Australia D.I.S Pty Ltd v Deputy Commissioner of Taxation
[2012] VSC 281
•29 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
S CI 2011 5032
IN THE MATTER OF AUSTRALIA D.I.S. PTY LTD (ACN 081 006 377)
BETWEEN:
| AUSTRALIA D.I.S. PTY LTD (ACN 081 006 377) | Plaintiff |
| v | |
| DEPUTY COMMISSIONER OF TAXATION | Defendant |
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JUDGE: | GARDINER AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
CASE MAY BE CITED AS: | Australia D.I.S. Pty Ltd v Deputy Commissioner of Taxation | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 281 | |
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CORPORATIONS – External administration – Application to set aside statutory demand pursuant to Sections 459G and 459J of Corporations Act2001 (Cth) – Demand claims amount due under Running Balance Account under the Taxation Administration Act1953 – Whether there is requirement to identify constituent parts of Running Balance Account debt in schedule to the demand – Whether there is genuine dispute in respect of amount by reason of alleged discrepancies in defendant’s records.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Whelen | Belleli King and Associates |
| For the Defendant | Mr S. Linden | Legal Services Branch Australian Taxation Office |
HIS HONOUR:
On 31 August 2011, the defendant (“Deputy Commissioner”) served a statutory demand on the plaintiff (“D.I.S.”) (then called I.E.S. Australia Pty Ltd), demanding the sum of $4,582,670.50. The debt is described in the schedule to the demand to be for a Running Balance Account (“RBA”) deficit debt owing as at that date for amounts due under the BAS provisions of the Income Tax Assessment Act 1997, estimates due under Division 268 in Schedule 1 of the Taxation Administration Act 1953 (“the TAA 1953”), administrative penalties due under Part 4-25 of Schedule 1 of the TAA 1953 and interest payable under s 8AAZF of the TAA 1953. The demand is verified by an affidavit of Ingrid Shepperd, an officer of the Australian Taxation Office.
On 20 September 2011, D.I.S. made application by originating process pursuant to s 459G and s 459J of the Corporations Act2001 for orders that the demand be set aside, alternatively that it be varied. The grounds identified in the originating process were threefold. First, it is claimed that because of a defect in the demand, substantial injustice would be caused unless the demand was set aside. Secondly, D.I.S. contends that there is a genuine dispute about the existence or amount of the debt to which the demand relates. Thirdly, it is contended that there is “some other reason” why the demand should be set aside pursuant to s 459J. This third ground is based on the contention that the person who signed the demand, Mr Paul Duffus asserted that in doing so he was a Deputy Commissioner of Taxation, whereas it is contended that since June 2010 he has been the “Chief Operating Officer” of the ATO. Mr Whelen did not press this ground, effectively conceding that as it was not raised in the initial affidavit filed in support of the application, it fell foul of the Graywinter[1] principle.
[1]Graywinter Properties Pty Ltd v Gas and Fuel Corp Superannuation Fund (1996) 21 ACSR 581 (“Graywinter”).
D.I.S.’s evidence
D.I.S. relies on affidavits of Peter Hannah sworn 20 September 2011, 28 November 2011 and 10 January 2012, as well as affidavits of Rita Rubinstein and Bernard Rubinstein, both sworn 14 December 2011.
Mr Hannah deposes that D.I.S. was the trustee of the Rubinstein Family Trust No 2 (“the Trust”). The Trust is the trading vehicle by which D.I.S. operates an electrical engineering business. He states that D.I.S. ceased to be trustee of the Trust on 20 January 2011 when it was replaced as trustee by I.D.S. Australia Pty Ltd (“I.D.S. Australia”).
Mr Hannah states that the Deputy Commissioner was informed of this change by email on 1 June 2011. Subsequently, there have been communications between the Deputy Commissioner and I.D.S. Australia in relation to outstanding compliance issues and monies allegedly owing to the Deputy Commissioner by the Trust. Included amongst those communications was a Final Notice issued to I.D.S. Australia by the Deputy Commissioner on 16 June 2011. I.D.S. Australia corresponded with the Deputy Commissioner regarding the Final Notice and the outstanding compliance issues of the Trust.
On 23 June 2011, the Deputy Commissioner wrote to the Trust (without identifying the trustee) and refused an application for a payment arrangement. That refusal was accompanied by an interim RBA statement addressed to D.I.S. (at that point named I.E.S. Australia Pty Ltd).
On 21 July 2011, the Deputy Commissioner issued a Notice to Give Information pursuant to s 353‑10 of Schedule 1 to the TAA 1953 to Mr Whiteman of Armstrong and Shaw Pty Ltd, the tax agents for the Trust. Armstrong and Shaw was required to deliver, among other documents, a copy of the deed effecting the change in trustee but such a document has never been able to be located by either Armstrong and Shaw or other accountants engaged by the Trust.
Mr Hannah contends in his first affidavit that the Deputy Commissioner has erred in issuing the statutory demand to D.I.S. rather than I.D.S. Australia, and that from the date that I.D.S. Australia was appointed as trustee of the trust, D.I.S. had no further responsibility or liability.
Mr Hannah estimates that the amount owing by the Trust as at 26 March 2011, two months after D.I.S. ceased to be trustee, was $1,209,647.65 and asserts that D.I.S. has no liability for payment of this or any amount owing after 20 January 2011. Mr Hannah contends that the amount of $4,582.670.50 claimed in the demand is in respect of amounts which were calculated and became due after the date on which I.D.S. Australia became trustee of the Trust and after negotiations between the Deputy Commissioner and I.D.S. He complains that the Deputy Commissioner undertook to revisit the penalty interest exacted but has failed to do so. He states that the effect of this is that the demand was not only issued to the wrong entity, but there is a genuine dispute regarding the amount to which the demand relates.
In his affidavit of 28 November 2011, Mr Hannah stated that a firm of accountants, DNV Accountants and Business Advisers (“DNV”), were given instructions to prepare the documents to effect the change of trustee. DNV are, however, unable to locate the original documents. Changing his position from that contended for in his first affidavit, he concedes that, as at 20 January 2011 when the change of trustee occurred, D.I.S. owed the Deputy Commissioner an amount of approximately $1,179,365. He states that on 31 August 2011, the date the demand was made, that D.I.S. owed the Deputy Commissioner no more than $1,648,710.08 including penalty interest. He says however, that the statutory demand in addition to claiming the amount owed by D.I.S. on 20 January 2011, also demands amounts assessed beyond that date plus interest on that amount for which the new trustee, I.D.S. Australia is liable.
In his affidavit, Bernard Rubinstein, who is one of the appointors of the Trust, asserts that D.I.S. was removed as trustee of the Trust on 20 January 2011 by the execution of an instrument in writing prepared by DNV. He contends in correspondence that the Deputy Commissioner failed to acknowledge the change of trustee and failed to differentiate between the pre and post 20 January 2011 debts. In her affidavit, Rita Rubenstein, who is co-appointor of the Trust, confirms Mr Rubenstein’s evidence.
The Deputy Commissioner’s evidence
The Deputy Commissioner relies on affidavits of Grace Lemeray, sworn 22 December 2011 and 17 January 2012. In her first affidavit, Ms Lemeray, who is an officer of the Australian Taxation Office, deposes that she is familiar with the record system maintained by the ATO for the Deputy Commissioner, including the computer system that records tax liabilities, additional tax and penalties incurred by tax payers, and payments made by tax payers in reduction and in extinguishment of their tax liabilities. The records system includes the ATO Integrated System, which records the amount owing by individual taxpayers from time to time including amounts paid by and due to a taxpayer. This data is continually updated. In addition, the system includes the Receivables Management System which enables the recording of communications between taxpayers and the ATO.
Ms Lemeray confirms Mr Hannah’s evidence that, on 2 June 2011 the Deputy Commissioner was informed in a telephone discussion by a representative of the trustee of the Trust that, among other things, as of 20 January 2011, the trustee of the trust had become I.D.S. Ms Lemeray states however that the Deputy Commissioner has not been provided with any documents evidencing the change in trustee on 20 January 2011.
Ms Lemeray exhibits a copy of an RBA statement in respect of the RBA Deficit Debt generated pursuant to s 8AAZI of the TAA 1953 on 31 August 2011 signed by Mr Paul Duffus (who she states is a Deputy Commissioner of Taxation). She states that the RBA statement sets out all of the transactions on D.I.S.’s RBA up to when the statutory demand was issued, on 31 August 2011, including the accrual of Pay As You Go Withholding liabilities for self-assessed amounts, general interest charges and estimated Pay As You Go Withholding Liabilities.
Ms Lemeray states that in October 2009, the Deputy Commissioner commenced an audit of D.I.S. in respect of Pay As You Go Withholding and Superannuation Guarantee obligations for the period 1 July 2005 to 30 June 2009, as well as a review of its Fringe Benefits Tax obligations for the period 1 April 2006 to 31 March 2009 and payments made to contractors from 1 July 2007 to 30 June 2009. That audit was concluded on 25 June 2010 in regard to the Pay As You Go Withholding liabilities and Superannuation Guarantee obligations for the period 1 July 2005 to 30 June 2009.
On 12 May 2011, Ms Bernadette Purification of the ATO wrote to D.I.S. (then called I.E.S. Australia Pty Ltd), enclosing a “Notice of Estimation of Liability” given under s 268-15 of Schedule 1 of the TAA 1953. She states in the covering letter which is signed off by Mr Duffus as a Deputy Commissioner of Taxation, that the estimates are made under s 268-10 of the TAA 1953. The covering letter then states as follows:
Upon service of this notice, you are liable to pay the Commissioner the amount of each estimate set out in the notice. The amount of each estimate is now due and payable.
The liability to pay an estimate is separate and distinct from liabilities which the estimate relates, that is, the liability to remit the actual amounts withheld. You remain liable to remit those actual amounts and should do so immediately. Your liability to pay the estimate will be reduced by any amount so remitted.
Please also find enclosed a form of statutory declaration which must be completed if any estimate set out in the notices to be either reduced or revoked.
If you are unable to remit the actual amount withheld, you should contact us to advise the amount of that actual liability and to discuss the possibility of entering into a payment arrangement. Failure to do this may result in the commencement of legal proceedings to recover the unremitted amount. It is important that the statutory declaration and/or your payment is returned in the enclosed envelope to avoid any delays in adjusting the estimate and crediting your payment. (Emphasis in original text.)
The table to the accompanying notice gives estimates, each of $33,797.00, for 86 periods from 1 July 2009 to 29 April 2011 inclusive which total $ 2,906,542. The notice invites D.I.S to provide to the Commissioner a statutory declaration substantiating the actual unpaid amount of any one or more of the liabilities to which each estimates relate so that the estimates could be reduced accordingly.
Ms Lemeray states that by reason of the notice of estimates given to D.I.S. under s 268-15 in Schedule 1 to the TAA 1953 and by operation of s 268-20, D.I.S. became liable to pay the Deputy Commissioner the estimates. D.I.S. did not seek to vary the estimates by providing a statutory declaration to the Deputy Commissioner. The amounts were not paid.
Ms Lemeray puts an alternate position in the event that the Court considers that D.I.S. ceased to act in the capacity of trustee of the Trust on 20 January 2011 and did not contract further liability after that date other than accrual of interest and penalties on the debt as it stood at that date.
To support the Deputy Commissioner’s alternate position, an “alternate” RBA statement was generated under the hand of Ms Jane King, a Deputy Commissioner of Taxation, on 22 December 2011.[2] The alternate RBA statement purges the original RBA statement of liabilities incurred on and from 20 January 2011. It reverses entries for estimates of Pay As You Go Liability from that date but continues to debit amounts for interest on the amount outstanding.
[2]Ms Lemeray deposes that the document was under the hand of Mr Duffus, which it was not (see Exhibit “GL-8” to Ms Lemeray’s affidavit of 22 December 2011).
Ms Lemeray states that the alternate RBA statement includes only those primary tax liabilities which had been incurred and were due on 20 January 2011. She states that “the defendant (sic)[3] was indebted to the plaintiff in the amount of $3,582,083.50” on that date. The document also sets out the general interest charges accrued on the alternate RBA deficit debt to 30 August 2011 (the date of the statutory demand). She states that the debt at that date totalled $4,045,673.56. In fact, if one examines the exhibited document, on 20 January 2011, the indebtedness is shown as $3,647,124.30. There is no entry for 31 August 2011, the date of the demand, but on 30 August 2011 the indebtedness is said to be $4,074,065.50.
[3]It is obvious from the context that the status of the parties as plaintiff and defendant in this proceeding has been transposed.
D.I.S.’s affidavit in reply
In an affidavit sworn 10 January 2012 in reply, Mr Hannah responded to Ms Lemeray’s affidavit. He exhibits a copy of a print‑out which he asserts was generated on 9 January 2012 from the Deputy Commissioner’s Integrated Client Account for the period July 2010 to 27 January 2011 which shows a closing balance of $1,179,364.87 on 27 January 2011. The evidentiary status of that document is not clear. It is not an RBA and it appears to only purport to note several interest charges over the period June 2010 to January 2011. He states this is to be contrasted with Ms Lemeray’s affidavit where she states[4] that D.I.S. was indebted to the Deputy Commissioner in the amount of $3,582,083.50 on 20 January 2011. He asserts that in the light of other conflicting amounts put forward by the Deputy Commissioner, this amount is not correct.
[4]Lemeray affidavit of 22 December 2011, [30(b)].
Mr Hannah states that the Deputy Commissioner’s on-line records state that D.I.S. is indebted as at the date of the affidavit to the Deputy Commissioner in the amount of $560,549.57. This amount represents the estimates for the period 10 March 2011 to 6 January 2012, after amounts recorded as due by D.I.S. were reversed and noted in the narration to having been “moved to another entity”. Mr Hannah states that in view of that material it is clear that the statutory demand issued against D.I.S. on 31 August is incorrect. He states that this is compounded by the failure to correctly distinguish between the two trustees of the Trust at two separate periods. Again, the evidentiary status of this document is not clear. It has been obtained from the Tax Agents’ Portal and is not an RBA.
The Deputy Commissioner’s affidavit in response
Ms Lemeray responds in turn to Mr Hannah’s affidavit in her affidavit of 17 January 2012. She concedes that there were errors in her first affidavit. In her first affidavit she had stated that “The plaintiff states that the defendants RBA deficit debt as at 20 January 2011 [was] the amount of $1,179,365.” She says that this statement is incorrectly expressed. The statement should read “In the affidavit of Peter John Hannah sworn on 28 November 2011 he deposed that the plaintiff owed the defendant an amount of approximately $1,179,365” (which is in fact what Mr Hannah states in his affidavit). She also states that the alternate RBA statement, did not, as she stated in her earlier affidavit, display the figures of $3,582,083.50 on 20 January 2011 and $4,045,673.56 on 31 August 2011. Rather, these amounts were derived from the ATO Statement of Account which reveals that as at 30 January 2011 the amount of D.I.S.’s RBA deficit debt was $3,582,083.50. Ms Lemeray states that because of technical impediments, there was an inability to reconstruct the precise amount owing by D.I.S. at those dates, another accounting system within the ATO, the Receivables Management System (“the RMS”) was used to state with precision D.I.S.’s indebtedness at those dates.
The ATO Statement of Account[5] (which was derived from the RMS system which is part of the Deputy Commissioner’s books and records), states that at 31 August 2011, the amount of $4,045,673.56 was owing.
[5]Exhibit “GL-9” to Ms Lemeray’s affidavit of 21 December 2011.
D.I.S.’s submissions
The first ground raised by D.I.S., that the demand is defective, was based on the contention that a demand which claims payment of the on a total of an RBA deficit debt can constitute a misdescription of a debt and thereby be a defect within the meaning of s 9 and s 459J(1)(a) unless the demand describes how the total is comprised and particulars are provided of the different taxes on which it is based. Here, the demand claimed a singular total of $4,582,760.50 which Mr Whelen submitted is comprised of several “constituent debts”. Mr Whelen submitted that the defect arises because the demand does not describe the constituent parts of the total and it does not particularise start dates in respect to the constituent parts, most significantly, whether it is pre or post 20 January 2011 accured liability. He states that substantial injustice would be caused to D.I.S. if it were required to pay taxes arising from the Trust which accrued after D.I.S. was removed as trustee on 20 January 2011.
I do not accept that submission. The Deputy Commissioner has, an alternative position, put on evidence which accepts for the purposes of this present application that D.I.S. has established that there was a change of trustee for the Trust from I.E.S. Australia Pty Ltd (as D.I.S. was then known) to I.D.S. Australia Pty Ltd on 20 January 2011. It will be seen later in these reasons I have accepted for the purpose of the present application that D.I.S. ceased to be the trustee of the Trust on and from 20 January 2011 and have proceeded to decide this matter on the basis of whether there is any genuine dispute as to the existence or amount of the debt the liability which came into existence when D.I.S. was trustee of the Trust.
Mr Whelen referred to the decision of Macready AsJ in Global Network v Commissioner of Taxation[6] as authority for the proposition that reliance on a singular total in an RBA can constitute a “misdescription of a debt” and therefore be a “defect” for the purposes of s 9 and s 459J(1)(a) unless the amount is broken up into its components. In that case, the demand claimed a total and split it up into three separate components, two of which were clear. The third component was based on an RBA deficit debt, as here. The plaintiff in that case made application to set aside the demand under s 459J by reason that there was “some other reason” to set aside the demand because it was not immediately apparent on the face of the demand how the amount was calculated. In the schedule to the demand, there was, as here, a general summary concluding with the statement of an amount. Macready AsJ stated:[7]
[6][2004] NSWSC 474 (“Global Network”).
[7]Ibid, [19].
19.It is useful to note the definition of defect in the Act. That definition is as follows:
defect, in relation to a statutory demand includes:
(a) an irregularity; and
(b) a misstatement of an amount or total; and
(c) a misdescription of a debt or other matter; and
(d) a misdescription of a personal entity.
20.What we are here dealing with is probably a misdescription of a debt. The debt has been described by general words rather than by more particular words to arrive at a total.
21.In the circumstances it seems to me that we are in truth dealing with a defect in the demand itself. In these circumstances as there has been no demonstration of a substantial injustice, the demand should not be set aside.
I do not accept that Global Network is authority for the proposition that a demand is defective if the Commissioner claims a singular total on an RBA deficit without providing particulars of the constituent components of the debt. The RBA regime of the TAA 1953 contemplates that several categories of liability be combined to arrive at a singular liability.[8] Section 8AAZA of the TAA 1953 defines “RBA deficit debt” as meaning:
In relation to an RBA of an entity, means a balance in favour of the Commissioner, based on:
(a)primary tax debts that have been allocated to the RBA and that are currently payable; and
(b)payments made in respect of current or anticipated primary tax debts of the entity, and credits to which the entity is entitled under a taxation law, that have been allocated to the RBA.”
[8]See generally Division 1 and Division 2 of Part IIB of the TAA 1953.
In the decision of Warren J (as her Honour then was) in Buckland Products Pty Ltd v Deputy Commissioner of Taxation[9] which was an application to set aside a statutory demand under s 459G, it was argued that the demand was defective and should be set aside to avoid substantial injustice as contemplated by s 459J of the Act by reason that the demand related to a number of tax debts and that there was no particularisation of the individual debts comprising the amount stated in the schedule to the demand and that there were no particulars of the calculation of interest. The schedule to the demand was, for practical purposes, identical to the demand in this case, with what might be described as the generic formulation which appears in the demand here, with no breakup of the RBA deficit debt into its various components culminating in a demand for a singular debt. Her Honour stated at paragraph 25:
In Chippendale Printing Co v Deputy Commissioner of Taxation (1995) 13 ACLC 229 Lindgren J held (at 244) that a statutory demand relating to two or more debts must give a description of the individual debts specifying their amounts and also state the amount of those debts. With respect I agree. In the present case I am satisfied that the Deputy Commissioner has met those requirements. …
[9][2001] VSC 286.
Her Honour concluded that the Deputy Commissioner had the ability to serve a statutory demand in relation to RBA deficit debts which were not particularised by reference to the various constituent debts.
Similarly, the Full Court of the Supreme Court of Western Australia in H’Var Steel Services Pty Ltd v Deputy Commissioner of Taxation,[10] rejected an argument that a statutory demand was defective because the schedule to the demand did not separately identify relevant debts. In that case the Court found that the RBA system did not require the Commissioner to specify separate primary tax and interest charge debts and therefore identification of the debt demanded as the single debt due under the RBA was sufficient description of the RBA debt for the demand.[11]
[10](2005) 59 ATR 5.
[11]See reference to this case by Macready AJ in Old Kiama Wharf Co Pty Ltd v Deputy Commissioner of Taxation (2005) 55 ACSR 223, [32].
Is there a genuine dispute as to the existence or amount of the debt demanded?
Section 459G(1) of the Corporations Act provides that a company may apply to the Court for an order setting aside a statutory demand served on the company. A demand may be set aside where there is a genuine dispute as to the existence or amount of the debt or where the company has an offsetting claim that exceeds the amount of the debt claimed.
In TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd,[12] Dodds-Streeton JA said:[13]
The court, in the context of an application to set aside a statutory demand, must determine whether there is a genuine dispute about the existence or amount of the debt or whether the company has a genuine off-setting claim.
No in-depth examination or determination of the merits of the alleged dispute is necessary, or indeed appropriate, as the application is akin to one for an interlocutory injunction. Moreover, the determination of the “ultimate question” of the existence of the debt should not be compromised.
[12](2008) 66 ACSR 67.
[13]Ibid, [56]-[57] (citation omitted).
Her Honour also said:[14]
As the terms of s 459H of the Corporations Act and the authorities make clear, the company is required, in this context, only to establish a genuine dispute or off-setting claim. It is required to evidence the assertions relevant to the alleged dispute or off-setting claim only to the extent necessary for that primary task. The dispute or off-setting claim should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. As counsel for the appellant conceded however, it is not necessary for the company to advance, at this stage, a fully evidenced claim. Something “between mere assertion and the proof that would be necessary in a court of law” may suffice.
[14]Ibid, [71].
While the evidence concerning the change of trustee is not entirely satisfactory, the nature of the present application is such that so long as D.I.S.’s evidence in that regard raises a plausible contention requiring investigation,[15] it should be accepted for current purposes that D.I.S. ceased incurring liabilities as trustee on 20 January 2011 and after that, save for interest and penalties on the debt as at that date, the new trustee contracted such liabilities. As such, I consider it is appropriate to approach the present application on the footing that it involves an assessment as to whether or not there is a genuine dispute that D.I.S. is liable for the taxation liabilities incurred by the Trust prior to 20 January 2011 and if so, in what sum. D.I.S. bears the onus of establishing the existence of such a genuine dispute. It does not dispute that, as at 31 August 2011, the date of the demand, its liability in respect to the period before it was removed as trustee, including penalties and interest, was $1,648,710.08.[16]
[15]Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785.
[16]Hannah affidavit of 28 November 2011, [8] and exhibit “PJH-2” setting out calculation of that amount.
As against this, it is necessary to consider the Deputy Commissioner’s evidence in support of his so called alternate position.
To support its alternate position, the Deputy Commissioner relies on the alternate RBA statement which was generated pursuant to s 8AAZI of TAA 1953, supplemented by the ATO’s Statement of Account derived from RMS system to enable precise statement of the debt.
Ultimately, the Deputy Commissioner relied on its Statement of Account derived from the RMS system which is part of its books and records. That document, evidences only those tax liabilities which were incurred during the period of D.I.S.’s tenure as trustee. It states that D.I.S. was indebted to the Deputy Commissioner in the amount of $3,582,083.50 on 20 January 2011, details the interest charges which accrued on that debt to 31 August 2011 and states that as at 31 August 2011 D.I.S. was indebted to the Commissioner in the amount of $4,045,673.56.
In my view, D.I.S., which bears the onus of establishing the existence of a genuine dispute as to the amount of the debt the subject of the demand, while making some plausible criticism of the Commissioner’s records, has not to my mind, been able to contend that the demand should be reduced to a figure less than this.
I will order pursuant to s 459H(4) that the demand be varied so that it is an effective demand for $4,045,673.45. I declare that the demand is to have had effect as so varied from when the demand was served on the plaintiff.
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