CHAPMAN DEVELOPMENT LTD v. COMMISSIONER OF INLAND REVENUE

CACV 450 /2024, [2025] HKCA 956

On appeal from [2024] HKCFI 2590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 450 OF 2024

(ON APPEAL FROM HCIA NO 6 OF 2022)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal of the taxpayer, Chapman Development Limited (“Taxpayer”), against the judgment of Cheng J on 30 September 2024 (“Judgment”)^[1]. The appeal is brought as of right. Unless otherwise stated, the terms and expressions in the Judgment will be adopted.

2.  By the Judgment, the judge dismissed the Taxpayer’s appeal brought pursuant to leave granted by her on 4 April 2023^[2] to appeal against the decision of the Inland Revenue Board of Review dated 28 July 2022 (“Board” and “BOR Decision”) on Grounds 1 and 2 of the amended statement of grounds of appeal filed on 3 October 2022 (“Taxpayer’s Statement”).

3.  The BOR Decision relates to certain management fees (“Management Fees”) claimed by the Taxpayer as deductions during the years of assessment 1997/98 to 2005/06.  The Management Fees were charged by the Taxpayer’s associated company, Profit Gain Trading (BVI) Limited (“Profit Gain”).  The assessments under appeal are the additional profits tax assessments for the years of assessment 1997/98 to 2002/03, the profits tax assessments for the years of assessment 2003/04 and 2005/06, and the first additional profits tax assessment for the year of assessment 2004/05.

4.  Mr Johnny Mok, SC^[3] appeared on behalf of the Taxpayer and Mr Stewart Wong, SC^[4] appeared for the Commissioner of Inland Revenue (“Commissioner”).

Background

5.  The background facts as taken largely from §§4 to 13 of the Judgment are as follows.

6.  The Taxpayer was a member of a group of companies (“Group”), the ultimate holding company of which was Glorious Sun Enterprises Ltd (“Listco”), listed on the Stock Exchange of Hong Kong in 1996.  Listco and its subsidiaries were engaged in the retailing, export and production of casual wear.

7.  At the material time, the Taxpayer’s principal activity was the manufacturing and trading of fabric and yarn and the provision of trade related services.  The Taxpayer held majority shareholding interests in two Mainland entities (“PRC Factories”), which were the manufacturing arm of the Taxpayer.  The Taxpayer took orders for fabrics and placed them with the PRC Factories or third party manufacturers.

8.  Profit Gain was incorporated in the British Virgin Islands on 1 May 1996.  The Taxpayer and Profit Gain were at all material times associated companies, sharing common shareholders, directors, and a correspondence address.  In the notes to the financial statements published in Listco’s annual reports for 2001 to 2005, the Taxpayer, but not Profit Gain, was described as one of its principal subsidiaries.

9.  By a management agreement dated 1 April 1997 (“Management Agreement”), the Taxpayer appointed Profit Gain as its management agent for “all knitted and dyed fabric production to be required in China factories”, with retrospective effect from 1 April 1996, when Profit Gain had not yet been incorporated.  The “China factories” referred to were the PRC Factories and also third party manufacturers.  The Taxpayer was not a manufacturer itself.

10.  The obligations of Profit Gain as provided under the Management Agreement included these:

(1) to “provide production sources and outlets in China factories to [the Taxpayer] which may be suitable for the production and delivery requirements of [the Taxpayer]” (clause 2.1);

(2) to “provide production management services, technical support and liaison services to the concerned China factories in connection with the production orders to be so placed by [the Taxpayer]” (clause 2.2);

(3) to “provide quality control and inspection service for the dyed and knitted fabrics in China factories on behalf of [the Taxpayer] and upon satisfactory inspection of the products, will sign the Inspection Certificates… on behalf of [the Taxpayer]” (clause 2.3);

(4) to “conduct such market research as may [be] reasonably required in China factories on market trends, new items, sources of supply, price and quality” (clause 2.5);

(5) to “inspect all commercial and customs documents on behalf of [the Taxpayer] to ensure that they accurately reflect the transaction and are drawn in the proper manner as required by the regulations of both the exporting and importing countries” (clause 2.9);

(6) to “ensure that all the goods produced under the supervision of [Profit Gain] or the production of which is contemplated by the terms of this agreement to be under the supervision of [Profit Gain] to be of top and acceptable quality as to fabric, workmanship, packing and delivery and that [Profit Gain] shall be responsible for all claims, demands, compensation price discount and legal costs and other incidental expenses incurred or arising out of or in connection with any claim of [the Taxpayer’s] purchasers in respect of the said goods” (clause 3).

11.  In consideration of Profit Gain’s performance of the services stated in the Management Agreement, it was provided in clause 3 that the Taxpayer was to pay Profit Gain a service fee “of HKD1.40 per lb for dyed fabrics and HKD 0.30^[5] or any other rate as may be mutually agreed upon by the parties hereto”.

12.  The Taxpayer claimed that the Management Fees had been charged by Profit Gain for the years of assessment 1997/98 to 2004/05. An important feature was that the sums claimed by the Taxpayer (for deduction) were not all calculated according to the written provisions of the Management Agreement.

13.  According to the information provided by the Taxpayer, the total Management Fees charged for the years of assessment 1997/98 to 2004/05 were:

Year/period ended	Total Management Fees ($)
31 March 1998	44,887,994
31 March 1999	54,217,318
31 March 2000	57,676,158
31 March 2001	63,379,977
31 March 2002	92,732,381
31 December 2002*	47,310,611
31 December 2003	63,344,787
31 December 2004	22,051,090

*This covered the period from 1 April 2002 to 31 December 2002.

14.  The following analysis shows the profit margins of the Taxpayer and Profit Gain with respect to the sales of the Taxpayer for the relevant years/period^[6]:

Year of assessment	1997/98	1998/99	1999/00	2000/01	2001/02	2002/03	2003/04	2004/05	1997/98 to 2004/05
Year/period ended	31.3.1998	31.3.1999	31.3.2000	31.3.2001	31.3.2002	31.12.2002*	31.12.2003	31.12.2004
	$	$	$	$	$	$	$	$	$
Taxpayer
Sales	517,482,588	458,605,983	500,634,614	571,395,642	562,576,898	449,940,507	531,454,328	202,355,853	3,794,446,413
Management Fee to Profit Gain	44,887,994	54,217,318	57,676,158	63,379,977	92,732,381	47,310,611	63,344,787	22,051,090	445,600,316
% of Management Fee to Sales	8.67%	11.82%	11.52%	11.09%	16.4%	10.51%	11.92%	10.90%	11.74%
Assessable Profits	4,366,969	13,845,135	9,804,286	10,222,900	10,176,061	9,460,802	2,093,549	990,018	60,959,720
% of Assessable Profits to Sales	0.84%	3.02%	1.96%	1.79%	1.81%	2.10%	0.39%	0.49%	1.61%
Profit Gain
Operating Profits	37,857,690	48,840,872	50,337,739	55,403,074	82,272,150	42,565,356	59,866,367	20,840,261	397,983,509

*This covered the period from 1 April 2002 to 31 December 2002.

15.  In February 2004, a tax audit was commenced by the Assessor in relation to the Taxpayer’s tax affairs.  After the tax audit, the Assistant Commissioner considered that part of the Management Fees claimed by the Taxpayer were not deductible under sections 16 and 17 of the Inland Revenue Ordinance, Cap 112 (“IRO”)^[7]. He was of the view that the appointment of Profit Gain as management agent by the Taxpayer was a transaction carried out for the sole or dominant purpose of enabling the Taxpayer to obtain a tax benefit by way of deduction of the Management Fees and/or diverting part of the Taxpayer’s profits to Profit Gain, and that section 61A should apply.  The deduction of the Management Fees (save to the extent of administrative expenses and bank interest incurred by Profit Gain)^[8] (“Impugned Management Fees”) was disallowed.

16.  The Taxpayer raised objections to the assessments of the Assistant Commissioner.  The Deputy Commissioner made a determination dated 10 July 2019.  The Deputy Commissioner considered that the arrangement merely brought into existence new source of non-taxable income for Profit Gain as well as great amount of deductions by the Taxpayer; it “bore no characteristics of a rational commercial reality” and was “a convoluted plot to avoid tax”^[9]. He confirmed the assessments.

BOR Decision

17.  The Taxpayer’s appeal against the determination of the Deputy Commissioner was heard by the Board over three days in 2020 and the BOR Decision was given on 28 July 2022.

18.  The main issues in dispute before the Board were:

(1) whether the Impugned Management Fees are deductible expenses under sections 16(1) and 17;

(2) alternatively, whether the entering into of the Management Agreement and each payment thereunder, are transactions that have, or would have had but for section 61A, the effect of conferring a tax benefit^[10] on the Taxpayer, and, having regard to the seven matters mentioned in section 61A(1)(a) to (g)[11], it would be concluded that the entering into or carrying out of the transactions was for the sole or dominant purpose of enabling the Taxpayer, either alone or in conjunction with other persons, to obtain a tax benefit so that section 61A is engaged.

19.  In dismissing the appeal and confirming the assessments, the Board held:

(1) the Management Fees which were not paid in accordance with the written terms of the Management Agreement (which the Board termed “Extraneous Fees”)^[12] were not expenses incurred in the production of the Taxpayer’s assessable profits, and therefore not deductible under sections 16 and 17;

(2) the Management Fees paid in accordance with the written terms of the Management Agreement (which the Board termed “Management Fees Per Written Agreement”) were deductible under sections 16 and 17;

(3) however, “the entering into of the Management Agreement pursuant to which the Taxpayer paid the Management Fees Per Written Agreement as well as each and every payment made thereunder” (“Transaction”) was a transaction entered into or carried out for the sole and dominant purpose of enabling the Taxpayer to obtain a tax benefit within the meaning of s.61A.

Leave to appeal against the BOR Decision

20.  The Taxpayer sought leave to appeal under section 69 against the BOR Decision on several grounds involving questions of law.  The judge granted leave on Grounds 1 and 2 in respect of the questions of law identified in §§6A and 10A of the Taxpayer’s Statement.

21.  Ground 1 concerns the deductibility of the Extraneous Fees.  It seeks to challenge the Board’s holding that they were not expenses incurred in the production of the Taxpayer’s assessable profits, and therefore not deductible under sections 16 and 17.

22.  The question of law arising from Ground 1 as identified in §6A of the Taxpayer’s Statement reads as follows:

“[Did] the Board err in law in failing to recognise that the terms of payment of Management Fees agreed between [the Taxpayer] and Profit Gain, which are associated entities, could be established by conduct based on the facts of this case, with no additional requirement that such agreement can only be established by evidence of verbal exchanges between the parties in relation to the agreement?”

23.  Ground 2 concerns the applicability of section 61A to the Transaction.  It seeks to challenge the Board’s holding that the Transaction was one entered into or carried out for the sole and dominant purpose of enabling the Taxpayer to obtain a tax benefit within the meaning of section 61A.

24.  The questions of law arising from Ground 2 as identified in §10A of the Taxpayer’s Statement are:

“(1) Did the Board err in law in concluding that the Transaction had or would have had, but for section 61A of the Ordinance, the effect of conferring a ‘tax benefit’ on [the Taxpayer] within the meaning of section 61A?

(2) Did the Board err in law in holding that ‘Management Fees Per Written Agreement’ (as defined in §110 of the [BOR] Decision) should be regarded as the assessable profits of [the Taxpayer] under section 61A(2)(b) to counteract the alleged ‘tax benefit’ which would otherwise be obtained by [the Taxpayer], and in failing to recognise that any hypothetical profits that would be earned by [the Taxpayer] in the Alternative Hypothesis arising from production management operations in Mainland would not be chargeable to Hong Kong profits tax?

(3) In considering the matters listed in sub-paragraphs (a) to (g) of section 61A(1), did the Board err in law (i) in failing to take into account the relevant matters set out in paragraphs 10(1)(a) and 10(2) [of the Taxpayer’s Statement]); (ii) in taking into account irrelevant factors set out in paragraph 10(1)(b) [of the Taxpayer’s Statement]; (iii) in failing to address the question of whether the Transaction created rights or obligations which would not normally be created between persons dealing with each other at arm’s length under a transaction of the kind in question as referred to in section 61A(1)(f) of the Ordinance; and (iv) in concluding that [the Taxpayer’s] submission that the Transaction is a legitimate arrangement is tainted with Profit Gain’s non-registration of its business with the Mainland?”

25.  Those parts of paragraph 10 of the Taxpayer’s Statement referred to in the above questions of law read as follows:

“(1) As regards section 61A(l)(a) and (b), viz. the manner in which the Transaction was entered into or carried out as well as the form and substance of the Transaction:-

(a) The Board failed to take into account relevant matters, including inter alia:-

(i) The profits derived from Profit Gain’s production management operations in Mainland would not be chargeable to Hong Kong profits tax in any event. Thus, it was legitimate for the Gennon Group^[13] to segregate its Hong Kong-based operations and offshore operations by having the production management operations in Mainland carried out by a separate overseas company, namely Profit Gain, and the statutory purpose of section 61A is not to attack such legitimate arrangements: Ngai Lik Electronics^[14] at §§63, 101 per Ribeiro PJ.

(ii) The Board’s finding that Profit Gain is not a mere sham or an invisible/bookkeeping entity, but a company which employed its own staff and paid salaries to its staff, and carried on real production management operations for [the Taxpayer] in Mainland ([BOR] Decision §§81, 111).

(iii) The Board’s finding that the ‘Management Fees Per Written Agreement’ were not arbitrary or excessive ([BOR] Decision §111).

(iv) The Board’s finding that even though Profit Gain relied on related companies to pay some of its salaries initially, Profit Gain had made reimbursements accordingly as found by the Board ([BOR] Decision §111 ).

(v) It is not unusual for related parties (i.e. [the Taxpayer] and Profit Gain in this case) to not strictly follow or enforce the terms of the Management Agreement for payment of Management Fees.

(vi) At least 4 staff of Profit Gain were recruited from outside the Gennon Group (including the industry-famous garment dyeing expert Lam CW).

(b) The Board took into account irrelevant factors, including, inter alia:-

(i) Profit Gain did not file individual income tax [returns] in respect of its staff.

(ii) Profit Gain was put under a branch called ‘Offshore Profits Team’ in an internal document of the Gennon Group.

(iii) The work of Profit Gain’s staff was put, for example, in the name of the PRC Factories and Profit Gain’s staff represented themselves as representatives of the PRC Factories.

(iv) Profit Gain relied on its related companies to pay staff salary when it had not set up its bank account during the initial period after its incorporation.

(2) As regards sections 61A(1)(c) to (e) of the Ordinance, the Board failed to take into account relevant factors, including, inter alia even if [the Taxpayer] were to carry on the production management work operations now carried on by Profit Gain, the profits derived from such operations which took place in Mainland would not be chargeable to Hong Kong profits [tax].”

The holdings in the Judgment

26.  The judge answered the question in Ground 1 in the negative.  She held that the Board did not err by failing to recognise that the terms of payment of the Management Fees could be varied by conduct, and the Board did not impose any additional requirement that such variation by conduct could only be established by evidence of verbal exchanges between the parties in relation to the agreement^[15].

27.  As for question (1) in Ground 2, there was no challenge on appeal to the alternative hypothesis accepted by the Board that had Profit Gain not been used, the Taxpayer would have done the production management work itself (“Alternative Hypothesis”).  The Taxpayer repeated its contention before the Board that no tax benefit would have been conferred on it under the Alternative Hypothesis as in carrying out the tasks by itself in the Mainland, the profits derived from such tasks would be sourced outside Hong Kong and not be chargeable to tax in Hong Kong.

28.  The judge answered question (1) in the negative and upheld the Board in rejecting the above contention for two main reasons.

29.  First, under the Alternative Hypothesis, there would not have been any profits derived from the Taxpayer’s hypothetical production management work in the Mainland.  Nobody would have paid the Taxpayer for the work in the Mainland that had been carried out by Profit Gain.  The Taxpayer would have earned the same income under both the Alternative Hypothesis and the Transaction, being the receipts from its trading operations.  The difference is that under the Transaction, the Taxpayer paid away a part of its profits to Profit Gain in the form of Management Fees, whereas under the Alternative Hypothesis the Taxpayer would be able to retain the Impugned Management Fees for itself.  The Taxpayer therefore enjoyed a tax benefit under the Transaction of claiming the Impugned Management Fees as deductions under section 16^[16].

30.  Second, it is for the Taxpayer to put forward evidence showing that under the Alternative Hypothesis, if the Taxpayer took over Profit Gain’s production management work in the Mainland, the source of the Taxpayer’s income or part thereof would have changed to become offshore.  Simply saying that Profit Gain carried out the work in the Mainland did not establish the source of the Taxpayer’s income under the Alternative Hypothesis as being offshore.  Under the Alternative Hypothesis, the Taxpayer would not be offering any additional source of income for assessment, but rather, the same trading receipts as under the Transaction^[17].

31.  Question (2) in Ground 2 relates to counteraction under section 61A(2)(b).  The judge answered this question in the negative.  The Board did not hold that the Management Fees Per Written Agreement should be regarded as assessable profits under section 61A(2)(b) to counteract the tax benefit.  It was the Taxpayer’s trading profits which were to be assessed and the assessments under challenge computed profits tax based on disallowed deductions, rather than on any additional income^[18].  As for the complaint that there was no basis to treat the profits earned by Profits Gain from its Mainland operations as part of the Taxpayer’s assessable profits as they were not chargeable to Hong Kong profits tax, this has been dealt with in question (1)^[19].

32.  Question (3) in Ground 2 relates to the consideration of the matters listed in section 61A(1)(a) to (g) in concluding whether the Transaction was entered into or carried out for the sole or dominant purpose of enabling the Taxpayer to obtain a tax benefit.  The Taxpayer contended that the Board failed to take into account relevant matters in paragraphs 10(1)(a) and (2) of the Taxpayer’s Statement and took into account irrelevant matters in paragraph 10(1)(b).  The judge held that these arguments amount to no more than inviting the court to re-weigh the evidence and is impermissible^[20]. Question (3) was also answered in the negative.

33.  The judge therefore dismissed the Taxpayer’s appeal against the BOR Decision.

The approach in this appeal

34.  As mentioned, the Taxpayer appealed against the Judgment as of right.  Mr Mok repeated his unsuccessful contentions before the judge on Grounds 1 and 2, with additional arguments.

35.  The ways in which a decision of the Board may be challenged are limited.  As rightly stated by judge^[21], the applicable principles are these:

(1) The decision may be challenged for misdirection in law.

(2) An inference or the final conclusion of the Board may be attacked on the basis that the primary facts do not admit of an inference drawn from them, or that the primary facts or inferences, or a combination of them, do not admit of the final conclusion.  Where the facts can reasonably admit of the Board’s conclusion, however, its decision should not be disturbed.

(3) A finding of primary fact may be challenged on the basis that there was no evidence in support of the finding.  Alternatively, it may be contended that the Board should have made findings of other relevant facts.

(4) The principles in (2) and (3) relate to challenges to findings of fact.  As further explained in Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004) 7 HKCFAR 275 at §§31 to 34, findings of fact can be challenged as errors of law only where:

(i) the decision was based on a finding of fact or inference from the facts which is perverse or irrational;

(ii) there was no evidence to support the finding; or

(iii) the decision was made by reference to irrelevant factors or without regard to relevant factors such that the conclusion is contrary to the true and only reasonable one.

(5) If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion.  But if the appellate court regards the contrary conclusion as the only true and reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal^[22].

36.  In addition, on an appeal from a decision of the Board, the appellate courts, including the Court of Appeal, are bound by the questions of law on which leave to appeal is granted under section 69.  The questions define and limit the scope of the appeal, which an appellate court has no jurisdiction to go beyond^[23]. The principles on which an appellate court can intervene as stated in the preceding paragraph are confined by the specific questions on which leave to appeal is granted.

37.  Further, in considering what is essentially a factual question (such as whether the Management Agreement had been varied by conduct), the IRO imposes a legal or persuasive burden on the taxpayer^[24]. The Board is concerned with a situation where all relevant facts are peculiarly within the knowledge of the taxpayer.  The Commissioner has no burden to prove anything, and he does not need the Board to make any positive finding in his favour.  If the taxpayer fails to discharge this burden, such as by failing to adduce evidence or if his evidence is disbelieved, the assessment would be upheld and his appeal dismissed^[25].

38.  In this instance, the Taxpayer would need to show positive findings to prove its contentions.  In the absence of this, it has to show that the absence of such findings is due to errors of law made by the Board and which are covered by the questions of law on which leave to appeal was granted.

39.  Mr Wong suggested that even though the question of deductibility of Extraneous Fees (Ground 1) should be considered first, it would be better to first deal with the question of applicability of section 61A (Ground 2), assuming that the Extraneous Fees were deductible expenses.  He reasoned that as Ground 2 always remains, hence if this ground is answered in favour of the Commissioner, Ground 1 is rendered academic and the Taxpayer fails even if Ground 1 is decided in its favour.  We do not think it matters very much which ground is considered first.  As both grounds were extensively argued, it is better that we deal with both in this judgment.

Ground 1: deductibility of Extraneous Fees

40.  The Board refused to draw a factual inference that the Extraneous Fees were paid pursuant to the Management Agreement as varied by an agreement by conduct.  This is a fact-finding exercise within the exclusive jurisdiction of the Board.  There is no legal basis to challenge this refusal to make a positive finding in favour of the Taxpayer unless there is a specifically identifiable error of law or that the finding of fact can be challenged as an error of law on the grounds as discussed in Kwong Mile Services Ltd (that the finding of fact is perverse or irrational and is contrary to the true and only reasonable conclusion; for convenience, the “Irrationality Ground”). 

41.  The only question of law for which leave to appeal was granted in relation to the Extraneous Fees was: “[Did] the Board err in law in failing to recognise that the terms of payment of Management Fees agreed between [the Taxpayer] and Profit Gain, which are associated entities, could be established by conduct based on the facts of this case, with no additional requirement that such agreement can only be established by evidence of verbal exchanges between the parties in relation to the agreement?” (Emphasis supplied).  This question thus defines and limits the scope of this appeal. 

42.  It is pertinent to note that this question does not raise the Irrationality Ground.  The use of the word “could” in the question, without reference to the Irrationality Ground, would appear to suggest that the Board might have made an error in thinking that as a matter of law, for an agreement by conduct to be found or inferred, there must be some evidence on verbal exchanges between the parties in relation to the agreement. This is apparently covered in paragraph 1 of the Notice of Appeal, which tracks the wording of this question.

43.  Mr Mok’s arguments in this respect may be summarised as follows:

(1) On a proper reading of the BOR Decision, it can be seen that after criticising and rejecting the Taxpayer’s evidence on an oral variation agreement (§§89 to106), the Board swiftly dismissed the Taxpayer’s case on an agreement by conduct in one brief paragraph (§108), “without any separate, substantive analysis on agreement by conduct”.  In effect, the Board erroneously considered the lack of convincing evidence on verbal exchanges between the parties (“without evidence on who, when and how” the agreement had been made) to be fatal to the case on agreement by conduct.  This is a misdirection in law as it is contrary to established principles that a contract may be inferred from conduct applying an objective test, even when “nothing was said, nothing was written”^[26].

(2) The judge failed to recognise that the Board had not properly considered whether the Taxpayer would establish an agreement by conduct with respect to each category^[27] of Extraneous Fees, applying the four “tests” on inferring an agreement by conduct in Shanghai Tongji Science & Technology Industrial Co Ltd at §§36 to 40^[28].

(3) If and insofar as the judge was correct in holding^[29] that the Board did not make positive findings on whether Profit Gain had agreed to charge and charged (or whether the Taxpayer had agreed to pay or paid) the amounts in the debit notes, this further shows that the Board had failed to engage in any real analysis of the issue of agreement by conduct, as whether Profit Gain had agreed to charge and the Taxpayer had agreed to pay those amounts are important factual matters by which an agreement by conduct may be inferred.

44.  We do not think the Board had erred in law as contended.  The Board plainly recognised that an agreement could be inferred from conduct.  Nor do we think that the Board had dismissed the Taxpayer’s case on an agreement by conduct in one brief paragraph without any substantive analysis.  The decision of the Board must be read fairly and as a whole.  The Taxpayer had shifted its case on the Extraneous Fees from an oral agreement to vary to an agreement to vary by conduct, and this was raised for the first time only in its written closing submission.  When the Board said at §§89 and 90 the Taxpayer has to adduce convincing evidence to prove that the parties had actually made other agreements and the terms of such other agreements, and there was no evidence on “who, when and how” these other agreements was made, this was all said in the context of the alleged oral variation agreement.  The Board did not state that for an agreement to vary by conduct, there must be evidence on verbal exchanges between the parties.

45.  It is wrong to suggest that the Board had not engaged in any real analysis of the issue of establishing agreement by conduct. As the judge has noted, the Board had observed it was presented with different versions of evidence and that the Taxpayer had chosen not to call witnesses with direct knowledge but attempted to prove its case through bare assertion or unparticularised multiple hearsay.  An agreement by conduct could not be established in a vacuum, without regard to the unsatisfactory evidence of the only witness called.  The judge rightly remarked that the Board declined to take a blinkered approach and it was in that context that the Board concluded it could not infer simply from the charging of fees by Profit Gain and/or payment by the Taxpayer that there had been a variation agreement by conduct.  Furthermore, even if there had been such charging and payment, the Board did not think they would suffice to found an agreement by conduct, given the totality of the evidence^[30].

46.  As for the contention that the Board had not properly considered whether the Taxpayer would establish an agreement by conduct with respect to each category of Extraneous Fees, we agree with Mr Wong that this is of no substance.  The Taxpayer advanced the same argument for all categories of Extraneous Fees, namely that the Taxpayer paid at rates that were not recorded in the Management Agreement so they must have been varied rates and the debit notes were evidence of the variation, and evidence from the only witness was relied on to explain the varied rates and debit notes.  Since the Taxpayer made the same points for the Extraneous Fees, it is appropriate that the Board and the judge dealt with them together as presented.  Even in the submissions of Mr Mok in this appeal, he has not advanced any differentiating factor or individual circumstances with regard to the various categories of Extraneous Fees.

47.  The Taxpayer raised other grounds of appeal in paragraphs 2 and 3 of the Notice of Appeal.  These grounds are outside the scope of the only question of law for which leave to appeal was granted in relation to the Extraneous Fees.  Paragraph 3 of the Notice of Appeal seeks to raise the Irrationality Ground, which is outside the scope of the question.

48.  It is not strictly necessary for us to deal with the other grounds of appeal.  We will endeavour to do so succinctly, for completeness.

49.  In paragraph 2 of the Notice of Appeal, it is contended that the judge was wrong in law in holding that an agreement by conduct may not be found even if the four “tests” in Shanghai Tongji Science & Technology Industrial Co Ltd are met.  She stated that “[whether] or not an agreement by conduct is established in any particular case must surely be considered by reference to the totality of the evidence in that case”^[31], as if this imposes an additional requirement.  She failed to appreciate that the four “tests” already require consideration of the totality of relevant objective evidence.

50.  We reject this contention.  Whether an agreement by conduct is established is a question of fact which depends on the totality of the evidence. The judge did not impose any additional requirement.  In any event, she went on to hold that the four “tests” have not been met in the present case.  Examples were given that the second “test” (it was necessary to identify conduct referable to the contract contended for) and third “test” (it was not enough to show that the parties had done something more than what they were bound to do, what they did had to be consistent only with there being a new contract implied and inconsistent with there being no such contract^[32]) are not met^[33].

51.  The Taxpayer contended to the contrary in paragraph 3 of the Notice of Appeal that the judge and the Board ought to infer an agreement to vary by conduct by reference to the four “tests” for at least some categories of Extraneous Fees.  This is asking the appeal court to re-assess the evidence and come to its own conclusion.  This is not permissible on an appeal on a question of law save to establish the Irrationality Ground, which is outside the scope of the question for which leave to appeal was granted.

52.  We will just deal with the five matters relied on by Mr Mok as supporting an inference of an agreement to vary by conduct shortly.  The five matters are: (1) the Management Agreement was entered into; (2) Profit Gain charged fees for production management services at rates provided in the Management Agreement and subsequently at a higher or different rate, which is consistent with the provision in clause 3 of the Management Agreement (“or any other rate as may be mutually agreed by the parties hereto”); (3) the fees were charged for actual services performed by Profit Gain under the Management Agreement, and paid by the Taxpayer to Profit Gain; (4) the Board has found Profit Gain was a bona fide commercial entity and not a sham and had carried out real operations in the Mainland, and that the Management Fees Per Written Agreement were deductible expenses^[34]; and (5) there is no finding that insofar as Profit Gain charged at rates different from the original contractual rate, Profit Gain did not perform any production management services for the Taxpayer or that Profit Gain performed such services gratuitously.

53.  The five matters do not support an inference of an agreement to vary by conduct as the true and only reasonable conclusion.  That the Management Agreement was made and that Profit Gain was not a sham (referred to in (1) and (4)) are immaterial.  It could not be said that the charging of fees at a higher or different rate in (2) was only consistent with a variation of the Management Agreement (the third “test” in Shanghai Tongji Science & Technology Industrial Co Ltd).  That the terms might have been varied is just one of the possible explanations.  Besides, due to the unsatisfactory evidence given, the Board made no positive finding that Profit Gain did charge fees at rates higher than those under the Management Agreement, or that the Extraneous Fees were in fact management fees, or what the debit notes purported to represent, or that the debit notes represented the amounts actually charged^[35].  There is no finding that the fees were charged for actual services performed by Profit Gain under the Management Agreement, and paid by the Taxpayer to Profit Gain, as asserted in (3).  It would appear from a table on analysis of payment of Management Fees from 1997/98 to 2004/05 adduced by the Taxpayer that it did not pay all the fees charged by Profit Gain.  It is irrelevant that the Board did not make findings as mentioned in (5).

54.  It could hardly be said that the Board’s refusal to draw a factual inference that the Extraneous Fees were paid pursuant to the Management Agreement as varied by an agreement by conduct is irrational or perverse.  Mr Mok’s reliance on Ngai Lik Electronics Co Ltd^[36] for his proposition that an agreement by conduct was regarded as an assumption that could be made in a similar situation is misconceived.

55.  Mr Mok further argued that the judge and the Board placed undue reliance on criticisms of the oral evidence of the Taxpayer’s only witness, Johnny Wong^[37], concerning an additional debit note described to be Management Fee for March 1998 in the sum of $5.4 million^[38] in rejecting the Taxpayer’s case on other and different categories of the Extraneous Fees, without considering the relevance or materiality of those criticisms to the other categories.  He contended that the judge was wrong to use his evidence that the sum of $5.4 million was a “bonus” and not Management Fees to refute the existence of an agreement by conduct, as Johnny Wong did not testify that the Management Fees for knitted and dyed fabrics at a higher rate were not Management Fees.  He submitted that given that Johnny Wong had no personal knowledge, his evidence is of no probative value and hence it was wrong for the judge and the Board to place undue weight on his evidence and essentially treating his evidence as a fundamental part of the totality of the evidence in concluding that there was no agreement to vary by conduct.

56.  We reject the above submissions.  As mentioned earlier, the Taxpayer made no attempt to draw distinctions between various categories of Extraneous Fees by any differentiating factors or individual circumstances and just advanced the same arguments for all the Extraneous Fees. The Board and the judge could not be regarded to have erred by looking at all the Extraneous Fees together.  The debit note of $5.4 million was just an example of “clear deviation from the written terms of the Management Agreement” showing the shifting evidence of the witness in cross-examination^[39]. The judge and the Board did not treat Johnny Wong’s evidence as direct evidence whether there was an agreement to vary by conduct, but merely as support for the objective analysis that there were other possible explanations for the Extraneous Fees.  The Board did not rely on his evidence in concluding it could not infer that the Extraneous Fees were paid pursuant to the Management Agreement as varied by an agreement by conduct.  Having rejected his evidence, in the context of the totality of the available evidence, the only matters left for it to draw the inference were the charging of the Extraneous Fees and/or the payment by the Taxpayer (even if there had been such), and the Board took the view that these matters are insufficient^[40]. There is no error of law.

57.  Lastly, Mr Mok referred to a debit note dated 31 March 2002 being an adjustment of Management Fees for April 2001 to March 2002, part of which was in respect of yarn^[41].  He complained that the Board did not deal with production services relating to yarn in its analysis^[42], despite the evidence of Johnny Wong that equipment was installed after the signing of the Management Agreement to support dyeing of yarn^[43].  This does not advance his case any further.

58.  For the above reasons, we reject all the Taxpayer’s arguments in Ground 1.  There is no basis to remit the issue of whether the Extraneous Fees are deductible expenses (and, if so, the applicability of section 61A to such expenses) to the Board for determination as sought in paragraph 4 of the Notice of Appeal.

Question (1) in Ground 2: if there is tax benefit under the Alternative Hypothesis

59.  The issue here is whether under the Transaction, the Taxpayer’s tax position was better than under the Alternative Hypothesis, pursuant to which the Taxpayer would have done the production management work itself.  The Alternative Hypothesis is not that the Taxpayer would have done any manufacturing work itself^[44], which would remain to be done by the PRC Factories or third party manufacturers.

60.  The Commissioner’s case is that under the Transaction the Taxpayer had a tax benefit because the Management Fees Per Written Agreement were deductible expenses and its tax liability was thereby reduced, whereas under the Alternative Hypothesis no such deduction would be available as the Taxpayer would not have paid such fees to Profit Gain.  

61.  Mr Mok repeated his contention that under the Alternative Hypothesis, where the Taxpayer took over Profit Gain’s production management operations in the Mainland, the hypothetical profits of the Taxpayer arising from such operations (apart from the Taxpayer’s trading activities) would be sourced offshore and not chargeable to tax in Hong Kong.  He argued as follows:

(1) As found by the Board, Profit Gain had its own staff and carried on real operations in the Mainland^[45]. According to the Taxpayer, Profit Gain kept a larger team of skilled staff compared to the Taxpayer; the latter had a smaller team for the limited role of soliciting and placing orders^[46].

(2) It is well established that the profits of a business carried on in Hong Kong may accrue from different sources, some located within Hong Kong, others overseas; the former are taxable, the latter are not^[47].  Where necessary, the profits need to be apportioned as having arisen partly in Hong Kong and partly outside^[48].

(3) The ascertainment of the source of a profit is not hindered by technical rules, but is helped by the broad guiding principle that one looks to see what the taxpayer has done to earn the profit and where he has done it, grasping the commercial reality of each case^[49].

(4) In Ngai Lik Electronics Co Ltd, the taxpayer underwent a restructuring of its business by which the manufacturing businesses were taken over by a BVI subsidiary which sold the finished products to the taxpayer and the taxpayer derived profits from on-selling the products to its own customers. At §64, Ribeiro PJ stated:

“It therefore cannot be in doubt that the relevant manufacturing processes took place outside of Hong Kong. Even if they were part of the taxpayer’s own business, the profits deriving from those operations would not be chargeable to Hong Kong profits tax since they would have been sourced offshore. Moreover, it is clear that those operations and those profits were not those of the taxpayer, but of its fellow subsidiaries. Such profits did not fall within the s 14 charge to tax.”

Similarly, if Profit Gain’s production management operations were part of the Taxpayer’s own business under the Alternative Hypothesis, the profits deriving from those operations would have been sourced offshore and would not in any event be chargeable to Hong Kong profits tax.

(5) In rejecting the Taxpayer’s argument, the judge wrongly relied on the fact that the Taxpayer is a trader and declared its trading profits for taxation in Hong Kong all along^[50]. The judge failed to consider the hypothetical position of the Taxpayer under the Alternative Hypothesis, namely, that the Taxpayer would take over the role of Profit Gain in carrying out the production management work.

(6) It is not the Taxpayer’s case that under the Alternative Hypothesis, it would receive additional fees from its customers for the production management work.  The fact remains that under the Alternative Hypothesis, the profits earned by the Taxpayer would have increased as it would not pay the Management Fees to Profit Gain but that part of its profits would be sourced offshore and not chargeable to Hong Kong profits tax.

(7) The judge erred in agreeing with the Board that “[there] is no convincing evidence to substantiate the contention that if the Taxpayer took over Profit Gain’s role, the income would have been wholly offshore.”^[51]  The Board had clearly misunderstood the principle that profits of a business may accrue from different sources, hence the Taxpayer is not required to show if it took over Profit Gain’s role, its income would be “wholly” offshore.

(8) Insofar as the Court of Appeal considers that the Taxpayer’s source of profits under the Alternative Hypothesis is a question of fact which had not been properly considered by the Board, it is open to this court to order a remitter of this issue to the Board.

62.  It is pertinent to bear in mind that under the Alternative Hypothesis, the Taxpayer would not have done any manufacturing work. We agree with Mr Wong that this puts the case under the Alternative Hypothesis squarely within the principles and analyses in Commissioner of Inland Revenue v Datatronic Ltd^[52] and Commissioner of Inland Revenue v CG Lighting Ltd^[53] and distinguishes it from the discussion on manufacturing profits in Ngai Lik Electronics Co Ltd^[54].  Although not mentioned in the BOR Decision or the Judgment, we were given to understand by counsel that Datatronic and CG Lighting were cited to the Board and the judge.

63.  Under the principles established in these two cases, the production management work carried out by the Taxpayer under the Alternative Hypothesis would be activities ancillary and incidental to its profit-producing transactions and ought to be disregarded in considering the source of the profits.  The true profit-generating transactions would continue to be the trading activities, which were carried out entirely in Hong Kong.  Under the Alternative Hypothesis, the Taxpayer would not have paid any Management Fees to Profit Gain, but would have incurred directly Profit Gain’s own expenses, being administrative expenses and bank interest, which the Assistant Commissioner had allowed the Taxpayer to deduct^[55].  Nobody would have paid the Taxpayer for performing production management work and it would not have made a profit for carrying out such work.  Its income or profits would be the same under the Transaction and the Alternative Hypothesis.  The ancillary and incidental production management work carried out in the Mainland would not render any part of the Taxpayer’s profits sourced in the Mainland.

64.  We agree entirely with the judge’s analysis at §§61 to 69 of the Judgment.  It is not necessary to repeat her analysis which has been summarised in the earlier part of this judgment.  As explained by the judge at §68, the reliance on the discussion of Ribeiro PJ on manufacturing profits in Ngai Lik Electronics Co Ltd is misconceived, see also Fok J’s detailed analysis of this discussion in CG Lighting at §§83 to 90.

65.  The Board made no error of law in finding that there was a tax benefit to the Taxpayer in that the tax liability would be lower by interposing the Transaction which enabled a deduction of the Management Fees Per Written Agreement.  The judge is right to answer question (1) in Ground 2 in the negative.

Question (2) in Ground 2: assessment under section 61A(2)(b) to counteract the tax benefit

66.  Mr Mok’s contention is that the judge erred in law in holding that the Board’s exercise of the power of assessment under section 61A(2)(b) to counteract the tax benefit was not miscarried.  He maintained his stance there is no basis to treat the profits from Profit Gain’s production management services in the Mainland (as represented by the Management Fees) as part of the Taxpayer’s assessable profits under the Hong Kong tax regime, when those profits are not chargeable to Hong Kong tax.

67.  The stance of Mr Mok was rejected by the judge for the reasons we have gone into, and with which we agree.  There is no merit in his contention.

Question (3) in Ground 2: if the Transaction was for sole or dominant purpose of obtaining tax benefit

68.  Mr Mok repeated his argument that in considering the matters listed in section 61A(1)(a) to (g) for this inquiry of sole or dominant purpose, the judge failed to recognise that the Board did not take into account relevant matters and took into account irrelevant ones.  He raised four matters that the judge and the Board had failed to take into account:

(1) The judge and the Board failed to recognise that it is legitimate for the Group to keep separate its Hong Kong and offshore operations to segregate taxable from non-taxable profits.  “[The] statutory purpose of s 61A is not to attack arrangements made to secure tax benefits which are legislatively intended to be available to the taxpayer. … [Our] system of taxation does not bring within the s 14 charge to profits tax which arise from operations conducted offshore, whether by the taxpayer or by a fellow subsidiary.”^[56]

(2) The judge and the Board failed to take into account the Board’s finding that the Management Fees Per Written Agreement were not arbitrary or excessive^[57]. The judge wrongly considered this irrelevant to the question of sole or dominant purpose under section 61A but relevant to the question whether the fees are deductible expenses under sections 16 and 17^[58].  This is contrary to the statement in Ngai Lik Electronics Co Ltd at §88 that excessive prices are “highly relevant in the s 61A context, but it does not follow that the fact that excessive prices were paid meant that s 17 should be triggered and deduction disallowed.”

(3) The judge and the Board failed to take into account the Board’s finding that Profit Gain is not a sham and carried on real operations^[59], and that Profit Gain kept a larger team of skilled staff whereas the Taxpayer kept a smaller team for its limited role of soliciting and placing orders.

(4) The judge and the Board failed to properly recognise it is not unusual for related parties to not strictly follow the terms of the Management Agreement for payment of Management Fees^[60], and, in any case, even though the payment terms were not strictly followed, the Taxpayer still made substantial payments of Management Fees to Profit Gain.

69.  As the judge has stated^[61], regarding the argument that the Board failed to take into account relevant matters and took into account irrelevant ones, there is no basis for appellate intervention unless the Irrationality Ground is made out.  It is not the court’s task to re-weigh the evidence to arrive at its own conclusion.  It is impermissible to raise the Irrationality Ground in paragraph 7 of the Notice of Appeal when Question (3) in Ground 2, which defines and limits the scope of the appeal, does not mention this ground.

70.  In any event, the arguments on the four specific matters are of no merit.

71.  The judge rightly held^[62] that the statement in Ngai Lik Electronics Co Ltd at §101 does not assist the Taxpayer.  The application of section 61A in the present case is not directed at challenging the source of the Taxpayer’s profits or any legitimate choice of location in arranging its business.  The Taxpayer cannot simply say that segregation of offshore operations is legitimate and then brush aside what flowed from the Transaction, which was that “the Taxpayer was supposedly charged substantial fees, resulting in a profit margin far lower than that of Profit Gain, whilst the overall profits remained within the Group, with the sums siphoned off not being subject to tax”.  See also the observations of Ribeiro PJ in Ngai Lik Electronics Co Ltd at §99(e) quoted by the judge on the factors in section 61A(1)(d) and (e), which require one to consider the financial effects of the transaction on the taxpayer and on persons connected with the taxpayer, such as the group to which a taxpayer company belongs.

72.  It is not a requirement under section 61A that the transaction or any entity involved is a sham.  The Board’s findings that the Management Fees Per Written Agreement were not arbitrary or excessive, and that Profit Gain is not a sham and carried on real operations, are of no relevance to the question whether the transaction was entered into for the sole or dominant purpose of obtaining a tax benefit, for the reasons given by the judge^[63]. Nor is it relevant that it was not unusual that the Taxpayer and Profit Gain did not strictly follow the terms of the Management Agreement for payment of Management Fees.  We agree with the judge.  The Board found that the Management Fees Per Written Agreement were deductible expenses.  The expenses have to be deductible before section 61A could apply at all, but properly deductible expenses would nevertheless constitute a tax benefit if the sole or dominant purpose is to obtain a tax benefit.  Mr Mok has taken out of context the discussion of Ribeiro PJ in Ngai Lik Electronics Co Ltd at §88 on excessive purchase prices not fixed at arm’s length under the heading of tax benefit within the meaning of section 61A.  The discussion was not about the dominant purpose of the transaction.

73.  Even if the Irrationality Ground in paragraph 7 of the Notice of Appeal is to be considered, the high hurdle of establishing this ground is plainly not met.

Conclusion

74.  For all the above reasons, we dismiss the Taxpayer’s appeal with costs to the Commissioner.