28 March 2017

Tax: Exfc 16 Ltd v. Customs

Possession is nine-tenths of the law and Customs looks to have first claim against $587,000 held as security against imported clothing released during inquiries into a long-running double-invoicing scam run by Auckland retailers Jenny Elizabeth Joblin and Nicholas James Clegg.
Joblin and Clegg were convicted and fined in 2016 for engineering a double-invoicing scam between 2010 and 2014 that saw GST and customs duty totalling some $680,000 evaded with bulk clothing imported from China undervalued by about $2.8 million.  Chinese exporters provided two sets of invoices for Joblin’s and Clegg’s companies Federation Clothing Ltd, Public Gallery Ltd and Only For You Ltd enabling a reduced price to be declared at the border for tax assessment.
These companies went into liquidation in February 2016, leaving liquidators to tidy up the mess.  The High Court ruled it was in the public interest for prosecutions to continue against all three insolvent companies despite their liquidation.  The liquidators challenged fines imposed: Federation $450,000; Public Gallery $45,000; Only For You $20,000.  They said it was pointless fining the companies when creditors were not going to be paid in full.  Justice Lang refused to reduce the fines.  Significant fines are required to deter others, he said.  The rewards from false invoicing are great and the risk of detection is low.
Payment of the fines is a separate issue.  Court fines are not a provable debt on insolvency. Fines remain outstanding despite personal bankruptcy or company liquidation, although in the case of a company this is of limited benefit since a company does not live on after liquidation. The liquidators demanded Customs hand over $587,000 cash held as security for the release of one container holding stock required for sale.  These funds were borrowed from ASB Bank after Customs held up the container when first investigating suspicions of a double-invoicing scam.  ASB claims the loan’s circumstances were misrepresented and it is an innocent victim of double-dealing by Joblin and Clegg.  Justice Lang said the Customs and Excise Act allows Customs to seize goods for unpaid taxes.  This right of seizure extends to cash bonds paid over as substitute for the goods' release.    
Exfc 16 Ltd v. Customs – High Court (28.03.17)

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