Lang J’s HC Ruling Opens Pandora’s Box

In a recent High Court ruling, Lang J has opened a legal Pandora’s Box of intrigue and now opens the way for me to commence blogging about and publishing my long-worked on book, Inland Revenue UNMASKED!! which contains information that some people within IRD do not want exposed. In keeping with the history of this case, this will be a long drawn-out series. In this post I open with an overview of the entire matter. Get ready for it, grab your popcorn, sit back and enjoy.

Background

In Q4 of 2016 I returned from Samoa and established my Private Investigation company, Writing the Wrong Ltd. In the process I obtained the required assets and obtained services such as a PO Box, phones, website, email etc. I also legitimised the Private Investigative work with an IRD number, company PI license and secured Trade Marking and more. I was thorough, professional and committed.

IRD though, commenced an investigation (more like a witch-hunt actually) into the company, did a few ‘naughty’ things in the process and we ended up in court. You chose the wrong person Linda, and others. Read my Disclosure Statement if you really wanna see how I think about and deal with crooks! I sued the Commissioner of Inland Revenue as I had no choice in the matter, literally, for they forced me to either agree to their insane, BS assessment that I was not conducting a taxable activity (nor preparing to do this) OR I had to sue them. That’s right – either sue them or sign that you did or got something ‘wrong’.

As part of preparing for that court process I asked the judge for permission to blog about the case in real-time and of course publish all the gory details. Push come to shove, Judge A.A. Sinclair asked me to formalise this request, which I did and her subsequent ruling came in an anonymised form, published online and essentially said, “No!”. Tax matters are protected as the Taxation Review Authority is a confidential court. Quoting her directly, “the confidential nature of this jurisdiction” and “the disputant’s application for an order approving unrestricted publication is … declined”.

My position was that the law is there to protect the tax payer from the excessive power of the state, not to enforce confidentiality at the disadvantage of the taxpayer. Sinclair J summarised my position correctly, “The director submits that the operation of this section does not preclude the publication of TRA trial matters if a disputant elects to do so. He says that if such a restriction had been intended, then the Legislature would have included a specific prohibition”.

My analysis was (and still is) that the legislators neither addressed the situation nor intended to impose confidentiality upon a taxpayer where taxpayer chose to expose their own tax affairs. Agin, Sinclair J summarised my position correctly:

[3] The principles of openness and transparency should apply whenever or wherever possible. Section 16(4) was included in the legislation as a protection against State powers not as a limitation on the rights of the taxpayer.

[4] The director told the Authority that the interlocutory application was lodged specifically to prevent future ‘grey areas’ or disputes arising. The director submits that the denial of or limiting of such self-publication would interfere with the disputant’s income capacity; create unwelcome, unwieldy and unnecessary governance and enforcement issues; and would be a denial of natural justice. He further contends that any objection to this application would raise questions of motive, such as, “What has [the defendant] got to hide?

[5] The director contends that there would be no prejudice to the defendant who could have a full right of reply upon publication of any material she considered adverse. He had made this offer to the defendant but it had not been accepted. The director stated that he had also suggested other means to address any possible injustice to the defendant for example, waiver of confidentiality by the disputant, or application to the Authority not to publish an anonymised decision. Again, neither of these suggestions had been accepted.

The Crown Law Office (representing the Commissioner of IRD) of course came up with crazy logic to justify why their conduct needed to remain hidden.

[6] The application is opposed by the Commissioner principally on the ground that the orders sought by the disputant are inconsistent with the scheme of the Taxation

More on this as we get into the issue.

So with my wings clipped (I was denied the capacity to blog about the case), and my income streams denied (I couldn’t finish the book and potentially sell it), I continued and eventually lost the case in court, notably the first time in 43 years of attending the courts, BTW! I have called Judge AA Sinclair’s ruling “sloppy and shallow” and will of course be exposing her errors and obvious bias towards the Crown in due course. She should by rights have determined that a partial allocation of GST applied to a shared use asset, not determined against all logic and fact that the company was not conducting a taxable activity! Her words, “I am not satisfied on the evidence before the Authority” are IMHO just dishonest, sloppy weasel-words. From what I can now see she was just a gutless, low-level judge obviously operating in fear of pissing off the Crown Law people who parade a string of people before her month after month. Lord willing, I’ll share more about her multiple failures in logic, errors and bias in future posts.

I will note that she was compelled to note some personal things:

[61] Mr Brown was open and frank in his description of his personal circumstances, his business activities and those of the disputant. He assured the Authority that he wished to comply with the GST legislation. It was evident from his firm views, that Mr Brown considered that the disputant had done so, and that the company is entitled to the input tax deductions claimed.

I’ll decode this for you here, in case it seems quite a nice or innocent statement. Judges don’t normally bother with this sort of thing. Sometimes they do when there may be a good reason to do so, but not normally. Saying this is an effort to protect her arse because throughout the trial I claimed and I believe showed that we were all hokey dokey and that it was the IRD that were the pricks played up.

With the TRA ruling determining that my company was NOT conducting a taxable activity, when it clearly was and still is, I then had a choice whether to appeal to the High Court or not. The HC of course has legal costs associated with it for a company, as Sinclair J wryly noted, “(acknowledging that it would be necessary for the company to be represented by counsel)”!

They said:

Please take note that, pursuant to Sections 26A of the Taxation Review Authorities Act 1994, you may have a right of appeal to the High Court.  Otherwise, the decision is final and conclusive.

Any appeal must be brought within 20 workings days after the decision appealed against is given.  The procedure to be followed is set out in Part 20 of the High Court Rules 2016.

TRA

The company chose not to appeal, instead waiting for a while (until after the time period for appeal had well and truly expired) waiting and waiting and waiting, all the time obtaining more proof that the IRD is actively conducting a vendetta against me and/or the company.

The next company GST return caused the IRD an issue, because having won their case that the company wasn’t conducting a taxable activity, what can they do when the company continues to trade? Accepting this next return means acknowledging that they were either wrong OR that there is a change of some sort. Their response was to commence a second investigation and then kicking the can down the road – you see now that, the IRD has a conceptual problem of their own making best described by their question of me, essentially “The judge has just ruled that you are not conducting a taxable activity. What’s changed that you feel you can now charge GST and/or claim a GST refund?”

My reply, IMHO perfectly logical:

There has been no change in our position – we are still trading, conducting taxable activities and doing the same things as always. This is regardless of any Judge’s ‘bad hair day’ compliance with ‘the party line’. I note that Sinclair J’s ruling related to a previous period and has no bearing on the current taxable activities of the company in the periods you question.

24 October 2019

Ouch! I call this being hoist by their own petard. It’s another, “Well duh!” moment for logical people and another, “WTF do we do now?” moment for the bureaucrats at the IRD! As I write it is the end of Q1, 2021 – still nothing. My company cannot trade effectively due to IRD’s campaign commenced back in 2016 to deny it the ability to manage its tax affairs with dopey tax rulings and several open investigations!

I had no intention of taking my personal resources and putting them in the hands of the legal profession just to fight the government on a matter of fact. I am an investigative blogger, not a millionaire with an ego willing to take on the NZ IRD! But I had always respected the ruling requiring confidentiality of the TRA affairs. Put in Sinclair J’s own words under verbal clarification, I could blog about all events up to the TRA matter, but I could not identify either directly nor indirectly the identity of the company that she ruled on.

So I didn’t and was very careful not to as well. Any infraction would have been used as a sledgehammer to crack me with!

Putting the company matters aside for the moment, as an individual author I have the right under the NZ Bill of Rights Act to speak my mind. Also, as an individual I have the right to earn a living by doing so. This TRA ruling denied me those two rights, a shallow judgment from a low-ranking TRA judge who was simply looking at a narrow statute and IMHO getting it wrong. Saying that a taxpayer cannot publish their involvement in the TRA at all, even when they want to, shows that she is more about protecting her own patch than looking at the wider issues. Of course the moment that she opens the door to a litigant having the right to publish the details of their own tax affairs that exposes her court – something she doesn’t want to happen. I mean what judge wants their rulings, indeed their conduct in court exposed and commented upon – especially by an opinionated blogger like yours truly?

So in December 2020, I sought a Judicial Determination from the Hamilton High Court seeking to clarify this conflict of law. This was done by an Originating Application. Which law has priority – the TRA that prevents a taxpayer from sharing its tax affairs in its hearing, or an individual with rights to free speech under NZ’s BORA?

While the matter was delayed by the DR’s refusal to accept my Application on the grounds that it sought legal advice, it did eventually end up in the High Court before a judge. This ruling, just received, now opens up my legal right to identify my company (Writing the Wrong Ltd) as the Plaintiff in the previously anonymised TRA matter, because as confirmed by AA Sinclair, the High Court is not subject to the TRA enforced confidentiality rules.

This ruling (thank you Lang J) was what I have always sought, even though the HC refuses to take the case based on standing, because I now have the legal right to talk about the case, the TRA case which the HC one is based upon . . . so I now will. Tough titties to Linda Dzaferic, and all the other little liars and crooks at the IRD, as well as the self-aggrandising fools at Crown Law office who don’t want the public to know what they did and how they actually operate!

The High Court Ruling

As I mentioned, the Hamilton DR initially refused to take my Originating Application. That’s fine. I accept that there was a component to it of seeking interpretative stuff, but there was an underlying substantive issue that I sought to be addressed by the court. My Application for Review of the DR’s refusal therefore said:

THE KEY ISSUE
5 The key issue for judicial determination was explained in the
Originating Application as a real (not hypothetical) conflict between
two statutes (BORA and the TRA), that has apparently resulted
from an incorrect assumption on the part of the legislators.

THIS APPLICATION
6 The Applicant respectfully submits that:
6.1 There is indeed a substantive issue at the heart of this
matter that requires a Declaratory Judgment from the High
Court; and
6.2 That any deficiency in filing documents as a result of me
representing myself can be best dealt with by way of judicial
order as or when the substantive matter is addressed.

Lang J appeared to ignore this issue of my supposedly trying to seek legal advice, and he supported his DR’s decision not to accept my original Application but for a reason of lack of standing. I think he should have noted this difference in his ruling by identifying that his reason for refusal was different to that of his DR but hey, the end result was as he said, he was supportive of his DR’s refusal to accept the Application.

Now I also think Lang J was wrong to refuse the case in total. Perhaps I didn’t make it clear enough that I was applying in my personal name, and that I have standing personally, but his decision attempted to push the matter away from me personally and back into the companies court. He says that the company may have standing in seeking relief, but I’m not appealing or coming to the High Court in the name of my company. I am doing this under my personal name and seeking a determination in a matter of law where there is an apparent conflict.

The High Court does not like personal litigants. The HC is a step above the lower courts where a company can be represented by a Director of the company and they seek to push us away. That’s cool – I know and respect that position. They have their ways and their values but I am an individual with rights and it is my right as an individual to stand for them, all the way to the Privy Council (actually now the NZ Supreme Court) if needed. I’ll play their game, and likely get my Application into the format that they want and then wander in to their court rooms again seeking this determination.

I actually expect that if the HC rules that BORA overwrites the TRA and that the TRA ruling is wrong, then Crown Law will push the matter all the way through the HC, to Appeals if needed and then probably the Supreme Court, so it could be years before the matter is sorted. Do you think that for a minute they would let a lowly citizen ‘win’ or embarrass them in court especially when I’m up against all their beaks?

Until then though, you can note that:

1. The TRA considers its confidentiality to be compulsory, despite the Disputant’s wishes, and when it comes to personal rights over the rights enshrined in NZ’s BORA;
2. My matter (CIV-2021-419-2) has now come before the Hamilton HC in which my company is clearly identified, thus my company can be publicly identified as the Plaintiff in TRA 006/18;
3. When I alter my Application (CIV-2021-419-2) so that it is clear to the Hamilton HC that I am applying for a Determination on a matter of law in my own right, and that this is not a matter relating to my company then I will share my experiences and the result here; and
4. It is now “all on” in regards to exposing crooks within the IRD.

Pandora’s Box is now open and in due course I will be sharing my myriad ‘interesting’ experiences with claims (and proof) of dishonesty, cover-ups, failures in logic, professional incompetence and yes, even corruption within the IRD. It’s not all bad, I have met some people within the IRD who conduct themselves professionally but the lessons I have learned will definitely cause the astute to caution in their dealings with the authorities!

More to come on this subject . . . get the popcorn ready!