Application for judicial review of a decision of the Taxation Review Authority

Summary

The applicant sought judicial review of the Taxation Review Authority's decision, in a preliminary hearing, that the Commissioner of Inland Revenue's Statement of Position ("SOP") was within the response period as stipulated in section 89AB9(5) of the Tax Administration Act 1994. The application for judicial review claimed that the Taxation Review Authority had erred in law in coming to that decision. Justice Woolford declined the application both as a matter of discretion, and on its merits.

Facts

The Commissioner of Inland Revenue ("the Commissioner"), in response to the plaintiff's SOP dated 20 November 2009, issued her SOP on 19 January 2010 (the date on or before she was required to issue her SOP), via facsimile to the plaintiff's agent at 11.07 pm and posted the same evening at 11.25 pm.

The plaintiff applied for judicial review of the Taxation Review Authority's ("TRA") decision on a preliminary point that the Commissioner's SOP was issued within the response period (two months) set out in section 89AB(5) of the Tax Administration Act 1994 ("TAA"). The application alleged that the findings of the TRA were the result of errors of law and should be judicially reviewed. The plaintiff sought a ruling that the Commissioner did not issue her SOP within the response period.

The plaintiff first filed a notice of appeal in the High Court on 30 August 2012 against the decision of the TRA, but withdrew the appeal two months later when he accepted that no appeal right on a preliminary point was available under section 26A of the Taxation Review Authorities Act 1994 ("TRAA").

Decision

Discretion

(i) Tannadyce

Woolford J began by considering the decision in Tannadyce v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153, and observed that the Supreme Court had concluded that judicial review should only be available where the statutory procedures for tax disputes could never be invoked. His Honour noted that, in the present case, the statutory procedures had already been invoked and are on-going, with a date for the substantive hearing not having been set yet.

Woolford J further noted that the hearing of the preliminary point, before the substantive hearing, did not preclude the plaintiff from including the preliminary point in any future appeal under section 26A of the TRAA should the TRA's substantive decision be adverse to the plaintiff. He concluded that the plaintiff would be able to have his day in court, just not yet.

(ii) Withdrawn appeal

Woolford J also concluded, after reviewing the plaintiff's withdrawn notice of appeal, that the application for judicial review was the appeal recast into allegations that the TRA erred in law.

(iii) Objective of legislation

His Honour observed that the statutory procedures (disputes and challenges) are designed to resolve disputes in a just, expeditious and economical way. This legislation would be frustrated if judicial review were available in respect of all preliminary points decided prior to the substantive hearing.

Woolford J therefore declined the application for judicial review as a matter of discretion.

Error of law

In addition, his Honour concluded that the TRA had not made an error of law.

The Court dismissed the plaintiff's submission that the previous version of section 14(7) of the TAA applied because the dispute had commenced before the amendment to section 14(7) and the previous version did not allow the Commissioner to issue her SOP by facsimile without the plaintiff's consent. Woolford J, in agreeing with the TRA's finding, noted that section 14 applies when the TAA requires the Commissioner to give a notice, thus the amended section 14(7) applies to both existing and new disputes. His Honour observed that section 14(7) (both in its previous and present forms) is a procedural provision that does not give rise to a right or duty in terms of section 17 of the Interpretation Act 1999.

Secondly, the Court rejected the plaintiff's submission that the High Court Rules ("HCRs") apply in relation to the service of the Commissioner's SOP, which should therefore be treated as being served on the subsequent working day (rule 6.6(3)) because it was served after 5 pm. The plaintiff based this submission on the fact that he made an application to the High Court for an extension of time to issue his SOP under section 89M(11) of the TAA. By agreeing in a joint memorandum in that application to file the Commissioner's SOP on 19 January 2010, the plaintiff submitted that the issuance of the Commissioner's SOP was governed by the HCRs. The Court considered rule 6.1 of the HCRs and concluded that as the TAA, not the HCRs, governed the issuance of a SOP, thus the plaintiff's submission was flawed.

Finally, the Court disagreed with the plaintiff's submission that, based on section 11 of the Electronic Transactions Act 2002, the faxed SOP should have been taken to be received on 20 January 2010 as it was the date the facsimile came to the attention of the plaintiff. The Court held, drawing an analogy to receipt by post, that the SOP should be treated as having been served at 11.07 pm when it was facsimiled.

In conclusion, the Court dismissed the plaintiff's application both as a matter of discretion and on its merits.