WANG WEICHEN ZHAO BINGQING v. COLLECTOR OF STAMP REVENUE

WANG WEICHEN ZHAO BINGQING v. COLLECTOR OF STAMP REVENUE

The Collector correctly treated the refund application as a single application by the co-purchasers; because stamp duty is a charge on the instrument and s29DF envisages a single specified refundable amount and excludes cases where the purchaser beneficially owned more than one residential property on the acquisition date (per Ho Kwok Tai), the tenants-in-common status did not entitle the applicants to separate partial refunds; the application for leave was dismissed as time-barred and without realistic prospects of success.

Citation
[2021] HKCFI 224
Parties
1st Applicant: WANG WEICHEN; 2nd Applicant: ZHAO BINGQING; Putative Respondent: COLLECTOR OF STAMP REVENUE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 January 2021
Case Number
HCAL823/2020
Procedural Posture
Judicial Review / Application for Leave to Apply for Judicial Review (rolled Up Hearing)
Outcome
Application for leave to apply for judicial review dismissed
Legal Topics
Section 29 DF Stamp Duty Ordinance, Partial Refund of Ad Valorem Stamp Duty, Tenants in Common, Delay and Time Bars for Judicial Review, Statutory Interpretation
Source Language
EN
Stamp Duty Tax Law Constitutional and Administrative Law Property Law Section 29 DF Stamp Duty Ordinance Partial Refund of Ad Valorem Stamp Duty Tenants in Common Delay and Time Bars for Judicial Review +1 more

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Parties

WANG WEICHEN

1st Applicant

ZHAO BINGQING

2nd Applicant

COLLECTOR OF STAMP REVENUE

Putative Respondent

Procedural Posture

Judicial Review / Application for Leave to Apply for Judicial Review (rolled Up Hearing)

Legal Issues

  1. 1 Whether purchasers who are tenants-in-common can be treated as separate applicants under s29DF and obtain separate partial refunds
  2. 2 Whether stamp duty is a charge on the instrument such that payment is joint and several and not divisible by beneficial shares
  3. 3 Whether s29DF applies where the purchaser was beneficial owner of more than one residential property on the acquisition date

Ratio Decidendi

The Collector correctly treated the refund application as a single application by the co-purchasers; because stamp duty is a charge on the instrument and s29DF envisages a single specified refundable amount and excludes cases where the purchaser beneficially owned more than one residential property on the acquisition date (per Ho Kwok Tai), the tenants-in-common status did not entitle the applicants to separate partial refunds; the application for leave was dismissed as time-barred and without realistic prospects of success.

Court Disposition

Application for leave to apply for judicial review dismissed

Orders

  • Applicants shall pay the Collector's costs of this application, including the costs of the hearing on 25 January 2021 and all reserved costs (if any), to be taxed if not agreed, with certificate for one counsel