Mawhinney v Commissioner of Inland Revenue

IN THE COURT OF APPEAL OF NEW ZEALAND

CA208/2014
[2014] NZCA 193

BETWEEN	PETER WILLIAM MAWHINNEY AS TRUSTEE OF THE FOREST TRUST Applicant
AND	THE COMMISSIONER OF INLAND REVENUE First Respondent
REGISTRAR OF THE TAXATION REVIEW AUTHORITY Second Respondent

Counsel:

Applicant in person
P H Courtney for First Respondent

Judgment:

(On the papers)

20 May 2014 at 3.00 pm

JUDGMENT OF FRENCH J
(Review of Deputy Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision declining to waive payment of the filing fee is granted.
BThe filing fee of $1,100 is waived.

____________________________________________________________________

REASONS

Mr Mawhinney wishes to file an appeal in his capacity as trustee of the Forest Trust. He sought a waiver of the filing fee on the grounds of undue hardship. The Deputy Registrar declined to grant a waiver because Mr Mawhinney failed to provide any information relating to the financial position of the trust. He only provided information relating to his own personal circumstances.
Mr Mawhinney then sought a review of the Deputy Registrar’s decision.
When the file was referred to me, I issued a minute giving Mr Mawhinney an opportunity to file a statutory declaration setting out the Trust’s financial position.
He has since done so. According to the statutory declaration, the Trust has no fixed assets and no cash. Its only asset is the disputed debt at issue in the litigation.
The Trust’s financial position was plainly relevant and the Deputy Registrar was correct to decline waiver in the absence of any information about it. Had the information been made available at the outset, the decision would have been different.
I am satisfied in light of the new information that waiver should be granted.
The application for review of the Deputy Registrar’s decision is therefore granted and the filing fee of $1,100 is waived.

Solicitors:
Crown Law Office, Wellington for First Respondent

CaseChat Overview and Summary

Peter William Mawhinney, as trustee of the Forest Trust, sought to appeal a decision made by the Deputy Registrar of the Taxation Review Authority. The Deputy Registrar had declined Mawhinney’s application to waive the payment of a filing fee, which he sought on the grounds of undue hardship. The Commissioner of Inland Revenue and the Registrar of the Taxation Review Authority were the first and second respondents, respectively. Mawhinney, representing himself in the proceedings, appealed the decision to the Court of Appeal of New Zealand.

The central legal issue before the court was whether the Deputy Registrar's decision to decline the waiver of the filing fee was justified. Specifically, the court had to determine if the information provided by Mawhinney about the financial position of the Forest Trust was sufficient to support his claim of undue hardship. The Deputy Registrar had declined the waiver because Mawhinney did not provide information about the trust's financial status, only his personal circumstances. After the appeal was lodged, Mawhinney subsequently provided a statutory declaration detailing the trust's financial position, which revealed that the trust had no fixed assets or cash, with its only asset being the disputed debt at issue in the litigation.

The Court of Appeal, represented by French J, found that the trust's financial position was indeed relevant to the waiver application. Initially, the Deputy Registrar was correct to decline the waiver due to the lack of information about the trust's financial status. However, upon receiving the statutory declaration, the court was satisfied that the new information justified a waiver of the filing fee. Consequently, the court granted the application for review and waived the $1,100 filing fee.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established