IN THE HIGH COURT OF KIRIBATI
HCCC 14/95

BETWEEN:

MAKAATA ETI
Applicant

AND:

INSPECTOR OF TAXES
Respondent

(BEFORE THE HON STAN CORY C.J.)

Mr B Berina for the Applicant
Ms P Atanraoi for the Respondent

JUDGMENT

In this case income tax assessments having issued against the applicant for tax owing for 1991, 1992, 1993 and 1994, an ex parte application was made to freeze the money in 3 bank accounts held by the applicant in the Bank of Kiribati and the Court made an order to that effect on 7 April 1995. The present application is to have that order set aside.

Counsel for the applicant concedes that under Section 100 of the Income Tax Act 1990, being No. 9 of 1989, the respondent has the power to make the assessments on behalf of the Internal Revenue Board, but submits that there is not a sufficiently defined delegation of power to the respondent to authorise him to apply to the Court for an order to freeze the money in the bank accounts.

Section 127(2) of the above Income Tax Act 1990 provides:-

Section 127(2)

The delegation of any function under this Act shall be made in accordance with Part III of the Internal Revenue Board Act of 1990.

Part III of the Internal Revenue Board Act 1990 which is No. 8 of 1989 provides by Section 5(1):-

Section 5(1)

The Board may either generally or as otherwise provided in the instrument of delegation, by writing, delegate any of its functions to a public officer designated in that instrument, unless any of the Acts referred to in Section 4 otherwise provides.

By paragraph 2 of an instrument dated 17 December 1992 cited as the Inspector of Taxes and Staff of Taxation Division (Delegation) Instrument 1992:-

"The Inspector of Taxes and the Staff of the Taxation Division of the Ministry of Finance and Economic Planning shall have full power and authority to administer the Income Tax Act (No. 9 of 1989)".

The question then is does the delegation of power to the Inspector of Taxes with full power and authority to administer the Income Tax Act, include the power to apply to the Court under Order 55 Rule 3 of the High Court Rules for an ex parte order to freeze the applicant's bank accounts?

"Administrative power" is referred to in Halsbury's Laws of England 4th Edition Vol. 1 paragraph 21 and states "Powers expressly conferred will however, be so interpreted as to authorise by implication the performance of acts reasonably incidental to those explicitly granted" Grainger v Liverpool Corp 1954 B.351.

In my view the delegation of power to the Inspector of Taxes was a sufficient delegation of power to authorise him to apply to the Court for an ex parte order such action being reasonably incidental to his power and authority to administer the Income Tax Act, any delay in applying to the Internal Revenue Board to apply for the ex parte order may well have resulted in the risk of the bank funds being withdrawn and removed from the jurisdiction as referred to in paragraph 7 of the respondent's affidavit.

I note in passing that if Counsel for the respondent had taken the trouble to look at Section 114 of the Income Tax Act 1990 as amended by Section 27 of the Income Tax (Amendment) Act 1993 (No. 3 of 1993), they would have found it completely unnecessary to apply to the Court for an ex parte order, as Section 114 as amended provides for the Bank on receipt of a notice from the Board to pay the Board the money held by the Bank on behalf of the applicant.

THE HON STAN CORY
ACTING CHIEF JUSTICE
(26/05/95)