Tax controversies in Singapore typically arise after a tax audit, a tax assessment or a tax refund application. They could also arise after a tax ruling application.
The more common types of taxes that give rise to tax controversies are corporate and individual income tax, and goods and services tax. To a lesser extent, there may also be disputes over property taxes, stamp duties and customs duties. There is no fixed range of values involved in tax controversies.
In general, taxpayers may mitigate the risk of tax controversies by preparing adequate and contemporaneous documentation in respect of their transactions, and seeking adequate tax advice before undertaking any significant transactions or restructuring steps. Taxpayers may also consider seeking advance rulings or advance pricing agreements from the tax authorities in order to obtain upfront certainty on the tax treatment of a particular transaction or restructuring exercise.
There has been an increase in the number of Singapore tax controversies in recent years, including disputes in the area of transfer pricing.
Factors that contribute to the increase in tax controversies include the tax authorities' increased level of sophistication and awareness of taxpayers' tax-planning strategies, increased exchange of information driven by the BEPS project, and adoption of certain BEPS recommendations.
For additional income tax assessments, the tax assessed must be paid within one month after the service of the notice of assessment, even if the taxpayer disputes the assessment and lodges an objection. The Comptroller of Income Tax may, in his or her discretion, and subject to such terms and conditions, including the imposition of interest, as he or she may impose, extend the time limit within which payment is made.
Non-payment of any tax assessed in due time may attract penalties and enforcement actions.
According to the Inland Revenue Authority of Singapore ("IRAS"), IRAS adopts a risk-based approach in carrying out compliance actions. From time to time, IRAS will identify particular areas of audit focus for each tax type as well as what they regard to be common mistakes made by taxpayers. The areas of audit focus can be identified based on industry, taxpayer profile/size, tax issue, etc.
For instance, at the time of writing, the ongoing areas of focus for compliance identified by IRAS in the area of corporate tax include (i) claims under the Productivity and Innovation Credit (PIC) scheme, (ii) classification of income and expenses for income taxable at concessionary and prevailing corporate tax rates, (iii) group relief claims, and (iv) tax exemption for foreign-sourced dividends and (v) recognition of income from construction contracts and provisions claimed by construction companies.
Based on our experience, there are also certain tax positions, activities, transactions, expenses, etc, that are more likely to attract scrutiny from IRAS in a tax audit. IRAS may also conduct random audits on taxpayers from time to time.
Legally, a tax audit can be initiated at any time for the purposes of tax assessment. For income tax, the limitation period for the Comptroller to issue an additional assessment (for Year of Assessment ("YA") 2008 and after) is four years after the expiry of that YA, unless fraud or wilful default is involved.
A tax audit does not suspend or interrupt the limitation period. In practice, the Comptroller may issue an assessment before the limitation period expires as a "protective assessment", before it is able to investigate fully or resolve a tax dispute with the taxpayer.
When IRAS conducts desk audits, such audits are usually conducted based on printed documents. However, in cases where IRAS conducts tax investigations (eg, on suspicion of tax evasion), IRAS may seize electronic data from the taxpayer's premises.
IRAS may require taxpayers to attend at IRAS' offices for interviews or meetings as part of tax audits. IRAS may also conduct field audits or tax investigations at the taxpayer's premises.
At the time of writing, IRAS identifies the following items as ongoing areas of focus for compliance efforts in the area of corporate tax:
• timely filing of corporate income tax returns;
• Productivity and Innovation Credit claims;
• classification of income and expenses for income taxable at concessionary and prevailing corporate tax rates;
• Group Relief claims; and
• tax exemption for foreign-sourced dividends; and
• recognition of income from construction contracts and provisions claimed by construction companies.
IRAS has also announced that its upcoming area of focus for corporate tax will be on:
• car dealers;
• private-hire car operators; and
• food and beverage establishments.
An increase in tax audits has been observed, spurred on by changes in the international tax regime and increased exchange of information driven by the OECD BEPS Project. No tax audits have been conducted by IRAS jointly with tax authorities of different states.
Some strategic tips in dealing with tax audits are:
• be responsive to requests and adopt a co-operative demeanour;
• designate a single point of contact to communicate with IRAS during the audit process;
• ensure consistency in all representations made to the IRAS and tax authorities in other jurisdictions;
• clarify the scope of the IRAS' request, where appropriate; and
• take adequate steps to protect privileged documents or information.
The following deals specifically with income tax assessment.
Under the Singapore Income Tax Act (Cap. 134), a taxpayer would be required to file an objection to the income tax assessment with the Comptroller, before an appeal can lie to the Income Tax Board of Review.
The administrative tax procedure is, briefly, as follows:
• A taxpayer who has received an income tax assessment may object to the assessment by filing a written notice of objection with the Comptroller, specifying the grounds upon which the objection is made. For corporate taxpayers, the notice of objection must be filed within two months from the date of the service of the notice of assessment. For individual taxpayers, the notice of objection must be filed within 30 days.
• The Comptroller will review the objection and determine whether to revise the assessment accordingly. In the event that the taxpayer fails to agree with the Comptroller as to the amount at which he or she is liable to be assessed, the Comptroller will give the taxpayer notice of refusal to amend the assessment.
There is no express statutory deadline for the Comptroller to review and decide on whether the assessment should be revised, or to issue a notice of refusal to amend the assessment ("NRA") within a certain timeframe after a taxpayer files an objection. Under the Income Tax Act, the appeal lies to the Income Tax Board of Review only upon the Comptroller's issuance of a NRA. To date, there has been no case law in Singapore deciding on the taxpayer's rights in the event that the Comptroller withholds the issuance of a NRA or takes an unreasonably long amount of time to issue a NRA.
A taxpayer may initiate tax ligation by filing a notice of appeal with the Income Tax Board of Review within 30 days from the date of the Comptroller's notice of refusal to amend the assessment.
The proceedings before the Income Tax Board of Review involve the following stages, generally:
• filing of notice of appeal by the taxpayer;
• filing of petition of appeal by the taxpayer;
• filing of affidavit(s) of evidence-in-chief by the taxpayer and the Comptroller (if any);
• filing of bundles of documents by the taxpayer and the Comptroller (if any);
• filing of written submissions by the taxpayer and the Comptroller and accompanying bundles of authorities; and
• hearing of the appeal.
Evidence can be adduced in the form of documentary evidence or oral evidence (eg, through the cross-examination of witnesses) before the Income Tax Board of Review ("ITBR").
In civil tax litigation proceedings, the burden of proof lies with the taxpayer to show that the assessment that he or she is appealing against is excessive. In criminal tax litigation proceedings, the burden of proof lies with the prosecution to prove the tax crime beyond reasonable doubt.
There is a number of strategic options to consider in a tax litigation matter:
• Evidence: in cases where the facts are in dispute, it is critical to strategise how to build a formidable case by weaving together the relevant pieces of evidence. Tax litigants should consider the availability of witnesses and documentary evidence at an early stage. Tax litigants should also consider whether to rely on expert witnesses to provide evidence on any matters requiring special knowledge (eg, accounting matters or valuation).
• Legal arguments: a substantial number of tax disputes arise from a point of statutory construction of the relevant tax provision. Detailed legal research is critical to the taxpayer's prospects of prevailing in a tax litigation.
• Possibility of settlement: it is open to parties to settle the matter at any point during the course of the proceedings. To save time and costs, this option should be considered as early as possible.
The relevance of foreign court jurisprudence, academic opinions/articles and international guidance depends on the context in which such authorities/materials are sought to be relied on.
For instance, in interpreting tax statutes, the Singapore courts are required under Section 9A of the Interpretation Act (Cap. 1) to adopt a purposive approach, where an interpretation that would promote the purpose or object underlying the written law is to be preferred to an interpretation that would not promote that purpose or object. The determination of such a purpose or object may in certain circumstances involve extraneous materials that do not form part of the written law, which - depending on the context – could arguably include international tax guidelines.
Foreign judicial decisions on tax provisions that are similar to Singapore tax provisions may be of persuasive value to Singapore courts.
An appeal lies from a decision by the Income Tax Board of Review ("ITBR") to the High Court on issues of fact or issues of mixed law and fact.
A further appeal may lie from the decision by the High Court to the Court of Appeal, which is the highest appellate court in Singapore. Where the amount or value of the subject-matter in dispute does not exceed SGD250,000, leave to appeal must be obtained from the High Court of Court of Appeal before an appeal may be brought.
Both appeals to the High Court and to the Court of Appeal generally involve the following key stages:
• filing of the appeal;
• filing of the appellant's case and the respondent's case; and
• hearing of the appeal.
An appeal before the High Court on the decision of the ITBR will be heard by a single judge. An appeal before the Court of Appeal on the decision of the High Court will generally be held before two or three judges (although the Court of Appeal has the power to determine whether to convene a panel of five or any greater uneven number of judges).
There are no specific alternative dispute resolution (ADR) schemes for resolving domestic tax disputes in Singapore. However, taxpayers who do not wish to resolve tax disputes through litigation may attempt to resolve them with the Comptroller at the administrative level.
Singapore has no specific ADR mechanism for tax disputes.
Singapore has no specific ADR mechanism for tax disputes.
This is not applicable as Singapore has no specific ADR mechanism for tax disputes.
This not applicable in Singapore as there is no specific ADR mechanism for tax disputes.
Singapore has no specific ADR mechanism for tax disputes.
Under the Singapore Income Tax Act (Cap. 134), the submission of an incorrect return is a strict liability offence that attracts penalties. Higher sanctions apply where there are higher levels of culpability (eg, without reasonable excuse, with wilful intent to evade tax). However, in practice, IRAS does not automatically impose criminal sanctions for every additional tax assessment. In most ordinary cases, tax assessments are not accompanied by criminal charges.
Procedurally, a criminal tax prosecution and a civil tax appeal in respect of the same tax assessment can proceed separately. However, it is possible that parties may apply for the court to suspend or stay the prosecution proceedings until such time as the civil tax appeal is heard.
IRAS usually initiates a criminal prosecution if it has determined that it has gathered prima facie evidence to show that the elements of an offence (eg, tax evasion) are made out. Such evidence would usually be gathered during an audit and investigation into the taxpayer's affairs.
There is no concept of an "administrative infringement process" in the context of Singapore tax administration/laws.
There is no concept of an "administrative infringement process" in the context of Singapore tax administration/laws.
The typical stages of a criminal prosecution are as follows:
• the accused person is served with the summons accompanied by the charges;
• the accused person is required to attend the mention and to inform the court on whether he or she decides to claim trial, or to plead guilty to the charges;
• if the accused person wishes to plead guilty, he or she will have to admit to a statement of facts prepared by the prosecution for his or her plea of guilt to be accepted. He or she may then enter a plea in mitigation; and
• if accused person claims trial, the matter will be fixed for hearing once the case is ready for trial. There may be one or a number of pre-trial conferences fixed prior to that.
A criminal prosecution for tax offences will be heard by the Magistrates' Court or District Court, instead of the Income Tax Board of Review which hears appeals against tax assessments.
It may be possible for the taxpayer to benefit from reductions of potential fines applicable to the corresponding tax offence if upfront payment of the additional tax assessment is made.
For offences that are compoundable, a taxpayer may be given an offer to pay a composition sum in lieu of prosecution and conviction in court for that offence.
Generally, a person who is not satisfied with any judgment, sentence or order of a trial court in a criminal case or matter to which he or she is a party may appeal to the appellate court against that judgment, sentence or order in respect of any error in law or in fact, or in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or manifestly inadequate.
There are no reported decisions where the application of a general anti-avoidance rule or a transfer-pricing adjustment has led to a criminal prosecution. Based on our experience, this is not common unless there are also elements of tax evasion or fraud involved.
Taxpayers may avail themselves of domestic litigation or the available mechanism under the double tax treaty to combat a double taxation.
There is no Singapore case law on the specific issue of whether and how a general or specific anti-avoidance rule may been applied in a cross-border situation covered by a bilateral tax treaty. In particular, Singapore courts have not decided on whether Section 33 of the Singapore Income Tax Act (Cap. 134), which is the general anti-avoidance provision, may override a tax treaty.
There is no Singapore case law where a transfer-pricing adjustment made by the Comptroller has been challenged before the courts.
IRAS is open to considering any requests for unilateral or bilateral advance pricing agreements ("APAs") from taxpayers. For applications for APA made under a double taxation treaty, the main stages are as follows:
• a taxpayer initiates and attends a pre-filing meeting with IRAS to discuss the matter;
• a taxpayer submits a formal APA application to IRAS;
• if IRAS accepts the application, it will issue a letter of acceptance to the taxpayer and the relevant foreign competent authority (for bilateral APAs). Alternatively, IRAS may reject the application and notify the taxpayer in writing with its reasons;
• IRAS then commences negotiations with the foreign competent authority and may update the taxpayer on the progress; and
• when an agreement is reached with the foreign competent authority, IRAS will meet with the taxpayer to discuss the details and implementation of the agreement. The taxpayer will have to decide whether the agreed outcome is acceptable.
There is no Singapore case law on permanent establishment or transfer pricing. However, there are some Singapore-reported decisions on withholding tax, whether an income is Singapore-sourced or foreign-sourced, as well as exchange of information.
No filing fees are applicable at the stage of filing an objection to the tax assessment with the Comptroller.
Taxpayers are required to pay a filing fee of SGD200 (for corporate taxpayers) or SGD50 (for non-corporate taxpayers) to the Accountant-General for the lodgement of an appeal with the Income Tax Board of Review, for each assessment appealed against. There are also filing fees and hearing fees applicable for appeals to the High Court and/or the Court of Appeal. If the taxpayer prevails, costs may be awarded to the taxpayer, which generally include legal fees and disbursements.
The taxpayer may be entitled to costs that are awarded in the court's discretion, with regard to the principle of proportionality and all relevant circumstances, in particular, a number of factors such as the complexity of the matter, time and labour expended, the number and importance of the documents prepared and perused, the amount or value involved, etc.
Alternative dispute resolution mechanisms do not apply as Singapore has no specific ADR mechanism for tax disputes.
Singapore does not publish statistics of tax cases currently pending before the ITBR and/or the courts.
Singapore does not publish statistics of tax cases initiated and terminated before the ITBR and/or the courts.
From 2014 to the end of March 2019), there was a total of 22 reported decisions on matters between the taxpayer and the Comptroller relating to income tax. The Comptroller prevailed in 16 of these cases.
There is no one-size-fits-all strategy that can be applied to every tax controversy. That said, some general comments may be made, based on previous experience.
It is crucial to build a comprehensive and persuasive case that is based on factual evidence and sound legal arguments. This may require expending significant time and effort but is critical to the taxpayer's chances of prevailing in a tax controversy.
The strategies to deploy may depend on which stage of controversy the taxpayer has reached. At the stage of filing an objection to the assessment, the taxpayer may consider advocating his or her position based on wider policy considerations and past administrative positions taken by the tax authority, while this strategy may be less useful at the stage of litigation.
Developing a critical understanding of the tax authority's position is as important as advocating one's position. A tax dispute may be resolved by addressing head on the best argument that the tax authority is able to make.
Capital versus Revenue
Under the Singapore Income Tax Act (Cap. 134) ("ITA"), any gains or profits of an income nature are chargeable to tax under section 10(1)(a) to (g). Singapore imposes tax on income that is revenue in nature, but not on capital gains. There is no capital gains tax regime in Singapore.
Similarly, on the deductibility front, expenditures that are "wholly and exclusively incurred … in the production of the income" are deductible under the general deduction formula in section 14(1) of the ITA, while capital expenditure is generally prohibited from deduction under section 15(1) of the ITA.
There is no bright-line test to distinguish gains/expenditures of a revenue or capital nature. As such, this is an area that often gives rise to controversy between taxpayers and the tax authority. In ABD Pte Ltd v Comptroller of Income Tax  3 SLR 609, the High Court laid out the following guidance:
Singapore taxes income on a territorial and remittance basis. This means that gains or profits of a revenue nature is subject to tax in Singapore only if it is sourced in Singapore, or if it is foreign-sourced but received or deemed to be received in Singapore. Whether the particular gain or profit is sourced in Singapore is therefore a common source of contention.
In the context of interest income, the Singapore court in Chandos v Comptroller of Income Tax  SLR(R) 246 held that the source of interest depends on the precise factual matrix on a case-by-case basis. To determine whether the interest income is sourced in Singapore or elsewhere, the court would consider factors such as the place of execution of the agreement providing for the credit, the place of disbursement of the financing, the place where the loaned funds are credited as well as the currency denomination of the financing.
Under the ITA, certain categories of payments made to a non-resident tax resident are subject to withholding tax. An issue that may give rise to controversy is whether the payment in question is one that falls within the withholding tax net. Below are just a few examples of how disputes may arise.
(i) any payment for the rendering of assistance or service in connection with the application or use of such knowledge or information; or
(ii) any payment for the management or assistance in the management of any trade, business or profession.
Section 33 of the ITA is the general anti-tax avoidance provision that provides the IRAS with the power to disregard or vary arrangements that are implemented for the purpose or effect of reducing or avoiding tax liability.
The authoritative case on section 33 of the ITA is the Singapore Court of Appeal case of Comptroller of Income Tax v AQQ and another appeal  2 SLR 847 ("AQQ"). In AQQ, the Court of Appeal set out the following three-step framework for analysing whether section 33 of the ITA may be triggered:
Following the decision in AQQ, IRAS has published guidance on scenarios that IRAS would regard as falling within the scope of section 33 of the ITA.
Other common issues
There are no thin-capitalisation rules in Singapore. However, Singapore courts have held that in order for a particular interest expense to be deductible against taxable income under section 14(1)(a) of the ITA, the taxpayer must show that there is a direct link between the money borrowed and the income produced. This requirement, known as the "direct link test" was first established by the Court of Appeal in Andermatt Investments Pte Ltd v Comptroller of Income Tax  2 SLR(R) 866. Over the years, the Singapore courts have upheld the validity of the direct link test under section 14(1)(a) in a number of cases concerning the deductibility of interest expenses.
In the recent case of BML v Comptroller of Income Tax  2 SLR 1009 ("BML"), a taxpayer undertook a series of steps that converted its issued equity into debt to the shareholders and sought to claim deduction on the interest on that debt. The Court of Appeal upheld the lower court's decision that the interest was not deductible because of the taxpayer's failure to show that there is a direct link between the debt and the income. The taxpayer's attempt to argue that the direct link test was not the exclusive test for determining interest deductibility was rejected.
The application of the direct link test is an area that often gives rise to tax controversy. Also, as an administrative concession, the Comptroller may allow interest deductions based on the "Total Asset Method" where the certain requisite conditions are met, although the application of such an administrative concession may give rise to disputes at times.
Payments for Research and Development
Expenditures on qualifying research and development ("R&D") activities that are not deductible under the general deduction formula of section 14(1) of the ITA may be deductible under section 14D of the ITA. Enhanced deductions on such expenditures may also be available under the Productivity and Innovation Credit (PIC) Scheme (before its expiry after YA 2018) or section 14DA(1) of the ITA.
One key condition that is subject to tax controversy is whether the R&D activities undertaken constitute a qualifying R&D project. A qualifying R&D is defined under the ITA as "any systematic, investigative and experimental study that involves novelty or technical risk carried out in the field of science or technology with the object of acquiring new knowledge or using the results of the study for the production or improvement of materials, devices, products, produce, or processes, but does not include —
a. quality control or routine testing of materials, devices or products;
b. research in the social sciences or the humanities;
c. routine data collection;
d. efficiency surveys or management studies;
e. market research or sales promotion;
f. routine modifications or changes to materials, devices, products, processes or production methods; or
g. cosmetic modifications or stylistic changes to materials, devices, products, processes or production methods."
IRAS has also published detailed administrative guidance on its views as regards the definition of "research and development" under the ITA.
Payments relating to Intellectual Property Rights
Section 19B allows taxpayers to claim writing-down allowances on capital expenditure for the acquisition of intellectual property rights for use in the taxpayers' trade or business, provided certain qualifying conditions are met.
Disputes can arise between the corporate taxpayers and the IRAS over the scope of IP rights that qualifies for writing-down allowances, as well as the amount of writing-down allowance which may be claimed in respect of a particular acquisition.
Under section 19B of the ITA, only the acquisition of certain qualifying IP rights is eligible for writing-down allowances. Qualifying IP rights are defined in section 19B(11) as "the right to do or authorise the doing of anything which would, but for that right, be an infringement of any patent, copyright, trade mark, registered design, geographical indication, layout-design of integrated circuit, trade secret or information that has commercial value, or the grant of protection of a plant variety". However, section 19B(11A) of the ITA goes on to exclude certain items from the expressions "trade secret" and "information that has commercial value" and any work or subject-matter to which the expression "copyright" is applied. Disputes can arise over whether the IP rights acquired fall within the scope of qualifying IP rights.
Taxpayers are required to submit an independent valuation to support their claim for writing-down allowances under section 19B where the capital expenditure incurred is above SGD500,000 (for acquisitions from unrelated parties) or SGD2,000,000 (for acquisitions from related parties). Disputes can arise over the supporting valuation.
Although Singapore has yet to see a decision on a transfer-pricing dispute, transfer-pricing audits and disputes have been on the rise in recent years.
On 23 February 2018, IRAS published the fifth edition of its Transfer Pricing Guidelines (the "2018 TP Guidelines"). The Income Tax (Transfer Pricing Documentation) Rules 2018 (the "TPD Rules") which were made on 21 February 2018 came into effect on the same day as the 2018 TP Guidelines were published.
Together with the updated transfer-pricing provisions introduced in the Income Tax Act (the "ITA") in October 2017, the 2018 TP Guidelines and TPD Rules aim to maintain the broad alignment of Singapore's transfer-pricing regime with the principles outlined in the 2017 OECD Transfer Pricing Guidelines. The new rules also significantly develop the circumstances, process and guidance by which documentation should be prepared and maintained in order to demonstrate that a transfer-pricing analysis had been prepared. New powers are also granted to IRAS to define and enforce the arm's-length principle, and penalise taxpayers who are not deemed to be in compliance.
The combined changes are likely to entail an increased compliance burden for many taxpayers and signal the intent of IRAS to continue and make more robust its focus on transfer-pricing enforcement.