Open letter Scott Pickering
14th of June 2018
Dear Mr Pickering,
I am writing this to you as an open letter. I am doing so because I have reached the end of my patience. You will note that I have included several agencies and individuals in this letter. Some are people I have a great deal of respect for and others who would like nothing more than to see the back of me. I have even included ACC Lawyer, Advocates who would be considered my competition.
Having regard for the nature of the highly provable allegations I am making here I can see only two reasonable responses. Either you must resign along with your incompetent minions or in the alternative you must discredit me.
Now if you succeed in discrediting me (which you won’t) then clearly, I will have humiliated myself and proven myself unfit to be an ACC Advocate in front of all the people who matter. Then you would be free of me. I am in no doubt you would be very pleased with that outcome. So, I invite you, no I am begging you to strike me down here and now. Except you can’t can you?
If you do not resign, when the public find out what has happened here there will be serious questions as to why the Minister allowed a person who felt he could give himself a pay rise of about $240000 to stay on when clearly you and your staff have failed this country in such a spectacular manner. No secret Inquires for you Mr Pickering.
Time to pay the Piper Mr Pickering
I accuse you Mr Pickering of failing in your obligations of the CEO of the Accident Compensation Corporation. I accuse the Corporation of total incompetence, corrupt accounting and legal practices, failing to implement the will of Parliament, failing to alter the culture in General Claims as was your appointed task and failing to adhere to the most basic, core principles of why the Corporation exists in the first place.
It is fair to say that these are very serious allegations and they would be outrageous if not true. Clearly a person in your position would not allow me to make these allegations unchallenged if they were not true. Yet you have consistently failed to respond to said challenge as if you are above scrutiny.
Once again, I provide you with two documents. The first is the IRD document. This document states that the earnings of that self-employed person are PAYE. It also specifically states that those earnings are not earnings received as self-employed income. The ACC Section 221 levy field is on the document and that field states: 0.00.
The ACC levy invoice that ACC has applied to the same earnings states that ACC treats Schedular payments as self-employed earnings as ACC does not levy schedular payments.
So, as we can clearly see we have the same earnings being treated as a different earnings class and the documents are in direct conflict with each other. This is because the Corporation unilaterally and unlawfully changes the tax status on claimants’ earnings.
Not only does this occur at the levy stage it is also occurs at the entitlement stage thus producing the 80% of nil decisions that do not conform to the laws of mathematics.
These documents demonstrate beyond question (seeing as it is the statements from IRD and ACC that prove it) that ACC does not levy schedular payments and that ACC unilaterally alters claimants’ earning status. It is after all written on the ACC levy invoice for all to see.
So, this leaves one question remaining. We know that the Corporation does not levy schedular payments which is undeniable as the Corporation is the one stating that fact. So, the shape of your future and indeed that of the Corporation’s gets down to one simple question. Is the Corporation required to levy PAYE schedular tax payments on the date the tax payer receives said schedular payment under Section 221?
The answer is unequivocally YES or NO. It is really that simple and no marvellous “constructs” from ACC Legal or indeed your QC you have there for your secret inquiry into yourself apply. Now let us examine the strictly interpreted and plainly written wording of Section 221 and Schedule 4.
221 Collection of levies by deduction from employee earnings
(1) For the purpose of enabling the collection of the levies payable under section 219 by instalments,—
(a) when an employer or a PAYE intermediary for an employer makes a payment to an employee that is included in the earnings of the person as an employee of the employer, the employer or person must, at the time of making that payment, make a deduction in accordance with this section from that amount on account of the levy payable:
(b) when a private domestic worker receives earnings that are earned in that person’s capacity as a private domestic worker, the private domestic worker must, at the time of receiving that payment, make a deduction in accordance with this section from that amount on account of the levy payable.
(2) Schedule 4 applies to any deduction under subsection (1), and applies to private domestic workers with any necessary modifications.
(3) In this section, PAYE intermediary means a PAYE intermediary as defined in section YA 1 of the Income Tax Act 2007.
It is clear that the Section 221 levy process is defined by Schedule 4 of the Accident Compensation Act. Section 4 is considered in its own context and is therefore not considered under Section 6 of the legislation.
Schedule 4 (relevant parts)
Deductions on account of earner levies 221(2)
1 Subject to this schedule, the PAYE rules of the Income Tax Act 2007 (the PAYE rules) apply, with all necessary modifications, with respect to—
(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
(b) the levy payable by any employee under this Act as if such levy were income tax; and
(c) the deduction required to be made under section 221 as if such deduction were an amount of tax, which amount is—
(i) on account of income tax; and
(ii) made or required to be made for the purposes of the PAYE rules; and
(d) any employer under this Act as if such employer were an employer for the purposes of the PAYE rules; and
(db) a PAYE intermediary as defined in section YA 1 of the Income Tax Act 2007; and
(e) any employee under this Act as if such employee were an employee for the purposes of the PAYE rules;— and every employer, PAYE intermediary, and employee must comply with the requirements of the PAYE rules, to the extent to which the PAYE rules apply by virtue of this schedule.
22 For the purposes of this schedule, combined tax and earner-related payment, Commissioner, employee, employer, income tax, PAYE intermediary, PAYE income payment, salary or wages, and shareholder-employee have the same meanings as in the Income Tax Act 2007.
There are three types of PAYE payments in the Income Tax Act. Salary and Wage, Schedular, and Extra Pay. We can see in Schedule 4 that Salary and Wages are mentioned as their own separate consideration.
“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)”
It is very evident that the legislators did not produce an entire Schedule for Extra Pay. Salary and Wages are already covered there. On that basis it is completely obvious to even the dimmest mind that the PAYE payments Schedule 4 refers to are in fact the Schedular payments, the very payments that ACC openly states on millions of invoices sent over the last 11 years that ACC does not levy.
Can you see the conundrum?
There is no point in trying to rely on Section 11 because Section 11 is linked to Section 6 which is voided if there is a specific context that applies. That specific context is present in Schedule 4 22 that specifically states that all the applicable meanings are the meanings found in the Income Tax Act 2007.
Furthermore Section 11 is reflected in the Income Tax Act 2007
RD 8 Schedular payments
(1) A schedular payment—
(i) a payment of a class set out in schedule 4 (Standard rates of tax for schedular payments); and
(ii) in relation to a sale, the net amount paid after subtracting from the purchase price all commission, insurance, freight, classing charges and other expenses incurred by the seller in connection with the sale; and
(b) does not include—
(i) salary or wages; or
(ii) an extra pay; or
Section 11 of the Accident Compensation Act and RD 8 simply distinguish between schedular payments and salary and wages because schedular tax payers can deduct business expenses and after those expenses are deducted the earnings are now earnings received as self-employed person in the “relevant” year because business expenses have now been deducted thus presenting an accurate amount of earnings to be assessed having regard for Section 14 when applying Clause’s 38 and 39.
What Section 11 does not do, in any way shape or form, is confer a right for the Corporation to override the clear and strictly interpreted context demanded by Schedule 4 22 and avoid paying ERC on schedular PAYE earnings received as a self-employed person.
So, Mr Pickering it gets down to this. It is simply not tenable for you to be subjected to these allegations if said allegations are not true. I am after all an ACC Advocate. I have an obligation to be accurate in my reasoning and failure to meet that obligation makes me unfit to be an Advocate. If my allegations are untrue then I am unduly and unreasonably making serious attacks on your reputation. Cleary you cannot allow that to continue.
Except of course if I am correct and I am totally correct. It is not possible for you to argue the facts in the face of the incontrovertible evidence we see before us. So that means that you are presiding over what has to be the most heinous bureaucratic failure in New Zealand history. People have suffered because of this failing. People paid levies (albeit under the wrong Section) and have been denied their lawful entitlements. All this while you took it upon yourself to give yourself a big fat pay rise for a job well done?
I do not think so Mr Pickering. Why should the tax payer suffer your incompetence any longer? Why should you and your minions who have funded your life styles while thousands have suffered get to sit there and try and wriggle your way out? Why should those who suffered the Corporation’s sneering contempt and abuse suffer while you all draw on the public purse?
These questions and many more will have to be answered when the public of New Zealand find out what it is that you have failed to do and how you rewarded yourself in the meantime. On behalf of the levy paying self-employed and all the others the Corporation has abused in so many ways I am calling on you to resign Mr Pickering. If the other staff involved have any sense at all they will do the same.
It is time the Corporation confessed this most grievous sin. The public have a right to know. Any further attempts to conceal this farce from the public will be presented to said public in a very unfavourable light for the Minister. I want you to truly understand Mr Pickering that there is no way out of this. The Corporation can argue the legs off a chair with its marvellous yet unlawful “constructs” and “interpretations” about how it pays money out but there can only be one process for taking money in. So here we are Mr Pickering. I am right here ready for you to show me how wrong I am. Good luck with that.