SUPREME COURT OF PAPUA NEW GUINEA

WOODHALL LTD v CHIEF COLLECTOR OF TAXES (PNG)

FROST CJPrentice SPJ and Williams J

30 April, 1 May, 29 August 1975 - Port Moresby

Prentice SPJ At the conclusion of the hearing of this appeal I had formed the preliminary opinion that the receipt of dividends from Papua New Guinea sources on 21 August 1972 by the appellant, a non-resident Australian-registered public company, did not vest in it an accrued right to rebate of tax under s 217 of the Income Tax Act No 26 of 1959 (PNG), within the meaning of the Acts Interpretation Act 1949 (PNG) s 44; and consequently that s 30 of the 1972 Income Tax Act, by its repeal of the aforesaid s 217 and by its s 41, required the Chief Collector (the respondent) to disallow a claim for rebate of tax in respect of those dividends.

I have now had the opportunity to read the written submissions of counsel and I have had the advantage of reading the opinions of my brothers in draft. I find myself confirmed in the view that the combined effect of ss 11, 217and 228 in the general setting of the 1959 Act, was not to establish a right in the recipient of dividends received before the repeal of s 217 came into effect (whether that were 29 August 1972 or 5 October 1972), to a rebate of tax such as would survive that repeal. In my view the appellant on 21 August 1972, had no more available to him than a possibility that the Collector would as at 30 June 1973 when he came to assess the income and to compute the tax payable by the appellant, assuming both the Papua New Guinean and Australian tax laws then remained the same on this subject, form an opinion in the appellant ' s favour as provided for by s 217. This possibility was eliminated by the repeal of s 217 in 1972.

I am unable to find any ambiguity or anomaly such as might allow a construction of the sections in favour of the taxpayer in accordance with the well-known rules. That the Collector should be able to recover tax at 25% on dividends received prior to the withholding tax coming into effect on 29 August 1972(for the receipt of which tax he might conceivably have to wait considerably more than 12 months) and only at 15% (received immediately on payment of dividend) on those received after 29 August 1972 does not strike me as anomalous.

I agree with the Chief Justice and my brother Williams that this appeal should be disallowed, and generally in their reasons. I mention the fact that such are the commitments of the members of this Court, that I personally have not been able to study this appeal since its hearing concluded on 1 May 1975, until 26 August; to indicate to the profession the value of written submissions summarizing concluded arguments.