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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1984) 3 CLR 94
1983 November 15
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHARALAMBOS MENELAOU STAVRINIDES,
Applicant,
v.
THE COMMISSIONER OF INCOME TAX,
Respondent.
(Case No. 114/83).
Income Tax—Tax credit for loss of eyesight-—Paragraph 2 of the Second Schedule of the Income Tax Laws, 1961-1981—Construction of "for work for which eyesight is necessary"—They relate to work, for which eyesight required and not to a particular work.
On the 1st August, 1973 the applicant, who has since 1970 been a member of the Police Force performing the duties of pyrotechnist, was involved in an accident, in the performance of his duties, as a result of which he lost the sight of his left eye. He was compensated for the injuries received and he was allotted duties of store-keeper in the same branch of the Police. In 1980 he was promoted to the rank of Sergeant.
In his return of income tax for the year 1981 the applicant claimed tax credit of £200. - for loss of eye-sight of the left eye under paragraph 2 of the Second Schedule of the Income Tax Laws, 1961-1981.
The respondent Commissioner, after examination of the said return, rejected the claim, for credit for loss of eye-sight and raised an assessment accordingly. Hence this recourse in which the sole issue for consideration was whether a tax payer was entitled to the credit of £200 if the eyesight was permanently weakened to a degree that rendered him incapable for work where eyesight was necessary in general or for the work he was doing prior to such weakening.
Held, that the words "for work for which eyesight is necessary" in the said paragraph 2 refer to the condition of the taxpayer during the year of the assessment under consideration; that they do not refer to the particular work the taxpayer was doing at the time of the accident that caused the weakening of his eyesight; that they relate to work in general for which eyesight is required and not to a particular work; that since applicant continues to be working profitably and performing the duties of store-keeper which require eyesight, and he was even promoted, it was open to the respondent Commissioner to reach the sub judice decision which is not contrary to Law; accordingly the recourse must fail.
Application dismissed.
Cases referred to:
In re Georghallides, 23 C.L.R. 249;
HjiYianni v. Republic (1966) 3 C.L.R. 338;
Coussoumides v. Republic (1966) 3 C.L.R. 1 at p. 18;
Georghiades v. Republic (1982) 3 C.L.R. 659;
Mangli v. Republic (1983) 3 C.L.R. 527.
Recourse.
Recourse against the decision of the respondent to reject applicant's claim for credit for loss of eye-sight and for the income tax assessment raised on the applicant.
P. Angelides, for the applicant.
M. Photiou, for the respondent.
Cur.adv. vult.
STYLIANIDES J. read the following judgment. The applicant is a member of the Police Force. He joined the Force in 1970. He was posted at the Criminal Investigation Department and was allotted the duties of pyrotechnist.
On 1st August, 1973, Sub-Inspector Hji-Loizou and the applicant were involved in an accident in the performance of their duties. Hji-Loizou succumbed to his injuries and the applicant sustained personal injuries, including loss of the sight of his left eye. He was compensated for the injuries received and he was allotted duties of storekeeper in the same branch of the Police. In 1980 he was promoted to the rank of Sergeant.
Section 34 of the Income Tax Law provides:-
"There shall be levied and paid upon chargeable income tax at the rates and in accordance with the provisions set forth in the Second Schedule."
The Second Schedule was amended by s. 18 of the Income Tax (Amendment) Law, 1981 (Law No. 24/81). For the first time provision was made making tax allowance for persons suffering from loss of eye-sight or from a permanent weakening thereof.
The applicant in his return of income tax for the year 1981 submitted on the 8th April, 1982, claimed tax credit of £200.- for loss of eye-sight of the left eye under paragraph 2 of the Second Schedule of the Income Tax Laws, 1961-1981.
The respondent Commissioner, after examination of the said return, rejected the claim for credit for loss of eye-sight and raised an assessment accordingly.
On the 24th January, 1983, the applicant objected against the assessment contending that he satisfied the provisions of para. 2 of the Second Schedule of the Income Tax Laws and, therefore, a tax credit of £200. - should be allowed to him. The respondent Commissioner, after reconsideration, decided that the case of the applicant did not fall within the ambit of the said statutory provision. He proceeded with the determination of the assessment and communicated his such decision to the applicant by letter dated 17th February, 1983.
By this recourse the applicant challengnes the decision of the respondent Commissioner and seeks a declaration of the Court that this administrative act is contrary to the provisions of the Law and that it was not duly reasoned. At the hearing the argument was limited to the interpretation of the relevant statutory provision and its application in the case of this applicant.
The power of this Court in tax cases is limited to the scrutiny of the legality of the action and to ascertain whether the Administration has exceeded the outer limits of its powers. The onus is on the taxpayer to support his claim and satisfy the Court that it should interfere with the sub judice decision in a recourse. (CharisGeorghallides, (1958) 23 C.L.R. 249; Hji-Yianni v, The Republic, (1966) 3 C.L.R. 338; Coussoumides v. Republic (1966) 3 C.L.R. 1, at p. 18; Georghiades v. Republic, (1982) 3 C.L.R. 659; Mangli v.The Republic, (1983) 3 C.L.R. 527).
The whole case turns on the construction of paragraph 2 of the Second Schedule of the Law. It reads as follows
"2. Εις την περίπτωσιν προσώπου πάσχοντος εκ στερήσεως της οράσεως η εκ μονίμου τινός μειώσεως ταύτης εις βαθμού καθιστώντα αυτήν ανεπαρκή δι' εργασίας δια την οποίαν η δράσις είναι αναγκαία, παρέχεται πίστωσις έναντι του καταβλητέου φόρου εκ διακοσίων λιρών αλλά το συνολικόν ποσόν πιστώσεως το όποιον ούτω δύναται να επιτραπή ως έκπτωσις καθ' οιονδήποτε φορολογικόν έτος δεν θα υπερβαίνη τον συνολικόν φόρον τον ύπ' αυτού καταβλητέον διά το υπό εξέτασιν φορολογικόν έτος".
("2. In the case of a person suffering from loss of eyesight or from a permanent weakening thereof to a degree that renders it inadequate for work for which eye-sight is necessary, there shall be allowed a credit of two hundred pounds against the tax payable, but the total amount of the credit which may be so allowed as a deduction during any year of assessment, shall not exceed the total amount of tax payable thereby in respect of the year of assessment").
Mr. Angelides submitted that, as the applicant from 1973 was not performing the duties of pyrotechnist but of storekeeper due to the loss of his left eyesight, his eyesight "is inadequate for the job" of pyrotechnist and, therefore, he is entitled to the benefit of the tax credit. The words "ανεπαρκή δι' εργασίαν" ("inadequate for work") should be interpreted to mean "eyesight inadequate for the job he was doing at the material time his eyesight has weakened."
Learned counsel for the respondents, on the other hand, maintained that the true construction of the material part of the Law is that a taxpayer is entitled to the credit of £200. - if the eyesight is permanently weakened to a degree that renders him incapable for work where eyesight is necessary in general and not for the work he was doing prior to such weakening.
Paragraph 2 of the Second Schedule is part of s.34. The income tax is levied on the annual income. This is an overriding provision which should be borne in mind in construing the Second Schedule. There is no ambiguity in paragraph 2 under construction. The credit allowance of £200. -against the tax payable is for each year of assessment. The basis and condition precedent for this credit is "loss of eyesight or permanent weakening thereof to a degree that renders it inadequate" for work for which eyesight is necessary.
A person suffering from loss of eyesight - completely blind - is entitled to this tax credit. The other category of taxpayers who are entitled to this credit are those who suffer from permanent weakening of eyesight to a degree that renders them incapable to do work for which eyesight is necessary. The permanent weakening of the eyesight by itself is not sufficient. There must be a nexus between the weakening of the eyesight and the incapacity to do work which requires eyesight.
The applicant suffered a permanent weakening of his eyesight due to the loss of his left eye in 1973. He continues, however, to be working profitably and performing the duties of storekeeper which require eyesight, and he was even promoted. It is correct that he may be hindered to some degree to perform other duties in the Police Force but this is outside the ambit of this benevolent legislative provision.
The words "for work for which eyesight is necessary" refer to the condition of the taxpayer during the year of assessment under consideration. They do not refer to the particular work the taxpayer was doing at the time of the accident that caused the weakening of his eyesight. They relate to work in general for which eyesight is required and not to a particular work.
All the facts were before the respondent Commissioner. The reasoning emerges from the letter communicated to the applicant and the other material in the file. The decision is not contrary to Law. It was open to the Commissioner to reach this decision. Indeed, he could not reach any other decision.
In view of the aforesaid this case is dismissed with no order as to costs.
Recourse dismissed with
no order as to costs.