Statement of position response period

Summary

The disputant issued his Statement of Position ("SOP") on 20 November 2009. The Commissioner issued his SOP via fax on the last date of the response period, 19 January 2010, at 11.07 pm and also posted it at 11.25 pm. The disputant contended the High Court Rules applied to the dispute and that the Commissioner's SOP being issued after 5 pm was out of time.

Impact of decision

The Commissioner may issue a SOP to a taxpayer after 5 pm, but prior to midnight on the day the SOP is due. Submitting the SOP electronically will meet the requirements of the Tax Administration Act 1994 ("TAA"). The SOP response period is governed by the TAA and not the High Court Rules.

Facts

This was an application by the disputant concerning the Commissioner of Inland Revenue issuing a SOP to the disputant after 5 pm on the last day of the response period.

The Commissioner issued a Disclosure Notice pursuant to section 89M(1) of the TAA, which required the disputant to issue a SOP to the Commissioner within two months. This required the disputant to issue the SOP by 20 November 2009.

The disputant's SOP was issued on 20 November 2009.

On 19 January 2010, the Commissioner responded to the disputant's SOP by faxing his SOP to the disputant's tax agent that evening at 11:07 pm and also posted the SOP to the disputant's tax agent on the same evening at 11:25 pm, being the last day of the response period.

Decision

The Taxation Review Authority found that section 89AB(5) of the TAA deals specifically with the response period required in the current circumstances. This section provides:

• 89AB(5) [Disclosure Notice] When the initiating notice is a disclosure notice, a notice issued by the Commissioner rejecting an adjustment proposed by a disputant, or a disputant's statement of position, the response period is a 2-month period starting on the date of issue of the initiating notice.

Judge Barber agreed that issuing the SOP by way of facsimile on the evening of 19 January 2010 met the requirements of the TAA and was within the statutory period. Section 14(7) of the TAA specifically allows for giving notice to an addressee by electronic means of communication.

Judge Barber stated that in terms of Section 14(7) of the TAA, the Commissioner does not require the consent of the disputant to provide his SOP electronically. The only requirement is that there are reasonable grounds to suppose the notice will be received by the addressee.

Judge Barber agreed with the Commissioner that the disputes resolution process in Part 4A of the TAA is not a proceeding as defined in the High Court Rules.

Judge Barber agreed with the Commissioner that the TAA applies to this situation, dismissed the disputant's application and directed a directions hearing be convened for timetabling of the substantive dispute.