No appeal from interlocutory rulings
Decision date: 18 January 2005
Case: TRA 33/00, TRA 002/2005
Act(s): Taxation Review Authority 1994
Keywords: Interlocutory ruling, appeal
Summary
There is no right of appeal from an interlocutory ruling of the TRA.
Facts
The tax payer had been subject to a number of reassessments in its 1989 tax year which were objected to by the tax payer. The CIR did not file a case stated on the matter, having effectively allowed the objection by the last re-assessment made.
Mr Russell, for the tax payer, sought an order from the TRA to allow his objection on the basis the Commissioner had failed to allow it. The Commissioner did not oppose this but pointed out the last assessment made had allowed all the items subject to the objection, making any order sought redundant. The TRA, in a ruling, concluded it did not need to make any orders as the objection had effectively been allowed: Case V15 (2002) 20 NZTC 10,174.
The tax payer sought to appeal this Ruling.
Decision
The Authority opened the reasons for its decision saying:
"In Case V15 I declined to grant an order allowing the relevant objection because there were no remaining issues between the parties as all the issues raised by the tax payer had been conceded by the Commissioner ... it seems to me to be common sense that an objector cannot appeal a case where it has totally succeeded to such an extent that it is not even necessary to make orders in favour of the objector." [par 31]
The Authority was guided by the M & J Wetherill Co. Ltd v TRA (2004) 21 NZTC 18,924 decision of the Court of Appeal to conclude there was no right of appeal to interlocutory determinations of the Authority as these did not constitute a determination on any objection within sec 26 of the Taxation Review Authorities Act 1994. The Authority relied upon the statutory requirements of the TRA Act and did not place any weight on the fact the ruling effectively ended the litigation (although this effect was acknowledged).
As the Commissioner had conceded all the issues, there was no money at stake (therefore no right of appeal on that basis) and the Authority considered there were no questions of law capable of serious and bona fide argument.
There were no grounds to justify filing and continuing the purported appeal and it was struck out.
Date published: 15 Feb 2008
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