Profile

Michael Lennard

Barrister

Overview

I am a New Zealand litigation lawyer, specialising in tax disputes and litigation. My career to date has involved eight years’ practice as a Crown prosecutor and civil litigation lawyer, eight years as head of litigation for Inland Revenue, and practice at the independent bar since June 2004.

 

I have been recognised as a leading tax disputes lawyer in both of the leading international reviews that cover this area of practice: in the 2011 onwards edition of the International Tax Review’s publication “Tax Controversy Leaders” and from 2012 onwards in Chambers and Partners’ Asia-Pacific review (moved up from band 3 to band 2 in 2015).

 

As a barrister, my practice covers tax disputes at all stages, from initial Revenue investigations through the pre-assessment disputes process to litigation in court. I have a substantial amount of experience in defending taxpayers charged with evasion and non-payment of PAYE in the criminal courts. I have participated on one side or the other on many of the most significant tax disputes in the past 20 years. 

"Seen as "the right person for the job" in the tax avoidance and tax evasion cases he typically handles"
Chambers' Asia-Pacific Law Directory, 2013
"[Has] carved out a formidable niche for himself in those aspects of tax law involving the Inland Revenue's powers of search and seizure"
Chambers' Asia-Pacific Law Directory, 2015
"Mike Lennard of Stout Street Chambers is acclaimed for his strength acting in proceedings arising from allegations of tax evasion as well as tax avoidance cases. Peers say:'He is a good operator. He knows the law, he knows his way around the courtroom very well, and has the background and understanding of how Inland Revenue works after being inside it for a number of years.'"
Chambers' Asia-Pacific Law Directory, 2016

Non-tax aspects of my practice include intellectual property, competition law, professional negligence and relationship property litigation.  I have a particular interest in financial regulatory and criminal issues, including money laundering and administration of the AML/CFT legislation.

 

I have been a faculty member of the New Zealand Law Society’s Litigation Skills Programme since 2000.  I have been an adjunct teaching fellow at the University of Auckland since 2004, where I lecture in the Master of Taxation Studies programme on Conduct and Procedures of Tax Disputes (I also lectured for a few years on Timing of Income and Expenses). I have spoken at numerous conferences and seminars over the past 20 years on subjects relating to tax disputes and administrative law issues.  I am a member of the New Zealand Law Society’s Taxation Committee.

 

I am a regular contributor to, and a member of the Advisory Board of, “Taxation Today”, a monthly magazine published by Thompson Brookers, and have also published in other journals.

 

I represented New Zealand at the International Fiscal Association in 2015, reporting with Mark Keating on “practical protection of taxpayer’s fundamental rights”.

 

I have contributed (together with EY Law Limited) the New Zealand chapter in the Thompson Reuters Tax Litigation Global Guide, to be published in mid 2016.

Qualifications

  • Bachelor of Science (Mathematics major), University of Canterbury, 1982 to 1984
  • Bachelor of Laws,  University of Canterbury, 1985 to 1987
  • Admitted as Barrister and Solicitor of the High Court of New Zealand, 1988 
  • Residential Programme for Executive Development, University of British Columbia, 1997

Experience

Barrister, Stout Street Chambers, Wellington, New Zealand

Private practice specialising in tax litigation, tax law, and general litigation. 

Notable engagements in the past year or so have included:

  • Achieving the only award of indemnity costs against the Inland Revenue Department for (at least) 20 years, in an action to set aside a freezing order against my clients (CIR v Dymock)
  • A scheduled ten-week tax evasion trial touted by teh Crown as the largest ever tax evasion prosecution, which “collapsed” after six weeks with acquittal of most defendants and the remainder beng convicted of much lesser chages (R v Thongskul & Ors)
  • Trademark litigation – Daimler AG v Sany Company Limited

Engagements while at the Bar have included:

  • Advice for taxpayers on a broad range of core tax and tax administration issues, including:
    • The tax and GST implications of various business structures
    • Tax avoidance compliance;
    • The likelihood of penalties;
    • Consequences of breach of the Unclaimed Moneys Act;
    • Capital/revenue issues;
    • The FIF/CFC regimes;
    • Evasion issues
  • Advice and representation for taxpayers involved in disputes with Inland Revenue on penalties, core tax and conduct of investigations;
  • Negotiation of settlements for taxpayers of their disputes with Inland Revenue;
  • Acting for taxpayers in pre-assessment (Part IVA) dipsutes relating to a broad range of issues, including:
    • Tax avoidance (Income Tax – section BG1 – and GST – section 76)
    • Evasion
    • Capital/revenue issues
    • Interest deductibility
    • Deductibility of business expenses
    • Liability for related taxpayers’ assessments under section HK11/HD 15/section 76 GST Act
    • Whether receipts from liquidated companies are drawings or income
    • Penalties
  • Litigation for taxpayers against Inland Revenue in relation to a broad range of issues, including:
    • Capital/revenue issues
    • Interest deductibility
    • Tax avoidance assessments (Income Tax – section BG1 – and GST – section 76).  Of approximately 25 cases involving tax avoidance in the past 10 years, only three have been won by taxpayers.  I was counsel in one of those three.  I have also been part of the Commissioner’s team in three of the more significant cases the Commissioner won.  And, regrettably, I have acted for two further taxpayers who have been unsuccessful in tax avoidance challenges.
    • Tax evasion assessments
    • Challenging Inland Revenue freezing orders over taxpayer assets
    • Lawfulness of search powers
    • Reopening statute-barred years
    • Withholding tax issues
    • Mutuality issues with incorporated societiesResidency issues
    • Penalties
  • Criminal defence in the High Court and District Court of taxpayers charged with tax evasion, Crimes Act fraud and obstruction of justice, and failure to account for PAYE deductions
  • Criminal appeals in the Court of Appeal on tax evasion matters
  • Advice for taxpayers in relation to potential action against accountant for negligent tax advice
  • Preparation of submissions for industry group in relation to proposed reform of the “Associated Persons” rule
  • Appearing in Privy Council (with English QC) for the Commissioner of Inland Revenue
  • Part of the Inland Revenue legal team in the “Trinity scheme” litigation – New Zealand’s then largest tax avoidance case, involving over $1bn of disputed tax and penalties, leading to a win in all Courts including the Supreme Court
  • Part of the Inland Revenue legal team in the “structured finance” litigation over tax avoidance assessments involving the Bank of New Zealand and Westpac Banking Corporation – New Zealand’s largest tax avoidance case, leading to two High Court wins and a subsequent industry settlement leading to recovery of $2.2bn of disputed tax and penalties
  • Advice and formal opinions for Inland Revenue and the Crown Law Office on litigation and tax-related matters
  • High Court appeal against Charities Commission determination
  • Litigation for Inland Revenue on:
    • Capital/revenue issues;
    • GST liability, timing and apportionment issues;
    • FIF regime gains/losses
    • Admissibility of evidnece in tax disputes
  • Training for Inland Revenue on investigation and prosecution of tax evasion
  • Conduct of inquiries for Inland Revenue
  • Expert evidence on core tax and tax administration issues in the High Court
  • Advice to the Fiji Islands Revenue and Customs Agency on a variety of issues in disputes with taxpayers under the Fijian Income Tax Act, Value Added Tax Decree and Tax Administration Decree
  • Advice for the Commerce Commission
  • Legal adviser to NZ Institute of Chartered Accountants’ disciplinary tribunal
  • Representation of Chartered Accountant in relation to charges before the NZ Institute of Chartered Accountants’ disciplinary tribunal
  • Assistance to a Commission of Inquiry on tax-related aspects of the inquiry
  • Intellectual Property litigation in the Intellectual Property Office of New Zealand, and to the High Court and Court of Appeal on appeals from IPONZ
  • Advice to government departments on
    • Restructuring aspects of their legal services
    • Cost-recovery issues
    • Compliance of proposed legislative amendment with the GST system
  • Advice and litigation at Family and High Courts of relationship property issues
  • Junior counsel for Commerce Commission in judicial review proceedings concerning the development of “Input Methodologies” 
  • Junior counsel for Commerce Commission in judicial review proceedings concerning a proposed determination under the Telecommunications Act 
  • Lecturing at the Auckland University Faculty of Commercial Law.  Subjects taught include conduct of tax disputes, and timing of income and deductions, at Masters level

Director, Litigation, Inland Revenue Department

In May 1996 I was appointed as Inland Revenue’s first Director, Litigation.

 

I was responsible for setting up the new Litigation Management Unit, which runs Inland Revenue’s tax litigation. This involved closing down its predecessor, finalising the new unit’s design, negotiating service level agreements with other parts of the organisation to define inter-relationships, all staff recruitment, supervising new premises’ design and fit out, and establishing the unit’s systems, procedures and ethos.

 

For the next eight years I ran that unit:

  • Supervising the conduct of all Inland Revenue tax and judicial review litigation
  • Carrying a file load of my own
  • Advising the department on a wide range of litigation and other legal issues (especially concerning the conduct of investigations in difficult or sensitive areas)
  • Carrying out day-to-day administration of the unit and its staff of approximately 12 lawyers and support personnel
  • Undertaking liaison with the Serious Fraud Office
  • Maintaining an overview of the Inland Revenue Department’s entire litigation effort.

In this period the amount of tax involved in tax litigation ranged from about $500 – $600 million in the earlier years to over $1 billion in later years. 

 

At the same time the Department’s win ratio in tax cases steadily increased from 40% in 1996 to a consistent 80% by the time I left.

Staff Solicitor/Associate, Luke Cunningham & Clere, Wellington

Luke, Cunningham & Clere is a medium-sized law firm, and is the Wellington Crown Solicitor’s Office.  I worked on the litigation side of the firm, litigating for a mixture of Crown and private clients in civil and criminal cases.  I was classified as “intermediate counsel” under the Crown Solicitors Regulations in November 1990, and as “senior counsel” in March 1995.  I became an associate of the firm in October 1993. 

 

My work included:

  • Preparing and prosecuting about 150 to 200 jury trials in relation to a wide variety of offences in the District and High Courts
  • Conducting numerous pre-trial applications relating to the admissibility of evidence for jury trials, both under the Common Law and under the Evidence and New Zealand Bill of Rights Acts
  • Preparing and conducting general civil litigation on behalf of Crown and private clients, in areas including product liability, defamation, debt collection, declaratory judgments, guarantees, contract disputes and false imprisonment.  Types of action undertaken include ordinary civil proceedings, summary judgment applications, injunctions, judicial review proceedings, and various interlocutory applications
  • Insolvency law actions for government departments and some of the larger accountancy firms in disputed bankruptcy/winding up actions, actions for recovery of assets of insolvent estates which have been transferred to defeat creditors, actions against officers of insolvent companies for reckless trading/trading while insolvent, actions to restore struck-off companies to the register, a declaratory judgment on the priority between preferential and secured creditors in group company liquidations and an application for directions as to the duties of the Official Assignee where a secured creditor, whose secured debt exceeds available assets, refused to appoint a receiver
  • Preparing and appearing for the Police and Crown Departments on High Court appeals from summary District Court prosecutions, in well over 200 appeals
  • Preparing and appearing for Crown Departments in defended summary prosecutions
  • Preparing and appearing for the Crown in the Court of Appeal on criminal appeals

 

Law Clerk/Staff Solicitor, Raymond, Donnelly & Co, Christchurch

Raymond, Donnelly & Co is the Crown Solicitor’s Office for Christchurch.

 

I received my practising certificate in February 1989, and thereafter practised almost exclusively in the litigation side of the firm in the following areas:

  • Preparing and prosecuting District Court jury trials
  • Preparing and conducting civil litigation in the District and High Courts for Crown and private clients in areas including recovering bankrupts’/companies’ estates, voidable preference actions, debt collection, breach of contract, defamation and wrongful arrest/ assault actions
  • Preparing and appearing for the Police and Crown Departments on High Court appeals
  • Acting for Crown Departments in summary prosecutions

I was classified as “junior counsel” under the Crown Solicitors Regulations.

Teaching/Presentation Experience

  • Faculty member, New Zealand Law Society Litigation Skills Programme, from 2000 onwards
  • Lecturer, University of Auckland Department of Commercial Law, from 2004 onwards:
    • Masters paper on tax disputes (continuing)
    • Part of Masters paper dealing with timing rules as applicable to income tax (2005 to 2009)
  • Presentations at New Zealand Institute of Chartered Accountants’ annual tax conference on:
    • Changes to the Dsiputes Procedures (2011)
    • Tax Avoidance (2009)
    • Tax Administration (2006)
    • Tax Litigation (2004)
    • Care and Management of the Tax System (2000)
    • Settlement of Tax Disputes (1999)
  • Presentation, New Zealand Law Society tax conference on Inland Revenue Search and Seizure Powers, September 2011
  • Interviewee, TVNZ’s “The Court Report”, on the implications of the Supreme Court judgment Penny & Hooper v CIR, TV7, 1 September 2011 
  • Presentation International Fiscal Association New Zealand Branch annual conference on:
    • “Practical Protection of Taxpayers’ Rights”, March 2014 (with Mark Keating, University of Auckland)
    • “Cases on Dispute Resolution, Secrecy, Case Management, Penalties and Procedure”, March 2007
  • Presenter, Wellington District Law Society Seminar “Dealing with Inland Revenue”, February 2007
  • Presenter, New Zealand Institute of Chartered Accountants’ “Managing Disputes with IRD” Course, November 2006
  • Presenter, Inland Revenue’s internal tax evasion training, from 2004 to 2008
  • Bell Gully/Corporate Lawyers’ Association of New Zealand Seminar Series –  “Modelling the In-House Legal Function”, 2003
  • Presentation: “Litigation Aspects of Dispute Resolution Process” at “Taxation Update for Corporates” conference, 1998
  • Client presentations on topical issues

Professional Memberships & Positions

  • New Zealand Law Society
    • Committe Member, Taxation Committee 2009 onwards
    • NZLS representative, steering committee for Inland Revenue Dispute Process Evaluation, 2011-2012
    • Past Committee member, Wellington District Law Society Courts & Tribunals Committee
    • Past Committee member, Wellington District Law Society Public Law Committee
  • New Zealand Bar Association
  • New Zealand Criminal Bar Association
  • International Fiscal Association
  • Law & Economics Association of New Zealand

Tax Litigation:

 

AAA Developments (Ormiston) Limited v CIR (2015) 27 NZTC 22-026 (HC)

Brown v CIR (2014) 26 NZTC 21-089 (HC)

CIR v Alistair Robb Ltd (1990) 13 NZTC 8,003 (HC)

CIR v Delphi Fishing Co Ltd (2004) 21 NZTC 18,525 (HC)

CIR v Edgewater Motel Ltd [2003] 1 NZLR 425 (CA)

CIR v Fugle [2017] NZCA 230 (CA)

CIR v Hyslop (2000) 19 NZTC 15,560 (HC)

CIR v Liburne Holdings Ltd (2001) 20 NZTC 17,268 (HC)

CIR v Stutz & Cowley (1991) 13 NZTC 8,241 (HC)

CIR v Vela Fishing Ltd [2002] 1 NZLR 49 (CA)

Edwards v CIR (2016) 27 NZTC 22-064 (HC)

Fugle v CIR (2016) 27 NZTC 22-069 (HC) 

Great North Motor Company Ltd (in rec) v CIR  (2016) 27 NZTC 22-079 (HC)

Edgewater Motel Ltd v CIR (2004) 21 NZTC 18,664 (PC)

Honk Land Trustees v CIR  (2017) 28 NZTC 26,003 (CA)

Hyslop v CIR [2001] 2 NZLR 329 (CA)

Krukziener v CIR (2010) 24 NZTC 24,563 (HC)

PL Brown Farms Limited v CIR (2014) 26 NZTC 21-083 (HC) 

Pomeroy v CIR (1995) 17 NZTC 12,057 (CA)

Queenstown Airport Corporation Limited v CIR (2016) 27 NZTC 22-054 (HC) 

Saha v CIR (2008) 23 NZTC 21,676 (HC)

Saha v CIR (2009) 24 NZTC 23,011 (HC)

Saha v CIR (2009) 24 NZTC 23,015 (HC)

Saha v CIR (2009) 24 NZTC 23,399 (CA)

Saha v CIR [2010] NZSC 89 (SC)

Terry v CIR (1993) 15 NZTC 10,309 (HC)

TRA Case 02/11 (2013) 26 NZTC 2-001

TRA Case 03/11 (2013) 26 NZTC 2-002

TRA Case 04/14 (2016) 27 NZTC 3-037 

TRA Case L33 (1989) 11 NZTC 1,200

TRA Case L36 (1989) 11 NZTC 1,223

TRA Case L67 (1989) 11 NZTC 1,391

TRA Case M40 (1990) 12 NZTC 2,247

TRA Case M58 (1990) 12 NZTC 2,333

TRA Case T45 (1998) 18 NZTC 8,300

TRA Case V4 (2001) 20 NZTC 10,045

TRA Case V10 (2002) 20 NZTC 10,131

TRA Case V12 (2002) 20 NZTC 10,142

TRA Case Z22 (2010) 24 NZTC 14,305

TRA Case Z23 (2010) 24 NZTC 14,334

Vela Fishing Ltd v CIR [2004] 1 NZLR 313 (PC)

Vinelight Nominees Ltd v CIR; 195 Khyber Pass Road Ltd v CIR (2005) 22 NZTC 19,519 (HC)

Vinelight Nominees Ltd v CIR (2005) 22 NZTC 19,298 (HC)

Vinelight Nominees Ltd v CIR (2012) 25 NZTC 20-155 (HC)

Vinelight Nominees Ltd v CIR (2013) 26 NZTC 21-055 (CA)

 

General Civil Litigation

 

Attorney-General v Bell-Booth Group Ltd (1991) 3 PRNZ (HC)

CIR v Dymock (2013) 26 NZTC 21-060 (HC)

CIR v Honk Marine Limited & Ors [2017] NZHC 1258 (HC) 

Daimler AG v Sany Group Co Ltd (2015) 14 TCLR 191 (CA) 

Re Burgee Investments Ltd; CIR v Registrar of Companies [1994] 2 NZLR 183 (HC)

Re Your Size Fashions Ltd [1990] 3 NZLR 727 (HC)

Sany Group Co. Ltd v Daimler AG [2014] NZIPOTM 33 (IPONZ)

W v Director-General of Social Welfare (1994) 11 FRNZ 548 (HC)

 

Criminal/Bill of Rights Litigation

 

Ashby v Police (1993) 12 CRNZ 114 (HC)

Bocock v Ministry of Transport (1992) 8 CRNZ 401 (HC)

Burnskey v Police (1992) 8 CRNZ 582 (HC)

Carr v Police; Walker v Police (1994) 12 CRNZ 447 (HC)

CIR v Rowley (2011) 25 NZTC 20-050 (HC)

Coghill v Police (1994) 12 FRNZ 347 (HC)

Cohen v Department of Conservation (1990) 6 CRNZ 668 (HC)

Coory v Police (1990) 6 CRNZ 549 (HC)

G v Police (1989) 4 CRNZ 671 (HC)

Judd v Police (1992) 8 CRNZ 582 (HC)

Kenyon v Police (1994) 12 CRNZ 337 (HC)

Marson v Police (1992) 9 CRNZ 97 (HC)

MAF v Paku [1992] DCR 302

Paku v Ministry of Agriculture and Fisheries [1992] 2 NZLR 223 (HC)

Police v Coory [1991] 1 NZLR 630 (HC)

R v _ [1994] DCR 896

R v Andrew (1989) 4 CRNZ 531 (HC)

R v Coghill [1995] 1 NZLR 675 (CA)

R v Coghill [1995] 3 NZLR 651 (CA)

R v Greenaway [1995] 1 NZLR 204 (CA)

R v L (T58/95) (1995) 13 CRNZ 315 (HC)

R v Macfarlane (1995) 13 CRNZ 354 (CA)

R v Orchard [1991] 1 NZLR 320 (CA)

R v Phelan [1994] DCR 552

R v Rowley (2012) 25 NZTC 20-127 (HC)

R v Rowley (2012) 25 NZTC 20-133 (HC)

R v Rowley [2012] NZHC 2087 (HC)

R v Royale [2016] NZDC 15171 (DC) 

R v Wojcik (1994) 11 CRNZ 463 (CA)

Rowley v Commissioner of Inland Revenue [2011] NZCA 160; (2011) 25 NZTC 20-051 (CA)

Sampson v Police (1994) 11 CRNZ 31 (HC)

S(1) and S(2) v Police (1995) 12 CRNZ 714 (HC)

Scott v Police (1993) 11 CRNZ 156 (HC)

Spencer v Police (1989) 5 CRNZ 145 (HC)

Steel v Police (1994) 11 CRNZ 383

Tauber v CIR (2011) 25 NZTC 20-071 (HC)

Tauber v CIR [2012] 3 NZLR 549 (CA)

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