Accent Management Ltd v Commissioner of Inland Revenue HC Auckland CIV 2008-404-8649
[2010] NZHC 305
•12 March 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2008-404-8649
IN THE MATTER OF THE JUDICATURE AMENDMENT ACT
1972
BETWEEN ACCENT MANAGEMENT LIMITED Applicant
ANDTHE COMMISSIONER OF INLAND REVENUE
Respondent
Hearing: 20 & 21 July 2009
Appearances: C T Gudsell QC & M C Brugeyroux for Applicant
T G H Smith & L A Herbert for Respondent
Judgment: 12 March 2010
JUDGMENT OF KEANE J
This judgment was delivered by Justice Keane on 12 March 2010 at 4.30 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
Wynyard Wood, Auckland for Applicant
Crown Law Office, Wellington for Respondent
ACCENT MANAGEMENT LIMITED V THE COMMISSIONER OF INLAND REVENUE HC AK CIV 2008-
404-8649 12 March 2010
[1] On this application for review Accent Management Limited, in a representative action on its own behalf and that of six co-investors, seeks to challenge the validity of assessments adverse to it made by the Commissioner of Inland Revenue in the 1997 and 98 income years, even though those assessments have been vindicated as correct by this Court and on two appeals.
[2] The assessments are invalid, Accent contends, because the Commissioner confined himself to disallowing the two species of deduction Accent claimed. He did not, as he was obliged to do, Accent says, then allow Accent, in place of one of the disallowed deductions, a lesser deduction on a distinct statutory basis. Had he done that, he could not have concluded, as he did, that the scheme under which the disallowed deductions had been claimed, which has become known as the Trinity scheme, was a 'tax avoidance arrangement' and to that extent void.
[3] In the assessments he made, Accent contends, the Commissioner offended, consciously if not in bad faith, the fundamental constitutional principle that a tax can only be imposed lawfully by act of Parliament: Bill of Rights 1688 (Imp); s 22(a) Constitution Act 1986. That was not cured, Accent contends further, by the three decisions vindicating the assessments. Those decisions concerned only the correctness of the assessments, not their validity. Accent remains entitled, it contends, to challenge the validity of the assessments on review; a right to justice secured it by s 27(2) of the New Zealand Bill of Rights Act 1990.
[4] Accent’s application for review, the Commissioner contends, is barred by the Tax Administration Act 1994, which prescribes the process by which assessments may be challenged and otherwise deems them to be correct and valid. The grounds
on which Accent contends the assessments are invalid, he contends, are denied it by the findings made in the three decisions vindicating the assessments. Accent’s application, he contends further, constitutes indeed a collateral attack not merely on the assessments made but on those decisions. Accent relies, moreover, on a proposition that it could easily have advanced at the outset, but chose not to, because that would have precluded it from obtaining the deduction it actually sought. The Commissioner seeks to have the application struck out as untenable, vexatious and
an abuse of process.
[5] In this decision I resolve the Commissioner’s application on the bases advanced. I begin, however, with the question of invalidity so critical to Accent’s substantive application. Is there as marked a distinction as Accent contends there is between the correctness of an assessment and its validity? To what extent, if at all, can an assessment be deemed invalid before it has been found to be so by a Court of competent jurisdiction?
History of Accent's claim
[6] In 1996 Accent became a party to a joint venture, set up in that year under the Trinity scheme to grow a plantation of Douglas Firs over a 50 year span on a 538 hectare property in Southland licensed for the purpose from Trinity Foundation Services (No 3) Limited. The joint venture agreement is one of three elements primary to the tax consequences of the scheme. The two others are the licence, to which I have referred, and an insurance policy.
[7] Under the 50 year licence granted to the joint venturers by Trinity 3 they became liable to pay a licence premium of $2,050,518 per plantable hectare in 2048;
a liability they answered immediately in 1997 by promissory note secured by debenture. On that basis Accent, and its co-venturers, claimed the right to a deduction for depreciation of the asset they said they had purchased, the right to use the land during the period of the licence, amortised on a straight line basis across its life. Accent’s claim for part of the 1997 year was $409,371. In 1998 it claimed $4,716,589.
[8] The policy of insurance to which the Trinity scheme required Accent and other venturers to subscribe was to meet the risk that in 2048 the trees for harvest might prove to have less value than the premium liability that then crystallised ($2,050,518 per plantable hectare). The policy was issued by Trinity 3’s nominated insurer CSI Insurance Group (BVI) Limited, incorporated for the purpose in the British Virgin Islands. Accent became liable under the policy to pay two premiums, the first in 1997, $1,307 per hectare, the second, $329,791 per hectare, in 2047. Here too Accent and its co-venturers answered the latter liability by a promissory note
secured by debenture. On that basis Accent claimed in 1997 a deduction for the entire expense, $3,989,466.
[9] On or about 26 March 2002 the Commissioner of Inland Revenue disallowed the two deductions claimed for the 1997 year and, on or about 28 March 2003, the licence premium deduction claimed in that year. He disallowed the licence premium deductions on a number of bases. All went to his central conclusion that the licence aspect of the scheme, however understood, did not constitute depreciable property.
He disallowed the insurance premium on the basis that there was no effective insurance. The Commissioner's position then or later, also, was that if the insurance premiums were deductible, Accent could not have deducted them in a lump sum. It would have had to deduct them over the life of the licence. His ultimate position, whether or not Accent qualified notionally for either form of deduction, was that both were the fruit of a 'tax avoidance arrangement' and void against the revenue.
[10] On Accent’s challengeto this Court (Accent Management Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,027) Venning J upheld the Commissioner completely as to the licence premium. Accent did not pay this premium, he held, for the right to use the land during the currency of the licence. The premium paid was to secure for Accent a share in the proceeds of sale of the mature trees. The right paid for was not therefore depreciable intangible property. He upheld Accent’s challenge as to the insurance premium. The contract of insurance entered into, he considered, had to be taken at its face. Moreover, he held, the premium could
be deducted in 1997 and did not have to be spread.
[11] This proved not to avail Accent. Venning J held that insofar as the Trinity scheme gave rise, notionally, to these forms of deduction, it was a 'tax avoidance arrangement'. As to that the essence of his decision is set out at [321] – [323]:
[321] The plaintiff investors are experienced and astute commercial business people. They may have had a general interest in investing in forestry, perhaps even in a douglas fir plantation. However, the reason they invested in this particular investment, the Trinity scheme, was the tax benefits associated with the scheme. Without the tax benefits of the Trinity scheme it was less attractive than other investments. As experienced business people they would have been well aware of that fact, and of other opportunities available to them.
[322] The Trinity scheme was established and structured the way it was to achieve the mismatch of the deductibility of the licence and insurance premiums in 1997, and in the case of the licence premium, over the course of the investment (or at least until remedial legislation was passed) as opposed to the obligation the plaintiffs may have had as investors to pay the ultimate licence and insurance premiums in accordance with the promissory note in 2047/2048.
[323] The douglas fir forest on Trinity 3’s land might deliver a positive return. Whether it will or not is subject to a number of uncertainties. The result will not be known until 2047/48. What the plaintiff investors knew in 1997, however, and could be certain about was that in joining the Trinity scheme and entering the arrangements that formed that scheme they had the ability to claim significant deductions in 1997/1998 and subsequent years in relation to the insurance and licence premiums against their other, substantial income and for a very limited financial outlay that bore no relation to the tax advantages they obtained. The certainty of that tax deductibility and the significant advantages to them of that in 1997 and the immediately following years was the dominant reason for their entry into the arrangement.
[12] In its decision ((2007) 23 NZTC 21,323), the Court of Appeal held, in contrast to Venning J, that the licence premium was payable for the right to use the land and that, notionally, Accent qualified for that deduction as well as that claimed
for the insurance premium. The Court upheld Venning J in his conclusion that Accent was not entitled to either deduction because both were the fruit of a 'tax avoidance arrangement'. William Young P, delivering the decision of the Court, remarked at [140] that the scheme was ‘clever’ only to add that ‘this particular emperor has no clothes’. For, as he explained at [141]:
It is clear that the real purpose of the arrangement is not the conduct of a forestry business for profit, but rather generation of spectacular tax benefits. The end result (i.e. the profitability or otherwise of the venture) was never seen as being material. The corollary of this statement is that there was never a ‘real’ purpose of making a profit from the harvesting of trees.
[13] In the Supreme Court ([2008] NZSC 115) the majority of the Court, Tipping, McGrath and Gault JJ, agreeing with the Court of Appeal, held that notionally Accent qualified for each form of deduction but that insofar as the Trinity scheme gave rise to those forms of deduction it was void against the revenue as a 'tax avoidance arrangement'. Elias CJ and Anderson J, in the minority, in agreeing with that final conclusion, held for that very reason that Accent could not qualify, even notionally, for the deductions claimed.
[14] As to the licence premium deduction claim Tipping J, speaking for the majority at [130], described the promissory note given to answer the licence premium liability to crystallise in 50 years as without any ‘necessary business connection with that period’. The ultimate obligation to pay the premium in 2047, he said, was subject to too many contingencies to have force. He concluded:
The effect of the arrangement (if permitted) would be to provide a tax concession in circumstances where the commitment to make the payment is dependent on stumpage proceeds and otherwise is illusory. The result of this use of the specific provision is to take the arrangement, insofar as it depends on the licence premium promissory note, outside the scope of the provision allowing for a deduction for depreciable property and to make what the investors entered into a tax avoidance arrangement.
[15] Speaking of the insurance premium deduction claim, founded as to the premium payable in 2047 on the promissory note given in 1997 secured by debenture, Tipping J said at [147]:
The simple fact is that the second premium was not paid in any real sense by means of the promissory note. The use of the promissory note as an aspect of the whole arrangement reinforces its artificiality. CSI undertook no real risk and was simply a vehicle to achieve the deductibility of a premium which was not truly paid. The purported payment did not give rise to any economic consequences on either side.
[16] In these conclusions, as to which the Supreme Court was unanimous, it upheld the Commissioner’s assessments. It found that Accent and its co-venturers were not, and had never been, entitled to the deductions they claimed. Accent, however, in contrast to the other appellants, and for the first time, contended that if it were not entitled to those claimed for the licence premium, it was entitled to lesser deductions under the old accrual rules on the distinct statutory basis that the licence arrangement was a 'financial arrangement'.
[17] The Court declined to hear argument on the point. As Tipping J explained at
[149] – [155], Accent had not sought or been granted leave to advance that as a ground of appeal. The deduction Accent sought to affirm, he said, was inconsistent with that claimed for the 1997 and 1998 years, for which Accent had continued to contend both before the Commissioner made the disputed assessments, and afterwards, in this Court and on the first appeal. (It had in this Court on the challenge denied successfully, that the pertinent aspect of the Trinity scheme constituted a
'financial arrangement', in the face of the Commissioner's challenge, asserting that the 2048 liability assumed in 1997 was satisfied immediately it was incurred by the contemporary promissory note.)
[18] Within five days of the Supreme Court's decision Accent brought this application for review seeking declarations that the Commissioner had no power to make the disputed assessments, that they are and were when made invalid, and that the Commissioner should not take any further step to give them effect.
[19] Accent’s purpose in seeking these declarations is not to vindicate the right to any significant deductions in the 1997 and 1998 years. It is to nullify the Commissioner’s conclusion, upheld on the challenge and the two appeals, that the Trinity scheme constitutes a 'tax avoidance arrangement' and is void against the revenue. More tangibly, Accent’s purpose is to nullify the very significant penalties that flow from that conclusion.
[20] Since I heard the Commissioner's application Venning J has heard and resolved one arising, I understand, from a challenge to the validity of the Commissioner's assessments brought by co-venturers of Accent: Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue HC Auckland CIV 2009-404-5991,
26 February 2010. The Commissioner has invited me to read that decision. For reasons I have given separately, I have declined to do so.
Accent's statement of claim
[21] In its statement of claim Accent places in issue from the outset the validity of what it describes as the Commissioner's 'purported assessments', which it says were upheld by this Court and on the successive appeals as to their correctness, assuming their validity.
[22] The Bill of Rights 1688, Accent contends, which applies by virtue of the Imperial Laws Application Act 1988, provides that there should be no pretence of tax without grant of Parliament. And, it contends, the contractual arrangements entered into could only be categorised by the Commissioner in one way:
a financial arrangement, the taxation of which is governed by sub-part EH (the Old Financial Arrangement Rules) of the [Income Tax Act 1994] and the determinations made pursuant to the [Tax Administration Act 1994].
[23] Where there is a financial arrangement, Accent contends, s EH8 expressly provides:
Notwithstanding any other provision in this Act, gross income or expenditure in an income year in respect of a financial arrangement under the qualified old financial arrangements rules shall be calculated under those rules.
[24] Equally, Accent contends, the Commissioner's own determinations under the
Tax Administration Act 1994, governing the calculation of tax where there is a
'financial arrangement', bind the Commissioner as much as the taxpayer. The assessments he was obliged to make were governed by those determinations.
[25] That the contractual arrangements did constitute a 'financial arrangement', Accent next contends, was recognised by this Court and on the two ensuing appeals. Since at least 1999, Accent contends more pointedly, that had been the Commissioner's own view. It is manifest in working papers and in a consultant's opinion; in concessions made by the assessing officer when cross examined in this Court; in the Commissioner's own submissions in this Court and in the Court of Appeal.
[26] Accent contends, therefore, that when issuing the 1997 and 1998 assessments the Commissioner knew that he was obliged to assess Accent and its co-investors on the basis that there was a 'financial arrangement' and is in breach of his duty to them, both before and after the issue of the challenge proceedings, to ensure that their tax liability was correctly assessed. His assessments in those years, Accent contends, are unlawful because they are expressly prohibited by s EH8 and the Determinations.
[27] For the Commissioner's assessments to be valid, Accent contends, he had first
to comply with s 6 of the Tax Administration Act 1994. For his assessments to be lawful under s 3 of the Tax Administration Act 1994, the Commissioner had to attempt genuinely to ascertain Accent's statutory liability. He had to do so without disregarding known law and without acting arbitrarily or capriciously. His
assessment had to reflect his honest opinion and be reasonably referable to the powers on which he relied.
[28] The assessments are invalid, Accent contends, because the Commissioner disregarded known law, s EH8, and so acted arbitrarily or capriciously. His assessment did not reflect his honest opinion. The assessments he made were not reasonably referable to the Income Tax Act 1994. The Commissioner misused his powers consciously and deliberately.
[29] Accent seeks, therefore, the declarations to which I have referred that the Commissioner had no power to make either of the assessments he made, or any decisions flowing from them, that the assessments are not valid assessments for the purposes of the Tax Administration Act 1994, and that he should not take any further steps relying on them.
Accent's central submissions
[30] When it claimed in the 1997 and 1998 years depreciation deductions in respect of the premium incurred for the licence to use land, relying on sub-part EG of the Income Tax Act 1994, Accent contends, it assumed that it had that right. It only appreciated after the decision of the Court of Appeal that, if any aspect of the transaction did constitute a 'financial arrangement', sub-part EH8 applied. Section EH8 and the Commissioner's determinations issued under sub-part EH precluded any other choice.
[31] The Trinity scheme, Accent contends, can be understood to constitute a series
of 'financial arrangements' or a single wider arrangement. One such arrangement could be constituted by the licence, which calls for the payment of a rent charge in arrears. Another could be the promise to pay in 2048 for the grant of the licence in
1997. Yet another could be the equivalent promise to pay the insurance premium in
2047. The promissory notes given, debt instruments answering immediately each of those promises, could be still others. Or there could be a wider arrangement comprising all combined.
[32] Principally, however, Accent contends, as to the licence aspect of the arrangement, a 'financial arrangement' arises from what it describes as the disparity
in value between the consideration Accent received from Trinity in 1997 and the
$2,050,518 per plantable hectare payment Accent was required to make to Trinity 3
in 2048. On the Commissioner's own calculation, Accent says, the amount paid for the right to use Trinity's land was not $2,050,518 per hectare, as was assumed on the challenge to this Court and on each appeal. It was somewhere between $2,500 -
$136,633. The balance has to be deemed interest, Accent contends, which it is entitled to deduct under sub-part EH on a yield to maturity basis under the old financial rules.
[33] The promissory note, given in 1997 to meet the 2048 liability, Accent contends, only did so as a matter of law. As the Supreme Court held, it did not do so
as a matter of substance. It was without economic consequence. It could not extinguish any 'financial arrangement' within sub-part EH. Within that sub-part it was and remains without significance.
[34] Section EH8, Accent contends, therefore, prohibited the Commissioner from the assessment he made, in which he assumed Accent's right to a deduction lay only under the depreciation rules in sub-part EG. The Commissioner, Accent says, has yet
to make the calculation sub-part EH requires and so he has not made any lawful assessment for the 1997 - 98 years.
[35] Accent goes further. It contends that in the assessments he made the Commissioner was aware that they were irreconcilable with s EH8 and, in making them nevertheless, he consciously misused his power. This is, therefore, one of those rare cases of which Richardson P spoke in Commissioner of Inland Revenue v Wilson (1996) 17 NZTC 12,512 (CA), at 12,520, where the Commissioner in the exercise of his statutory powers has gone beyond the statutory criteria and purposes of the Act, not just mistakenly but deliberately.
[36] Accent contends that it does not have to go still further and allege that the Commissioner must also have lacked any honest belief in the application of the general anti-avoidance provision to any accrual assessment. The issue is whether he
knew, or deliberately closed his eyes to, the unlawfulness of the threshold assessment that he made of the licence premium aspect most especially.
[37] The Commissioner's assessments, Accent contends consequently, create no debt. They constitute unlawful and unenforceable demands offending the Bill of Rights 1688 and s 32(a) of the Constitution Act 1986: Woolwich Building Society v Inland Revenue Commissioners (No 2) [1992] 3 All ER 737. See also Deutsche Morgan Grenfell Group Plc v Inland Revenue Commissioners [2006] UKHL 49; Waikato Regional Airport Ltd & Ors v Attorney General [2004] NZLR 1 (PC).
[38] The principle on which Accent relies is perhaps most graphically expressed
by Baragwanath J in Miller v Commissioner of Inland Revenue (1997) 18 NZTC
13,001, at 13,039:
Section 27 [now s 109 Tax Administration Act 1994] provides no barrier to a challenge to the very existence of a lawful assessment … To purport to assess a person against whom no assessment could lawfully have been made … could be actionable as an abuse of public power and would certainly be ineffectual; it would not result in an enforceable assessment.
[39] The consequence is also, Accent contends, that the assessments do not constitute a disputable decision, which could ever have been the subject of challenge under s 138B of the Tax Administration Act 1994. So no Court of competent jurisdiction has yet considered whether the disparity required to be calculated under sub-part EH can, if nonetheless calculated under sub-part EG, create a legally enforceable debt. Had this Court and those on appeal turned their minds to that, they would have had to recognise they were without jurisdiction.
[40] When Accent became aware, it says, that the only deduction open to it was that accorded by sub-part EH, and sought to raise that before the Supreme Court, that was held to be beyond the scope of the appeal; and so the issue is res integra. Absent
an assessment according to law, absent a valid debt, a valid challenge, and a competent judgment vindicating the assessments, the Commissioner's strike out application must fail.
Strike out jurisdiction
[41] The Commissioner applies to strike out Accent’s application relying on High
Court Rules, r 15.1(1) which says:
The court may strike out all or part of a pleading if it –
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleadings; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[42] The Court’s power to strike out under this rule is without prejudice to its inherent jurisdiction: High Court Rules, r 15.1(4). In exercise of the power the Court may dismiss a proceeding or enter a stay: High Court Rules, r 15.1(2), (3).
[43] As to the usual primary ground, untenability, Richardson P stated in Attorney-General v Prince & Gardner [1998] 1 NZLR 262 at 267, the principles which apply:
A striking-out application proceeds on the assumption that the facts pleaded
in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed …; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material …; but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction … .
[44] To strike out entirely for untenability is a measure of last resort. It is not to be resorted to where there may be a cause of action, which has been insufficiently or inaccurately pleaded. Strike out is only justified when there is no cause of action disclosed, however pleaded: see, for instance, Marshall Futures Ltd v Marshall [1992] 1 NZLR 316.
[45] Abuse of process can raise issues that extend beyond the pleadings and arises typically in tax cases as a result of s 109 of the Tax Administration Act 1994, which
states that a disputable decision made by the Commissioner cannot be challenged except by objection under Part 8 or by challenge under Part 8A. Section 114 deems assessments made to be valid even where incorrect. Only exceptionally does judicial review have a place.
[46] In New Zealand Wool Board v Commissioner of Inland Revenue [1997] 2
NZLR 6 (CA), Richardson P said at 14, in the second of six reasons he gave to support that conclusion, that review may exceptionally have a place, but only where abuse of power or unfairness is alleged:
… the statutory objection procedure has primacy. Judicial review is not excluded, but it is to be regarded as a collateral process directed solely at the validity of the procedure followed by the Commissioner. Hence, it may not impinge upon the matters which may properly fall for consideration in the course of the statutory objection procedure. Judicial review is to be reserved for the exceptional cases where the alleged abuse of power or unfairness cannot be resolved in the context of that procedure.
[47] In Miller v Commissioner of Inland Revenue [2001] 3 NZLR 316 (PC), Lord
Hoffmann, at 329, added a further basis on which, exceptionally, review might have
a place, a fatal foundational error of law, but even then not inevitably:
It will only be in exceptional cases that judicial review should be granted where the challenges can be addressed in the statutory objection procedure. Such exceptional circumstances may arise most typically where there is abuse of power … . But they have also been held to arise where the error of law claimed is fatal to the exercise of statutory power and where it would be wasteful to require recourse to the objection procedure … .
[48] The statutory objection procedure is not just primary. It is also curative. The Taxation Review Authority, or this Court, should it hear the challenge, has the same powers as the Commissioner and, if on an objection the Commissioner is found to have acted in error, that can be cured by the exercise of the power of re-assessment:
s 135(1) and s 136(17) Tax Administration Act 1994.
[49] Recently in a decision critical to the present application to which I will return, Westpac Banking Corporation v Commissioner of Inland Revenue [2009] NZCA 24, the Court of Appeal held, at [59], that judicial review of a tax assessment will only be justified where (i) what purports to be an assessment is not; or (ii) in exceptional cases, such as where there has been conscious maladministration. To
decide whether the challenge made lies within those exceptional categories, or constitutes an abuse of process, it is necessary, the Court said at [10] to 'engage with the facts more freely' than is usual on a strike out application. The pleadings are not
to be taken uncritically to be correct where contradicted by indisputable fact.
[50] Also in issue is whether Accent, by challenging the impugned assessment by way of judicial review, is seeking to re-litigate issues already resolved. For that can
be an abuse of process. If the assessments have been upheld definitively the Commissioner is entitled to rely on that. Finality is equally in the public interest. Apart from any unfairness, re-litigation can strike at public confidence in the administration of justice: Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (SC) at [58] and [62] per Elias CJ.
[51] That need for finality asserts itself whether or not res judicata in the strict sense applies, or the Commissioner can rely on issue estoppel. Where the challenge made involves nothing new and could as readily have been made in the original proceeding, that can be an abuse of process: Russell & Ors v Taxation Review Authority & Anor (2000) 19 NZTC 15,924.
[52] Where there is a late challenge, and a question whether that connotes an abuse of process, the Supreme Court held in Z, at [63] and [127], that calls for a
'broad, merits-based judgment which takes account of the public and private interests involved'. Where, as here, bad faith on the part of the decision maker is alleged, whether the complaint itself is made in good faith must also be in issue: Attorney- General v McVeagh [1995] 1 NZLR 558.
Correctness and validity
[53] On Accent's analysis all of these statutory and policy impediments to its application for review are answered completely once it is accepted that the Commissioner's two assessments are and have always been invalid and the reason why that is so; the assessments involved a deliberate misuse, an abuse, of the Commissioner's power.
[54] Accent's argument, as I understand it, however, must involve two assumptions, the lesser of which is that the validity of the assessments is quite distinct from whether they are correct. Accent disavows any challenge to the correctness of the assessments vindicated by this Court and on appeal. It does not, it contends, challenge, nor does it need to, nor does it run foul of, those decisions.
[55] The grounds on which a decision can be invalid can, I accept, differ in kind from those that arise on an objection. But they can also be identical, as is apparent immediately one considers what those grounds are. As Richardson J expressed them
in Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655 (CA) at 660 - 661, they are these:
Judicial review is available where a decision making authority exceeds its powers and commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers … . That is subject to the obvious qualification that the legislation under which the authority is acting may itself limit the nature and scope of any review.
[56] Where, then, the validity of a decision turns on whether it is correct in law validity and correctness coincide essentially if not entirely. Where the challenge is to the reasonableness of the decision that must equally first turn on whether it is correct. Both grounds of invalidity are susceptible in principle to remedy within the statutory objection or challenge process. Even where a breach of natural justice is alleged, that can be cured by the very fact of the hearing before the Authority or this Court in which the rules of natural justice apply and taxpayer and Commissioner enjoy equality of arms. In all three instances the Authority and this Court may well be able to exercise the power of re-assessment.
[57] That the statutory procedure does embrace validity as well as correctness McGrath J took for granted in Dandelion Investments Ltd v Commissioner of Inland Revenue [2003] 21 NZTC 18,010, at [92] and [93]. The only exception calling for an application for judicial review independent of the statutory process, he said, is where an abuse of power is contended for. And that, of course, is Accent's case on review. But, even where that is so, this Court can, and sets out to, resolve all issues as to correctness and validity within the confines of a single hearing, whether they arise
from a statutory challenge or an application for judicial review. And that indeed, as the Court of Appeal said in Westpac, at [63], is and has to be normative.
[58] Accent's second assumption is, I think, more radical. In contending that the
1997 - 98 assessments, though vindicated as correct by this Court and on appeal, are incapable of cure, and that the decisions of this Court and those on appeal lack any foundation, Accent is not fastening simply on process. It is not just saying that an abuse of power is incapable of cure by exercise of the powers given the Authority or this Court on a statutory objection or challenge. It is saying that the assessments are beyond cure in whatever form they come before this Court.
[59] In this Accent cannot avoid having to resort, it seems to me, to the classic absolute principle of invalidity, the high water mark of which has to be Toronto Railway Co v Corporation of the City of Toronto [1904] AC 809 (PC). There the Judicial Committee of the Privy Council held that an assessment made without power was a nullity and could not be given life. The Committee thought it enough, at 816, to adopt as its own this statement from an earlier case:
If there is no power conferred by the statute to make the assessment it must
be wholly illegal and void ab initio, and confirmation by the Court … cannot validate it.
[60] That principle is now eclipsed by the contrary principle, the relative principle
of invalidity, that a decision made in the exercise of a statutory power is to be deemed valid until declared invalid by a Court of competent jurisdiction: Reid v Rowley [1977] 2 NZLR 472 (CA), A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA), Love v Porirua City Council [1984] 2 NZLR 308 (CA). In the Blenheim Borough decision Cooke J said at 5:
Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set aside the decision or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account.
[61] In Martin v Ryan [1990] 2 NZLR 209, at 237, Fisher J suggested for that very reason that where this Court declares a vitiated decision invalid, it does so retrospectively:
It seems to me that if the superior Court does ultimately strike down the decision, the act of the superior Court is not so much the passive discovery of the still-born as selective euthanasia of the congenitally deformed.
[62] Fisher J did not reject, in principle, the possibility that a decision might be so flagrantly invalid that it could be assumed to have been so from inception without a Court saying so. But, in R v Smith [2003] 3 NZLR 617, CA, that possibility too, was rejected as contrary to principle certainly where the validity of a judicial decision is
in question. Elias CJ said at [46]:
Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides. If it were not so, the principle of legality would be undermined….
[63] I see no reason why an assessment by the Commissioner should stand any differently; at least since the passing of the Tax Administration Act 1994. Even before that Act Henry J took it to be axiomatic, in BASF NZ Ltd v Commissioner of Inland Revenue [1994] 1 NZLR 172, that the relative principle of invalidity applied. As he said, at 178, of the assessment there challenged:
The assessment is not a nullity in the sense that it does not have present legal existence and effect. It remains unless and until such time as it is declared by
a competent authority to be invalid.
[64] The Commissioner's application to strike out Accent's review challenge to the assessments has, I consider, to be resolved on that basis. Not merely must the assessments be deemed to be valid until declared invalid. There can only be an inquiry into the validity of those assessments if the presumptions in the Tax Administration Act 1994 that they are both correct and valid can and ought to be set to one side.
Assessments deemed correct and valid
[65] Section 109 of the Tax Administration Act 1994 deems 'disputable decisions'
- assessments ultimately - to be correct except by the forms of challenge it recognises:
Except in objection proceedings under Part 8 or a challenge under Part
8A,—
(a)No disputable decision may be disputed in a court or in any proceedings on any ground whatsoever; and
(b)Every disputable decision and, where relevant, all of its particulars are deemed to be, and are to be taken as being, correct in all respects.
[66] Nor does s 109 stand alone. Section 114 deems assessments made to be valid even when they may not be correct:
An assessment made by the Commissioner is not invalidated—
(a) through a failure to comply with a provision of this Act or another
Inland Revenue Act; or
(b) because the assessment is made wholly or partially in compliance with—
(i)a direction or recommendation made by an authorised officer on matters relating to the assessment:
(ii) a current policy or practice approved by the Commissioner that is applicable to matters relating to the assessment.
[67] In Westpac the Court, for whom William Young P spoke, said at [7] that these two presumptions have never been held to constitute an absolute bar to judicial review. But they do cast a burden on the taxpayer to make out what can only be an exceptional case: to demonstrate that the assessment under challenge is either so lacking, or involves such an abuse of power, that it cannot possibly fall within their protective scope; and that, as the President said at [47], is 'a particularly inauspicious statutory context for judicial review'.
[68] That said, the Court did recognise, at [56], that the Commissioner's wider duties and powers may make his assessments more susceptible to review. Section
6A(1) charges the Commissioner with 'care and management of the taxes covered by
the Inland Revenue Acts' and confers attendant discretions subject to named constraints, one of which is as to resources. The Commissioner also now has a power to give binding rulings.
[69] Pointing also in that direction is s 6(1), which imposes on the Commissioner
a duty to his his 'best endeavours to protect the integrity of the tax system'. As well
as including within that concept the taxpayers' perception of integrity (subs 2(a)) the Commissioner must respect the rights of taxpayers 'to have their liability determined fairly, impartially, and according to law': subs 2(b) and (f). Equally, the tax system's integrity has a further connotation, that stated in subs 2(d), 'the responsibilities of taxpayers to comply with the law'. It is equally the duty of the Commissioner to ensure that this responsibility is honoured: Raynel v Commissioner of Inland Revenue (2004) 24 NZTC 18,583.
[70] On any view, therefore, as the Court said in Westpac at [59], while judicial review, where it is available, is to be exercised on established principles, it is reconcilable with ss 109 and 114 only in the two classes of case to which I referred earlier, (i) 'where what purports to be an assessment is not an assessment'; and (ii) 'in exceptional cases and thus may be available in cases of conscious maladministration'.
[71] The Court, furthermore, at [61], distinguished between an assessment and a usual statutory power of decision. The taxpayer's liability depends on the statute not
on the assessment. And the Court said:
If the assessment is correct, it is hard to see why complaints about process should result in the taxpayer not paying tax on a correct basis. Where there are very large sums of tax at stake … this raises fairness considerations in relation to other taxpayers … If the assessment is wrong, it can be corrected
in later challenge proceedings. If it is correct, the tax should be paid.
[72] The Court also deprecated, at [62], the scope collateral challenge by review allows for 'gaming and diversionary behaviour'; principally, the Court said at [63],
by delay. That is why any challenge to validity must normatively be advanced at the same time as any challenge to correctness. Also, the Court added, at [64], a collateral challenge can amount to an illegitimate attempt 'to turn the case back onto the
Commissioner'. The result can be a sapping inquiry irrelevant to whether tax is owing.
[73] The policy underlying s 109 and 114 precludes, the Court said finally at [94],
a challenge to validity relying on the Commissioner's internal processes:
To allow taxpayer litigants to trawl through processes which were antecedent to the issuing of an assessment (and the pre-assessment disputes procedure) with a view to identifying and then relying on perceived departures from internal department procedures is inconsistent with the orderly and efficient resolution of tax disputes. Such breaches could hardly be regarded as exceptional (in the sense of being rare) and to allow them to invalidate later assessments would leave very little scope for s 109 and 114.
Commissioner’s duty to assess
[74] Accent, in its statement of claim, identifies correctly the nature of the Commissioner's duty on the exercise of the power of assessment. But what that connotes will always call for a close appraisal of the assessment impugned.
[75] The Commissioner does not by assessment impose on the taxpayer the liability to tax. Liability is imposed by the statute. The Commissioner quantifies how much tax is due. As McCarthy J stated in Reckitt and Colman (New Zealand) Limited v Taxation Board of Review [1966] NZLR 1032, CA, at 1045:
Liability for tax is imposed by the charging sections, … The Commissioner acts in the quantification of the amount due, but it is the Act itself which imposes, independently, the obligation to pay. The assessment and objection procedures are merely machinery for quantifying; they do not cast liability. If the taxpayer does not object to the Commissioner’s assessment within the time stated in the assessment…, the amount assessed by the Commissioner becomes incontestably fixed.
[76] In the same case, however, Turner J, at 1042, brought to the concept of assessment, and thus to the Commissioner's duty, a further critical dimension. An assessment, he said, has to be made duly and impartially, according to law. The rules prescribing the rights of Commissioner and taxpayers constitute a code 'for the impartial and identical treatment of all taxpayers'. (See now s 6(2)(b) of the Tax Administration Act 1994.)
[77] Quantifying the tax due, therefore, calls for a principled exercise of judgment
on the part of the Commissioner, but subject always to this; that exercise can only be undertaken on the information that the Commissioner then has. As Richardson J said
in two passages in Commissioner of Inland Revenue v Canterbury Frozen Meat Co
Ltd [1994] 2 NZLR 681 (CA) at 690 - 691:
The making of an assessment … requires the exercise of judgment on the part of the Commissioner in quantifying that liability on the information then
in the Commissioner's possession. It involves the 'ascertainment' of the taxable income and of the resulting tax liability.
…
In making an assessment the Commissioner is required to exercise judgment. He or she is not entitled to act arbitrarily or in disregard of the law or facts known to the Commissioner … . There must be a genuine attempt to ascertain the taxable income of a taxpayer …
[78] There will be cases, Richardson J said in Paul Finance v Commissioner of Inland Revenue [1995] 17 NZTC 12,379 (CA), at 12,382, where the Commissioner's assessment can at most only be tentative and even one 'which the Commissioner believes is not necessarily correct, or even probably wrong to some extent'. But that will be because of the paucity of information the Commissioner then has. The Commissioner must still be honest in any exercise of judgment. Richardson P endorsed in Commissioner of Inland Revenue v New Zealand Wool Board (1999) 19
NZTC 15,476 (CA), at 15, 489, this statement from an earlier case:
The Commissioner is not empowered … to issue an assessment which does not represent his own honest opinion. He cannot say, for example, 'on the information available to me I think the taxable income is $X, but I will nevertheless issue an assessment for $10X'. Such a purported assessment would not be a true assessment within the powers conferred …
[79] In Westpac, however, the Court rejected the proposition that where within the Department there are two or more opinions as to how a taxpayer ought to be assessed the Commissioner cannot honestly hold one of those opinions as opposed to the other. Such differences of opinion, the Court said at [80], can be anticipated to be quite usual. Any choice between them need not involve any dishonesty. Nor need it become a source of invalidity even where there is a difference between two Departmental units:
Given the size of the Inland Revenue Department it is inevitable that there will be inconsistencies of interpretation and application. We do not see how
it could be credibly argued that an assessment is invalid merely because such inconsistency can be identified.
Statutory challenge process
[80] Accent contends that the Commissioner is under a duty under the Tax Administration Act 1994 to assess a taxpayer correctly, whatever position the taxpayer may take; and in one sense that is true. The duty imposed on the Commissioner to assess, and to assess honestly, is unequivocal. But the taxpayer is not altogether exempt. He or she has a part to play as well.
[81] It is no accident that the assessment process begins with the taxpayer. In the
1997 year s 92(1) imposed on the Commissioner a duty to assess a taxpayer 'from the returns made …and from any other information in the Commissioner's possession'.
In the 1998 tax year that initial duty was cast instead on the taxpayer. Section 92(1)
now says:
A taxpayer who is required to furnish a return of income for a tax year must make an assessment of the taxpayer's taxable income and income tax liability and, if applicable for the tax year, the net loss, terminal tax or refund due.
[82] Then, when the Commissioner does not accept the return or self assessment the taxpayer has made, the Act prescribes a process securing to the taxpayer equality
of arms, the purposes of which are to improve the accuracy of the Commissioner's decisions, to reduce the likelihood of disputes, to identify the basis for any dispute, and to promote a prompt and efficient resolution of it before any proceeding begins:
s 89A.
[83] The Commissioner may issue a notice of proposed adjustment, as he did here:
s 89B. The taxpayer must respond: s 89G. And these notices are required to be highly specific. A notice of proposed adjustment must identify the adjustment, state concisely the key facts and the law sufficiently to set out the grounds for the adjustment proposed and state how the law applies to the facts: s 89F(2). A notice of response must be equally exact. Section 89G(2) states:
A notice of response must state concisely -
(a)the facts or legal arguments in the notice of proposed adjustment that the issuer of the notice of response considers are wrong; and
(b)why the issuer of the notice of response considers those facts or legal arguments to be wrong; and
(c)any facts and legal arguments relied on by the issuer of the notice of response; and
(d) how the legal arguments apply to the facts; and
(e) the quantitative adjustments to any figure referred to in the notice of proposed adjustment that result from the facts and legal arguments relied on by the issuer of the notice of response.
[84] Where the taxpayer and the Commissioner still remain apart the scope of any challenge by the taxpayer will be governed by any further exchange between the Commissioner and the taxpayer under s 89M. Before 2005 the Commissioner could if he chose issue a disclosure notice setting out his statement of position. He must now always do so. To this statement the taxpayer is obliged to respond. Each is required to outline the facts and the evidence on which they intend to rely, the issues they consider will arise and the propositions of law on which they will rely.
[85] It is only after this process is complete that the taxpayer's challenge can advance by way of objection to the Authority, or by way of challenge to this Court; and the taxpayer then carries the onus of establishing what tax is due and on what basis: s 149A(2)(b). And as I said earlier, it is only if the taxpayer discharges that onus that the Authority or this Court can give a remedy and that will amount in law to a fresh assessment.
[86] But even before any objection or challenge is heard, the prior exchanges that the Act calls for between Commissioner and taxpayer are designed to ensure that each has a clear understanding, even in complex cases, of what is in issue, and what is not, and is alert to the implications. The process itself, in other words, is designed to guard against the exceptional case lying beyond the protective presumptions in ss 109 and 114; the case where there is in truth no assessment or where there is conscious maladministration.
[87] This, Accent contends, is one of those exceptional cases to which ss 109 and
114 cannot begin to apply. The Commissioner so misused his power of assessment, consciously and deliberately, he so abused his power, that he made no assessment at all. I am unable to agree.
Accent's case unexceptional
[88] Accent contends, firstly, that its case must lie within the two exceptional categories because the Commissioner has to be fixed with knowledge of the pre-emptive effect of s EH8 and his own public determinations under sub-part EH. And clearly, in a sense, that is so. But it does not follow that where s EH8 and the determinations may apply, and the Commissioner assesses on some other basis, he ignored deliberately the one or the other. That begs the very question to be decided.
[89] Section EH8 and those determinations, moreover, are and were at the times material hardly closeted. They were as accessible to the devisers of the Trinity Scheme, and to Accent and its advisers as to the Commissioner. The deductions Accent claimed, to which the Commissioner responded, most materially the licence premium depreciation deduction claim, rest on what can only have been a deliberate feature of the scheme, on which Accent relied to exclude any 'financial arrangement'
to which s EH8 and those determinations could apply - the promissory notes.
[90] Accent contends, secondly, that the Commissioner ignored deliberately the state of opinion within his own Department. That consensus was, Accent says, that the arrangements were capable of giving rise to one or more 'financial arrangements'. The only issue was as to how the deductions to which Accent was entitled were to be calculated; as to what was the core acquisition price.
[91] The assessing officer's answer is that, before she settled the 1997 notice of proposed adjustment, opinions differed within the Department as to how the arrangements were to be assessed. That is reflected, she says, in the notice issued. It
set out a series of alternative grounds for disallowing the two forms of deduction claimed. But, she says, the Commissioner's ultimate position was that the arrangements as a whole constituted a 'tax avoidance arrangement'. Whether at the
threshold that arrangement gave rise to one form of deduction, as opposed to another, was academic.
[92] In this context Accent faces two difficulties. One is that it has to involve an inquiry into the state of debate within the Department before the issue of the notice
of proposed adjustment. That is ruled out by Westpac as contrary to the policy underpinning the two statutory presumptions. The other is that, even if the assessing officer chose to focus on the grounds for disallowing the deductions Accent claimed, when she had advice that the arrangement could give rise to one or more 'financial arrangements', that is hardly fatal. That, as the Court of Appeal said in Westpac, does not mean that she was dishonest. Nor can it erode the validity of the assessments made.
[93] In his 1997 notice of proposed adjustment, moreover, the Commissioner fully declared his hand. Amongst the grounds he identified for disallowing the licence premium depreciation deduction Accent claimed, his second ground was that it could not be claimed because it involved a 'financial arrangement'. This was his reason:
Licence: Financial Arrangement. The right created under the transaction documents is not 'depreciable property' for the purposes of section EG1 because it is a financial arrangement in terms of the definition in sections OB1/EH14. The definition of 'depreciable property' in section OB1 exclude a 'financial arrangement' by paragraph b(iii) of that definition.
[94] To this, Accent responds, the Commissioner deliberately omitted to identify other wider ways in which that element of the transaction gave rise to a 'financial arrangement'. He did not point out that any such 'financial arrangement' meant that he had to assess under sub-part EH.
[95] The difficulty Accent faces however, here too, is that in its notice of response
it took the position that the promissory note was a 'financial arrangement' but the licence was not. Nor did it refer then or later to sub-part EH as applying in any more general way. Its case was that it was entitled to the deduction it had claimed under sub-part EG. In part that goes some way to explaining why the Commissioner elected, as the assessing officer said as a matter of strategy, not to rely on this ground for the 1998 year.
[96] Accent next says that in this Court and on the two appeals the Commissioner deliberately adhered to the occluded 'financial arrangement' identified in the 1997 notice of proposed adjustment, without stating its consequence in law. Even when the assessing officer was cross-examined in this Court and accepted that the licence premium could have been assessed under sub-part EH, she omitted to say that this was the only way in which it could be assessed; that there was no choice.
[97] Once again, however, Accent's stance now cannot be reconciled with its stance then. In its challenge to this Court and on its appeals Accent sought to have
set aside the Commissioner's assessments disallowing the two forms of deduction it had claimed. In this Court and on the first appeal it continued to contend for the licence premium depreciation deduction. It was only in the Supreme Court that it sought the lesser deduction it now says it was entitled to; the deduction it says was obligatory. But even then other investors continued to pursue the deduction always claimed. The issue before each Court, then, was whether all taxpayers engaged in the litigation were entitled to the deductions disallowed. It was not whether they were entitled to the lesser and inconsistent deduction Accent now seeks to vindicate. Moreover, the ultimate issue was whether, as the Commissioner had held it to be, the Trinity scheme was nothing more than a 'tax avoidance arrangement'.
[98] Accent's then counsel contended before this Court on the initial challenge that any 'financial arrangement' that arose from the licence premium terms was extinguished immediately by the promissory note. When the Commissioner's counsel argued that Accent's counsel had conceded in opening that the licence premium was part of a disqualifying 'financial arrangement' Accent's then counsel disclaimed that. Venning J at [130] expressed Accent's case in this way:
[T]here was only one relevant financial arrangement in this aspect of the transaction, namely the promissory note which discharged and satisfied SLFJV's obligation to pay the licence premium.
[99] Accent's position then was, Venning J said at [132] and [133], that the licence premium payable, independent of the promissory note, was not a 'financial arrangement' and not excluded from the definition of depreciable property. That
remained the position of all appellants in the Trinity litigation, even in the Supreme
Court, except insofar as Accent then sought to shift stance.
[100] Accent relies finally on the Supreme Court's conclusion that the promissory note satisfied the licence premium liability in a 'jurisprudential' not 'commercial' way. That has to confirm, Accent says, what must have been self evident to the Commissioner from the outset; that if the licence premium element of the arrangements were assessed as a 'financial arrangement' under sub-part EH the promissory note would play no part.
[101] Sub-part EH, Accent contends, strips away form and is concerned only with economic substance. The corollary has to be, Accent contends further, that the Commissioner deliberately closed his mind to the fact that, if Accent had been assessed under sub-part EH, the Trinity scheme could not then have been a 'tax avoidance arrangement'. Sub-part EH effectively renders s BG(1), the anti avoidance provision, redundant.
[102] Once again, however, context is everything. The Supreme Court held at [119] that the promissory note was 'an artificial element', a 'gratuitous mechanism', included for the very purpose of enabling Accent and its co-venturers to claim the very forms of deduction finally disallowed as aspects of a 'tax avoidance arrangement' as void against the revenue.
[103] To the extent that sub-part EH had a part to play, that could only have truly come into focus once Accent's actual claims had been set to one side. But if they were set aside as the fruit of a 'tax avoidance arrangement' whether sub-part EH could ever have been a threshold basis deduction became academic unless that sub-part has the transfiguring effect that Accent claims for it. That never began to be explored.
[104] For these reasons, on the indisputable record, it cannot begin to be said that the Commissioner made his assessments dishonestly, or defectively, in the ways Accent pleads in its statement of claim. Accent cannot rely on those pleadings, taken as correct, to resist the Commissioner's application.
Conclusions
[105] Accent's challenge to the validity of the 1997 - 98 assessments does not lie within the two exceptional categories of case, beyond the reach of the statutory presumptions in ss 109 and 114 of the Tax Administration Act 1994. The sources of any invalidity on which Accent relies in its statement of claim to contend for the one or the other do not begin to found the conclusion that the Commissioner either made no assessment or was culpable of conscious maladministration.
[106] Accent's present review challenge relies, moreover, on a proposition that it could easily have advanced from the outset. But that proposition is antithetical to the deduction Accent actually sought and defended until the hearing in the Supreme Court. Accent only advances it now because of the adverse decisions it has suffered in this Court and on appeal. And its challenge now has to be a collateral attack not just on the two assessments, deemed by statute to be correct and valid, but on the three decisions vindicating their correctness. In all of these senses it constitutes an abuse of process and must be struck out.
[107] It is not necessary for me to decide whether, absent an abuse of process, Accent's present application should also be struck out for untenability. What is clear
is that, in contending that it was always entitled to have the licence premium aspect
of the arrangement assessed as a 'financial arrangement' under sub-part EH, and that this answers any possibility that the scheme was a 'tax avoidance arrangement', Accent still has to face the three decisions adverse to it on its statutory challenge.
[108] Each Court held that the purpose and effect of the scheme, understood objectively, was to entitle investors to the two forms of deduction eventually disallowed. Each Court held that the scheme was fatally lacking in any sensible commercial rationale.
[109] Assuming, in Accent's favour, that it can establish objectively that the
'financial arrangement' giving rise to the deduction it now seeks could lie within the purpose and effect of the scheme, that will still not be enough. Nor will it be enough
for Accent to be able to say that a sub-part EH analysis denies the element of the
scheme, described as gratuitous and artificial, the promissory note, of any further part. It must still, to the extent that it is not estopped, negate the conclusion of each Court, most especially that of the Supreme Court, that, objectively, the primary or certainly a more than incidental purpose or effect of the scheme was tax avoidance. At the very least that is a formidable task.
[110] The Commissioner's application to strike out Accent's statement of claim is granted. The Commissioner seeks indemnity costs. If the Commissioner wishes to support that by submission it is to be filed within ten working days of the date of the issue of this decision. Accent's reply is to be filed within the succeeding ten working days.
P.J. Keane J
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