The taxman’s notice counts, even if you’re not home to get it

The Magistrate’s Court decided on 8 July 2013 that a Notice of Liquation sent by the Income Tax Department may be valid, even in the absence of the intended recipient.

This was decided by Magistrate Dr Gabriella Vella in the case Sylvia Bugeja v. Director General (Income Tax). Bugeja asked the court to decide that the Income Tax Department's claim for payment was null and void and that she be put in the same position as she was prior to the issuance of a Notice of Liquidation dated 16 February 2010, so that she could have an opportunity to rebut the claim.

The Income Tax Department defended its position by stating that according to its records, the Notice of Liquation was sent by registered post on 10 February 2010 to the address indicated by Bugeja. Therefore, it said, the notification was valid at law and was as a consequence final. The Department also stated that the letter was never returned.

From the evidence produced, the plaintiff claimed to never have received the Notice of Liquidation from the Income Tax Department, because the address it was addressed to in Marsaxlokk was sold on 21 July 2009. From that day onwards, Bugeja was living in Zebbug, Gozo. She changed her identity card to the Gozo address. Therefore, she could not have received the letter on 16 February 2010.

Bugeja's mother collaborated this in an affidavit and added that she knew that Bugeja never went back to Marsaxlokk. She changed her identity card even before she bought the premises in Gozo, and she had only signed a pre-contractual agreement. The electoral office confirmed that the change in her identity card had taken place on 22 May 2009; then on 25 March 2011, she moved to another address in Marsaxlokk.

The tax official who testified in the case stated that from 21 July 2009, Bugeja no longer lived at the first address in Marsaxlokk and that none of the workmen were authorised to accept correspondence.

The Court considered that it had been proven that Sylvia Bugeja no longer lived at her first address in Marsaxlokk, from 21 July 2009. However, Bugeja stated in cross-examination that she had ordered a redirection of her post to her mother in Marsaxlokk. The Court stated that this last fact was vital to the case. In fact there were two unsuccessful attempts to notify the plaintiff, one on 19 February and another on 20 February 2010.

On the second occasion the letter was redirected to the address given, and the registered letter was delivered to the mother's address on 24 February 2010.

Bugeja's mother insisted that she had not received this letter from the Income Tax Department. However, such a declaration is not satisfactory to the Court. In fact, it quoted Regulations 28, 32 and 33 of the Postal Services Regulations (SL 254.01), which allow the service of registered post to family members unless there is specific instruction to the contrary.

In such a case a receipt must be given, and if none is given then it is concluded that delivery did not take place. In this particular case a tax official did produce a receipt of service of the Notice of Liquidation, which was sent to the Marsaxlokk address but redirected to the mother's address. Nothwithstanding this, Bugeja's mother denied receiving the notice.

The Court swayed towards the Income Tax Department's argument and decided that the notice had in fact been received and, as a consequence, it was valid and enforceable.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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