Tuesday, 15 August 2017

Whatsapp Messages: Admissible in Court?

Author: Donovan Cheah (Partner, Donovan & Ho)
Whatsapp is a text messaging application that is used by more than 1 billion users in more than 180 countries. Its use has become so prevalent that it has become a primary mode of communication for many individuals. Many parties now use Whatsapp even for business purposes, such as communicating with clients, sending documents or even negotiating contracts.

As lawyers, one of the questions we get asked frequently is whether Whatsapp messages can be adduced as evidence in court.

Thursday, 10 August 2017

Recovery of Expenses: Disbursement vs Reimbursement

This article was written by Ivy Ling Yieng Ping of Lee Hishammuddin Allen & Gledhill.

1. It is common for a GST-registered business to incur expenses while making a supply of goods or services to clients. Generally, these expenses will be recovered subsequently from the clients. However, the commercial contract between the parties, more often than not, is silent on how the recovery of expenses should be treated for the purposes of GST.

2. This may create confusion, resulting in the recovery of expenses being given the wrong GST treatment (either GST is wrongfully charged or no GST has been charged when it should be) and ultimately resulting in the filing of an incorrect GST return.

Tuesday, 1 August 2017

Real Estate Transactions - GST Inclusive or Exclusive

This article was written by Ashley Lee Si Han of Lee Hishammuddin Allen & Gledhill. 

The goods and services tax (“GST”) has been with us since 1 April 2015 and we have seen its impact on various parts of our lives. In theory, it is a relatively straightforward tax regime that can nevertheless prove difficult in practice, especially in relation to GST on real estate transactions.

Since the introduction of GST in Malaysia, the parties to any real estate transactions have inevitably dealt with the insertion of GST clauses in their contracts. Judging from the precedents of GST disputes under real estate transactions in various Commonwealth jurisdictions, it is important to exercise vigilance in relation to all transaction documents by ensuring that you have the right GST clauses which reflect your intention. If you are relying on a standard “one size fits all” GST clause for all real estate transactions, it might contain several loopholes, which can be a costly mistake in the event of a dispute, given the significant financial impact of GST.

Tuesday, 11 July 2017

Sales Tax Refund

This article was written by Jason Tan Jia Xin of Lee Hishammuddin Allen & Gledhill

When the goods and services tax (GST) was first introduced to replace the general sales tax and service tax regimes in 2015, the overarching concern for businesses was the implementation and administrative aspect. As companies scrambled to understand the rules and procedures in order to facilitate the rollout of GST, many, if not all, would have neglected or overlooked the fact that this transition would trigger a double collection of taxes for goods still held as stock across both tax regimes.

The general sales tax was payable upon manufacturing or importation of the goods. Consequently, all stock still held by businesses in Malaysia as of the cut-off date (1 April 2015) would have been subject to sales tax. Provided that such stock was not part of the zero-rated or exempt supplies, they would also be subject to GST. This is a classic instance of double taxation.

Tuesday, 4 July 2017

Unfriending = unlawful?

Authors: Stephen Booth (Principal) and Lisa Qiu (Lawyer & Registered Migration Agent) (Coleman Greig Lawyers)

Sometimes it’s difficult to ignore a friend request from a work colleague. Once you’ve accepted, should you block or unfriend? A recent decision handed down by the Fair Work Commission may cause you to rethink your next move.

In only the second official stop bullying order handed down by the Fair Work Commission since the introduction of new anti bullying laws in 2013, the Commission has held that unfriending someone on Facebook was “belittling” and “aggressive” and constituted unreasonable behaviour that warranted a stop bullying order.

Ms Roberts, the applicant, was a real estate agent and had been working with VIEW Launceston, a real estate franchise in Tasmania, for approximately two years (strangely enough, the first official stop bullying order handed down by the Commission also concerned events which took place in a real estate agency). Mrs Bird, the alleged bully, was a Sales Administrator and the wife of Mr Bird, the Principal and Co-Director of VIEW.

Ms Roberts was able to prove unreasonable conduct on the part of Mrs Bird, including Mrs Bird:
          • Belittling Ms Roberts when she told her she wasn’t allowed to sign for parcels
          • deliberating delaying the processing of administrative tasks for Ms Roberts
          • deliberately attempting to damage the relationship between Ms Roberts and a client
          • acknowledging others in the morning and delivering photocopying and printing to them, but not to Ms Roberts.

Thursday, 29 June 2017

Similar Means, Different Goals to Achieve Same End: Customs Valuation and Transfer Pricing

This article was written by Jason Tan Jia Xin.

The enforcements of customs valuation and transfer pricing are the epitome of similar means and different goals to achieve the same end. The means of valuation and pricing are similar in the form of the valuation and pricing methodologies. However, the goals are at two ends of the spectrum: the former wants the highest appraised value of imports; the other, the lowest possible level to maximise taxable profits. Such paradoxical treatments are largely unregulated, not less due to regulators themselves being beneficiaries of the ultimate end in the form of higher revenue collection.

In recent years, Australian importers on the receiving end of such discrepancies have successfully pressured the Australian Taxation Office (ATO) and the Australian Border Force (ABF) to reform what most countries (including Malaysia) refuse to rectify: inconsistency in favour of uniformity. This article analyses the paradoxical treatments despite their similarities from a Malaysian perspective, as well as the rectifications made by the ATO.

Monday, 19 June 2017

Drug and Alcohol Abuse at the Workplace

Authors: Donovan Cheah (Partner) and Adryenne Lim (Legal Executive) (Donovan & Ho)

What are some of the issues that could arise when there is alcohol/drug use at the workplace?
Drug or alcohol abuse in the workplace may result in:
          • mistakes, accidents and injuries
          • damage to workplace equipment
          • absenteeism
          • a decrease in productivity
          • reputational damage
What are some of the relevant laws?
The Occupational Safety and Health Act 1994 (“OSHA”) requires employers to ensure, as far as practicable, the safety, health and welfare at work of all their employees. OSHA does not expressly state that employers must develop and implement policies relating to alcohol and drug related problems. However, it is arguable that the obligation to ensure employees’ safety and health is wide enough to cover such issues. This interpretation would be in line with the guideline issued by the Department of Occupational Safety and Health, Ministry of Human Resources (“Guideline”) relating to drug and alcohol problems in the workplace.
Depending on the circumstances, employers may also be vicariously liable for torts (eg: negligence) committed by impaired employees in the course of their employment, even if the impairment was caused by alcohol and/or drug use.
There are also other laws relating to the use of dangerous drugs, but they are not the subject matter of this article which relate to employers’ obligations.

Can employers impose a mandatory alcohol/drug test on employees?