Hearing: 9 June 2016

Court:

William Young, Glazebrook, Arnold, OʼRegan and McGrath JJ

Counsel:

R M Lithgow QC and N Levy for Appellant (SC 79/2015) R C Laurenson for Appellant (SC 126/2015)

H W Ebersohn, P D Marshall and M J Ferrier for Respondent

Judgment:

10 August 2016

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS

(Given by O’Regan J)

Table of Contents

Para No.

False information in tax returns [1]

Proof of falsity of information in assessments [3]

Elements of the offence [9]

Interpretations of section 109 [12]

Purpose of section 109 [14]

BARRIE JAMES SKINNER v R [2016] NZSC 101 [10 August 2016]

Statutory scheme [21]

Statutory history [30]

Cases on the current section 109 [53]

R v Smith [54]

R v Allan [56]

Other authority [61]

Practical considerations [63]

Bill of Rights [67]

Conclusion [73]

Alternative argument [74]

Result [75]

False information in tax returns

[1] The appellants appeal against one aspect of a decision of the Court of Appeal dismissing their appeals against conviction and sentence for a large number of charges involving tax fraud.1 The sole issue on the appeal is whether s 109 of the Tax Administration Act 1994 (TAA) precluded conviction on counts 101–110 of the indictment.2

[2] Counts 101–110 allege that Mr Rowley or Mr Skinner knowingly provided false information to the Commissioner of Inland Revenue (the Commissioner) in their personal tax returns for the years 2006–2010. Because the Commissioner did not formally dispute the tax returns, they were assessments as defined in s 3 of the
TAA.3 The falsity alleged by the Crown in relation to counts 101–110 was the

failure of the appellants to include information in their tax returns for the relevant years concerning the personal benefit that they obtained by the transactions giving rise to the substantive frauds which founded earlier counts in the indictment on
which they were convicted.

1 Rowley v R [2015] NZCA 233, (2015) 27 NZTC ¶22-011 (Ellen France P, Harrison and
Stevens JJ).
2 Skinner v R [2016] NZSC 7, (2016) 27 NZTC ¶22-040. Leave to appeal against other aspects of the Court of Appeal decision was declined. The applicants were charged with 93 counts of dishonestly using a document to obtain a pecuniary advantage (including four which were discharged during the trial); seven joint counts of wilfully attempting to pervert the course of justice; and each was charged separately with five counts of knowingly providing false
information to the Inland Revenue Department (IRD) in their own income tax returns.
Mr Skinner and Mr Rowley were convicted of 80 and 75 counts respectively of the charges of dishonestly using a document for a pecuniary advantage and all charges of wilfully perverting the course of justice and knowingly providing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skinner v R

Details

AGLC: Skinner v R [2016] NZSC 101
Case: [2016] NZSC 101
Decision Date: 10 August 2016

CaseChat Overview and Summary

In Skinner v R and Rowley v R, the Supreme Court of New Zealand dismissed the appeals of two taxpayers who had been convicted of tax fraud. The Court considered whether section 109 of the Tax Administration Act 1994 precluded conviction for charges of knowingly providing false information in tax returns. Section 109 states that disputable decisions, such as tax assessments, are deemed correct except in objection proceedings. The appellants argued that this precluded the Crown from proving the falsity of the information in their tax returns. The Court found that section 109 was intended to apply only in civil proceedings, not criminal ones. This conclusion was based on the purpose of section 109, the statutory scheme of the Tax Administration Act, the statutory history of section 109, and the practical considerations of interpreting the provision to apply in criminal cases. The Court also noted that interpreting section 109 to apply in criminal cases would unduly impinge on the right to a fair trial. The Court ultimately concluded that section 109 does not preclude conviction for charges under section 143B of the Tax Administration Act.

Orders