House call from the IRD, anyone?

Date: 4th September 2013

tax-help

With the announcement from Inland Revenue that the mainframe computer system would go through an expensive update over the coming years, we anticipate the technology to be much more advanced in matching and reviewing tax lodgements.  With that comes the increased likelihood of tax audits.

And if recent talk about the powers of the GCSB government spy agency sends shivers down your spine then what about the IRD’s search and seizure powers?  These may be broader than any other branch of the Crown.

Here’s what Timothy Chemaly from nsaTax, tax and trust specialists, has to say:

The Commissioner has recently published an Operational Statement (OS 13/01) on the Commissioners search and seizure powers under section 16 of the Tax Administration Act 1994. OS 13/01 seeks to provide practical guidance to IRD officers and taxpayers when the Commissioner invokes these powers.

That the Commissioner has immense powers under section 16 is beyond debate. The Commissioner can search any property at any time, and may remove and retain any and all documents and records the Commissioner considers may be relevant to any tax issues. Where however such search is to take place at a dwelling, the Commissioner is required to obtain a District Court warrant beforehand. In practise the Commissioner will obtain such a warrant without notice to the taxpayer concerned, and so without the taxpayer having an opportunity to present their case to the Court considering the issue of the warrant.

The scale of the Commissioner’s search and seizure powers presumably makes the Police Commissioner’s eyes water with envy. In addition, the Commissioner effectively answers to no one, save for the Courts where a taxpayer has sufficient financial resources and is sufficiently brave to challenge the Commissioner.      

Taxpayers have few rights when being raided, and these are effectively restricted to claims of privilege or non-disclosure in respect of documents seized. It is imperative that taxpayers who are being raided obtain the services of a tax solicitor to represent them when the IRD arrive. Usually a solicitor is able to agree a process applicable to the conduct of the raid with the IRD officers whereby the Commissioner’s rights are secured, as is the taxpayers’ privilege or non-disclosure rights.

In practise it is unclear exactly how wide the IRD’s powers are, and so the presence of a tax solicitor can be useful to monitor events so as to ensure that the IRD officers carrying out the raid do not overstep their powers.  In our experience IRD officers generally do try to act in a professional manner, but it needs to be borne in mind that their objective is to advance the Commissioner’s interests, not the taxpayers.

Practical issues that we have been confronted with during IRD raids include;

  • IRD officers attempting to ‘detain’ or restrict the movement of staff and other persons present at the premises during the raid.
  • IRD officers seizing immigration documents and passports belonging to relatives of the taxpayer.
  • A locksmith engaged by the IRD who forcibly opened a combination lock leather briefcase with a hacksaw, (the combination of which the taxpayer had forgotten) after declaring that he had the ‘expertise’ to open the combination lock.

In practise IRD officers arriving at your clients’ premises will allow a period of time in which to reasonably take legal advice. Experience suggests that you/your client should use this opportunity immediately.

 

 



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