WOODGATE LIMITED v THE COMMISSIONER OF INLAND REVENUE [2023] NZHC 1132

WOODGATE LIMITED v THE COMMISSIONER OF INLAND REVENUE [2023] NZHC 1132 [12 May2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-298[2023] NZHC 1132UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial reviewBETWEEN WOODGATE LIMITEDApplicantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 14 November 2022Appearances: D M Fraundorfer, R A Rosser and S T Hartley for ApplicantC D Walmsley and K Naik-Leong for RespondentJudgment: 12 May 2023JUDGMENT OF McQUEEN JTable of ContentsPara NosIntroduction [1]The legal framework [5]The GST system [6]The disputes resolution procedure under the TAA [15]The TAA as a code for the resolution of tax disputes [40]The Commissioner's powers to obtain information or documents [47]Timeframe for bringing criminal charges for tax offences [51]Factual Background [52]Mr Fugle's background and property developments [53]The Property [56]The GST Return [62]The investigation, culminating in allegations of delay [70]The pleaded Time Bar Decision [98]The s 17B Notice (Spark information request) [105]The underlying tax dispute [110]Woodgate's application [111]The Commissioner's response [120]The issues [123]Analysis [128]Preliminary comment [128]Is the Time Bar Decision amenable to review? [131]Is the Delay Decision amenable to review? [149]Is Woodgate's claim of delay made out in respect of the period after25 February 2022? [188]If the conclusions on amenability in relation to the Delay Decisionand general delay are incorrect, is Woodgate's claim of delaymade out under the grounds of illegality and procedural unfairness? [193]The s 17B Notice—was its issue or the refusal to disclose theinformation obtained unlawful? [244]Relief [274]Result [275]Costs [276]Introduction[1] Woodgate Limited (Woodgate), is a property development company. Mr LeslieFugle (Mr Fugle) is the sole director and shareholder of Woodgate. Woodgate bringsthis proceeding to challenge decisions made by the Commissioner of Inland Revenue(the Commissioner) in respect of its Goods and Services Tax (GST) return for theperiod ending on 31 January 2018 (the GST Return), the audit of which remainsongoing.[2] In brief, Woodgate says the audit has taken too long. It says there is no statutorymechanism through which it can compel the Commissioner to progress promptlythrough the civil dispute resolution processes contained in the Tax Administration Act1994 (the TAA). Nor can it take any steps to progress criminal proceedings which havebeen threatened by the Commissioner, as the pursuit of those proceedings is a matterfor the Commissioner. As a result, Woodgate says there is effectively no time limit forthe resolution of the tax dispute underlying the GST Return. Woodgate seeks to escapethis "Catch 22" by bringing an application for judicial review. Woodgate challengesdecisions made by the Commissioner on the grounds of procedural unfairness andbreach of natural justice, and seeks declaratory relief.[3] The Commissioner opposes Woodgate's application. The Commissioner saysthat the application for judicial review is premature, as the audit of the GST Returnremains ongoing. In the alternative, the Commissioner says that two of the decisionschallenged by Woodgate are not amenable to review and that he has acted lawfully inall respects. He says that the application should be dismissed, and declaratory reliefdeclined.[4] For the reasons below, I conclude that Woodgate's application for judicialreview should be dismissed.The legal framework[5] It is helpful at the outset to traverse in some detail the regime created by theGoods and Services Tax Act 1985 (the GST Act) and the provisions contained in theTAA for the resolution of tax disputes, including the Commissioner's powers to obtaininformation or documents.The GST system[6] The GST Act provides for GST as a 15 per cent tax on the supply of most goodsand services in New Zealand, where they are supplied in the course of a taxableactivity.1 A person must register with the Inland Revenue Department if they maketaxable supplies in excess of $60,000 in a 12-month period or their prices includeGST.2[7] When goods or services are supplied by a person who is registered for GSTpurposes (the taxpayer), GST is charged to their customers, and the taxpayer collectsthat GST (this is called input tax). When that taxpayer purchases goods or services,they also pay GST (this is called output tax). If input tax exceeds output tax, a taxpayerpays the excess to the Commissioner. If output tax exceeds input tax, the taxpayerreceives a refund from the Commissioner. This recognises that GST is a consumptiontax, and so taxpayers who consume more than they supply are required to pay thedifference.[8] Some goods and services do not have GST added to them. This includes supplyby a person who is not registered for GST or supplies which are specifically exemptunder provisions of the GST Act. Additionally, some goods and services are 'zero-rated', meaning that GST is charged at the rate of zero per cent, but a person can claimGST on their expenses related to those zero-rated supplies. For example, goods andservices which are exported are generally zero-rated.[9] Persons who are registered for GST purposes are required to file regularreturns, but can elect a monthly, two-monthly, or six-monthly filing period, a periodwhich is referred to as a 'taxable period' or 'filing frequency'.3 GST returns are1 Goods and Services Tax Act 1985, s 8(1). The term 'supply' is defined in s 5 of the GST Act. Theterm 'taxable activity' is defined in s 6 of the GST Act.2 Sections 51 and 51B.3 Goods and Services Tax Act 1985, s 15(1).required to be filed by the taxpayer the 28th of the month following the end of thetaxable period (the return period).4[10] The GST Act proposes, in the first instance, a 'self-assessment' regime. An'assessment' for tax purposes includes, relevantly:5(a) an assessment of tax made under a tax law by a taxpayer or by theCommissioner;(b) an assessment of a refund due under the GST Act; and(c) an amendment by the Commissioner of an assessment.[11] Section 46 of the GST Act addresses the circumstances in which theCommissioner may withhold payment of a GST refund following the provision of areturn by a taxpayer (the taxpayer's self-assessment of GST for a taxable period.).Section 46 states:Commissioner's right to withhold payments(1) Subject to this section, if the Commissioner is required to refund anamount to a registered person under section 19C(8) or section 20(5),the Commissioner shall refund the amount—(a) except when paragraph (b) applies, not later than 15 workingdays following the day on which the registered person's returnwas received by the Commissioner; or(b) the day after the working day on which the Commissioner—(i) determines the amount is refundable, after firsthaving—(A) investigated the circumstances of the returnin accordance with subsection (2); or(B) reviewed the information requested inaccordance with subsection (2); and(ii) is satisfied that the registered person has compliedwith the person's tax obligations.4 Section 16(2).5 Tax Administration Act 1994, s 3(1).(1B) For the purposes of subsections (1)(a), (4)(a), and (5), for a non-resident person who is registered under section 54B, the reference toa 15-day period is treated as a reference to a 90-day period followingthe day on which the registered person's return was received by theCommissioner.(2) If the Commissioner is not satisfied with a return made by a registeredperson, the Commissioner—(a) may investigate the circumstances of the return:(b) may request the registered person to provide furtherinformation concerning the return.(3) If a registered person fails to provide a return for any taxable periodas required by this Act, the Commissioner may withhold payment—(a) of any tax otherwise refundable under this Act or the TaxAdministration Act 1994; or(b) of any interest payable under Part 7 of the Tax AdministrationAct 1994—until the registered person complies with the requirement.(4) The Commissioner must give a request for information concerning areturn under subsection (2)—(a) within a period of 15 working days following the day onwhich the return is received by the Commissioner (in the caseof an initial request for information); and(b) within a period of 15 working days following the date ofreceipt of any information previously requested by theCommissioner (for subsequent requests for information).(5) The Commissioner must notify the registered person—(a) of the Commissioner's intention to investigate thecircumstances of the return under subsection (2); and(b) of the Commissioner's intention to withhold payment undersubsection (3)—within 15 working days following the day on which the return isreceived by the Commissioner.(6) If, but for this subsection, a registered person would be entitled to anamount as a refund under section 19C(8) or 20(5) or 45 or 78B(5)(c)or under the Tax Administration Act 1994, or as a payment of interestunder Part 7 of the Tax Administration Act 1994, the Commissionermay apply the amount, in accordance with a request under section173T of the Tax Administration Act 1994 or in the absence of a requestin such order or manner as the Commissioner may determine, inpayment of—(a) tax that is payable by the person:(b) an amount that is payable by the person under another InlandRevenue Act.(7) If, but for this subsection, a person who is a specified agent of anincapacitated person, as those terms are defined in section 58(1),would be allowed an amount as a deduction under section 20(3) byvirtue of section 58(1C), the Commissioner may apply the amount inpayment of—(a) tax that is payable by the incapacitated person:(b) an amount that is payable by the incapacitated person underanother Inland Revenue Act.[12] Section 46 seeks to balance the policy considerations of generally promotingthe prompt payment of refunds while also avoiding abuse of the tax system, bypermitting the Commissioner to withhold payment in cases where he considersinvestigation is required.6 Pursuant to s 46(2), if the Commissioner is not satisfied witha return made by a taxpayer, he may investigate the circumstances of the return, andmay also request the provision of further information concerning the return.7 TheCommissioner may withhold a refund claimed in a GST return in the interim, but mustnotify the claimant of the intention to investigate the circumstances of the return within15 working days following the day on which the return is received by theCommissioner.8 Section 46 does not contain any reference to the time in which adetermination must be made following investigation. Rather, any refund is required tobe paid on the day after the working day on which the Commissioner determines theamount to be refundable and is satisfied that the taxpayer has complied with their taxobligations.9[13] Section 108A of the TAA sets out the timeframe in which the Commissionermay amend a GST assessment to increase the amount assessed:6 Contract Pacific Ltd v Commissioner of Inland Revenue [2010] NZSC 136, [2011] 1 NZLR 302at [22] and [23].7 In Contract Pacific, above 6, at [26], the Supreme Court observed that while s 46(2) reads as anempowering provision authorising investigations and requests for information, in fact thosepowers are found in the Tax Administration Act 1994, in particular in ss 16–19. Thus s 46(2)"merely describes the processes which, if embarked on by the Commissioner in a timely way displace what would otherwise be the default obligation under s 46(1)(a) to pay a claimed refund".8 Goods and Services Tax Act 1985, ss 46(1), and 46(5).9 Section 46(1)(b); see also Contract Pacific Ltd v Commissioner of Inland Revenue, above n 6, at[30].108A Time bar for amending GST assessment(1) Subject to this section and section 108B, if a taxpayer provides a GSTtax return for a GST return period and an assessment has been made,the Commissioner may not amend the assessment to increase theamount assessed if 4 years have passed from the end of the GST returnperiod in which the tax return was provided.(2) [Repealed](3) The Commissioner may, at any time, amend an assessment to increasethe amount of the assessment if the Commissioner considers that theperson assessed has knowingly or fraudulently failed to disclose to theCommissioner all of the material facts that are necessary fordetermining the amount of GST payable for a GST return period.(3B) A period equal to the number of days in the period described in thissubsection is added to the 4 years under subsection (1), if a taxpayersuccessfully challenges a Commissioner's refusal under section89K(4). The relevant period—(a) starts on the day of the refusal:(b) finishes on the day on which that challenge is finally judgedsuccessful by the relevant Taxation Review Authority orcourt, or the day on which the Commissioner concedes.(4) This section overrides every other provision of this Act, and any otherrule or law, that limits the Commissioner's right to amend GSTassessments.[14] Therefore, in the ordinary course of events, the Commissioner has four yearsfrom the end of a GST return period in which a tax return was filed to re-assess ataxpayer's self-assessment of their GST liability with the effect of increasing theamount assessed, unless the Commissioner considers the person has knowingly orfraudulently failed to disclose all of the material facts that are necessary fordetermining the amount of GST payable for a GST return period.The disputes resolution procedure under the TAA[15] The TAA provides a regime for the resolution of tax disputes, including inrelation to GST matters. Its purpose is to "re-enact the administrative provisionscontained in the Income Tax Act 1976 and the Inland Revenue Department Act 1974in a reorganised form", without changing the interpretation or effect of the provisionscarried over.10 Taxpayers are able to contest a "disputable decision" by theCommissioner following the steps as contemplated by the TAA.11[16] Part 4A of the TAA provides for pre-litigation disputes procedures, while pt 8Aprovides for challenges, which proceed through a de novo litigation process betweenthe Commissioner and the taxpayer in either the Tax Review Authority or the HighCourt.12[17] Section 89A of the TAA provides that the purpose of pt 4A of the TAA is toestablish procedures that will:(a) improve the accuracy of disputable decisions made by theCommissioner under certain of the Inland Revenue Acts; and(b) reduce the likelihood of disputes arising between the Commissionerand taxpayers by encouraging open and full communication—(i) to the Commissioner, of all information necessary for makingaccurate disputable decisions; and(ii) to the taxpayers, of the basis for disputable decisions to bemade by the Commissioner; and(c) promote the early identification of the basis for any disputeconcerning a disputable decision; and(d) promote the prompt and efficient resolution of any dispute concerninga disputable decision by requiring the issues and evidence to beconsidered by the Commissioner and a disputant before the disputantcommences proceedings.[18] The disputes process contemplated by pt 4A of the TAA may be followed incircumstances in which the Commissioner wishes to dispute a taxpayer's self-assessment of tax in a GST return.13 Some steps in the process established by the TAAare required to be taken within a specific timeframe, while others are not.10 Tax Administration Act 1994, ss 2(1) and 2(2).11 Sections 3(1) and 109. See also Allen v Commissioner of Inland Revenue [2006] NZSC 19, [2006]3 NZLR 1 at [8].12 See Allen v Commissioner of Inland Revenue [2006] NZSC 19, [2006] 3 NZLR 1 at [8]–[9]; andTannadyce Investments Limited v Commissioner of Inland Revenue [2011] NZSC 158, [2012]2 NZLR 153 at [48]–[51] per Blanchard, Tipping and Gault JJ.13 This discussion focuses on the process where the Commissioner has concerns about the taxpayer'sreturn as that is the position in the present case. A comparable process exists when it is the taxpayerwho has concerns about the Commissioner's assessment.[19] The Commissioner has in practice added steps to the disputes procedure as amatter of administration and policy which are not included in the TAA, and in respectof which there is no statutory direction. To this end, the Commissioner has publisheda Standard Practice Statement (SPS) Disputes resolution process commenced by theCommissioner of Inland Revenue.14 This SPS states in its introduction:The disputes resolution process is designed to ensure that there is a full andfrank communication between the parties in a structured way within strict timelimits for the legislated phases of the process.The disputes resolution process is designed to encourage an "all cards on thetable" approach and resolution of issues without the need for litigation.[20] I now set out a broad overview of the disputes procedure as it applies wherethe Commissioner has concerns about a GST return.[21] If the Commissioner is not satisfied that a taxpayer has complied with their taxobligations or that their self-assessment contained in a GST return is correct, theprovisions of pt 4A of the TAA provide a process for the Commissioner to dispute thereturn, typically following the exercise of the investigatory powers contained in s 46.[22] The entry point into pt 4A of the TAA is the Commissioner's issuing of a'Notice of Proposed Adjustment' (NOPA). The Commissioner may issue one or moreNOPAs in respect of a tax return or an assessment.15 A NOPA may be issued in respectof a GST return, because a GST Return is both a tax return and an assessment. Subjectto a list of exceptions contained in s 89C of the TAA, a NOPA is required to be issuedprior to the Commissioner making an assessment (effectively a re-assessment of theassessment made by the taxpayer in their GST Return). A NOPA itself is not anassessment.1614 Disputes resolution process commenced by the Commissioner of Inland Revenue (SPS 16/05),10 October 2016. This SPS has been replaced as of 24 February 2023 by Disputes Process(SPS 23/01), 24 February 2023. I note however, that an assessment made by the Commissioner isnot invalidated by reason of the assessment being made wholly or partially in compliance with acurrent policy or practise approved by the Commissioner. See Tax Administration Act 1994,s 114(b)(ii).15 Tax Administration Act 1994, s 89B(1).16 Disputes Process (SPS 23/01), 24 February 2023 at [36].[23] Pursuant to s 89F of the TAA, a NOPA issued by the Commissioner mustcontain sufficient detail of certain matters to identify the issues arising between theCommissioner and the taxpayer, including:(a) identification of the adjustment or adjustments proposed to be made tothe assessment;(b) the provision of a concise statement of the key facts and the law insufficient detail to advise the taxpayer of the grounds for theCommissioner's proposed adjustment or adjustments; and(c) a statement of how the law applies to the facts.[24] The sufficient detail required for a NOPA is obtained through the investigationwhich proceeds following the Commissioner notifying the taxpayer of their intentionto investigate a GST return within the requisite 15 working days required by s 46(5)of the GST Act. However, there is no requirement contained in the TAA for theCommissioner to issue a NOPA within a certain time. The Commissioner either:(a) investigates until they become satisfied in the terms of s 46(1)(b), andreleases the refund claimed; or(b) investigates until the time bar in s 108A of the TAA comes into effect,and simply accepts the taxpayer's self-assessment, then releasing therefund claimed; or(c) investigates indeterminately, on the basis that the taxpayer hasknowingly or fraudulently failed to disclose material facts, forming anopinion that an exception to the time bar arises, as contemplated bys 108A(3).[25] The taxpayer, having received a NOPA, can decide to accept or reject theNOPA. If the taxpayer accepts the NOPA, then the dispute is at an end, and theCommissioner makes a new assessment on that basis. If the taxpayer rejects theNOPA, they must do so pursuant to s 86G of the TAA.[26] Section 86G requires that the taxpayer notify the Commissioner that the NOPAis rejected by issuing a 'response notice' (also known as a 'Notice of Response'(NOR)). A NOR must be issued within two months of a NOPA being issued.17 Pursuantto s 89G(2), a NOR must state concisely:(a) the facts or legal arguments in the NOPA that the issuer of the notice ofresponse considers are wrong; and(b) why the issuer of the NOR considers those facts or legal arguments tobe wrong; and(c) any facts and legal arguments relied on by the issuer of the NOR; and(d) how the legal arguments apply to the facts; and(e) the quantitative adjustments to any figure referred to in the NOPA thatresult from the facts and legal arguments relied on by the issuer of theNOR.[27] If a taxpayer does not issue a NOR within the two month response period, theyare deemed to accept the proposed adjustment and s 89I applies, meaning that thetaxpayer cannot challenge the NOPA. However, there are some exceptions to therequirement for the taxpayer to comply with the statutory response period.18[28] Once a NOR is issued, the Commissioner's policy/administrative approach haspreviously been to "take reasonable efforts to advise the taxpayer or their tax agentwithin one month after receiving the NOR whether it is being considered or has beenaccepted, rejected in full or in part"19. However, the Commissioner is under no legalobligation to notify the taxpayer within that timeframe, and the current SPS 23/01 doesnot contain any indication he will do so.2017 Tax Administration Act 1994, s 89AB(2).18 See Tax Administration Act 1994, s 89K. This is discussed further below.19 Disputes resolution process commenced by the Commissioner of Inland Revenue (SPS11/05),13 October 2011 at [129].20 Disputes Process (SPS 23/01), 24 February 2023 at [113]–[153].[29] Following the issuing of a NOPA and a NOR, the next step is the 'conferencephase'. The conference phase is not included as a required step in the TAA, andtherefore there is no obligation for it to occur. However, the Commissioner's policy isto offer to hold a conference to attempt to resolve the dispute.21 The Commissioner'spolicy estimates that the conference phase is to be completed within three months.22However, again, as the conference phase is not included within the TAA, there is nolegal obligation for it to occur within this timeframe. The Commissioner will notprogress a dispute until they consider this phase complete, usually by agreementbetween the parties.23 However, the parties can agree to opt out of the disputes processat this stage, if certain criteria are met.24[30] The facilitator of the conference phase decides and/or suggests when theconference phase has ended, but this conclusion is typically formally recorded in anagreement between the Commissioner and the taxpayer. The reasons for theconclusion of the conference phase are varied, but often include:25(a) the facilitator considers that all material information has beenexchanged, all technical tax issues have been fully discussed, and thedispute has not yet been resolved;(b) the taxpayer stops contacting IRD;(c) no exchange of information has occurred;(d) the parties disagree with each other and are keen to progress to the nextphase; and/or(e) the taxpayer appears to be delaying so as to run into the four year timebar.21 At [154]–[156].22 At [171].23 At [191].24 At [196]–[201], and [323].25 Disputes Process (SPS 23/01), 24 February 2023 at [189]–[190].[31] Once the conference phase has ended, the last formal part of the disputesprocess is the exchange of Statements of Positions (SOPs) pursuant to s 89M of theTAA. Where the Commissioner issued a NOPA first, they must also issue their SOPfirst, accompanied by a 'disclosure notice'. The Commissioner's SOP must withsufficient detail to fairly advise the taxpayer:26(a) give an outline of the facts on which the Commissioner intends to rely;and(b) give an outline of the evidence on which the Commissioner intends torely; and(c) give an outline of the issues that the Commissioner considers will arise;and(d) specify the propositions of law on which the Commissioner intends torely.[32] The SOP phase is important, as if and when the dispute enters the challengeprocess provided for by pt 8A of the TAA, the Commissioner and the taxpayer: "mayraise in the challenge only the issues and the propositions of law that are disclosed inthe Commissioner's and disputant's statements of position."27 Therefore, an "all cardson the table" approach to the SOP phase is required. The Commissioner is alsorequired to inform the taxpayer of the rules of evidence that apply to the challengeprocess contained in pt 8A of the TAA.28[33] This means also that although there is an investigation phase that appears tocome to an end at the time a NOPA is issued, the level of detail required for anSOP/disclosure notice may result in a second (and potentially longer) investigationphase prior to the issue of a SOP. There is no timeframe within which theCommissioner is required to provide their SOP following the end of the conference26 Tax Administration Act 1994, s 89M(4).27 Tax Administration Act 1994, s 138G.28 Section 89M(3).phase, meaning that the Commissioner is essentially at leisure to continue toinvestigate, subject to the operation of the time bar.29[34] The taxpayer then issues their SOP in response, and must do so within theresponse period of two months, or they are deemed to have accepted theCommissioner's NOPA.30 If certain criteria are met, the taxpayer may apply to theHigh Court for more time to reply.31 As with the Commissioner's SOP, the taxpayer'sSOP must also provide sufficient detail to fairly advise the Commissioner of thetaxpayer's position.32[35] When the Commissioner receives a taxpayer's SOP, the Commissioner has afurther two months to respond with any additional evidence, information or argumentshe considers relevant, and may apply to the High Court for more time if certain criteriaare met.33[36] Failing resolution, the next stage is for the dispute to be referred to adjudicationby the Commissioner's Tax Counsel Office34 (formerly the Disputes Review Unit).35If the Commissioner succeeds, a new assessment is made.[37] The taxpayer may then bring a challenge, as contemplated under pt 8A of theTAA. The challenge process is instigated by the taxpayer filing proceedings either inthe Taxation Review Authority or the High Court. Those bodies may consider theassessment and the dispute de novo, making any assessment the Commissioner wasempowered to make, at the time it was made.36 It is in that forum that a taxpayer maychallenge the correctness or validity of the Commissioner's assessment, and wheredisputable decisions are open to be invalidated or corrected.29 See Disputes Process (SPS 23/01), 24 February 2023 at [212].30 Tax Administration Act 1994, ss 89M(5), and 89AB(5). See also s 89M(7).31 Section 89M(11).32 Section 89M(6).33 Tax Administration Act 1994, s 89M(8) and 89M(10).34 Disputes Process (SPS 23/01), 24 February 2023 at [252].35 See Disputes resolution process commenced by the Commissioner of Inland Revenue (SPS11/05),13 October 2011 at [252].36 Tax Administration Act 1994, s 138P(1).[38] There are also, however, limitations on the matters that may be challengedthrough the process set out in pt 8A. Pursuant to s 138E of the TAA, certain rights ofchallenge are not conferred by the pt 8A process. This includes (but is not limited to):(a) a decision of the Commissioner under a tax law to enlarge or extend thetime for giving notice, making an application, furnishing a tax return,or doing any other act, matter, or thing;(b) decisions of the Minister under a tax law, or an act, matter, or thingdone or omitted by the Minister under a tax law; and(c) matters which by certain provisions in the Income Tax Act 2007, theTAA, the KiwiSaver Act 2006, and the GST Act, are left to thediscretion, judgment, opinion, approval, consent, or determination ofthe Commissioner.[39] As discussed below, this has an impact on the ability of a taxpayer entering thechallenge procedure to challenge certain decisions or processes adopted by theCommissioner throughout the disputes process.The TAA as a code for the resolution of tax disputes[40] A 'disputable decision' is defined in s 3 of the TAA and includes (as relevantfor present purposes), an assessment, and a decision of the Commissioner under a taxlaw, except for a decision:(a) that cannot be the subject of an objection under pt 8;(b) that cannot be challenged under pt 8A;(c) to issue a Commissioner's NOPA under s 89B; or(d) to issue a Commissioner's disclosure notice or SOP under s 89M.[41] Also of importance are ss 109 and 114 of the TAA. Section 109 provides:109 Disputable decisions deemed correct except in proceedingsExcept in objection proceedings under Part 8 or a challenge under Part 8A,—(a) no disputable decision may be disputed in a court or in anyproceedings on any ground whatsoever; and(b) every disputable decision and, where relevant, all of itsparticulars are deemed to be, and are to be taken as being,correct in all respects.[42] Section 114 provides:114 Validity of assessmentsAn assessment made by the Commissioner is not invalidated—(a) through a failure to comply with a provision of this Act oranother Inland Revenue Act; or(b) because the assessment is made wholly or partially incompliance with—(i) a direction or recommendation made by an authorisedofficer on matters relating to the assessment:(ii) a current policy or practice approved by theCommissioner that is applicable to matters relating tothe assessment.[43] The effect of these provisions is that:37no assessment or other disputable decision, as defined, may be disputed inany court or in any proceedings on any ground whatsoever, except inproceedings taken under the Act. It is clear that by means of s 109 Parliamentwas concerned to ensure that disputes and challenges capable of being broughtunder the statutory procedures were brought in that way and were not madethe subject of any other form of proceeding in a court or otherwise.[44] This means that a taxpayer is unable to commence proceedings challenging adisputable decision by the Commissioner other than as provided for by the TAA. Thisinevitably affects applications for judicial review. On that point, as counsel correctlyidentified, the Supreme Court's decision in Tannadyce is the leading case, which37 Tannadyce Investments Limited v Commissioner of Inland Revenue [2011] NZSC 158, [2012]2 NZLR 153 at [53] per Blanchard, Tipping and Gault JJ.mandates an "extremely narrow approach" to judicial review in respect of taxdisputes.38[45] In Tannadyce, Tannadyce Investment Limited sought judicial review of taxassessments made by the Commissioner. The Supreme Court was required to considerthe relationship of s 109 of the TAA to the availability of judicial review. The majorityconsidered that the effect of s 109 was to render judicial review unavailable to ataxpayer for the challenging of assessments or disputable decisions but that s 109 didnot prevent taxpayers from accessing the High Court, given the broad terms of pt 8A.39[46] The majority went on to say that:40But despite the comprehensive scope of the challenge procedure and thepowers of hearing authorities, it is necessary to recognise the possibility thatthere may be rare cases in which it is not practically possible for a taxpayer tochallenge an assessment under Part 8A. Indeed Tannadyce claims that thepresent is such a case. If that is so, proceedings for judicial review cannot beregarded as precluded by s 109 because the premise on which that section isframed, namely the ability of hearing authorities to consider any challenge, onwhatever ground, is not present.We should add, for completeness, that judicial review will also be availablewhen what is in issue is not the legality, correctness or validity of anassessment but some suggested flaw in the statutory process that needs to beaddressed outside the statutory regime, because it is not provided for withinit. An example might be the case of a well-founded concern that a particularTaxation Review Authority should, for whatever reason, be restrained fromconsidering a challenge; for example because of alleged bias on the part of theAuthority. In such a case it would not be the disputable decision that was beingdisputed in a court but rather the legality of the process by which the challengeto that decision is to be determined under pt 8A. This is a different matter froma challenge to the legality of the process which led up to making of thedisputable decision. That process and any challenge to it directly puts in issuethe disputable decision. Hence the challenge to that decision or its antecedentsmust follow the statutory procedure.It is important to be clear that the fact that judicial review is very largelyexcluded in favour of the statutory processes by s 109 does not in any waydiminish the general importance and availability of judicial review forexamining the legality of conduct and decisions that fall within its compass.The exclusion of judicial review is a product of the text and purpose of s 109in its particular statutory setting.38 Mark Keating Tax Disputes in New Zealand: A Practical Guide (CCH New Zealand, Auckland,2012) at [1502].39 Tannadyce, above n 37, at [57] per Blanchard, Tipping and Gault JJ.40 At [58]–[61] per Blanchard, Tipping and Gault JJ.In summary therefore we would hold that disputable decisions (which includeassessments) may not be challenged by way of judicial review unless thetaxpayer cannot practically invoke the statutory procedure. Cases of that kindare likely to be extremely rare.The Commissioner's powers to obtain information or documents[47] Section 17B of the TAA provides the Commissioner with powers to requireinformation or the production of documents when the Commissioner considers itnecessary or relevant. Section 17B states:17B Commissioner may require information or production ofdocumentsRequiring information or production of documents(1) A person must, when notified by the Commissioner in an informationdemand, provide any information that the Commissioner considersnecessary or relevant for any purpose relating to—(a) the administration or enforcement of an Inland Revenue Act:(b) the administration or enforcement of any matter arising from,or connected with, a function lawfully conferred on theCommissioner.Documents included(2) In this section and in sections 17 and 17G to 17H, a requirement toprovide information includes a requirement to produce a document.Requirements(3) The Commissioner may require that information provided under thissection be—(a) verified by statutory declaration or otherwise:(b) provided to a particular office of the Commissioner:(c) provided in a manner acceptable to the Commissioner.Persons included(4) For the purposes of this section and section 17L, a person includes—(a) an officer employed in, or in connection with, a department ofthe government or a public authority:(b) any other public officer.Particular requirements for information demands and inquiries(5) Sections 17F, 17G, and 17H to 17K set out some particularrequirements for information demands and inquiries.[48] Section 17B was inserted into the TAA by the Taxation (Annual Rates for2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019.Previously, the Commissioner's information gathering power was contained in s 17(1)of the TAA, which read:Every person (including any officer employed in or in connection with anydepartment of the government or by any public authority, and any other publicofficer) shall, when required by the Commissioner, furnish any information ina manner acceptable to the Commissioner, and produce for inspection anydocuments which the Commissioner considers necessary or relevant for anypurpose relating to the administration or enforcement of any of the InlandRevenue Acts or for any purpose relating to the administration or enforcementof any matter arising from or connected with any other function lawfullyconferred on the Commissioner.[49] It is clear from the former s 17(1) that the current s 17B is not substantiallydifferent in effect. Additionally, the Taxation (Annual Rates for 2018–19, ModernisingTax Administration, and Remedial Matters) Act 2019 does not appear to have beenintended to change the nature of the Commissioner's information gathering powers,but rather to generally (as an omnibus bill), simplify, improve, and modernise the taxsystem.41[50] Commentary on the former s 17(1) describes the Commissioner's powers as"very wide in scope", with little restriction on the kinds of information that are able tobe requested.42 The Commissioner can also require the provision of information inwriting where no written records are available, and the information is simply aperson's recollection of events.43 That information must be necessary or relevant.However, generally the courts have been willing to grant the Commissioner latituderegarding what information is requested and how it is described, and the41 See (12 March 2019) 736 NZPD 9900.42 Mark Keating Tax Disputes in New Zealand: A Practical Guide (CCH New Zealand, Auckland,2012) at [304].43 Commissioner of Inland Revenue v New Zealand Stock Exchange [1990] 3 NZLR 333, (1990)12 NZTC 7,259 (CA); and New Zealand Stock Exchange v Commissioner of Inland Revenue[1992] 3 NZLR 1, (1991) 13 NZTC 8,147 (PC).Commissioner need not describe in a request why the information is deemed to benecessary or relevant.44Timeframe for bringing criminal charges for tax offences[51] Finally, it is relevant to note that s 150A of the TAA provides that a chargingdocument may be filed at any time within 10 years after the termination of the year inwhich the offence was committed for offences contained in the TAA, the GST Act,and the Income Tax Act 2007.Factual Background[52] The parties have filed affidavit evidence in relation to the extensive dealingsbetween Mr Fugle, Woodgate and other entities arguably associated with Mr Fugle.There have been many communications between Woodgate, Mr Fugle and their legaladvisers on the one hand, and the Commissioner, on the other. I consider that I canappropriately summarise key events as follows, without commenting on everyindividual communication.Mr Fugle's background and property developments[53] Records from the Companies Office show that Mr Fugle has been a directorand/or a shareholder of at least 28 companies since the late 1980s. A number of thesecompanies have held the title of land relevant to this proceeding, located in PalmerstonNorth. That land has been progressively sub-divided over time. The process generallyhas been that residential sections would be sold to third parties, and the residual landtransferred to another entity controlled by Mr Fugle. The rationale behind this processappears to be to avoid liability for the entity which has most recently sold residentialsections, leaving the company holding the residual land to further develop it,unimpeded by prior liabilities or commitments.[54] Mr Fugle has had previous disputes with the Commissioner, including aprotracted dispute relating to Mr Fugle's 2005 income tax return and a debt assignment44 Mark Keating Tax Disputes in New Zealand: A Practical Guide (CCH New Zealand, Auckland,2012) at [305]; citing Schwass and Robertson v Mackay (1983) 6 NZTC 61 (HC).from one of his companies, Bathos Properties Limited, which progressed through thestatutory dispute resolution process, the Taxation Review Authority, the High Court,45and the Court of Appeal.46 The Commissioner was ultimately unsuccessful on appeal.[55] Mr Fugle has also been involved in other litigation in the High Court and Courtof Appeal, concerning his directorship of Vey Group Limited.47 From Mr Fugle'sperspective, this background raises a concern in that previous disputes between himand the Commissioner affect the manner in which the Commissioner has dealt and/oris dealing with Woodgate's GST Return. From the Commissioner's perspective, thebackground means that he is determined to consider the GST Return against a fullunderstanding of Mr Fugle's past activities.The Property[56] The GST Return claims an input tax credit relating to the purchase of a propertylocated at 153 Pacific Drive, Fitzherbert, Palmerston North (the Property). For presentpurposes it is not necessary to set out all of the various entities that have held theProperty over time. It is enough to say that, as part of the land at Pacific Drive,Palmerston North, the Property has been transferred many times between entitiescontrolled by Mr Fugle, and that its legal description has also changed many times asa result of the subdivision of the land.[57] Relevantly for present purposes, on 30 November 2011, Farm Holdings (4)Limited (which was then known as Aokautere Land Company Limited) entered anagreement for sale and purchase of the Property for $6,325,000.000 inclusive of GSTif any. The transfer of the Property occurred on 1 December 2011. The directors of thatcompany at that time were Mr Wayne Fugle (Mr Fugle's brother) and Mr RichardNichols, although Mr Fugle had previously been a director at the time of itsincorporation.45 Fugle v Commissioner of Inland Revenue [2016] NZHC 1997, (2016) 27 NZTC 22-069.46 Commissioner of Inland Revenue v Fugle [2017] NZCA 230, (2017) 28 NZTC 23-017.47 Vance & Millard v Vey & Fugle [2019] NZHC 1676, [2020] NZCCLR 5; and Vey Group Limitedv Vance [2020] NZCA 232, [2021] 2 NZLR 541.[58] The Property was purchased at that time from Mr Christopher Lundin(Mr Lundin), the director of an American-based company called CTS InvestmentsLLC (CTS), which also provided finance for the completion of the purchase. Aregistered mortgage was given to CTS to secure the finance provided.[59] Farm Holdings (4) Limited went into voluntary liquidation pursuant tos 241(2)(a) of the Companies Act 1993 on 25 May 2016 and was removed from theCompanies Register in September 2017. During the process of the liquidation, theliquidators disclaimed the Property as an onerous asset under s 269 of the CompaniesAct 1993. Disclaimer has the effect of terminating a company's rights, interests, andliabilities in relation to the property disclaimed, however, the rights and liabilities ofthird parties are not affected.48[60] Following on from the disclaimer of the Property, in November 2017, CTSsuccessfully applied to the High Court for the Property to be vested in it in reliance onits registered mortgage. CTS remains the registered owner of the Property, despitehaving subsequently sold it to Woodgate.[61] Prior to the voluntary liquidation of Farm Holdings (4) Limited, it was engagedin litigation with the Horizons Regional Council (then the Manawatu-WanganuiRegional Council) regarding its compliance with Resource Management Act 1991obligations. This litigation culminated in the filing of charges against FarmHoldings (4) Limited, Mr Fugle, and Pacific Farms Development Limited (anothercompany controlled by Mr Fugle). These proceedings are not relevant for presentpurposes, although I note that there are many examples of litigation in theEnvironment Court involving Mr Fugle, his related entities, and regional or localauthorities.49 It appears to me to be an available inference from the evidence that the48 Companies Act 1999, s 269(3). I note also that the definition of onerous property in s 269(2)includes "property of the company that is unsaleable, or not readily saleable, or that may give riseto a liability to pay money or perform an onerous act".49 See for example: Fugle v Manawatu-Wanganui Regional Council [2015] NZEnvC 155; RePalmerston North City Council [2022] NZEnvC 214; Aokautere Land Holdings Ltd v PalmerstonNorth City Council [2020] NZHC 1110, (2020) 21 ELRNZ 823; Aokautere Land Holdings Ltd vManawatu-Wanganui Regional Council [2021] NZEnvC 199, (2021) 23 ELRNZ 522; Manawatu-Wanganui Regional Council v Fugle [2013] NZEnvC 19; Manawatu-Wanganui RegionalCouncil v Fugle [2012] NZEnvC 2; and Manawatu-Wanganui Regional Council v Fugle [2012]NZEnvC 250.voluntary liquidation of Farm Holdings (4) Limited, and the subsequent disclaimer ofthe Property, were undertaken in order to avoid liability stemming from the litigationwith Horizons Regional Council, and/or to defeat the interests of creditors.The GST Return[62] It was on 13 June 2016 that Mr Fugle first contacted the Commissioner inrelation to the tax implications of a further sale and buy back of the Property. This wasa short time after the voluntary liquidation of Farm Holdings (4) Limited, but prior tothe liquidator's disclaimer of the Property as onerous. Mr Fugle made the followinginquiry:On [the] heel of never ending & costly litigation with council Farm Holdings(4) Ltd has been forced into liquidation. This in turn led [mortgagee] CTSInvestments LCC of Delaware to repossess FH's land under its mortgage. Iam overseas attempting to secure funding to present CTS offer to buy back –question has arisen encircling gst that could influence whether borrowing [willbe] successful. You may recall undertaking was entered (don't hold copy)whereas FH's would not seek input tax when it made its land purchase albeitfrom memory encircled FH tax position only – was this so? Conscious if anew company did make claim on basics of purchasing from non registeredwould become subject to audit but at this stage I'm merely enquiring whetherany factor denying a claim jumps out?[63] Mr Fugle was advised by the Commissioner that without specific details on aproposed property sale the Commissioner could not provide tax advice, but that a GSTrefund claim based on the proposed facts would require at least some analysis orverification before the approval of a refund. Mr Fugle responded to the Commissioner,indicating that he would liaise further once he knew where matters were heading.[64] Mr Fugle contacted Inland Revenue again on 18 December 2017, requesting ameeting, and informing the Commissioner that he intended to purchase the Propertyfrom CTS. Woodgate had been incorporated on 5 December 2017 and registered withInland Revenue for GST purposes on the same day by Mr Fugle, who elected amonthly filing frequency.[65] Mr Fugle and the Commissioner met on 9 January 2018. On 18 January 2018,the Commissioner emailed Mr Fugle, and noted that:As I understand, the land encompassed in the drafted S&P agreement haspreviously been 'owned' by entities that you have been associated with andinput tax credits claimed. It is also noted that GST output tax has never beenaccounted for when the land has been disposed of. As you will appreciate thisis not correct and has caused the Commissioner serious concern. It is thereforenot appropriate for her to give advice on a new proposed transaction.Inland Revenue operates under a self-assessment regime. Therefore I suggestyou get independent legal advice to determine the correct treatment of thetransaction and for assisting in preparing the return if you believe you are ableto make [a] claim. I would suggest that you advise your legal advisor completedetails and history of all your dealings with this piece [of] land. If you do notwish to do this the other alternative is to request a binding ruling from IR.[66] Between 19 and 23 January 2018, there was further correspondence betweenMr Fugle and the Commissioner which culminated in Mr Fugle stating:having taken [advice] there is little to be gained by seeking [a] bindingruling.The contract has been brought forward to settle on the 29 January. I shallthereafter forward you Woodgate's GST claim together with supportingdocumentsDuring our meeting you asked do/did I have any business interest in CTSInvestment LLC to which I replied No. I am open to swear [a] statement tothat effect.Your letter implies [that the] Commissioner has missed out on GST from'fugle entities'. I do not perceive that is correct. My interest in the land beganwhen I acquired some 300ha pre-enactment of the GST Act. Over the yearsthe land (i.e. balance land following each stage developed) was sold betweencompanies I owned on [a] 'going concern – zero rated' basis. The reasonbehind on-selling was commercial driven i.e. to ensure balance land was heldin new company to avoid exposure to any potential liability.When Pacific Farms sold, forced upon due to Council issues, output tax wasdeclared.Rather than the Commissioner [being] out of pocket she benefitedsubstantially i.e. no input tax paid out on the original land purchaser while[receiving] gst on each section sale during 'fugle entities' ownership and, gstwhen Pacific Farms sold.[67] On 29 January 2018, Woodgate (as purchaser) entered into an unconditionalagreement for sale and purchase with CTS (as vendor) to purchase the Property for$17,500,000 including GST, if any. Woodgate paid a deposit of $250,000. At the sametime, CTS (as lender), Woodgate (as borrower) and Mr Fugle (as guarantor) enteredinto a term loan agreement for the principal sum of $17,250,000 secured by a firstmortgage over the Property.[68] However, as noted earlier, despite this sale, the Property remains registered inthe name of CTS. Woodgate's position is that this remains the case as it is obligedunder the sale and purchase agreement to pay a second instalment of $1,000,000 toCTS and as it intended to fund this from the receipt of the refund arising from the GSTReturn, which has not been paid owing to the Commissioner's ongoing investigation,Woodgate has not paid the second instalment. As a result, CTS is not willing tocomplete the transfer of the Property to Woodgate. The Commissioner's view is thatas the sale and purchase agreement provides for the transfer of title upon settlement,which is said to have occurred on 29 January 2018, the Property should have alreadybeen transferred to Woodgate.[69] On 2 February 2018, Mr Fugle filed the GST Return, claiming an input creditin relation to the sale of the Property from CTS to Woodgate which indicated a refundof $2,282,608.69 to Woodgate. The same day, Mr Fugle emailed the Commissioner,attaching the settlement statement, sale and purchase agreement, term loan agreement,shareholders' resolution, and a cashflow budget.The investigation, culminating in allegations of delay[70] On 13 February 2018, the Commissioner issued a notice to Woodgate pursuantto s 46(2)(b) of the GST Act, with the effect that no refund would be issued until theCommissioner had completed an investigation and review (the s 46 notice).50 Thisinvestigation remains ongoing, with the notice now having been issued over five yearsago. The Commissioner says that this is due to the complexity of the investigation,and the fact that there have been earlier sales of land including the Property which alsoinvolved Mr Fugle, Mr Lundin, and their respective entities.51 The Commissioner saysalso he has 'serious concerns regarding the bona fides of the input tax credit claimedby Woodgate' and says he has had to respond to a significant amount of50 The terms 'investigation', 'audit' and 'review' are used interchangeably to describe theCommissioner's ongoing investigation into the GST Return.51 In her affidavit of 22 September 2022, Ms Clancy refers to an entity controlled by Mr Lundin(TSS Holdings Limited) claiming an input tax credit for the purported sale of the Property from acompany directed by Mr Fugle, Pacific Farms Development Limited. She says that the refund paidto TTS Holdings Limited was in the sum of $2,578,727 for a purchase price of $19,750,00, whichwas also vendor financed, and that the Commissioner was unable to recover the refund. Mr Fugledoes not respond to this allegation specifically, but says that neither he nor his associated entitieshave received input tax credit over the land since its original purchase in 1988, and yet over theyears output tax has been generated from hundreds of section sales.correspondence from Mr Fugle and his representatives, particularly Mr Weaver,Mr Fugle's legal adviser. Mr Fugle and Woodgate have consistently expressed theirconcerns about the timeliness of the Commissioner's progress since being notified ofthe Commissioner's intention to investigate the GST Return.[71] Correspondence between the parties followed the issue of the s 46 notice, withthe Commissioner again writing to Mr Fugle on 5 April 2018, advising that an auditwould be conducted on the GST Return. The letter stated:The audit will involve reviewing the purchase of 153 Pacific Drive byWoodgate Limited including the GST input tax credit claimed on the purchase.During this audit we may request further information from you as well as otherparties.I expect to complete this audit by 31 March 2019 subject to your co-operationand any requested information being made available to me as indicated. In theevent a delay may occur, I will contact you to discuss an amended timeframe.[72] As part of the audit, on 24 April 2018, the Commissioner asked for furtherinformation regarding the property, the circumstances of the sale to Woodgate, theliquidation of Farm Holdings (4) Limited, and Mr Fugle's relationship withMr Lundin.[73] The investigation then continued throughout 2018 and 2019, not coming to anend by 31 March 2019, as indicated by the Commissioner, and without theCommissioner issuing a NOPA. There was voluminous correspondence between theparties with Mr Fugle inquiring why a refund had not yet been paid out and theCommissioner alleging in return that the GST Return was non-compliant and that therewere further issues regarding the dealings with the Property.[74] Mr Fugle became increasingly frustrated with the time it was taking to resolvethe matter and proposed in mid to late 2018 that the issues be put before the TaxationReview Authority and/or the courts. He also obtained an independent legal opinion(which supported his position on the GST Return) and provided it to theCommissioner. There appears to have been some reluctance on behalf of theCommissioner to progress from his investigations through to the statutory disputeresolution process, by issuing a NOPA.[75] On 8 November 2018, the Commissioner advised Mr Weaver of his usualexpectation that investigations involving consideration of the general avoidanceprovision in the GST Act are to be completed within 28 months.52 The Commissioneralso noted that there is no set timeframe for the completion of an investigation, withthe length of an investigation affected by a number of factors including the complexityof the issues.[76] This appears to be the Commissioner stating that when he is investigating ataxpayer's self-assessment on the basis that there may be a tax avoidance arrangement,investigations prior to the issuing of a NOPA (being the point at which a dispute enterspt 4A of the TAA), are expected to be completed within 28 months. It is clear from thecontemporaneous correspondence throughout late 2018 that the Commissionerconsidered that as the investigation was ongoing, it would not be appropriate to issuea NOPA. Mr Fugle remained involved with the investigation, fielding requests forfurther information, filing a formal complaint, obtaining further independent advice,and seeking information pursuant to the Official Information Act 1982. Mr Fugle alsobegan to contemplate issuing judicial review proceedings.[77] In early 2020, the Commissioner's compliance work was paused, to focus onCOVID-19 related workstreams. This delayed the Commissioner's progression of theinvestigation.[78] The Commissioner then wrote to Mr Fugle on 11 August 2020, summarisinghis position at that time. This was essentially that the arrangements made by Mr Fugleand Woodgate were likely to be considered tax avoidance arrangements, and that aNOPA was expected to be issued by 30 September 2020. Mr Weaver advised theCommissioner that Woodgate did not accept the Commissioner's conclusions.52 It is unclear from this correspondence from when the 28 months are to be measured from.However, if they are to be measured from the date the GST Return was filed, the expectedcompletion date for the investigation and the issuing of a NOPA in the present case would havebeen 2 June 2020. If they are to be measured from the date of the email of 8 November 2018, theexpected completion date and the issuing of a NOPA would be 8 March 2021. Both of these dateswould be some time after the Commissioner's initial indication that the investigation would becomplete by 31 March 2019. In any event, the NOPA in the present case was in fact issued on27 October 2020.[79] Notwithstanding that indication of timing, the Commissioner's NOPA waseventually issued on 27 October 2020, accompanied by an apology from theCommissioner for the delay. The NOPA proposed to disallow the GST Returncompletely and impose an evasion penalty of $1,711,965.52, on the basis thatWoodgate (and by implication, Mr Fugle) either knew or ought to have known that itwas not entitled to the refund sought.[80] The NOPA, as well as contemporaneous correspondence between the parties(and telephone calls), confirmed that the Commissioner was contemplating filingcriminal proceedings against Mr Fugle and/or Woodgate. It is also clear that theCommissioner recognised that his contemplation of criminal proceedings had an effecton Woodgate's obligations to provide information in the context of the disputeregarding the GST Return. On 28 October 2020, Mr Weaver emailed theCommissioner, stating in respect of the NOPA:I acknowledge receipt.Two queries at this stage, I take it because the CIR has proposed [an] evasionSFP that she has decided not to pursue criminal prosecution? I just want tohave this made clear so we can get on with this matter knowing that this isnow off the table.Ray – you mentioned a tax case to me over the phone – suri, surfri orsomething? can you please provide the citation or even better a copy of thedecision you mentioned.[81] The Commissioner replied to Mr Weaver on 29 October 2020, stating:Hello DavidAs discussed just now and as advised in the covering letter with the CNOPA,criminal proceedings are being contemplated. However, I understand that thiswork is not going to commence for another couple of weeks but when it does,it will take into account the fact that a shortfall penalty for Evasion has beenproposed in the CNOPA. Therefore, potential prosecution action is not off thetable but a decision has not been made about this yet. As agreed I will keepyou informed on progress and hopefully the decision will be made withoutundue delay. In the meantime, until a decision has been made, your client doesnot have to provide a NOR within the usual statutory two month response timeframe (in line with R v Safi (2018) NZDC 19698) (but you can obviously doso). Unfortunately, I do not have a copy of the "Safi" decision to hand but ifyou cannot locate it and still need it, let me know and I can have a further look.[82] The Commissioner had therefore advised Woodgate, through Mr Weaver, thatas a result of the District Court's decision in R v Safi, the Commissioner consideredthat an exceptional circumstance existed and Woodgate was not required to issue aNotice of Response within the two month timeframe usually required.53 The ostensiblepurpose for the Commissioner taking this position was to protect Mr Fugle's and/orWoodgate's fair trial rights in light of the possibility of prosecution, although theCommissioner also advised that Woodgate could choose to file a NOR at any time,notwithstanding the possibility of prosecution. The Commissioner also informedMr Fugle directly that work on considering whether criminal prosecution would bepursued would not begin until after 16 November 2020.[83] Notwithstanding the Commissioner's indication that it was not required withinthe two month response period, Woodgate issued a NOR on 17 November 2020. It isapparent from the correspondence at that time, and the submissions made by Woodgatefor this proceeding, that Woodgate issued its NOR because it considered that theCommissioner did not have the power to allow it to issue a NOR after the statutoryresponse period, and it did not wish to risk being deemed to have accepted theCommissioner's NOPA.[84] Woodgate's NOR stated:WGL rejects the proposed adjustments contained in the Commissioner'sNotice of Proposed Adjustment "(NOPA)" in their entirety. WGL considersthe application of the law to the accepted facts is incorrect and that the taxpositions tax [sic] by WGL are correct.[85] In essence, Woodgate's position as set out in its NOR was that a taxable activityhad occurred, notwithstanding that title to the Property was still in the name of CTS,and that the onus remained on the Commissioner to prove an evasion tax penaltyshould be imposed. Woodgate said that there was no evidence of any intention to53 R v Safi [2018] NZDC 19698. This decision was delivered on 23 May 2018. The Commissioneradopted the view that the possibility of prosecution amounted to an exceptional circumstanceunder s 89K(3)(a)(i) of the Tax Administration Act 1994, which could prevent a taxpayer fromproviding a Notice of Response within the applicable time period (two months), and that it wasnot appropriate for Woodgate to provide a response before the question of prosecution wasresolved. In July 2020, the Commissioner issued a Commissioner's Statement in light of the Safidecision, see The Dispute Resolution Process and Fair Trial Rules (CS 20/04), 22 July 2020; andalso Disputes Process (SPS 23/01), 24 February 2023 at [21]–[30].breach a known tax obligation. The Commissioner responded formally on30 November 2020, (within the Commissioner's self-imposed one-month responseperiod) rejecting Woodgate's NOR, considering that it did not adequately rebut theblack letter and tax avoidance concerns raised in the Commissioner's NOPA.[86] The next step was the conference phase. However, the Commissioner indicatedin a letter of 30 November 2020 that a conference could not proceed until a decisionhad been made regarding the possibility of criminal prosecution. Despite this, theparties attempted to arrange a conference for 10 February 2021. Nevertheless, on3 February 2021, the Commissioner advised that the conference had been put on hold:"due to the fact that prosecution action is still being considered". This caused furtherfrustration to Mr Fugle.[87] On 1 March 2021, Mr Weaver sent a letter to the Commissioner, regarding thecancellation of the conference. Mr Weaver stated:I do not propose to set out the many emails and letters and instances oftelephone calls where the [Commissioner's] officials have been chased upabout the lack of progress of this matter. Nevertheless, when those matterswere raised there has been all number of excuses including staffing issues,redundancies, Covid-19, legal reviews and similar. The number of excuses fordelay have been various and many.The latest excuse for delay including cancelling the scheduled conference isthat the Commissioner is considering prosecuting Mr Fugle.Having raised the potential decision to prosecute Mr Fugle in October 2020he has been for the past 4 months left completely in limbo. Apart from theknowledge that the Commissioner of Inland Revenue "might" prosecute himfor tax evasion.It is entirely unfair and unreasonable for a person to be labouring under thattype of uncertainty. Either the Commissioner should get on with a prosecutionor get on with a civil dispute. I have said this to you multiple times and I havemade that clear to your team leader[88] Mr Weaver also advised the Commissioner that he had received instructions todraft a complaint against Inland Revenue and a complaint to the Ombudsman. At thesame time, Mr Fugle also emailed the Commissioner directly, expressing his concernsand asking for the dispute to be placed before the Taxation Review Authority.[89] In an email of 2 March 2021 to Mr Weaver and copied to Mr Fugle, theCommissioner stated:54In response to your comments in your letter, I appreciate that the audit ofWoodgate's GST return did take a long time before the dispute resolutionprocess was initiated by the Commissioner issuing a Notice of ProposedAdjustment (NOPA). This may be explained in part by the complicatedbackground to the acquisition of the Pacific Drive land by Woodgate Limited.As a result, considerable time had to be spent identifying the facts/backgroundcaused by your client's actions and not by the Commissioner. The delay ininitiating the dispute resolution process was also caused in part by theCommissioner's resources being diverted to other matters. I apologise for thisand, as you have acknowledged, I did ensure that the CNOPA was issued.I also apologise for going ahead and organising the conference and thencancelling it. I wanted to keep things moving with the Woodgate civil disputeon my mistaken understanding that a decision about prosecution might bemade before the date of the conference. However, the Litigation Solicitormade it clear to me that I had no choice but to put the civil dispute relating toWoodgate on hold. This was solely in order to protect your client's fair trialrights and was not a delaying tactic on my part (which would serve nopurpose). With respect to your client's fair trial rights, you were advised thatWoodgate did not need to file a Notice of response to the Commissioner'sNOPA within the usual statutory timeframe for that reason however you choseto do so.With regard to prosecution action, as you know, legal services recommendedprosecution of Woodgate and Mr Fugle in respect of the Woodgate GSTarrangement be considered. However, prosecution considerations do not onlyinvolve Mr Fugle and Woodgate. Other non-compliance with tax obligationsby your client and his associates is also relevant. The investigation into this isongoing and a decision about prosecution will not be made until thatinvestigation is complete.Your client must be aware that failures to comply with tax obligations (e.g.failures of entities under his control to file income tax returns) are prosecutableoffences. Consequently, it is not that the Commissioner is unfairly holding thespectre of prosecution over your client's head as you suggest – the potentialfor prosecution of any taxpayer is due to non-compliance. Your assertion that"Mr Fugle and his associated entities is subject to some form of targeting" issimply not correct.Please be assured that there is no intention on my part to delay the Woodgatecivil dispute. My only intention is to ensure that Mr Fugle and his associatescomply with their tax obligations historically and going forward.[90] Mr Weaver replied on 5 March 2021, stating Woodgate's view that theCommissioner had no power to extend the response period for a NOR, and asking54 Another representative of the Commissioner replied separately to Mr Fugle's email, indicatingthat the Commissioner's position is that Woodgate's GST refund input is not available by law andis a tax avoidance arrangement, along with other points made in the email addressed to Mr Weaver.whether the Commissioner would issue a SOP if Woodgate and Mr Fugle consentedto that, as "[a]ll indications are that Mr Fugle and Woodgate are quite willing tocontinue with the civil tax dispute [regardless] of the impact this would have on anytrial rights". Mr Weaver and Mr Fugle both continued to attempt to make it clear tothe Commissioner that Woodgate wished to continue with the civil disputenotwithstanding the threat of criminal proceedings.[91] As a result, on 22 March 2021, the Commissioner emailed Mr Fugle statingthat by issuing the NOR , Woodgate (and Mr Fugle) had already to some extent waivedtheir fair trial rights – but that with the conference and/or SOP phase of the disputesprocess, there was still the potential for matters to be revealed which could affect theirfair trial rights. The Commissioner advised that in order to continue the disputeresolution process, Mr Fugle would need to provide a full waiver of his rights underoath for himself and Woodgate that applied to the entire dispute resolution process.[92] Mr Fugle provided a further waiver on 30 March 2021. At the same time,Mr Weaver asked the Commissioner to issue a challenge notice unders 89N(1)(C)(viii) of the TAA so that the adjudication stage could be skipped, and thematter put before the Taxation Review Authority or the High Court. TheCommissioner did not accept Mr Fugle's document as a sufficient waiver andindicated that he expected that the dispute resolution process could continue, notingthat the conference stage could not be formally dispensed with until furtherinformation had been provided.[93] On 12 April 2021, Mr Fugle then provided another waiver witnessed by aJustice of the Peace. The waiver said:I confirm that I have taken legal advice and now wish for Woodgate Limitedto continue the civil disputes resolution procedures under the TaxAdministration Act despite the threats made about a criminal proceedings [sic]against me.For the sake of clarity I acknowledge that information gathered during thecivil disputes resolution procedures could be used as evidence against me inany criminal proceedings that the IRD wish to commence against me subjectto the Evidence Act 2006.I make this statement knowing that subject to the rules of admissibility ofevidence that in the event I disclose information during the disputes resolutionprocedures, this could affect mine/Woodgate's fair trial rights in any criminalproceeding.[94] Following this, and apparently on the assumption that Mr Fugle hadsuccessfully waived both his and Woodgate's fair trial rights, Mr Weaver then soughtthe Commissioner to issue a SOP, "as soon as possible" so the dispute could beprogressed (if the Commissioner would not agree to dispense with referral to theDisputes Review Unit, under s 89N(1)(c)(viii)). The Commissioner advised that oncefurther information had been provided to him, it could be agreed that the conferencephase had ended.[95] Despite ongoing correspondence about the provision of information,eventually, on 27 April 2021, the Commissioner wrote to Woodgate confirming thatthe conference phase had ended, as requested by Woodgate. There continued to becorrespondence and debate as to the adequacy of the information provided byWoodgate and Mr Fugle to the Commissioner. The Commissioner advised also on23 April 2021 that the Commissioner's SOP would generally be issued within threemonths from the date the conference phase ends. Taking the date of 27 April 2021 asthe date the conference phase ended, the Commissioner's SOP would have beenexpected to have been issued at the latest by 27 July 2021.[96] On 15 July 2021, the Commissioner informed Mr Weaver that the secondproposed waiver of fair trial rights was insufficient. The Commissioner provided adocument for Mr Fugle to sign, which he considered was sufficient, and whichincluded a statement that it had been entered into under no compulsion from theCommissioner. This request was responded to by Mr Weaver on 30 July 2021, whoalleged that the Commissioner's request for a waiver was an "attempt to work aroundthe issues which Judge Collins identified in Safi". He said:The Commissioner has proposed a shortfall penalty in her NOPA. As you willknow the imposition of a shortfall penalty by the Commissioner precludescriminal prosecution. Therefore, I cannot understand why waiver ofMr Fugle's fair trial rights is being sought.Whether deliberately or not Mr Fugle however has been lulled into providinga Notice of Response together with [a] substantial amount of information tothe Commissioner.The Safi decision makes it clear that the Commissioner was aware that anycriminal proceeding must go ahead before civil matters are commenced. Inthis case commencing a civil matter first and then charging Mr Fugle is abreach of fair trial rights – as set out in Safi. It seems to me that theCommissioner having now commenced a civil dispute wishes to usurp the trialrights of Mr Fugle through seeking a waiver of them so that she can prosecutehim.ConclusionMr Fugle will not be providing a waiver and I suggest that given the taxdispute has been on foot for 3 ½ years that the Commissioner issues herstatement of position.If criminal proceedings are pursued then it is highly likely that a stayapplication will be brought on the basis of the decision of Safi together withthe supreme Court decision of Skinner and Rowley.I simply highlight all the above and once again ask that the statutoryprocedures continue.(emphases in original)[97] The Commissioner responded on 3 August 2021, saying that the civil disputehad been put on hold until the criminal investigation was complete. Mr Weaver repliedon 2 September 2022, reiterating the view that the criminal process was likely taintedthrough the commencement of the civil proceedings and asking if the Commissionerintended to remain on his current course. The Commissioner responded in an email of3 September 2021, noting:Hello DavidMr Fugle advised us that he had obtained legal advice and sought to waive hisfair trial rights – he provided us with some documents to confirm this. Weprovided an alternative document however you advised in your last letter thatMr Fugle will not sign this. Therefore it seems that Mr Fugle no longer wantsto waive his fair trial rights. That is perfectly fine – this is not something wehave sought.You also consider that Mr Fugle / Woodgate have been "lulled" into providinga NOR however this is not true. In the covering letter with the CNOPA Iadvised that a NOR was not required within the usual statutory time-frame(refer extract below) – you disagreed with this and went ahead and filed aNOR. That is, you provided a NOR on behalf of Woodgate voluntarily. Younow appear to consider that by filling a NOR voluntarily you have impactedMr Fugle/Woodgate's fair trial rights. Given we do not consider the NOR youvoluntarily provided adequately addressed the issues in the CNOPA (referattached letter) it seems unlikely that it would impact your client's fair trialrights in any prosecution action but you were clearly advised of that possibility(refer below). It is still open to you to argue that should you [choose] to do soin any prosecution action. In the meantime, to protect Mr Fugle/Woodgate'sfair trial rights in any prosecution action, the civil dispute resolution processremains on hold.At the moment, IR's focus is on providing support during the Covid lockdown.I will get back in touch with you once that focus changes (probably a coupleof weeks) if you wish to discuss this further.The pleaded Time Bar Decision[98] Then in November 2021, an internal Inland Revenue communication identifieda possible issue regarding a time bar arising in respect of the Commissioner's abilityto amend Woodgate's GST assessment. This arose because of s 108A of the TAA, asset out above.[99] The effect of s 108A is that, generally, the Commissioner's ability to amend aGST assessment by increasing the amount assessed ends after four years have passedfrom the end of the GST return period in which the return was filed. That period inrespect of Woodgate's GST Return came to an end on 28 February 2022. Given theterms of s 108A, the Commissioner's power to amend the GST Return by increasingthe amount assessed after 28 February 2022 is contingent upon his consideration thatWoodgate knowingly or fraudulently failed to disclose to the Commissioner all of thematerial facts that are necessary for determining the amount of GST payable for theGST return period.[100] Between 17 and 25 February 2022, an internal memorandum was circulatedwithin Inland Revenue recommending the exercise of the Commissioner's powersunder s 108A(3) in relation to Woodgate's GST Return. The memorandum also recordsthe approval of the reopening of the time bar pursuant to s 108A(3) by a representativeof the Commissioner who held the appropriate delegated authority for that purpose,dated 2 February 2022. The memorandum was not provided to Woodgate at that time.The Commissioner contends that the formation of this opinion means that the disputecontinues, and the Commissioner retains the power to amend Woodgate's self-assessment in the GST Return, despite the passage of more than four years since28 February 2018.[101] On 7 March 2022, after a period of relative non-interaction between the parties,Mr Weaver emailed the Commissioner, stating:Woodgate Limited filed its GST return, which is the subject of this dispute,over four years ago. The time bar for amending that GST period has nowexpired.I simply wish to make it entirely clear to you that the Commissioner has notprogressed this matter within the 4 year statutory time bar period and thereturn should now be properly processed.I look forward to you confirming the return has been processed by theCommissioner given the expiry of the time bar period within which the returncan be amended in any event.[102] The Commissioner replied on 9 March 2022, stating:At this stage, the Commissioner has not yet made a decision with regard toprosecution considerations and until a decision has been made, the civildispute remains on hold.With regard to the time bar, as the Commissioner considers Woodgate hasknowingly or fraudulently failed to make a full disclosure of all the materialfacts necessary to determine the correct amount of GST payable she is able toassess outside the 4 year period.Unfortunately, I do not have a time-frame for decisions as we have onlyrecently returned to audit type work but I will be in contact when I havesomething to communicate.[103] On 11 March 2022, Mr Weaver emailed the Commissioner, requesting thebasis upon which the Commissioner says he considered that Woodgate had knowinglyor fraudulently failed to disclose material facts. The Commissioner responded on16 March 2022, providing a summary of the basis on which the Commissioner holdsthat view. It appears that following that response, there was no further substantivediscussion between the parties.[104] Then on 25 May 2022, Woodgate filed its statement of claim in thisproceeding. To my knowledge, it remains the position that no criminal charges haveyet been filed by the Commissioner against Woodgate and/or Mr Fugle.The s 17B Notice (Spark information request)[105] It is convenient to mention the information request made by the Commissionerto Spark New Zealand Limited (Spark) separately as it was not a matter on which therewas communication between the parties at the time it was issued. Rather, on 16 August2019, as part of the ongoing investigation into Woodgate and Mr Fugle's tax affairs,the Commissioner issued a notice pursuant to s 17B of the TAA (the s 17B Notice) toSpark, requesting all emails to and from an email account of Mr Fugle's, from1 January 2016 to the date of the request. The Commissioner also requested "All textmessages currently held, if more than 3 months are held we are happy to discuss".[106] The s 17B Notice also noted that:The [Digital Forensics Unit] will [ensure] that any information that may besubject to legal privilege or that could be considered tax advice documents arehandled appropriately. Further standard information regarding these matters[is] detailed below:If any of the above is covered by legal professional privilege, youshould seek further advice on this matter. If privilege does apply toany document, please provide a list of all documents for whichprivilege is claimed.[107] On 9 September 2019, Spark provided information to the Commissioner whichincluded email correspondence, but no text messages. Woodgate alleges that thisinformation contained privileged communications between Woodgate, Mr Fugle, andtheir legal advisers. It is common ground that the Commissioner did not disclose toWoodgate the s 17B Notice, or any of the information obtained by it, until 20 July2022, in the context of the current proceedings.[108] On 27 July 2022, the Commissioner emailed Mr Weaver some of thedocuments obtained through the s 17B Notice.[109] On 29 July 2022, the Commissioner refused to provide to Woodgate internalcorrespondence regarding those documents, or the remainder of the informationprovided by Spark. In refusing to provide that information to Woodgate, theCommissioner relied upon s 18(3) of the TAA, which provides that the Commissioneris not required to disclose revenue information if its release would "adversely affectthe integrity of the tax system or would prejudice the maintenance of the law". TheCommissioner continues to rely on s 18(3) to withhold that information.The underlying tax dispute[110] The parties continue to disagree about whether Woodgate's GST Returnproperly claims a refund. It is not necessary in this proceeding to outline the substanceof that dispute beyond what has already been mentioned above.Woodgate's application[111] Woodgate filed an amended statement of claim on 19 August 2022.55 Itcontains two causes of action, one based on procedural unfairness and the other onbreach of natural justice.[112] The first cause of action alleges the Commissioner failed to complete theinvestigation into the GST Return or to release the claimed GST refund with diligenceand/or in a timely manner. Woodgate alleges that the Commissioner:(a) failed to respond to Woodgate in a timely manner;(b) failed to follow the Commissioner's own policies and guidelines ontimeliness for conducting disputes, including SPS 16/05;(c) failed to issue a SOP and disclosure notice at the conclusion of theconference phase to allow the disputes process to progress;(d) failed to request an interview of Mr Fugle despite repeated offers fromWoodgate;(e) failed to complete the disputes process and/or reassess the GST Returnwithin the four year time bar under s 108A of the TAA;55 Woodgate also filed a Statement of Reply to the Amended Statement of Defence dated16 September 2022.(f) put the dispute process on hold while making criminal allegationsagainst Mr Fugle and Woodgate then failed to commence criminalproceedings; and(g) failed to reassess the GST Return and make the GST refund claimed byWoodgate.[113] Woodgate pleads that this general delay is in breach of the Commissioner'sduties under ss 6 and 6A of the TAA, which includes the duty to protect the integrityof the tax system, Woodgate's right to justice under s 27 of the Bill of Rights Act 1990,and s 46(1)(b)(ii) of the GST Act.[114] The first cause of action goes on to identify two 'administrative decisions'Woodgate says were made by the Commissioner, being:a. To Delay the Disputes Process while he considers whether there is anyevidence to support criminal charges for evasion of tax either againstMr Woodgate and/or Mr Fugle ("Delay Decision");56 andb. That the statutory Time Bar exception in s 108A(3) TAA does applyto the GST Return ("Time [Bar] Decision").[115] Woodgate claims that neither of these decisions are "disputable" under pt 4Aor "challengeable" under pt 8 of the TAA. It also alleges that the Delay Decision wasmade after the disputes process was commenced but not completed and that as a result,Woodgate's and Mr Fugle's right to silence in relation to any criminal charge has beenbreached.[116] Woodgate pleads that the Delay Decision and the Time Bar Decision havecaused, and will continue to cause, loss to it. This is particularised as including theprevention of Woodgate from commencing its proposed plans for the Property andsecurity arrangements, and legal costs incurred in relation to the dispute with theCommissioner.56 In submissions, Woodgate identified the email of 2 March 2021 from the Commissioner toMr Weaver and Mr Fugle as the Delay Decision.[117] Under the second cause of action, Woodgate alleges that the Commissioneracted unlawfully in issuing the s 17B Notice, because the information requested wasirrelevant and/or unnecessary, and that the Commissioner breached Woodgate's rightto natural justice by failing to disclose the s 17B Notice and/or the informationobtained under it.[118] Thus, Woodgate makes a broad claim about general delay and also seeks tochallenge four decisions:57(a) the Delay Decision;(b) the Time Bar Decision;(c) the issue of the s 17B Notice; and(d) the refusal to disclose information obtained under the s 17B Notice.[119] As to relief, Woodgate seeks:(a) a declaration that the Delay Decision and the Time Bar Decision arequashed;(b) a declaration that the Commissioner has acted in a procedurally unfairmanner towards Woodgate;(c) a declaration that the Commissioner is required to reconsider the DelayDecision and the Time Bar Decision;(d) a declaration that the Commissioner is to release the GST refund;(e) a declaration that the s 17B Notice is unlawful;57 In its submissions, Woodgate treated the two decisions in relation to the s 17B notice as a singledecision.(f) a declaration that the Commissioner breached Woodgate's right tonatural justice by failing to disclose the s 17B Notice and/or theinformation obtained under it;(g) such further and other relief as is just and equitable;(h) interest on the sum determined to be owing to Woodgate and to becalculable as notified at the point judgment is being entered; and(i) costs.The Commissioner's response[120] The Commissioner's statement of defence establishes that the Commissioneraccepts that he has continued to withhold the GST refund from Woodgate. Hecontinues to investigate the circumstances of the GST Return as he is not satisfied thatWoodgate is entitled to the refund. The Commissioner says that he commenced thedisputes procedure in the TAA but then put it on hold on 3 August 2021 to protectWoodgate's fair trial rights.58 He is yet to decide whether to file criminal charges.[121] In summary, the Commissioner contends that:4.1 Woodgate's application for judicial review of the purported DelayDecision and purported Time Bar Decision is not the correctprocedure in the circumstances of this case as neither decision is anadministrative decision amenable to judicial review;4.2 the judicial review action commenced by Woodgate has beenprematurely taken;4.3 if the Court considers that the purported Delay Decision and purportedTime Bar Decision made by the Commissioner are amenable toreview, then the Commissioner has acted lawfully; and4.4 In respect of the s 17B Decision:4.4.1 The issue of the s 17B Notice was lawful;58 I note here the distinction between the parties as to when they consider the Delay Decisionoccurred. Woodgate references the email of 2 March 2021. The Commissioner instead referencesthe email of 3 August 2021. The significance of this difference is discussed later in the judgment.4.4.2 The information required in the s 17[B] Notice was necessaryand relevant to the administration or enforcement of theInland Revenue Acts; and4.4.3 Any non-disclosure of the s 17B Notice and Spark Responsewas lawful and receipt of this information would be availableas part of the criminal proceedings or civil disputes process.[122] Overall, the Commissioner's position is that all relief sought should bedeclined.The issues[123] The focus of Woodgate's case at the hearing was the four decisions identifiedabove. I do not address the decisions in the order in which Woodgate addressed themin its application, as given my analysis of the application in its totality, it is necessaryto address them in the following order.[124] I first address whether the Time Bar Decision as pleaded by Woodgate isamenable to review. I conclude that it is not amenable to review and therefore do notaddress that claim further.[125] Second, I consider whether the Delay Decision and the general allegations ofdelay are amenable to review. I address these together as the general allegations ofdelay were presented by Woodgate as context for the Delay Decision. I conclude thatthose aspects of Woodgate's application are only amenable to review in terms of theireffect after 25 February 2022, being the period of time following the Commissionerforming the view that the exception to the time bar contained in s 108A(3) applied tothe GST Return. I then address whether Woodgate's claim of undue delay is made outfor the period following 25 February 2022, concluding that it is not.[126] In case my conclusion on the amenability to review of the Delay Decision andgeneral allegations of delay is wrong, I go on to address the allegations of undue delayon the basis that those matters are amenable to review. I do this as a precautionaryapproach and because of the number of broad and sweeping allegations ofunlawfulness made by Woodgate under the heading of procedural unfairness by wayof undue delay. Chief among these are the allegations regarding Woodgate and/orMr Fugle's fair trial rights. This is also necessary because of the fashion in whichWoodgate's application was pleaded, involving only two causes of action,particularised by reference to a larger number of grounds of review. I conclude thatWoodgate's claim of delay has not been made out.[127] Finally, and as the parties agree the two decisions relating to the s 17B Noticeare amenable to review, I consider Woodgate's claim in relation to the Commissioner'sdecision to issue the s 17B Notice and to refuse to provide the information obtainedunder it. I conclude that Woodgate's claim in this respect is not established.AnalysisPreliminary comment[128] As a preliminary point, I comment on the nature of Woodgate's application.The Commissioner characterised Woodgate's application as a challenge to theunderlying tax position taken by the Commissioner in respect of the GST Return,rather than being a challenge to the process of the Commissioner's investigation, andthe fact that the Commissioner has in fact not yet assessed the tax position. TheCommissioner therefore considers that as the challenge to the tax position is still to beresolved, this judicial review proceeding is premature and unnecessary.[129] This characterisation of Woodgate's application may in part rely on the reliefsought by Woodgate that the Commissioner release the GST refund. I do notunderstand Woodgate to be seeking a substantive decision that the GST refund waslegitimate, which is not a matter I could decide in this proceeding. Woodgate likelyseeks that relief because if I was to find that the pleaded Time Bar Decision was bothamenable to review and procedurally unfair or unlawful, the GST return would haveto be accepted as correct and the refund paid out, on the basis that four years has passedsince the end of the relevant return period.[130] Woodgate was very clear in its submissions that it does not seek to determinethe underlying tax dispute, rather it is focusing on a challenge to the decisions set outabove. I proceed on this basis and do not regard Woodgate's application as improperin this sense, as seemed to be contended by the Commissioner.Is the Time Bar Decision amenable to review?[131] As discussed above, Woodgate pleads that the Time Bar Decision is theCommissioner's decision that the exception in s 108A applies to the GST Return. TheCommissioner submits that the Time Bar Decision is not amenable to review, as adecision has not yet been made. He says rather that the formation of an opinion as tothe applicability of s 108A(3) prior to the Commissioner issuing an amendedassessment is merely a step in a process (an administrative device) and only amountsto a provisional view.59 He submits that judicial review of a provisional view isunavailable, and that the purported Time Bar Decision as pleaded by Woodgate doesnot concern a reviewable exercise of a statutory power.60[132] The Commissioner submits that a formal decision would only be made if andwhen the Commissioner decides to amend the GST Return, because that is when thestatutory power to reopen the time bar is exercised. He says that a finding that theTime Bar Decision is not amenable to review would not prejudice Woodgate's abilityto contest the basis for that decision when it is eventually made, through the challengeprocess, because, in effect, Woodgate continues to be able to take the underlyingsubstantive tax decision right through the disputes and challenge processes. TheCommissioner also accepts that at that time, should the Commissioner ultimatelyamend the GST assessment, Woodgate would have the ability to reject theCommissioner's view of the application of s 108A(3), and judicially review thatdecision.61[133] As such, the Commissioner submits that the relief sought in respect of the TimeBar Decision is futile, as the Commissioner cannot be directed to reconsider a decisionthat has not been actually made. He says that letting the disputes process continue onits own terms will effectively grant the remedy sought by Woodgate.59 Musuku v Commissioner of Inland Revenue [2015] NZHC 678, (2015) 27 NZTC 22-005 at [27]and [29].60 At [36].61 As in Auckland Institute of Studies Ltd v Commissioner of Inland Revenue (2002) 20 NZTC17,685.[134] Woodgate submits that the Time Bar Decision is amenable to judicial reviewas it is not a disputable decision. Woodgate submits that:625.18 Due to a quirk of legislative history, the Commissioner's reopeningdecision with respect to the GST time bar under s 108(3) of the TAAwas formerly expressly excluded from being a disputable decision, byvirtue of s 138E of the TAA; as such, that decision was only amenableto judicial review and not dispute or challenge. By virtue of recentlegislative amendments, decisions under s 108(2) which relate totaxable periods on or after 30 March 2022 are now disputabledecisions.5.19 However, the GST period subject to the Commissioner's Time BarDecision in this case is January 2018. The Time Bar Decision itselfwas made on 17 February 2022. As a result, Woodgate submits thatthe Time Bar Decision (as it relates to a taxable period prior to30 March 2022) is not a disputable decision under s 138E as theformer legislation applies to this case (not the recent amendments tothat section that would make the decision disputable if made later intime).[135] This analysis is correct. Section 209(2) of the Taxation (Annual Rates for2021–22, GST, and Remedial Matters) Act 2022 (the Amendment Act) removeds 108A of the TAA from the operation of s 138E(1)(e)(iv), but only for taxable periodsstarting on or after the day on which the Amendment Act received Royal assent.63[136] This means that for taxable periods prior to 30 March 2022 (the date on whichthe Amendment Act received Royal assent), decisions under s 108A are considered tobe matters which are unable to be challenged within the pt 8A process. As in thepresent case the relevant taxable period is prior to 30 March 2022, a decision by theCommissioner in respect of the GST Return pursuant to s 108A of the TAA is not adisputable decision, and is unable to be challenged within the pt 8A process.[137] Woodgate's submission is that it is currently precluded from challenging theTime Bar Decision because of the Commissioner's view that it must only do sothrough the challenge process. However, Woodgate says that the inordinate delay inprogressing the dispute applies equally to the Time Bar Decision, and that the62 I note that the Commissioner agreed in submissions that the Time Bar Decision does not constitutea disputable decision.63 Taxation (Annual Rates for 2021–22, GST, and Remedial Matters) Act 2022, s 209(3).Commissioner's failure to progress the dispute additionally makes the Time BarDecision amenable to review, as a matter of procedure.[138] I prefer the Commissioner's submissions on this point. I do not consider thatthe Commissioner has in fact exercised the power contained in s 108A(3). It is helpfulto set out aspects of the section again:108A Time bar for amending GST assessment(1) Subject to this section and section 108B, if a taxpayer provides a GSTtax return for a GST return period and an assessment has been made,the Commissioner may not amend the assessment to increase theamount assessed if 4 years have passed from the end of the GST returnperiod in which the tax return was provided.(2) [Repealed](3) The Commissioner may, at any time, amend an assessment to increasethe amount of the assessment if the Commissioner considers that theperson assessed has knowingly or fraudulently failed to disclose to theCommissioner all of the material facts that are necessary fordetermining the amount of GST payable for a GST return period.[139] The exercise of the power contained in subs (3) occurs at the time that anassessment is in fact amended. This has not yet happened, with the Commissionermerely coming to the view that an exercise of the power in subs (3) would be availableto him.[140] In Musuku v Commissioner of Inland Revenue, the plaintiff sought judicialreview of the Commissioner's opinion, formed under the now repealed s 108A(2) ofthe TAA (which related to the amendment of income tax assessments). The plaintiffalleged that the Commissioner had made a decision that was amenable to judicialreview. Woolford J did not agree, stating: 64[22] First, Decision 1 and Decision 2 are not in fact decisions. Decision 1is an opinion: "It is the Commissioner's opinion that ". Decision 2 is aproposal: "Outlined below are the adjustments that the Commissionerproposes to make to your tax assessments and the legislation and argumentsin support of the Commissioner's proposed adjustments".64 Musuku, above n 59. I note also that at the time Musuku was decided, s 108A was included withinthe operation of s 138E(1)(e)(iv), and was therefore not a disputable decision, and unable to bechallenged within the pt 8A process.[23] Neither the Commissioner's opinion nor her proposal has, insubstance, adversely affected Mr Musuku's position in the way that anassessment would. Decision 1 and Decision 2 are steps in a process. That iswhy the issue of a SOP by the Commissioner is, in my view, specificallyexcluded from the definition of a disputable decision in s 3 of the Act. It is nota decision which is normally amenable to judicial review. Nor is theformulation of an opinion under s 108(2).[27] An assessment challenged on the basis that it is time barred can bechallenged in the statutory process.[28] Leaving aside the question of the availability of judicial review, I amof the view that the time bar in s 108(1) does not, on its own wording, applyto the issue of Statements of Positions (SOPs). Section 108(1) only preventsthe Commissioner from amending assessments after the time bar period. TheCommissioner has not yet issued any assessment amending the self-assessments made by Mr Musuku when he filed his income tax returns inFebruary 2007.[29] Furthermore, although the Commissioner has formed an opinionunder s 108(2), she has not yet done what she is permitted to in s 108(2),namely, amend an assessment so as to increase its amount. The opinion istherefore a provisional one, which may not be upheld by the Disputes ReviewUnit. In the SOP dated 23 August 2013, the Commissioner sets out one of theissues which she considers will arise as "whether the taxpayer's tax returns forthe disputed periods do not mention income which is of a particular nature orwas derived from a particular source; or, in the alternative, are fraudulent orwilfully misleading, allowing the Commissioner to reopen the time bar".[30] If the Disputes Review Unit is of the view that s 108(2) does not applythen the Commissioner will not amend Mr Musuku's assessments so as toincrease their amount, as she will be barred from doing so by s 108(1).[31] Finally, I am of the view that it is contrary to the whole scheme of theTax Administration Act to allow judicial review of steps in a process exceptin very exceptional circumstances. The Commissioner has bound herself todecisions of the Disputes Review Unit. Only if the Disputes Review Unitupholds the Commissioner's position will she amend Mr Musuku'sassessments. Mr Musuku can then challenge those assessments under Part 8Aof the Act. That challenge will be heard by either the Taxation ReviewAuthority or the High Court on a de novo basis. Both the Authority and theHigh Court can deal with alleged deficiencies in both the validity andcorrectness of an assessment at the same time.(footnotes omitted)[141] As also noted by the Commissioner, the Court of Appeal in Singh stated:6565 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA220, [2014] 3 NZLR 23 at [39].Where matters have reached only a preliminary stage and the powersexercised to that point are unlikely to be influential in the final decision, theCourt will not usually intervene by way of judicial review. There are soundpolicy reasons why that should be so. Where an investigation is merely at theinformation gathering stage, and the party under investigation has adequateopportunity to address issues raised for his or her response, it is most unlikelythat the subject's rights will be adversely affected. Moreover, where there areadequate opportunities for appeal or review of any decision ultimatelyreached, it is not in the public interest that those responsible for conductingpreliminary investigations should be put to the time and trouble of respondingto applications for review. Similarly, the courts should not generally betroubled with judicial review applications in such circumstances.[142] It is this category into which the pleaded Time Bar Decision falls. The basisfor eventual exercise of the Commissioner's power under s 108A(3) is one that goesto the merits of the ultimate assessment, a matter which Woodgate will be able todispute through the challenge process, and which is not a matter the courts are willingto enquire into. The Commissioner's consideration that the exception in s 108A(3)applies, and the internal memorandum to that effect, therefore do not adversely affectWoodgate's position in relation to the eventual assessment. It is therefore not, assubmitted by Woodgate, a decision in respect of which Woodgate is unable topractically avail itself of the statutory mechanisms, and indeed Woodgate accepted inits oral submissions that the pleaded Time Bar Decision may be disputed in thechallenge process.[143] As such, I consider that the Time Bar Decision as evidenced through the emailto Mr Weaver on 9 March 2022 and the Commissioner's internal memorandum is notamenable to review. The formation of that opinion in the internal memorandum:66does not exist in its own right, and has no real meaning or significance untilan assessment is issued. It is but one of the steps to be taken by theCommissioner before he issues an assessment. Any challenge to the opinionshould logically, therefore, be made in the context of a challenge to theassessment as a whole. I consider that this conclusion accords both with thenature and scheme of the Act and with its practical application.[144] The Court of Appeal in Singh acknowledged that:67there may be cases where the Court's intervention by way of judicial reviewmay be justified. Cases of this type are likely to be exceptional but where it is66 Vinelight Nominees Limited v Commissioner of Inland Revenue (2005) 22 NZTC 19,519 (HC) at[26].67 Above n 65, at [40].demonstrated that an error of law or process has occurred which is likely tohave a material influence on the final decision, the Court may be prepared tointervene. The cases we have discussed are illustrative of situations fallinginto this category.[145] However, I do not consider that the Time Bar Decision is such a case. On theevidence before the Court, what has happened is that the Commissioner has formedan opinion as to the applicability of s 108A(3), and then communicated that toWoodgate through Mr Weaver (albeit not until Mr Weaver had suggested the time barwas in effect). There has not been an error of law or process which is likely to have amaterial influence on the final decision, particularly because the challenge processremains. I agree also with the Commissioner's submission that the relief sought willbe provided to Woodgate in the continued operation of the statutory process. It wouldtherefore be inappropriate for the Court to disrupt that process. The fact that thedecision when it is eventually made is not a disputable decision (as agreed by counsel)is irrelevant.[146] I accept that, in fact, a taxpayer is likely to be affected by the formation of anopinion by the Commissioner as to the applicability of s 108A(3), in that a tax disputewill not automatically come to an end because of the time bar. However, theresponsibilities and functions of the Commissioner in respect of taxation support myview, and Parliament has also provided for the Commissioner's power to re-open taxassessments, a power which has:68long been a feature of our tax legislation in circumstances where the taxreturns originally filed by a taxpayer are later found to be fraudulent orwilfully misleading, or where they fail to include assessable income. It reflectsthe fact that our tax system is based on voluntary compliance, and theCommissioner does not have the resources to rigorously audit the returns filedby every taxpayer every year. In those circumstances taxpayers who fail tocomply with their tax obligations should not be permitted to shelter behind thefour year limitation period. Instead, they should be liable to have theirassessments increased so as to reflect their true tax liability.[147] In addition:69The fact remains, however, that until an assessment is issued the taxpayers'substantive legal rights have not been affected. The taxpayer has not lost theprotection of the time bar until such time as an amended assessment is issued.68 Vinelight Nominees Ltd, above n 66, at [24].69 Vinelight Nominees Ltd, above n 66, at [38].Until that occurs the taxpayer is not required to pay any additional tax or totake any other steps unless he or she wishes to do so either.[148] Accordingly, I conclude that the Time Bar Decision as pleaded is not amenableto review.Is the Delay Decision amenable to review?[149] As discussed above, Woodgate pleads the Delay Decision as the decision bythe Commissioner to delay the disputes process while he considers whether there isany evidence to support criminal charges against Woodgate and/or Mr Fugle.[150] In submissions, Woodgate contended that the Delay Decision was evidencedby the 2 March 2021 email from the Commissioner to Mr Weaver referred to above.The Delay Decision has been characterised by the Commissioner as the email of3 August 2021 informing Woodgate through Mr Weaver that the disputes processwould be put on hold pending the completion of the Commissioner's investigation asto whether he would file charges against Woodgate and/or Mr Fugle.[151] The difference between these dates seems to reflect that following the 2 March2021 email, there continued to be discussion between the parties about whether asuitable waiver of fair trial rights was going to be provided to enable the civil taxdispute process to continue. This prospect came to an end when Mr Weaver wrote tothe Commissioner on 30 July 2021 indicating a change of position—that no waiverwould be forthcoming, and the Commissioner had already breached Woodgate's andMr Fugle's fair trial rights.[152] For the purpose of Woodgate's claim, the focus is properly on the email fromthe Commissioner that it relies on, dated 2 March 2021. It is apparent that progress inthe civil tax dispute effectively ceased as at that date. However, I consider also thatthe evidence before the Court indicated that discussions about whether there would befurther progression continued until at least 3 August 2021, and this needs to be takeninto account when looking at the facts in their totality. In respect of the allegations ofgeneral delay, Woodgate says that the Commissioner has not diligently progressed thecivil dispute, and has acted in breach of a reasonable expectation that the processproceed promptly.[153] Woodgate contends that the present case is one of a narrow and rare categoryof case that is susceptible to judicial review, as contemplated by the Supreme Court inTannadyce, because there is an arguable flaw in the statutory process that needs to beaddressed.[154] Woodgate submits that it is "stuck" in the statutory process with no mechanismto challenge the Commissioner's failure to progress the dispute. It submits that at thispoint of the process, following the conference phase, and prior to the issue of theCommissioner's SOP, there is no statutory response period with which theCommissioner is required to comply. Nor can Woodgate opt out of the disputes processpursuant to s 89N(1)(c)(vii) as the relevant criteria are not met.[155] As a result, Woodgate says it is unable to act, and must wait for anindeterminate time in order to obtain the right to progress the dispute or challenge theCommissioner's position in respect of the GST Return. Woodgate says that the effectof the Delay Decision is to indefinitely prevent supervision by the Court of the"conformity of activities of government with the rule of law".70[156] Woodgate draws attention to the cases of Almond Properties Ltd vCommissioner of Inland Revenue and Mawhinney v Commissioner of Inland Revenue,submitting that the Court of Appeal and High Court, respectively, considered that incases of inordinate delay a taxpayer could have a remedy by way of judicial review.71Woodgate says that as the Delay Decision is not a 'disputable decision', it cannotchallenge the Delay Decision through the pt 8A challenge process, and judicial reviewmust therefore be available.72 It makes the same submission in respect of the generalallegation of delay. Woodgate says that access to justice has been denied, as it is70 Tannadyce, above n 37, at [4] per Elias CJ and McGrath J (who were the minority).71 Almond Properties Ltd v Commissioner of Inland Revenue (2003) 21 NZTC 18,289 (CA); andMawhinney v Commissioner of Inland Revenue [2013] NZHC 667, (2013) 26 NZTC 21-011.While the taxpayer claims were unsuccessful, Woodgate submits the cases are distinguishable onthe facts and provide useful guidance for the Court.72 See Tax Administration Act 1994, ss 3(1) and 109.otherwise unable to challenge the Commissioner's decision. Woodgate seeks to assertits right to judicial review of the exercise of public power.[157] The Commissioner's submissions on this point were broadly twofold. TheCommissioner firstly said that judicial review was inappropriate and premature in thecircumstances of the present case. Secondly, and in the alternative, the Commissionersubmitted that Woodgate's claim in respect of delay is not amenable to review.[158] As to the first plank of his submissions, the Commissioner contends that theDelay Decision was a procedural decision in the context of the Commissionerconsidering whether to prosecute Woodgate and/or Mr Fugle, which is shown by theevidence to be for the purpose of upholding their fair trial rights. The Commissionersays that judicial review at this point is premature as criminal charges have not beenfiled, prosecution is still being contemplated, and the investigation is still ongoing,with evidence needing to be reviewed.73 He submits that in the event charges are filed,there will be various opportunities for Woodgate to explore the Commissioner'sdecision to delay the disputes process, and the effect that has had on its fair trial rights,as occurred in Commissioner of Inland Revenue v Parore.74[159] The Commissioner also says that judicial review is inappropriate when thestatutory disputes process remains available. He submits that Woodgate's applicationis an attempt to invalidate a future assessment, in a manner that is contrary to thestatutory scheme, which focuses on the correctness of assessments. Particularly, theCommissioner says that s 114 of the TAA (while it does not apply in the present casebecause the Commissioner is yet to make an assessment) is a clear statement that73 The Commissioner relies on Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at[19]–[29], which involved the execution of a search warrant at a medical practice under s 198 ofthe Summary Proceedings Act 1957.The Doctor whose medical files had been seized pursuant tothe search warrant brought a pre-emptive challenge to the legality of the warrant, prior to theconclusion of an investigation by the Ministry of Health into whether any criminal offending hadoccurred. The Court of Appeal considered that judicial review was not the appropriate forum inwhich to adjudicate upon the strength of a possible criminal case, any likely defences, or theexclusion of evidence at a future trial. The Court of Appeal noted that the judicial review waspremature, as the investigation was not yet complete, and various opportunities would have arisenfor the legality of the search warrant to be challenged prior to a trial or during it. It said also that"Judicial review will rarely be appropriate where there is a readily-available alternative remedy",citing G D S Taylor and J K Gorman Judicial Review: A New Zealand Perspective (2nd ed,LexisNexis, Wellington, 2009) at [5.28], and also the courts' general reluctance to interfere inmatters of prosecutorial discretion.74 Commissioner of Inland Revenue v Parore [2021] NZDC 17946.administrative compliance is not ordinarily a basis to undermine an assessment.75 Hesays therefore that an administrative law remedy in this context would cut across theintention of Parliament to make the TAA a code, to provide an exception to the timebar in s 108A of the TAA, and not to impose a timeframe on moving the processbeyond the conference phase.[160] The Commissioner submits that s 109 of the TAA makes it clear that thestatutory disputes process provides the sole procedure in which disputes may be aired.He says that it is the exclusive machinery for determining an appeal from anassessment by the Commissioner.76 The Commissioner submits that the disputesprocess is underway, and that Woodgate will have all available opportunities to disputean assessment once it is made, which will include the opportunity for any defect in theprocess to be cured by the appeal process, which is by way of a de novo hearing offacts and law.[161] In respect of the second plank of his submissions, the Commissioner submitsthat the Delay Decision is not a decision made in exercise of a statutory powerordinarily amenable to review, rather it is an administrative decision. TheCommissioner says this decision does not conflict with his responsibility to uphold theintegrity of the tax system, but rather, he is using his best endeavours to protect theintegrity of the tax system including through protecting Woodgate's and/or Mr Fugle'sfair trial rights.77 He says that Woodgate's acceptance of the lack of statutorytimeframes prior to the issuing of the Commissioner's SOP is an acceptance that theCommissioner has not breached any known obligation. He submits that theCommissioner's policy statements create no legitimate expectation that aninvestigation is completed within a specific timeframe, or that a SOP is issued withina specific timeframe and that this is especially so in light of the complexities of thepresent case. The Commissioner also submits he has acted in accordance with(CS 20/04) which has been in existence since July 2020, that is, prior to Woodgateissuing its NOR.75 Tannadyce, above n 37, at [53] per Blanchard, Tipping and Gault JJ.76 At [53] per Blanchard, Tipping and Gault JJ; and Commissioner of Inland Revenue v Michael HillFinance (NZ) Limited [2016] NZCA 276, [2016] 3 NZLR 303 at [43].77 Commissioner of Inland Revenue v Michael Hill Finance (NZ) Ltd [2016] NZCA 276, [2016]3 NZLR 303, (2016) 27 NZTC 22-056 at [31] and [77].[162] The Commissioner also notes the law reform history in relation to thetimeliness of the statutory disputes process. He says it is apparent from that historythat Parliament could have added additional statutory steps into the disputes process(including time constraints for the Commissioner in issuing a disclosure notice andSOP under s 89M of the TAA), had it wished to do so, but it did not.[163] It is clear that the effect of the Supreme Court's decision in Tannadyce is thatthe decisions sought to be reviewed by Woodgate are only amenable to review in theevent that they fall within the 'extremely rare' category of cases described. This meansthat they are only amenable to review in circumstances where:78(a) it is not practically possible for a taxpayer to challenge an assessmentunder pt 8A ; and/or(b) the issue is not the legality, correctness or validity of an assessment butsome suggested flaw in the statutory process that needs to be addressedoutside the statutory regime, because it is not provided for within it.[164] In Mawhinney, the plaintiff sought summary judgment for a GST refund thatthe Commissioner had withheld pursuant to s 46 of the GST Act. The plaintiff allegedimplicitly that the Commissioner had delayed in investigating the relevant GST return,although his main contention was that the Commissioner had not notified him of theintention to exercise the power of investigation under s 46(2) of the GST Act withinthe required 15 working days, and that therefore the withholding of the refund wasunlawful.[165] Associate Judge Bell addressed the issue of when the Commissioner is requiredto pay a GST refund, concluding (as the Supreme Court did in Contract Pacific79) thats 46 provides that the Commissioner is only required to pay a GST refund on twooccasions, being:8078 See Tannadyce, above n 37, at [58]–[61] per Blanchard, Tipping and Gault JJ.79 See above n 6.80 Mawhinney, above n 71, at [47].(a) under s 46(1)(a), not later than 15 working days after the receipt of areturn; or(b) under s 46(1)(b), the day after the working day on which theCommissioner is relevantly satisfied that a person has complied withtheir tax obligations.[166] Bell AJ stated:81The obligation to refund under s 46(1)(a) is suspended once the Commissionergives a request in time under s 46(4) or notifies an investigation in time unders 46(5). The section does not say so expressly, but it follows as a matter ofnecessary implication. [that] s 46(1)(b) states the only time when asuspension under s 46(1)(a) ceases to have effect. There is no basis for readinginto s 46 another time when a suspension comes to an end.[167] Bell AJ then went on to consider "the remedies available to a taxpayer vexedat delay by the Commissioner in carrying out an investigation while a refund iswithheld under s 46".82 He considered that the absence of other remedies might be anindication that Parliament intended that refunds should be paid within a set time.Bell AJ recorded that in submissions, the Commissioner had proposed the availabilityof judicial review in circumstances of delay. Bell AJ said:83The potential for judicial review arises because the normal ways to challengea disputable decision of the Commissioner, by the disputes procedures underPart 4A and by challenge under Part 8A of the Tax Administration Act, are notavailable. Delay by the Commissioner in coming to a decision is not adisputable decision under s 3 of the Tax Administration Act, because it cannotbe challenged under Part 8A. Section 138E sets out matters that cannot be thesubject of challenge under Part 8A. One of those is a matter under Part 7 ofthe Goods and Services Tax Act (which includes s 46) which is left to thediscretion, judgment, opinion, approval, consent or determination of theCommissioner – s 138E(1)([e])(v). The Commissioner cited TannadyceInvestments Ltd v CIR as authority that judicial review might lie where amatter falls outside the statutory scheme of dispute and challenge. TheCommissioner did not elaborate on what a taxpayer would have to establishto obtain judicial review when there was a delay in an investigation.(footnotes omitted)81 At [47].82 At [50].83 At [50(b)].[168] Bell AJ's conclusion in response was:84Faced with a leisurely investigation by the Commissioner, a taxpayer mightnot take much heart from being advised that he or she can follow the matterup by complaining to the department or by trying judicial review. The taxpayermight complain that one remedy is only informal and that the other isexpensive and unwieldy. All the same, even if the tax legislation does notcontain express provisions to address delays by the Commissioner, it is not forthe courts to engraft new provisions. That is for Parliament. I am not persuadedthat s 46 can be read to impose a duty on the Commissioner to make a refundoutside s 46(1)(a) and (b).[169] Woodgate's view is that Bell AJ's conclusion acknowledges the possibility ofjudicial review in circumstances of delay, where there are no other available remedies,and in the present circumstances there are no other available remedies, meaning thatjudicial review is available.[170] While acknowledging the existence of judicial review as an alternative possibleremedy, Bell AJ also said that to impose a duty on the Commissioner relating to delaywould be inappropriate in the absence of express provision by Parliament andaccordingly the Commissioner had an arguable defence against the summary judgmentclaim.[171] There is no discussion in Contract Pacific or Mawhinney of the four year timebar provided for in s 108A of the TAA. The Supreme Court was not required to addressan issue of alleged delay. Nor strictly was it required in Mawhinney, although, as canbe seen in the above quotations, it was a matter of concern to Bell AJ as to how ataxpayer might address delay on the part of the Commissioner given the properinterpretation of s 46. Section 108A shows that Parliament has turned its mind to howlong the Commissioner may take to amend a GST return. The Commissioner has afour year period, if he has appropriately complied with s 46. If the Commissioner failsto amend the GST return within that period, s 108A(1) prevents the Commissionerfrom making an amendment to increase the amount assessed.[172] While the Supreme Court concluded in Contract Pacific that the properinterpretation of s 46 allows the Commissioner not to pay a GST refund until the day84 Mawhinney, above n 71, at [51].after the working day on which the Commissioner is relevantly satisfied that a personhas complied with their tax obligations, in my view, s 108A(1) places an expresslimitation on the timeframe available to the Commissioner. If the Commissioner is not"relevantly satisfied" within the four year period, he will lose the opportunity to amenda GST return.[173] This will be the case whether or not the Commissioner has engaged in thedisputes procedure under pt 4A of the TAA. The relationship between the investigationprocess contemplated by s 46 of the GST Act and the dispute procedures in the TAAis not entirely clear on the bare wording of each statute.85 The two processes are notlinked by primary legislation. As mentioned earlier, it is certainly the case that thedispute procedures may apply to a dispute over a GST return, but it would also seempossible that the Commissioner could be content to use the s 46 powers ofinvestigation without embarking on the disputes procedure through issuing a NOPA.Indeed, in the present case, Woodgate was concerned about the time the Commissionertook to commence the disputes procedure through issuing a NOPA, the Commissioneradvising Woodgate that it was investigating the position pursuant to s 46 of the GSTAct, and that usually such investigations into consideration of the general avoidanceprovision in the GST Act are to be completed within 28 months.[174] Irrespective of the steps taken to investigate or resolve a dispute over a GSTreturn, I consider that the strict four year time limit for the Commissioner to amend aGST return is a significant factor in considering whether any remedy by way of judicialreview would be required in accordance with the Tannadyce exceptions. In effect, itprovides an explicit protection for the taxpayer, so that despite the fact Parliament hasnot imposed timeframes for some steps within the dispute resolution process, such asproviding a NOPA or SOP, there is not such a flaw in the statutory process that it couldproperly be regarded as amenable to review. Contrary to Woodgate's submissions,then, the Commissioner cannot indefinitely consider the legitimacy of a GST refund.85 However, the Commissioner does appear to draw linkages through the publication of policydocuments, so it can be said that the Commissioner has shown an intention to use the detaileddispute procedures set out, following an exercise of his investigatory powers in s 46 of the GSTAct. See Disputes Process (SPS 23/01), 24 February 2023 at [34]; Disputes resolution processcommenced by the Commissioner of Inland Revenue (SPS 16/05), 10 October 2016 at [26]; andContract Pacific, above n 6 at [26].[175] For these reasons, I consider that the Delay Decision, made on 2 March 2021,being approximately a year before the Commissioner formed the view that theexception to the time bar in s 108A(3) applied, is not amenable to review as sought byWoodgate, at least in terms of its effect up until 25 February 2022.[176] In the present case, however, the Commissioner has invoked the exception tothe time bar in s 108A. If the Commissioner, "considers that the person assessed hasknowingly or fraudulently failed to disclose to the Commissioner all of the materialfacts that are necessary for determining the amount of GST payable for a GSTreturn period", no period is specified for the Commissioner's amendment of theGST return to increase the amount assessed. This is perhaps not surprising giventhe public policy reasons that support full investigation in such circumstances.Indeed, it might be said that, as in the context of limitation periods, allegations offraud may be investigated without a time limit.86 Nonetheless, it is appropriate toconsider the amenability to review of the Commissioner's actions, or inactions,from that point onwards, given Woodgate's claim that it continues to be "stuck" inthe disputes process after this point as a result of the Commissioner's decision to pausethe civil dispute process.[177] I therefore turn to addressing whether an allegation of general or specific delaycan lie against the Commissioner in the period of time after the four year periodspecified in s 108A(1) has passed, and where the Commissioner has formed a view asto the applicability of s 108A(3).[178] It is clear that delay in a general sense does not pertain to a disputable decisionas defined by the TAA—and that pt 8A does not confer a right of challenge in respectof a matter in s 46 of the GST Act, or ss 89C and 89M of the TAA, which is "left tothe discretion, judgment, opinion, approval, consent, or determination of theCommissioner".87 Whether the Commissioner is relevantly satisfied that a person hascomplied with their tax obligations under s 46(1)(b) or the timing of the issue of aNOPA or SOP pursuant to ss 89C and 89M of the TAA are matters in those provisions86 See Limitation Act 2010, s 48(1).87 Tax Administration Act 1994, ss 138E(1)(e)(v) and 138E(1)(e)(iv).which are left to the discretion, judgment, opinion, approval, consent, or determinationof the Commissioner. They are therefore unable to be challenged in the pt 8A process.[179] That appears to me to create a situation in which a taxpayer, in response todelay after the invocation of s 108A(3), 'cannot practically avail themselves of thestatutory procedure', indicating that in fact judicial review may be available. Insupport of this is the minority's view in Tannadyce that the overriding considerationmust be the obligation on the Commissioner to act lawfully, and the role of the courtsin ensuring the "conformity of activities of government with the rule of law".88Additionally, the Court of Appeal has previously observed that "[n]o doubt in cases ofinordinate delay a taxpayer would have a remedy by way of application for review".89[180] This all, however, sits against the Supreme Court's view in Contract Pacificthat a refund will never become payable until the exception in s 46(1)(b) of the GSTAct is satisfied. This seems to be an indication that allegations of delay cannot lie asagainst the Commissioner in relation to the payment of a GST refund which theCommissioner has investigated and/or is investigating, pursuant to ss 46(2) of theGST Act and s 108A(3) of the TAA. However, as discussed above, the Supreme Courtwas not required to consider the impact of s 108A of the TAA in this context. I alsosee some merit in the Commissioner's argument that as an eventual assessment is notinvalidated by an administrative failure, an intervention on the basis of anadministrative failure prior to the making of an assessment by the Commissioner hasthe potential to cut across Parliament's intent to make the TAA a code for the resolutionof tax disputes.[181] However, I do not agree with the Commissioner's submissions in the followingrespect. Counsel submitted:As part of the challenge procedure, any defect in the process leading up to themaking of the assessment will be cured by a Hearing Authority consideringthe correctness of the Commissioner's assessment. If the Commissioner'sproposed disallowance of the GST refund claimed in the GST Return is heldto be correct by a Hearing Authority, the delay complaint will be cured by thede novo process.88 Tannadyce, above n 37, at [5] and [32]–[39] per Elias CJ and McGrath J.89 Almond, above n 71, at [24].[182] I do not agree that this answers the question of amenability. It is no solution tosay that the eventual re-assessment by a Hearing Authority on a de novo basis willcure an allegation of procedural unfairness in terms of undue delay, because anallegation of that kind does not go to the merits of an assessment, but the process bywhich that has or has not occurred, and when pleaded on the same basis as Woodgate'sclaim, is explicitly prohibited from being challenged in the pt 8A process by way ofs 138E of the TAA. Nor would a substantive reassessment by way of the challengeprocess properly rectify unlawful delay.[183] I did not hear specific argument on the distinction I have drawn between thetimeframe before and after the Commissioner invoked the exception to the time bar. Itmay be that the Commissioner would have argued that Parliament intended notimeframe to be imposed upon his investigation of allegations of fraud, other than theoperation of s 150A of the TAA, which provides a ten year limitation period for filingcharging documents for offences contained in the GST Act and other tax statutes. It isalso likely Woodgate would maintain that the Commissioner cannot take anindeterminate period for such inquiries and so its assertion of undue delay remainsvalid.[184] For both the reasons discussed above and this factor, I consider that it isappropriate for me to proceed on the basis that Woodgate's allegations relating to theDelay Decision and general delay, since the Commissioner's invocation of theexception to the time bar in s 108A(3) on 25 February 2022, fall within that rarecategory of cases described by the majority in Tannadyce, in that, not only isWoodgate's claim directed to procedure but it is not practically able to avail itself ofthe statutory procedure, by reason of s 138E. The issue is not the legality, correctnessor validity of an assessment but a suggested flaw in the statutory process that needs tobe addressed outside the statutory regime, because it is not provided for within it. Iconsider that the fact that Parliament has not set out an express timeframe for thecompletion of certain steps of the pt 4A process is not determinative of the issue ofwhether review is available for undue delay in those circumstances, as a matter ofprinciple.[185] I do not consider, as a matter of principle, that the Commissioner, havingformed a view of the applicability of the exception contained in s 108A(3), may alwaystake as long as he wishes in order to:(a) delay the commencement of the disputes process by delaying the issueof a NOPA;(b) delay the progression of the disputes process, by delaying the issue ofan SOP; or(c) delay by endlessly investigating on the basis that he is not satisfied thata person has complied with their tax obligations.90[186] Accordingly, I conclude that the Delay Decision as pleaded in the present caseas it affects Woodgate from 25 February 2022, is amenable to review.[187] I now turn to whether Woodgate's claim of delay, as it relates to the period after25 February 2022, is made out. Then, in the alternative, and for the purpose of fullyaddressing Woodgate's claim, I go on to consider whether, if my conclusions onamenability are incorrect, Woodgate's claim of delay is otherwise made out.Is Woodgate's claim of delay made out in respect of the period after 25 February 2022?[188] The question under this heading is whether there has been undue or unlawfuldelay in the resolution of the civil tax dispute, in the period following 25 February2022, as a result of the Delay Decision, or other general delay. That is the issue becauseof my conclusions on amenability.[189] Woodgate's first statement of claim was filed on 25 May 2022. That is the dateit commenced this proceeding, being a period of three months following the formationof the Commissioner's view that the exception in s 108A(3) applied. I do not considerthat the fact that no further developments had occurred between February andMay 2022 means that the Commissioner has countenanced undue delay or acted90 Under s 46(1)(b) of the GST Act and s 108A(3) of the TAA, respectively.unlawfully. A period of approximately two months is simply not long enough on thefacts to be described as undue delay, regardless of the nature of the events that led thedispute to be unresolved by May 2022.[190] Accordingly, I consider that Woodgate's claim of delay, both generally, and asit relates to the Delay Decision, to the extent those matters are amenable, must fail.[191] I note for clarity, that my conclusion in this respect is not to say that allegationsof delay can never lie against the Commissioner following the formation of an opinionthat s 108A(3) applies, but simply that in the present case, there has at this stage beenno delay by the Commissioner, in light of Woodgate's commencement of thisproceeding.[192] I now turn to whether Woodgate's claim of delay is made out, if in thealternative, my conclusions on amenability are incorrect.If the conclusions on amenability in relation to the Delay Decision and general delayare incorrect, is Woodgate's claim of delay made out under the grounds of illegalityand procedural unfairness?[193] Woodgate submits that the Commissioner has breached implied statutoryduties and common law duties to act promptly. It says that Woodgate and itsrepresentatives throughout the process have engaged with the Commissionerfulsomely and provided all the relevant information. Woodgate says that theirapproach has been in accordance with the "all cards on the table" approach to the earlyresolution of tax disputes mandated by s 89A of the TAA. It says also that theCommissioner has not adopted an approach consistent with his policy statements, butinstead one that is procedurally unfair. Woodgate submits that the Commissionerdeclined to progress the dispute in a timely manner. Particularly:(a) a NOPA was not issued for over 30 months after the GST Return wasfiled;(b) the Commissioner is still yet to issue a SOP, disclosure notice, orchallenge notice;(c) the Commissioner has failed to meet all notified and self-imposeddeadlines;(d) Woodgate reiterated its concerns regarding timeliness on numerousoccasions;(e) Woodgate filed complaints with the Commissioner's ComplaintsManagement Service;(f) Woodgate co-operated fully throughout the process; and(g) the Commissioner has not complied with his responsibility to promoteand give effect to the objectives in ss 6 and 6A of the TAA.[194] Woodgate describes the Delay Decision as a "decision to neglect or refuse toprogress the Tax Dispute while the Commissioner, without any apparent urgency,decides whether to exercise his prosecution powers".[195] Woodgate submits that the Commissioner's concern to protect Woodgate andM Fugle's fair trial rights has come too late, and that the Commissioner is alreadyunable to properly commence criminal proceedings. Woodgate says that this is thecase because the civil dispute had been progressing for a period of three years prior tothe contemplation of criminal proceedings, during which time fulsome disclosure hadalready been made to the Commissioner. Woodgate says that the Commissioner hasbrought about a situation where it and Mr Fugle, in order to preserve their position incivil proceedings, were required to disclose their defence to the proposed criminalproceedings.91 Woodgate submits this arose when the Commissioner obligedWoodgate to issue a NOR. It describes the Commissioner's regard to their fair trialrights as "legally erroneous".[196] Woodgate submits that the absence of an express timeframe does not changethe position that the Commissioner is required to complete the statutory procedures91 See R v Safi, above n 53; Skinner v R [2016] NZSC 101, [2017] 1 NZLR 289; Wilson v R [2015]NZSC 189, [2016] 1 NZLR 705; and Commissioner of Inland Revenue v Parore [2021] NZHC3405, (2021) 30 NZTC 25-013 at [57] and [72].promptly.92 It submits that this duty of promptness affects the integrity of the taxsystem as a whole, and that the existence of the statutory time bar in s 108A(3)enforces this.[197] Woodgate also submits that the Commissioner cannot refuse to exercise hisstatutory powers, and that by pausing the tax dispute at the time an SOP is meant to beissued, when no specific deadline applies, and pending potential prosecution, theCommissioner has done so in a manner contrary to the duty to act promptly, in whichWoodgate has a legitimate expectation.[198] The Commissioner submits to the contrary that he has acted lawfully, and thatWoodgate has conflated the many parts of the statutory investigation process. TheCommissioner explains the delay in resolution as being a result of:(a) Woodgate's refusal to acknowledge that the s 46 letter had been issued;(b) Woodgate's significant correspondence designed to apply pressure tothe Commissioner;(c) the impact of COVID-19 on the Commissioner's resources, and theeffect of the prioritisation of COVID-19 support work;(d) Woodgate's timely responses not including all of the informationsought by the Commissioner;(e) Woodgate's ungenuine offers to assist in obtaining information;(f) Woodgate's failures to provide the requested and required information;(g) Woodgate providing inconsistent advice through both Mr Weaver andMr Fugle engaging in parallel discussion and overlappingcorrespondence with the Commissioner, stretching the Commissioner'slimited resources; and92 See Commissioner of Inland Revenue v Wilson (1996) 17 NZTC 12,512 (CA) at 12.(h) the complexity of the investigation.[199] The Commissioner does not accept that there has been inordinate delay. Rather,the Commissioner maintains that Contract Pacific establishes that where a timelynotice is issued under s 46(1)(b) of the GST Act, a refund does not become payableuntil the Commissioner is 'relevantly satisfied' that the amount claimed is refundableand a person has complied with their tax obligations.93 He also relies on the previouslydiscussed view from Mawhinney v Commissioner of Inland Revenue that:94even if the tax legislation does not contain express provisions to addressdelays by the Commissioner, it is not for the courts to engraft new provisions.That is for Parliament. I am not persuaded that s 46 can be read to impose aduty on the Commissioner to make a refund outside s 46(1)(a) and (b).[200] The Commissioner submits that he remains unsatisfied with the GST Return,and that the process adopted has been consistent with standard practice. He disputesWoodgate's view that he is not complying with the purposes of the TAA.[201] As to the effect of the Delay Decision, the Commissioner submits that hisapproach is consistent with both Safi and Parore, and that Woodgate effectively gavehim no other choice but to delay the disputes resolution procedure to ensure Woodgateand/or Mr Fugle's fair trial rights were not prejudiced. He says also that it is prematureto consider whether or not Woodgate and/or Mr Fugle's fair trial rights have actuallybeen prejudiced because the criminal proceedings are as yet hypothetical. He submitsthat he has acted so as to preserve their fair trial rights.[202] There are then essentially then two contentions. The first is that the decision to'pause' the dispute processes on the basis that the Commissioner is contemplatingcriminal proceedings is improper, (a): because it compounds the effect of the generaldelay; and (b): because there has already been a breach of Woodgate and/or Mr Fugle'sfair trial rights. The second contention, drawn out in Woodgate's oral submissions, isthat the Commissioner has unduly delayed the resolution of the tax dispute in a generalsense, in breach of an implied duty to act promptly, arising from a number of allegedsources. Before addressing each issue, I briefly recap the factual context.93 Contract Pacific, above n 6 at [12]–[14], and [30].94 Mawhinney, above n 71, at [51].[203] The GST Return was filed on 2 February 2018. The dispute that has arisen asa result remains unresolved. Woodgate alleges that this is because of theCommissioner's lack of action. The Commissioner alleges that Woodgate has notcooperated fully, and that his resources at various points since 2020 have beenhampered by the need to complete COVID-19 related work which had to be givenpriority. Since 2018, Woodgate has continually pressed the Commissioner to proceed,and expressed frustration at the fact that the Commissioner often missed his self-imposed deadlines. The Commissioner in response has said that the investigationremains ongoing.[204] Then, the Commissioner, following the insistence of Mr Fugle and Mr Weaver,agreed to proceed with the civil dispute notwithstanding the contemplation of criminalprosecution, on the condition a waiver was given by Mr Fugle, after having advisedWoodgate that it did not need to file a NOR within the statutory timeframe, due to theway in which that might impact its fair trial rights. Woodgate was advised of thedecision in Safi, and the basis upon which the Commissioner considered thatWoodgate was not required to file a NOR within the statutory timeframe.95[205] Mr Weaver's position on behalf of Woodgate, in his response of 30 July 2021appears contradictory to me. It is apparent from the correspondence between theparties that the Commissioner's insistence on a waiver stemmed entirely fromMr Fugle's desire to progress with the civil dispute notwithstanding the threat ofcriminal prosecution, and as a result of the decision in Safi. In such circumstances, andwhere Mr Fugle wished to progress the civil dispute, a waiver was undoubtedlynecessary and proper, regardless of the effect that might have had on the ability of theCommissioner to, in time, prosecute Mr Fugle and/or Woodgate, because theCommissioner is only prevented from doing so if a shortfall penalty is actuallyimposed – which would only result at the conclusion of civil proceedings.96 It isunclear to me why as at 30 July 2021, Mr Weaver adopted a contrary position. Thepurpose of the waiver was to allow the civil dispute to proceed notwithstanding thethreat of criminal prosecution, which is what both Mr Fugle and Mr Weaver repeatedlyemphasised they wished to occur.95 See Tax Administration Act 1994, ss 89K.96 Tax Administration Act 1994, s 149(5).[206] In fact, although not compliant with what the Commissioner required in termsof a waiver, Mr Fugle had already purported to waive his fair trial rights on twoseparate occasions. The Commissioner's NOPA also specifically advised thatWoodgate was not required to comply with the usual statutory timeframe for filing aNOR. In the face of his advice to the Commissioner that Mr Fugle was willing to granta waiver, Mr Weaver then alleged that the Commissioner's insistence on a waiver wasimproper and designed to enable a breach fair trial rights. In fact, the waiver wasnecessary so as to protect the Commissioner from such an allegation, whilst heprogressed the civil dispute, as desired and insisted on by Mr Fugle and Mr Weaver.[207] The relevant correspondence suggests a misunderstanding on the part ofMr Weaver. He seemed to allege that the provision of a NOR had the presumptiveeffect of making the progression of criminal investigation improper. This is despite theCommissioner having clearly advised on several occasions that Woodgate did not haveto comply with the usual requirement to provide a NOR, pending criminalinvestigation. Woodgate was not compelled to provide the NOR.[208] Mr Weaver also argued that the Commissioner had no power to allowWoodgate to file its NOR outside of the statutory two month timeframe, pursuant tos 89K of the TAA. I do not consider that to be correct. The Commissioner's use of hispowers under s 89K was both available and appropriate in the circumstances.Section 89K allows the Commissioner to accept the filing of particular documentsoutside of the applicable statutory timeframe if satisfied that an exceptionalcircumstance has prevented a taxpayer from complying with the relevant timeframe.An exceptional circumstance arises if:97an event or circumstance beyond the control of a disputant provides thedisputant with a reasonable justification for not rejecting a proposedadjustment, or for not issuing a notice of proposed adjustment or statement ofposition, within the response period for the notice.[209] Compelling Woodgate to issue a NOR within the statutory timeframe wouldrisk having the effect of breaching its fair trial rights and those of Mr Fugle. I considerthat this comes within the definition of an exceptional circumstance. The97 Tax Administration Act 1994, s 89K(3)(a)(i).Commissioner did not make an error of law in applying the exception contained ins 89K. I note also that is not a matter that was pleaded by Woodgate to be an error oflaw.[210] Woodgate, of its own volition, filed a NOR. Its fair trial rights (and those ofMr Fugle) required that the criminal proceeding progress prior to the conclusion of thecivil dispute—which is why the Commissioner sought to pause the civil dispute.Mr Fugle then refused to provide the waiver that was necessary for the civil dispute toproceed. The Commissioner explained this, in my view correctly, in an email of3 September 2021, noting:You also consider that Mr Fugle / Woodgate have been "lulled" into providinga NOR however this is not true. In the covering letter with the CNOPA Iadvised that a NOR was not required within the usual statutory time-frame(refer extract below) – you disagreed with this and went ahead and filed aNOR. That is, you provided a NOR on behalf of Woodgate voluntarily. Younow appear to consider that by filling a NOR voluntarily you have impactedMr Fugle/Woodgate's fair trial rights. Given we do not consider the NOR youvoluntarily provided adequately addressed the issues in the CNOPA (referattached letter) it seems unlikely that it would impact your client's fair trialrights in any prosecution action but you were clearly advised of that possibility(refer below). It is still open to you to argue that should you [choose] to do soin any prosecution action. In the meantime, to protect Mr Fugle/Woodgate'sfair trial rights in any prosecution action, the civil dispute resolution processremains on hold.[211] This view was also consistent with the Commissioner's Statement CS 20/04,which was made following the decision in Safi. The Statement provides:4. The Commissioner considers that it is important to ensure that onceprosecution has commenced or is contemplated a taxpayer is notcompelled to respond to an agreement or disputes document issued bythe Commissioner.5. The general approach is that when criminal proceedings havecommenced or are contemplated the taxpayer will be advised of thatposition before they are next required to issue a disputes document tocommence or continue the Disputes Process. For example, by issuinga NOPA in response to an assessment.6. Under section 89K a taxpayer can issue a response outside theresponse period in "exceptional circumstances". They must issue theresponse to the Commissioner as soon as reasonably practicable afterbecoming aware of the failure to issue the response within the requiredtimeframe.7. The Commissioner accepts that preserving a taxpayer's rights incurrent or potential criminal proceedings is an "exceptionalcircumstance" which prevents a taxpayer from responding to theassessment or notice within the applicable response period.8. The Commissioner considers that a taxpayer can elect not to file anoutstanding dispute document until the question of prosecution isresolved. This will delay the requirement to respond and thereforeeither delay the start or pause [of] the Disputes Process.[emphasis in original][212] This policy statement (with which the Commissioner complied) appropriatelytakes into account the concerns of the District Court expressed in Safi. In that case,five criminal defendants alleged that as a result of the civil tax disputes process, theywere effectively compelled to disclose their defence to the criminal charges filedagainst them, in order to protect their position. Judge Collins agreed that there hadbeen a breach of fair trial rights and accordingly granted a stay of prosecution as soughtby the defendants.98[213] In Safi, the Commissioner had raised income tax reassessments unders 89C(eb) of the TAA, and informed the defendants that pursuant to s 89AD(3) of theTAA they had four months within which to dispute the reassessments by issuing aNOPA or those reassessments would become permanent. The defendants in responsefiled a large amount of documentation which provided the basis for their view as tothe source of their income and so disclosed their defence to the criminal prosecution.[214] Judge Collins considered that:(a) at no time were the defendants advised that they did not need to meetthe NOPA requirement, or that they could file a pro forma NOPA;99(b) if the information had truly been voluntarily provided and wasdemonstrably false or could have been fairly argued to have been false,the fact of the provision of the information and its arguable falsitywould have been clearly admissible;10098 R v Safi, above n 53, at [6].99 Safi, above n 53, at [30].100 At [31]–[32].(c) the Commissioner had effectively compelled the defendants to disclosetheir defence in the criminal trial, which was a breach of their fair trialrights and presumptively unfair;101(d) whether innocently or deliberately, the Crown cannot bring about asituation where it can be forewarned ahead of trial what evidence thedefence will call and being so forewarned assert that the trial is fair;102and(e) the Commissioner was well aware of the risks in proceeding the waythat it did.103[215] Judge Collins noted:104The Supreme Court has made clear that if the civil process is triggered beforethe criminal trial fair trial rights will be in jeopardy. The risk of fair trial rights[being breached] will move from risk to fact if the defendants in attempting topreserve their position and assets in the civil litigation provide informationwhich discloses [their] defence to the criminal charges.[216] The Commissioner's approach contained in the Commissioner's Statement CS20/04 provides for such situations, in that a taxpayer is not compelled to providefurther information in the event that a criminal prosecution is being contemplated.That approach was clearly applied in the present case.[217] It is difficult then to see how in present circumstances the Commissioner'sdecision to pause the civil proceedings is able to be described as improper either froma perspective of an allegation of undue delay or an allegation that the Commissionerhas compelled Woodgate to disclose information that has affected its fair trial rights.[218] I consider that the provision of the NOR was voluntary and that Woodgate wason notice as to the likely effect. I do not understand Woodgate to have allegedotherwise. Instead, its submission appeared to be rather that in the conduct of the101 At [34].102 At [36].103 At [44].104 At [45]; in reliance on Skinner v R [2016] NZSC 101, [2017] 1 NZLR 289 at [63]–[66].Commissioner's investigation, from February 2018 through to the date at which thecivil dispute was paused, the Commissioner had already compelled Woodgate to makefulsome disclosure, and that therefore:(a) there was no basis for the Delay Decision; and(b) any criminal prosecution would already have been improper as at thetime the Commissioner notified that the civil dispute had been paused.[219] That submission appears to me to be both vague and to go too far. Woodgatesaid that the point at which Woodgate was required to disclose a position that wouldprejudice its rights at a future criminal trial: was reached, at the latest, when the Commissioner obliged Woodgate toissue a Notice of Responseor, at the earliest, when s 46(2) of the GST Actwas invoked.(footnotes omitted).[220] While the Commissioner's adoption of both civil and criminal methods ofenforcement creates specific duties with which the Commissioner must comply, theposition cannot be that the Commissioner is unable to exercise the powers thatParliament has given him under the civil regime to investigate without first taking anycriminal proceedings through to their absolute conclusion. That would otherwise cutacross the statutory regime, which clearly provides that when a tax obligation isbreached, a taxpayer may be liable to both civil and criminal penalties. The restrictionsplaced on the Commissioner are instead in respect of the order in which he may act.105It would also effectively invalidate the clearly defined powers Parliament has giventhe Commissioner in respect of the taxation regime. In any event, in the presentcircumstances, the Commissioner did not compel or oblige Woodgate to issue a NOR.[221] In Parore, Mr Parore had been compelled to provide a NOPA, was not advisedof his right not to do so, and did not have an opportunity to consult with counsel in105 Tax Administration Act 1994, s 149. A taxpayer may only be liable to both civil and criminalpenalties if they are criminally prosecuted prior to the imposition of a civil penalty, regardless ofwhether that prosecution is successful.relation to the suggested criminal prosecution.106 The Commissioner wascontemplating criminal prosecution from the point at which the civil tax dispute hadbegun.107 Mr Parore was then charged with criminal offending. On appeal from thegrant of a stay of prosecution, Wylie J concluded:108[70] I agree with the Judge that the civil tax dispute process proceeded asignificant way down its path before the prosecution commenced, and that asa result, as he was obliged to do, Mr Parore had either directly or through hisadvisors disclosed a considerable amount of information on the basis on whichhe would defend some of the charges and that he had admitted the actus reusof other of the charges.[71] The minimum standards of criminal procedure recognised in s 25 ofthe New Zealand Bill of Rights Act are available only to a person who hasbeen charged with an offence.[72] When the Commissioner was dealing with the civil dispute, she hadnot charged Mr Parore. However, when she subsequently charged him on 26August 2019, in my judgement, she put Mr Parore in an impossible position.She had used her statutory powers under the TAA to effectively require MrParore to disclose his prospective defence, to deprive him of the right toremain silent, to get him to acknowledge the actus reus of certain of theoffences and to disclose his hand in relation to other of the offences. When thecharges were laid, a fair trial for Mr Parore was already an impossibility. Iagree with observations made by Judge Collins in Safi that, whetherinnocently or deliberately, the Commissioner cannot bring about a situationwhere she is forewarned ahead of trial what defences will be run, whatevidence the defence will call and then, being so forewarned, assert that thetrial is fair.[73] In my view, there was prejudice to Mr Parore when the charges werelaid because his fair trial rights were then engaged but they had already beencompromised.[74] Looking forward, any trial was going to be unfair and it would beunfair were the trial allowed to go through to its conclusion becauseMr Parore's fair trial rights were undermined from the outset.[222] I accept that in Mr Parore's circumstances, that was the appropriate outcome.109Nevertheless, I consider that Parore can be distinguished in the present case for thereasons I will now discuss.106 Commissioner of Inland Revenue v Parore [2021] NZHC 3405, (2021) 30 NZTC 25 at [35].107 At [61].108 Above n 106.109 See Parore v Attorney-General [2023] NZHC 1010 in which Mr Parore was recently awarded$70,989.86 in Baigent's damages consequent on the breach of his fair trial rights, and a further$5,000 for emotional harm.[223] First, as I have already noted, on no construction of the correspondencebetween the parties can it be said that Woodgate was compelled to provide the NOR.It did so voluntarily, having been notified of the District Court's decision in Safi, thatit did not need to provide a NOR, and that the Commissioner was contemplatingcriminal proceedings against both it and Mr Fugle. When Mr Fugle pressed tocontinue the civil dispute, the Commissioner was cooperative. The evidence suggeststhat the Commissioner paused the civil dispute so as to protect Woodgate and/orMr Fugle's fair trial rights.110 That decision was expressly informed by Safi, and nodoubt the cases referred to therein.[224] Second, there is no indication that the Commissioner was contemplating acriminal prosecution prior to the point at which he notified Woodgate that was thecase, which was some time after the investigation had begun, and when the NOPA wasprovided. There is no evidence that leads to an inference that criminal proceedingswere contemplated long before Woodgate was actually notified of that. The evidenceinstead shows that work on considering prosecution did not commence until sometimeafter the NOPA was issued, at least not until 16 November 2020.[225] Third, as criminal charges have in fact not been filed, it would be inappropriatefor the Court in this context to rule on whether the content of the information disclosedby Woodgate is such as to jeopardise fair trial rights in the manner contemplated bySafi, namely whether the Crown is, at the present time, forewarned of the contents ofWoodgate and/or Mr Fugle's potential future defence. Notably, Woodgate failed toparticularise what that information was, or exactly when it was provided to theCommissioner, instead preferring to very generally allege that the standard had beenmet.[226] The Court cannot speculate as to the likely defence to the elements of as yethypothetical charges. If in fact, Woodgate and/or Mr Fugle are charged, it will thenremain available to them to argue that criminal prosecution is inappropriate on thebasis that their fair trial rights have been breached, as their fair trial rights will engageat the time they are charged.111 I consider that any other position would unduly cut110 Compare Parore, above n 106, at [57] and [61].111 New Zealand Bill of Rights Act 1990, s 25.across the statutory regime. I consider that also, at this stage, Woodgate and/orMr Fugle's fair trial rights in this sense remain unimpeded.[227] There is also a basis on which to argue, as submitted by the Commissioner, thatWoodgate has not been completely forthcoming in the provision of informationthroughout the civil dispute. That goes to whether the Commissioner has beenforewarned of the likely nature of Woodgate and/or Mr Fugle's potential futuredefence(s), and tends to suggest that the Commissioner has not been so forewarned.[228] Accordingly, for the reasons above, I conclude that the Commissioner'sdecision to pause the civil dispute process pending contemplation of criminalproceedings was not improper, in error of law, or to the detriment of Woodgate and/orMr Fugle's fair trial rights. It cannot therefore be used to support an allegation ofundue delay.[229] I turn now to the more general allegation of delay.[230] Judicial review on the basis of unreasonable or undue delay relies on alegitimate expectation of a decision within a reasonable time, and a duty to decidewithin a reasonable time.112 What constitutes a reasonable time depends on particularcircumstances. However, delay in decision making is an error of law if the delayrenders the decision divorced from the evidence on which it is based, or where itundermines the rule of law.113[231] Woodgate relied on the following matters in alleging that the Commissioner isunder a duty to issue an assessment and/or progress the tax dispute within a reasonabletime:(a) Section 89A(1)(d) of the TAA provides that the purpose of the disputesprocedure is to "promote the prompt and efficient resolution of anydispute concerning a disputable decision by requiring the issues and112 Graham Taylor Judicial Review A New Zealand Perspective (4th ed, Lexis Nexis, Wellington,2018) at [15.80]; citing Vea v Minister of Immigration [2002] NZAR 171 (HC); and NgunguruCoastal Investments Ltd v Māori Land Court HC Whangārei CIV-2010-404-548, 11 May 2011.113 Maddock v Immigration and Protection Tribunal [2013] NZHC 585, [2013] NZAR 520 at [16];citing Warstler v Department of Labour [2000] NZAR 408 (HC).evidence to be considered by the Commissioner and a disputant beforethe disputant commences proceedings".(b) Much of pt 4A of the TAA is governed by express statutory timeframes.(c) Parliament can be assumed to have intended for the Commissioner toprogress that process in a timely manner in the circumstances, andwithout undue delay.(d) The common law imposes similar expectations of promptness.(e) The Commissioner's general obligations in the administration of thetax system contained in ss 6 and 6A of the TAA.(f) The Commissioner's own policy statements which provide for theongoing and proactive engagement between the Commissioner and thetaxpayer until the dispute falls away.[232] At the heart of the general delay issue is a dispute between the parties as totheir respective levels of engagement with the statutory process, with both sidesalleging they have engaged fulsomely and promptly, and saying the other has not. Iconsider that, like all administrative and legal decision makers, the Commissioner isindeed under a duty to act within a reasonable time. I have expressed my view thatallegations of delay cannot lie against the Commissioner until after the passing of thefour year time period and the invocation of the exception in s 109A. Nonetheless, Iaddress this allegation, in case my earlier conclusions on amenability are incorrect andgeneral allegations of delay can arise against the Commissioner prior to the conclusionof the four year time period.[233] I accept the view of Richardson P in Commissioner of Inland Revenue v Wilson,that:114The imposition of time limits is a central feature of tax administration in NewZealand, as in other jurisdictions. It is part of the scheme and policy of the114 Commissioner of Inland Revenue v Wilson (1996) 17 NZTC 12,512 (CA) at 12.legislation. Without time constraints, administrative chaos and uncertaintywould ensue. The Commissioner could not close the books. Taxpayers wouldnot know where they stood. The setting of time limits and other constraintsthroughout the legislation recognises that the correctness and thequantification of tax liability is not an absolute value.[234] It is also the case that the purpose of pt 4A generally is the prompt resolutionof disputes, and that a Commissioner cannot abuse their statutory powers to undulydelay the resolution of disputes. This is a principle that goes to the overall integrity ofthe administration of the tax regime.[235] Nevertheless, at the current point of the disputes process, the Commissioner isnot in breach of any specific statutory timeframe, and it is equally clear from ContractPacific and Mawhinney that the Commissioner is not compelled to issue a GST refundwithin any particular time, and that it would be inappropriate for the Courts to engrafta specific timeframe onto the legislation. In addition, s 108A(3) of the TAA speaks toanother principle essential to the integrity of the administration of the tax regime—that it would be inappropriate for taxpayers to hide behind the Commissioner's dutyto act promptly when there is a reasonable basis for an honestly held belief that theyhave acted knowingly in a misleading or fraudulent manner.[236] As a result, what the Court must do when faced with a general allegation ofundue delay, as divorced from an explicit statutory obligation to act or decide withina particular timeframe, is look to the particular circumstances of the case and assesswhether there has been undue delay. I now do so.[237] First, I address the Commissioner's reliance on the effect of COVID-19 on hiswork priorities and resources. I acknowledge the extreme effect of the pandemic onall of Aotearoa New Zealand, and the efforts of public officials during the response toit. For a time, the effect of COVID-19 was a reasonable explanation for delay.However, if the point has not already been reached, I consider that the time is fastapproaching when reference to COVID-19 can no longer be considered to be aconvincing explanation for delay in making administrative decisions or exercisingstatutory powers. This is particularly so when in the present case, the GST Return wasfiled approximately two years prior to the first case of COVID-19 recorded inAotearoa New Zealand. This matter has been afoot for some time, and is in need ofresolution.[238] Second, and on the other hand, I am not convinced by Woodgate's assertionsthat it has engaged with the disputes process and the Commissioner's requests forinformation to the best of its abilities. I consider that at times, Woodgate has frustratedthe dispute process, by not providing requested information (particularly to the levelof detail sought), and also by sending significant amounts of correspondence fromboth Mr Fugle and Mr Weaver, some of which was inconsistent. It is also obvious fromthe material filed by the Commissioner and the allegations made in that material thatthe investigation is complex. I accept that when levelling allegations of the magnitudewhich the Commissioner seeks to do in the present case, he is bound to establish aproper evidential basis for those allegations, which in the circumstances may becomplex, and take significant time even in the absence of a global pandemic.[239] Third, in respect of the decision to pause the dispute process, the Commissionermade that decision properly, and for good reason, given the need to protect Woodgateand/or Mr Fugle's fair trial rights. I consider that as a result it would be inappropriateto consider that the Commissioner had countenanced undue and/or unlawful delaywhen the need for delay arose out of rights-consistent action. That in itself cannot beunlawful, or criticised on the basis of delay.[240] Finally, the relief sought by Woodgate in respect of delay is:(a) a declaration that the Delay Decision is quashed;(b) a declaration that the Commissioner has acted in a procedurally unfairmanner towards Woodgate;(c) a declaration that the Commissioner is required to reconsider the DelayDecision; and(d) a declaration that the Commissioner is to release the GST Refund;[241] Declarations that the Delay Decision be quashed and reconsidered wouldeffectively be the Court enabling a breach of Woodgate and/or Mr Fugle's fair trialrights. That would be inappropriate. Further, the Court cannot simultaneously directreconsideration of the Commissioner's decisions and direct release of the GSTRefund. Had I concluded that the Time Bar Decision was made in error in the publiclaw sense, the release of the GST refund might have followed as a matter of process.However, I did not reach that conclusion.[242] I agree with the Commissioner that granting the relief sought by Woodgatewould be contrary to the Commissioner's duty to protect the integrity of the taxsystem, and would cut across clear Parliamentary intent that the TAA is a code for theresolution of tax disputes. It would also invalidate the future assessment that is yet tobe made by the Commissioner.[243] Accordingly, I conclude that the Commissioner has not acted unlawfully orprocedurally unfairly on the grounds of the general allegation of undue delay. Thisground of review therefore fails.The s 17B Notice—was its issue or the refusal to disclose the information obtainedunlawful?[244] As explained earlier, the parties agree that the exercise of the Commissioner'spowers under s 17B is amenable to judicial review. The s 17B Notice in this case wasdirected to Spark, dated 16 August 2019, and stated (in full):I, Joseph West, Customer Compliance Specialist of Wellington being dulyauthorised by the Commissioner of Inland Revenue pursuant to section 7 ofthe Tax Administration Act 1994 ("the Act"), require you to furnish thefollowing information relating to the above person(s) by 13 September 2019.1. All emails to and from the account fugle@xtra.co.nz from1 January 2016 to present.2. All text messages currently held, if more than 3 months are heldwe are happy to discuss.The above information, which I consider both necessary and relevant to thefunctions of the Commissioner, is required in terms of section 17B of the Act(copy attached)Please contact me as soon as you are able, so I can arrange for the provisionof the information to our Digital Forensics Unit ("DFU"). The DFU will[ensure] that any information that may be subject to legal privilege or thatcould be considered tax advice documents are handled appropriately. Furtherstandard information regarding these matters [is] detailed below.If any of the above is covered by legal professional privilege, youshould seek further advice on this matter. If the privilege does applyto any document, please provide a list of all documents for which theprivilege is claimed.Taxpayers also have statutory rights of non-disclosure for documentscontaining tax advice. If any document required to be disclosed underthis notice contains tax advice, you should seek further advice on thismatter.Failure to comply with this notice by the required date advised above couldresult in an offence being committed against the Act. However, no third partymay be convicted of an offence for not providing information to theCommissioner, whether knowingly or not, if that person proves they did nothave that information in their knowledge, possession or control.[245] The Commissioner has confirmed in this proceeding that emails were receivedfrom Spark, but no text messages were ever received from Spark.[246] Mr West has not given evidence in this proceeding. He left the Inland RevenueDepartment in late January 2020. Woodgate, in its oral submissions, took issue withthis, pointing to the lack of information provided by the Commissioner, and suggestingthat it was inconsistent with the duty of candour in a judicial review proceeding.115Woodgate said that information provided by the Commissioner was insufficient tosatisfy the Court that the s 17B Notice had been issued lawfully.[247] The evidence provided by Ms Clancy for the Commissioner states:I do not know the reason why Mr West issued this notice but I do note that theletter of engagement for the liquidation of Farm Holdings dated 18 May 2016is addressed to that email account. However, I consider that Mr Fugle's emailsfor this period of time would be of assistance to the Commissioner'sinvestigation given part of the focus of the investigation involves Mr Fugle'sinvolvement with Farm Holdings, Mr Kamal (as the liquidator of FarmHoldings) and Mr Lundin (for CTS Investment LLC).[248] Ms Clancy also states that the entirety of the documentation obtained has notyet been disclosed as it may prejudice the Commissioner's ongoing investigation.115 See for example Attorney-General v Institution of Professional Engineers New Zealand Inc [2018]NZHC 74, [2018] NZAR 275.[249] Woodgate submits the request made in the s 17B Notice was unlawful as:(a) it was too wide—being a blanket request for all emails sent to and froma personal account for a period predating the transaction in question bytwo years, until a time two years after, and all text messages over anunlimited period, suggesting the Commissioner had no particularobjective in mind;(b) temporally, the Commissioner's only legitimate interest in Woodgateand its affairs capable of grounding a s 17B information request relatesto the transaction with the Property in January 2018;(c) by the time the s 17B Notice was issued, the Commissioner hadobtained considerable information from Woodgate regarding thetransaction and its background, meaning that he should have been ableto particularise the request further than he did;(d) no effort was made to ensure the request only obtained information thatwas necessary or relevant;(e) the Commissioner has not provided an evidential foundation for thebreadth of the request, or substantiated how he took steps to ensure thes 17B notice was lawful, and in the absence of that evidence there is anavailable inference that the power was used for an improperpurpose; and(f) Woodgate was not notified of the request and it is likely that theinformation received contains privileged information, as well aspersonal information not relevant to the Commissioner's objectives.[250] Woodgate claims that the Commissioner is only entitled to request informationthat he considers necessary or relevant.116 It says that the Commissioner has not116 Green v Housden [1993] 2 NZLR 273 (CA); and Commissioner of Inland Revenue v Chatfield &Co Ltd [2019] NZCA 73, [2019] 2 NZLR 832 at [52].satisfied that evidential foundation, and that there must be a limit to his wide-rangingpower to request information. Woodgate relies on the Court of Appeal's view that:117It is elementary law that statutory power must be used bona fide for thepurposes for which it was conferred and that its exercise must not exceed whatis reasonably required in the circumstances of the case.[251] Woodgate also submits that the Commissioner's failure to disclose the materialobtained from Spark is in breach of natural justice, saying that only an order for fulldisclosure of the material obtained will sufficiently sanction the unlawfulness of thes 17B notice. It says that natural justice dictates that Woodgate be appraised of theallegations made against it and the evidence in support. While Woodgate must haveknowledge of all of the acquired information, that does not mean it does not need tobe disclosed. The Commissioner points to s 18(3) of the TAA to withhold the materialit obtained from Spark. That section relevantly provides: the Commissioner is not required to disclose any item of revenueinformation if the release of the information would adversely affect theintegrity of the tax system or would prejudice the maintenance of the law.[252] Woodgate says s 18(3) does not assist the Commissioner as the release ofinformation already known to Woodgate would not "prejudice the maintenance of thelaw".[253] The Commissioner does not accept that it was beyond his statutory powers toissue the s 17B notice, and says that the information in question was necessary andrelevant. He relies on the statement of Wylie J in Chatfield that:118The discretionary power vested in the Commissioner pursuant to s 17 is oneof considerable potency. It is, however, necessary in the public interest. TheCourts have recognised that extensive powers of inquiry are a fundamentalfeature of revenue legislation, as information is generally in the hands oftaxpayers, who may have an incentive to act secretively. The Commissionercan seek information and documents that alert her to lines of inquiry. It hasbeen recognised that the rationale of taxation would break down, and that theburden of taxation would fall only on diligent and honest taxpayers, if theCommissioner could not obtain information about taxpayers who may benegligent or dishonest in respect of their tax obligations.(footnotes omitted)117 Green v Housden, above n 116, at 14.118 Chatfield & Co Ltd v Commissioner of Inland Revenue [2017] NZHC 3289, [2017] 2 NZLR 835at [25].[254] Although the request in this case was wide, the Commissioner also relies onthe Court of Appeal's statement that:119Section 17(1) is concerned with the purpose to be served by the furnishing ofinformation. If it is relevant to make the inquiry as a step towards ascertainingwhether or not there is a liability to tax, the inquiry remains relevant even ifthe answer satisfies the Commissioner that no further step in relation to someof those identified is warranted.[255] The Commissioner then contends that it is the purpose of the request that isrequired to be "relevant or necessary" to "administration or enforcement" for therequest to comply with s 17B. It is not the information received in response to a requestthat needs to be relevant or necessary. The breadth of the request was necessary, asMr Fugle first contacted the Commissioner regarding the purchase of the Property on13 June 2016, and therefore the relevant period was some time before the purchaseactually occurred. The Commissioner submits that this factual background illustratesthat the request was relevant and necessary in his investigation in determining whethera tax avoidance arrangement was in existence, as stated in the s 17B Notice. TheCommissioner also submits that he is required to provide a sufficient factual basis forany allegations of a tax avoidance arrangement pursuant to s 76 of the GST Act, andthe s 17B notice was in pursuit of that purpose. As to the risk of receiving personalinformation, the Commissioner points out that he knew Mr Fugle used the specifiedemail account to correspond with the Commissioner and for business purposes butcould not know whether he also used it for his personal affairs.[256] The Commissioner agrees that the receipt of legally privileged information wasforeseeable, and that this is why the s 17B Notice itself notified Spark that theinformation would be provided to the Commissioner's Digital Forensics Unit so thatany privileged information could be handled appropriately. The Commissioner saysthat whether that occurred is not within the scope of this proceeding, as Woodgate hasnot alleged that the information was handled inappropriately, and it would bepremature to consider the issue, in any event, while the investigation is still ongoing.119 Commissioner of Inland Revenue v New Zealand Stock Exchange [1990] 3 NZLR 333 (CA) at 447.I note that case discussed a predecessor to s 17B, which was s 17 of the Inland RevenueDepartment Act 1974.[257] As to the current withholding of all the information obtained, theCommissioner accepts that natural justice does require disclosure of all theinformation but that it is a matter of timing. He accepts that in civil or criminalproceedings he would be required to disclose the entirety of the information, butsubmits that to do so before he has finalised his position would prejudice theinvestigation. He says that Parliament has not imposed a duty on the Commissioner tosupply all information acquired through a s 17B notice prior to the point at which hewill finalise his position through his SOP.120[258] The Commissioner says that it would be inappropriate to require him to providesuch information before that point, as that would go against his statutory functions,and prejudice ongoing investigations. The Commissioner submits that Parliament hasmade it clear that investigating agencies may withhold information where disclosuremay "prejudice the maintenance of the law, including the prevention, investigation,and detection of offences".121[259] As discussed above, s 17B was preceded by the information gathering powersset out in the former s 17(1) of the TAA. Section 17(1) was considered in Green vHousden and Chatfield & Co Ltd v Commissioner of Inland Revenue.122 In Chatfield,Wylie J discussed the meaning of 'necessary or relevant', considering that 'necessary'means "required or needed".123 Wylie J also accepted that when making a requestpursuant to the former s 17, the Commissioner needed to satisfy himself that the natureof the information sought was or appeared to be "consistent with the grounds of therequest, and that the type of information sought was broadly what would be expectedto be necessary for or relevant to any inquiry of the nature indicated."124[260] It is well established that statutory powers must be used for proper andpermitted purposes and go no further. However, the request for the documents in thiscase did not offend against this principle.120 Tax Administration Act 1994, s 89M(4)(b).121 See Official Information Act 1982, s 6(c); Privacy Act 2020, s 22; Evidence Act 2006, s 70; andTax Administration Act 1994, s 18(3).122 Green v Housden, above n 116; Chatfield, above n 118; affirmed in Chatfield & Co Ltd vCommissioner of Inland Revenue [2019] 2 NZLR 832 (CA), (2019) 29 NZTC 24-007.123 Chatfield, above n 118, at [75].124 Chatfield, above n 118, at [47].[261] While I do not have the relevant documents before me and nor did Mr Westgive evidence, I consider that the information sought (subject to safeguards to protectprivileged information) was necessary and/or relevant to the ongoing investigationinto Woodgate's and Mr Fugle's tax affairs, and specifically the investigation into theGST Return. That is apparent on the facts as they are before the Court and from thenature of the investigation.[262] Although the request was broad, I do not accept Woodgate's submission that itwas too broad because the information sought pre-dated the relevant transaction.Mr Fugle raised the possibility of the transaction with the Commissioner for the firsttime in 2016. It is reasonable to adopt the view, as no doubt the Commissioner did,that email correspondence from that time would be relevant to his investigation of thetransaction as a whole. The fact that the email request extended to 2016 suggests thatthe Commissioner did have a clear object in mind, being the investigation of thecircumstances that led to the filing of the GST Return in their entirety. An improperrequest would have been for all emails ever sent from the account at any time, with nolimitations. But that is not what the Commissioner requested.[263] Woodgate sought to characterise the request for text messages asinappropriately broad in this fashion. However, that request itself was conditionallylimited by a period of three months, a period which is much shorter than the period inrespect of the email request. I consider also that the request for text messages wasappropriately limited and relevant to the Commissioner's investigation. It is clearfrom the surrounding context that the request was in furtherance of obtaininginformation that was necessary and relevant to the ongoing investigation, and I acceptthat this must have been so at the time Mr West issued the s 17B Notice. The issue ofthe s 17B notice cannot be described as an improper use of the Commissioner's widediscretionary power to obtain information for the purpose of functions given to himby Parliament under the taxation regime.[264] The request for such information also outlined a process to ensure thatprivileged information was not disclosed. First, Spark was alerted to the possibility ofsuch information being included and a course for dealing with such information wassuggested. Second, the information in its entirety was to be dealt with by the DigitalForensics Unit. Privileged information would not be used by the Commissioner in anycivil or criminal proceedings, unless it is shown that it was made or brought intoexistence for the "purpose of committing or furthering the commission of some illegalor wrongful act."125 As the Commissioner points out, breach of privilege has not beenpleaded and the appropriate time for such arguments to be made is not now, but ratherin the context of the civil dispute and/or criminal proceedings.[265] Accordingly, I conclude that the Commissioner did not act unlawfully or foran improper purpose in issuing the s 17B notice.[266] I turn now to the issue of non-disclosure.[267] It is fundamental that a person must have an adequate opportunity to know theallegations made against them and the evidence in support. Counsel properly acceptedthat the civil tax disputes procedure engages the fundamental right of natural justice.Every person has the right to the observance of the principles of natural justice by anytribunal or other public authority which has the power to make a determination inrespect of that person's rights, obligations, or interests protected or recognised bylaw.126 Natural justice is an important component of the rule of law.[268] The parties are agreed that Woodgate should be provided with the informationobtained through the s 17B notice. Where they differ is on when that informationshould be provided. I note that the Commissioner has already provided somedocumentation to Woodgate, but has since refused to provide the remainder on thebasis that it is premature for him to do so, and that the provision of the informationwould prejudice the ongoing investigation.[269] The Commissioner relies on s 89M(4), which provides that theCommissioner's SOP must set out with sufficient detail to fairly advise a disputant of:(a) the outline of facts on which the Commissioner intends to rely;125 Tax Administration Act 1994, s 20(1)(c).126 New Zealand Bill of Rights Act 1990, s 27(1).(b) the outline of evidence on which the Commissioner intends to rely;(c) the outline of issues that the Commissioner considers will arise; and(d) the specified propositions of law on which the Commissioner intendsto rely.[270] The Commissioner says that prior to the provision of a SOP, the Commissioneris not required to furnish information in such detail, and that therefore it would beinappropriate for the Court to create or enforce a duty to act to the contrary, and that itwould prejudice the ongoing investigation. The Commissioner submits that it wouldalso undermine the wide discretionary power in s 17B to gather information tofacilitate the proper discharge of his statutory functions. The Commissioner relies alsoon s 18(3) of the TAA, which I have set out above.[271] In the circumstances, I do not accept that the Commissioner has acted in breachof Woodgate's and/or Mr Fugle's rights to natural justice. The Commissioner acceptsthat the relevant information will be disclosed in due course. Woodgate and Mr Fuglecan be taken to have knowledge of that information. They can also be taken, at thisstage of the process, to have a clear idea of the nature of the allegations against them,having received the NOPA, and engaged in significant correspondence with theCommissioner, much of which also reveals the nature of the allegations.[272] Further, I can identify no obligation on the Commissioner in the legislation thatwould require specifically the Commissioner to disclose information obtained vias 17B, other than the time at which a SOP is issued. That appears to have been theintention of Parliament—that by the time a SOP is issued the investigation phase hascome to an end, and the Commissioner is required to furnish all information relevantto the dispute, together with a concise summary of the allegation(s) against thetaxpayer. In my view, it would be inappropriate for the Court to cut across the statutoryregime to require the disclosure of that information prior to the point at whichParliament has mandated that the Commissioner must clearly state its position, andparticularly in the present circumstances, where that is the next step in the process tobe taken.[273] In view of my finding that the Commissioner has no obligation to disclose theinformation at this stage, it is not necessary for me to consider the effect of s 18(3). Ido however observe that requiring the Commissioner to disclose information aboutthe thread of the investigation being pursued may jeopardise the investigation. Furtherconsideration is not necessary on that point. The Commissioner is entitled at this stageof the process to withhold the information. It would be inappropriate for the Court toimpose a requirement to disclose the information where currently there is none. Whileit may be of some concern to a taxpayer that there is the potential for the Commissionerto be in possession of information gained without their knowledge via a third party,that is within the power that Parliament has provided to the Commissioner to effecthis statutory functions. Should the Commissioner act outside of those powers, orbreach fundamental rights in pursuit of those functions, the courts will provide relief.This is not such a case.Relief[274] As I have come to the view that all grounds of Woodgate's application may bedismissed, it is not necessary to address the question of relief.Result[275] For the reasons set out above, Woodgate's application is dismissed.Costs[276] If the parties are unable to reach agreement as to costs, the Commissioner mayfile a memorandum within 15 working days of this judgment, with Woodgate havinga further 15 working days to reply. I will then deal with the issue of costs on the papers.McQueen JSolicitors:Holland Beckett Law, Tauranga for ApplicantCrown Law Office, Wellington for Respondent