Judicial control of the Commissioner's income tax discretions

Abstract

This thesis considers the powers of the Supreme Court to control the exercise of statutory discretions by the Commissioner of Inland Revenue. The statutory discretions are those conferred upon the Commissioner by the Income Tax Act 1976. The object of this discussion is to determine the effectiveness of the Court's powers to control and supervise the exercise of these discretions. In particular, the ability of a taxpayer to challenge discretionary determinations of the Commissioner, which are reflected in his assessment, is evaluated. Chapter 1 concerns the role of the Supreme Court in hearing objections to assessments pursuant to the statutory objection procedures. This involves a consideration of the jurisdiction of the Court, the restrictions and limitations upon the full exercise of this jurisdiction, and the approach actually taken by the Court. It is concluded that the Supreme Court has wide powers exercisable in hearing objections relating to the exercise of statutory discretions by the Commissioner. Nevertheless, it is apparent that these powers have rarely been used. In Chapter 2 the power of the Court to hear appeals from the determination of objections by the Taxation Review Authority is considered. This involves a survey of the role of appellate courts when hearing appeals from the exercise of discretions, and of the approach taken by New Zealand and Australian courts in appeals from the Commissioner's discretion. It is concluded that a taxpayer who wishes to challenge the exercise of a discretion by the Commissioner can get a much more effective hearing in the Supreme Court at first instance, than if he objects first to the Review Authority and then appeals to the Supreme Court. In Chapter 3 the possibilities for obtaining non-statutory judicial review of the Commissioner's discretionary determinations are evaluated. This is done by considering the circumstances in which judicial review may be granted, the grounds on which the Court will intervene in the exercise of a discretion by an administrative authority and the remedies available. Despite the existence of a privative clause in the Income Tax Act, which is designed to prevent any challenge to assessments outside the objection procedures, it is concluded that judicial review may offer an effective means of challenge, particularly where the statutory objection procedures are unavailable or inappropriate. Chapter 4 concerns other ways in which the Commissioner's discretionary determinations can be challenged in the Supreme Court. In Part I, the doctrines of estoppel and exhaustion of discretion are considered. It is submitted that generally estoppel will not be appropriate, but that exhaustion of discretion may be asserted by taxpayers to prevent the Commissioner re-exercising "true" discretions in the same income year. Part II of this Chapter outlines the possibilities for receiving compensation for loss caused by negligent discretionary determinations by the Commissioner.