R v Easton
[2013] NZHC 478
•11 July 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2011-041-001510 [2013] NZHC 478
THE QUEEN
v
STUART DAVID EASTON
Hearing: 1-5 July 2013
Counsel: K S Grau and A H Instone for Crown
C R Carruthers QC and R P Harley for Accused
Reasons: 11 July 2013
Verdicts: 12 July 2013
REASONS FOR VERDICTS OF COLLINS J
TABLE OF CONTENTS
Introduction .................................................................................................................................. [1] Context .......................................................................................................................................... [3] Ingredients of the charges ............................................................................................................ [7] Did the companies’ deduct PAYE from employees’ wages and salaries? ............................... [16] Did the companies fail to pay the PAYE deductions in question to the Commissioner? ...... [18] Commissioner’s application of payments ................................................................................ [26] Date for payment ..................................................................................................................... [33]
Did the companies knowingly fail to pay the PAYE deductions in question to the
Commissioner? ........................................................................................................................... [38]
24 April 2008 meeting ............................................................................................................. [39]
The companies’ financial circumstances.................................................................................. [42] The companies’ compliance ..................................................................................................... [48] Mr Easton’s admissions to the IRD.......................................................................................... [50] Mr Easton’s evidence ............................................................................................................... [57] Mr Bickerstaff ’s evidence ........................................................................................................ [59]
Analysis ....................................................................................................................................... [64] Mr Easton’s role in the companies........................................................................................... [66] Mr Easton’s admissions ........................................................................................................... [68]
Did Mr Easton aid and abet the companies when they knowingly failed to pay the PAYE deductions in question to the Commissioner? .......................................................................... [73] Conclusion ................................................................................................................................... [84]
R v EASTON [2013] NZHC 478 [12 July 2013]
Introduction
[1] The ultimate question I have answer is whether Mr Easton is guilty of aiding and abetting three companies who are alleged to have knowingly failed to pay PAYE deductions to the Commissioner of Inland Revenue (the Commissioner).
[2] The answer to that question depends on the answers to the following subsidiary questions:
(1)Did the companies deduct PAYE from salaries and wages of its employees during the relevant periods? If so,
(2) Did the companies fail to pay the PAYE deductions in question to the
Commissioner? If so,
(3)Did the companies knowingly fail to pay the PAYE deductions in question to the Commissioner? If so,
(4)Did Mr Easton aid and abet the companies when they knowingly failed to pay the PAYE deductions in question to the Commissioner?
Context
[3] Mr Easton and his wife owned and managed six companies and entities (the Easton group). This case concerns the three companies described in paragraphs [3](1), (2) and (3), (the companies). The Easton group comprised:
(1)East Quip Ltd (EQL), a light engineering business that employed approximately 20 people. EQL was incorporated on 12 May 2000 and became registered as an employer with the Inland Revenue Department (IRD) on 1 July 2000. EQL was placed into liquidation on 10 July 2009. Mr Easton was the sole director of EQL. He and Mrs Easton each owned 50 per cent of the shares in that company.
(2)Hooked on Rigging Ltd (HORL) which was in the business of installing poles and towers for electricity and telecommunciations
companies. HORL employed approximately 40 people. HORL was incorporated on 24 November 1994 and at that time became registered as an employer with IRD. Mr Easton was the sole director of HORL. He and his wife each owned 50 per cent of the shares in that company. HORL was placed into liquidation on 10 July 2009.
(3)Napier Equity Ltd (NEL) which provided management services to the Easton group. NEL employed approximately six people. NEL was incorporated on 28 February 1997 and became registered as an employer with IRD on 15 December 1998. Mr Easton was the sole director of NEL and held 50 per cent of the shares of that company. NEL was placed into liquidation on 6 August 2009.
(4)Galvanising (HB) Ltd, a metal galvanising company. At times this company was very successful. Mr Easton described it as being the “jewel in the crown” of the Easton group.
(5)Hooked on Transport Ltd, a company which leased equipment to businesses which predominantly operated in the forestry industry.
(6) Easton Property Trust, an asset holding entity for the Easton group.
[4] Mr Easton has been charged with 22 offences. Copies of the charges are annexed to this decision. The first six charges relate to EQL and allege that on six dates from 20 June 2008 to 20 September 2008, Mr Easton aided and abetted EQL when it knowingly failed to pay the Commissioner PAYE deductions that were due to be paid on the dates specified in the charges.
[5] The next seven charges relate to HORL and also concern payment dates from
20 June 2008 to 20 September 2008. These charges allege Mr Easton aided and abetted HORL when it knowingly failed to pay the Commissioner PAYE deductions made by HORL on the seven dates specified in the charges.
[6] The remaining nine charges relate to NEL and allege Mr Easton aided and abetted NEL when it knowingly failed to pay the Commissioner PAYE deductions made by NEL that were to be paid to the Commissioner on nine dates from 20 May
2008 to 5 July 2009.
Ingredients of the charges
[7] Section 143A(1)(d) of the Tax Administration Act 1994 (TAA) creates an offence for a person to knowingly fail to pay the Commissioner any deductions that are made or deemed to be made under tax law.
[8] Section 143A(1)(d) of the TAA provides:
143A Knowledge offences
(1) A person commits an offence against this Act if the person—
...
(d) knowingly applies or permits the application of the amount of a deduction or withholding of tax made or deemed made under a tax law for any purpose other than in payment to the Commissioner; ...
[9] Section 143A(1)(d) of the TAA requires proof of knowledge on the part of the taxpayer that the deducted sum was not paid to the Commissioner. For present purposes the “knowledge” requirements of s 143A(1)(d) of the TAA can be distilled to the following elements:
(1)In relation to each of the companies, the knowledge requirement of s 143A(1)(d) of the TAA can be attributed to the companies if an officer or an employee of the company with the requisite standing and
authority fails to pay PAYE deductions to the Commissioner.1
1 Nordik Industries Ltd v Regional Controller of Inland Revenue [1976] 1 NZLR 194 (SC) and
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7 (PC).
(2)In the context of s 143A(1)(d) of the TAA, “knowledge” requires proof of a conscious or intentional failure to pay PAYE deductions to the Commissioner. Mere inadvertence or oversight will not suffice.2
(3)Conscious or intentional omissions to pay PAYE deductions to the Commissioner may satisfy the “knowledge” requirement of s 143A(1)(d). In this respect it may be misleading to categorise the offence in s 143A(1)(d) as “one of commission not omission”.3
(4)It is not necessary to prove that the failure to pay PAYE deductions to the Commissioner occurred in circumstances where it was known by the taxpayer that the failure to pay PAYE deductions to the Commissioner constituted an offence.4
[10] Under s 4A(2)(c) of the TAA, the amount that is deducted or withheld is deemed to have been applied for a “purpose other than in payment to the Commissioner if the amount is not paid to the Commissioner by the relevant date”. The effect of s 4A(2)(c) of the TAA is that the Crown does not have to prove that payments of PAYE deductions by the companies to other creditors was a misapplication of the sums in question.
[11] Section 148(1) of the TAA makes it an offence for a person to assist or encourage another person to commit an offence under the TAA. Section 148(1) of the TAA provides:
148 Aiding or abetting
(1) A person who aids, abets, incites, or conspires with another person to commit an offence (the “principal offence”) against this Act also commits an offence against this Act.
2 The adverb “knowingly” is defined to mean:
“(a) in a knowing manner; (b) consciously, intentionally”; The Shorter Oxford English Dictionary (3rd ed, Oxford University Press, 1993); Muelen’s Hair Stylists Ltd v Commissioner of Inland Revenue [1963] NZLR 797 (SC).
3 Evans v Commissioner of Inland Revenue [2009] NZCA 251 at [38]. Almost all offences under s 143A(1)(d) of the TAA involve omissions because the actus reus of the offence involves failure to pay deductions or withholding tax.
4 Muelen’s Hair Stylists Ltd v Commissioner of Inland Revenue, above n 2; Commissioner of
Inland Revenue v Orme (1984) 6 NZTC 61,831.
...
[12] The following elements of s 148(1) of the TAA are relevant in this case:
(1)A person may aid or abet the commission of an offence against s 143A(1)(d) of the TAA by an omission.5
(2)Whether omissions constitute aiding or abetting for the purposes of an offence under s 143A(1)(d) of the TAA is an issue of fact that has to be assessed in the context of all relevant evidence.6
(3)To succeed under s 148 of the TAA the Crown needs to establish that the accused intentionally aided or abetted the commission of an offence under the TAA.7
[13] Mr Easton could not be guilty of aiding and abetting by omission the companies’ breaches of s 143A(1)(d) of the TAA unless he knew at the time the companies were required to pay PAYE deductions to the Commissioner and that they were not doing so.
[14] Mr Easton did not rely on the statutory defence contained in s 143A(4) of the
TAA because he appreciated that s 143A(4) did not apply in the circumstances of this case.8
5 Evans v Commissioner of Inland Revenue, above n 3.
6 Evans v Commissioner of Inland Revenue, above n 3, at [29].
7 Nayacakalou v R [2012] NZCA 331.
8 Section 143A(4) provides:
No person may be convicted of an offence under subsection (1)(d) for knowingly applying or permitting the application of an amount of withholding or deduction of tax for a purpose other than in payment to the Commissioner, if the person satisfies the Court that the amount of the deduction or withholding has been accounted for, and that the person's failure to account for it within the prescribed time was due to illness, accident, or other cause beyond the person’s control.
The scope of the statutory defence was considered in Commissioner v Inland Revenue v J F McCormick Ltd, where MacArthur J emphasised that the predecessor of s 143A of the TAA has limited application. MacArthur J said that a:
“cause beyond his control” that will excuse the employer from his failure to pay tax deductions to the Commissioner, ... is ... some cause beyond his control which prevents him from paying to the Commissioner moneys which, as a matter of law,
[15] Mr Easton is charged as a secondary party. The case has been presented on the basis that if the companies did not breach s 143A(1)(d) of the TAA then Mr Easton cannot be liable as a secondary party. It is therefore appropriate to first decide if the companies breached their obligations under s 143A(1)(d) of the TAA. The evidence which the Crown relies upon to establish that the companies breached s 143A(1)(d) of the TAA follows the same pattern for each company and can be explained by answering the first three questions posed in paragraph [2] of this decision, namely:
(1) Did the companies deduct PAYE from employees’ wages and
salaries? If so,
(2) Did the companies fail to pay the PAYE deductions in question to the
Commissioner? If so,
(3)Did the companies knowingly fail to the pay PAYE deductions in question to the Commissioner?
Did the companies’ deduct PAYE from employees’ wages and salaries?
[16] It is accepted in this case that each of the companies were required to deduct PAYE from their employees’ wages and salaries.9 It is also accepted that all three companies did in fact deduct PAYE from their employees’ wages and salaries during the periods to which the charges relate.
[17] I therefore find:
(1)EQL deducted PAYE from employee wages and salaries on the six occasions to which the first six charges relate.
are already held by him and impressed with a trust in favour of the Crown. The only “cause” referred to in the proviso is the cause of the employer’s failure to pay over those trust moneys to the Commissioner. Thus the fact that the employer is unable to obtain payment of his debts from persons indebted to him is not a “cause beyond his control” within the meaning of the proviso: and it makes no difference if the employer’s business, as in the present case, depends very greatly upon one particular source of revenue and that source dries up.
9 Income Tax Act 1994, s NC2(1).
(2)HORL deducted PAYE from employee wages and salaries on the seven occasions to which charges 7-13 inclusive relate.
(3)NEL deducted PAYE from employee wages and salaries on the nine occasions to which the remaining charges relate.
Did the companies fail to pay the PAYE deductions in question to the
Commissioner?
[18] It is accepted that because each of the companies were required to make annual PAYE deductions in excess of $100,000 they were required to account to the Commissioner for two pay periods each month. The deductions for the first period were to be paid to the Commissioner on the 20th of each month. The deductions for the second period were to be paid to the Commissioner on the 5th day of the following month.10
[19] Ms Williams provided most of the evidence that the Crown relied upon in support of its case that the company failed to pay the PAYE deductions in question to the Commissioner. Ms Williams is an IRD officer who in late 2008 became involved in the investigation conducted by IRD into the Easton group and into Mr and Mrs Easton. IRD records show the IRD’s investigations commenced in 2007.
[20] Most of Ms Williams’ evidence was extracted from the IRD FIRST system, a database that holds IRD’s information concerning all New Zealand taxpayers. Ms Williams produced copies of screen records held within the FIRST system in relation to each of the companies.
[21] Ms Williams’ evidence established that EQL and NEL began filing PAYE returns twice each month in June 2006. HORL began filing PAYE returns twice a month in June 2008.
[22] Ms Williams explained in her evidence that on the following due dates, EQL
failed to pay the Commissioner the following amounts of PAYE deductions:
10 Section NC15(1)(a) and (b).
Date Due PAYE not paid
20 June 2008 $9,119.13
5 July 2008 $7,038.50
20 July 2008 $7,866.44
20 August 2008 $6,008.48
5 September 2008 $8,254.61
20 September 2008 $5,281.53
[23] Ms Williams explained that on the following due dates HORL failed to pay the Commissioner the following sums of PAYE deductions:
Date Due PAYE not paid
20 June 2008 $20,135.05
20 June 2008 $11,028.60
5 July 2008 $ 9,812.6120 July 2008 $ 9,120.43
20 August 2008 $11,206.06
5 September 2008 $10,496.2220 September 2008 $11,905.84
[24] Ms Williams also explained that on the following due dates NEL failed to pay the Commissioner the following amounts of PAYE deductions:
Date Due PAYE not paid
20 May 2008 $ 7,112.71
5 June 2008 $ 9,442.03
20 June 2008 $ 5,632.80
5 July 2008 $ 5,997.41
20 July 2008 $ 6,056.92
20 August 2008 $ 4,572.58
5 September 2008 $ 4,838.9220 September 2008 $ 4,706.98
5 July 2009 $12,926.65
[25] Mr Easton took issue with the Crown’s contention that the companies had failed to pay the Commissioner all of the PAYE deductions in question by the due dates. Mr Easton based this aspect of his case on two grounds:
(1)The way the Commissioner applied payments made by the companies.
(2) The date when the payments were due.
Commissioner’s application of payments
[26] The evidence before me included copies of the following five cheques:
(1) A cheque from EQL to the Commissioner for $20,000 dated 9 June
2008.
(2) A cheque from EQL to the Commissioner for $11,466.33 dated
20 October 2008.
(3) A cheque from HORL to the Commissioner for $15,737.38 dated
20 October 2008.
(4) A cheque from NEL to the Commissioner for $9,095.86 dated
5 August 2008.
(5) A cheque from NEL to the Commissioner for $5,273.76 dated
2 October 2008.
[27] In addition to these cheques, EQL paid the Commissioner $20,000 on
24 April 2008 and HORL paid the Commissioner $20,000 on 9 May 2008.11
[28] Ms Williams explained that the money received from the companies was applied by the Commissioner to:
(1)interest owed to the Commissioner by the companies for any unpaid tax relating to the first monthly PAYE tax period;12
11 Exhibit 1, tab 30, entry for 9 May 2008.
12 TAA, s 120F.
(2)the tax that was outstanding. Priority was given to clearing outstanding Kiwisaver contributions, PAYE, child support contributions and student loan repayments;
(3) late payment penalties
[29] As a consequence, the cheques referred to in paragraph [26] were applied in
the following way to reduce the companies’ PAYE liabilities:
(1) EQL cheque of 9 June 2008: $17,539.20 applied to PAYE
deductions.
(2) EQL cheque of 20 October 2008: $10,141.94 applied to PAYE
deductions.
(3) HORL cheque of 20 October 2008: $13,283.34 applied to PAYE
deductions.
(4) NEL cheque of 5 August 2008: $ 8,282.85 applied to PAYE
deductions.
(5) NEL cheque of 5 October 2008: $ 4,773.20 applied to PAYE
deductions.
[30] In addition, the cheque of $20,000 handed to IRD on 24 April 2008 was
applied towards part of EQL’s outstanding PAYE for the pay period ending 31 March
2008. The cheque for $20,000 paid by HORL on 9 May 2008 was used to clear outstanding child support payments and applied towards part of HORL’s outstanding PAYE for the pay period ending 31 October 2007.13
[31] I am satisfied beyond reasonable doubt that Ms Williams’ calculations are
correct and that as a matter of both fact and law the payments made by the companies did not result in payment of the PAYE which the companies had deducted
13 Exhibit 1, tab 30, entries for 28 (sic) April 2008 and 9 May 2008.
and which were due to be paid to the Commissioner on each of the dates specified in the charges.
[32] I am very satisfied that the Crown has carefully differentiated between periods in relation to which the companies accounted for PAYE deductions and periods when the companies failed to account for PAYE deductions. Thus, no charge has been brought in relation to any of the companies for the payments due on 5
August 2008 because each company paid their PAYE deductions for the pay periods ending 31 July 2008 on 5 August 2008. However, EQL and HORL failed to pay PAYE deductions on all other due payment dates from 20 June 2008 to 20 September
2008. NEL failed to account for PAYE payments on all dates it was due to pay PAYE from 20 May 2008 to 20 September 2008 apart from on 5 August 2008. NEL also failed to pay the PAYE which was due on 5 July 2009.
Date for payment
[33] The second part to Mr Easton’s case in relation to whether or not the companies paid PAYE by the due date concerned the claim that the Commissioner had extended the period for the companies to pay PAYE. This submission was founded upon a letter which IRD sent to each of the companies on 7 November
2008. In those letters IRD explained the amount of PAYE which at that stage was thought to be due and the dates that the payments should have been made. Thus, in the case of EQL, the IRD said:
The amounts now due for PAYE deductions for the periods listed below, including late payment penalties and interest, are:
Period Original amount Amount now due
31 March 2008
30 April 2008
31 May 2008
30 June 2008
31 July 2008
31 August 2008
$17,071.21
$22,674.26
$17,698.43
$16,157.63
$17,511.95
$14,263.09
$6,635.02
$10.493.02
$387.03
$18,404.53
$9,213.11
$15,566.41
The IRD’s letter then said:
To avoid a 10% non-payment penalty for these periods please either pay the amount now due in full or contact us by 05 December 2008 to enter into an instalment arrangement.
[34] Similar letters were sent to HORL and NEL.
[35] Mr Carruthers QC, senior counsel for Mr Easton submitted that the IRD’s letters of 7 November 2008 contained variations to the dates that PAYE was due to be paid by the companies and that those changes meant no offence was committed by reason of the companies’ earlier failures to pay PAYE on the due date.
[36] I do not accept this submission. The due dates are prescribed by law as being the last day on which a taxpayer can pay their tax before being liable to pay penalties or interest.14 The offences under s 143A(1)(d) of the TAA were committed when the companies failed to account to the Commissioner by the due dates for the amounts of PAYE which the companies had defaulted in paying in relation to the relevant pay periods. All the letters of 7 November 2008 did was offer the companies the chance to avoid non-payment penalties for the periods the companies had failed to account for PAYE. The letters of 7 November 2008 did not set a new due date for paying
PAYE for the periods to which the charges relate.
[37] I am therefore satisfied beyond reasonable doubt that the companies failed to pay PAYE on the dates that those payments were lawfully due to be made. Those are the dates which Ms Williams explained and which are set out in paragraphs [22]-[24] of this decision.
Did the companies knowingly fail to pay the PAYE deductions in question to the
Commissioner?
[38] I will analyse the evidence concerning the companies’ knowledge that they
were not paying the PAYE deductions in question to the Commissioner on the due dates under the following headings:
14 Refer to the definition of “due dates” in s 3(1) of the TAA, and Income Tax Act 2007,
s RD22(2).
(1) 24 April 2008 meeting;
(2) Companies’ financial circumstances;
(3) Companies’ compliance;
(4) Mr Easton’s admissions to the IRD;
(5) Mr Easton’s evidence; and
(6) Mr Bickerstaff ’s evidence.
24 April 2008 meeting
[39] IRD’s investigations into the Easton group, and Mr and Mrs Easton led to a meeting on 24 April 2008 between Ms Lancaster, an IRD employee, Mr and Mrs Easton and Mr Taylor, the Easton groups’ tax advisor and external account. Ms Lancaster explained in her evidence that at the 24 April meeting she:15
told them all that it was a criminal offence not to pay over to the department the PAYE deducted from employees’ wages, ... funds deducted from wages are not funds of the company and [what] the consequences could be if [a] prosecution was taken, a $50,000 fine and/or five years’ imprisonment.
[40] When cross-examined, Mr Easton agreed that Ms Lancaster told him and the others who attended the meeting of 24 April 2008 “about PAYE, what it was [and] what the consequences were for non-payment”.16
[41] In addition to Ms Lancaster’s very clear warning on 24 April 2008 to Mr
Easton, Mr Taylor also advised Mr Easton about the companies’ obligations in
relation to PAYE.17
15 R v Easton HC Wellington CRI-2011-041-1510 Notes of Evidence, 1 July 2013 at 3, lines 1-5.
16 At 148, line 24 to 149, line 4 and 150, line 29 to 151, line 12.
17 At 149, lines 5-6 and 151, lines 20-22.
The companies’ financial circumstances
[42] The meeting of 24 April 2008 was arranged because entities within the Easton group were failing to meet their tax obligations. The reasons for that related to the very difficult financial circumstances that the Easton group were facing. Mr Easton described the financial difficulties faced by the Easton group at this time as “dire straits”.18
[43] Mr Easton’s description of the financial challenges the Easton group were facing in 2008 was very accurate. The most objective depiction of the Easton group’s financial difficulties can be found in an annual EBIT19 analysis in reports prepared for the Easton group in March 2009 by both PricewaterhouseCoopers and MP Capital. The EBIT table in the MP Capital report graphically highlights the
enormous challenges faced by the Easton group from 2007 to 2009:20
EBIT for year ended March
($000’s)
2006 2007 2008 2009E*
NEL Galv HB HOR HOT EQL
EPT
Group
27
723 (33)
48
(59)
265
971
85
625 (205)
10
(14)
294
795
36 (285) (662)
5 (224)
210
(920)
198
285 (605)
(37)
(608)
942
175
*2009E = Actuals for 1 April 08 to 28 February 09
[44] Even Galvanising (HB) Ltd, the “jewel in the crown”21 of the Easton group suffered a significant reversal in fortune from 2007 to 2008 which Mr Easton explained was attributable to an unprecedented global spike in the cost of zinc.
[45] The poor trading performance of the Easton group during the 2007 to 2009 period was matched by a significant escalation in the group’s inability to pay creditors. By February 2009 the group’s debts were $1.05 million, of which
$266,527.12 had been outstanding for three months or more.22 By January 2009 the
group’s fixed assets, which had a book value of $4.7 million were subject to charges
18 At 153, line 28.
19 Earnings before Interest and Tax.
20 Exhibit C at 1.
21 Notes of Evidence at 188, line 12.
22 Exhibit C at 2.
of $4.1 million.23 It is therefore not surprising that in PricewaterhouseCoopers’
assessment the Easton group was insolvent by 31 January 2009.24
[46] Mr Easton responded in a number of ways to the Easton group’s financial
difficulties. Three of the steps Mr Easton took were:
(1)First, Mr Easton, who is trained as a fitter and welder, did his best to generate more income. He described himself as an operational person who spent 70 per cent of his time out in the field dealing with clients and developing business.25
(2)Secondly, Mr Easton engaged external advisors to assist with restructuring the Easton group. Those advisors included Mr Taylor and Mr Wallace from MP Capital. Part of the restructuring included genuine attempts to sell Galvanising (HB)26 and putting in place management and governance structures designed to enable Mr Easton “... to step back from the day today management of the business.”27
(3) Thirdly, additional capital was injected into the Easton group. By
January 2009 the Easton family and one of its trusts had advanced
$2.4 million which appears to have been unsecured.28
[47] As I will explain later in this decision, it is also very clear that the Easton group chose which creditors should be paid in order to keep the businesses afloat for as long as possible. For this reason, the Easton group paid other creditors in preference to the IRD. As a consequence, by February 2009 the Easton group owed
the IRD $1.137 million of which $638,000 was for PAYE.29
23 Exhibit B at 9.
24 Exhibit B at 9.
25 See for example, Notes of Evidence at 127, line 25; at 129, lines 17-24 and 203, line 4.
26 Notes of Evidence at 142, line 1 to 143, line 15.
27 Exhibit C at 5.
28 Exhibit B at 9.
29 Exhibit B at 9.
The companies’ compliance
[48] When the companies’ financial circumstances permitted they paid their taxes. IRD’s records demonstrate that apart from NEL’s default in relation to PAYE in July
2009, just a matter of weeks before it was placed in liquidation, all of the companies with which this proceeding is concerned resumed paying PAYE in early October
2008 through to the time they were placed in liquidation.
[49] Thus, it is apparent that the companies paid other creditors in preference to accounting to the Commissioner for the PAYE that should have been paid to the Commissioner for a discrete period from mid-May 2008 to late September 2008 (and in early July 2009 in the case of NEL).
Mr Easton’s admissions to the IRD
[50] Mr Easton’s roles as a director and key decision-maker within the companies owned by him and his wife lead me to conclude that he was the “directing mind and will”30 of the companies. His actions and omissions can therefore be attributed to
the company under the general rules of attribution.31
[51] Mr Easton was interviewed by IRD officers on 26 February 2009 in relation to EQL and on 18 August 2009 in relation to HORL and NEL. On both occasions Mr Light, a senior advisor within IRD conducted the interviews on behalf of IRD.
[52] Prior to the interviews Mr Light wrote to each of the companies and Mr Easton explaining the purpose of the interviews and that Mr Easton and the companies could have a lawyer or professional advisor present at the interviews. Mr Easton arranged for Mr Taylor to attend the interviews with him.
[53] At the outset of the interviews Mr Light explained that one of the purposes of the interviews was to obtain an explanation from the companies about their failure to
30 Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713; Tesco Supermarkets Ltd v Nattras [1972] AC 153; Meridian Global Funds Management Asia Ltd v Securities Commission, above n 1.
31 Meridian Global Funds Management Asia v Securities Commission, above n 1.
pay PAYE on a number of dates, including the dates to which each of the charges relate.
[54] In his interview on 26 February 2009 in relation to EQL Mr Easton explained:
(1) That he was the person who decided how money in the companies’
bank account was to be spent.32
(2)That IRD did not receive the PAYE payments by the due dates because of a “lack of cash flow stemming from downturn, increased costs and internal problems”. He also said there was “always an expectation that payment would be made in the short term”.33
(3)That EQL used the PAYE deductions to “keep the wolf from the door” and that the “cash [was] necessary for operation of the business
...”.34
(4) That he was responsible for payment of PAYE to IRD.35
[55] In his interview on 18 August 2009 in relation to HORL, Mr Easton explained:
(1)That he “looked after the PAYE obligations of HORL ... as a cheque signer”.36
(2) That he would “ultimately approve” which creditors got paid.37
(3) That there was never an intention not to pay PAYE, and that it was
“never a willing choice” not to PAYE and that the failure to pay PAYE
was due to short term cash flow problems.38
32 Exhibit 1, tab 26 at [27].
33 At [49].
34 At [51].
35 At [53].
36 Exhibit 1, tab 27 at [20].
37 Exhibit 1, tab 27 at [11].
(4) That he was the person who made the “reluctant decision” not to pay
PAYE to IRD.39
[56] In his interview in relation to NEL, Mr Easton said:
(1)That he was responsible for deducting PAYE and withholding payments.40
(2)That the PAYE deductions were used by the company as short term working capital.41
(3) That he was responsible for paying PAYE to the IRD.42
Mr Easton’s evidence
[57] When he gave his evidence in chief, Mr Easton recanted the admissions he had made when interviewed on 26 February 2009 and 18 August 2009. In particular, Mr Easton said in his evidence in chief:
(1)that he had “very little to no role” in relation to PAYE;43 that he could not recall ever signing a PAYE cheque; that PAYE was attended to by persons “in the office”, and that it was not one of his roles;44
(2)that his wife was also authorised to sign company cheques and that if he did so, it was by chance;45
(3)that he did not know that PAYE had not been paid on each of the dates specified in the charges;46
38 At 15.
39 At 17.
40 At 30.
41 At 27 and 31.
42 At 32.
43 Notes of Evidence at 131, lines 10-12.
44 At 132, line 2; at 136, line 29 and at 137, lines 11-13.
45 At 131, lines 30-35.
46 At 132, line 27 to 133, line 3.
(4)that his admission to IRD that he was “responsible” was said at the time in order to protect the companies’ hard working employees from being accused of wrongdoing.47 In particular, Mr Easton said he was protecting his wife and Priscilla Martins, an accounts staff member who prepared cheques for signing;48
(5)that decisions about how the companies’ money was spent would be agreed to by “a team” of managers;49
(6)that he accepted that he had ultimate responsibility for what the team did because he was a director of the companies;50
(7)that his admission to IRD that he was responsible for PAYE payments referred to his understanding of his responsibilities at the time of the interviews, not the periods to which the charges relate;51 and
(8) that he never made a decision not to pay PAYE to the IRD.52
[58] When cross-examined, Mr Easton continued his denials of responsibility but even so he did accept:
(1) that “ultimately” he could say “what got paid and what didn’t get paid” by the companies;53
(2) that he was “ultimately responsible” for the failure to pay PAYE,54
although it was not his decision to default in accounting to IRD for
the companies’ PAYE deductions;55
47 At 133, line 24 to 134, line 15.
48 At 134, lines 21-23.
49 At 135, line 12.
50 At 135, line 25.
51 At 136, lines 5-11.
52 At 136, lines 25-26 and at 140, lines 3-10.
53 At 183, line 33 to 184, line 3.
54 At 184, line 25.
55 At 184, line 27.
(3) that the decision not to PAYE had to be his “as the business owner”;56
and
(4) that he was the “company”.57
Mr Bickerstaff ’s evidence
[59] Mr Bickerstaff became the manager of Galvanising (HB) in 1997. In April
2008 he became the “Finance and Legal Officer” for the Easton group.
[60] Mr Bickerstaff explained the roles of various personnel within the Easton group as at June 2008 by reference to a chart which he prepared at the time.
[61] Mr Bickerstaff said that Mr Easton was:58
the leader, he was the inspirational driving force ... he dealt a lot with ... developing new ideas and trying to optimise the performance of the staff and the managers within the company.
Mr Bickerstaff also explained that Mr Easton was not involved on a daily basis in the companies’ accounting functions.59
[62] Mr Bickerstaff said that PAYE returns were prepared by clerks in each of the companies within the Easton group and payments were prepared by Priscilla Martins, who would prepare cheques for Mrs Easton to sign.60
[63] Mr Bickerstaff also explained that when the companies were facing serious financial pressure Mr Easton was involved in discussions with banks, lenders and investors61 and that he and his wife were the main decision-makers in the companies.62 Mr Bickerstaff also accepted that Mr Easton needed up-to-date
financial information to help him with managing the companies’ financial
56 At 189, line 7.
57 At 189, line 23.
58 At 202, lines 1-5.
59 At 202, lines 14-16 and at 205, line 15.
60 At 203, lines 7-14.
61 At 218, lines 21-23.
62 At 214, lines 4-5.
challenges. This information included monthly reports from June to September 2008
on the companies’ liabilities.63
Analysis
[64] I am in no doubt the companies knew they were not accounting to the Commissioner for PAYE on the dates payments were due in relation to each of the companies to which the charges relate. I am also satisfied beyond reasonable doubt that the companies knew they were failing to account to the Commissioner for PAYE deductions on each of the dates referred to in the charges.
[65] My reasons for reaching this conclusion are explained under the following headings:
(1) Mr Easton’s role in the companies; and
(2) Mr Easton’s admissions.
Mr Easton’s role in the companies
[66] I am very certain Mr Easton was fully aware that the companies were not paying PAYE to the Commissioner on the dates referred to in the charges and that his knowledge of those defaults can be attributed to the companies because of his status as a director and “inspirational driving force” of each of the companies, and because he was a key decision-maker within the companies.
[67] I believe Mr Easton knew of the companies’ defaults in paying PAYE on the
dates those payments were due because:
(1) Mr Easton was fully and fairly warned of the companies’ PAYE responsibilities on 24 April 2008. I do not believe it plausible that he would have failed to keep himself appraised of the companies’ PAYE position after receiving Ms Lancaster’s clear and unequivocal
warning.
63 At 218, line 21 to 219, line 4.
(2)Mr Easton was the “inspirational driving force” of the companies. He was a principal decision-maker who had invested significant money, time and effort into making the companies succeed. He was determined to ensure that he and the companies met their obligations.64 He was clearly very concerned when the companies started to face significant financial pressures. He took all steps he believed he reasonably could to salvage the companies. Those steps included making reluctant decisions to delay paying PAYE until the
companies’ financial positions improved.
(3)While I accept Mr Easton invested considerable time and effort into operational matters, I am also satisfied that he was very familiar with the companies’ financial positions during the periods covered by the charges and that it defies common sense to suggest he was oblivious to the companies’ failure to pay PAYE on the dates those payments were due. Mr Easton’s involvement in “day to day management of the business” led to MP Capital recommending in March 2009 that the Easton group management and governance be restructured. That recommendation would not have been made had Mr Easton not been involved in the day to day management of the business during the period to which the first 21 charges relate. It is impossible to accept Mr Easton could not have been fully aware of the companies’ PAYE issues when they arose as a consequence of his “day to day” role in the management of the businesses.
(4)I do not believe Mr Easton could possibly have undertaken all the work he has described to salvage the companies without being fully familiar with the companies’ true financial positions, including their liabilities to the Commissioner. Understanding the companies’
liabilities to the Commissioner at the time they arose must also have
64 To his credit Mr Easton ensured that he, his wife, and Galvanising (HB) paid their outstanding tax liabilities. Those liabilities were $643,695.70 for Galvanising (HB); $150,351.21 for Mr Easton and $66,412.44 for Mrs Easton (refer Exhibit 1, tab 30).
involved him understanding that the companies were failing to pay
PAYE on the dates those payments were due.
(5)It is clear the companies made a conscious effort to pay their taxes when they could. This was primarily due to Mr Easton’s determination that the companies and he would pay their debts.65
However, during the period to which the charges relate the companies found themselves unable to pay all of their tax bills much to Mr Easton’s personal disquiet.
Mr Easton’s admissions
[68] I believe Mr Easton’s admissions to the IRD on 26 February 2009 and
18 August 2009 were accurate. The interviews were conducted against the background of Mr Easton being fully aware of the purpose of the interviews and the PAYE periods that the interviews related to. The admissions as to why PAYE was not paid was entirely understandable given the serious financial predicament which the Easton group was in and the companies’ need to find ways to generate cash in order to keep trading.
[69] During the replay of the recordings of Mr Easton’s interviews of 18 August
2009 I was struck by the frankness and candour of the way he answered Mr Light’s questions. Unfortunately, I cannot say the same about the way Mr Easton gave his evidence in Court. Even allowing for his obvious discomfort at being in Court, I could not help but note that Mr Easton did not answer clear questions directly. Indeed, there were occasions when Mr Easton appeared to be intent on not answering questions that had been put to him. For example, Mr Easton appeared to be very reluctant to acknowledge that he was advised in April 2008 about the companies’ PAYE obligations. His evidence on this straightforward topic traverses
four pages of transcript.66
[70] In my view Mr Easton’s admissions to IRD’s officers on 26 February 2009
and 18 August 2009 were entirely consistent with:
65 Notes of Evidence at 149, lines 15-24.
(1) Mr Easton’s position as the “inspirational driving force”, director and
key decision-maker within the company;
(2)what he knew about the companies’ liquidity challenges, including their liabilities to the Commissioner; and
(3)his determination to do all he could to enable the companies to survive.
Conversely I do not believe Mr Easton was protecting others when on 26 February and 18 August 2009 he accepted responsibility for the decisions which resulted in the companies failing to pay PAYE deductions to the Commissioner on the dates specified in the charges.
[71] Mr Easton’s candid and logical admissions to IRD on 26 February 2009 and
18 August 2009 establish that:
(1)Mr Easton was ultimately making the decisions as to how the companies allocated payments to creditors.
(2)IRD did not receive PAYE on the due dates because of a lack of cash flow.
(3)PAYE was used to keep the businesses operating as a short term measure.
(4) It was Mr Easton who ultimately made the decision not to pay PAYE
and his decision was made “under duress”.67
(5) Mr Easton knew at the time the companies were defaulting in paying
PAYE.68
67 Exhibit 1, tab 26 at [54].
[72] The decision that NEL would not pay the PAYE that was due on 5 July 2009 was a particularly calculated decision on the part of NEL. At that stage Mr Easton appreciated that EQL and HORL were likely to be liquidated and that there was therefore little to be gained by also trying to continue to save NEL.69 In these circumstances NEL could also see little reason why it should make the last of its PAYE payments.
Did Mr Easton aid and abet the companies when they knowingly failed to pay the PAYE deductions in question to the Commissioner?
[73] In this case the Crown is required to establish beyond reasonable doubt that:
(1) Mr Easton knew that the companies were not paying the
Commissioner the PAYE deductions in question on the due dates.
(2)Through his conduct Mr Easton encouraged or assisted the companies not to pay the PAYE deductions in question to the Commissioner.
(3)Mr Easton intended to encourage or assist the companies not to pay the PAYE deductions in question to the Commissioner.
[74] I have already explained why I am sure Mr Easton knew the companies were not paying the Commissioner the PAYE deductions that were due on the dates referred to in the charges. I have attributed Mr Easton’s knowledge to the companies when determining that the companies knowingly failed to pay the PAYE deductions in question to the Commissioner. It is therefore not necessary to repeat why I am satisfied beyond reasonable doubt Mr Easton knew the companies were not paying the PAYE deductions that they should have been paying to the Commissioner.
[75] The second and third matters about which I must be satisfied require further analysis.
69 Notes of Evidence at 96, lines 10-12.
[76] In this case the Crown alleges Mr Easton is guilty because through his omissions he encouraged and assisted the companies not to pay the PAYE deductions in question to the Commissioner.
[77] Where the directing mind and will of a company stands by and allows an employee not to pay tax which the company owes then that person’s behaviour can, by omission, assist or encourage the company’s failure to pay tax.70 This culpability through omission is compounded when the directing mind and will of the company has a duty to ensure that the company pays its taxes.71 However, in this case I proceed on the basis that the Crown has to prove beyond reasonable doubt Mr Easton intentionally aided and abetted the companies.
[78] I am satisfied that during the periods to which the charges relate Mr Easton could and should have taken steps to ensure that the companies accounted to the Commissioner for the PAYE deductions which the companies had made.
[79] Mr Easton could and should have taken those steps because:
(1)He was the controlling mind and will and the “inspirational driving force” of the companies. He was a director of each company and he was a key decision-maker within each of those companies.
(2)He was fully aware of the companies’ PAYE obligations which had been clearly explained to him by Ms Lancaster on 24 April 2008. He knew criminal offences would be committed if the companies did not satisfy their PAYE obligations.
(3)He knew that because of the companies’ challenging financial circumstances difficult choices had to be made about which creditors
were paid.
70 Evans v Commissioner of Inland Revenue, above n 3 and R v Witika [1993] 2 NZLR 424 (CA).
71 Evans v Commissioner of Inland Revenue, above n 3, at [44]; Companies Act 1993, ss 131, 133,
136 and 137; R v Brough CA507/96, 27 February 1997. Where a defendant has a duty to intervene, their failure to do so may by itself constitute aiding and abetting (refer A P Simester, W J Brookbanks “Principles of Criminal Law” (Thomson Reuters, Wellington, 2012) at [6.4.3].
(4)He knew that the companies needed to pay other creditors in preference to IRD in order to “keep the wolf from the door” by using the PAYE deductions in question as short term capital to keep the companies trading.
[80] I am satisfied that Mr Easton was not directly involved in administering PAYE payments. The administrative functions relating to PAYE were undertaken by clerks and other employees of the companies. In most instances Mrs Easton would have signed PAYE cheques or attended to electronic payments.
[81] Nevertheless, Mr Easton knew that he could decide what creditors were paid and what creditors were not paid.72 That responsibility included him having the ability to instruct his staff to ensure that the Commissioner was paid PAYE deductions on the due date. Mr Easton did not do this and through this omission he assisted the companies’ non-payment of PAYE deductions.
[82] In my assessment, Mr Easton consciously and intentionally chose not to direct his staff to ensure the PAYE deductions in question were paid on time. He did this because he wanted to do all he could to keep the companies trading and because he believed it was necessary to temporarily withhold paying PAYE to the Commissioner until the companies’ financial positions improved.
[83] Mr Easton’s conscious decision not to instruct the companies’ staff to ensure the PAYE deductions in question were paid to the Commissioner meant Mr Easton was, through his omissions, intentionally encouraging and assisting the companies in their breaches of s 143A(1)(d) of the TAA.
Conclusion
[84] I am satisfied beyond reasonable doubt that Mr Easton is guilty of aiding and abetting EQL, HORL and NEL when they knowingly failed to pay PAYE deductions to the Commissioner in each of the instances set out in the 22 charges.
[85] Mr Easton will be convicted on each of the charges.
72 Notes of Evidence at 183, line 33.
Solicitors:
Crown Solicitor, Wellington
Lawson Robinson Ltd, Napier for Accused
D B Collins J
Appendix
Charges relating to East Quip Limited (counts 1 to 6)
Count One THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 June 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet East Quip Limited (in liquidation) to knowingly apply or permit the application of PAYE
deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 15 June 2008.
Count Two THE CROWN SOLICITOR AT WELLINGTON
Tax Administration Act 1994 CHARGES that STUART DAVID EASTON on or about Sections 143A(1)(d) and 148(1) 5 July 2008, at Napier, did aid or abet East Quip Limited (in liquidation) to knowingly apply or permit the
application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 30 June 2008.
Count Three THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 July 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet East Quip Limited (in liquidation) to knowingly apply or permit the application of PAYE
deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 15 July 2008.
Count Four THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 August 2008, Sections 143A(1)(d) and 148(1) did aid or abet East Quip Limited (in liquidation) to knowingly apply or permit the application of PAYE
deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 15 August 2008.
Count Five THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 September Sections 143A(1)(d) and 148(1) 2008, at Napier, did aid or abet East Quip Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
31 August 2008.
Count Six THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 September Sections 143A(1)(d) and 148(1) 2008, at Napier, did aid or abet East Quip Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 September 2008.
Charges relating to Hooked on Rigging Limited (counts 7 to 13)
Count Seven THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 June 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in
Liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 31 May 2008.
Count Eight THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 June 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a
tax law for a purpose other than in payment to the
Commissioner of Inland Revenue for the period ending
15 June 2008.
Count Nine THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 July 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
30 June 2008.
Count Ten THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 July 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 July 2008.
Count Eleven THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 August 2008, Sections 143A(1)(d) and 148(1) at Napier, did aid or abet Hooked on Rigging Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 August 2008.
Count Twelve THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 September Sections 143A(1)(d) and 148(1) 2008, at Napier did aid or abet Hooked on Rigging
Limited (in liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 31 August 2008.
Count Thirteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 September Sections 143A(1)(d) and 148(1) 2008, at Napier, did aid or abet Hooked on Rigging
Limited (in liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 15 September 2008.
Charges relating to Napier Equity Limited (counts 14 to 22)
Count Fourteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 May 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Napier Equity Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a
tax law for a purpose other than in payment to the
Commissioner of Inland Revenue for the period ending15 May 2008.
Count Fifteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 June 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
31 May 2008.
Count Sixteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 June 2008, at Sections 143(1)(d) and 148(1) Napier, did aid or abet Napier Equity Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 June 2008.
Count Seventeen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 July 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Hooked on Rigging Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
30 June 2008.
Count Eighteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 July 2008, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Napier Equity Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 July 2008.
Count Nineteen THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 August 2008, Sections 143A(1)(d) and 148(1) at Napier did aid or abet Napier Equity Limited (in liquidation) to knowingly apply or permit the application
of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
15 August 2008.
Count Twenty THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 September Sections 143A91)(d) and 148(1) 2008, at Napier, did aid or abet Napier Equity Limited
(in liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 31 August 2008.
Count Twenty One THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 20 September Sections 143A(1)(d) and 148(1) 2008, at Napier, did aid or abet Napier Equity Limited
(in liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending 15 September 2008.
Count Twenty Two THE CROWN SOLICITOR FURTHER CHARGES that Tax Administration Act 1994 STUART DAVID EASTON on or about 5 July 2009, at Sections 143A(1)(d) and 148(1) Napier, did aid or abet Napier Equity Limited (in
liquidation) to knowingly apply or permit the application of PAYE deductions made or deemed to be made under a tax law for a purpose other than in payment to the Commissioner of Inland Revenue for the period ending
30 June 2009.
2
2
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