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High Court of New Zealand Decisions |
Last Updated: 11 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-004673 [2014] NZHC 1746
BETWEEN
|
THE COMMISSIONER OF INLAND
REVENUE Plaintiff
|
AND
|
BEN NEVIS FORESTRY VENTURES LIMITED
Defendant
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CIV-2013-404-004676
BETWEEN THE COMMISSIONER OF INLAND REVENUE
Plaintiff
AND BRISTOL FORESTRY VENTURE LIMITED
Defendant
Hearing:
|
12 March 2014
|
Appearances:
|
M Evans and R L Roff for Plaintiff
G J Judd QC for Defendants
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Judgment:
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25 July 2014
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JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 25 July 2014 at 4.30 pm
pursuant to R 11.5 of the High Court Rules.
Registrar / Deputy Registrar
Date...........................
COMMISSIONER OF INLAND REVENUE v BEN NEVIS FORESTRY VENTURES LTD [2014] NZHC 1746 [25 July 2014]
Introduction
[1] A decade ago Venning J held that an arrangement known as the
Trinity scheme, under which tax deductions were claimed
in connection with a
forestry investment, amounted to tax avoidance.1 The Judge
confirmed assessments made by the Commissioner of Inland Revenue of tax payable
by investors in the scheme, including the
defendants in this case, Ben Nevis
Forestry Ventures Ltd and Bristol Forestry Venture Ltd. Venning J’s
findings were upheld
in the Court of Appeal2 and the Supreme
Court.3
[2] In this proceeding the Commissioner seeks to have liquidators
appointed to the defendants. She asserts that the defendants
are unable to pay
their debts,4 citing their failure to comply with both
statutory demands and court orders requiring payment of the amounts
demanded.5 Alternatively, the Commissioner claims that it would be
just and equitable that the defendants be placed in
liquidation.6
[3] The defendants have applied to strike out the Commissioner’s
application on the ground that she is not a creditor
of the companies and
therefore lacks standing to bring the proceedings. Alternatively, they seek a
stay of the proceedings. In addition
to the argument that the Commissioner is
not a creditor, they say that liquidation would be premature because there are
decisions
pending on various appeals and separate proceedings on foot that, if
successful, may result in the tax claimed being extinguished.
[4] Rule 31.22(1) of the High Court Rules requires leave to bring these applications. Initially, the defendants did not seek leave but subsequently amended their applications to do so. The Crown did not oppose leave being granted and I
grant the leave required to bring both
applications.
1 Accent Management Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,027.
2 Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 230, (2007) 23
NZTC 21,323.
3 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2
NZLR 289.
4 Companies Act 1993, s 241(4)(a).
5 Companies Act 1993, s 291(1)(a).
6 Companies Act 1993, s 241(4)(d).
The strike out application
The issue
[5] The Commissioner is obliged under the Tax Administration Act
1994 to recover unpaid tax “by suit in the Commissioner’s
official
name”.7 The defendants say, first, that liquidation
proceedings are not a suit for the recovery of tax. Secondly, they
argue
that liquidation proceedings can only be brought by a creditor and the
Commissioner is not a creditor, merely an agent for the creditor.
The
defendants say, therefore, that the statement of claim discloses no
reasonably arguable cause of action, is
likely to cause prejudice or
delay, is frivolous or vexatious or otherwise an abuse of the Court
process.8
The relevant principles
[6] The principles relevant to strike out applications are well
established, having been summarised by the Court of Appeal in
Attorney-General v Prince & Gardner9 and endorsed by the
Supreme Court in Couch v Attorney-General,10 namely:
(a) Pleaded facts, whether admitted or not, are assumed to be true; (b) The cause of action or defence must be clearly untenable;
(c) The jurisdiction to strike out is to be exercised sparingly and only in
clear cases;
(d) The jurisdiction is not excluded by the need to decide
difficult questions of law which may require extensive argument;
(e) The Court should be particularly slow to strike out a claim in any
developing area of the law.
[7] The Commissioner has pleaded as a fact that each defendant is indebted to
her as a result of the Supreme Court’s decision. In the usual course,
this would be assumed, for the purposes of a strike out
application, to be
correct. However, on
7 Tax Administration Act 1994, s 156.
8 High Court Rules, r 15.1(1).
9 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 at 267.
10 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
Mr Judd’s argument, whether the defendants are indebted to the
Commissioner is a question of law. The Commissioner’s
pleading that the
defendants are indebted to her should not, therefore, be assumed to be correct
for the purposes of this application.
[8] Mr Judd also submitted that the Commissioner’s notices of
opposition which assert that she is entitled to recover
unpaid tax “on
behalf of the Crown” contradict the pleading the defendants are indebted
to her. I do not accept this
submission. The question is whether the
Commissioner’s entitlement to recover unpaid tax on behalf of the Crown
confers
the status of creditor for the purposes of liquidation
proceedings. That is the issue raised in both the pleadings and
the notice of
opposition, albeit expressed slightly differently.
The Commissioner’s power to recover unpaid tax
[9] Under the s 6A(2) of the Tax Administration Act 1994
(TAA) the Commissioner is charged with the care and management
of taxes. The
Supreme Court has said of this responsibility that:11
[The] quantification, assessment and collection of tax due remain the
essential characteristics of the Commissioner’s role.
[10] The Commissioner’s core function described at s 6A(2) is
elaborated on in s 6A(3):
In collecting the taxes committed to the Commissioner’s charge, and
notwithstanding anything in the Inland Revenue Acts, it
is the duty of the
Commissioner to collect over time the highest net revenue that is practicable
within the law having regard to
–
(a) The resources available to the Commissioner; and
(b) The importance of promoting compliance, especially voluntary
compliance, by all taxpayers with the Inland Revenue Acts;
and
(c) The compliance costs incurred by taxpayers.
[11] Section 156 confers the power and specifies the method by
which the
Commissioner may recover unpaid tax:
11 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2
NZLR 153 at [18] per McGrath J.
All unpaid tax shall be recoverable by the Commissioner on behalf of the
Crown by suit in the Commissioner’s official name.
[12] The effect of the Crown Proceedings Act 1950 (CPA) is
specifically preserved.12 Section 156 is therefore to be
interpreted consistently with the CPA, which relevantly provides that all civil
proceedings taken by
the Crown may be treated in the same manner in all respects
as proceedings that do not involve the Crown.13
Are liquidation proceedings a debt recovery process?
[13] Although Mr Judd accepted that liquidation proceedings are a
“suit” he did not accept that they were a
recovery process
for the purposes of s 156 TAA. Although there is some divergence in
previously decided cases over this point
I am satisfied that the correct view is
that a liquidation proceeding is a form of debt recovery.
[14] In Volcanic Investments Ltd v Dempsey & Wood Civil Contractors
Ltd Randerson J considered whether a statutory demand was a form of debt
recovery for the purposes of s 79 of the Construction Contracts
Act
2002.14 Randerson J’s decision makes it clear that he
considered both the issuing of a statutory demand and the commencement of
winding
up proceedings to be a form of debt recovery:15
[20] Where the debtor is a company, there is nothing in the [Construction Contracts] Act to suggest the issue of a statutory demand under the Companies Act is not a proceeding contemplated by s 79 for recovery of a debt. It is an integral step in the winding up process and is the usual preliminary to a winding up application under Part 9A of the High Court Rules. An application to set aside a statutory demand is a proceeding “under the High Court Rules”. It is brought as an originating application under r
458D(1)(a)(vi) and falls within the definition of a proceeding under r 3. An application to wind up a company is also a proceeding under the High Court
Rules (RR700A and 700C). I conclude that recovery of a debt by the lawful process of the issue of a statutory demand and the bringing up of winding up
proceedings against the debtor company are “proceedings” contemplated by
s 79.
12 Tax Administration Act 1994, s 164.
13 Crown Proceedings Act 1950, s 121(1).
14 Volcanic Investments Ltd v Dempsey & Wood Civil Contractors Ltd (2005) 18 PRNZ 97.
15 At [20].
[15] In Silverpoint International Ltd v Wedding Earthmovers Ltd, Associate Judge Doogue reached a different view.16 Noting the primary object of liquidation proceedings as being the collection and distribution of assets among unsecured creditors after the payment of preferential debts, the Judge observed that a creditor who participates in any distribution cannot be said to have recovered the money “in the proceedings” which led to the company’s liquidation because the liquidation
proceedings themselves do not result in any order adjudging the defendant
indebted. The Associate Judge considered, instead, that:17
... while liquidation proceedings are de facto used to exert pressure on companies to pay their debts, the end in view and the objective of, such a proceeding is not a “proceeding for the recovery of a debt”. Therefore preliminary step [sic] leading up to those proceedings, the issue of a statutory demand, cannot itself be a “proceeding” within the meaning of s 79.
[16] However, a subsequent decision of the Privy Council is clearly to
the effect that liquidation proceedings should be regarded
as a form of debt
recovery. In Cambridge Gas Transport Corp v Unsecured Creditors of
Navigator Holdings PLC Lord Hoffman said:18
The purpose of bankruptcy proceedings ... is not to determine or establish
the existence of rights, but to provide a mechanism of
collective execution
against the property of the debtor by creditors whose rights are admitted or
established. That mechanism may
vary in its details ... The important point is
that bankruptcy, whether personal or corporate, is a collective proceeding to
enforce
rights and not to establish them.
[17] I am satisfied that liquidation proceedings brought under Part 16 are a form of debt recovery. The Commissioner’s application for an order that a liquidator be appointed is therefore a suit for the recovery of unpaid tax as contemplated by s 156
TAA.
Is the Commissioner a creditor for the purposes of the liquidation
proceedings?
[18] The defendants say that even if the proceedings are a suit for the
recovery of unpaid tax for the purposes of s 156 TAA,
the Commissioner lacks
that standing to
16 Silverpoint International Ltd v Wedding Earthmovers Ltd HC Auckland CIV-2007-404-104, 30
May 2007.
17 At [83].
bring it because
under s 241(2)(c) of the Companies Act only a creditor can bring such
proceedings and the Commissioner is not a creditor.
The defendants’
argument is straightforward; tax is public money and the property of the
Crown.19 Therefore the debt is owed to the Crown. The Commissioner
is not the Crown but merely a statutory agent appointed to collect tax
on behalf
of the Crown.20 An agent charged with the collection of a debt is
not a creditor.
[19] Mr Judd did not exclude the possibility of the Commissioner being a
creditor in respect of the unpaid tax. To the contrary,
he accepted that the
Commissioner could acquire the status of creditor and become entitled to make an
application under s 241(2)(c)(iv)
of the Companies Act. However, he argued
that, in order to do so, the Commissioner would need to bring separate
proceedings for
the recovery of the unpaid tax and obtain a judgment. Only
then, as a judgment creditor, would the Commissioner also have the status
of a
creditor for the purposes of s 241(2(c).
[20] Under Part 16 the liquidation process begins with the
appointment of a liquidator by shareholders,21 the board22
or the Court on the application of specified persons.23 In
this case the only relevant specified person is a creditor; s 241(2)(c)(iv)
provides that:
A liquidator may be appointed by – ...
(c) The Court, on the application of – ...
(iv) a creditor (including any contingent or prospective creditor)
...
[21] “Creditor” is defined in s 240(1):
In this Act, unless the context otherwise requires, –
creditor means a person who, in a liquidation, would be entitled to
claim in accordance with s 303 of this Act that a debt is owing to that
person
by the company; and includes a secured creditor only –
(a) For the purposes of ss 241(2)(c) ...
19 Income Tax Act 1994, s BB1, Public Finance Act, s 2.
21 Section 241(2)(a).
22 Section 241(2)(b).
23 Section 241(2)(c).
(emphasis in original)
[22] Section 303 identifies the debts that a person could claim in a
liquidation:
(1) Subject to subsection (2), a debt or liability, present or future,
certain or contingent, where it is an ascertained debt
or a liability for
damages, may be admitted as a claim against a company in liquidation.
(2) Fines, monetary penalties and costs to which s 308 applies are not
claims that may be admitted against a company in liquidation.
[23] There is no dispute that unpaid tax falls within s 303 as a debt
claimable in a liquidation. Further, some types of unpaid
tax are specifically
recognised as having priority. Section 312(1) provides that:
The liquidator must pay out of the assets of the company the expenses, fees
and claims set out in Schedule 7 to the extent and in
the order of priority
specified in that schedule and that schedule applies to the payment of those
expenses, fees and claims according
to its tenor.
[24] Schedule 7 is headed “Priority of payments to preferential
creditors”. Sub- clause (5) relevantly provides that:
After paying the claims referred to in sub-clause (4), the liquidator must
next pay, to the extent that it remains unpaid to the Commissioner
of Inland
Revenue or to the collector of customs, as the case may require –
(a) Tax payable by the company in the manner required by Part 3 of the
Good and Services Act 1985; and
(b) Tax deductions made by the company under the PAYE rules of the
Income Tax Act 2007; and
(c) Non-resident withholding tax deducted by the company under the
NRTT rules of the Income Tax Act 2007; and
(d) Resident withholding tax deducted by the company under the RWT
rules of the Income Tax Act 2007; and
[25] In my view, the Commissioner is a creditor for the purposes of s 241(2)(c)(iv), notwithstanding the definition in s 240(1). The opening words of s 240(1), “unless the context otherwise requires”, means that the definition is not exhaustive; the context may require “creditor” to be interpreted more widely than is set out and I consider that the context does require a wider interpretation in this case.
I reach this conclusion by reference to the purpose of the Act and the effect
of other provisions relating to creditors.
[26] First, one of the stated objectives of the Companies Act
is:
To provide straightforward and fair procedures for realising and distributing
the assets of insolvent companies.
[27] Mr Judd’s suggestion that the Commissioner cannot claim in a
liquidation for unpaid tax until she has obtained a judgment
for the amount
would run counter to this objective. It would also undermine the purpose and
effect of s 156 and result in significant
duplication of proceedings; the
assessments have already been confirmed by the Supreme Court and further
challenge to them is precluded
by s 109 of the TAA. As a result, the defendants
could have no defence to proceedings brought by the Commissioner. There is,
therefore,
no apparent utility in requiring separate proceedings to obtain a
judgment and Mr Judd did not suggest any. What the defendants
propose is
neither straightforward nor fair, either to the taxpayers concerned or to the
taxpayers funding the litigation. Nor did
Mr Judd address the status of the
Crown as creditor once the Commissioner had obtained a judgment debt; the tax
cannot be owing to
both.
[28] Secondly, requiring the Commissioner to embark on litigation before being able to take steps under s 241(2) in respect of unpaid income tax would see the Commissioner treated differently depending on the kind of tax owing. Under s 312 and Schedule 7(5) the Commissioner is a preferential creditor in a liquidation for the purposes of specified tax debts such as PAYE and GST. On Mr Judd’s approach these taxes must also be debts owing to the Crown, rather than the Commissioner, yet the Commissioner is recognised as a creditor in respect of them. There seems no good reason for the Legislature to have intended that the Commissioner be able to
prove in a liquidation in relation to one form of tax but not
another.24
[29] Thirdly, the definition of “creditor” in s 240(1)
differs subtly from the way it is defined in other parts
of the Companies
Act. In Part 14, which addresses
24 Companies Act 1993, s 312.
compromises with creditors, and Part 15A, which addresses voluntary
administration, a wider definition is used:
Creditor includes –
(a) A person who, in a liquidation, would be entitled to
claim in accordance with s 303 that a debt is owing to
that person by the
company ...
(emphasis added)
[30] On this less restrictive definition the Commissioner would
undoubtedly be a creditor. The reason for a wider definition
in Parts 14 and
15A likely reflects the very different nature of those parts compared to the
liquidation provisions in Part 16. Compromises
with creditors and voluntary
administration lack the coercive nature of liquidation. On one view that might
suggest that the scheme
of Part 17 justifies a much more limited approach to
identifying a creditor. But the recognition of the Commissioner as a
preferential
creditor in Schedule 7 significantly undermines that approach.
Instead, I view the existence of wider definition, coupled with
the fact that a
wider definition is contemplated if the context so requires and the fact that
the Commissioner is a preferential
creditor for some types of tax, as indicating
that “creditor” in s 241(2) is to be interpreted as including the
Commissioner
in respect of tax that she is charged with recovering under s 156
TAA.
Application for stay
[31] The application for a stay of the proceedings is based, first, on
the argument that the Commissioner is not a creditor, which
I have already
rejected. The second ground is that there are appeals and other
proceedings outstanding that may ultimately
result in the tax not being
payable and it would therefore be premature to appoint a liquidator.
Relevant principles
[32] Rule 31.11 permits an application to restrain the publication of advertising and stay further proceedings in relation to the liquidation. Rule 31.11(2), however, provides that:
The Court must treat an application under sub-clause (1) as if it were an
application for an interim application and, if it makes
the order sought, it may
do so on whatever terms the Court thinks just.
[33] The principles relating to an application for a stay in winding up
proceedings are clear. Wallace J summarised them in
Nemisis Holdings Ltd v
North Harbour Industrial Holdings Ltd:25
(a) The Court has an inherent jurisdiction to stay
winding up proceedings where the debt is the subject of
genuine
dispute;
(b) The jurisdiction is an inherent one to prevent the abuse of process.
There is no inflexible rule;
(c) The governing consideration is whether the proceedings suggest
unfairness or undue pressure;
(d) It is a serious matter to stay winding up proceedings and a
decision to do so is not to be made lightly. The onus is on
the applicant and
it is normally necessary to demonstrate “something more” than the
balance of convenience considerations
usually considered on an application for
an interim injunction.
[34] As to the last point, the Court of Appeal made clear in Anglian
Sales Ltd v South Pacific Manufacturing Co Ltd the caution with which an
application to stay a winding up proceeding should be
approached:26
... the right to have a winding up petition determined, being a
right conferred by statute, ought not be taken away except
where the existence
of that very statutory right itself is seriously challenged; that is, where the
challenge can on appropriate
grounds be made to the petitioning creditor’s
status as such. If a challenge were allowed in circumstances short of this,
the
Court would in effect be refusing to give effect to the very right which the
statute has conferred upon a creditor to
have the petition itself
considered. In bringing his petition the creditor is doing no more than
asserting the right which
the statute entitles him to do. In our opinion a
creditor’s right in this respect ought not to rest simply on the balance
of convenience considerations which may be relevant to an application for an
interim injunction. Something more than that is required.
[35] This approach applies even where a stay is sought pending
disposal of appeals.27
25 Nemisis Holdings Ltd v North Harbour Industrial Holdings Ltd (1989) 1 PRNZ 379, citing Exchange Finance Co Ltd v Lemington Holdings Ltd [1984] 2 NZLR 242 (CA); Anglian Sales Ltd v South Pacific Manufacturing Co Ltd [1984] 2 NZLR 249 (CA); Fletcher Development & Construction Ltd v New Plymouth Hotels Holdings Ltd [1986] 2 NZLR 302 (CA); Pink Pages Publications Ltd v Team Communications Ltd [1986] 2 NZLR 704.
26 Anglian Sales Ltd v South Pacific Manufacturing Co Ltd above n 25, at 251 – 252.
The outstanding appeals and proceedings
[36] Mr Judd submitted, first, that the strike out application in this proceeding raises complex issues of law and if the defendants fail on that application (which they have) they are likely to appeal the decision. He suggested that it would be premature to seek the appointment of a liquidator, leaving the prosecution of that appeal to the liquidator appointed. I do not accept this. The issue raised in this appeal cannot truly be described as complex. Nor is it novel; it has been raised and
rejected in other proceedings.28 If there is merit in an appeal
there is no reason that
the liquidator could not consider advancing that.
[37] Secondly, Mr Judd pointed to the pending decisions on appeals heard in March 2014. The first of these concerned a decision by Associate Judge Faire (as he then was) refusing to set aside statutory demands served by the Commissioner in respect of the assessed tax that was the subject of the Supreme Court’s decision.29
The defendants applied to set aside the demands on the ground that there were collateral challenges to Venning J’s 2004 on foot which, if successful, would mean that the shortfall penalties and interest being claimed by the Commissioner would not be owing.30 The Associate Judge considered that the assessments were to be regarded as valid unless and until they were declared invalid.31 That decision was, of course, made against the background of the Supreme Court’s confirmation of the
Commissioner’s assessments and s 109 TAA, which precludes further
challenge to
the correctness of the assessments.
[38] The Court of Appeal also heard appeals against a decision of Katz J striking out the defendants’ proceedings seeking to have Venning J’s 2004 decision set aside on the ground of presumptive bias.32 Katz J considered that this Court was functus officio and she did not have jurisdiction to determine the issue. In reaching her
decision the Judge noted that a previous assertion of
presumptive bias against
27 See e.g. Property Ventures Ltd v Commissioner of Inland Revenue [2010] NZCA 217, (2010)
20 PRNZ 757.
28 Accent Management Ltd v Commissioner of Inland Revenue [2013] NZHC 3197.
30 Bristol Forestry Venture Ltd v Commissioner of Inland Revenue above n 29; Accent Management
Ltd v Commissioner of Inland Revenue above n 28.
31 Following BASF New Zealand Ltd v Commissioner of Inland Revenue [1994] 1 NZLR 172.
32 Ben Nevis Forestry Venture Ltd v Commissioner of Inland Revenue [2013] NZHC 2361, 26
NZTC 21,032.
Venning J on the same ground (the Judge being liable to the Commissioner
in relation to an interest he had in a forestry investment)
had been rejected by
Goddard J in an appeal against Venning J’s refusal to recuse himself from
determining costs on the challenge
proceedings.33
[39] Finally, the defendants have separate proceedings on foot against the Attorney-General seeking relief under the New Zealand Bill of Rights Act (BORA). This claim was brought following Katz J’s refusal to deal with an application to join the Attorney-General into the proceedings seeking to have Venning J’s 2004 decision set aside. Without objection from Mr Judd, Ms Roff described the BORA proceedings claim as being premised on the same allegations of bias as have previously been rejected. Asher J heard the Attorney-General’s application to strike out the proceedings in February 2014 but, by agreement, the matter is being treated as having been stayed pending the outycome of the appeal against Katz J’s
decision.34
Do these circumstances warrant staying the proceedings?
[40] I do not accept that these circumstances justify staying the
Commissioner’s proceedings. This is not an application
for a stay sought
for a short time pending the determination of a genuinely new point where the
decision would assuredly spell the
end of the litigation. There is no reason
to think that if the the outcome of the appeals or the proceeding against the
Attorney-General
in this Court is adverse to the defendants, it will be accepted
as determinative of the defendants’ position. The history
of this matter
shows only that the defendants will continue to litigate, notwithstanding their
insolvent state, until they get the
answer they want.
[41] Further, there is no prejudice to the defendants in the appointment of a liquidator, since they are not trading and have no assets. It was not suggested that, even if the appeals were successful, this position would change. There may be consequences for the defendants’ shareholders but I was not addressed on that aspect
and it would not be a relevant consideration in any
event.
33 Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495.
34 Ben Nevis v Attorney-General HC Auckland CIV-2013-4040-004345, 16 April 2014.
[42] There are, however, very good reasons not to stay the proceedings.
The tax that is outstanding is due under assessments
that were confirmed by the
Supreme Court in 2008. The Commissioner has an obligation to recover the tax
and to ensure the integrity
of the taxation system. The steps she is taking to
do so are entirely orthodox. Nor can there be any sensible suggestion of undue
haste or pressure, given the lengthy period since the Supreme Court’s
decision and the various unsuccessful attempts to collaterally
challenge Venning
J’s original decision.
[43] I am mindful of the Court of Appeal’s caution in Anglian
Sales against too readily precluding the exercise of the
Commissioner’s statutory rights. Although it seems very unlikely that the
tax will be paid, that fact should not be determinative. There is a significant
public interest in maintaining the integrity of the
taxation system through the
resolution of unpaid tax debt. It ought not to be the case that apparently
insolvent companies owing
large amounts of tax can simply not pay while at the
same time continuing to engage the Commissioner in costly and time- consuming
litigation. That is a spectacle that surely undermines the taxation system and
risks bringing it into disrepute in the eyes of other
taxpayers.
Result
[44] The defendants’ applications for orders striking out or
staying the proceeding are dismissed.
[45] The defendants are to file statements of defence within 21
days.
[46] If the Commissioner seeks costs she may file a memorandum within 14 days. The defendants are to reply within a further 14 days and the Commissioner may
reply within a further 7
days.
P Courtney J
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