Commissioner Of Customs Research Articles

29Court of First Instance (Hong Kong): Case dm v Commissioner of Customs & Excise and Secretary for Security, hcal 460/2022, [2022] hkcfi 3476, Judgement of the Court on 24 November 2022

29Court of First Instance (Hong Kong): Case dm v Commissioner of Customs & Excise and Secretary for Security, hcal 460/2022, [2022] hkcfi 3476, Judgement of the Court on 24 November 2022

Article: Interpretation of Multi-lateral Treaties: The Purposive Approach and Multiple Parties Through the Lens of the UK Courts

In this article the authors consider how to interpret the multilateral provisions in relation to tax administration such as the Common Reporting Standard (CRS), Base Erosion and Profit Shifting (BEPS) and the Mandatory Disclosure Regime, the pace of adoption of which continues to accelerate. They discuss whether the pre-existing framework provided by the Vienna Convention on The Law of Treaties is either adequate or appropriate in its application to the interpretation of such multi-later instruments. In light of this analysis the authors consider what principles of interpretation are found in case law and whether the principles ennunciated in Fowler v. Revenue and Customs Commissioners [2021] 1 All ER 97, could be used to remedy any deficiency in the Vienna Rules. This includes an examination of the dangers of the use of commentary in the interpretation of multi-later instrument and the importance of principles that allow the interpretative tradition of the relevant jurisdiction to override commentary. Having examined these difficulties and the inadequacies in the modern interpretive code, they propose methods of approach to ease the interpretative issues created by multi-lateral instruments, including the possibility of an internal code of interpretation for such multi-lateral instruments. Treaty interpretation, multilateral, BEPS, CRS, MDR, OECD, purposive interpretation, Vienna Convention, tax treaties, double taxation.

The Establishment and Application of the DNA of Customs Law and Practice

This article is a synthesis of the author’s previously published books and theses (see Walsh, 1986; Walsh, 1996; Walsh, 2015, Walsh, 2020). Notwithstanding the findings of the Irish Commission on Taxation in 1985 (see Irish Government, 1985) (to the effect that they found customs law and administration to be “impenetrable” owing to its antiquity), the author takes the contrary view, which is that customs law, generally, has a perceptible pattern that can be traced and explained in a simple and straightforward manner to yield its raison d’être (its DNA). His particular premise is that identifiable and immutable principles of taxation and administration are at the heart of customs procedures and practices; that these principles of taxation and customs control determine the broad framework of customs legislation generally; and this has been the position from time immemorial, right up to the present day. To validate this premise, he has identified and distilled these formulating principles as they evolved over the centuries in Irish (and English) law. Having done so, he further goes on to house them within the framework of Adam Smith’s so-called canons of taxation (see Smith, 1776) to make them more meaningful in the overall scheme of taxation. It is worth noting that Smith was once a Commissioner of Customs in Scotland. At the same time, the author demonstrates that these principles are enshrined in the customs law of the European Union (EU) and have been influential in the formulation of the original, overarching Kyoto Convention on the Simplification and Harmonisation of Customs Procedures, and its successor, the Revised Kyoto Convention. During its Comparative Studies of Customs Procedures undertaken in the 1950s and 1960s (see Customs Co-operation Council, n.d.), the then Customs Co-operation Council (CCC – now the World Customs Organization) independently came to the same broad conclusion – albeit without identifying or specifying the underpinning individual principles involved. The studies covered the entire spectrum of customs law and embraced the procedures and practices in force in all the then Council member countries. The studies covered the following customs procedures: (a) Study No. 1 (1957) – Importation by Sea: Formalities on Arrival of Ships, prior to Unloading (b) Study No. 2 (1957) – Importation by Sea: Unloading (c) Study No. 3 (1958) – Importation by inland frontiers: Formalities on arrival up to presentation of goods declaration (d) Study No. 4 (1959) – Importation by Air: Formalities on arrival of aircraft, up to presentation of goods declaration (e) Study No. 5 – (Date Unknown) – Clearance of Goods for Home Use (f) Study No. 6 (1964) – Customs transit of imported goods (g) Study No. 7 (1965) – Customs warehousing procedure (h) Study No. 8 (1966) – Temporary Admission (i) Study No. 9 (1968) – Drawback (j) Study No. 10 (1966) – The right of appeal in customs matters (k) Study No. 11 (1968) – Rail traffic.

Extending the St Prix Principle to Self-employed EU Workers

1. This case note examines the important recent ruling of the Court of Justice of the European Union (CJEU) in Revenue and Customs Commissioners v Dakneviciute.1 This ruling held that Art. 49 of th...

Fowler v Revenue and Customs Commissioners [2020] UKSC 22

A case comment dealing with the UK Supreme Court's decision in Fowler v Revenue and Customs Commissioners [2020] UKSC 22. The case concerns the effect on an income tax treaty of a domestic law provision deeming certain employed divers working in the UK to be treated for tax purposes as carrying on a trade. The central issue before the Supreme Court was whether the tax treaty provisions dealing with employment income or business profits applied. The comment deals with key reasons relied on by the Supreme Court in its decision that the deeming provision had no effect on interpretation and application of the tax treaty. Aspects considered include the relevance of Commentaries on the OECD Model Tax Convention, perceived double non-taxation, purposive interpretation, the relation between domestic law and income tax treaties as well as the effect of the court's decision on the collection of tax.

The Dangers of Deeming

Law students are generally taught so little about statutory interpretation that it is particularly to be regretted that one of the few judicial quotations on the subject of statutes that most students remember throughout their later career is fictitious. In Travers v. Travers, according to A.P. Herbert [More Uncommon Law 80 (1982)] Lord Mildew memorably said: ‘There is too much of this damned deeming’. In Barclays Wealth Trustees (Jersey) Ltd v Revenue and Customs Commissioners [2017] EWCA Civ 1512 the Court of Appeal had to deal with a deeming provision and grapple with the difficulties that can arise when legislation glibly pronounces that something is deemed to be the case, and leaves the courts and other readers to cope with the fact that it simply is not. It is too easy for the legislative drafter to deem something to be the case and then sit back with the feeling of a difficult job well done, without thinking whether the practical implications of the context make the legislative deeming sufficient for all the purposes to which it is likely to need to be applied.

Modern Money Had and Received

The many manifestations of money had and received have come to be treated as a single claim, to reverse a defective transfer of value. I show here that this tendency towards unification has led us to exaggerate the role of value, thus obscuring the normative role played by the notion of a ‘transfer’ from claimant to defendant. I argue that ‘transfer’ labels the legal mechanism through which the parties’ balance sheet positions are affected. For cases that involve physical cash, the legal mechanism properly associated with a claim in unjust enrichment is a title transfer. For cases that involve bank money, the legal mechanism is a bank transfer, effected by participating banks as agents for payor and payee. I argue that we should welcome the move in Investment Trust Companies v Revenue and Customs Commissioners towards a transactional test, but that we must draw and defend narrow parameters for it.

INDIRECT ENRICHMENT IN THE SUPREME COURT

A customer purchases services from a supplier to which VAT at the applicable rate is added but VAT was not actually due. Is the customer able to recover these payments by bringing an unjust enrichment claim against the Revenue and Customs Commissioners? “Yes”, answered the Court of Appeal, on the basis that as a matter of “economic reality” the Commissioners were enriched at the expense of the customers, and that such an enrichment was unjust because VAT was not actually due. Lord Reed, giving the unanimous judgment of the Supreme Court, reversed that decision: Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2017] UKSC 29; [2017] 2 W.L.R. 1200. The customers did not have an unjust enrichment claim against the Commissioners because their enrichment was not “at the expense of” the customers.

Do Singapore’s Group Relief Rules Breach the Non-Discrimination Article in the Singapore-United Kingdom Income Tax Treaty?

In this article, the author examines the relationship between the group relief rules under Singapore’s domestic income tax law and the non-discrimination rules in the Singapore-United Kingdom Income Tax Treaty. He submits that the group relief rules are in breach of article 25(3) and 25(1) of the treaty – the so-called “foreign ownership” and “nationality” paragraphs, based on article 24(5) and 24(1), respectively, of the OECD Model Tax Convention, but that article 25(5) of the United Kingdom treaty absolves Singapore from the breach in both instances. The article closely examines the text of the treaty, the OECD Commentary on Article 24 of the OECD Model, the United Kingdom Court of Appeal decision in FCE Bank plc v. Revenue and Customs Commissioners, and Singapore’s position (first published in 2014) on the non-discrimination article.

In the Service of His Korean Majesty: William Nelson Lovatt, the Pusan Customs, and Sino-Korean Relations, by Wayne Patterson

1 In the Service of His Korean Majesty: William Nelson Lovatt, the Pusan Customs, and SinoKorean Relations, 1876–1888, by Wayne Patterson. Berkeley, CA: Institute of East Asian Studies, 2011. 209 pages. $20.00 paperback. ISBN-10: 1-55729-100-4 ISBN-13: 978-155729-100-4 Daniel C. Kane University of British Columbia Pacific Affairs Vancouver, BC Canada With In the Service of His Korean Majesty, Wayne Patterson has given us a detailed and meticulously researched portrait of the Sino-Korean landscape of the early 1880s. At its heart a biography of the English-American William Nelson Lovatt (1838–1904)—at least during his service in Korea (1883–1886), it is in fact more than the story of one man. Using the bountiful Lovatt letters as his primary source, Patterson has succeeded admirably in the difficult task of weaving the thread of Lovatt’s life into the larger fabric of the historical period, testament to the author’s painstaking research and command of a patchwork of sources beyond just the letters themselves. It is divided into four parts that segregate in somewhat dramatic fashion the stages of what one might term Lovatt’s “Korean interlude,” with an epilogue detailing his dismissal from the Korean Customs and departure from Korea. In a helpful and concise concluding chapter, the 2 author brings the larger strands of the story together, drawing more substantial geopolitical conclusions from the microcosm of Lovatt’s own trials and experiences. William Nelson Lovatt began his career in the East as a young artillery soldier in India and then China. Discharged from the British Army, Lovatt next took service with the Chinese Imperial Maritime Customs Service under the direction of the Irishman Robert Hart. Lovatt’s relationship with Korea—both its beginning and premature end—owed itself more than anything to his close, and at times troubled, friendship with Paul Georg von Möllendorff, also employed by the Chinese Customs. Thanks to Möllendorff, Lovatt arrived in Korea in late 1883 with a five-year contract to serve as Commissioner of Customs at Pusan, then a sleepy backwater with a large Japanese population but very few Westerners. But beyond Pusan, this is also a story about the early years of Korea’s modernization and the workings of its infant Customs Service during Korea’s “Chinese decade” (ca. 1884–1894). In writing this work, Patterson relies more than anything else on the Lovatt letters, which the author informs us fell serendipitously into his hands during a trip to China in the 1980s (the story of the trajectory of the letters themselves would have made interesting reading, but the author is rather silent on this point). They are indeed a trove of valuable information, for they have allowed Patterson to essentially, and successfully, recreate a decade-long story from their details. The author does not limit himself to Lovatt’s experiences, but takes as his overarching theme, “the transformation of China’s policy toward Korea from the ritualistic hands-off and largely benevolent policy . . . before 1880, to an increasingly interventionist policy in the first half of the 1880s . . . and finally [by the late 1880s] . . . to a policy that has been variously termed as ‘indirect,’ ‘informal,’ or ‘secondary’ imperialism” (p. vi). It is this theme that dominates the 3 background to Lovatt’s story. I could do no better than paraphrase the author as well regarding the insights the Lovatt letters can provide us. The first is their depictions of the general conditions of Korea, and specifically Pusan, in this period. Second, are the insights they provide into the workings (and failures) of the Korean Customs during its infancy. Third, are the windows they open to the lives of Western expats in Korea. And finally, there are the new details they provide on key figures, particularly regarding the motivations and personalities of Möllendorff and his eventual replacement, Henry Merrill. Patterson’s book succeeds admirably in all the ways enumerated above. The Lovatts’ experiences in Pusan, and interactions with local Korean officials and eyewitness accounts of the lives of average Koreans, provide us details on the poverty, corruption, and social divisions of the place and period. The challenges and experiences of...

R (on the application of Gibraltar Betting and Gaming Association Ltd) v. Revenue and Customs Commissioners and Another[2015] EWHC 1863 (Admin), CO/4813/2014 (QBD, Administrative Court, July 14, 2015)

R (on the application of Gibraltar Betting and Gaming Association Ltd) v. Revenue and Customs Commissioners and Another<i>[2015] EWHC 1863 (Admin), CO/4813/2014 (QBD, Administrative Court, July 14, 2015)</i>

Exmoor Coast Boat Cruises Ltd v HM Revenue and Customs Commissioners

Exmoor Coast Boat Cruises Ltd v HM Revenue and Customs Commissioners

Notes on the butterflies “described” in 1929 by Prof. Woon-Young Chun from Hainan Island, China (Lepidoptera, Papilionoidea)

Joicey &amp; Talbot (1921) described 2 new species and 19 new subspecies of butterflies and one new subspecies of Zygaenidae from Hainan Island, China. The specimens studied by Joicey &amp; Talbot from Hainan were obtained by Charles Talbot Bowring (1862–1932) between the years 1918 and 1920. Bowring, who also used the Chinese name Bao Lai-ling, was Commissioner of Customs at Hoihow (Haikou), capital of Hainan, from 1915 to 1920, and “sent many thousands of specimens” of Lepidoptera to the Hill Museum, Surrey, England (Talbot, 1921), where they were studied by James John Joicey (1871–1932), owner of the Museum, and George Talbot (1882–1952), its Curator. Joicey &amp; Talbot (1921) also mentioned that Mr. Young Chun, a Chinese graduate of Harvard University, made a journey of three months in the Five Finger Mountains, Hainan and “managed to get together a very fine lot of Lepidoptera for Mr. Bowring”. Prof. Woon-Young Chun (1890–1971) eventually became a very famous botanist in China, and his father, a Chinese diplomat, was a friend of Bowring. Prof. Chun published many botanical monographs and papers during his life time, but he also wrote one obscure entomological article dealing with new butterflies found in Hainan. In 1929, he published the paper “Description of new butterflies from the island of Hainan” in Agricultura [Zhong-da-nong-xue], which was a Chinese journal issued by the Agricultural College, National Central University (now called Nanjing University), Nanjing. Chun (1929) mentioned that “the new butterflies here described were part of a collection made on the Island of Hainan during 1920 …” and “they were determined by Messrs J. J. Joicey and George Talbot”. In that paper, Chun “described” one new species and 10 new subspecies of butterflies which had already been named by Joicey &amp; Talbot (1921). Surprisingly, Chun's descriptive text is copied almost verbatim from Joicey &amp; Talbot (1929), with a very few changes and additions, and nowhere does he mention that the original descriptions of the taxa listed by him had been published by Joicey &amp; Talbot in the first volume of the Bulletin of the Hill Museum in 1921. A possible intention of Chun is that he just wanted to introduce those new butterflies collected by himself in Hainan to Chinese readers. The fact is that, judging from information in Joicey &amp; Talbot (1921), the specimens on which the “new” taxa in Chun (1929) were described, had indeed been collected by himself in 1920. Nevertheless, all the names “described” by Chun ought to be credited to Joicey &amp; Talbot (1921) and not to Chun (1929). In a strict sense, the names published by Chun in 1929 should all be regarded as junior primary homonyms of the names first published by Joicey &amp; Talbot in 1921. Some people who may have had access to Chun's paper may have been misled in believing he was the original author of such names. Even worse, the Zoological Record for 1932 listed Chun's 1929 paper based on a 6-page offprint of the original, without place of publication, and attributed the “new” taxa to Chun. Whereas the paper by Joicey &amp; Talbot (1921) is nowadays easily consulted, by being available online through Internet Archive (www.archive.org/) and the Biodiversity Heritage Library (www.biodiversitylibrary.org/), Chun's 1929 paper is almost unobtainable. So, for a long time, scholars who study butterflies from Hainan and adjacent regions have often been confused with questions such as whether Stichophthalma howqua bowringi was described by Chun in 1929 or by Joicey &amp; Talbot in 1921. After comparing the text of Chun (1929) with that of Joicey &amp; Talbot (1921) together, we clarify this historical problem in this short note.

Blackburn and others v HM Revenue and Customs Commissioners: [2013] UKFTT 525 (TC): First-Tier Tribunal Tax Chamber: Her Honour Judge Barbara Mosedale: 2 October 2013

Blackburn and others v HM Revenue and Customs Commissioners: [2013] UKFTT 525 (TC): First-Tier Tribunal Tax Chamber: Her Honour Judge Barbara Mosedale: 2 October 2013

Understanding Intimidation

This article examines the gist, vitality and practical utility of the tort of intimidation and identifies what count as unlawful threats and as actionable harm. While two versions of the tort have been identified in the past – one involving two parties, one involving three – only the former has survived the decision of the House of Lords in OBG v Allan. In the context considering the tort's practical usefulness, the article exposes as bogus the suggestion that two‐party intimidation offers nothing that is not already supplied under the law of contract via the doctrines of anticipatory breach, duress and economic duress. The article concludes with two radical suggestions. First, that two‐party intimidation is not a specifically economic tort and secondly, in view of this fact, it was a most inappropriate tool for the House of Lords to have used in their resurrection of the tort of unlawful means conspiracy in Total Network SL v Revenue and Customs Commissioners.

More Questions Than Answers: Test Claimants in the Fii Group Litigation v Revenue And Customs Commissioners

More Questions Than Answers: Test Claimants in the Fii Group Litigation v Revenue And Customs Commissioners

Overview: Tax Law

Four cases concerning tax law came before the Supreme Court in the 2010–11 legal year. In Holland v Revenue and Customs Commissioners,1 the issue was whether the respondent Holland had acted as a de facto director for the 42 insolvent companies in question, of which HM Revenue and Customs Commissioners (HMRC) was the sole creditor in respect of corporation tax. On this basis it was alleged that Holland had been guilty of misfeasance and breach of duty in causing the payment of dividends to the companies’ shareholders when the companies had insufficient distributable reserves to pay their creditors. The Court held by a bare majority that Mr Holland had simply discharged his duties as the director of the corporate director, and as such was not a de facto director. Therefore, he was not personally answerable to the HMRC’s claim under Section 212 of the Insolvency Act 1986. It should be noted that the importance of this case is likely to be limited: Section 155(1) of the Companies Act 2006 now requires that a company must have at least one director who is a natural person who could, if necessary, be held to account for the company’s actions.2 Revenue and Customs Commissioners v DCC Holdings (UK) Ltd3 involved a complex tax avoidance scheme. The arrangement involved five repo transactions concerning gilts. A repo transaction is a fixed price sale and purchase of gilts, which has the equivalent economic effect of a short term secured loan.4 The tax legislation looks to the substance of such arrangements, and is intended to treat the transactions as loans.5 Thus, the repo transactions are deemed to produce credits and debits between the parties which are subject to tax. The purpose of the appellant’s scheme was to create a loss for the company for tax purposes without suffering genuine economic loss. Under the relevant legislation, this seemed perfectly possible. The company appeared to be able to claim a tax loss of £28.8m, while garnering a mere £2.9m of taxable credit. Nevertheless, the justices were driven to find a “symmetrical solution” to avoid the

Henry Hulton and the American Revolution: an outsider's inside view

Henry Hulton was an Englishman who moved to Boston in 1767 as a member of the new American Board of Customs Commissioners. The board was supposed to curtail smuggling and bring greater efficiency to the administration of empire. It failed, and Hulton fled Massachusetts in 1776, joining an exodus of the politically displaced. Hulton eventually wrote a never-published history of the American rebellion as he experienced it. Although his complaints about the 'demagogues' who dominated Massachusetts politics echo those made by other Loyalists. Hulton adds another dimension to our understanding. As an Englishman, he could be more detached from the problems of empire than Loyalists who had been driven from their native land. For those interested in the complexities of historical causation, this interpretation provides a telling case study of how an author can combine individual action with deeper forces to explain events. Though not a historical determinist, Hulton did see rebellion as the logical result of American attitudes and behaviors that London allowed to go unchecked for too long. Hulton's history, his letters, and the letters of his sister, Ann, who lived with him outside Boston - all of which are reproduced here - provide an unusual glimpse into the onset of the Revolution in Massachusetts. Hulton was himself an intriguing figure, an Englishman seeking to secure fame and fortune abroad, first in Germany, then on the island of Antigua, then again in Germany, with a stop in London before ambition took him back across the Atlantic, this time to Massachusetts. He would end his days a retired gentleman living in the English countryside, frustrated by his experiences on both sides of the Atlantic but determined to teach his five sons the lessons about life that he learned and recorded in this history.

London Clubs Management Ltdv.Revenue and Customs Commissioners

Gaming Law Review and EconomicsVol. 15, No. 1-2 CasesLondon Clubs Management Ltdv.Revenue and Customs CommissionersUpper Tribunal (Tax and Chancery Chamber)[2010] All ER (D) 123 (Nov); [2010] UKUT 365 (TCC)5 October 2010Published Online:20 Feb 2011https://doi.org/10.1089/glre.2011.15112AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 15Issue 1-2Jan 2011 InformationCopyright 2011, Mary Ann Liebert, Inc.To cite this article:London Clubs Management Ltdv.Revenue and Customs Commissioners.Gaming Law Review and Economics.Jan 2011.59-66.http://doi.org/10.1089/glre.2011.15112Published in Volume: 15 Issue 1-2: February 20, 2011PDF download

H. B. Morse: Customs Commissioner and Historian of China (review)

H. B. Morse: Customs Commissioner and Historian of China (review)