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Cases, Charitable trusts, Charities, Taxation

Death and taxes

While in the context of trusts it is common to talk of the three certainties, in life it is often said that the only certainties are death and taxes.  The decision in The Foundation For Anti-Aging Research & Anor puts a new spin on this adage.  This case relates to two failed applications for registration under the Charities Act 2005.

The Foundation For Anti-Aging Research has purposes that include establishing “a facility to accept specimens for the purpose of conducting research aimed at reversing diseased, senescence, traumatic injury and deanimation.”  A related charity, the Foundation for Reversal of Solid State Hypothermia, had purposes that include funding research into cryopreservation.

The Charities Board declined to register either charity determining that the purpose of each was to fund cryopreservation and reanimation research (this is scientific for freezing dead people in whole or in part until a cure might be found for what ailed them).  While this sounds scientific the Charities Board found that the relevant purposes were not educational, failing to be a “useful subject of study”.  While scientific purists may disagree, the support for this proposition was the Charities Board’s determination that “Cryopreservation and reanimation” (that is freezing people and later waking them up) “lacked academic credibility and was too speculative to have an educative purpose.” Perhaps the Charities Board is not familiar with the nematode Panagroliamus davidi and its experiences with freezing and “reanimation”.  I digress.  Interestingly, the Charities Board came to this view, not just because there were no other listings in the Yellow Pages but by following the United Kingdom decision in McGovern v AG (basically it’s not educational if it is not useful).  This might seem harsh.  However, the reasoning is perhaps more compelling when you consider why the relief of the aged head, didn’t help; the reasoning here being that clients of cryopreservation were already deceased when preserved and so by definition are not aged.  Being in fact, more, post-aged.  The final nail in the coffin?  The public benefit test wasn’t met as the cost of cryopreservation ($150,000 – $200,000 for a whole body; $50,000 – $80,000 for a brain) is so expensive that the Charities Board considered the service to be so narrowly available as to be private.

The Foundation For Anti-Aging Research and the Foundation for Reversal of Solid State Hypothermia were unhappy with the outcome of their respective registration applications and sought, amongst other things, leave to adduce further evidence.  The decision goes into the correct procedure for seeking such leave in great detail (if the area is of interest I urge you to read the judgment as the level of analysis and reasoning regarding appeals under the Charities Act and the interplay between the legislation and the High Court rules is most helpful – finding r 20.16 of the High Court Rules is the correct approach – this requiring that there be special reasons).  In addressing the appeal the Court also considers the 19 separate items of further evidence sought to be adduced and whether the “special reasons” requirement of r 20.16 of the High Court rules was met.  The Court considers each aspect of new proposed evidence (eg the time article “Can Google solve death”)  and gives its reasons for its decision holding that leave to adduce further evidence is granted to the extent provided for in the judgment of the court.  In case you are interested, it was a no on the Google article but a yes for “Cryonics and Immortality: an interview with Stephen Valentine of Timeship” published in in hplus magazine October 2013.

The application for oral evidence was not successful.  Williams J confirming that the general rule in accordance with r 20.16(4) is that further evidence is given by affidavit (unless the Court orders otherwise) so as to avoid the process turning into a new hearing.  It is also noted that the Court also retains the ability, in accordance with s. 61 of the Charities Act, to send the matter back to the Charities Board to adduce further evidence.

An application to serve the Attorney General was also successful on the basis that the appeal raised novel issues around the treatment of “new science” Williams J confirming that he used the term neutrally.  Whether the Attorney-General will support the cause is another matter. As is the result of the consideration of further evidence.  While the science in question may be novel, the issues raised have wider application and provide a useful and considered development in New Zealand’s own charitable jurisprudence, which may of course have wider application than cryogenics.  Maybe.

Appeal

The Court of Appeal refused the application for an oral hearing of the matter.  While largely technical the Court of Appeal decision is worthwhile reading for a background to the “dispute regime” that applies when registration as a charity is denied.  The regime being essentially:

  • there is no right under s 59 of the Charities Act for an entitlement to an oral hearing
  • an appeal to the High Court of a registration decision is a general appeal and is determined by way of re-hearing (r 20.18 of the High Court Rules)
  • accordingly there is limited scope for additional evidence
  • as noted by the Court of Appeal:

[50] We are satisfied that the approach prescribed by the HCR will be effective for appeals under s 59 of the Act. In general, an applicant for registration as a charitable entity should put all relevant material before the Board at first instance.51 As Cooke P put it in Telecom v Commerce Commission, the court should be alert to the danger of the first instance processes being merely a “dummy run” prior to more extensive consideration of the issues on appeal.

  • in limited cases ” in order to secure the objective of a just and effective right of appeal, the discretion to permit further evidence or carefully limited rights of cross-examination may be necessary and appropriate.” Court of Appeal decision at [51]

References

  • The Foundation For Anti-Aging Research & Anor [2014] NZHC 1153
  • McGovern v AG [1982] 1 Ch 321
  • The Foundation For Anti-Aging Research & Anor [2015] NZCA 449

Discussion

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