Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue

[2017] NSWCATAD 368

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 368
Hearing dates:	7 - 8 September 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	RL Hamilton SC, Senior Member
Decision:	(1) The Chief Commissioner’s refusal to degroup the Applicant was correct and the decision is confirmed.  (2) Leave to lodge out of time is granted.
Catchwords:	TAXES & DUTIES – PAYROLL TAX – GROUPING – Discretion to Degroup
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Payroll Tax Act 2007 Taxation Administration Act 1996
Cases Cited:	Headwear Pty Ltd v CCSR [2015] NSWCATAD 166 Lombard Farms Pty Ltd v CCSR [2013] NSWADTAP 42
Category:	Principal judgment
Parties:	Cessnock Tyres Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: Mr M Pesman SC (Applicant) Mr A H Rider (Respondent)   Solicitors: Beazley Boorman Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378456
Publication restriction:	Nil

reasons for decision

1. This matter involves a decision where the taxpayer seeks to be excluded from a group for payroll tax purposes. It says first that it was not part of the group. It says secondly that if it is wrong on the first ground it should by exercise of discretion be “degrouped”. Degrouping is a matter in the discretion of the decision maker. To succeed, the taxpayer must show that the business/es carried on by the person is/are carried on independently of, and is/are not connected with, the carrying on of a business or businesses by any other member of the group. The decision maker must have regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other relevant matters.

2. The Chief Commissioner of State Revenue (CCSR) has refused a degrouping application by the taxpayer covering the period from 1 July 2013 (the ‘relevant period’), and has disallowed the taxpayer’s objection to that decision. The taxpayer has applied, pursuant to s. 96 Taxation Administration Act 1996 (TAA) for the CCSR’s decision to be reviewed.

3. Division 2 of Part 5 the Payroll Tax Act 2007 (PRTA) (entitled’ Business Groups’) relevantly provided during the relevant period as follows:   

70 GROUPS OF CORPORATIONS

(1) Corporations constitute a group if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

72 GROUPS OF COMMONLY CONTROLLED BUSINESSES

(1) If a person or set of persons has a controlling interest in each of 2 businesses, the persons who carry on those businesses constitute a group.

Note : Section 79 (Exclusion of persons from groups) allows the Chief Commissioner, for payroll tax purposes, to exclude persons from a group constituted under this section in certain circumstances.

(2) For the purposes of this section, a person or set of persons has a controlling interest in a business if:

…

(c) in the case of a business carried on by a corporation:

(i) the person or each of the set of persons is a director of the corporation and the person or set of persons is entitled to exercise more than 50% of the voting power at meetings of the directors of the corporation, or

(ii) a director or set of directors of the corporation that is entitled to exercise more than 50% of the voting power at meetings of the directors of the corporation is under an obligation, whether formal or informal, to act in accordance with the direction, instructions or wishes of that person or set of persons, or

(d) ….

(e) in the case of a business carried on by a corporation that has a share capital--that person or set of persons can, directly or indirectly, exercise, control the exercise of, or substantially influence the exercise of, more than 50% of the voting power attached to the voting shares, or any class of voting shares, issued by the corporation, or

(f) …

(g) in the case of a business carried on under a trust--the person or set of persons (whether or not as a trustee of, or beneficiary under, another trust) is the beneficiary in respect of more than 50% of the value of the interests in the first-mentioned trust.

(3) If:

(a) 2 corporations are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth, and

(b) 1 of the corporations has a controlling interest in a business,

the other corporation has a controlling interest in the business.

(4) If:

(a) a person or set of persons has a controlling interest in a business, and

(b) a person or set of persons who carry on the business has a controlling interest in another business,

the person or set of persons referred to in paragraph (a) has a controlling interest in that other business.

(5) If:

(a) a person or set of persons is the beneficiary of a trust in respect of more than 50% of the value of the interests in the trust, and

(b) the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of another trust,the person or set of persons has a controlling interest in the business.

(6) A person who may benefit from a discretionary trust as a result of the trustee or another person, or the trustee and another person, exercising or failing to exercise a power or discretion, is taken, for the purposes of this Part, to be a beneficiary in respect of more than 50% of the value of the interests in the trust.

(7) If:

(a) a person or set of persons has a controlling interest in the business of a trust, and

(b) the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of a corporation,the person or set of persons is taken to have a controlling interest in the business of the corporation.

(8) …

73 GROUPS ARISING FROM TRACING OF INTERESTS IN CORPORATIONS

(1) An entity and a corporation form part of a group if the entity has a controlling interest in the corporation.

Note : Section 79 (Exclusion of persons from groups) allows the Chief Commissioner, for payroll tax purposes, to exclude persons from a group constituted under this section in certain circumstances.

(2) For the purposes of this section, an entity has a "controlling interest"in a corporation if the corporation has share capital and:

(a) the entity has a direct interest in the corporation and the value of that direct interest exceeds 50%, or

(b) the entity has an indirect interest in the corporation and the value of that indirect interest exceeds 50%, or

(c) the entity has an aggregate interest in the corporation and the value of the aggregate interest exceeds 50%.

(3) Division 3 applies for the purposes of the interpretation of this section.

Note : Division 3 sets out the manner for determining whether an entity has a direct interest, indirect interestor aggregate interest in a corporation, and the value of such an interest.

(4) In this section: 

"associated person" means a person who is associated with another person in accordance with any of the following provisions:

(a) persons are associated persons if they are related persons,

(b) natural persons are associated persons if they are partners in a partnership,

(c) private companies are associated persons if common shareholders have a majority interest in each private company,

(d) trustees are associated persons if any person is a beneficiary common to the trusts (not including a public unit trust scheme) of which they are trustees,

(e) a private company and a trustee are associated persons if a related body corporate of the company (within the meaning of the Corporations Act 2001 of the Commonwealth) is a beneficiary of the trust (not including a public unit trust scheme) of which the trustee is a trustee.

"domestic partner" of a person means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender). 

"entity" means:

(a) a person, or

(b) 2 or more persons who are associated persons (as defined in this section).

"private company" means a company that is not limited by shares, or whose shares are not quoted on the Australian Stock Exchange or any exchange of the World Federation of Exchanges. 

"related person" means a person who is related to another person in accordance with any of the following provisions:

(a) natural persons are related persons if:

(i) one is the spouse or domestic partner of the other, or

(ii) the relationship between them is that of parent and child, brothers, sisters, or brother and sister,

(b) private companies are related persons if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth,

(c) a natural person and a private company are related persons if the natural person is a majority shareholder or director of the company or of another private company that is a related body corporate of the company within the meaning of the Corporations Act 2001 of the Commonwealth,

(d) a natural person and a trustee are related persons if the natural person is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee,

(e) a private company and a trustee are related persons if the company, or a majority shareholder or director of the company, is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee.

(5) For the purposes of the definition of "domestic partner" in subsection (4), in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 4 (2) of the Property (Relationships) Act 1984 as may be relevant in a particular case.

74 SMALLER GROUPS SUBSUMED BY LARGER GROUPS

(1) If a person is a member of 2 or more groups, the members of all the groups together constitute a group.

(2) If 2 or more members of a group have together a controlling interest in a business (within the meaning of section 72), all the members of the group and the person or persons who carry on the business together constitute a group.

Note : Section 79 (Exclusion of persons from groups) allows the Chief Commissioner, for payroll tax purposes, to exclude persons from a group constituted under this section in certain circumstance

79 EXCLUSION OF PERSONS FROM GROUPS

(1) The Chief Commissioner may, by order in writing, determine that a person who would, but for the determination, be a member of a group is not a member of the group.

(2) The Chief Commissioner may only make such a determination if satisfied, having regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other matters the Chief Commissioner considers relevant, that a business carried on by the person, is carried on independently of, and is not connected with the carrying on of, a business carried on by any other member of that group.

(3) The Chief Commissioner cannot exclude a person from a group if the person is a body corporate that, by reason of section 50 of the Corporations Act 2001 of the Commonwealth, is related to another body corporate that is a member of that group.

(4) This section extends to a group constituted by reason of section 74 (Smaller groups subsumed by larger groups).

(5) A determination can be expressed to take effect on a date that is earlier than the date of the determination.

(6) The Chief Commissioner may by order in writing revoke a determination that applies in respect of a person if satisfied that the circumstances in which a determination may be made do not apply to the person.

(7) The revocation of a determination can be expressed to take effect on a date that is earlier than the date of the determination.

4. The taxpayer’s case is that it should not have been grouped with, or alternatively should have been excluded from being a member of a group with:

• Cessnock Truck Tyre Centre Pty Ltd (CTTC)

• O’Neill Tyres Gateshead Pty Ltd (Gateshead)

• Bayrond Pty Ltd (Bayrond)

The Facts

5. The “group” might be conveniently titled ‘O’Neills Tyres’. I use the word ‘group’ generally without meaning to express a conclusion.

6. The O’Neills Tyres business was founded in the 1950s by Mr O’Neill (Senior). It was located in the Hunter Valley and expanded to various retail outlets in both Newcastle and the Hunter Valley. He had three sons.

7. The businesses passed to the principals in the “group” who are the three sons of the founder who I will refer to, for convenience and without disrespect, as Mark, Bernard and Stephen. The evidence, discussed in more detail below, was that Mark is the principal of the taxpayer. Following family disagreements about the direction of the businesses, Mark in particular has actively sought to “go his own way”.

8. There is still however, a degree of integration of the O’Neills Tyres businesses particularly in relation to holding out to the public under the O’Neills Tyres banner including entitlements to volume discounts on ‘group’ purchases from tyre manufactures; intra ‘group’ stock transfers and intra ‘group’ loan accounts. There are other connections analysed below.

9. The taxpayer is the trustee of the Mark O’Neill Family Trust (MOFT). The taxpayer’s directors and shareholders are Mark and his wife Elizabeth O’Neill. The potential beneficiaries of the MOFT are Mark, his wife, his children, his grandchildren, and his brothers. It is what is generally referred to as a family discretionary trust.

10. The taxpayer’s business is a store in Cessnock which sells tyres for passenger vehicles.

11. The next ‘group’ member is CTTC. Its directors through the relevant period were Mark and Bernard. The shareholders through the relevant period were Mark and the taxpayer as trustee for the MOFT, and Bernard and the trustee of Bernard’s family trust.

12. CTTC sold its business in 2011 to Gateshead but there were intra ‘group’ loans by and to it through the relevant period.

13. The third member of the group is Gateshead. The directors of Gateshead are Bernard and Mr S Leggett. The shareholders are CTTC (2 Ordinary and 2 A Class) and Mr S Leggett (1 Ordinary and 1 A Class).

14. Gateshead has passenger tyre stores in the suburbs of Gateshead, Belmont, Warners Bay and Beresfield. It sells truck tyres at its stores at Beresfield and Cessnock.

15. Fourth, Bayrond has Mark and Stephen as directors and its shareholders are Mark (1 Ordinary) Stephen (1 Ordinary) Bernard (1 Ordinary).

16. Bayrond’s business is the sale of passenger car tyres from stores at Wallsend, Rutherford and Kurri Kurri.

17. It does not aid understanding to go into fine detail about the amounts of loans owing between the ‘group’ members at various points in the relevant period. The loans were generally significant (greater than $50,000) unless noted as small. All loans were unsecured.

18. The taxpayer had receivables owing to it by CTTC and/ or related parties. It was indebted to Gateshead and Bayrond (in a small way in FY 2013).

19. CTTC was largely dormant during the relevant period. It had sold its truck business to Gateshead in 2011. Through the period to 30 June 2015 Gateshead was indebted to CTTC for the sale price of the business. CTTC was also a creditor of the taxpayer as trustee for the MOFT and Gateshead.

20. CTTC was in turn indebted to the taxpayer and Gateshead was a small creditor of CTTC.

21. Gateshead was indebted to CTTC. The taxpayer and CTTC were also debtors of Gateshead. There was further evidence that Gateshead had borrowed from shareholders to finance the acquisition of land adjoining one of its stores for expansion of the business.

22. Bayrond had receivables owing to it by the taxpayer in a small way in 2013, and in 2014.

Trading Arrangements

23. The taxpayer, Gateshead and Bayrond were each franchisees/dealers under Goodyear Auto Service Centre agreements with Tyre Marketers Australia Ltd (later Pty Ltd). All franchise and dealer agreements predated the relevant period by a number of years. Mark was one of the personal guarantors of the corporate obligations under the franchise/dealer agreements. The three entities received group sales rebates on a proportional basis and contributed to a marketing and advertising fund run by Goodyear.

24. The taxpayer, Gateshead and Bayrond had supplier agreements with other tyre manufacturers / distributors who were the same for each of them. They each enjoyed volume discounts based on the aggregate purchase volumes of stock (tyres) by the three entities combined.

25. Until July 2014 the taxpayer received the Michelin “group” volume rebate and paid out proportionate shares to Gateshead and Bayrond.

26. The taxpayer, Gateshead and Bayrond would from time to time sell tyres to each other. The evidence was that this occurred occasionally when one of the entities was short of stock for a particular job. Sales took place at a mark-up above wholesale but below retail.

27. The O’Neills Tyres businesses were listed together on a website of that name. The website stated that they were each independently run.

28. The O’Neills Tyres businesses also advertised in other ways as a ‘group’ – eg by offering the same ‘specials’ across the ‘group’.

Shared Services

29. The taxpayer, Gateshead and Bayrond used the same accounting firm (Davidson Accountants) who had been accountants for the businesses and the O’Neill family from early days. The accountants provided a common registered office for all four companies (including CTTC). The evidence was that each of the four companies provided their own data to the accountants for the preparation of the accounts, tax returns and so forth. The information was provided at times that suited each company and there was no co-ordination in submitting figures. The financial data was kept and dealt with separately by the accountants. The results were not consolidated.

30. Each of the four companies had their own banking arrangements, and the 3 active entities had their own telephone numbers and fax numbers.

31. There were no common employees.

Control and Direction

32. The evidence was that decision making in the taxpayer, Gateshead and Bayrond at the director and shareholder levels was conducted in a way that took into account only the best interests of the relevant company and the best interests of the relevant brother’s family.

33. It seemed from the evidence that each brother recognised that, putting aside corporate formalities in the real commercial world, the Cessnock Tyres business was Mark’s; the Gateshead businesses were Bernard’s; and the Bayrond businesses were Stephen’s.

34. The day to day running of the various entities’ businesses was in the hands of the relevant brother.

Grouping

35. The taxpayer submitted an ‘Application for Exclusion from Grouping’ dated 25 September 2015. It had unsuccessfully applied for degrouping in 2012. The 2012 Application was not pursued.

36. In the 2015 application the taxpayer stated that there had been changes in directorships of the ‘group’ entities, and that there were no common employees.

37. This appears to be a challenge to the actual grouping but not put in that form. The taxpayer made the argument before the Tribunal that the grouping was incorrect, but if it was incorrect the taxpayer should be degrouped under the CCSR’s discretionary power in s. 79 PRTA.

38. The CCSR took the position that the grouping provisions applied on the following basis:

• The taxpayer and Bayrond formed a group under s. 72 PRTA (commonly controlled businesses) because Mark and Bernard held a controlling interest in the taxpayer’s business under s.72 (2) (g) and (6) PRTA (as they were both potential beneficiaries of MOFT) and had a controlling interest in Bayrond’s business under s.72 (2) (e) PRTA (as the two of them controlled more than 50% of the voting shares). (Group 1)

• CTTC and Gateshead were grouped under s.70 PRTA as related corporations (Group 2)

• CTTC and Bayrond were grouped through the tracing of interests in corporations (s. 73 PRTA) because Mark and Bernard as brothers are related persons and therefore associated persons having a controlling interest (more than 50%) in each of CTTC (93% of voting shares) and Bayrond (66% of voting shares). (Group 3)

• Groups 1, 2 and 3 were subsumed into a larger group under s.74 PRTA because Bayrond and the taxpayer were group 1, Bayrond and CTTC were group 3 and CTTC and Gateshead were group 2.

39. The basis for the taxpayer being in Group 1 was the commonality of the beneficiaries of MOFT. This is because the objects included the brothers (here Bernard) of the specified beneficiary/ principal (here Mark) and s72 (2) (g) and (6) were invoked. Bernard and Stephen had similarly structured family discretionary trusts.

40. In an attempt to break this connection, each of the brothers entered into arrangements in 2015 whereby they purported to renounce / disclaim (as it was put in submissions to the Tribunal and CCSR) their interests in their brothers trusts.

41. The document in question was a Rectification Deed and for most of the reasons advanced by the CCSR was, in my view, ineffective to break the grouping under s.72. The CCSR’s counsel submitted -

29. First, Bernard and Stephen O’Neill did not ‘disclaim’ their discretionary interests in the Mark O’Neill Family Trust (Trust).Rather the Applicant entered into a Deed dated 9 July 2015 (Rectification Deed) which purported to rectify the Trust Deed of the Trust dated 1 July 1991 (Trust Deed) ab initio (ie with retrospective effect back to 1 July 1991) by amending the definition of ‘General Beneficiaries’ in the ‘Schedule to the Trust Deed’ to remove Bernard and Stephen O’Neill as General Beneficiaries. The purported rectification of the Trust Deed was completely ineffective because:

There is no evidence from the persons who drafted the Trust Deed (eg a solicitor) or who executed it (Allan McKeown, Mark and Elizabeth O’Neill) that Bernard and Stephen O’Neill should have been excluded as General Beneficiaries of the Trust at the time the Trust Deed was prepared and executed;

The Trust Deed was executed by Allan McKeown, Mark and Elizabeth O’Neill but the Rectification Deed was only executed by Mark O’Neill. If the basis for rectifying the Trust Deed is that the parties that executed it were mistaken as to its effect, then all of the parties should have been involved in the rectification discussions and execution of the Rectification Deed [This may be too widely expressed. As Trustee is a company execution of the Rectification Deed can be in accordance with the company’s constitution:]

The Rectification Deed purported to replace the definition of ‘General Beneficiaries’ in the ‘Schedule to the Trust Deed’, but there was no definition of ‘General Beneficiaries’ in the Schedule to the Trust Deed. [It appears that there was a lack of competent legal advice involved in drafting the Rectification Deed.]

30. Second, regardless of whether the Rectification Deed may have had retrospective effect as between the Applicant and the discretionary objects of the Trusts (which the Respondent denies), the Applicant has not provided any authority that an inter-parties deed (as opposed to Court ordered rectification) would have retrospective effect as against the Respondent or the operation of the Act.

31. Third, even if the Rectification Deed was effective to vary, as opposed to rectify, the Trust Deed, the variation would only been effective from the date of the Rectification Deed being 9 July 2015.

32. Fourth, even if the Rectification Deed was effective to remove Bernard and Stephen O’Neill as general beneficiaries of the Trust (which the respondent denies), it had no effect on the grouping of the Applicant and Bayrond during the relevant period under s.72 (2) (g) and (6). This is because Mark O’Neill remained the specified beneficiary of the Trust and Bernard O’Neill remained a taker in default (ie a person who may benefit from a discretionary trust) under cl.4 of the trust deed.

33. Fifth, the decision in Commissioner of Taxation v Ramsden [2015] FCAFC 39 does not assist the applicant’s case as it was concerned with disclaimers of Trust interests, which did not occur here.

34. Sixth, the purported removal of Bernard and Stephen O’Neill as general beneficiaries of the trust did not affect Group 2 as CTTC and Gateshead remained related corporations under s.70. Further it did not affect Group 3, as Mark and Bernard O’Neill continued to have a ‘controlling interest’ in CTTC and Bayrond under s.73. [Footnotes have been omitted].

42. The ‘incorrect’ grouping point was not vigorously pressed by the taxpayer and most of the submissions before the Tribunal went to the adverse degrouping decision of the CCSR.

Consideration of Degrouping Decision

43. In Lombard Farms Pty Ltd v CCSR [2013] NSWADTAP 42 the Appeal Panel stated

“s.79(2) requires the trier of fact to determine whether, having regard to the nature of connections between group businesses it can, nevertheless be said, that the businesses are independent and not connected. Ultimately, this will be a question of judgement based on facts objectively determined. It is not the case that any connection between businesses will disentitle an applicant from degrouping. The connection must be material and not insignificant or inconsequential… to be relevant, the connection must affect the business in some real or practical sense.” [para [50]-[51]] [emphasis added]

44. Obviously the factors to be taken into account must be relevant. The section sets out the mandatory factors

The nature and degree of

i) Ownership;and

ii) Control

of businesses; and

The nature of the businesses

45. Then there can be taken into the weighing process any other matters which are considered relevant.

46. The CCSR has produced a Ruling (PTA031) setting out the various considerations he takes into account when exercising his degrouping discretion. Although the Tribunal is not bound by the Ruling, it provides useful guidance to assist the Tribunal to come to its own decision.

47. This is a review of the CCSR’s decision on the merits, and the Tribunal stands in the shoes of the Chief Commissioner so the matter can be considered afresh in the light of the evidence presented and the competing submissions.

48. As to the ownership of the businesses the legal position is all that can be considered here.

49. As to the control of the businesses, in a legal sense, there is either control or the ability to control the businesses through the holding of a director’s position and/or the holding of shares and the family relationship between the three brothers. In a practical sense though, control of the management and the day to day operations of each of the businesses has been ceded by the ‘non-active’ brothers to the relevant brother to control ‘his’ businesses.

50. The businesses are of a similar nature i.e. retail supply of tyres for passenger cars and for Gateshead, the supply of truck tyres as well.

51. The businesses sell similar products under a common banner (O’Neills Tyres) and each of the entities is a Goodyear Franchise Dealer.

52. I do not attach much weight to the personal guarantees under the franchisee/dealer agreements as they date back to a time of greater family solidarity, and I infer are effectively set in stone without a great deal of renegotiation.

53. The businesses do not really compete with each other due to their geographical location. In my opinion there is nothing to be made of that fact here.

54. I attach some, but not too much weight to the group rebates and co-operative marketing arrangements with Goodyear. These are an almost inevitable part of owning a franchise business and do not of themselves indicate connection or lack of independence. But there is a business incentive to maintain a connection so that rebates and volume discounts can be accessed and maximised through common buying power.

55. The ‘intra group’ sourcing of tyres when out of stock is also of minor relevance.

56. It appears to be minimal, not part of the usual course of business and transacted on commercial terms.

57. However, it is of more importance that the O’Neill Tyres ‘Group’ is held out to the public via the website and advertising as being a group. There is a difference between a holding out of O’Neills Tyres as being a ‘group’ and the holding out of franchisees of Goodyear generally as a ‘group’ when special deals are offered. Goodyear’s name and marks have become well known across Australia but it can hardly be suggested that all the franchisees are connected to each other, and lack independence, for payroll tax purposes The more informed public would be likely to be able to discern there was a difference between the O’Neill Tyres group (even though their website says they are separately run) and the Goodyear Auto Service Centre group.

58. The appearance of O’Neills Tyres as a ‘group’ on the website and in other advertising may not, of itself, suggest a lack of independence, but there is clearly a connection between the businesses through the co-ordination in the same retail field of their advertising and website development and maintenance.

59. The ‘intragroup’ loans are also a substantial connecting factor. The size of the debts owing to and by the taxpayer are significant. Those debts were on foot through the relevant period. They were not short term trade debts (eg for stock transfers). There was no formal documentation of the debts before the Tribunal. The debts appear to be non-interest bearing.

60. I accept that the loans are genuine, but the terms on which they operate indicate a family or related party understanding, as compared to loans on commercial terms between unrelated parties.

61. In Headwear Pty Ltd v CCSR [2015] NSWCATAD 166 at [72]-[75] it was held that related party loans on ‘uncommercial terms’ [an excessive interest rate there] were a significant connecting factor.

62. Having heard evidence from the longstanding family and business accountant (Mr S Davidson) I do not consider that the grouped entities having the same accountant and the same registered office count for much in this case. Mr Davidson’s evidence was that each group entity provided its own data, on its own timetable and in its own format, and that there was no co-ordination or consolidation at the financial level. Each grouped entity conducted its own banking activities and although Mark was one of the signatories on the bank accounts of Gateshead and Bayrond he did not exercise his signatory authority.

Conclusion

63. In the end result, it is tolerably clear that Mark tried to distance the taxpayer’s business from the businesses of his brothers. However, there were still a number of ties that bound them together which make it difficult to say that the businesses were not materially connected and that the connections were insignificant. It is also difficult to say, in the light of the legal position concerning ownership and control that the businesses were independent from each other in a legal sense.

64. I pay particular attention to Mark’s legal position so far as ownership and directorship which gave him an ability to exert control (taking account of his relevant brother as an associated person) over the businesses of the other group entities, even though the evidence indicates, as a practical matter he did not exercise it.

65. I also take into particular account the intragroup loan position and the size and terms of those loans.

66. In my view, the above two factors support the ownership and potential for control vested in Mark, and the financial interdependence of the businesses, and detract from the submission that the businesses are independent and not connected.

67. Further, I note that the businesses are all of a similar nature and are held out to the public as being part of the O’Neills Tyres group.

68. The application to the Tribunal was lodged slightly out of time. Leave was sought to lodge late, which was not opposed. Pursuant to s41 of the Civil and Administrative Tribunal Act 2013, I will extend the time for lodgement to the date of lodgement of the application.

Orders

69. For the above Reasons the Tribunal orders:

1. The Chief Commissioner’s refusal to degroup the Applicant was correct and the decision is confirmed.

2. Leave to lodge out of time is granted.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 December 2017