DONALD HAMISH MCILRAITH V THE COMMISSIONER OF INLAND REVENUE CA CA371/2007

DONALD HAMISH MCILRAITH V THE COMMISSIONER OF INLAND REVENUE CA CA371/2007 28 September 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA371/2007 [2009] NZCA 442BETWEEN DONALD HAMISH MCILRAITH Applicant AND THE COMMISSIONER OF INLAND REVENUE Respondent Hearing: 24 September 2009 Court: William Young P, Robertson and Baragwanath JJ Counsel: Applicant in person H W Ebersohn and L L de Claire for Respondent Judgment: 28 September 2009 at 2.30 pmSUPPLEMENTARY JUDGMENT OF THE COURT The application for recall of the judgment is declined.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J) [1] In March 2009 we delivered judgment ([2009] NZCA 45) following a hearing on 18 February 2009 in an appeal from a reserved judgment of Asher J (HC HAM CIV 2003-419-208 M136/01 29 June 2007).[2] Our judgment dealt with both a challenge to assessments made by the Commissioner of Inland Revenue and an application for judicial review. The recall applied only to the latter. [3] In the letter which initiated the application, Mr McIlraith suggested that the Court had failed to consider the appellant's written submissions, and that there were issues which were still alive that had not been considered. [4] This position was challenged by the respondent. A transcript of the hearing was obtained and made available. [5] Early in this hearing it emerged that Mr McIlraith's real concern was still the issue of whether it was open to the Commissioner (and subsequently the High Court and then this Court) to find that a payment received by Mr McIlraith could be viewed in a variety of ways. [6] As was the case in the initial hearing, Mr McIlraith remained of the view that the characterisation of those payments was a matter of fundamental importance beyond the confines of the case. [7] It soon became clear that the Court had adjudicated on all matters that were properly before it and that there was no basis for the contention that the judgment should be recalled. [8] There is, however, one point which should be clarified. In [53] of the High Court judgment, Asher J said:I have already refused to accept Mr McIlraith's submission that the Commissioner was wrong in assessing the moneys he received from SCR and JIL as dividends. In case I am wrong in that conclusion, I go on to consider the alternative approach taken by the Commissioner, that the moneys received by Mr McIlraith were in the alternative remuneration, and that in any event on reconstruction following disallowance for tax avoidance, the Commissioner's assessments were correct.[9] We did not interfere with that assessment, holding that such a conclusion was properly open to the High Court.[10] The primary conclusion of Asher J was that the monies Mr McIlraith received from SCR and JIL were dividends. The observations the Judge made thereafter were fall-back positions in case it was subsequently determined that his initial assessment was wrong. We have made no such determination. [11] What that means for consequential activities between Mr McIlraith and the Commissioner was not and is not a matter for this Court. [12] The application for recall is declined.Solicitors: Crown Law Office, Wellington