The hearing into an application to transfer a motion – to quash charges against 20 church ministers and stay of proceeding – to the Supreme Court commenced yesterday. 

The matter which is before the District Court was presided by Judge Leota Raymond Schuster. The application was filed by defense lawyer Alex Su’a and Tui Fa’asili last week.

Each of the 20 Congregational Christian Church of Samoa Ministers is facing two counts of failure to withhold tax and failure to file wage tax returns.  

Lawyers Avila Ah Leong and Alesana Tumua, who represented the Ministry of Revenue, strongly opposed the application.

In her submission, Ms. Ah Leong accused the church ministers of using the application as a delay tactic to deflect the cause of justice. 

She argued the application should be dismissed and the matter should proceed without further delay. 

“Also in our own tax administration is to ensure that every tax payer comes before the Court, regardless of age, gender, religion, professional background is treated equally,” she said. 

“This application of the defendant seeks to condone the continuous non-compliance of the defendant of the law that has already been enforced and complied with by Ministers of other religion including even those from the very church the defendant represents.

“This application is intentional attempt to deflect and frustrate the cause of justice…By filing this application the defense is attempting to legitimize what otherwise could be illegal and this could not be condoned in due administration of justice.”

Looking back prior to the amendment of the tax legislation being passed, Ms. Ah Leong said it went through various consultation and through all denomination. 

“People particularly from other denominations have accepted, have accepted pay necessary tax, and accepted contribution their members submitted them are taxable.”

Ms. Ah Leong also made reference to the affidavits of the defendants, where they admit they are not compliant, because of their “church resolution to all reverends to not comply with their tax obligation”. 

“This is the very foundation of their non-compliance and core reasons of these delay tactics. Not because of uncertainty of law or constitutional issues that needs clarity.”

Furthermore, Ms. Ah Leong maintained that the District Court has the jurisdiction to deal with the matter, and does not warrant being transferred to the Supreme Court. 

She added the Constitution articles raised by the defense counsel – claiming to be infringed by the Tax Administration and Income Tax Act – are not relevant to the criminal charges.  

Defense lawyer Su’a responded to submission from Ms. Ah Leong claiming the application was not a delay tactic.   

He reminded the Court that the application is an avenue that is available for the defendant. 

“I ask this honour Court to not place weight on this argument,” said Su’a. 

“These are available to the defendant under the Criminal Procedure Act and the defendants are resorting to those avenues available.”

In response to claims that the Constitution Article 1 and Article 5 are irrelevant, Su’a disagreed. 

“My learned friend submitted that the Constitutional articles are irrelevant to the main issue of this court, which is violation of section 70 and 71 of the Tax Administration Act. 

“We respectfully submit they relate directly to the articles. The relation is the fact the recent amendment of Constitution, which states that the State of Samoa is founded on the Trinity. 

“If we go in to what is given or what is given freely and voluntarily to ministers of religion are non taxable, and that is relevant to the argument of Article 1. It is the same with Article 15, it relates directly as how it discriminate of the very aspect that the ministers of religion are taxable by the income, that is given voluntarily or freely by the congregation. This law (Tax Administration) in unconstitutional.” 

Su’a questioned what constitutes contribution of money (alofa) to church ministers as a taxable income. 

“It is very uncertain hence our argument. There is an argumentative interpretation that the contribution, which is given by the congregation, does not constitute contribution – it’s a gift. They are given to the minister voluntarily and freely, as opposed to a contribution, there is connotation of an application when contribution you are bound to expect something in return. I think that is the very essence of complexity and why the defendants are challenging the sections (70 and 71 of Tax Administration Act).”

 Su’a explained in his submission that Section 70 and 71 of the Tax Administration Act does not apply to the church ministers and the legislation lacks details. 

The Tax Administration Act 2012 Section 70 outlines Offence for failure to file a tax return and Section 71 talks about Offence for failure to withhold tax return. 

In support of their application to transfer the matter to the Supreme Court, Su’a said it will save both parties money if the matter is appealed.  

He further pointed because of the complexity of the issue and interpretation of section 70 and 71 church ministers are uncertain if it applies to them or not. 

Because of the urgency of the matter, Judge Schuster said he will make his decision available sometime next week. 

The twenty church ministers involved include; Tautiaga Senara, Tunumoso Iosia, Faasalafa Vitaoa, Faaiuga Matautia, Faraimo Ti’iti’I, Fili Matalavea, Fuaao Fuimaono, Iese Uele, Ioane Petaia, Lavilavi Soloi, Amosa Reupena, Elefatu Lesa, Poasa Toiaivao, Petaia Leavai, Pita Toleafoa, Siaosi Salesulu, Seilala Luamanuvae, Semikueva Faatoafa, Taise Ioapo and Tavita Anesone.