Are same-sex marriage partners entitled to civil service spousal benefits and to opt for joint assessment when filing tax returns for salaries tax purposes?

In June 2019, the Court of Final Appeal (CFA) unanimously allowed the taxpayer’s appeal and handed down its judgment. The CFA affirmed the right of same-sex couples to enjoy civil service spousal benefits and to elect for joint assessment for salaries tax purposes.

Background

Leung Chun Kwong v Secretary for the Civil Service and Another

The taxpayer in this case is a permanent resident of Hong Kong. He has been employed by the Government of the Hong Kong Special Administrative Region as an immigration officer since 2003. Mr. Leung is a homosexual. In 2014, he married his homosexual partner in New Zealand where same sex marriage is legal. As a civil servant, taxpayers are entitled to medical and dental benefits provided by the Government. These benefits are extended to the civil servant’s family, including his “spouse”. As Hong Kong does not recognize same-sex marriages, the Civil Service Bureau denies taxpayers the right to update their marital status, rendering their spouses unable to enjoy spousal benefits.

Moreover, under section 10 of the Inland Revenue Ordinance, the salaries tax of spouses is payable separately unless they choose to be jointly assessed. A taxpayer files a tax return and seeks to elect to be jointly assessed with his/her homosexual partner for salaries tax assessment. The Commissioner of Inland Revenue (“CIR”) rejected the joint assessment of the taxpayer and his/her homosexual partner on the ground that the taxpayer was not a married couple within the meaning of the Inland Revenue Department (“IRD”).

As a result, the taxpayer filed a judicial review against the above benefits and tax decisions.

The Court of First Instance held that the above benefit decisions constituted differential treatment against the taxpayer, at least indirectly discriminating against his sexual orientation, and were therefore unreasonable. The Court of First Instance therefore granted the taxpayer’s application for judicial review of the benefit decisions. However, the Court of First Instance dismissed the taxpayer’s challenge to the tax decision. This was because interpreting “marriage” under the Inland Revenue Ordinance to include same sex marriages would be inconsistent with its meaning under the laws of Hong Kong. The taxpayer’s application for judicial review of the tax decision was dismissed.

The taxpayer appealed to the Court of Appeal. The Court of Appeal upheld the CFI’s decision. The Court pointed out that “marriage” in the IRO should not be extended by statutory interpretation to cover same sex marriages. The Court of Appeal therefore unanimously affirmed the legality of the tax decision.

The taxpayer appealed to the Court of Final Appeal (CFA).

The Court of Final Appeal’s ruling

The CFA stated that a fundamental principle of the rule of law system is that all persons are equal before the law. This principle is enshrined in the Basic Law and the Hong Kong Bill of Rights. As the CFA has made clear in its judgments in other cases, discrimination is fundamentally unacceptable. However, the law must distinguish between different situations or behaviors and the possible legal consequences. The principle of “determining when distinctions in laws or administrative measures are reasonable and fair and when such distinctions amount to unlawful discrimination” was therefore formulated.

In this case, the above welfare decision and tax decision constituted unlawful discrimination on the basis of the taxpayer’s sexual orientation. The marital criterion applied by the IRD in assessing the combined tax liability of married couples is limited to heterosexual married couples, but not same-sex married couples. As a homosexual, the taxpayer in this case could not meet the marital standard applied by the IRS.

However, the Court of Final Appeal (“CFA”) did not consider that the denial of the taxpayer’s right to elect for joint assessment was rationally connected with the protection of the matrimonial regime in Hong Kong. The CFA rejected the Court of Appeal’s analysis that “because heterosexual marriage is the only form of marriage recognized by the laws of Hong Kong, it is reasonable to restrict the benefits of heterosexual married couples”. The CFA did not agree that heterosexual marriages would be prejudiced by the provision of employment and tax concessions to same-sex married couples, which were only intended to recognize the economic realities of the family unit or to encourage recruitment and retention of staff.

Moreover, given that the Inland Revenue Ordinance recognizes polygamous marriages to a certain extent and extends the meaning of “marriage”, it was difficult for the Court of Final Appeal to accept that the Inland Revenue Ordinance was not intended to recognize polygamous marriages. The CFA found it difficult to accept the need for the IRO to promote heterosexual and monogamous marital regimes.

The Court of Final Appeal therefore held that the differential treatment in the welfare and tax decisions was unreasonable and amounted to unlawful discrimination. Same-sex couples are entitled to elect for joint assessment for salaries tax purposes.

Conclusion

This judgment confirms that same-sex couples are also entitled to the tax incentives available to married couples under the Inland Revenue Ordinance.

According to the Court of Final Appeal’s decision, same-sex married couples should be entitled to other benefits or policies previously available only to married heterosexual couples. However, the Court of Final Appeal has repeatedly emphasized that this case only deals with the benefits and taxation of same-sex marriages, and is not a dispute over the legalization of same-sex marriages in Hong Kong. Although the CFA’s judgment marks a victory for the underprivileged in Hong Kong, it does not mean that same-sex marriages will soon be recognized in Hong Kong. There is still considerable controversy over the tax or legal aspects of same-sex marriages. If you are in any doubt, please consult a tax or legal professional.