BRE v Comptroller of Income Tax [2018] SGHC 77

BRE is an Australian citizen and TGS is an Australian company. In a letter of 4 March 2011, TGS offered BRE a position in the company. The offer was accepted and BRE signed a contract with TGS on the same date with the commencement of work stated as 4 April 2011. The title of the position was “project development manager”, which reports directly to the general manager of TGS Asia Pacific.

BRE was served with notices to pay tax on his income derived from payments to him by TGS between 2012 and 2016. Those payments were all paid into a company called Subjunctive, incorporated in Singapore on 2 June 2010. BRE disputes the notices because he says that he was never an employee of TGS. BRE, at all material times, held an employment pass issued by the Ministry of Manpower, which recorded Subjunctive as BRE’s employer. BRE claims that it was Subjunctive that had a contractual relationship with TGS, and that the payments made by TGS had been made to Subjunctive. Thus, although the remuneration on which the Comptroller of Income Tax wished to have taxed might have been the same payments, they were payments to Subjunctive and not to BRE, and Subjunctive ought to have been served with the notices to pay tax, not BRE himself.

The Income Tax Board of Review (“the Board”) heard BRE’s application for review and on 4 July 2017, it dismissed BRE’s claim that he was not an employee of TGS. BRE appealed before me against the decision of the Board.

The sole issue here and below is a straightforward one — was BRE an employee of TGS, or, as BRE claims, was he an employee of Subjunctive which had a contract for services with TGS? The earliest document of significance is the letter of offer by TGS dated 4 March 2011. The subject heading of that letter was “Project Development Manager”. I am of the view that the letter is self-explanatory and answers the questions posed before the Board and repeated before this court. I will therefore set out that letter in full —

That letter was accompanied by the formal contract which was entitled “Terms and Conditions – Employment Contract”. It was also dated 4 March 2011 although the date of commencement was stated to be 4 April 2011. The five-page contract was signed by BRE after the signature of Bruce, the Director of Finance of TGS. In his acceptance, BRE declared:

There is no need to mark an accent on either the offer letter or the Contract. The documents show plainly and unequivocally that TGS was employing BRE as its project manager in Singapore. The only peculiarity is that BRE did not hold an employment pass under TGS. That was only because when BRE signed the contract with TGS he was already holding an employment pass under Subjunctive — a company created and owned by him, which has no other employee other than BRE himself. The Comptroller also alleged that Subjunctive had no other clients other than TGS (assuming that TGS was its client).

BRE claims that he had been working as the Project Development Manager for TGS as an employee of Subjunctive, but he could not produce any contract between TGS and Subjunctive, and was thus compelled to claim that it was an oral contract. Since he is the one and only officer in Subjunctive, the Board, and this court, would require some corroboration from the other party to the oral contract but no one from TGS testified in support of BRE’s claims.

Mr Lazarus, counsel for BRE, argued that if BRE was treated as the employee of TGS, then it must follow that without an employment pass with TGS, BRE must have been working illegally in Singapore, and that being so, no tax should be payable by him for illegally obtained income.