Issued
2015
Decision
08 Oct 2015
Court
NZTRA
Appeal Status
No right of appeal

Application to raise new propositions of law and issues dismissed

2015 case note - section 138G(2) Tax Administration Act 1994 must be met before applicant can raise new propositions of law and new issues in challenge proceedings.

Case
TRA 018/12 [2015] NZTRA 17
Legal terms
Application to raise new propositions of law and new issues in challenge proceedings

Summary

This was an application of the disputant to raise new propositions of law and new issues in challenge proceedings. The Taxation Review Authority (“the Authority”) found that the disputant had not identified any propositions of law or new issues that the disputant could not have discerned with due diligence at the time of delivery of his Statement of Position (“SOP”). Accordingly, the application was dismissed.

Impact

The Authority must be satisfied that s 138G(2) of the Tax Administration Act 1994 (“TAA”) has been met before an applicant can raise new propositions of law and new issues in challenge proceedings.

Facts

This was an application brought by the disputant, pursuant to s 138G(2) of the TAA, to raise new propositions of law and new issues in the challenge proceeding.

The disputant sought to raise new propositions of law and new issues relating to a purported finding at paragraph [6] in a judgment of Williams J, delivered in August 2013. The August 2013 case was an appeal from a decision of the Environment Court.

The disputant also made oral and written submissions with other propositions of law and new issues that the Authority addressed.

Decision

The disputant’s application under s 138G(2) of the TAA was dismissed.

New propositions of law and new issues raised in notice of application

The disputant wished to raise in his challenge, new propositions of law and new issues related to the judgment of Williams J at paragraph [6], which states:

  • [6] In 1977, TLL built the 410 metre diversion of the Kawau Stream accordingly (I call this the [name] diversion to differentiate it from the runway diversion). The appellant’s father piped 205 odd metres of the downstream end of the diversion before his death in 1977, and the appellant completed the upstream section after his father’s death. This section was not piped. The appellant used open channelling.

The Authority found that there were no findings of fact at paragraph [6] of the judgment of Williams J. Furthermore, it simply formed part of the narrative which Williams J considered was necessary to set out before considering the matters for determination in that case.

The disputant made oral submissions that the statement made by Williams J at paragraph [6] is particularly significant having regard to the definition of land inserted into the Goods and Services Tax Act 1985 with effect from 1 April 2011. As the goods and services tax (“GST”) periods subject to this proceeding predate 1 April 2011, the Authority found that the definition has no application.

The disputant stated that the judgment of Williams J referred to the disputant’s late father and the disputant as joint “special powers” for the 1977 year diversion of the Kawau Stream in four “private lands” in Palmerston North. The Authority agreed with the Commissioner that the disputant’s submission in this regard was misleading and wrong. The Authority noted that there was certainly no finding of the existence of a joint “special power” made in the judgment of Williams J.

The Authority concluded that the disputant had not identified any propositions of law or new issues that the disputant could not have discerned with due diligence at the time of delivery of his SOP.

Other propositions of law and new issues raised in the disputant's submissions

Aviation-related service

The disputant submitted that he was supplying an “aviation related service” as defined in s 2 of the Civil Aviation Act 1990 to the [named] airport on every day of every year since 1977.

The Authority agreed with the Commissioner’s submission that if the service has been provided since 1977, the issue of whether the disputant has been providing such a service is not one which he could not, at the time of delivery of his SOP, with due diligence, have discerned. Accordingly, the Authority found that that the disputant’s application in respect of this alleged issue also failed at the first stage under s 138G(2).

Alleged trustee income under s 93B of the TAA

The disputant submitted that the Authority may determine in a fair and reasonable manner the amount of trustee income of the disputant, for each year since 1977 under s 93B(1)(e) and s 93B(2) of the TAA.

The Authority found that s 93B provides that the Commissioner may assess a trust for income tax not a Taxation Review Authority (the powers of a Taxation Review Authority are set out in s 138P of the TAA). The Authority also noted that this proceeding is not about income tax and therefore s 93B is not relevant.

Section HR 6(6) of the Income Tax Act 2007

The disputant claimed that failing an agreement between the airport operator and the Commissioner, a Taxation Review Authority may determine disputes concerning value or timing under s HR 6(5) of the Income Tax Act 2007. The Authority found that any question in respect of value of assets or timing issues for the purposes of income tax must be resolved by agreement between the Commissioner and the airport operator, or failing agreement, the Commissioner (not a Taxation Review Authority).

Furthermore, the Authority noted that this provision involves the assessment of income tax, which is not relevant in this case.

Trustee income

The Authority noted that the disputant’s submission under this heading was somewhat difficult to follow and found that the current proceeding concerned the disputant’s GST claims for specific periods and did not involve any other GST-related matters. The Authority therefore found the issue not relevant.

Tax Administration Act 1994, Goods and Services Tax Act 1985, Income Tax Act 2007