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Decision date: 15 December 2011
Case: FB Duvall Limited & Ors v Commissioner of Inland Revenue
Act(s): Goods and Services Act 1985, Income Tax Act 1976
Keywords: Judicial review, JG Russell
The Court ordered the Commissioner of Inland Revenue to reconsider his decision to not allow the taxpayers to amend their GST returns to exclude previously returned output tax and therefore obtain a GST refund.
Impact of decision
The Court indicated that the Commissioner was entitled to address both sides of the GST position (both inputs and outputs) when considering objections.
This is a JG Russell-related matter.
FB Duvall Limited ("FBD") and others made late objections to their GST treatment. These objections were based upon the outcome in the Miller & O'Neil income tax litigation. In the Miller litigation, the Courts found that no actual services were being supplied by any Russell entities involved in his template.
In response, FBD sought to amend its GST returns to exclude output tax but to continue to claim input taxes. This had the effect of creating refunds for the company. This was allowed by the Court of Appeal (FB Duval v CIR (2000) 19 NZTC 15,658). The Commissioner took the view this case was decided on procedural grounds and not on its merits.
FBD and other companies then filed more GST returns on a similar basis - seeking to exclude outputs but to continue to claim inputs. However, these were never accepted by the Commissioner and the judicial review was about this failure to accept (or reject) the amended returns. It was not about the correctness or otherwise of those amended returns.
The High Court allowed the judicial review regarding the GST issue and ordered the Commissioner to accept or reject the late returns (and if accepting them to make a decision on their merits).
The High Court considered the Commissioner had erred in not determining these objections, which had been unaddressed since the 1990s.
The distinction drawn between GST and income tax was correct but on the facts of the Russell template, not supported. The template litigation had determined that no services had been supplied under the template. The earlier FBD decision was confined to a procedural point.