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Ebook Guidto New Zealand Companies and Securities Law 2Nd Edition CCH New Zealand Online PDF All Chapter
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Product Information
ISBN 978-0-86475-913-9
© 2013 James Coleman
Published by CCH New Zealand Limited
First published: August 2009
This edition published: March 2013
All rights reserved. No part of this work covered by copyright may be
reproduced or copied in any form or by any means (graphic,
electronic or mechanical, including photocopying, recording,
recording taping, or information retrieval systems) without the
written permission of the publisher.
Printed in New Zealand by Kalamazoo Group Limited
Foreword
This text sets out the law as it pertains to the general anti-avoidance
provision in the Income Tax Act 2007 as at the date of publication.
New Zealand now has three Supreme Court decisions on tax
avoidance. The leading one, and the one most relevant to this text,
is Ben Nevis Forestry Ventures Ltd v C of IR; Accent Management
Ltd v C of IR (2009) 24 NZTC 23,188, which sets out the key
question to be answered whenever the issue of whether an
arrangement has the purpose or effect of tax avoidance is raised. It
is a judgment in which the court has spent some time setting out
broad principles as to how the general anti-avoidance provision is to
be interpreted. It is now clear that, having set out the principles, the
Supreme Court is leaving lower courts to apply those principles to
the cases that come before them.
This is an area of the law that is heavily influenced by case law and,
at present, there is an unprecedented amount of litigation involving
the application of the general anti-avoidance provision. Hence, it is
important for a reader to check whether any case, particularly recent
first instance cases, have been appealed since publication. There are
also cases that are being heard as this text is published. Hence, this
text is intended as a launch pad for research, laying down the key
principles and themes, but not excusing a practitioner the need to
read judgments issued after publication. Future editions will
regularly seek to capture the ongoing jurisprudential development.
In this area of law, advocates on both sides of the fence can become
very passionate about their views on the application of the general
anti-avoidance provision and the interpretation of the case law. The
text merely reflects the current law and does so without any bias
towards either taxpayers or the Commissioner. Insofar as the
advocates on each side consider aspects of this text to clash with
their perceptions of the operation of the section, it will be a
testament to its neutrality.
CCH Acknowledgments
CCH New Zealand Limited wishes to thank the following who
contributed to and supported this publication:
Managing Director: Bas Kniphorst
General Manager: Julie Benton
Head of Content: Andrew Campbell
Product Manager: Dione Kimpton
Editor: Reshma Korah
Production Team Leader: Yeong Wai Heng
Production Editor: Yeong Wai Heng
Sub-editor: Shanthi Murugiah
Indexer: Logeswari Sivaguru
Cover Designer: Envisage Design
2
Ben Nevis at [47].
3 Ben Nevis at [5], footnote 13 and the minority judgment
more generally.
Footnotes
4 For the purposes of this text and ease of classification,
“piercing the corporate veil” (or “lifting the corporate veil”)
is considered to be covered by the label of sham.
5 Mills v Dowdall [1983] NZLR 154 (CA) at 159, line 50 per
Richardson J, A Taxpayer v C of IR (1997) 18 NZTC
13,350 (CA) at 13,360 per Tipping J, Re Securitibank Ltd
(No 2) [1978] 2 NZLR 136 (CA) at 168, lines 25–35,
Buckley & Young Ltd v C of IR (1978) 3 NZTC 61,271 at
61,276; [1978] 2 NZLR 485 (CA) at 490, lines 8–14, C of
IR v Europa Oil (NZ) Ltd 70 ATC 6012 at 6,018; [1971]
NZLR 641 (PC) at 647 and 648, Finnigan v C of IR (1995)
17 NZTC 12,170 at 12,173–12,174.
Footnotes
6 IR Commrs v Duke of Westminister [1936] AC 1 (HL), C of
IR v Europa Oil (NZ) Ltd 70 ATC 6012 at 6,018; [1971]
NZLR 641 (PC) at 648, Europa Oil (NZ) Ltd v C of IR (No
2); C of IR v Europa Oil (NZ) Ltd (No 2) (1976) 2 NZTC
61,066 at 61,071–61,072; [1976] 1 NZLR 546 (PC) at 552,
C of IR v Wattie (1998) 18 NZTC 13,991 (PC), and Regent
Oil Co Ltd v Strick (I of T) [1966] AC 295 (HL) at 351.
7 IR Commrs v Duke of Westminster [1936] AC 1 at 19–20.
8
Buckley & Young Ltd v C of IR (1978) 3 NZTC 61,271 at
61,276; [1978] 2 NZLR 485 at 490, cases usefully
summarised in Accent Management Ltd v C of IR (2005)
22 NZTC 19,027 (HC) at [135]–[141].
Footnotes
11
This arises from first principles and by necessary
implication from C of IR v Renouf Corp Ltd (1998) 18
NZTC 13,914 (CA), in which Blanchard J stated that the
courts will ascertain the true meaning of a contract as
they would if the parties were in dispute as to its mean.
• The courts will draw logical inferences from established facts and
may consequently infer the relevant intention exists despite
protestations from the shammers to the contrary.33
Sham is a difficult concept to establish evidentially in litigation.34
This may, in part, be the result of an implicit raising of the standard
of proof required in such situations due to the seriousness of the
allegation. An explicit example of judicial acknowledgement of the
raising of the standard of proof in analogous situations is recorded in
Elders Pastoral Holdings Ltd v Grey35 where Fisher J said:
This is another way of acknowledging the rather difficult formula
often said to apply in these cases that, while the standard of
proof is the balance of probabilities, that must nevertheless be
approached with appropriate regard to the gravity of the
allegation and therefore the higher degree of satisfaction
demanded of the tribunal of fact before accepting that the
allegation has been made out.
Footnotes
19 Paintin and Nottingham Ltd v Miller Gale and Winter
[1971] NZLR 164 at 168 and 175, Bateman Television
Ltd v Coleridge Finance Co Ltd [1969] NZLR 794, NZI
Bank Ltd v Euro-National Corp Ltd (1992) 6 NZCLC
67,913 at 67,925–67,296; [1992] 3 NZLR 528 at 539,
Ben Nevis Forestry Ventures Ltd v C of IR; Accent
Management Ltd v C of IR (2009) 24 NZTC 23,188 (SC)
at [33].
25
Snook v London West Riding Investments Ltd [1967] 2
QB 786 at 802, Case U6 (1999) 19 NZTC 9,038, Accent
Management Ltd v C of IR (2005) 22 NZTC 19,027 at
[222]. In some cases, the fact that a person was
indifferent to the true position, and went along with it
may be enough evidentially to conclude that one of the
parties to the transaction had the necessary intention:
Official Assignee v Wilson (2008) 2 NZTR ¶18-005 at
[38].
Footnotes
36 Buckley & Young Ltd v C of IR (1978) 3 NZTC 61,271 at
61,280; [1978] 2 NZLR 485 at 495 and Julius Harper Ltd
(In Rec) v FW Hagedorn & Sons Ltd (1991) 5 NZCLC
66,946 at 66,954–66,955; [1991] 1 NZLR 530 (CA) at
539.
Footnotes
37 Re Securitibank Ltd (No 2) [1978] 2 NZLR 136.
38
In this regard, it is often helpful to use the short hand
“black letter” provisions to describe the provisions other
than the general anti-avoidance provision.
Footnotes
39 Jacques v FC of T (1924) 34 CLR 328 at 358 per Isaacs
J.
Footnotes
44 Re Darby: Ex Parte Brougham [1911] 1 KB 95. Another
example is Enterprises Lakeview Ltd v C of IR (2009) 24
NZTC 23,139 albeit that the judge says that he is not
lifting the corporate veil at [52].
Footnotes
45 See, for example, the helpful discussion in Craig Elliffe
“The Thickness of a Prison Wall — When Does Tax
Avoidance Become a Criminal Offence” Taxation Today
(New Zealand, April 2012).
Footnotes
1
See Appendix 1 for the text of the provisions.
• The changes made since s 103 of the Land and Income Tax
Assessment Act 1908 had removed the “avoiding” and
“preventing” limbs of the section leaving only “altering” and
“relieving” as the statutory tests.14
• Two tests for the application of the section. Tax avoidance had to
be either the purpose or effect or one of the purposes or effects
of the arrangement as long as it was more than merely
incidental. This reversed the effect of several Privy Council
decisions.21
• The merely incidental exception. This is stricter than the Newton
predication test.22
Footnotes
2 See s 62 of the Land Tax Act 1878 and Ben Nevis at [71].
See too s 29 of the Property Assessment Act 1879, s 35 of
the Property Assessment Act 1885, s 40 of the Land and
Income Tax Assessment Act 1891, s 82 of the Land and
Income Tax Act 1900, s 103 of the Land and Income Tax
Assessment Act 1908, s 162 of the Land and Income Tax
Act 1916 and s 170 of the Land and Income Tax Act 1923
were the provisions applying before the Land and Income
Tax Act 1954.
3
There is a broad description of the legislative history of
the anti-avoidance provisions in Ben Nevis Forestry
Ventures Ltd v C of IR; Accent Management Ltd v C of IR
(2009) 24 NZTC 23,188 (SC) at [71]–[79].
4 Hence, a contract that purported to deem a person who
owned the land at noon on a particular day to be the
owner for the purpose of land tax was held to alter the
incidence of land tax — Charles v Lysons [1922] NZLR
902.
6
Mangin v C of IR 70 ATC 6001 at 6,009; [1971] NZLR 591
at 601 per Lord Wilberforce. See also Marx v C of IR;
Carlson v C of IR [1970] NZLR 182 (CA) per North P at
189. The previous cases were Charles v Lysons [1922]
NZLR 902 and C of IR v Brown (1962) 13 ATD 74; [1962]
NZLR 1091.
10
These concerns as to the certainty of the future
hypothetical liability against which the state of affairs
produced by the arrangement was to be compared were
again touched on by Richardson J in C of IR v Challenge
Corp Ltd (1986) 8 NZTC 5,001 at 5,019; [1986] 2 NZLR
513 (CA) at 548. Earlier cases like Elmiger v C of IR
(1966) 14 ATD 271; [1966] NZLR 683 (SC) had held that
the word “relieved” did apply when the actual state of
affairs, created by the arrangement, were compared with
the potentially future state of affairs. The issue in that
case was whether the comparator could be future
income.
12
Mangin v C of IR 70 ATC 6001 at 6,009–6,010; [1971]
NZLR 591 at 602 per Lord Wilberforce and C of IR v
Gerard (1974) 1 NZTC 61,151 at 61,155; [1974] 2 NZLR
279 (CA) at 284.
16
For example, Marx v C of IR; Carlson v C of IR [1970]
NZLR 182 (CA) at 213–214 and 218 per McCarthy P.
20
The amendments made were identical to what would
become s 99 of the Income Tax Act 1976. The wording
of the 1974 amendment is in Appendix 2.
21
The series of cases that culminated in the test for
avoidance being the “main or one of the main purposes”
of the arrangement is usefully summarised by
Richardson J in C of IR v Challenge Corp Ltd (1986) 8
NZTC 5,001 at 5,018; [1986] 2 NZLR 513 (CA) at 547 —
point 6. The incidental aspect of the test would seem to
come from Lord Wilberforce’s judgment in Europa Oil
(NZ) Ltd v C of IR (No 2) (1976) 2 NZTC 61,066 at
61,074; [1976] 1 NZLR 546 at 556.
22 See in this regard C of IR v Challenge Corp Ltd (1986) 8
NZTC 5,001 at 5,019; [1986] 2 NZLR 513 (CA) at 548
per Richardson J. The purpose of the changed wording
was intended to “restore the authority of Elmiger” — see
the speech of the then Minister of Justice, the Hon Dr
Martin Finlay, during the second reading of the Bill —
NZPD 393, 2 Aug to 3 Sept 1974, at 4192 to 4194.
Elmiger was a case in which it was held that s 108 ought
to be construed in accordance with the principles set out
in Newton. Thus, it is possible that the legislation has
overshot its intended mark. In Newton, there is also
reference to the distinction between a tax-avoidance
purpose and ordinary business and family dealing. Thus,
the words “ordinary business” or “family dealings” in s 99
of the Income Tax Act 1976 probably had their origin
there.
26
Section 108(1) of the Land and Income Tax Act 1954, s
99(1) of the Income Tax Act 1976.
(iii) the time at which the scheme was entered into and
the length of the period during which the scheme was
carried out;
(iv) the result in relation to the operation of this Act that,
but for this Part, would be achieved by the scheme;