχήματος ή ιπποδρομιακούλαχείου, η δε είσπραξις τούτου θα διενεργήται υπό της ιπποδρομιακήςαρχής, ως ο όρος ούτος ερμηνεύεται εις τους περί Φορολογίας Ιπποδρομιακών Στοιχημάτων και Λαχείων Νόμους του 1973 και 1976, ήτις φέρει την ευθύνην εισπράξεως και καταβολής τούτου εις το Συμβούλιον συμφώνως προς γενομένην μεταξύ των συμφωνίαν". (In English, it provides:) "(
  5. i)to impose on every sweepstake and on every bet played 807 A. Loizou J. Nicosia Race Club v. Republic
(1984)whether these are played within the racecourse or outside it, tax upto 0.75% or a sum representing the 0.75%for the period until the 31st December 1983, and tax upto 1% or a sum representing the 1 % as from 1st January 1984, on each sweepstake or bet, as the case 5 may be, which is played in relation to a racecourse situated within the Improvement area of such Board. Provided that the tax imposed burdens the player and is not considered as constituting a part of the sweepstakeor bet andits collection shallbe made by the 10 Horse-racing Authority, as such term is defined in the Horserace Betting (Taxation) Laws 1973 and 1976, which beais the responsibility of collecting and paying same to the Board in accordance with an agreement concluded between them". 15 And regulation 163 Β provides: "Κανονισμός 163B: Εφ' εκάστου ιπποδρομιακού στοιχήματος και εφ* εκάστου ιπποδρομιακού λαχείου, είτε τούτο διενεργείται εντός του ιπποδρόμου είτε εκτός αυτού, επιβάλλεται κατά την διε- 20 νέργειαυ αυτού φόρος καθοριζόμενος εις 0,75 % ή ποσόν αντιπροσωπεύον το 0,75 % δια την περίοδον από της ενάρ­ ξεως της ισχύος των παρόντων Κανονισμώυ μέχρι της 31ης Δεκεμβρίου, 1983 και 1 % ή ποσόυ αντιπροσωπεύον το 1 % από της 1ης Ιανουαρίου, 1984, επί του ποσού εκάστου 25 ιπποδρομιακού στοιχήματος και επί του ποσού εκάστου ιπποδρομιακού λαχείου αντιστοίχως τα οποία στοιχήματα ή λαχεία διενεργουυται εν σχέσει προς ιπποδρομίου διεξαγόμενην εντός του ιπποδρόμου: Νοείται ότι ο άνωεπιβαλλόμενος φόρος βαρύνειτον παίκτηυ 30 κα. δεν λογίζεται ως συνιστών μέρος του ιπποδρομιακού" στοιχήματος ή ιπποδρομιακού λαχείου: Νοείται περαιτέρω ότι εις περιπτώσεις κατά τας οποίας ιπποδρομιακόν στοίχημα ή ιπποδρομιακού λαχείου δι' οιουδήποτε λόγου ακυρουται και το υπό τού παίκτου σχε- 35 τικώς καταβληθέν ποσόυ αποδεδειγμένως επιστρέφεται υπό της Ιπποδρομιακής Αρχής εις του παίκτηυ, ο επιβληθείς· και καταβληθείς φόρος επιστρέφεται ωσαύτως". 808" 3 C.L.R. Nicosia Race Club v. Republic A. Lotzou J. (In English:) 5 10 "On every sweepstake and.on every bet played, whether this is played within the racecourse or-outside it, there is imposed a tax specified at 0.75%or a sum representing the 0.75%for the periodfrom thecommencement of the present regulations until the 31st December 1983,and 1% or a sum representing the 1% as from 1st January 1984, on the amount ofeach sweepstake and on the amount of each bet, respectively, which sweepstakes or bets are placed in relation to a race played within the racecourse. Provided that the above imposed tax burdens the player and is not considered as constituting a part of the sweepstake or bet. 15 Provided further that in the instances where a sweepstake or bet is for any reason cancelled and the sum accordingly paid by the player is proved to have been refunded to the player by the Horse-racing Authority the tax imposed and paid is refunded also." As regards the power given to local authorities to make re20 gulations it is stated in the*judgment of-the High Court of Australia in the case of Shanahanv, Scott
(1957)96 C.L.R. 245 at p. 250: 25 30 "The resultisto showthat sucha power doesnotenable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying intoeffect what isenacted in the statuteitself and willcover what. isincidental to the execution of itsspecific provisions. But suchapowerwillnotsupportattemptstowidenthepurposes of theAct,to add new and different means of carrying them out or to depart from or vary the.plan which the legislature has adopted to attain its ends." And in Demetrios Marangos v. Municipal Committee of Famagusta
(1970)3 C.L.R. 7- at p.. 13: 35, "When subsidiary legislation - such as the said Regulations-! -is examined.with a viewto deciding on a contention that h> is.ultra .vires, the answerito.thiS'question dependsun eveiy^ case, on· the-true-construction of'the-relevant, enabling^ 809 A. Loizou J. Nicosia Race Club v. Republic
(1984)enactment (see Halsbury's Laws of England, 3rd ed. vol.36, p. 491, para. 743). If there isinvolved interference with a fundamental right, suchastheright toproperty, anydoubt about theextent and effect of therelevant enactment has to be resolved in favour 5 of the liberties of the citizen (see FINA (Cyprus) Ltd. and The Republic, 4 R.S.C.C. 26, at p. 33; Chester v.Bateson [1920] 1 K.B. 829, at p. 838; Newcastle Breweries, Ltd. v. The King [1920] 1 K.B. 854). Also, in examining whether or not subsidiary legislation 10 isultra vires its parent enactment, it has to be borne, particularly, in mind the state of the law at the time when such enactment was passed and the changes which it was passed to effect, as well as the structure of such enactment as a whole. (See Attorney-General v. Brown [1920] 1K.B. 773, 15 at p. 791)." And see alsoMenicos andothersv.Republic(\9%?>)3C.L,.K. 1130 at pp. 1135-1136. After careful sciutiny of the enabling section of the regulations, I have reached the conclusion that the interpretation 20 givenbytheapplicants onthequestion ofthe"agreement"isnot correct but as rightly stated by the respondents the agreement can only refer to the manner of payment of the tax collected in accordance withtheLawand not,asargued bytheapplicants, to the question of collection of tax, since this is already prescribed 25 by the Law itself. Moreover, the regulations are within the framework as laid down by the enabling law their provisions being no different from the provisions of the said law. Having thus reached the conclusion that the said regulations are intra vires Cap. 243,this argument of the applicants should 30 fail, and I must now proceed to consider the remaining grounds of law. It is contended that the said regulations are unconstitutional being

the provisions of Articles 24.4 and 25 of the Constitution. It is argued that such tax being 0.75% of the 35 value ofeach sweepstake or bet, in effect entails such fragmentation of the currency that it is commercially impossible to deal in sweepstakes orbetsbygivingback to theplayertheexactchange. 810 3 CUR. Nicosia Race Club v. Republic A. Loiiou J. Moreover in practice during a very short period of time before each race, a great number of players rush to buy sweepstakes or place bets. In accordance with the regulations, such players are expected to pay tothe applicants0.75%of thevalue of each 5 sweepstake or bet butdue to theabovementioned fragmentation it will be virtually impossible for the applicants to accept such sweepstakes or betssimply because therewill not beenough time to pay back the exact change. Consequently, the above regulations will have a prohibitive and/or destructive effect on the 10 applicants* business,

Art. 24.4 of the Constitution.

Also such obligation casts such a burden upon the applicants that in effect it interferes with their freedom to carry on their business - such interference not beingjustified by the provisions of Article 25.2 of the Constitution, but being

it. 15 As regards the impossibiUty of collecting such tax which due to its amount will be of a destructive or prohibitive nature with adverse financial effects on the applicants' business, I find such allegation untenable. Nor can 1accept that the obligation by the applicants to collect such tax interferes with their freedom to 20 carry on their business in contravention of Article 25. Apart from thefact that theamount ofsuchtaxissosmallthatitcannot possibly be considered as onerous, such tax isnot imposed upon the applicants but on third parties, i.e. the players and consequently Article 25 has no application in any case since the 25 protection of the Article is in respect of direct and not indirect restrictions or inteiference on a person's right to exercise a profession or business. As stated by the Full Bench in the case of CostakisP. Apostolouv.Republic (CasesNos. 116/83 etc) (not yet reported).* 30 "It is a well settled principle that Article 25 of the Constitution protectsthe right to exercise a profession or to carry on any occupation, trade or business, from direct and not indirect restrictions or interference. Ample authority can be found inter alia in the following cases, The Police and Liveras, 3 R.S.C.C. pp. 65-67; Psaras v. The Republic,

(1968)3 C.L.R. 363/364; Antoniades and others v. The Republic
(1979)3 C.L.R. 641, 659; loannis Voyias v. TheRepublic
(1974)3C.L.R. p.390,413; ImpalexAgencies 35 * Now reported in
(1984)3C.L.R. 509. 811 Λ. Loizou J. Nicosia Race Club v. Republic
(1984)Ltd. v. The Republic
(1970)3 C.L.R. 361; andAntoniadcs case (supra) at p. 655." Also the Authority is already burdened to collect a tax of 10% on the amount of each sweepstake or bet from the players by virtue of the Horserace Betting and Sweepstakes (Taxation)Law 1973 as amended by Law No. 15 of 1976, therefore the impo­ sition and collection of this further tax would not burden the applicant authority any further and this argument must fail too. 5 Finally, the applicants complain that since such obligation has not been imposed on any other business within the Improvement 10 area, they are thus being subjected to discriminatory treatment

Article 28

. It is true that the said regulations presently affect the Nicosia Race Couisc only but there is nothing to suggest that if there weic or will be in.future othei racecourses, the sp.id regulations would not apply to them also. 15 In any case it should not be forgotten that thetax imposed is payable by the players and not by the applicants, whose only duty undertheregulations is tocollect such lax andpay it over to the respondent Board. And since they already are under the 20 duty of collecting tax from the players for the government by virtue of Law No.23 of 1976, as aforesaid, their positioncannot possibly be more onerous than it were before and it should also be borne in mind that the position theapplicants find themselves is not unique. There are many similar instances under Cyprus 25 Law where Tax is collected from 3rd parties and paid ovei tothe Government, for instance, (i) The Tourist Places of Entertainment Law, 1979 impo­ ses upon the proprietors of places of entertainmentthe duty to collect a tax of 3 % from their customers in 30 favour of the Cyprus Tourist Organisation. It was stated in Shistris v. C.T.O.

(1983)2 C.L.R.72at p.82:"The law makes it an offence of the pioprietor of a tourist centretofail orto omittocollect the3% charge. He not only has the right but a duty to collect it." 35 (ii)1 Under Cap. 243, also, by virtue, of sections'21(k) and22(k)(a)as-amended by section 6of Law31 of 1969, entertainment duty is imposed on all tickets of entrants 812 3 C.L.R. Nicosia Race Club v. Republic A. Loiicu .1. of cinematographic or theatrical perfoi manccs which is collected by the owners of the cinemas or theatres. Relevant is the case of Loizos Xydias v. Republic
(1976)3 C.L.R. 303 where at p. 312 it was stated: 5 "In considering the question of constitutionality of astatutewchave tobe guided by certainwell established principles governing the exercise of judicial control of legislative enactments. A rule of precautionary nature is that no act or legislation will be decalrcd void except in a very clear case or unless the act isunconstitutional beyond all reasonable doubt. (The Boardfor Regi­ stration of Architects and Civil Engineersv. Kyriakides
(1966)3 C.L.R. 640 at page 654). 10 When taxation laws are attacked on the ground that they infringe the doctrine of equality the legislative discretion is permitted by thejudiciary 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)." 15 20 In Η, M. SeervaVs, ConstitutionalLaw of India(2nd Edition), Vol. I, it is stated al p. 211 on the principle of equality. "(h) Even a single individual may be in.a class by himself on account of some special circumstances or reasons applicable to him and not applicable to others; a law may be consti­ tutional even though it relates to a single individual who is in a class by himself." 25 And a further passage from Seervai at p. 222 was cited in the 30 case of Kissonerga Development v. Republic
(1982)3 C.L.R. 462 at p. 487, a case dealing with the imposition by the Council of Ministers of a percentage of 3 % to be added to bills for sleeping accomodation or entertainment of clients of hotel and tourist establishments and places of entertainment with the 35 exception of those on mountain resorts: "However, it was held in East India TobaccoCo:,v. A.P.* • 1963 1 SCR 404. 40^
(62)A.SC 1733. 8!*3 A. Loizou J. Nicosia Race Club τ. Republic
(1984)that the wide latitude given by our Constitution to the legislature in classification for taxation was correctly described in the following words: Ά statedoes nothave totax everything in ordertotax something. Itis allowed to pick and choose districts, 5 objects, persons, methods and even rates for taxation if it does so reasonably The (U.S.) Supreme Courthasbeenpracticalandhaspermittedavery wide latitude in classification for taxation.'" Thus it leaves me with no doubt that the respondents, in 10 imposing the taxation complained of, did not act in a discri­ minatory manner vis a vis theapplicant Club and consequently this ground must also fail. For theabove reasons thisrecoursefails andis hereby dismis­ sed but in thecircumstances there will be no order as to costs. 15 Recourse dismissed with no order as tocosts. 814

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