2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered a review application arising from its 2009 appellate decision in Chapel Hill School v Attorney-General & Internal Revenue Service, which had held that Chapel Hill School, until converting to a company limited by shares, was an educational institution of a public character and therefore its income was exempt from tax. The Commissioner of Internal Revenue sought review, arguing that the Court had misconstrued section 10(1)(d) of the Internal Revenue Act, 2000 (Act 592) and section 3(1)(d) of the Income Tax Decree (SMCD 5), and that an exempt organization is liable to tax on business income. In separate opinions, the majority (Akuffo, Date-Bah, Owusu, Baffoe-Bonnie, Gbadegbe JJSC) found no exceptional circumstances warranting review: the prior decision considered the statutory provisions and adopted one of the available interpretations; mere disagreement does not justify review. Two justices (Atuguba JSC, Akoto-Bamfo JSC) dissented, viewing the prior construction as erroneous with serious revenue impact. The application was dismissed, leaving the 2009 decision intact.
R U L I N G
ATUGUBA, J.S.C:-
This application for Review raises a short point but involves important questions.
The earlier decision of this court in this case has been reported, see In re Assessment of Income Tax by The Commissioner of Internal Revenue; Chapel Hill School v Attorney-General & Internal Revenue Service (2009) SC GLR 432. The facts of the case are as stated in the headnote thereof as follows:
“The appellant in this case, Chapel Hill School, was originally established as the Takoradi Chapel Hill Preparatory School in December 1962 by fourteen people who subscribed its Instrument of Establishment and Governance as founders. The instrument of incorporation purported to establish it as a corporation sole. The appellant school was subsequently incorporated under the Companies Act, 1963 (Act 179), as a company limited by guarantee. However, in 2001, the appellant was incorporated as a company limited by shares under the said Companies Act, 1963 (Act 179)
The Internal Revenue Service (hereafter the second respondent), assessed the appellant tax for the years 1994 to 2004 in the sum of Gh¢39,864.40. Subsequently, the appellant’s objection to that assessment was turned down by the Commissioner of Internal Revenue. The appellant Chapel Hill School therefore appealed to the High Court, Sekondi, in July 2005, seeking a declaration that the appellant was an educational institution of a public character and thus its income was exempt from tax. It also sought an order for the annulment of the tax assessments for the years 1994 to 2004. Even though the High Court found that the appellant school was an educational institution serving the people of Takoradi and its environs; and that the school was for the use and benefit of the public, the court held that, that finding alone, did not make the appellant a school “of a public character” The High Court therefore dismissed the appeal. Upon a further appeal to the Court of Appeal, that court also dismissed the appeal. Being aggrieved by the dismissal of its appeal by the two lower courts, the appellant brought the instant appeal before the Supreme Court.”
On these facts this court held (1) that the respondent was until it converted into a company limited by shares, an educational institution of a public character and (2) that therefore its income is exempted from tax. In this review application the applicant contests the second limb of this court’s decision.
Principles for entertaining Review applications: