HARDIE V COMMISSIONER OF INLAND REVENUE HC AK CIV 2007-404-003354

HARDIE V COMMISSIONER OF INLAND REVENUE HC AK CIV 2007-404-003354 28 June 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-003354BETWEEN JOHN DAVID HARDIE Plaintiff AND THE COMMISSIONER OF INLAND REVENUE Defendant Hearing: 28 June 2007 Appearances: Plaintiff in person Rachel Roff for Defendant Judgment: 28 June 2007JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Crown Law Office (Wellington) for Defendant (copy to: John Hardie)[1] Mr John Hardie, a patent attorney in Auckland, issued a proceeding against the Commissioner of Inland Revenue in this court on 11 June 2007. He sought the remedy of judicial review of decisions made by the Commissioner in exercising his statutory powers. [2] Mr Hardie filed an application ex parte at the same time for confidentiality orders. On 12 June 2007 Clifford J issued a minute directing that Mr Hardie's application should be heard on notice. He noted, after perusing Mr Hardie's affidavit, that it failed to provide particular grounds to justify an application ex parte for confidentiality. [3] On 25 June the Commissioner filed a notice of opposition to Mr Hardie's application. The Commissioner's opposition is based upon the well settled principle of open justice requiring that Court proceedings should be conducted in public unless exceptional circumstances require otherwise. He relies on a settled line of authority: Clark v Attorney-General (2004) 17 PRNZ 161 (HC), upheld in Clark v Attorney-General (2004) 17 PRNZ 554 (CA); Muir v Commissioner of Inland Revenue (2004) 17 PRNZ 365 (CA); Gibson v Attorney-General (1999) 13 PRNZ 12 (HC); Surrey v Speedy (1999) 13 PRNZ 397; and R & M v Commissioner of Inland Revenue (2003) 17 PRNZ 28 (HC). [4] The Commissioner's notice helpfully identifies particulars in opposition. Among other things, the Commissioner relied on the factors that (1) Mr Hardie's identification publicly would not frustrate the object of the substantive proceeding; (2) while his public identification might impact adversely on the business of a company with which Mr Hardie was associated, that was an insufficient consideration; (3) it is not unreasonable to regard a person who initiates proceedings as having accepted the normal incidence of their public nature; and (4) even though the substantive proceedings are arguably a case about Mr Hardie's financial and tax affairs, tax cases are nevertheless subject to the ordinary principles of open justice. [5] The authorities confirm the High Court's discretion to suppress publication of proceedings despite the absence of a statutory power. They recognise the Court's discretionary jurisdiction to depart from the principle of open justice, but only whereexceptional circumstances are made out. The discretion is broad and must take account of all relevant circumstances. Within that rubric the background of this case is critical. [6] The Commissioner has initiated proceedings against Mr Hardie in the District Court at Waitakere. Mr Hardie has provided me with a copy of an affidavit sworn by Ms Kathleen Gavin for the Commissioner in those proceedings. The Commissioner's statement of claim sought judgment for $10.341 million for outstanding assessments, penalties and interest. [7] Copies of the claim were served personally on Mr Hardie on 14 August 2006. He failed to file a statement of defence. Judgment was entered by default for the Commissioner on 18 September 2006. Mr Hardie now advises that his application to set aside judgment was successful. The Commissioner's substantive claim was heard on a defended basis in May 2007. Judgment is awaited. [8] What is not in dispute is that Mr Hardie failed to file income tax returns for the years ended 31 March 1992 to 31 March 2003. Nor is it in dispute that he failed to file GST returns for the financial years ending 31 March 2003 and 2004. Consequently the Commissioner issued default assessments in exercise of his statutory powers: s 106 Tax Administration Act 1994. That power is as follows:106 Assessment where default made in furnishing return(1) If any person makes default in furnishing any return, or if the Commissioner is not satisfied with the return made by any person, or if the Commissioner has reason to suppose that any person, although the person has not made a return, is a taxpayer, the Commissioner may make an assessment of the amount on which in the Commissioner's judgment tax ought to be imposed and of the amount of that tax, and that person shall be liable to pay the tax so assessed, save so far as the person establishes on objection or in proceedings challenging the assessment that the assessment is excessive or that the person is not chargeable with tax. (1A) Despite Part 3A, if the Commissioner considers an income statement incorrectly summarises the particulars required by section 80E(2), the Commissioner may make an assessment of the amount on which the Commissioner considers tax ought to be imposed and of the amount of that tax.(1B) Tax assessed under subsection (1A) in respect of a person is payable by the person unless the person disputes the assessment and complies with the requirements of section 89D. (1C) Subsection (1A) applies if a person to whom an income statement is issued does not inform the Commissioner of the reasons why the person considers the income statement is incorrect and provides the information the person considers necessary to correct the income statement by the date prescribed in section 80F. (1D) If a person who is required to provide a GST tax return for a GST return period does not provide a GST tax return for the return period, or provides a GST tax return with which the Commissioner is not satisfied, the Commissioner may make an assessment of the GST payable by the person for the return period. (1E) A person who is assessed under subsection (1D) is liable to pay the GST assessed unless the person establishes in proceedings challenging the assessment that the assessment is excessive, or that the person is not chargeable with GST.[9] Mr Hardie has failed to exercise his statutory right to invoke the disputes resolution procedure provided by the statute: s 89D(2); Allen v Commissioner of Inland Revenue [2006] 3 NZLR 1 (CA). Again, and of perhaps decisive importance, Mr Hardie has failed to exercise his statutory right to challenge the Commissioner's assessments by commencing proceedings before the Taxation Review Authority: s 138B(3). Nor is there any evidence that he has sought leave to commence proceedings in that forum out of time: s 138D. [10] Instead, against this background, Mr Hardie has issued a proceeding in this Court by way of judicial review. He volunteers that he took this step without seeking independent legal advice but in reliance on something said by counsel for the Commissioner. Ms Roff, who appears for the Commissioner today, disclaims knowledge of or responsibility for that advice. [11] Mr Hardie's application to this Court faces obvious if not insurmountable hurdles. His statement of claim alleges unreasonableness. At its heart is an allegation that the Commissioner must act reasonably when making an assessment under s 106. He alleges unreasonableness in the form of numerous omissions. For example:4. The defendant when challenged in the said proceeding has not been able to give any discernible logic as to how the said assessments could besaid to be a reasonable estimation of the tax properly payable (if any) by the plaintiff and the said assessments are thus illegal and void ab initio. 6. The defendant has at all times had the power to require the plaintiff to supply details of plaintiff's foreign currency transactions but omitted to exercise such power. 7. At no time did the defendant even request the plaintiff to assist by providing any information required by the defendant to assist the defendant's assessments to be reasonable. 8. There is no mechanism provided under the tax legislation enabling a taxpayer to submit an approximate return of tax which would be required to be taken into account by the defendant when making an assessment. 10. Under said s 106 when the defendant makes a goods and services tax assessment it is required to be a reasonable assessment but the defendant has acted unreasonably and therefore illegally in respect of the above GST assessments. The defendant when challenged in the said proceeding has not been able to give any discernible logic as to how the said assessments could be said to be a reasonable estimation of the tax properly payable (if any) by the plaintiff and the said assessments are thus illegal and void ab initio. 13. That in respect of all the above mentioned assessments the defendant has intentionally used unreasonable assessments as a weapon to force the filing of returns but that is illegal and is not permitted by the legislation which provides the defendant with other means, such as criminal procedures, to force the filing of returns.[12] With respect to Mr Hardie, these allegations are legally incomprehensible and unsustainable. Assuming in Mr Hardie's favour for these purposes only that s 106 imposes a duty to act reasonably, his pleadings to not particularise unreasonableness in the public law sense of irrationality. Without having time to research the point, the Commissioner appears to me to be subject to a statutory duty to make an assessment where a taxpayer defaults in furnishing a return, or at least is vested with a power for that purpose. The element of discretion relates to exercising his judgment on the amount of the assessment. The taxpayer's liability is absolute unless he has successfully challenged the amount through the proper statutory route. [13] The remedy of judicial review against the Commissioner is strictly circumscribed. It is available only in exceptional circumstances, typically wherethere has been an abuse of power in making a decision which has not been challenged according to the correct statutory procedures: Golden Bay Cement Co Ltd v Commissioner of Inland Revenue [1996] 2 NZLR 665 (CA) at 672-673. In that case the Court confirmed that challenges to the validity of the Commissioner's assessment could and should have been pursued by the statutory objection procedures. [14] On its face Mr Hardie's claim does not raise an arguable cause or causes of action and thus should be struck out. Ms Roff confirms that the Commissioner intends to follow that course. [15] Nevertheless, Mr Hardie says that exceptional circumstances justifying confidentiality exist here. He refers to work done for his practice as a patent attorney by a company in which his wife is the sole shareholder in her capacity as trustee of a family trust. That company contracts with Mr Hardie to perform work. He has nominated about four employees – a legal executive and others who do accounting and secretarial work – who contract both with him and the company. He says that publication of this proceeding will inevitably result in loss of their employment. [16] Mr Hardie's submission could only be predicated on the basis that clients of his practice as a patent attorney will learn of this proceeding, which I note he has elected to initiate rather than pursue his statutory rights, presumably through publication of a report of a decision. I agree with Ms Roff that this factor does not approach the threshold of an exceptional circumstance justifying a suppression order. It does not justify a departure from the overriding principle of open justice in all areas including litigation involving the Commissioner over a taxpayer's affairs. [17] If anything, in my judgment, the principle works the other way. Given the circumstances of the Commissioner's claim (that is, its nature, extent and magnitude), there is an argument that Mr Hardie is under an immediate duty to disclose its existence to his clients. On his own admission in argument before me this morning he says they are likely to suffer financial or other hardship if the Commissioner obtains judgment in the District Court for a substantial amount and takes steps for enforcement. That result must be a distinct prospect and it is thus inthe public interest that those who deal professionally with Mr Hardie should know the circumstances of this proceeding. [18] Given the strength of the Commissioner's case on its assessments for outstanding tax payable by Mr Hardie, the difficulties which I have identified in this proceeding for judicial review, and the existence of the rights of Mr Hardie's clients to learn about this litigation, I am not satisfied that confidentiality orders should be made. Accordingly, I decline Mr Hardie's application. [19] The Commissioner is entitled to costs and disbursements fixed in accordance with category 2B. ______________________________________ Rhys Harrison J