clr/1987/1987_3_1039.pdf

(1)Thequestion now is whethersection 23 leads tounequaltreatment contrary toArt. 28 of the Constitution,between husbands, who, though do notlivewiththeirwives,stillprovide forher,andhusbands,wholivewiththeir wives. *Quotedatp. 1041post. 1039 ChiistodouHdesv.RepabUc

(2)Inmattersoftaxationreasonabledifferentiationsanddistinctionsmaybe madebecauseoftheinstrinsicnatureofthings.Itfollowsthatwhathastobe examined is whether or not there exist factors justifying the aforesaid differentiation.

(3)IntheopinionofthisCourtnosuchfactorsexist.Theburden,however, is on the applicant to satisfy the Commissioner that he ispaying for the maintenanceofhiswife. 5

(4)Inthelightoftheabovethesubjudicedecisionhastobeannulledand thematterre-examined. Subjudicedecisionannulled. 10 Noorderastocosts. Casesreferredto: Sherdleyv. Sherdley,TheTimes,9.4.

1. Recourse. Recourseagainsttheincometaxassessmentraisedonapplicant 15 for theyear
2. C.Myrianthis,for the applicant. M.Photiou, for the respondent. Cur. adv. vult. DEMETRIADES J. read the following judgment. By means of 20 this recourse the applicant challenges the assessment of his income by the second respondent (to be referred hereinafter as the«Commissioner») for theyear of assessment
3. At the material time the applicant was an employee of the Cyprus Telecommunications Authority and was deriving his 25 income from his employment. He was married but he lived separately from hiswife. On the 21st March, 1982, the applicant submitted to the Commissioner hisreturns of income for theyear 1981 declaring, amongst others, that during 1981,although he was married, he 30 was not living with his wife, and he claimed to be allowed a deduction of£250.-allowance inrespect of her. Inraisingthe assessment fortheincome of theapplicant for the year 1981 the Commissioner, on the 8th October, 1982, refused 1040 3C.L.R O n t s t o d o u H d e ·v.Republic DemetriadeaJ. to allow the deduction claimed, ontheground thatthewife was notlivingwiththeapplicant. By a letter dated the 9th November, 1982, the applicant, through his tax consultants Messrs Phanos G. Ionides Ltd. 5 objected to the assessment of his income raised by the Commissioner who, on the 3rd September, 1983, after determiningtheapplicant'sobjection,informedhimthatashewas notlivingwithhiswife,hewas notentitledtothedeductionofthe sumof£250.-HisdecisiontheCommissionerbased onsection23 10 of theIncomeTaxLaws1961-1981which provides thatthewife must live with the husband («συμβιοί μετ' αυτού», in English «livingwithhim») Section23oftheIncomeTaxLaws1961-1981reads: 15 20 25 «
4. Κατά την εξακρίβωσιν του φορολογητέου εισοδήματος οιουδήποτε φυσικού προσώπου το οποίον είναι έγγαμον καιτουοποίου ησύζυγοςσυμβιοί μετ' αυτού, χορηγείται έκπτωσις διακοσίων πεντήκονταλιρώνδιατηνσύζυγον: Νοείται ότι η τοιαύτη έκπτωσις δύναται να χορηγείται εις την σύζυγον οσάκις ο συμβίων μετ' αυτής σύζυγοςδεν κέκτηται οιονδήποτεεισόδημα.» («In ascertaining thechargeable income of any individual whoismarriedandwhose wifeislivingwithhim, adeduction oftwohundredandfiftypoundsshallbeallowed inrespectof hiswife: Provided thatsuch deductionmaybe allowed tothewife if thehusbandlivingwith herderives noincome»). Itisanadmittedfact thatatthematerialtimetheapplicant was notlivingwith hiswife asa result of maritaldisputes.Thisfact, as 30 Ihave earlier mentioned,was revealed by the applicant in his returnsof incomefor theyear
5. Counselfor theapplicantsubmittedthatthewords «livingwith him»mustnotbeinterpretedasmeaningthatahusbandisentitled tothedeductiononly when thecoupleliveunderthesameroof, 35 but that a wider interpretation should be given to these words when heprovides hiswifewith necessaries for hermaintenance, medicaltreatmentandgenerally for her welfare. 1041 Demetriade*J. Ctutetodotdldesv.Republic

(1987)Hefurtherargued thatifweweretoacceptthatsection23ofthe Income Tax Laws should be interpreted as meaning that for a husbandtobeentitledtothedeductionof£250.-hemustlivewith hiswife, thensuch interpretationleads todiscriminationcontrary toArticle 28 of the Constitution, inthatthehusband,whoisfully 5 providing forhisestrangedwife,istreatedforincometaxpurposes differently from othermarriedmenwholiveunderthesameroof with theirwivesand towhom thedeductionprovided by section 23is allowed. Although thereis nodefinition inthe IncomeTax Lawsof the 10 words «livingwith him»,I have nodoubt thatitsmeaningisclear and unambiguous and that such words should be given their ordinary and natural meaning,namely «livetogether», «cohabit». (In this respect see Divry's Modem English Greek and Greek English Dictionary, as to the meaning of the word «συμβιώ», 15' Stroud'sJudicial Dictionary,thirdEdition,«cohabitation», andthe Advanced Learner's Dictionary of Current English, second Edition,astothemeaning oftheword «cohabit»). Having in mind the wording of section 23, it is clear thatthe Law'sintentionisthata husband who isnotlivingwith hiswifeis 20 notentitledtothedeductionof£250.-. Having reached this conclusion, the next issue that poses for decision is whether the provisions of section 23 create discrimination vis a vis husbands who live with their wives and those who, for one reason oranother, theydo not;and further, 25 whether itsprovisions lead tounequaltreatment. In matters of taxation reasonable differentiations and distinctionsmaybe madebecause ofthe intrinsicnatureof things and only arbitrary differentiations constitute discrimination contrarytoArticle 28 of theConstitution. 30 Inthepresent case what hastobe examined iswhether ornot thereexistsuch factors justifying thedifferentiation asregards the treatment for purposes of deduction from the taxable incomeof married menlivingwiththeirwivesandof marriedmennotliving withtheirwives. Having giventhematterdueconsideration,Ihave cometothe conclusionthatnofactors existjustifyingthedifferent treatmentof theapplicantinthepresentcase. Inmyopinion,theobject ofthe Lawistomakeanallowancetomarriedmenfortheexpenses they incurfor the maintenanceof theirwives,notwithstandingthefact 40 1042 35 3CUR ChrtstodooHdesv.Republic Dematrtadc·«1. that thehusband isnotliving with hiswife under thesame roof, and thatsolongasheisprovidingforhermaintenance,heshould be entitled to such a deduction, otherwise a husband would be subjected todiscriminatorytreatment contrary toArticle28ofthe 5 Constitution. Itistobenoted thatthere mightbeinstancesinwhich, notdue tomaritaldisputesbutforvariousotherreasons,acouplemaynot live under the same roof, but husbands are still entitled to the deductionprovidedbythelawbecauseitispresumedthattheyare 10 maintaining theirwives. Relevanttotheissueofdiscrimination raisedinthiscasemaybe the recentdecision ofthe House ofLordsinthecaseof Sherdley v. Sherdley (reported inthe Issue oftheTIMESofthe9thApril, 1987) inwhich itwasheld, allowinganappeal from the orderof 15 theCourtofAppeal (see[1986] 1 W.L.R. 732),that: 20 «Adivorced father having custody, careandcontrol ofthe children ofthemarriagecouldobtainanorderagainsthimself forthepayment byhimofthechildren'sschool feesdirectto the schools concerned as agents for them, notwithstanding thatthesolepurpose ofthefather applyingforthe orderwas toobtain taxadvantages». As, however, the full report of this case is not at present available,Iamnotpreparedtosaywhetheritisuseful forguiding me inreachingtheviewsthatIhave expressed. 25 Inthepresent case,ofcourse,theburden isontheapplicantto satisfy the Commissioner ofIncomeTaxthatheisactually paying forthemaintenanceofhiswifeandthat,therefore,heisentitledto thededuction concerned. Therefore, thesubjudiceassessmentisannulled andthecaseof 30 theapplicanthastobe re-examined. Intheresult,thepresentrecourse succeedsbutwithnoorderas toitscosts. Sub judice decision annulled.No order asto costs. 35 1043