Taxpayer unsuccessful in attempt to compel Commissioner to accept and allow late objection

Summary

Neither the taxpayer nor the TRA could determine an objection for the Commissioner, regardless of the delay in determining the objection.

Facts

This was an appeal from the High Court (reported at (2005) 22 NZTC 19,142).

The Taxpayer filed GST returns in 1990 to 1994 which were accepted by the Commissioner. Subsequently and relying upon dicta from another Taxpayer's case, the Taxpayer sought to file amended returns in 1998 purporting to claim back the outputs accounted for but not to reverse any inputs received. At the time this was done the Taxpayer was already in litigation over the same issue with the Commissioner. The Commissioner wrote to the Taxpayer advising that no action would be taken on the amended returns until the litigation involving other periods was resolved.

At the Court of Appeal the earlier litigation was resolved in the Taxpayer's favour but on a procedural point. The substantive issue (the ability to claim back outputs without addressing inputs claimed) was not addressed (see (2000) 19 NZTC 15,658). The only substantive case on this issue was determined in the Commissioner's favour at the TRA (reported as Case Q34 (1993) 15 NZTC 5,159).

The Taxpayer's amended returns were never assessed or addressed by the Commissioner. In 2000 the Taxpayer requested a case stated. The Commissioner filed a case stated and specifically raised the issues of the status of the case stated where there had been no decision to accept a late objection, nor a determination of that objection. It also raised the status of the input tax credits claimed. The Commissioner successfully appealed the TRA decision allowing the Taxpayer's objection under its "curative jurisdiction". The Taxpayer appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal. It was considered the Commissioner's letter did not accept the late objections. Accordingly these "objections" had never been determined by the Commissioner and thus no right to request a case stated arose. Further as the case stated which was filed expressly raised the jurisdictional point that the case stated itself was not a determination of the as yet unaccepted late objections and accordingly the TRA never had jurisdiction to determine the objection.

In addressing the delay the Court suggested that judicial review was the proper course of action.