10 August 2017

Tax: Easy Park Ltd v. Inland Revenue

The High Court dismissed tax penalties imposed on a company set up by former Brierley Investment executives because they were upfront about the tax issue in dispute and highlighted the point with Inland Revenue when filing their company’s tax return.
Former Brierley chief financial officer Herman Rockefeller and his wife Victoria, formerly Brierley chief accountant, set up Easy Park Ltd in 2002 to hold part of their commercial building portfolio.  Mr Rockefeller died in 2010.  Tax issues arose with Easy Park’s 2013 return.
The High Court was told Easy Park tenant Whitcoulls negotiated a $1.1 million fee to escape its lease at 312 Lambton Quay in Wellington.  This surrender fee amounted to about one third the rent payable for the remaining three years of the lease.  As part of capital restructuring following its 2011 collapse into voluntary administration, Whitcoulls was shifting to new premises along Lambton Quay.  In notes to its 2013 tax accounts, Easy Park stated the $1.1 million surrender fee was a non-taxable capital receipt.  This was a direct challenge to Inland Revenue’s stated public position that surrender fees were taxable.
Tax law was changed with effect from April 2013 explicitly making surrender fees taxable.  At the time of Easy Park’s 2013 tax return it was still a live issue; there was no tax law directly on the point.  Easy Park and Inland Revenue duked it out in the High Court.  Easy Park lost; Justice Ellis ruled the $1.1 million surrender fee taxable.  Tax totalling $308,000 was payable.  Leasing commercial space was Easy Park’s core business.  Any payments relating to a lease were revenue.
Justice Ellis dismissed Inland Revenue’s assessment of a ten per cent shortfall penalty for underpayment of tax.   Easy Park was not trying to “slip one past” Inland Revenue, she said.  The issue was highlighted in its tax filing.  The only authoritative statement on the then legal position was an Inland Revenue public ruling.  These rulings are not binding on taxpayers and the mere fact a ruling has been published suggests the matter may be difficult or controversial, Justice Ellis said.    
Easy Park Ltd v. Inland Revenue – High Court (10.08.17)

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