逗留在香港的天数.DOC

Case No. D37/12 Salaries tax – dependent parent allowance – whether dependent ‘ordinarily resident in Hong Kong’ – whether Commissioner of Inland Revenue and the Board should exercise discretion – whether such discretion exists – sections 30(1) and 68(4) of the Inland Revenue Ordinance (‘the IRO’). [Decision in Chinese] Panel: Huen Wong (chairman), Leung Wai Keung Richard and Kenneth S Y Ng. Date of hearing: 8 October 2012. Date of decision: 12 November 2012. The Appellant applied dependent parent allowance for maintaining his father (‘Mr A’). According to the records of the Immigration Department, Mr A stayed in Hong Kong for 35 days during the relevant year of assessment. As stated by the Appellant, Mr A was not ordinarily resident in Hong Kong in the said year of assessment. The Appellant, however, asked the Board to exercise discretion, relying on the followings: (a) although Mr A had resided on the Mainland for a long time, the Appellant still had to maintain the living of Mr A; (b) Mr A suffered from glaucoma, but the Appellant could not take care of Mr A due to his commitment on his work, and as Mr A also wished to live on the Mainlnad, the Appellant had hired a helper on the Mainland to take care of Mr A’s daily living; (c) Mr A returned to Hong Kong occasionally to seek medical treatment on glaucoma. The Deputy Commissioner dismissed the Appellant’s application. Being dissatisfied with the decision, the Appellant lodged an appeal to the Board of Review. Held: Under section 30(1) of the IRO, the Appellant would be entitled to dependent parent allowance only if Mr A was ‘ordinarily resident in Hong Kong’, such phrase should be interpreted through its natural and ordinary meaning in daily language, that is living voluntarily and for a settled purpose in a particular place, temporarily and incidentally excepted. (Reg v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 and Director of Immigration v Ng Shun-loi [1987] HKLR 798 considered) T