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Open Letter to Scott Pickering demanding resignation

#81 User is offline   Alan Thomas 

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Posted 30 June 2018 - 02:27 PM

View PostMINI, on 30 June 2018 - 12:55 PM, said:

"Drawings." Like using company building as residential property. would be classed as drawings, even if it were to move it from the director as a payment to the company who owns or leases the building.

Directors Fees are in the IRD Act as a type of Drawings.

Not going to look for it, but you can, as you have shown you are not doing much else, but I have two on the go at this moment. So it is do your own research time. I don't mind supplying suggestions but I do mind having to do the 'stick work' when it doesn't benefit me.

Mini


Many it seems that you have gone off on a tangent. Quite obviously if a director was to benefit in any material way from the company without working for it, such as you have described, that would be classified as some kind of taxable drawings which is of course income but most certainly would not be earnings as the director did not do anything to earn it. If we take for example someone who was a director in name only and has delegated all the directors duties to others such as other directors or company managers et cetera with the result that there is no duties in order for any earnings to have taken place from those duties. If in the event that there were any dividends or directors fees in such circumstances obviously that would be income that is not earnings which means that such income is not the business of the ACC.

I have already done my research on the matter and presented to the court with questions to the court. Those questions were never answered along with a number of other questions that are critical to my situation so anything to do with myself has no relevance to this issue from the point of view of any judgement. However the research I did was robust and correct in accordance with those who are qualified to have an opinion on such issues which includes a specialist barrister dealing with taxation, one of the top two or three barristers specialising in ACC matters and to members of Parliament formally ACC ministers who happen to be all in complete agreement which forms the basis for my own opinion.
Mini what I am seeking from you is what the generalised opinion is from an employee of the IRD who may have been exposed to the viewpoint of the ACC in these matters so we can gain context in relation to the discussion on this thread..

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#82 User is offline   Grant-Mac 

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Posted 30 June 2018 - 04:31 PM

View PostAlan Thomas, on 30 June 2018 - 12:31 PM, said:

Mini the issue of contention is the scheduler income. Are you able to describe what that is? Obviously as a former IRD employee you are the primary person on this site that should be able to readily access this information and explain it to the members of the site? Are you able to go further than just that and describe whether or not schedule and come is a form of income that the ACC would be referring to is earnings income as opposed to non-earnings income?


Schedular income is hereMy link

Grant
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#83 User is offline   Grant-Mac 

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Posted 30 June 2018 - 04:35 PM

View PostAlan Thomas, on 30 June 2018 - 02:27 PM, said:

Many it seems that you have gone off on a tangent. Quite obviously if a director was to benefit in any material way from the company without working for it, such as you have described, that would be classified as some kind of taxable drawings which is of course income but most certainly would not be earnings as the director did not do anything to earn it. If we take for example someone who was a director in name only and has delegated all the directors duties to others such as other directors or company managers et cetera with the result that there is no duties in order for any earnings to have taken place from those duties. If in the event that there were any dividends or directors fees in such circumstances obviously that would be income that is not earnings which means that such income is not the business of the ACC.

I have already done my research on the matter and presented to the court with questions to the court. Those questions were never answered along with a number of other questions that are critical to my situation so anything to do with myself has no relevance to this issue from the point of view of any judgement. However the research I did was robust and correct in accordance with those who are qualified to have an opinion on such issues which includes a specialist barrister dealing with taxation, one of the top two or three barristers specialising in ACC matters and to members of Parliament formally ACC ministers who happen to be all in complete agreement which forms the basis for my own opinion.
Mini what I am seeking from you is what the generalised opinion is from an employee of the IRD who may have been exposed to the viewpoint of the ACC in these matters so we can gain context in relation to the discussion on this thread..


Quite simply, a director cannot delegate all of his duties.

Grant
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#84 User is offline   Grant-Mac 

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Posted 30 June 2018 - 04:54 PM

View PostMINI, on 30 June 2018 - 12:26 PM, said:

Grant

You ask where are 'earnings' defined or referred to in the legislation for this purpose.

I would look at the PAYE schedule that is printed each time there is a change in the % of tax to be deducted from income of any kind. Being an advocate/lawyer that needs to know how payroll is done, holiday pay included, you will find it is not too much bother to get one from IRD. They should post you one out. Mind you having said that I have not looked at anything other than the 1994 Income Tax Act BUT I do know that the 2004 IT Act came out just to make 1994 Act easier to read. So it wont have many changes in it. The 2007 Act has been used largely in here as the newer IT ACT, BUT I would still ask for a copy of the Payroll schedule from IRD which will give you what you need for the scheduler and PAYE payment, and Income tax generally. Good luck Mini


Mini,

The issue for me is this: in the ACA 2001, pursuant to s6, a PAYE Income payment has the same meaning as RD 3(1) which is where Lupine and I diverge as to what is not included.



RD 3(1) has two subsections (a) and (b]. Subsection (a) has three sub-sub sections (i), (ii), (iii). Since the issue is 'Schedular payments, this is RD 3(1)(a)(iii).

Thus we go to Schedular payments here which takes us to here

This is potentially confusing as there are two 'Schedule 4', one in the ACA and one in the ITA. They are unrelated.

This tells us two things:

1. What a schedular payment is; and
2 The tax rate that applies to it.


This is where it gets contentious:

In the Schedule 4 of the ACA we have this schedule, which has a lot of moving parts.

Let me see if all the links work.

Grant
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#85 User is offline   Alan Thomas 

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Posted 30 June 2018 - 05:15 PM

View PostGrant-Mac, on 30 June 2018 - 04:31 PM, said:

Schedular income is hereMy link

Grant


Thank you Grant.
However there is the additional point that is by no means a small point but rather right to the point.
"Are you able to go further than just that and describe whether or not schedule income is a form of income that the ACC would be referring to is earnings income as opposed to non-earnings income?"In other words some of those items listed in the tax legislation is payment for something that is not as a result of earnings but rather income without the income being earned by the sweat of the brow as it were. I am trying to get down to that part of the question Which I believe will open up the issue to give it a greater context and understanding.

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#86 User is offline   Grant-Mac 

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Posted 01 July 2018 - 05:03 AM

View PostAlan Thomas, on 30 June 2018 - 05:15 PM, said:

Thank you Grant.
However there is the additional point that is by no means a small point but rather right to the point.
"Are you able to go further than just that and describe whether or not schedule income is a form of income that the ACC would be referring to is earnings income as opposed to non-earnings income?"In other words some of those items listed in the tax legislation is payment for something that is not as a result of earnings but rather income without the income being earned by the sweat of the brow as it were. I am trying to get down to that part of the question Which I believe will open up the issue to give it a greater context and understanding.



I am in partial agreement with you here.

The reason is that when we go to RD 3(1) there are more than a single type of payment defined. Schedular payments are differentiated from Salary/Wages. Schedular payments continue through to the previously detailed definition.

So moving backwards, back to RD 3(1), if we rather look at Salary/Wages: we are taken to RD 5.

RD 5 excludes Schedular payments. Dead end.

So my issue and possibly yours is: how do we get from RD 3(1)(a)(iii) to where we need to go, which is here



My second issue is the one where Lupine and I interpret Schedule 4 ACA.

(a)
any amount included in the earnings as an employee of an employer as if such amount were a PAYE income payment (or, as the case may require, salary or wages under section RD 5 of the Income Tax Act 2007) of the employee for the purposes of the PAYE rules; and



Lupine believes that the highlighted 'or' is disjunctive. I am not so sure. The way I read it, the 'or' is conjunctive. 'Or' is normally disjunctive, that is to say alternative, mutually exclusive, expressing an alternative to give a choice of one among two or more things. However, it is not so confined: and depending on the context, may be conjunctive.

There is case law on this point: Pioneer Concrete (UK) Ltd v National Employers Mutual Gen. Ins. Ass.[1985].

Does it even make any difference which way it is read? I think that it does matter and the difference could be significant.



Grant
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#87 User is offline   Lupine 

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Posted 01 July 2018 - 08:34 PM

View PostGrant-Mac, on 01 July 2018 - 05:03 AM, said:

I am in partial agreement with you here.

The reason is that when we go to RD 3(1) there are more than a single type of payment defined. Schedular payments are differentiated from Salary/Wages. Schedular payments continue through to the previously detailed definition.

So moving backwards, back to RD 3(1), if we rather look at Salary/Wages: we are taken to RD 5.

RD 5 excludes Schedular payments. Dead end.

So my issue and possibly yours is: how do we get from RD 3(1)(a)(iii) to where we need to go, which is here



My second issue is the one where Lupine and I interpret Schedule 4 ACA.

(a)
any amount included in the earnings as an employee of an employer as if such amount were a PAYE income payment (or, as the case may require, salary or wages under section RD 5 of the Income Tax Act 2007) of the employee for the purposes of the PAYE rules; and



Lupine believes that the highlighted 'or' is disjunctive. I am not so sure. The way I read it, the 'or' is conjunctive. 'Or' is normally disjunctive, that is to say alternative, mutually exclusive, expressing an alternative to give a choice of one among two or more things. However, it is not so confined: and depending on the context, may be conjunctive.

There is case law on this point: Pioneer Concrete (UK) Ltd v National Employers Mutual Gen. Ins. Ass.[1985].

Does it even make any difference which way it is read? I think that it does matter and the difference could be significant.



Grant


Going for a fuller context "or, as the case may require, "


The PAYE Income Payment that the legislators envisaged is Schedular Payments as the default consideration but in some circumstances salary and wages comes into the consideration. The legislation that the case may require salary and wages is included in the consideration but it is clearly not the default consideration.

Additionally RD 8 offers the Corporation no comfort because it simply confirms that Schedular Payments are not salary and wages which is patently obvious as both Schedular Payments and salary and wages are listed separately in RD 3 and seeing as they are separate there they cannot be the same thing which RD 8 confirms. Schedular Payments can have expenses deducted at the end of the financial year to present as earnings as a self employed person in what will then be the "relevant year" which is assessed under those formulas subject to the legislation under Section 14.
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#88 User is offline   Lupine 

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Posted 01 July 2018 - 08:38 PM

The mistake you are making Grant is that you keep trying to confine the term PAYE Income Payment to salary and wages. That is simply incorrect.

You will also see in the Corporations arguments it is trying to avoid Schedule 4 by relying on Section 221 (1)(a) instead of S 221 (2).
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#89 User is offline   Lupine 

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Posted 01 July 2018 - 08:44 PM

Schedular Payments before tax end year is PAYE Income. After expenses are deducted is now the previous years earnings received as a self employed person subject to Section 14. Salary and Wage stay PAYE. Its not hard.
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#90 User is offline   Lupine 

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Posted 01 July 2018 - 08:47 PM

Oh and also why is that LESS ACC levy field saying 0.00 sitting in the Schedular deduction process on that tax document? If Schedular payments were not subject to levies it would be in the income not liable for ACC field. IRD is set up to do it.
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#91 User is offline   Lupine 

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Posted 01 July 2018 - 08:48 PM

This legislation is instructions on how and what to levy. A levy process is a levy process not some shifting paradigm subject to various interpretations.
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#92 User is offline   Lupine 

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Posted 01 July 2018 - 09:07 PM

Here it is super simple.

S 219

All must pay levies.

S 221

(1) Levies may be paid by installment
(a) All employers must levy all employees (determined by Income Tax Act)

(2) ACC must levy according to Schedule 4

Schedule 4

(1) ACC must levy all PAYE Income Payments

Section 6 PAYE Income Payment see RD 3 (1)

RD 3 (1)

List of all PAYE Income Payments ACC must levy.

Wholly supported by the PAYE Rules RD 2 and Schedule 4 22

End.

Oh and the meaning of employee under YA 1 is someone who receives a PAYE Income Payment see RD 3
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#93 User is offline   Grant-Mac 

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Posted 02 July 2018 - 05:50 AM

View PostLupine, on 01 July 2018 - 08:38 PM, said:

The mistake you are making Grant is that you keep trying to confine the term PAYE Income Payment to salary and wages. That is simply incorrect.

You will also see in the Corporations arguments it is trying to avoid Schedule 4 by relying on Section 221 (1)(a) instead of S 221 (2).


Section 221(2) are deductions from the 'earnings' of an employee, which takes us back to Schedule 4 ACA.

Therefore the 'schedular payments' cannot be schedular payments, they must be earnings to an employee or as wages/salary.

If I remember your client's case, the issue was that at some point in time he was both an employee and self-employed. Therefore there will be different classifications [for the purpose of the ITA] of money coming into him.

So now we have two issues:
(a) your client's particular circumstances; and
(b] the law for collection of levies by ACC [generally].

The two are not necessarily commensurate with each other.

Section 221 makes the "or" in Schedule 4 conjunctive, which [as I feared] creates a problem, as employees can be paid either a salary or wages and both are earnings. Neither however are schedular payments.

Grant
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#94 User is offline   Lupine 

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Posted 02 July 2018 - 02:57 PM

View PostGrant-Mac, on 02 July 2018 - 05:50 AM, said:

Section 221(2) are deductions from the 'earnings' of an employee, which takes us back to Schedule 4 ACA.

Therefore the 'schedular payments' cannot be schedular payments, they must be earnings to an employee or as wages/salary.

If I remember your client's case, the issue was that at some point in time he was both an employee and self-employed. Therefore there will be different classifications [for the purpose of the ITA] of money coming into him.

So now we have two issues:
(a) your client's particular circumstances; and
(b] the law for collection of levies by ACC [generally].

The two are not necessarily commensurate with each other.

Section 221 makes the "or" in Schedule 4 conjunctive, which [as I feared] creates a problem, as employees can be paid either a salary or wages and both are earnings. Neither however are schedular payments.

Grant


I really do not understand what is so hard about this. The words in the legislation mean exactly what they say,. Bartrom ruled the process is NOT OPEN TO JUDICIAL INTERPRETATION. The WORDS in Schedule 4 are PAYE INCOME PAYMENTS so what is ACC supposed to levy? PAYE INCOME PAYMENTS. ALL PAYE INCOME PAYMENTS.

The words as written mean EXACTLY what they mean. All the terms that apply are defined in the INCOME TAX ACT 2007. EMPLOYEE means PAYE Income Earner. All roads lead to RD 3(1).

There is no magic out for ACC, this is a levy process. Not an argument to be determined by the Supreme Court. Do you really believe the legislators would allow a levy process to be open to interpretation? This class of Self Employed Earner is referred to as an employee for the purposes of the PAYE Rules.

Or MEANS OR.


a)
any amount included in the earnings as an employee of an employer as if such amount were a PAYE income payment (or, as the case may require, salary or wages under section RD 5 of the Income Tax Act 2007) of the employee

for the purposes of the PAYE rules;

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#95 User is offline   Lupine 

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Posted 02 July 2018 - 03:10 PM

This concept has defeated the greatest legal minds since forever.

Schedule 4 levies ANY PAYE Income Payments. All classes of PAYE Income Payments are in RD 3 which both Section 6 and Schedule 4 point straight at.

So ALL types of PAYE INCOME listed under RD 3 (1) MUST BE LEVIED!

The legislation must be read from the START of the process to the END of the process having regard for the meanings in ALL the WORDS as they are WRITTEN according to the ENGLISH LANGUAGE.

But no. It seems what everyone else wants to do is go for a wander through the Income Tax Act and find some unrelated meaning that used to apply to the process pre amendment and bypass the entire consideration.

THAT IS NOT THE LAWFUL AND LOGICAL WAY TO READ THE LAW.
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#96 User is offline   Alan Thomas 

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Posted 02 July 2018 - 05:01 PM

View PostLupine, on 02 July 2018 - 02:57 PM, said:

I really do not understand what is so hard about this. The words in the legislation mean exactly what they say,. Bartrom ruled the process is NOT OPEN TO JUDICIAL INTERPRETATION. The WORDS in Schedule 4 are PAYE INCOME PAYMENTS so what is ACC supposed to levy? PAYE INCOME PAYMENTS. ALL PAYE INCOME PAYMENTS.

The words as written mean EXACTLY what they mean. All the terms that apply are defined in the INCOME TAX ACT 2007. EMPLOYEE means PAYE Income Earner. All roads lead to RD 3(1).

There is no magic out for ACC, this is a levy process. Not an argument to be determined by the Supreme Court. Do you really believe the legislators would allow a levy process to be open to interpretation? This class of Self Employed Earner is referred to as an employee for the purposes of the PAYE Rules.

Or MEANS OR.


a)
any amount included in the earnings as an employee of an employer as if such amount were a PAYE income payment (or, as the case may require, salary or wages under section RD 5 of the Income Tax Act 2007) of the employee

for the purposes of the PAYE rules;



Your problem is that you are neither qualified nor experienced to read the relevance of two different legislations with a focus on one of those legislations is the driving force for the interpretation. Grant clearly understands the fundamental principles and has tried to explain to you. There is no need for your shouting in big bold letters but rather you would be better to adopt a process of asking questions to get the opinions of others so as you might come to a greater understanding which in turn will place you in a better position to address any issues you think might be needing attention.
You seem to have lost the point whereby a large number of PAYE employees receive all manner of other income that has described as earnings of which there is no tax being paid yet form part of the earnings of which ACC become liable for ERC and suchlike and that being the case the information that you are trying to challenge is the information that you should be focusing your attention on so as you gain a greater grasp of what kind of earnings actually exist under the ACC scheme and what does not so as you can understand what the ACC are trying to achieve or justify in their viewpoint. I'm not saying that anyone was right or wrong I'm saying that you are not going to bring progress unless you understand the way in which the English language is used within the context of the relevant legislation.

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#97 User is offline   Alan Thomas 

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Posted 02 July 2018 - 05:03 PM

View PostLupine, on 02 July 2018 - 03:10 PM, said:

This concept has defeated the greatest legal minds since forever.

Schedule 4 levies ANY PAYE Income Payments. All classes of PAYE Income Payments are in RD 3 which both Section 6 and Schedule 4 point straight at.

So ALL types of PAYE INCOME listed under RD 3 (1) MUST BE LEVIED!

The legislation must be read from the START of the process to the END of the process having regard for the meanings in ALL the WORDS as they are WRITTEN according to the ENGLISH LANGUAGE.

But no. It seems what everyone else wants to do is go for a wander through the Income Tax Act and find some unrelated meaning that used to apply to the process pre amendment and bypass the entire consideration.

THAT IS NOT THE LAWFUL AND LOGICAL WAY TO READ THE LAW.


In my case the ACC argued in court that PAYE income should be declared so they could accuse me of working whereas the IRD confirmed that the ACC were wrong and gave evidence to court that there was no earnings in the ACC did not understand the fundamentals and listen with trying to argue something in their own favour when they weren't qualified to do so. You would do well to read up on the evidence given in my case so you can appreciate what the ACC is trying to do and why they are in opposition to your line of thinking. Personally I think both of you are wrong. The judge agrees with me regarding the position ACC took with the IRD.
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#98 User is offline   MINI 

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Posted 02 July 2018 - 05:46 PM

View PostGrant-Mac, on 30 June 2018 - 04:31 PM, said:

Schedular income is hereMy link

Grant


I worked with tax under the 1994 Act and 74/72 Act before that. I have had nothing to do with the 2004 2007 Acts as I spend six years fighting for all on here to have to pay less tax on the one off payment of weekly compo when ACC Fks up!!

Recently the tax dept has been has been quoted as saying "Inland Revenue told a select committee that proposals would be developed 'aroun addressing fairness concerns with taxation in lump sump payments" without providing further details.

Now I can tell you that the Justice in the high court said I was correct and now Inland Revenue is doing something about it 8 years later.
You are the lawyer Grant you are supposed to be able to do all taxes. You should not need me here to give you answers to tax questions that come under the new tax acts. I being me, who does not get paid for doing anything for anybody have no intention of moving into the new acts unless I need them for myself. I will put my solutions up here, if I ever have to do it. But I hardly think it is likely. One thing IRD knew I had loads of and that was intigrety. And I will read your new stance on what Schedular tax is. I gave you the other name it was known by, so if you looked under that you would know I am aware of the taxes concerning those groups of people.

Progressive tax is what it was know as in the 1994 ITA.


Be back at you later.

Mini
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#99 User is offline   MINI 

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Posted 02 July 2018 - 07:38 PM

View PostMINI, on 02 July 2018 - 05:46 PM, said:

I worked with tax under the 1994 Act and 74/72 Act before that. I have had nothing to do with the 2004 2007 Acts as I spend six years fighting for all on here to have to pay less tax on the one off payment of weekly compo when ACC Fks up!!

Recently the tax dept has been has been quoted as saying "Inland Revenue told a select committee that proposals would be developed 'aroun addressing fairness concerns with taxation in lump sump payments" without providing further details.

Now I can tell you that the Justice in the high court said I was correct and now Inland Revenue is doing something about it 8 years later.
You are the lawyer Grant you are supposed to be able to do all taxes. You should not need me here to give you answers to tax questions that come under the new tax acts. I being me, who does not get paid for doing anything for anybody have no intention of moving into the new acts unless I need them for myself. I will put my solutions up here, if I ever have to do it. But I hardly think it is likely. One thing IRD knew I had loads of and that was intigrety. And I will read your new stance on what Schedular tax is. I gave you the other name it was known by, so if you looked under that you would know I am aware of the taxes concerning those groups of people.

Progressive tax is what it was know as in the 1994 ITA.


Be back at you later.

Mini


I have taken the documents off line, where you are, where you want to be etc.

I don't promise BUT I may have a go at it tomorrow.

Two things I need to know is: What is the Question you are Asking. I have already told you I do not agree with how you are looking at gathering the information to answer your questions no matter what they are.

You need to take the actual case and the papers of registration etc to see what the claimant was planning to do before injury!! Lupine should know it but I do not therefore I cannot trace to the claimant type of tax should be. Honestly, payroll is probaly my most experienced type of tax, as I have worked for six years on the outside of govt, doing tax for different entities, This tells me the paperwork from the list on the payroll, is what type of tax the person should be on and they told me what grade of tax they want taken off their pay. This also tells me things like they might have another job and want the lessor income one to be taxed at the secondary rate.

There has not been this type of paperwork coming forward to know what tax rate the claimant should be on.

In the Administration Act which is the IRD PAYE rules comes from and you want to be at should be determined by what the claimant wanted to do in the first place. Therefore, we all need the documents. Take out the identification parts Lupine and put them up here.

Otherwise I am just guessing as you all are out there. You maybe right in what you say, and it would be a shame to lose a case when you are right. But if you cant explain how it is wrong and you are right you need to be able to explain how you got to the discrepency you did.

No promises about doing it, I am only interested in the politics of being overtaxed. How many of you would be prepared to sign a paper to the pollies to put some pressure on IRD now that they have come out of the woodwork. I would like to see it backdated if the actually allow a change in this part of tax law?? Put your names up if you would sign.

Mini
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#100 User is offline   Lupine 

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Posted 02 July 2018 - 08:53 PM

I am less grumpy now but I will say this.

ACC has presented its reasoning as to why it is not required to levy these payments. As this must be an accurate assessment of their interpretation of the Act from the date of 1st of April 2008. Therefore if this reasoning does not hold then they do not get a second go at coming up with something. They are relying on a flawed interpretation of Section 221 (1)(a). Grant has acknowledged this and holds my view that Section 221 (2) applies. ACC is trying to avoid Schedule 4 by saying that the type of earnings that apply to Schedule 4 are determined by a completely unrelated sub section when a wholly affirmative sub section sits right below it when it is in fact Schedule 4 that makes the determination.

So they are absolutely wrong on that. I can see what Grant is saying about "or" but it is a very pedantic interpretation that sits well outside of the context of the legislation and several highly objective facts. Even ACC has recognized that Schedule 4 is their doom thus their argument, feeble and wholly incorrect as it is, attempts to bypass the Schedule 4 requirements in their entirety.
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