Taxation Review Authority considers whether it has the power to approve publication of a taxpayer’s affairs on application by the taxpayer

Summary

The Taxation Review Authority ("the TRA") had to consider whether allowing a journalist to attend the hearing of a taxpayer's dispute was permissible given the privacy restrictions on that jurisdiction. Additionally, the TRA had to consider whether anything in the Taxation Review Authorities Act 1994 ("the Act") or the Taxation Review Authorities Regulations 1998 ("the Regulations") allowed the TRA the power to grant approval to publish information provided to the director of the disputant during the course of the TRA proceedings.

Impact

This decision confirms that challenges heard in the TRA are to be conducted in private and that the reporting of decisions of the TRA is to be restricted to maintain the confidentiality of disputants and their tax affairs.

Facts

The disputant company wished to publish an expose of the activities of the Commissioner of Inland Revenue ("the Commissioner") in relation to his company's challenge and made an interlocutory application to:

1. Publish (digitally and in print) all information its director had received during the course of the TRA proceedings.
2. Have an employee/contractor of the company (other than the director) at the hearing to assist with information gathering to ensure the accuracy of any resulting publication (including blogs).

The disputant submitted that the s16(4) of the Act, did not preclude the publication of TRA trial matters if the disputant chooses to do so. In the absence of an express prohibition, and in the interests of transparency he argued that limitations should not be placed on the taxpayer's rights. 

The disputant advised that the application was lodged specifically to prevent future 'grey areas' or disputes arising, and to prevent the company being denied natural justice.  

A right of reply to any publication that the disputant proposed to make was offered to the Commissioner. This offer was not accepted and the Commissioner opposed the application.  The broad grounds of her opposition were that the orders sought by the disputant were inconsistent with the scheme of the Act, and the Regulations.

Decision

The Authority dismissed the application.

Judge Sinclair concluded that the requirement in s 16(4) of the Act that a TRA proceeding, "shall not be open to the public" was mandatory.

Additionally, she found that the restrictions reg 36 of the Regulations placed on reporting on matters brought before the TRA meant that the Commissioner would not be able to respond to any material published by the disputant.  She also acknowledged it was likely s 81 of the Act would likely constrain the Commissioner's ability to respond.

In her Honour's view, the Legislature clearly intended that challenge proceedings before the TRA should be conducted in private and that reporting of decisions was restricted to maintain the confidentiality of the disputants and their tax affairs.

She noted that these restrictions do not apply in the High Court. Having elected to issue the claim in the TRA the disputant is bound by the privacy restrictions of that jurisdiction and therefore the application to have a journalist present was denied.

Judge Sinclair found that she did not have the power under reg 36 of the Regulations (or otherwise) to approve unrestricted publication as sought by the disputant. Additionally, the ability to make such an order would run contrary to the confidential nature of the jurisdiction. Accordingly, the application for an order approving restricted publication was also denied.