TAMIHERE v THE COMMISSIONER OF INLAND REVENUE [2014] NZHC 2182

TAMIHERE v THE COMMISSIONER OF INLAND REVENUE [2014] NZHC 2182 [4 September 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-1056[2014] NZHC 2182BETWEEN ROBIN NOEMA HUGHES TAMIHEREApplicantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 4 September 2014Appearances: No appearance for ApplicantMr Angelson for CommissionerJudgment: 4 September 2014ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE[1] This matter was last before the Court on 7 August 2014. It is an application that Mr Tamihere has brought for annulment of a bankruptcy adjudication. The adjudication took place 2 August 2013.[2] Following his last appearance in this Court on 7 August 2014, Mr Tamihere was taken into custody on unrelated matters. I am advised and accept that he will be appearing in the District Court for sentence in regard to the matters in relation to which he was taken into custody on 14 October 2014.[3] The Commissioner who is a substantial creditor in Mr Tamihere's estateappeared to oppose the application to annul. He has also applied today orally for an order striking out the application. The grounds are twofold. First that the bankrupt has not appeared at the hearing which the Commissioner says entitles her to an order under r 7.40. Secondly other miscellaneous grounds are put forward which include the prolixity of the documents that have been filed by the bankrupt, lack of diligent prosecution of the application and other matters. It would appear that there is available to the Commissioner the ground that the application has no prospects of success and is therefore an abuse of the processes and should be struck out.[4] So far as the latter ground is concerned, Mr Jones for the Official Assigneehas filed a helpful memorandum. That identifies that Mr Tamihere's current liabilityin regard to the debt to the Commission of Inland Revenue is approximately $225,000 but there are other creditors as well which bring the total figure up to$458,000. It is only in regard to the Commissioner's debt that Mr Tamihere hastaken any steps. He says that he has filed amended returns and that he is entitled to have the Commissioner re-assess his tax position based upon those returns.[5] However the Commissioner takes the point that Mr Tamihere is not competent to file amended returns because he is bankrupt. Only the Official Assignee who has control of his affairs could take such a step on his behalf and he does not apparently wish to. Further, Mr Angelson told me that pursuant to s 109 of the Tax Administration Act the assessments which underlie the debts (and which the Official Assignee accepts) are now deemed to be conclusive. Mr Tamihere whenseeking to challenge the underlying assessments failed to comply with the statutory objections / review framework. The assessments cannot now be challenged in any event.[6] It further appears that even if Mr Tamihere's amended assessments had been accepted, they would only affect part of his taxation liability. Of the approximate $225,000 there is $139,000 (again approximately) which would not be affected by the proposed amended returns.[7] To summarise, there remain very substantial debts which Mr Tamihere owes and for which no provision has been made by him. Even if he were correct that he had satisfied part of the debt owing to the CIR there would still be the insurmountable hurdle in front of him that he has not taken any steps to pay off the other creditors nor is there any evidence that other creditors would be prepared to accept satisfaction of their debts by less than a complete payment of them.[8] For those reasons I accept that the application which Mr Tamihere has brought for an annulment is doomed to failure and the matter should not take up further time of the Court and the parties who have been served with the application. On that ground alone I consider that the application should be struck out.[9] I deal next with the alternative ground which is Mr Tamihere's non- appearance today. I would have been reluctant to strike out the matter on that ground. Obviously being taken into custody as Mr Tamihere has been would cause real problems for him to arrange an appearance today. He does not have a lawyer. He may not have appreciated the need to be here and for the resulting need to obtain an order for production at the Court. However, because of the alternative grounds that are available to strike out the application there is no need to make a determination on the ground based on r 7.40._____________J.P. DoogueAssociate Judge