2015 case note – strike-out granted by TRA - delay, frivolous, vexatious.
The Commissioner of Inland Revenue ("the Commissioner") applied to strike-out these proceedings on the grounds that they were brought solely for the purposes of delay. The Commissioner's application was granted subject to the disputants' tax agent complying with certain conditions stipulated in the Taxation Review Authority's ("the Authority") ruling of 17 July 2015.
Although the disputants did not comply with these conditions, the Authority set down a date for hearing. The disputants then applied to have Judge Barber recused. The Commissioner subsequently sought to have the proceeding immediately struck out as it had become apparent the hearing would not serve the purposes it was intended for. The strike-out was granted.
Impact of decision
The Authority is hesitant to deprive a disputant of having their challenge considered by the Authority due to the conduct of the challenge by the disputant's tax agent. However, the Authority will strike out a challenge if it is brought for purposes of delay, is frivolous or vexatious or there is a failure to comply with an unless order.
On 18 May 2015, the Authority made an unless order which the disputants failed to comply with. On 26 June 2015, the Commissioner applied to strike out the disputants' challenge as being solely for the purposes of delay, being frivolous and vexatious and failing to comply with the unless order. On 27 July 2015, the Authority delivered a ruling outlining why the Commissioner's strike-out application should be granted, subject to the disputants being able to take certain steps to progress the matter. The Authority acknowledged that the matter should have ended but was concerned about depriving the disputants of a "proper resolution" of their challenge. Accordingly, the Authority granted the disputants one month to engage legal counsel, provide evidence briefs and file opening submissions. The strike-out order became subject to these conditions (TRA 002/12  NZTRA 11 at ).
The disputants' tax agent did not comply with these conditions. The Authority again acknowledged that the strike-out should take effect and the matter be at an end. However, a hearing date was set down in November 2015. This was done to allow the disputants a chance to cross-examine current and former Inland Revenue staff in relation to the assessments being challenged.
On 8 September 2015, the disputants' tax agent filed a memorandum seeking to recuse Judge Barber and a claim for costs against a Crown solicitor. In response, counsel for the Commissioner filed a memorandum outlining why the hearing set down for November would not achieve the purposes set out in the Authority's earlier Minute.
The Authority, dealing with the matter on the papers, agreed with the submissions made by the Commissioner and concluded that "[t]he time has come to bring the matter to an end" (TRA 002/12  NZTRA 14 (Supplementary ruling) at ).
The Authority found the disputants had not complied with the unless order of 18 May 2015, as covered in its ruling of 27 July 2015. Accordingly, the disputants' challenge was struck out and dismissed.
Goods and Services Tax Act 1985, Tax Administration Act 1994, Taxation Review Authorities Act 1994