Smith v R

IN THE SUPREME COURT OF NEW ZEALAND
SC 73/2008
[2008] NZSC 110
GEOFFREY MARTIN SMITH
v
THE QUEEN
Court:Elias CJ, Blanchard and Wilson JJ
Counsel:D G Hayes for Applicant

S J Mount for Crown

Judgment:12 December 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       The applicant seeks leave to appeal against a judgment of the Court of Appeal[1] dismissing his appeal against his conviction on 94 counts of failing to file income tax and GST returns and pay PAYE. He wishes to advance on appeal the propositions of law that:
·     conviction on charges of not filing income tax returns requires proof of the amount of tax owed;
·     conviction on charges of misappropriation of PAYE payments requires proof of the amount of PAYE payable;
·     s 109 of the Tax Administration Act 1994 does not mean what it says – the section states, in material part, that except as provided in the Act, “no disputable decision may be disputed in a Court … on any ground whatsoever”.
[1] [2008] NZCA 371.

[2]       The first issue turns on the construction of s 143B(1)(f) of the Tax Administration Act which requires that there be proved, in addition to the failure to file a return, an intention “to evade the assessment or payment of tax by the person or any other person under a tax law”. These words do not require, expressly or by implication, proof that a specific amount of tax is owed; all that must be established is an intention to evade assessment or payment.
[3]       The second question arises out of s 143A(1)(d) of the Act, which makes it an offence to apply PAYE “for any purpose other than in payment to the Commissioner”. Again, there is no possible basis for reading into these words the requirement that a specific amount of PAYE has been misappropriated.
[4]       The third proposed argument is equally hopeless. There is no justification for giving the words of s 109 other than their plain meaning.
[5]       In summary, the applicant seeks leave to advance three arguments, all of which are untenable. There is no appearance of a miscarriage. The application is therefore dismissed.
Solicitors:
Brook Law, Hamilton for Applicant
Crown Law, Wellington

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Smith v R involves Geoffrey Martin Smith, who sought leave to appeal his conviction on 94 counts of failing to file income tax and GST returns and pay PAYE. The applicant argued that his conviction on charges of not filing income tax returns required proof of the amount of tax owed, that conviction on charges of misappropriation of PAYE payments required proof of the amount of PAYE payable, and that section 109 of the Tax Administration Act 1994 did not mean what it said. The court considered these propositions of law in the context of the statutory provisions and dismissed the application for leave to appeal.

The first legal issue addressed by the court was the interpretation of section 143B(1)(f) of the Tax Administration Act, which requires proof of an intention to evade the assessment or payment of tax by the person or any other person under a tax law. The court found that this section did not require proof that a specific amount of tax was owed, but rather only an intention to evade assessment or payment. The second issue related to section 143A(1)(d) of the Act, which makes it an offence to apply PAYE for any purpose other than in payment to the Commissioner. The court held that there was no basis for reading into these words the requirement that a specific amount of PAYE had been misappropriated. The third issue concerned the interpretation of section 109 of the Act, which states that, except as provided in the Act, no disputable decision may be disputed in a Court on any ground whatsoever. The court concluded that there was no justification for giving the words of this section other than their plain meaning.

The court held that the applicant's arguments were untenable and dismissed the application for leave to appeal. The court found no appearance of a miscarriage of justice and thus denied the applicant's request to advance the proposed arguments on appeal. The final orders of the court were to dismiss the application for leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established