The topic of tax avoidance is no stranger to controversy, having sparked lots of interest in both private and public discourse. With the advent of the Organisation for Economic Co-operation and Development (OECD) and G20's Base Erosion and Profit Shifting Action Plan (i.e. the BEPS Action Plan), this topic is even more prevalent than before. According to the OECD, national laws have not always kept pace with global developments, the fluid movement of capital and the rise of digital economy. Apparently, this leaves gaps and mismatches that can be exploited by businesses, thus undermining the fairness and integrity of tax systems. The OECD's stand on this matter somewhat mirrors that adopted by the Inland Revenue Board of Malaysia in public discourse, or at least in the four court cases discussed below.
With this backdrop, this article will examine the judicial mood in recent tax avoidance cases in Malaysia, namely, Sabah Berjaya, Port Dickson Power, Ibraco-Peremba and Ensco Gerudi.
Tax mitigation explained
Section 140(1) of the Income Tax Act 1967 ("ITA") confers on the Director General of Inland Revenue ("DGIR") the authority to disregard or vary transactions if he has reason to believe that the said transaction alters the incidence of tax, relieves any person from any tax liability, evades or avoids any duty or liability imposed or hinders or prevents the operation of the ITA.
In such circumstances, the DGIR may, without prejudice to such validity as it may have in any other respect or for any other purpose, disregard or vary the transaction and make such adjustments as he thinks fit with a view to counter-acting the whole or any part of any such direct or indirect effect of the transaction.
Section 140(1), which is modelled after the then Australian general anti-avoidance provision, is not peculiar to Malaysia alone; it has parallels in other jurisdictions where it has received judicial consideration (see Sabah Berjaya Sdn Bhd v Ketua Pengarah Jabatan Hasil Dalam Negeri, cited next page).
In this area of the law, there is a clear distinction between tax evasion, tax avoidance and tax mitigation. Tax evasion in most jurisdictions including Malaysia is illegal and gives rise to substantial civil and criminal sanctions. In Malaysia, by virtue of s 140(1), the DGIR is entitled to disregard or vary any transaction that is created merely for the purposes of tax avoidance.
The Australian position is similar to Malaysia. If the dominant purpose of a transaction has no commercial purpose, then that transaction will be disregarded or varied as being for the purpose of tax avoidance by tax authority there. Therefore, the objective of the exercise must be to achieve a commercial purpose and not to enjoy tax efficiency without any other commercial purpose for the transaction. However, if tax savings arise by the manner in which the commercial transaction is implemented or structured, that is regarded in law as tax mitigation.
If the incidence of tax is altered or a party is relieved of its liability to pay tax as a consequence of a transaction that has commercial justification or the transaction is a bona fide transaction, the DGIR is not entitled to disregard or vary that transaction. This is generally known as tax mitigation if a benefit is obtained by reason of a transaction that has commercial justification or is bona fide and yet, it reduces a party's liability to tax.
The four cases: Facts and principles
(i) Sabah Berjaya Sdn Bhd v Ketua Pengarah Jabatan Hasil Dalam Negeri1
The taxpayer was one of several wholly-owned subsidiaries of the Sabah Foundation, an approved institution. Gifts of money made to the foundation were tax deductible in the hands of the donor. Between 1979 and 1985, the then Chief Minister of Sabah was chairman of both the foundation and the taxpayer. During that period, there was a letter from the state ministry of finance to the subsidiaries of the foundation. It required all surplus funds in the subsidiaries to be donated to the foundation.
Accordingly, the taxpayer resolved that the whole of its profit shall be donated to the foundation, a practice that continued for eight years. Later, the DGIR invoked s 140(1) and disallowed the sums donated by the taxpayer to the foundation. Among others, the DGIR argued that the making of the donations amounted to a tax avoidance scheme.
The Court of Appeal rightly analysed the distinction between tax evasion, tax avoidance and tax mitigation. This is the first decision of a local superior court to have dwelt on this topic. The court adopted with approval the following opinion of the Privy Council in Commissioner of Inland Revenue v Challenge Corporation Ltd,2 where s 99 of the Income Tax Act 1976 of New Zealand is in pari materia with our s 140.
"... Evasion occurs when the commissioner is not informed of all the facts relevant to an assessment of tax. Innocent evasion may lead, to a reassessment. Fraudulent evasion may lead to a criminal prosecution as well as reassessment. In the present case Challenge fulfilled their duty to inform the commissioner of all the relevant facts.
"The material distinction in the present case is between tax mitigation and tax avoidance. A taxpayer has always been free to mitigate his liability to tax. In the oft-quoted words of Lord Tomlin in IRC v Duke of Westminster  AC 1 at p 19: 'Every man is entitled if he can to order his affairs so as that the tax attaching under the appropriate Act is less than it otherwise would be'. In that case however the distinction between tax mitigation and tax avoidance was neither considered nor implied.
"Income tax is mitigated by a taxpayer who reduces his income or incurs expenditure in circumstances which reduce his assessable income or entitle him to reduction in his tax liability. Section 99 does not apply to tax mitigation because the taxpayer's tax advantage is not derived from an arrangement but from the reduction of income which he accepts or the expenditure which he incurs.
"Thus when a taxpayer executes a covenant and makes a payment under the covenant he reduces his income. If the covenant exceeds six years and satisfies certain other conditions the reduction in income reduces the assessable income of the taxpayer. The tax advantage results from the payment under the covenant. When a taxpayer makes a settlement, he deprives himself of the capital which is a source of income and thereby reduces his income. If the settlement is irrevocable and satisfies certain other conditions the reduction in income reduces the assessable income of the taxpayer. The tax advantage results from the reduction of income.
"Where a taxpayer pays a premium on a qualifying insurance policy, he incurs expenditure. The tax statute entitled the taxpayer to reduction of tax liability. The tax advantage results from the expenditure on the premium. A taxpayer may incur expense on export business or incur capital or other expenditure which by statute entitles the taxpayer to a reduction of his tax liability. The tax advantages result from the expenditure for which Parliament grants specific tax relief.
"When a member of a specified group of companies sustains a loss, Section 191 allows the loss to reduce the assessable income of other members of the group. The tax advantage results from the loss sustained by one member of the group and suffered by the whole group.
"Section 99 does not apply to tax mitigation where the taxpayer obtains a tax advantage by reducing his income or by incurring expenditure in circumstances in which the taxing statute affords a reduction in tax liability. Section 99 does apply to tax avoidance. Income tax is avoided and a tax advantage is derived from an arrangement when the taxpayer reduces his liability to tax without involving him in the loss or expenditure which entitles him to that reduction. The taxpayer engaged in tax avoidance does not reduce his income or suffer a loss or incur expenditure but nevertheless obtains a reduction in his liability to tax as if he had."
Applying the above principles, the Court of Appeal in Sabah Berjaya unanimously held that the taxpayer did not pretend to donate its entire profit to the Foundation. On the evidence, there was an actual donation thus the question of tax evasion did not arise. As in Challenge Corporation, there was a payment that reduced the foundation's income in circumstances in which s 44(6) of the ITA clearly afforded a reduction in tax liability. According to the Court of Appeal, the taxpayer did not engage in tax avoidance as it did not do anything that did not reduce its income or suffer a loss yet resulting in it obtaining a reduction in its liability to tax as if it had.
It is so clearly laid down in the Sabah Berjaya case that arranging one's affairs to enjoy a tax benefit that is permissible under the ITA does not amount to tax avoidance. Arising from this point, the next question is whether this principle remains good law. The cases discussed below may hold the answer to this question.
(ii) Port Dickson Power Bhd v Ketua Pengarah Hasil Dalam Negeri3
Port Dickson Power has the distinction of being the first reported case in Malaysia where judicial review was granted to quash an assessment raised under s 140(1) of the ITA. The taxpayer applied for an order of certiorari to quash the additional assessments raised by the DGIR. The taxpayer, an independent power producer licensed by the government to exclusively supply electricity to Tenaga Nasional, was to finance, construct and operate a power plant. The taxpayer raised funds for the project by way of equity, shareholders' borrowings by way of loan stock and third party borrowings. In respect of the loan stock, the taxpayer had an obligation to pay interest at the rate of 12% per annum to the subscribers of the loan stock and retained the right to redeem the loan stocks. Interest was incurred by the taxpayer in servicing the loan stock. The interest expenditure was deducted under s 33(1) of ITA as expenses wholly and exclusively incurred in the production of its income.
The DGIR invoked s 140(1) and disallowed the interest on the loan stock paid by the taxpayer to its loan stock holders, being of the view that the taxpayer should not have obtained funding by way of loan stock from its shareholders. Instead, it should have requested the shareholders to increase their equity contribution. The DGIR contended that the issuance of loan stock and the consequent interest expenditure were a scheme by the taxpayer to alter their tax incident.
The thrust of the taxpayer's case was concerned with the issue surrounding the proper, or rather, the improper, invocation of s 140(1). First, the notice of additional assessment was defective as it did not specify or particularise which limb under that subsection that the IRB had resorted to. Second, the DGIR had not shown any ground for believing that it was necessary to invoke the tax avoidance provision.
The High Court held that the ability of the DGIR to ascertain his grounds for entertaining the necessary belief would greatly assist him in identifying under which particular paragraph in s 140(1) that the taxpayer had committed the impugned act of understating their income. It was added that the DGIR had misconceived or otherwise misconstrued the agreement that had become the basis upon which the taxpayer was required to pay the interest of 12% for the loan stocks. There was no suggestion that the agreement was a sham designed to facilitate the taxpayer in avoiding paying tax. The High Court cited in support the decision of Westmoreland Investment Ltd v Macniven (Inspectors of Taxes)4 which observed:
"Money raised by borrowing belongs to the borrower; it is as much his money as any other money of his. Expenditure is incurred by the taxpayer whatever the source of his finance with which he intends to meet it."
In other words, just because the taxpayer had to borrow in order to pay for the interest that accrued did not mean that the payment of the interest was not genuine. The High Court commented that in the present case, the financiers were local public listed companies of good repute and there was nothing in the affidavits of the DGIR to suggest otherwise. If the whole financial structure that was put in place that had provided for the apparent obligation on the taxpayer to service the 12% interest was indeed a sham, then the burden or the onus ostensibly rests with the DGIR to prove that it was indeed a sham. According to the High Court, the decision in Customs and Excise Commissioners v Faith Construction Ltd5 would be authority for this proposition:
"If the payments are to be disregarded the Crown would, I think, have to show that they were a sham."
Hence, in the absence of any such proof put forth by the DGIR to the effect that the interest payments were not what the taxpayer had made them out to be, the High Court, as was held in the Faith Construction case, held that one is not entitled to disregard their legal effect and treat them as something else. In concluding, the High Court held in clear language that a taxpayer is entitled to mitigate his incidence of tax as long as he does not, in so doing, evade or avoid having to pay the necessary tax.
The High Court also held the DGIR had failed in its statutory duty to give particulars, concurrently with the notice of additional assessments that were alleged to be due. Relying on the decisions of the then Supreme Court in Director-General of Inland Revenue v Hup Cheong Timber (Labis) Sdn Bhd6 and Director-General of Inland Revenue v Rakyat Berjaya Sdn Bhd,7 it was ruled that such failure to comply with the mandatory provisions as contained under s 140(5) of the ITA would render the decision of the DGIR null and void and of no effect.
The Court of Appeal, however, allowed the DGIR's appeal without providing any oral or written grounds in support of its decision. Reference is made to Petronas Penapisan (Terengganu) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri,8 where it was held that in the absence of written grounds, the decision of the Court of Appeal does not form a binding precedent. In light of the Court of Appeal's reversal of the High Court's decision, a legal quandary arises as to the status of the following principles that were rightly and firmly held by the High Court:
- The DGIR has a duty to identify under which particular paragraph under s 140(1) that the taxpayer had committed the impugned act of understating their income; and
- He must have reasons to believe that the taxpayer had committed an act resulting in tax avoidance. The burden of proof to establish that the transaction was a sham rests with the DGIR. In the absence of any such proof, the DGIR is not entitled to disregard their legal effect and treat them as something else.
The only way to test the veracity of these principles is to wait for another taxpayer to raise them on another occasion before our courts. Be that as it may, the High Court's decision that the DGIR has a statutory duty to give particulars, concurrently with the notice of additional assessments alleged to be due as contained under s 140(5) of the ITA, remains unaffected. This aspect of the decision was in reliance of another two older apex court decisions, namely, Hup Cheong Timber and Rakyat Berjaya.
(iii) Syarikat Ibraco-Peremba Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri9
The taxpayer was a property developer, and profits derived were regarded as business income and subject to income tax under the ITA. The taxpayer identified a few plots of land in Kuching as being suitable for long-term investment and on which it intended to build shophouses and a shopping complex with the objective of leasing out some of the shophouses. However, such an undertaking would result in the gains arising therefrom being subject to income tax. Accordingly, the taxpayer sought advice from Arthur Andersen HRM (Tax Services) Sdn Bhd ("AA"), upon which the developer formed a subsidiary that transacted with the taxpayer to develop the project. The subsidiary was formed as an investment holding company and was made to undertake the project. Upon completion of the project, the taxpayer undertook a restructuring activity and sold some shares of the subsidiary to a related company. Eventually, the subsidiary and the related company were all wound up.
The DGIR argued that the taxpayer was a property development company that acquired and developed land through the subsidiary, which it then sold for profits. The profits arising therefrom were therefore business income and subject to income tax. According to the DGIR, the taxpayer sought advice from AA to minimise its tax incident, where a letter from the latter read as follows:
"... We understand that the principal activity of Ibraco- Peremba Sdn Bhd (hereinafter "the Company") is developing properties for resale. It intends to build shophouses and a complex for renting out for a period of time before it sells the shophouses and complex in its entirety or in units. The company has applied for approval to build the shophouses and complex. The Company also plans to build shophouses on another lot of land with the objective of leasing out the shophouses for a period of time prior to sale. Against this background we have been requested to suggest an effective method of developing the properties to minimise the tax impact to the Company...
"Under this scenario, we have considered a structure which, if implemented, could result in the sales proceeds being treated as capital gains and hence, be subject to RPGT. That is, the lands will be transferred to a 100% realty company of Ibraco. Real property gains tax is payable on the market surplus of the lands. Stamp duty exemption should be available under s 15A of the Stamp Act. As the developed properties will be held for rental for a relatively long period, say five years, there is a valid argument that the gain (or loss) of the investment properties is on capital account and subject to real property gains tax."
Pursuant to AA's advice, the taxpayer organised various transactions including the restructuring activity. The DGIR contended that the setting up of the subsidiary was merely a vehicle to defray the intention of the taxpayer as the former was fully controlled by the taxpayer and was without any expertise or funds to develop the project. There was no commercial or business reason to set up the subsidiary, except for the purpose of the scheme to avoid such disposal from being taxed under income tax. The subsidiary and the related company which acquired the former's shares were formed for the same purpose of tax avoidance. This is because after they had completed their tasks, both had been voluntarily wound up by their shareholders.
The taxpayer, on the other hand, argued that the disposal of shares in the subsidiary was a realisation of investment and not an adventure in the nature of trade or trading. Even if there is a liability to tax, it should be on the gain arising from the disposal of shares in a real property company. The taxpayer challenged the DGIR's approach of examining the entire business transaction in totality and questioning the commercial motive of each transaction.
The Court of Appeal remarked that in light of s 140(1) (c) of the ITA, it was for the taxpayer to demonstrate that the transaction or arrangement by which the income was produced was so preordained by compliance with the requirements of law or accepted business practices to limit risk exposure, and that the tax savings were purely incidental. Other than this, all that remains solely at the taxpayer's discretion was "tax mitigation", which, as explained in Challenge Corporation, was not subject to tax avoidance because the taxpayer's tax advantage was not derived from an "arrangement" but from the reduction of income which he accepts by reducing his income, or the higher expenditure which he incurs, or by incurring expenditure in circumstances in which the taxing statute affords a reduction in tax liability.
In this case, the Court of Appeal held that it was quite clear that the advice of AA was obtained for the primary purpose of ordering the transactions in a manner to minimise tax. There was tax avoidance when the transactions entered into by the taxpayer through shell companies revealed the factual situation that the tax position was altered. Further, there was finding of facts that the taxpayer had in fact implemented a scheme following the advice of the tax consultant in perpetuating one original intention of selling of the project as it intended to do from the start. The principle enunciated in W T Ramsay Ltd v Inland Revenue Commissioners10 is that where a tax avoidance scheme comprised a number of specific transactions to avoid tax, the genuineness or otherwise of each individual step or transaction need not be looked at from each individual step or transaction but is to be looked at as a whole.
This decision reiterates that a taxpayer must be able to demonstrate that the transaction or the arrangement undertaken by them was consequent to the requirements of law or accepted business practices and that the tax savings were purely incidental. Failure to do so may result in them not being able to challenge the invocation of tax avoidance provision against them. However, it is comforting to note that the Court of Appeal had endorsed the principle of tax mitigation as discussed in Challenge Corporation. Hence, this decision, like the one in Port Dickson Power, recognises the concept of tax mitigation in Malaysia as long as a taxpayer is able to justify the commercial reason behind the transaction.
(iv) Ensco Gerudi (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri11
The taxpayer had been providing offshore drilling services to the petroleum industry in Malaysia for 18 years. Its customers included national and international oil and gas companies. The taxpayer, however, does not own any drilling rigs. It would enter into a leasing agreement on a bareboat charter basis with a rig owner within the Ensco Group. Later, one of the rig owners decided to incorporate a Labuan company to facilitate easier business dealing for the taxpayer. The formation of the Labuan company was approved by the Labuan Financial Services Authority ("Labuan FSA"), which was allowed to undertake leasing business with the taxpayer. Bank Negara Malaysia had also given the necessary approval. Pursuant to these approvals, the taxpayer entered into an agreement with the Labuan company. Unlike the previous transactions of the taxpayer, where the payments to lease the drilling rigs attracted withholding tax, the payments made to the Labuan company did not attract any.
The DGIR investigated the taxpayer and invoked s 140(1) (c) to disregard the transaction between the taxpayer and the Labuan company. The DGIR, among others, alleged that:
- the Labuan company had no economic or commercial substance;
- the economic and absolute rights over the assets had not been transferred to the Labuan company;
- the Labuan company was under the control of the Ensco Group; and
- the Labuan company only transacted with the taxpayer and the purpose of transaction was more to benefit from the tax incentives provided.
The taxpayer argued that the invocation of s 140(1) (c) on the basis of tax avoidance was irrational and unreasonable. The DGIR by doing so had committed an error law.
The High Court, in ruling in favour of the taxpayer, pronounced that the DGIR's requirements such as the Labuan company must own its own assets to be leased and that it must enter into leasing business with several entities were neither required by the LFSA nor by the relevant Labuan legislation regulating leasing business. The DGIR's unilateral imposition of these requirements was entirely ultra vires.
The principle enunciated in Sabah Berjaya was applied and there was no evidence to show that the lease payments were returned to the taxpayer in any form whatsoever to surreptitiously evade or avoid tax liability. The taxpayer was entitled to claim tax deduction on the lease payments notwithstanding whether it leased it from the Labuan company or the rig owners. There was nothing artificial about the payments and there was no circularity of payments. In fact, the High Court added that the transactions were within the meaning and scope of the arrangements contemplated by the Government. Interestingly, the High Court relied on the majority decision of the New Zealand Supreme Court in Ben Navis Foresty Ventures Ltd v Commissioner of Inland Revenue12 in ruling that the ultimate question was whether the impugned arrangement viewed in a commercially and economically realistic way makes use of the specific provision in a manner which was consistent with Parliament's intention. If the answer was in the affirmative, then the mere usage of provision does not tantamount to a tax avoidance arrangement. The High Court firmly held that taxpayers have the freedom to structure transactions to their best tax advantage. It is notable that the High Court observed that there was no evidence to show that the lease payments were returned to the taxpayer in any form whatsoever to surreptitiously evade or avoid tax. There was no artificiality about the payments and no circularity of payments. The transactions were within the meaning and scope of the arrangements contemplated by the Government in actively offering incentives, which in this case was to promote Labuan as an international trade and financial centre.
The approach taken in Encso Gerudi is no different from that in Ibraco-Peremba, whereby if the taxpayer is able to demonstrate that the arrangements have a genuine commercial basis and, where applicable, such arrangements are not inconsistent with the legislation promulgated by Parliament, then the DGIR has no room to invoke s 140(1).
The authors are of the view that the principles enunciated in Sabah Berjaya remain good law despite the passage of time. Accordingly, the scene for tax avoidance law in Malaysia could be summed up as follows:
- Where a taxpayer is accorded a tax benefit by virtue of the law and he arranges his affairs to enjoy that benefit which is permissible under the ITA, then such initiative does not amount to tax avoidance. In this context, a taxpayer has the freedom to structure transactions to his best tax advantage;
- A taxpayer must be able to demonstrate that the transaction or the arrangement undertaken was consequent to the requirements of law or accepted business practices and that the tax savings were purely incidental. There should be a genuine commercial reason behind the transaction or arrangement;
- The DGIR must have reasons to believe that taxpayer had committed an act resulting in tax avoidance. He cannot rely on suspicion alone. The burden of proof to establish that the transaction was a sham rests with the DGIR; and
- The DGIR has a statutory duty both to identify the particular paragraph under s 140(1) under which the taxpayer had committed the impugned act of tax avoidance and give particulars of adjustment concurrently with the notice of additional assessments under s 140(5).
The four cases discussed above clearly illustrate how our courts have, to a large extent, managed to balance the rights and interest of both taxpayers and the government. As much as it is salutary to remember that every taxpayer, be it an individual or a company, must ensure that tax due is duly settled every year (see Kerajaan Malaysia v Beyond Gateway Sdn Bhd13), our courts have also held that it is well settled that every exercise of statutory power cannot be done so arbitrarily. The Court of Appeal in Mudek Sdn Bhd v Kerajaan Malaysia14 endorsed the proposition that every exercise of statutory power must not only be in conformity with the express words of the statute, but above all must also comply with certain implied legal requirements.
Tax avoidance is no stranger to tax controversy and will remain so, as long as tax legislation continues to flourish in our midst.
This article was first published in Tax Guardian (January 2016), the official journal of the Malaysian Institute of Taxation
1  3 CLJ 587 (CA)
2  STC 548 (PC)
3 (2012) MSTC 30-045
4  1 All ER 865 (HL)
5  2 All ER 938 (CA)
6  CLJ (Rep) 107 (SC)
7 1 MLJ 248 (SC)
8 (2014) MSTC 30-078
9 (2014) MSTC 30-084
10  1 All ER 865 (HL)
11 Unreported. The authors have been informed that the Court of Appeal affirmed the decision of the High Court and that the DGIR has applied for leave to the Federal Court to appeal further.
12  2 NZLR 289 (NZSC)
13  2 CLJ 527 (HC)
14  1 LNS 281 (CA)
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