Levy Guide No. 2 Guidelines relating to objection made to the Objections Board

Disclaimer

This publication is prepared by the Construction Industry Council (“the Council”) to provide guidance on the administration procedures in relation to objections made to the Objections Board in respect of the payment of levy or surcharge, but it is NOT intended to constitute any legal or other professional advice on the provisions of the Construction Industry Council Ordinance (Cap. 587) or the Construction Workers Registration Ordinance (Cap. 583).  If there are any discrepancies between this publication and the above ordinances, the latter will prevail.

Enquiries

Enquiries on this publication may be made to and assistance may be sought from the Levy Section of the Council, the contact details of which are set out below –

38/F, COS Centre, 56 Tsun Yip Street, Kwun Tong
Kowloon, Hong Kong 
Tel - 2100 9200
Fax - 2100 9339
E-mail - [email protected]

Objections by Levypayers

1. A levypayer that disputes a levy assessment or surcharge may contact the responsible officer listed in the notice of assessment or notice of surcharge to understand the basis and details of the subject assessment or surcharge (as the case may be).

2. Attempts will be made to provide a further explanation of the assessment or provisions of the law to address the levypayer’s queries and / or concerns and reach an agreement on the original assessment.  In other cases, after considering the new and further information provided, the Council may propose a revision of the assessment as a settlement of the queries / points of disagreement.

3. In case where no agreement is reached, the levy payer may serve a notice of objection on the Council. In such case, the objection case shall be referred to the Objections Board (“OB”) for determination.

4. A notice of objection will only be considered by the OB if it is one that fulfills the following requirements (hereinafter referred to as a “valid and complete notice”):

 (a)    The notice of objection must be made in writing and served to the Council within 21 days after the levypayer receives the notice of assessment or the notice of surcharge (as the case may be) (Section 55(3) of the Construction Industry Council Ordinance Cap. 587 (the “Ordinance”)).  Levypayers can download the "Notice of Objection" Form from the Council’s website to facilitate the filing of an objection;

 (b)    As required under section 55(4) of the Ordinance, the notice of objection must state the grounds of objection, and shall be accompanied by all written statements and other documentary evidence relied on by the objector (including but not limited to copies of relevant contract documents, tender documents, bill of quantities, or final payment certificates) to substantiate the objection to the levy and/or surcharges imposed. Vague and unsubstantiated claims, such as a bare statement that “the assessment is not agreed”, will not be considered valid or complete objections.  The grounds of objection should be expressed with sufficient clarity to pinpoint to the Objections Board the particular aspects to which the levypayer objects; and

 (c)    If the levypayer in question is a company, the objector must provide supporting proof that the objection has been filed by a Director, or a person duly authorized by the Company to do so.  The proof can be in the form of a certified true copy of the Annual Return (NAR1) filed with the Companies Registry, or an authorization letter signed by a Director of the Company, etc. 

5. Under section 48 of the Ordinance, the contractor should pay the levy or surcharge, penalty or further penalty in accordance with the notice of assessment or notice of surcharge (as the case may be), even if he or she intends to make an objection under section 55.  If they are not settled before the stipulated period as per section 46 of the Ordinance, the associated penalty and further penalty that may incur before the decision of the OB will be borne by the objector.

Acknowledgement of Objections

6. Upon receipt of a notice of objection, the OB Secretariat will send an acknowledgement email to the objector.

7. The OB Secretariat will examine whether the objection fulfils the requirements of a valid and complete objection (see paragraph 4).  If not, the OB Secretariat will inform the levypayer of any defect promptly and may request additional information to be submitted by the objector within one week from the date of email or within a reasonable time to enable the objection to be handled properly.

8. Upon receipt of a valid and complete notice of objection (including originally invalid and / or incomplete notices which have been properly remedied), the OB Secretariat would then acknowledge receipt of the notice of objection and inform the levypayer that the decision of the Objections Board will be available within 28 days or, where that is not practicable, within a reasonable period.

9. The OB Secretariat would then submit the views of the Council, along with the Notice of Objection, to the Objections Board for consideration.

Constitution of the Objections Board

10. The Objections Board is an independent tribunal consisting of three persons drawn from the membership of the Council for the purpose of determining objections. Appointments are made by the Construction Industry Council under section 54 of the Ordinance. There is a convenor, and not more than two other members. Decisions are based on a majority rule.

11. Under section 54(4) of the Ordinance, the Objections Board may determine its own procedures. These include procedures to be followed for deciding objection cases received by the Objections Board, such as those relevant to the delegation of power to the OB Secretariat for seeking the information necessary for the OB to make a decision on the objection case.

12. Access to all documents relating to the work of the Objections Board are restricted and such documents will not be disclosed unless required by law.

Processing of Objections

13. The procedures for processing objections are aimed at avoiding, as far as possible, any delay in dealing with objection cases.  However, this objective can only be achieved if the levypayer presents a compliant notice of objection, and promptly responds to any further requests for information from the OB Secretariat.

14. In cases where further information or facts may be required before the Objections Board can determine the objection, such further information will be requested from the objector as soon as possible after receipt of the notice of objection by OB Secretariat.  It is only with the prompt submission of such information that an objection can be dealt with expeditiously.

15. A proper presentation of the objection will involve the provision of supporting evidence and arguments in addition to a statement of the grounds of objection [paragraph 4(b) above].

Determination of an Objection by the Objections Board

16. The Objections Board will consider every valid and complete objection case and, within a reasonable time, may confirm, cancel or reduce the levy or surcharge, as provided for under Section 56(2) of the Ordinance.

17. The onus of proving that the assessment and/or surcharge objected against is excessive or incorrect is on the objector. Failure to discharge such onus would result in the objection being rejected.

18. To facilitate the reaching of an agreement on a revised assessment or the proper consideration of an objection, the Objections Board may, by notice in writing, require the levypayer to furnish such particulars as may be deemed necessary in connection with the objection.  The objector may be required to produce a wide range of documents, including all related contracts or other documents.

19. The Objections Board will not consider any grounds other than the grounds contained in the objector’s statement of grounds for objection, and is entitled to determine whether to admit or reject any documentary evidence adduced.

20. The proceedings and decision-making process of the Objections Board shall take place in private. If and when the decision is officially published, steps may be taken to protect the identity of the objector.

Conveyance and Execution of Objections

21. Under section 56(3) of the Ordinance, the OB Secretariat shall notify the objector in writing of the decision of the Objections Board within 28 days after the Council receives the notice of objection or, where that is not practicable, within a reasonable period.

22. Under section 56(4) of the Ordinance, if a levy or surcharge is cancelled or reduced by the decision of Objections Board, the Council shall forthwith refund to the objector the amount of the levy or any amount, including any amount of the penalty or further penalty, that has been paid in excess (as the case may be).

Appeal to the District Court

23. Pursuant to section 57 of the Ordinance, an objector who is aggrieved by a decision of the Objections Board may appeal to the District Court against that decision.  An appeal shall be lodged within 30 days after the objector receives the notification of the decision.

Note: A flowchart for the objection process is shown below for reference.

Flowchart for Construction Industry Council Levy Objection

Note (1) :	Prompt submission of information will enable the objection to be dealt with expeditiously. Undue delay by a levypayer may result in the objection having to be determined after the submission of information.
Note (2) :	Under section 56(3) of the Ordinance, the Secretariat shall notify the objector in writing of the decision of the Objections Board within 28 days after the Council receives the Notice of Objection or, where that is not practicable, within a reasonable period.
* An objector who is aggrieved by a decision of the Objections Board may appeal to the District Court within 30 days against the receipt of notification on the decision of the Objections Board.

 

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