Judicial review fails
Decision date: 21 October 2005
Case: Dowell & Ors as trustee for Estate Frank King, Brenda King & Ann King v The Commissioner of Inland Revenue
Act(s): Judicature Amendment Act
Keywords: Incorrect statute, Vela Fishing
Summary
Citing an incorrect statute did not invalidate an otherwise valid assessment either at common law or under the Act.
Facts
This was a judicial review. The Kings were assessed for income tax on income from their controlled foreign company in the tax years 1989 and 1990. The assessments were made relying upon the Income Tax Act 1994 whereas the correct Act should have been the Income Tax Act 1976.
The taxpayers sought, by judicial review, a declaration the assessments were nullities and were void.
Decision
Justice Hansen dismissed the judicial review.
He considered that section YB 5(4) ITA 1994 was a complete answer to the judicial review and relied upon the Court of Appeal's approach in Vela Fishing (2001) 20 NZTC 17,242 to the equivalent section, sec 227(4) TAA 1994 support this conclusion. Justice Hansen said at [paragraph 41]:
"Section YB 5(4) makes it mandatory that any reference to the provisions of the 1994 Act are to be construed as including "in relation to the times, circumstances, or purposes in relation to which the corresponding provision in the enactments" repealed by section YB 5(3) was done under the corresponding provision...."
He rejected the Plaintiffs' suggestion there was now a division in the Acts between the levying and administration of income tax saying there was nothing to support this in the Act [paragraph 39].
Justice Hansen also accepted the Commissioner's argument based upon case authority that a misidentification of the source of statutory powers did not mean those did not exist. He accepted that failure to comply with the Act was not necessarily fatal to the action taken, but that this was to be considered on a sliding scale of seriousness. (paragraph [42] to [60])
Finally Justice Hansen also accepted the Commissioner's submission that s 114 TAA 1994 operated to save the assessments regarding of procedural irregularities . (paragraph [61] to [66]).
Date published: 10 Oct 2006
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