Tamihere v Commissioner of Inland Revenue

[2014] NZHC 2182

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1056 [2014] NZHC 2182

BETWEEN

ROBIN NOEMA HUGHES TAMIHERE

Applicant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	4 September 2014
Appearances:	No appearance for Applicant Mr Angelson for Commissioner
Judgment:	4 September 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

TAMIHERE v THE COMMISSIONER OF INLAND REVENUE [2014] NZHC 2182 [4 September 2014]

[1]      This matter was last before the Court on 7 August 2014.  It is an application that Mr Tamihere has brought for annulment of a bankruptcy adjudication.   The adjudication took place 2 August 2013.

[2]      Following his last appearance in this Court on 7 August 2014, Mr Tamihere was taken into custody on unrelated matters.  I am advised and accept that he will be appearing in the District Court for sentence in regard to the matters in relation to which he was taken into custody on 14 October 2014.

[3]      The Commissioner who is a substantial creditor in Mr Tamihere’s estate appeared to oppose the application to annul.  He has also applied today orally for an order striking out the application.  The grounds are twofold.  First that the bankrupt has not appeared at the hearing which the Commissioner says entitles her to an order under r 7.40.  Secondly other miscellaneous grounds are put forward which include the prolixity of the documents that have been filed by the bankrupt, lack of diligent prosecution of the application and other matters.   It would appear that there is available to the Commissioner the ground that the application has no prospects of success and is therefore an abuse of the processes and should be struck out.

[4]      So far as the latter ground is concerned, Mr Jones for the Official Assignee has filed a helpful memorandum.  That identifies that Mr Tamihere’s current liability in  regard  to  the  debt  to  the  Commission  of  Inland  Revenue  is  approximately

$225,000 but there are other creditors as well which bring the total figure up to

$458,000.   It is only in regard to the Commissioner’s debt that Mr Tamihere has taken any steps.  He says that he has filed amended returns and that he is entitled to have the Commissioner re-assess his tax position based upon those returns.

[5]      However  the  Commissioner  takes  the  point  that  Mr  Tamihere  is  not competent  to  file  amended  returns  because  he  is  bankrupt.    Only  the  Official Assignee who has control of his affairs could take such a step on his behalf and he does not apparently wish to.  Further, Mr Angelson told me that pursuant to s 109 of the Tax Administration Act the assessments which underlie the debts (and which the Official Assignee accepts) are now deemed to be conclusive.   Mr Tamihere when

seeking to challenge the underlying assessments failed to comply with the statutory objections / review framework.  The assessments cannot now be challenged in any event.

[6]      It further appears that even if Mr Tamihere’s amended assessments had been accepted, they would only affect part of his taxation liability.  Of the approximate

$225,000 there is $139,000 (again approximately) which would not be affected by the proposed amended returns.

[7]      To summarise, there remain very substantial debts which Mr Tamihere owes and for which no provision has been made by him.  Even if he were correct that he had  satisfied  part  of  the  debt  owing  to  the  CIR  there  would  still  be  the insurmountable hurdle in front of him that he has not taken any steps to pay off the other creditors nor is there any evidence that other creditors would be prepared to accept satisfaction of their debts by less than a complete payment of them.

[8]      For  those  reasons  I  accept  that  the  application  which  Mr  Tamihere  has brought for an annulment is doomed to failure and the matter should not take up further time of the Court and the parties who have been served with the application. On that ground alone I consider that the application should be struck out.

[9]      I  deal  next  with  the  alternative  ground  which  is  Mr  Tamihere’s  non- appearance today.   I would have been reluctant to strike out the matter on that ground.  Obviously being taken into custody as Mr Tamihere has been would cause real problems for him to arrange an appearance today.  He does not have a lawyer. He may not have appreciated the need to be here and for the resulting need to obtain an order for production at the Court.  However, because of the alternative grounds that  are  available  to  strike  out  the  application  there  is  no  need  to  make  a

determination on the ground based on r 7.40.

J.P. Doogue

Associate Judge