Technical tax area: Legal decisions - case notes
List of cases
In this section you will find brief notes of decisions made by the Taxation Review Authority, the High Court, Court of Appeal, Privy Council and the Supreme Court. These case notes do not set out Inland Revenue policy, nor do they represent our attitude to the decision.
Cases this year
| Title | Decision date | Case | Appeal status |
Commissioner's decision to decline instalment arrangement upheld |
3 October 2011 |
Priscilla Anne Kea v Commissioner of Inland Revenue |
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5 October 2011 |
Junior Farms Ltd v Commissioner of Inland Revenue |
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7 October 2011 |
BHL v Commissioner of Inland Revenue |
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21 October 2011 |
Tepe Holdings Ltd v Commissioner of Inland Revenue |
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25 October 2011 |
Heather Anne Jacobs-Maxwell v Commissioner of Inland Revenue |
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Taxpayer's attempt to consolidate two separate proceedings fails |
16 September 2011 |
Yandina Investments Limited v Commissioner of Inland Revenue |
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Taxpayer's application for leave to appeal to the Supreme Court declined |
26 August 2011 |
J G Russell v TRA & Commissioner of Inland Revenue |
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29 September 2011 |
Hanh Duc Nguyen v Commissioner of Inland Revenue |
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Commissioner unsuccessful against appeal of his strike-out application |
28 September 2011 |
John David Hardie v Commissioner of Inland Revenue |
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26 July 2011 |
Irene Yeh Leng Goh v Commissioner of Inland Revenue |
A taxpayer's claim of tax credit against the Commissioner resulting from tax paid on compensation by the Accident Compensation Corporation ("ACC") was struck out for being untenable and for abuse of process. Not Appealed |
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22 August 2011 |
Lewis Gaire Herdman Thompson v Commissioner of Inland Revenue |
The Supreme Court has granted the appellant leave to appeal. No right of Appeal exists |
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15 August 2011 |
Damien Grant & Steven Khov v Commissioner of Inland Revenue |
A casting vote can only be used to break a deadlock between a number of creditors for or against a Deed of Company Arrangement ("DOCA"). It cannot be used to overcome a shortfall in support from the creditors representing 75% of the company's total debt. Furthermore any DOCA which does not take into account the Commissioner's preferential debt in liquidation may be terminated by the Courts. Application for Leave to Appeal filed |
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5 August 2011 |
Chesterfields et al v Commissioner of Inland Revenue |
The Commissioner was only successful in part in attempting to strike out the taxpayer's claim of misfeasance in public office by the Commissioner. Appealed |
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5 August 2011 |
VI Limited and WI Limited v Commissioner of Inland Revenue |
Taxpayer WI Limited ("WIL") is a Hong Kong resident company. It incorporated a company VI Limited ("VIL") in New Zealand. WIL made substantial loans to VIL which were converted to redeemable preference shares in VIL. The Commissioner asserted that WIL was a New Zealand tax resident and accordingly should have resident withholding tax (RWT) as opposed to payment of an approved issuer levy (AIL). The Commissioner also asserted that the structure had a purpose or effect of avoiding non-resident withholding tax (NRWT) as tax avoidance. The Taxation Review Authority (TRA) found in favour of the Commissioner on issues 1 to 4 but concluded that a shortfall penalty did not apply. Case under Appeal |
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12 August 2011 |
Tauber & Ors v Commissioner of Inland Revenue |
Judicial review proceedings were filed by the applicants challenging the lawfulness and reasonableness of search and seizure operations undertaken by the Commissioner, pursuant to section 16 of the Tax Administration Act 1994 ("TAA"), on a number of business premises and private residences. Case under Appeal |
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24 August 2011 |
Penny and Hooper v Commissioner of Inland Revenue |
Two surgeons who used companies and trusts to divert what was previously personal income were held by the Supreme Court to have avoided tax under section BG 1 of the Income Tax Act 1994 ("ITA"). The structures they used were of themselves legitimate, but they were used in conjunction with artificially low salaries, paid to the surgeons personally, which amounted to tax avoidance. No right of appeal exists |
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A buy-back of part of a property is not "acquisition" under section CD 1(2)(a) |
22 July 2011 |
Junior Farms Ltd v Commissioner of Inland Revenue |
The Court held that a sale arrangement of the property which included a buy-back of part of it for resale was not an "acquisition" for purposes of section CD 1(2)(a) of the Income Tax Act 1994. Not Appealed |
Court declines leave to amend claim after judgment delivered |
11 July 2011 |
Dunphy & Ors v Commissioner of Inland Revenue |
An applicant unsuccessfully applied for leave to amend his claim after the judgment granting judicial review had been delivered and after the applicant and the Commissioner had settled all matters in relation to the proceeding. Not Appealed |
8 July 2011 |
NTH Douglas and Others v Commissioner of Inland Revenue |
Justice Courtney considered the purpose of the “slip rule” was to correct errors but that it was not to be lightly invoked as it would weaken the finality of a judgment and was not used in this instance. No right of Appeal exists |
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17 May 2011 |
Simpson and Downes as receivers of Capital + Merchants Investments Ltd (in receivership) v Commissioner of Inland Revenue |
Messrs Simpson and Downes, as receivers of Capital + Merchants Investments Ltd (in receivership), were personally liable to account to the Commissioner for the output tax on mortgagee sales. Case under Appeal |
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16 June 2011 |
TRA 42/03, 105/04, 23/05, 54/05 and 38/07 [2011] NZTRA 6 |
The disputant was not successful in the recall application. Due to an appeal having being lodged by the disputant, the Taxation Review Authority "TRA" is functus officio. Further, the decision relied upon by the disputant to justify the recall application was irrelevant. Case under Appeal |
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11 April 2011 |
TRA 37/09 [2011] NZTRA 04 |
There was no acceptance of the disputant's late Notice of Proposed Adjustment ("NOPA") because a valid timely NOPA is a prerequisite to deemed acceptance and the Commissioner had not agreed to accept the disputant's late NOPA.Case under Appeal- Hearing 26 August 2011 |
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Commissioner granted leave to appeal trustee company liquidation case |
23 June 2011 |
Commissioner of Inland Revenue v Newmarket Trustees Ltd (application for leave to appeal) |
The Commissioner successfully applied to the Court of Appeal for an extension of time to appeal a decision by the High Court not to liquidate Newmarket Trustees Limited, a trustee company. Case under Appeal |
Court of Appeal dismisses taxpayer's appeal in relation to an entitlement to de-register from GST |
5 April 2011 |
Lewis Gaire Herdman Thompson v Commissioner of Inland Revenue |
The Court of Appeal upheld the High Court's decision that the Commissioner was required to make output tax credit adjustments to the Taxpayer's GST returns in the relevant GST return periods. Case under Appeal – Leave granted by Supreme Court |
5 April 2011 |
TRA 19/10 [2011] NZTRA 3 |
A courier did not buy a going concern as the vendor could not supply a going concern. This case turned on the finding that the vendor did not have a contract with the company (MF) capable of being assigned to the disputant. Without that contract there could be no going concern. No Appeal right exists |
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Exceptional circumstances examined by the Taxation Review Authority |
28 April 2011 |
TRA 27/08; TRA 28/08; TRA 53/08 [2011] NZTRA 05 |
The Taxation Review Authority ("TRA") considered there were arguable exceptional circumstances that existed in respect of late served Points of Objection Notices but sought further evidence prior to deciding the application for an extension of time. Case under Appeal |
Bias appeal dismissed on the basis of cause of action estoppel |
19 April 2011 |
John George Russell v Commissioner of Inland Revenue |
An appeal from the High Court for judicial review of the Taxation Review Authority has been dismissed on the basis of cause of action estoppel and any possible bias was cured by the appeal of the substantive case to the High Court. Case under Appeal to the Supreme Court |
Commissioner's application of the serious hardship provisions upheld by the Court of Appeal |
19 April 2011 |
Jillian Claire Larmer v Commissioner of Inland Revenue |
The appeal failed as the Court of Appeal found that the Commissioner correctly applied section 177 of the Tax Administration Act 1994 ("TAA") and contrary to the argument by the taxpayer, had considered the most recent information available to him in applying section 177. Not Appealed |
7 April 2011 |
Westpac, BNZ & ANZ v Commissioner of Inland Revenue (unclaimed money) |
The Supreme Court has followed the Privy Council decision in Thomas Cook (New Zealand) Ltd and held that unclaimed foreign exchange drafts and bank cheques are to pass to the Commissioner as custodian six years after legal demand may be made for payment to the payee. It is now clear that bank cheques and foreign currency drafts which remain unclaimed will be treated as unclaimed money under the Unclaimed Money Act 1971. No Appeal right exists |
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24 March 2011 |
G J Lupton v Commissioner of Inland Revenue |
The plaintiff was unable to prove that various amounts paid into bank accounts which he controlled were not his income. The Commissioner of Inland Revenue established that the plaintiff was liable for evasion shortfall penalties. Not appealed |
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7 March 2011 |
Clarence John Faloon v Commissioner of Inland Revenue |
A number of interlocutory applications which attempted to re-open finalised decisions were dismissed by the Court. The decision is further confirmation of the approach the Court will take to persistent re-litigation of previously decided and/or unmeritorious matters. Not appealed |
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28 July 2011 |
Commissioner of Inland Revenue v Giovanni Holdings Ltd and Ors |
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High Court finds in favour of retrospective departure orders |
16 March 2011 |
B v X & Commissioner of Inland Revenue |
The non-custodial parent had appealed the findings of the Family Court awarding a departure order from formula assessment in favour of the custodial parent. The non-custodial parent appealed on a number of grounds. The reason the Commissioner intervened in this matter was primarily because of one ground whereby the non-custodial parent argued that there is no jurisdiction for the Commissioner to make retrospective departure orders. Case under Appeal |
4 February 2011 |
Beacham Holdings Ltd v Commissioner of Inland Revenue |
The Court upheld the Commissioner's complaint that the plaintiff, in its discovery affidavit, had failed to provide sufficient particulars of the steps taken in relation to obtaining potentially relevant documents. As well, the Court ordered the plaintiff to list individually the documents for which it claimed privilege. Not appealed. |
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25 January 2011 |
TRA 37/08 |
The partnership invested in shares overseas and eventually lost all that was invested. The partnership claimed the loss and the partners to the partnership each claimed the deduction. The Commissioner denied the claim. The Taxation Review Authority ("TRA") found the expenditure was on revenue account and deductible. Not appealed. |
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1 February 2011 |
XX v CIR |
It was held the assessments made were not prohibited due to the effect of section 114 of the Tax Administration Act 1994 ("TAA"). Furthermore, the assessments were valid due to the presumption of validity and even if there was a technical error, the Taxation Review Authority ("TRA") had jurisdiction to consider the challenge to the assessments. |
Note: We are currently converting historical case notes into HTML format. If you are looking for case notes that are not published here you may find them by referring to the Tax Information Bulletin.
Date published: 17 Jul 2006
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