CONFIDENTIAL and COMMISSIONER OF TAXATION
[2012] AATA 178
•23 March 2012
[2012] AATA 178
Division TAXATION APPEALS DIVISION File Numbers
2007/5059-5063
2007/5340-5344
2010/3486
Re
CONFIDENTIAL
APPLICANT
And
COMMISSIONER OF TAXATION
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 23 March 2012 Place Melbourne The Tribunal affirms the objection decisions made by the Commissioner of Taxation dated 6 September 2007, 20 August 2007 and 7 July 2010.
...[sgd].................................................................
Egon Fice, Senior Member
TAXATION – taxable income – onus of proof – burden of proof – understatement of income – deductions – expenses – superannuation contributions – failure to lodge income tax returns – unexplained income – rental income – goods own use – disposal of trading stock – family trust – assessment of trust income – tax evasion – fraud – intentional disregard – administrative penalties – penalty tax – the meaning of employee – employment relationship – independent supermarket
LEGISLATION
Income Tax Assessment Act 1936 (Cth) ss 17, 36, 82AAA(2), 82AAA, 82AAC, 82AAC(2A), 82AAE, 82AAR, 95, 97, 99A, 101, 139GA, 167, 170(2), 170(3), 175A, 221A, 226J, 227
Income Tax Assessment Act 1936 -1969 (Cth) s 190(b)
Income Tax Assessment Act 1997 (Cth) s 70-90
Superannuation Guarantee (Administration) Act 1992 (Cth)Taxation Administration Act 1953 (Cth) ss 14ZZK, 284-75, 284-90, 298-20
CASES
ACE Insurance Limited v Trifunovski (2011) 284 ALR 489
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607
Attorney-General (NSW) v Brewery Employes Union of New South Wales (1908) 6 CLR 469
Balfour v Balfour [1919] 2 K.B. 571
Bamford v Commissioner of Taxation (2009) 176 FCR 250
Brown v Federal Commissioner of Taxation (2001) 47 ATR 178
Browne v Dunn [1894] 6 R 67
Carr v Western Australia (2007) 232 CLR 138
CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384
Clark v Inglis (2010) 79 ATR 447
Colonial First State Investments v Federal Commissioner of Taxation (2011) 192 FCR 298
Commissioner of Taxation of the Commonwealth of Australian v Ryan (2000) 201 CLR 109
Commissioner of Taxation v Bamford (2010) 240 CLR 481
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 29 ATR 644
Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614
Federal Commissioner of Taxation v Bargwanna (2009) 72 ATR 963
Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81
Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264
Harris v Commissioner of Taxation (2002) 125 FCR 46
Jones v Dunkel (1959) 101 CLR 298
Jones v Padavatton [1969] 2 ALL E.R. 616
McCormack v Federal Commissioner of Taxation (1979)143 CLR 284
Nozzi Pty Ltd and Another v Federal Commissioner of Taxation (2003) 52 ATR 521
R. v Burdett (1820) 4 B. & Ald. 95 [106 E.R. 873]
R v Willmot [1985] 2 Qd R 413
Re Kumar v Minister for Immigration and Citizenship (2009) 107 ALD 178
Re Ryan v Commissioner of Taxation (2008) 72 ATR 498
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16Tisdall v Webber (2011) 122 ALD 49
SECONDARY MATERIALS
Chamber’s 21st Century Dictionary (1999, reprinted 2004)
Macquarie Concise Dictionary (4th ed)
The New Shorter Oxford English Dictionary (1993) Volume 1
Taxation Ruling TR 2001/3
Taxation Ruling TR 94/4
Wigmore on Evidence (3rd ed (1940)) Volume 2
REASONS FOR DECISION
Egon Fice, Senior Member
The applicant in this proceeding is a private company in its capacity as the Trustee of a family trust. The applicant has sought review of a number of decisions made by the Commissioner of Taxation (the Commissioner) for the income years 1993 – 2003 inclusive. There are three objection decisions which I am required to review being:
(a)1993 – 1997 income years – objection decision made on 6 September 2007;
(b)1998 – 2002 income years – objection decision made on 20 August 2007; and
(c)2003 income year – objection decision made on 7 July 2010.
The family trust, the subject of this dispute, was a trading trust which operated an independent supermarket. On 1 September 2005, the Commissioner made a written finding that the applicant was involved in tax evasion. Therefore, the Commissioner applied s 170(2) of the Income Tax Assessment Act 1936 (ITAA 1936) which provides that the Commissioner may amend an assessment at any time if he or she is of the opinion that there has been fraud or evasion.
The Commissioner conducted an audit of the family trust for the period 1 July 1992 to 30 June 2003. On 10 February 2005 the Commissioner notified the applicant that he had found understatements of income and it was proposed that original and amended assessments be issued for the income years 1993 – 2003. The Commissioner issued amended assessments for the income years 1993 – 1997 on 10 April 2007. Those amended assessments simply reduced the interest payable by the applicant but did not affect the taxable income or the primary tax said, by the Commissioner, to be payable. The Commissioner issued assessments in respect of those years on 14 November 2005, as follows:
Year Ending 30 June
Taxable Income on Assessment
Penalty on Assessment
1993
$126,948
$45,939.30
1994
$150,344
$54,574.86
1995
$87,215
$31,659.04
1996
$137,173
$49,896.67
1997
$323,872
$118,294.24
For the income years 1998 – 2003, the Commissioner issued assessments to the applicant on 23 November 2005 for the 1998 – 2000 years; on 28 November 2005 for the 2001 income year; on 24 November 2005 in respect of taxable income for the 2002 income year; on 29 November 2005 in respect of the penalty for the 2002 income year; and on 12 December 2005 (amended assessment) in respect of the taxable income for the 2003 income year, as follows:
Year Ending 30 June
Taxable Income on Assessment
Penalty on Assessment
1998
$122,617.00
$27,850.09
1999
$139,587.00
$32,381.26
2000
$214,833.00
$52,341.31
2001
$184,484.00
Nil
2002
$465,028.00
$104,631.30
2003
$370,864.00
(NOTE: Original assessment was $375,499 – the objection was allowed in part and the taxable income reduced to $370,864)
Nil
The applicant lodged objections against all of the assessments and amended assessments referred to above.
On 6 September 2007 the Commissioner issued to the applicant a notice of decision on objection (the objection decision) in respect of the 1993 – 1997 income years. The Commissioner held that the taxable income on assessment which I have referred to in the first table above was the amount by which the taxable income exceeded the trust income returned by the applicant for the relevant years. The Commissioner found that the applicant should be taxed under s 99A of the ITAA 1936. The Commissioner also held that the applicant was liable for administrative penalties (penalty tax) and interest and that the penalties should not be remitted.
In an objection decision dated 20 August 2007 the Commissioner disallowed the applicant’s objection against the taxable income assessment for the income years 1998 – 2002. However, the Commissioner also found that the applicant, which was a beneficiary of the family trust, was presently entitled to 100 per cent of the income of the family trust for the years 1998 – 2002. The Commissioner therefore assessed the applicant under s 97 of the ITAA 1936. The Commissioner held that the amounts I have referred to in the second table above represented the additional net income available for distribution by the family trust in the years stated. The Commissioner also found that the applicant was liable for penalty tax and interest and that there should be no remission.
The final objection decision was issued by the Commissioner on 7 July 2010 in respect of the 2003 income year. The Commissioner allowed the applicant’s objection to the extent of $4,635. The applicant’s taxable income for the 2003 year was reduced to $370,864. The Commissioner held that the applicant should be assessed under s 97 of the ITAA 1936. No penalty tax was imposed on the applicant for the 2003 income year.
Broadly stated, the issues which I must determine in this matter are whether:
(a)there was understated income for the income years 1993 – 2000 including:
(i)net profit from supermarket business;
(ii)rental income (1998 – 2000);
(iii)goods own use (1993 – 2000) and
(iv)unexplained income (loans to related entities);
(b)deductions were correctly disallowed for the income years 2001 – 2003 including:
(i)superannuation contributions on behalf of employees;
(ii)various other deductions;
(c)there was an understatement of income for the years 2001 – 2002 due to a failure to correctly record goods own use;
(d)the applicant was properly assessed under s 99A of the ITAA 1936, for the income years 1993 – 1997 and under s 97(1) of the ITAA 1936, for the income years 1998 – 2003;
(e)the applicant failed to lodge returns for the income years 1993 and 1994; 1996 and 1997; and 1999 and 2000; and whether subsequent assessments were made outside the time limitations set out in ITAA 1936;
(f)the applicant was liable to administrative penalties and, if so, whether those penalties were correctly assessed at 75 per cent; and
(g)the penalties should be remitted.
ONUS OF PROOF
The Commissioner made it clear in his statement of facts and contentions lodged with the Tribunal and in closing submissions made on his behalf by Dr P Bender of counsel, that he relied on s 14ZZK of the Taxation Administration Act 1953 (the Administration Act). Section 14ZZK provides:
14ZZK Grounds of objection and burden of proof
On an application for review of a reviewable objection decision:
(a)the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b)the applicant has the burden of proving that:
(i)if the taxation decision concerned is an assessment (other than a franking assessment)—the assessment is excessive; or
(ii)if the taxation decision concerned is a franking assessment—the assessment is incorrect; or
(iii)in any other case—the taxation decision concerned should not have been made or should have been made differently.
While accepting that the applicant bears the onus of establishing that the assessments were excessive, Mr A T Broadfoot of counsel, who appeared on behalf of the applicant, referred to the decision of Brennan J in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 at 621 where he said:
... It would be inappropriate for a court determining an appeal to make an order altering the tax liability assessed (s. 199) unless the court were satisfied that the amount to which it proposed to alter the assessment represented the true tax liability of the taxpayer. Although the grounds of objection limit the grounds of appeal, the ultimate question for the court hearing the appeal is not whether the grounds have been made out but whether the amount assessed as taxable income is wrong. ...
Brennan J also referred to the manner in which a taxpayer can discharge the burden of proof. He said that it varies with the circumstances. His Honour said that if the Commissioner and taxpayer agree to confine an appeal to a specific point of law or fact on which the amount of the assessment depends, it is sufficient for the taxpayer to show he is entitled to succeed on that point. However, in the absence of an agreement confining the issues for determination, his Honour said, at 624 – 625:
Absent such a confining of the issues for determination, the Commissioner is entitled to rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment, though the taxpayer is limited to the grounds of his objection. In Gauci v. Federal Commissioner of Taxation (44), Mason J. said:
“The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail.”
That view, expressed in a dissenting judgment, now prevails: Macmine Pty. Ltd. v. Commissioner of Taxation (45); McCormack's Case (46).
Section 190(b) of the Income Tax Assessment Act 1936 -1969, to which Mason J referred in Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, is similar to the burden of proof provisions now set out in s 14ZZK of the Administration Act.
Dr Bender submitted that the applicant must go further than showing that the assessments are wrong. He said it must show what the correct assessment should be, and what corrections should be made in order to make the assessments right or nearly right. In Dalco’s case, Toohey J referred to the finding by Yeldham J at first instance where he referred to the taxpayer having had control and benefit of the monies included by the Commissioner in his assessable income. Toohey J said, at 633-634:
Although such "control and benefit" may not be conclusive proof of the taxpayer's liability, it does entail that the taxpayer do more than show that the Commissioner's assessment was made on a wrong basis.
That is not to say that, in such circumstances, the Commissioner's assessment is completely at large or that particulars of an assessment will not be ordered. If the Commissioner has simply plucked a figure "out of the air" (Reg. v. Deputy Commissioner of Taxation (W.A.); Ex parte Briggs (74)) or has proceeded "upon no intelligible basis" (Trautwein v. Federal Commissioner of Taxation (75)), the Commissioner may be in breach of his statutory duty to make an assessment from the information in his possession: see Bloemen (76). I express no view on that matter for this is not such a case; the assessments were reached after a long and detailed investigation into the taxpayer's affairs.
Dr Bender also submitted that evidence produced by or on behalf of the applicant was essential because, in the absence of evidence, the Tribunal could not infer facts in favour of the taxpayer. Mr Broadfoot appeared to agree with that submission and said that where there is no evidence, the application will need to be dismissed and the decision on review affirmed. However, Mr Broadfoot said it was not necessary for a taxpayer to prove every conceivably relevant fact in a case where all of the facts were known and it was sufficient if the taxpayer could point to evidence that enables the Court or Tribunal to infer that the taxable income assessed is excessive. Mr Broadfoot referred to the decision of Gibbs J in McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284. His Honour said, at 303:
… To discharge that burden in a case such as the present he must prove affirmatively, on the balance of probabilities, that the property was not acquired for the purpose of profit-making by sale. The burden may be discharged by drawing inferences from the evidence. In some cases in which all relevant facts are known, and there is no material upon which it might properly be concluded that the property was acquired for the relevant purpose, the inference may properly be drawn that the property was not acquired for the relevant purpose... The taxpayer will succeed if the proper inference from the evidence is that the property was not acquired for the relevant purpose, but if there is no evidence as to the purpose for which the taxpayer acquired the property the appeal must fail.
Murphy J in McCormack’s case, although dissenting, had this to say about the burden of proof at 323:
A taxpayer might discharge the burden of proof placed on him by s 190(b) in any of several ways. He may prove all relevant circumstances and from these establish that an inference should be drawn that the property (from the sale of which by the taxpayer a profit arose) was not acquired by him for the purpose of profit-making by sale. Or he may prove by direct evidence that such a purpose did not exist. The burden might also be discharged by a combination of direct evidence and inference from other circumstances. ...
I am aware that caution needs to be exercised when drawing inferences from the evidence. I am particularly mindful of the decision of the Full Court of the Federal Court (Greenwood, Tracey and Buchanan JJ) in Tisdall v Webber (2011) 122 ALD 49. His Honour Buchanan J said, at 84-85:
[128] It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.
[129] In Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154; [2008] FCA 1457 Middleton J said (at [14]):
In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. Whilst sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one.
[130] His Honour's observations, with respect, state a fundamental principle which is authoritatively established but which is not always observed (see also Luxton v Vines (1952) 85 CLR 352 at 358, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1).
Dr Bender finally submitted that there was no onus placed on the Commissioner to show that the assessments were correctly made. I have referred to the decision of Mason J in Gauci’s case.
The onus of proof in this case is a significant issue because of the nature of the oral evidence given and the documents admitted into evidence. In fact, the Commissioner contended that the applicant did not lodge income tax returns for the years 1993, 1994, 1996, 1997, 1999 and 2000. The applicant, on the other hand, claimed it had lodged returns for those years and although no documentary evidence of lodgement was produced by the applicant, a number of persons gave oral evidence in support of the applicant’s claim. I have more to say about that below. Furthermore, the evidence discloses that the applicant produced at least two sets of financial documents and two versions of tax returns, some headed bank copy and the others headed tax copy or return. The oral evidence given on behalf of the applicant was that the documents provided to various banks were incorrect, deliberately falsified and inflated for the purpose of obtaining bank loans. On the other hand, those documents described as tax copy, were in fact correct. As the Commissioner relied upon the bank copy documents and also documents seized under warrant from various sources, the applicant contended that if I should find that the bank copy documents are in fact incorrect, then I should also find that the income attributed to the applicant was not properly attributable.
With respect to Mr Broadfoot’s submissions about the applicant’s onus of proof, I cannot accept that if I find the so called bank copy documents are inflated, that necessarily results in the applicant proving that the amounts shown in the various notices of assessment are excessive. That is because, as was said in Gauci’s case, there is no onus on the Commissioner to show that the assessments were correctly made. What the applicant was required to do in this case was to demonstrate, by evidence, that the records described as tax copy were in fact correct and, therefore, the assessments were excessive.
Mr Broadfoot also submitted that it might have been expected that the Commissioner would call evidence regarding matters such as the financial performance of comparable businesses; reliable industry statistics; or other economic data in support of his claim that the bank financial statements should form the basis of the assessments in question. Mr Broadfoot then submitted that I should infer from his failure to do so that such evidence would not have been of assistance (see Jones v Dunkel (1959) 101 CLR 298 at 320‑321). On the other hand, Dr Bender submitted that the applicant has not called any objective witnesses to support its claims. Dr Bender submitted that personnel from the applicant’s financiers, including the Commonwealth Bank of Australia (CBA) and the business relationship manager for the supermarket at the Independent Grocers Association (IGA), were not called to give evidence nor was an accountant working on the applicant’s accounts during the disputed period called as a witness. Dr Bender submitted that I should draw an adverse inference from the applicant’s failure to call those witnesses.
With respect to both counsel, it is my opinion that a careful reading of what was said by Windeyer J in Jones and Dunkel, discloses the inappropriateness of its application in this case.
Jones and Dunkel was a negligence case, where two trucks collided which caused the death of one of the drivers. The plaintiff was the wife of the driver killed in the accident and she brought an action in negligence against the driver who survived. The defendant driver was not called to give evidence and the Trial Judge gave directions to the Jury about the failure of the defendant to give evidence. The plurality found that the directions given by the Trial Judge were incomplete and Windeyer J, at 320, said that the Trial Judge should have given directions in accordance with the general principles stated in Wigmore on Evidence (3rd ed. (1940)) Volume 2, s.285, p.162 as follows:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."
Windeyer J, at 321, then referred to the decision of R. v Burdett (1820) 4 B. & Ald. 95 [106 E.R. 873] where Abbott CJ said:
"No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." (2) And Best J. said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just."
The first thing to note is that there must be sufficient evidence adduced by the party which has the onus of proving its case to warrant a reasonable inference being drawn from that evidence in the absence of any explanation or contradiction. Where there is sufficient evidence to draw a reasonable inference from the party which bears the onus of proving its case, and the other party has in its power to rebut that inference or conclusion being drawn by evidence but chooses not to lead that evidence despite the witness being available to give evidence, if no explanation is provided for failure to call that witness, then a rational inference may be drawn that the evidence would not help that party’s case.
When the principle is properly applied to this case, it should be immediately apparent that unless the evidence adduced by the applicant was enough to warrant a reasonable and just conclusion that the Commissioner’s assessments were wrong, no reasonable inference could be drawn that the Commissioner’s assessments were incorrect. In fact the evidence was contradicted by the Commissioner who referred to objective documentary evidence tending to refute the applicant’s claim. That evidence by itself would prevent any reasonable inference from being drawn in favour of the applicant. This, unlike the Jones v Dunkel case, is not a case where the evidence of the applicant remained uncontradicted. Furthermore, it cannot be suggested that the Commissioner or any of the persons referred to by the applicant had any knowledge which would throw light upon the applicant’s claim. In any event, it was open to the applicant to call any witnesses it chose, there being no property in any witness. I do not accept Mr Broadfoot’s submissions regarding the application of the so called rule in Jones v Dunkel.
As far as Dr Bender’s submission is concerned, he relied on the applicant’s failure to call any objective witnesses to support its claims. With respect to Dr Bender, the rule in Jones and Dunkel does not rely on the distinction which he apparently makes in his submission. The fact is that a number of witnesses gave evidence about the applicant’s financial statements and tax returns. While it is entirely possible that the other witnesses referred to by Dr Bender could have been called and may have been able to offer objective evidence about those documents, it does not follow that the applicant’s failure to call those witnesses calls for the application of the so called rule in Jones and Dunkel. To be fair to Dr Bender, he did not refer to Jones and Dunkel but simply submitted that the Tribunal should draw an adverse inference from the applicant’s failure to call any objective witnesses. In any event, there was no explanation given by the applicant for not calling the persons Dr Bender suggested should have been called, nor was there any evidence about their availability. Any reasons for their absence are merely conjecture. Their absence should not be the subject of an adverse inference.
FAILURE TO LODGE TAX RETURNS
In making the assessments issued by the Commissioner on 14 November 2005 in respect of the 1993 – 1997 income years, the Commissioner claimed that the applicant failed to lodge tax returns for the five income years stated above as well as the 1999 and 2000 income years. The applicant denied that to be the case.
The Commissioner conducted a special audit of the applicant which included an interview with the applicant’s sole director and secretary (the Director) on 24 March 2004. In a Section 264 notice dated 7 May 2004 addressed to the applicant’s accountants, the Commissioner sought the returns for the 1993, 1994, 1996, 1997, 1999 and 2000 income years. The Commissioner stated he had no record of those returns being lodged by the family trust. On 7 July 2004 the solicitor for the accountants wrote to the Commissioner stating that the accountants had lodged returns for those years and also indicated that the accountants recorded a validation reference for the 1999 income year. The Commissioner subsequently requested that the accountants provide electronic lodgement system (ELS) transmission and validation reports. The accountants wrote to the Commissioner on 2 September 2004 stating that they could not obtain information regarding the lodgement of the returns in question because:
…our computer hard disk has been corrupted and we cannot download or obtain any information for these periods.
The accountants nevertheless said that in their opinion, the returns were posted directly to the Dandenong office of the Commissioner or were lodged by ELS.
At a meeting held on 16 March 2005, the Principal Accountant and an employee accountant from the applicant’s accountants (the employee accountant) attended a meeting with officers from the Australian Taxation Office (ATO). When it was put to the Principal Accountant that there was no record of lodgement for the years in question, his response was simply: They could have been misplaced. An officer of the ATO explained that in the early 1990s, under self-assessment, there was no matching of individual beneficiaries’ returns with the trust return. The Principal Accountant’s response was he could not understand how the ATO could assess beneficiaries without the trust return being lodged. He could not answer why the trust returns had not been lodged for six years and he complained that no final notices were received. He then said: We’ve done our job, our duty [to the ATO] by lodging the beneficiaries’ returns.
In a facsimile transmission to the ATO on 21 August 2005, the Director disagreed that income tax returns for the family trust had not been lodged in any particular year. He said that the employee accountant stated he had made arrangements to post the income tax returns to the ATO. He also repeated that the beneficiaries lodged their income tax returns in each year in question. He then said:
We do not believe that we have done anything wrong and trust and beneficiaries’ tax returns were correctly prepared and we therefore dispute that you should amend more than five years of assessments if any at all.
In cross-examination, the Director agreed that he did not prepare returns for the years in question, nor did he lodge any returns. However, he did say that he signed those returns.
The Director was then taken to returns which the Commissioner had obtained for the 1993, 1996, 1997, 1999 and 2000 income years and the Director agreed that none of those returns had been signed by him. The Director agreed that he did not do the lodgement but said he believed the employee accountant lodged those returns although he didn’t know that to be the fact. In his witness statement dated 9 February 2009 the Director said:
… I provided information to [the employee accountant] for the purpose of enabling him to prepare tax returns for the trust.
He said that:
… [The] final returns were completed and lodged usually in or around March following the income year to which they related…
The Director also said in his witness statement that at no time during the income years in question did the trust receive any final notices from the ATO regarding failure to lodge income tax returns.
In cross-examination, the Director repeated his evidence that he did not lodge the returns. When it was suggested to him that he didn’t know whether those returns were actually lodged, he said that he did sign them for each of those years in question. When it was put to him that other than the 1994 return, which was signed by him, the remainder had not been signed, he answered: I don’t – I don’t know.
In his examination-in-chief the Principal Accountant was asked whether, to the best of his knowledge, the tax returns were lodged for each of the years in question. He answered that he did not believe any of the years in question were missed. He said that the basis of his belief was: It was on my agenda to make sure that the tax returns got lodged every year. In the course of his cross-examination, the Principal Accountant confirmed that he was a registered tax agent during the 1990s and early 2000s. He was asked whether he posted or lodged electronically any of those returns and answered that he did not. When asked whether he signed off on all of his clients’ tax returns as the tax agent, the Principal Accountant answered that he did. Despite this, there were no tax returns amongst the documents in evidence which had been signed by this witness. Furthermore, in a letter dated 7 July 2004 from a solicitor acting on behalf of the Principal Accountant, it was stated that the Principal Accountant provided copies of tax returns for the years in question although, as I have already stated, these were not signed by that person. While the solicitor reported a lodgement date of 8 June 2000 for the 1999 return and provided a validation reference, no other comments were made in respect of the other returns in question. Neither the solicitor nor the Principal Accountant provided any ELS transmission or validation reports or other documentation supporting the applicant’s claim that the returns for the years in question were lodged with the ATO despite being asked to do so in a further letter from the ATO dated 15 July 2004.
In his evidence-in-chief the employee accountant said the Principal Accountant was the person who signed off on the tax returns as tax agent. Despite that statement, there were no tax returns in evidence signed by the Principal Accountant. In cross-examination, the employee accountant maintained that the tax returns between years 1993 and 2003 were all reviewed by the Principal Accountant. He also stated that some of the tax returns were lodged electronically (1998, 1999 and 2000 income years) and that the earlier returns, which were paper returns, were posted to the ATO in Dandenong. However, in his witness statement dated 18 February 2009, the employee accountant said:
I have been unable to locate validation numbers for returns prior to the 1999 return, which may have been lodged via post.
In a record of meeting with officers from the ATO on 16 March 2005, which was attended by the Principal Accountant and the employee accountant, both men were asked whether they had any document to verify that lodgement took place. The record of interview states that there was no reply to this question from either witness. Given the extent of materials which were in evidence before me, I am satisfied that there are no documents in the possession of either the Principal Accountant or the employee accountant which establish lodgement of tax returns in the income years 1993, 1994, 1996, 1997, 1999 and 2000.
The evidence given regarding the lodgement of tax returns by the employee accountant was unconvincing. In my opinion, it is remarkable that a firm of accountants completing tax returns for a business with a turnover of something in excess of $4,000,000 per annum did not make and keep copies of signed tax returns prior to either lodging them electronically or by post with the ATO. Furthermore, as Dr Bender submitted, the fact that the applicant received no final notices for lodgement is irrelevant. In a self‑assessment system, the taxpayer is responsible to ensure tax returns are lodged within the permitted time. I find that the applicant has not discharged its onus of proof regarding the lodgement of tax returns for the years 1993, 1994, 1996, 1997, 1999 and 2000 income years.
In light of my findings regarding the lodgement of income tax returns, there can be no basis for the applicant’s contention that the Commissioner’s assessment made on 14 November 2005 was made out of time. Each of those assessments was made pursuant to s 167 of the ITAA 1936. It does not impose any time constraints on the Commissioner. The section provides:
167 Default assessment
If:
(a)any person makes default in furnishing a return; or
(b)the Commissioner is not satisfied with the return furnished by any person; or
(c)the Commissioner has reason to believe that any person who has not furnished a return has derived taxable income;
the Commissioner may make an assessment of the amount upon which in his or her judgment income tax ought to be levied, and that amount shall be the taxable income of that person for the purpose of section 166.
Accordingly, I accept the Commissioner’s submission that assessments for those years could be made by the Commissioner at any time, without the need to rely on a finding of fraud or evasion. The amended assessments made on 10 April 2007 were made within the time permitted by ITAA 1936. Those amendments did not affect taxable income or the primary tax. In any event, as the Commissioner provided an opinion in writing that the avoidance of tax in this case was due to evasion, it was open to the Commissioner at any time to amend the assessment by making such alterations in it or additions to it as the Commissioner believed necessary to correct the assessment (s 170(2)(a) ITAA 1936).
For the income years 1998 – 2003, the Commissioner assessed the applicant in its personal capacity as a beneficiary of the trust. For the years 1998, 1999, 2000 and 2002 the Commissioner issued nil assessments on 12 September 2002, 13 September 2002, 16 September 2002 and 9 June 2004, respectively. Dr Bender submitted that a nil assessment, including an assessment disclosing tax losses, is not an assessment for the purposes of Part IV of ITAA 1936. Dr Bender referred to a number of cases in support of that proposition, including the High Court decision in Commissioner of Taxation of the Commonwealth of Australian v Ryan (2000) 201 CLR 109. Gleeson CJ, Gummow and Hayne JJ examined in some detail the operation of s 170(3) of ITAA 1936 dealing with the power of the Commissioner to issue amended assessments. The plurality examined the language of s 170(3) and its history and came to the following conclusion at 126:
29The construction of the Act for which the appellant contends strains the words of s 170(3) (and s 204) beyond any reasonable degree of elasticity that they might be said to have. If no tax is payable in respect of a year of income it cannot be said that there is a date (even a "notional" date) by which it is due and payable.
30For the reasons that we have given it follows that s 170(3) did not apply to bar the Commissioner from issuing the 1994 assessment.
As the original assessment for the 2001 income year issued on 28 November 2005, no issue arises regarding the time within which the Commissioner was required to issue an original assessment. The same of course applies to the 2003 income year, where the amended assessment was issued within two years of the original assessment.
UNDERSTATEMENT OF INCOME
The Commissioner claimed that the applicant understated the net profit from the Trust’s trading in the supermarket business for the income years 1993 – 2000. The Commissioner’s investigations turned up financial statements and income tax returns for the 1994, 1995 and 1996 income years which were labelled bank and tax copy or return. According to the Commissioner, an inference should be drawn that the applicant prepared at least two sets of tax returns and possibly financial statements, one for its banks and one for the Commissioner. The financial statements and tax returns provided to the banks disclosed higher profit figures in order to support the applicant’s ability to borrow from financiers. The Commissioner contended that the applicant prepared financial statements and tax returns disclosing lower figures which were intended for the Commissioner.
The applicant and the witnesses supporting the applicant’s claim have provided a number of reasons for the different financial statements and prepared tax returns. In its amended statement of facts and contentions the applicant said:
The financial information provided to the banks was calculated on a different accounting basis to that used to prepare the income tax returns referred to in paragraph 4 herein so as to provide the Applicant with a more favourable security and credit position (for example, using different valuation methodologies).
In his witness statement the applicant’s Director said that he provided financial information in the form of raw data to the employee accountant from time to time. He said that the provision of financial information to the employee accountant was progressive, enabling the preparation of working draft and interim profit/loss statements for the applicant and for the banks. He said that draft figures were used to provide statements to the banks but then explained that these were not 100% accurate. The Director stated that the applicant prepared its tax returns from accurate figures, which only became available well after the end of each income year. He said that final tax returns were completed and lodged usually in or around March the following income year although sometimes this happened earlier. The Director maintained that the tax returns contained in the documents lodged with the Tribunal and in particular the 1993, 1994, 1996, 1997, 1999 and 2000 income tax returns accurately reflected the financial performance of the applicant in those respective years. The Director also stated that the Commissioner assessed the applicant on the highest draft profit/loss statements it was able to locate even though, in some instances, there were two or three or more draft profit/loss statements prepared by the employee accountant during the course of a particular year.
By way of explanation for the variation in various financial statements and tax returns, the Director said in his witness statement that in some instances, the employee accountant prepared profit/loss statements and other documents required by the bank by estimating the figures for items such as stock, rent received, goods own use and, in some instances, sales, creditors, debtors, cash payments and cash expenses. He said those figures were estimated because they were too difficult or not possible to obtain at a time when profit/loss statements had to be prepared for the banks. The Director then explained why adjustments were required to draft or interim statements prepared during the course of a year and why those statements contained estimated figures.
In order to properly assess the claims made by the applicant, the contentious issues in each income year need to be examined and to be assessed in light of the documentary and oral evidence given in this proceeding.
There were no less than three versions of financial statements for the 1993 income year as well as a document prepared by the CBA. Two of those financial statements disclose a net profit of $137,821; the third financial statement and the document prepared by the CBA discloses a net profit of $86,424; and the income tax return prepared for the 1993 income year discloses a net profit of $24,606. Included in that net profit figure is rental income said to be $64,000 in two of the financial statements and $40,000 in the other documents for the 1993 income year. I should also point out that the closing inventory figure on two of the versions of financial statements was $284,157 and on the third version of the financial statements and on the prepared income tax return the closing inventory figure was $215,498. The significance of these closing and subsequent opening inventory figures will become apparent presently.
The CBA document does not contain opening or closing inventory figures. Nevertheless, it is clear that the CBA document contains figures which are identical to the third version of the financial statements prepared for the applicant which disclose a net profit of $86,424. That version of the financial statements has a closing inventory figure of $215,498. That same closing inventory figure is taken up in the next income year, 1994, on the tax return prepared for that year. It therefore seems reasonable to infer that the net profit figure disclosed in the third financial statement for the 1993 income year is accurate because, as the Director said, the income tax returns for each of the income years in question are correct. The Director was unable to explain why the first two financial statements contained a significantly higher net profit figure. In cross‑examination, the Director said he did not believe the figure of $137,821 was the correct profit figure for the 1993 income year. He said he did not recall seeing financial statements disclosing the higher net profit figure.
The Director’s attention was drawn to the 1993 income tax return where it is stated that trade creditors at the end of that income year amounted to $201,691. In his statement, the Director pointed out that the profit/loss statement used by the Commissioner for the purposes of assessment for the 1993 income year disclosed a figure for trade creditors of $135,491. The Director contended that because the closing creditors figure was used as the opening figure for the 1994 income year return, it must be correct. However, in cross-examination the Director agreed that he had no knowledge of what the figure was for trade creditors at the end of the 1993 income year. In fact, I cannot make sense of the statement made by the Director in his witness statement, as there is no such thing as an opening figure in the 1994 taxation return. The 1994 taxation return discloses trade creditors in the amount of $191,552. There is no relationship between the balance sheet item and the current liabilities from one year to the next.
The Director also complained that the Commissioner arrived at the net profit figure only after overstating the rental income derived by the applicant during the income year. In his witness statement the Director identified five properties (two of them being units at the one site) from which the applicant derived rental income. Two of those properties were occupied by beneficiaries of the Trust. The first two financial statements prepared by the applicant’s accountants disclosed rental income received for the financial year in the sum of $64,000. In his witness statement the Director said that the employee accountant disclosed that rental income as an estimate in order to finalise an interim profit/loss statement for the bank. The Director then stated:
After obtaining the rental statements from the real estate agents for Dandenong and [Berwick], sales were adjusted for the accurate rental income and the rent was shown separately to the sales of the business. Also, real estate agents were consulted to fix a fair rental for the two properties occupied by the beneficiaries and the correct rental total amount of $40,000 was included in the taxation return as rental income.
The problem with the above statement should be immediately apparent. The Director’s belief about what the employee accountant disclosed as the rental income appears to have no basis. The Director also stated that he did not have rental figures for those properties but relying on his recollection, he stated that annual rental for the Lysterfield property and the Berwick property was approximately $18,000 in total for both properties. That amounted to some $173.00 per week for two properties. He then said that the total rental for the two units in Berwick was approximately $12,000 per annum and the total rent received from the Dandenong property was $10,000 per annum.
However, in the course of an interview conducted by officers of the ATO on 24 March 2004, when the Director was asked about rental payments and whether the rental was paid weekly or monthly, he answered I don’t know. He was also asked whether he recalled the amount of rent paid by his brother, the Principal Accountant, and he said I honestly don’t remember. The Director said that he lived in the Lysterfield property with his family and that his brother lived in the Berwick property. Although he maintained rent was paid on both of those properties, he said... there was rent paid, but not with cash. We – it was adjusted in our credit accounts, I believe, in those days. When asked what he meant by a credit account, the Director said he meant to say beneficiaries loan accounts. In other words, a liability was recorded in their loan accounts although no rental in fact was paid. Furthermore, the Director agreed that the properties from which rental income was derived were leased, mostly on yearlong leases. When it was put to him given that they were leased, he would have known the precise rental figure, the Director answered that he would have an approximate idea. When it was put to him that he would know the precise rental because there was a fixed rental in the lease agreement, he said:
I never thought about it. I – if there was a lease for the three houses or four houses, whatever we were leasing, I would say I suppose I would know – I would have a fair idea. (page 55)
The employee accountant’s evidence was that he had prepared tax returns and other financial documents for the applicant since the early 1990s. He said in his witness statement he relied on information provided to him by the Director. He said that in the course of any given year, he prepared two, three or more drafts of the financial statements, in particular, balance sheets and profit/loss statements. He said that the draft documents were the subject of significant adjustments after receipt of more precise information. He claimed that draft statements were frequently required to be provided to the applicant’s banks. However, and with respect to the employee accountant, there is no document amongst the voluminous documents in evidence which so much as suggests that the financial statements provided, particularly to the CBA, were drafts. Were they so, I would have expected any competent accountant to make that very clear on the document. That would be particularly so where the accountant understood that the purpose of providing financial statements was in support of loans or applications for loans. Therefore, to suggest, as the employee accountant does in his witness statement, that the figures in the statements were estimates, without disclosure to the bank that the statements contained estimated figures, is simply deceptive.
The employee accountant also said in his witness statement that after the end of each financial year and as early as the next calendar year, financial statements were completed by him. However, when one looks at the opening and closing inventory figures in the financial statements said to have been compiled on an estimated basis, no adjustment has been made from year to year to the opening and closing inventory figures. While the tax returns for some of the years in question contain substantially different opening and closing inventory figures, many do not. The financial statements are consistent in that the opening inventory figure for each year picks up the closing inventory figure for the previous income year. Therefore, the following figures appear on the financial statements:
YEAR OPENING INVENTORY CLOSING INVENTORY 1993 $278,158 $284,157 1994 $284,157 $273,149 1995 $273,149 $268,247 1996 $268,247 $255,613 1997 $255,613 $300,812 1998 $300,812 $269,550 1999 $269,550 $277,072 2000 $277,072 $281,449 2001 $281,449 $256,510 2002 $256,510 $258,432
It is immediately apparent, contrary to what the employee accountant said in evidence, that the figures on the financial documents and in particular those documents provided to CBA do not contain estimated figures for opening and closing stock because, if those figures had been adjusted in the following calendar year, one would expect to see variations in those figures in the following financial statements. That is clearly not the case. However, the tax returns prepared in some of those years have differing opening inventory and closing inventory figures. That of course has resulted in differing costs of sales figures for the 1993, 1994, 1995, 1999 and 2000 income years. The employee accountant said in his witness statement that the adjustments he made were often a revision of sales figures (upwards or downwards) and revised expenses figures. However, what is disclosed by the documents is a consistency in the financial statements, particularly those which were provided to the CBA, and income tax returns compiled essentially using different data, including different opening and closing inventory figures especially where those income tax returns were labelled tax copy. Those labelled bank are consistent with the financial statements provided to the bank. The income tax returns do contain sales figures and expense figures which are different to those in the financial statements.
The employee accountant also said in his witness statement that he prepared the income tax returns for each income year from a final version of the financial statements which he also prepared. However, on the documents in evidence before me, the only financial statements which appear to have figures corresponding to those entered on the tax return are those prepared for the 1998, one of the 1999 statements, one of the 2000 statements, the 2001 and 2002 income years.
The employee accountant also said he recalled, during the 1990s, that the applicant was not profitable, or was only marginally profitable. However, in the course of cross‑examination the Director was taken to a statement dated 17 September 1997 prepared by the CBA, which was a credit review conducted by the Relationship Manager. The Relationship Manager recorded that the businesses net profit after tax was good and that the net profit before tax over the previous four years had been reliable and consistently increased over the period. When it was put to the Director that up until September 1997, the supermarket had been profitable for a number of years, he said:
Up to that point of time it was making modest profits, and then in the late ‘90s it started showing losses.
The Director was also taken to a letter he wrote on 30 May 2002 to the CBA attaching further information as a result of seeking further finance from the bank. On the second page of that letter, the Director wrote:
Over the past 4 years our growth in takings and profits has been over 30%.
When asked if that was correct, the Director answered: That’s what I say there, yes.
In the course of his cross-examination, the Principal Accountant confirmed that the Trust made contributions to two superannuation funds in 2001, 2002 and/or 2003. He was then asked whether the supermarket business was profitable during the years 2001, 2002 and 2003 and he answered: Yes, it was. In fact, he agreed that it was quite profitable during those years given the significant contributions that were made to the two superannuation funds.
The Commissioner also pointed to a letter dated 2 February 1999 from an IGA Regional Manager which set out projected sales and profits for the supermarket for the following three years. The Regional Manager noted that the figures were based on the store being redeveloped in April 1999 and again in 2000; the previous sales history; and the actual profit/loss figures provided for the year ending June 1998. The Regional Manager set out actual sales increases the supermarket had since August 1998. It shows monthly sales from August to December 1998 and percentage increases ranging from 5.66 per cent to 9.15 per cent. While the Regional Manager was careful to point out that the three year projected figures were guidelines only, he noted that the percentage gross profits were in accordance with industry standards. Dr Bender submitted that while the Commissioner did not rely on the report for the purpose of arriving at the assessments, the report was used as a guide. In fact, Dr Bender pointed out that the ATO had produced a report of net profit margins for comparable IGA supermarkets between 1993 and 2000. He said that those figures were in line with what the Regional Manager from IGA had projected for the supermarket operated by the Trust and also that the net profit margins as per the financials produced by the applicant were significantly less than the average net profit margins for other IGA supermarkets of the same type.
The employee accountant also testified that he had been told by the applicant’s Director that it was meeting all loan repayments, interest and principal, and it had never defaulted on any obligations to the bank.
Given the documentary evidence, which is contrary to the evidence given by the employee accountant, I cannot accept that his evidence is an accurate statement of the profitability of the applicant during the period in question.
The employee accountant gave an entirely different explanation in the course of his cross-examination for the difference between the financial statements provided to the CBA and those which he claimed were used for the preparation of income tax returns. When pressed about whether the correct figures were sent to the CBA he said:
It’s the correct figure that we sent to the bank, yes. It was for the bank.
When asked was it correct, he responded that he was not sure what was meant by the question. Then, when further pressed by Dr Bender, he said:
Well, we – financial statements were provided to the bank which showed a more variable position than I subsequently found when I finalised the tax returns.
When Dr Bender responded by stating that he did not follow the answer, the employee accountant said:
So I inflated stock figures and inflated rentals for example.
The employee accountant then said:
Well, I believe that, to the best of my knowledge and belief, that what’s in the tax returns is true and correct and that these figures here [financials sent to the CBA] are false and deceptive and so that the [family trust] could get accommodation of loans from the bank.
When asked to confirm that he provided false and deceptive profit figures to the bank he said that he did.
Of course the admission made under cross-examination throws into serious doubt the explanation given by the employee accountant in his witness statement where he simply indicated that adjustments were made after the end of a financial year in order to finalise financial statements and tax returns. In his witness statement, the employee accountant said that he had made adjustments for goods taken from the supermarket by the families associated with its operation (goods own use); rental income; stock figures; expenses; sales and debtors; and reconciliation of purchases. Whatever the employee accountant did, which he described as adjustments without supporting documentation, given his admission under cross-examination, I have no means of ascertaining whether in fact adjustments were made after the end of the financial year to accurately reflect the supermarket’s trading position for the year or whether the financials and tax returns subsequently prepared were also false and deceptive.
The employee accountant said in his witness statement that he had searched the accountant’s records for final copies of the applicant’s financial statements for the years 1993 to 2002 and was unable to locate such copies. Given that these documents were kept on computers, I have no confidence whatsoever in that statement.
There are other contradictions in the employee accountant’s evidence which also disclose its unreliability. In his witness statement, the employee accountant, in attempting to explain the rental income recorded in the 1998 and 1999 tax returns, said that the figures appeared to be the same as those set out in financial statements which the Commissioner had obtained from third parties, which I understood to mean the banks and in particular the CBA. He said that in those years, he inadvertently transposed the rental income amounts from draft financial statements provided to third parties which were not finalised and were not accurate, into the tax return.
However, in the course of his cross‑examination, Dr Bender pointed out to the employee accountant that he had given evidence that he prepared tax returns from the final financial statements. When asked whether that was incorrect, the employee accountant first disagreed, and then claimed it was correct. When pressed, he finally agreed that the statement was incorrect. The employee accountant also said in his witness statement that final financial statements were completed early in the following calendar year. He said he could not recall providing final copies of financial statements to the CBA or any other bank. Dr Bender directed the employee accountant to financial statements for the year ended 30 June 1994 which were clearly sent to the CBA on 10 February 1995, some seven and a half months after the end of the 1994 financial year. When asked whether the opening stock figure in the trading account was correct, the employee accountant simply stated that it was correct for the bank. He maintained that the figure had been inflated.
Although the applicant contended that I should accept the accuracy of financial statements and tax returns said to have been prepared for tax purposes, the objective evidence strongly pointed to the fact that I should not. That is because the employee accountant eventually admitted that the financial statements provided to banks were deliberately false and deceptive. This is despite the fact that prior to the hearing, the contentions of the applicant and witness statements lodged with the Tribunal stated that financial statements provided to the banks were incomplete and not final, needing adjustments. It was also stated that they had been prepared on a different basis. Given that evidence, it is simply impossible to determine which financial statements are correct and which are not. Although these records were made by an accounting firm which was a registered tax agent, the computer records of journal entries and the like were almost entirely absent.
The accountants also claimed that tax returns were lodged with the ATO for the income years 1993, 1994, 1996, 1997, 1999 and 2000 although the applicant was unable to prove that was the case. The Commissioner has no record of these returns being lodged. In the absence of objective evidence of lodgement, I have found the applicant failed to discharge the onus of proving lodgement.
The Commissioner disallowed a number of claimed deductions for the income years 2001 – 2003 relating to superannuation payments said to have been made to employees and various other expenses. I have found that the Commissioner was correct in disallowing those deductions. That is because I have found that the so called employees, who were all family members, were not employees for the purposes of s 82AAC of ITAA 1936. As for the other expenses, there were either obvious errors in the accounts or there was no evidence that the expenses were in fact incurred as claimed.
I have found that the applicant was correctly assessed under s 99A of the ITAA 1936 for the income years 1993 – 1997, and under s 97(1) of the ITAA 1936 for the income years 1998 – 2003. That is because I have found that no beneficiary was presently entitled to income of the trust in any of the first group of income years and that the applicant, in its own right as a beneficiary of the Trust, was so entitled in each of the second group of income years.
I have found that the applicant was liable for tax penalties at 75 per cent because there was an intentional disregard of the taxation laws. I am not able to find any sound reason why penalty tax should be remitted in this case.
I find that the objection decisions made by the Commissioner on 6 September 2007,
20 August 2007 and 7 July 2010 were correct and I affirm those decisions.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
..[sgd]........................................................................
Associate
Dated 23 March 2012
Dates of hearing 19 – 23 September 2011
and 26 September 2011Counsel for the Applicant Mr A T Broadfoot Solicitors for the Applicant Herbert Geer & Rundle Lawyers Counsel for the Respondent Dr P Bender Solicitor for the Respondent Australian Government Solicitor
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