136When objection may be referred directly to High Court

1. Notwithstanding anything in this Part, where—

2. an objection to an assessment is made in accordance with section 126(1) or accepted by the Commissioner under section 126(2); and
3. the objection is not wholly allowed by the Commissioner; and
4. the objection is one to which subsection (2) or subsection (3) applies,—
the objection may be referred directly to the High Court by way of case stated in accordance with this section.

5. Where an objection relates to a question of law only,—

6. the objector may, within 2 months after the date on which notice of the disallowance is given to the objector by or on behalf of the Commissioner, by notice to the Commissioner require the Commissioner to state a case for the opinion of the High Court, and shall specify in the notice the registry of that court in which the objector requires the case to be filed:
7. the Commissioner, in any case where under section 134 the objector has required the objection to be heard and determined by a Taxation Review Authority, may, instead of referring the objection to a Taxation Review Authority, state a case for the opinion of the High Court, and shall notify the objector accordingly.

8. Where an objection relates to a question of fact (whether or not it also relates to a question of law),—

9. the objector may, within 2 months after the date on which notice of the disallowance is given to the objector by or on behalf of the Commissioner, give notice to the Commissioner that the objector desires the Commissioner to state a case for the opinion of the High Court, specifying in the notice the registry of that court in which the objector desires the case to be filed:
10. the Commissioner may, in any case where the objector has under section 134 required the objection to be heard and determined by a Taxation Review Authority, notify the objector that the Commissioner desires the objection to be referred directly to the High Court.

11. Where any notice is given by the objector or the Commissioner under subsection (3), the objection shall be referred directly to the High Court if both the Commissioner and the objector consent, or with the leave of that court granted on the application of the objector or the Commissioner upon the ground that in the opinion of the court, by reason of the amount of the tax in dispute between the parties or of the general or public importance of the matter or of its extraordinary difficulty or for any other reason, it is desirable that the objection be heard and determined by the High Court instead of by a Taxation Review Authority.

12. Within 3 months after—

13. the date of the objector's giving notice under subsection (2)(a) or subsection (3)(a), where it is the objector who requires or desires the Commissioner to state a case for the opinion of the High Court; or
14. the date of the objector's giving notice in relation to the objection under section 134, where it is the Commissioner who determines or desires under subsection (2)(b) or subsection (3)(b) of this section to state a case for the opinion of the High Court,—
the objector shall serve on the Commissioner, by delivery to the National Office of the Inland Revenue Department at Wellington or to such other address as the Commissioner has given notice of to the objector for the purpose, a notice in the prescribed form of the objector's points of objection.

15. The points of objection shall state, with sufficient particularity so as to fairly advise the Commissioner and the court,—

16. the facts upon which the objector relies in support of the objection; and
17. the propositions of law (if any) on which the objector relies in support of the objection; and
18. the issues which the objector considers require to be determined by the court.

19. The objector shall annex to the points of objection copies of any documents upon which the objector intends to rely in support of the objection: provided that where the documents upon which the objector intends to rely are numerous, the objector may annex a list of those documents instead of copies of the actual documents.

20. If the objector fails to serve on the Commissioner the points of objection within the period referred to in subsection (5), or within such further period as may be allowed under subsection (12), the objection shall be deemed to be withdrawn and the Commissioner shall not be required to take any further steps in relation to the objection.

21. Where under this section an objection is to be referred directly to the High Court, the Commissioner shall, within 3 months after the date of service of the points of objection or within such further period as may be allowed under subsection (12), state and sign a case which shall comprise—

22. a notice in the prescribed form containing—
    1. particulars of the assessment made by the Commissioner to which the objection has been made; and
    2. the grounds of objection given by the objector; and
    3. the question for the determination of the court; and
23. the points of objection served by the objector; and
24. a notice in the prescribed form stating—
    1. any further facts which the Commissioner considers are relevant to the issues to be determined by the court; and
    2. the issues which the Commissioner claims require to be determined by the court.

25. The case so stated and signed, together with one copy, shall be filed by the Commissioner—

26. in the registry of the High Court specified by the objector in the notice under subsection (2)(a) or subsection (3)(a), where such a notice has been given by the objector; or
27. in such registry of the High Court as the Commissioner thinks fit in any other case, having due regard to the convenience of the objector.

28. A copy of the case so filed shall be served by the Commissioner on the objector either personally or by sending it to the objector by registered post addressed to the objector at the address for service specified by the objector in the points of objection, or at such other address as the objector has given notice of to the Commissioner for the purpose, and the copy so sent by registered post shall be deemed to have been received when in the ordinary course of post it would be delivered.

29. The High Court may, on the application of the objector or the Commissioner,—

30. extend the time for service by the objector on the Commissioner of the points of objection; or
31. extend the time for the filing of the case by the Commissioner—
until such time as the court thinks fit, whether the application is made before or after the expiry of the time limit: provided that when application is made for an extension of time more than 2 months after the date for service of the points of objection or the date for filing the case, as the case may be, an order for extension of time shall be made only in exceptional circumstances.

32. Where the Commissioner fails to file a case within the time specified in subsection (9), or within such further time as may be allowed under subsection (12), the objector may apply to the High Court for an order directing the Commissioner to allow the objector's objection, and the High Court—

33. shall make such an order accordingly, unless it is satisfied that there are reasonable grounds for the failure to file the case:
34. may, where it refuses to make such an order, make such other orders as in the circumstances it thinks fit, whether relating to the filing of the case in the High Court, the remitting of the objection to a Taxation Review Authority for hearing and determination, or otherwise.

35. The contents of the case shall not be conclusive as to the matters set forth in it either against the objector or the Commissioner, except so far as agreed to by or on behalf of the objector and the Commissioner, with the agreement recorded in a document.

36. At any time before the case stated is set down for hearing—

37. the Commissioner may file an amended case and serve a copy on the objector at the objector's address for service:
38. the objector may serve on the Commissioner amended points of objection at the Commissioner's address for service specified in the case.

39. Sections 16(2), 17, and 18 of the Taxation Review Authorities Act 1994, as far as they are applicable, shall apply to any such case stated by the Commissioner as if references in those provisions to an Authority were references to the High Court. Subject to those provisions, the procedure at the hearing before the High Court of any such case stated shall be the same, with any necessary modifications, as if the case were a proceeding in which the objector is the plaintiff and the Commissioner is the defendant.

40. On hearing any case stated under this section, the High Court may—

41. confirm or cancel or vary the assessment, or reduce the amount of the assessment, or increase the amount of the assessment to the extent to which the Commissioner was empowered to make an assessment of an increased amount at the time the Commissioner made the assessment to which the objection relates, and that last-mentioned assessment shall be amended by the Commissioner to such extent as may be necessary to conform to that determination:
42. make any assessment which the Commissioner was empowered to make at the time the Commissioner made the assessment to which the objection relates, or direct the Commissioner to make such an assessment, in which case an assessment shall be made by the Commissioner so as to conform to that direction.

43. Notwithstanding subsection (17), where the objection relates to a determination or binding ruling made under section 90(1) of this Act, or under section 64E of the Income Tax Act 1976, or under section 245S of that Act as in force before its repeal by section 49 of the Income Tax Amendment Act (No 2) 1993, the High Court shall not make a determination or binding ruling or alter the determination or ruling under subsection (17)(a) or subsection (17)(b), but may direct the Commissioner to alter the determination or ruling to such extent as may be necessary to conform to the decision of the High Court and with such effect as provided in section 90(6) of this Act or, where appropriate, section 245S of the Income Tax Act 1976 as so previously in force: provided that no such fresh determination or ruling shall be made by the Commissioner before the resolution of the appeal procedures.

44. The time bar shall not apply with respect to—

45. any determination of the court under subsection (17)(a) or any amendment made by the Commissioner to an assessment for the purpose of conforming to any such determination; or
46. any assessment made by the court or the Commissioner under subsection (17)(b).

47. Where any notice is given by the objector to the Commissioner under subsection (3)(a) and the Commissioner gives notice to the objector that the Commissioner does not consent to the objection being referred directly to the High Court under this section, then—

48. if within 1 month after the last-mentioned notice is given to the objector by the Commissioner no application is made by the objector to the High Court for the leave of the court to refer the objection directly to that court; or
49. if on any such application the High Court refuses to grant such leave,—
the first-mentioned notice shall have effect as if it were a notice requiring the objection to be heard and determined by a Taxation Review Authority, and this Part shall apply accordingly.

Compare

• 1976 No 65 s 33
• 1993 No 130 s 6(2), (3)

Notes

• Section 136(2)(a): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).
• Section 136(3)(a): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).
• Section 136(5): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).
• Section 136(6): amended, on 2 June 2016, by section 164(1) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).
• Section 136(5): amended, on 26 July 1996 (applying to 1997–98 and subsequent income years), by section 471 of the Taxation (Core Provisions) Act 1996 (1996 No 67).
• Section 136(11): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).
• Section 136(12): amended, on 2 June 2016, by section 164(2) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).
• Section 136(14): amended, on 2 June 2016, by section 164(3) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).
• Section 136(17)(a): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 236(2) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).
• Section 136(18): amended, on 18 March 2019, by section 91(a) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).
• Section 136(18): amended, on 18 March 2019, by section 91(b) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).
• Section 136(18) proviso: amended, on 18 March 2019, by section 91(c) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).
• Section 136(19)(a): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 236(3) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).