Summary judgment application for GST refund

Summary

The plaintiffs failed in their application for a refund for their February GST return, and the Commissioner had given notice of his intention to investigate within 15 days.

Impact of decision

Confirms that a screen dump letter generated is not proof of service.

Facts

A family trust entered into an agreement to purchase several pieces of property from Westham Holdings Limited ("Westham") for $13 million. The trust was registered for GST and held itself as developers.

On 28 February 2005, the trust filed GST returns for a refund of $1.6 million. GST returns were also filed for the periods March, April and May 2005 for refunds of various amounts in respect of the same purchase. The total GST claim for refund was about $2,667,762.16

The plaintiffs as trustees of the trust commenced legal action in the High Court for the GST refund under section 46 (1) of the GST and applied for summary judgment.

The main issue in the summary judgment application was whether there was a notice issued by the Commissioner within the 15 days from the day after the GST return of 28 February 2005 was received, informing the plaintiffs that their claim was being investigated. At issue were the following letters:

1. The dump screen letter of 5 April 2005.
2. The faxed letter of 14 April 2005.

Decision

Letter of 5 April 2005
The Judge held that there was no evidence to suggest that the said letter was sent to the plaintiffs or their tax agent.

Letter of 14 April 2005
However the Judge held there was no challenge by the plaintiffs to the letter of 14 April 2005. Moreover, the letter was properly served by fax under section14 of the Tax Administration Act 1994 and consent to service by fax could be inferred from the plaintiffs' conduct under section 16(2)(b) of the Electronic Transactions Act 2002.

Accordingly, the Judge dismissed the plaintiffs' claim for summary judgment on the GST return for 28 February 2005

GST returns for March, April and May 2005
The Judge went on to consider the plaintiffs' claim for the other periods and found the position was unclear as both parties had approached the case on the basis of whether the Commissioner had served his notice in reply to the GST return for February.

Directions were made for parties to file further affidavit and amendments to address the other periods.

The objectors in the three groups were unable to show that their respective assessments were incorrect or flawed in any way. All assessments were confirmed.