Church files motion

The Congregational Christian Church of Samoa (C.C.C.S.) has filed a motion to quash the charges against 20 Church Ministers accused of alleged tax law violations.

The motion is also seeking a stay in proceedings as the Church moves to file a civil claim in the Supreme Court challenging the Income Tax Act 2012 and the Tax Administration Act 2012. 

The motion was made known when Reverend Tavita Anesone appeared before District Court Judge, Alalatoa Rosella Papapli’i. The same motion was submitted for the other Church Ministers who appeared before another District Court Judge, Fepuela’i Ameperosa Roma. 

The Ministers each face two counts of failure to withhold tax and failure to file wage tax returns. 

Filed by lawyer, Alex Su’a yesterday, the motion argues that the charges against the church Ministers is a “miscarriage of justice.”

“The specific fact that most of the defendants failed to withhold tax is an error of fact, as the defendants had withheld and already paid the informant the tax,” the motion reads.

“The law imposing the obligation of the Defendants to pay tax is discriminatory to the extent that it infringes on Article 15 of the Constitution of Samoa 1961 in that;

(a) It disallows the Defendants from deducting expenses incurred in carrying out spiritual work when individuals and businesses are allowed to do so;

(b)It does not account for and therefore discriminates on the contribution of faletua in promoting religious work.”

The motion also argues that the defendant cannot answer the charges since there are a “number of uncertainties” in the law such as: 

• It is uncertain who and what taxable income is affected during this period;

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• Who is to keep the funds for taxation purposes in this case;

• The amount of funds that is to be allocated for the purposes of assessing taxable income given that faletuas (pastors wives) are also to receive these funds;

• Which funds are subject to the tax because the law was changed during the period that the amendment to tax ministers of religion was passed; 

• The law is uncertain as to what expenses ministers of religion can deduct for their work

• The charges do not refer to a relevant timeframe as to when the offences occurred

“Unless the law and referred facts alleged in the information was properly determined further prosecutions be stayed temporarily until such time the Honorable Court has determined the applicable law,” the Church says.

But Avila Ah Leong, the lawyer for the Inland Revenue, objected to the motion and asked for time to respond accordingly. 

During proceedings, Judge Alalatoa questioned the relevancy of the defense’s motion in the jurisdiction of the District Court. 

“The motions raise issues that petitions the law in which the District Court has no jurisdiction to hear,” she said. 

“That falls squarely on the jurisdiction of the Supreme Court, yet it is inclusive in your application out forth. 

“You need to sift out what is relevant to our jurisdiction and what is not. When it comes to statutory interpretation of the law, that would be more in relation to a declaratory motion which cannot be dealt with in this Court.” 

 “If you’re intending on filing an application before the Supreme Court, then you need to include those matters in that application and sift out the ones that are relevant here. 

“As you know these are criminal procedures, it doesn’t necessarily mean these proceedings will be stayed automatically because there are proceedings of a civil nature that will be carried out in the Supreme Court.”

The matter has been adjourned for the hearing of the motion on 19 February 2019.

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