Raymond Yeung Tax Consultant former Assessor of Inland Revenue Department 前稅局評稅主任楊輝洪

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Degree of proof 


The Inland Revenue Ordinance empowers an assessor to make assessments on taxpayers according to his judgment. Such judgment is normally based on a tax return or in some cases in the absence of a tax return. Although the Revenue is not obliged to disclose how the judgment is made, the assessor must exercise his judgment honestly.

 

In the case Mok Tsze Fung versus CIR, HKTC 166, the judge said, “So long as the assessor, or Commissioner, does not act capriciously or dishonestly, his assessment, being made according to his judgment, cannot be disturbed except upon the taxpayer bearing and discharging the onus of proof.”

 

Given an assessment made by an assessor honestly, if a taxpayer disagrees, he will have to lodge an objection in accordance with Section 64 of the Ordinance. To substantiate his objection, he must adduce evidence to prove that the assessment is either incorrect or excessive. This burden of proof on the taxpayer is stipulated by Section 68(4) of the Ordinance --- indeed it is heavy.  

 

A tax dispute (other than a prosecution) is a civil proceeding --- and so the degree of proof required is on "a balance of probabilities". The criminal degree-of-proof, namely “beyond reasonable doubt”, has no place in determining objection cases. 

 

On the other hand, prosecutions, particularly those concerning tax evasions, belong to criminal proceeding. In such a case, the degree of proof is “beyond reasonable doubt” which is much more stringent than “on a balance of probabilities” as required in objection cases. To put it in simple words, a crime is an offence against the public at large and the penalty on conviction includes imprisonment. Before taking criminal prosecutions, the Revenue must collect sufficient evidence to prove that the taxpayer has deliberately committed an offence (for example theft of public revenue or cheating the IRD by false information) beyond reasonable doubts.

 

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