Dalton, T.A. v Deputy Commissioner of Taxation

[1985] FCA 390

Re: THOMAS ANDREW DALTON
And: DEPUTY COMMISSIONER OF TAXATION (1985) 7 FCR 382
No. G78 of 1985
Income Tax - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Lockhart(2) and Wilcox(3) JJ.

CATCHWORDS

Income Tax - Administrative law - appeal - review of decision of the Commissioner of Taxation - whether the duties specifically imposed on the Commissioner of Taxation by regulation 35 of the Income Tax Regulations are expanded by s. 25D of the Acts Interpretation Act 1901 - whether the appellant is a "person aggrieved" within the meaning of that expression in the Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977: sub-s. 3(4), ss. 5, 13.

Acts Interpretation Act 1901: ss. 25D, 46(a).

Income Tax Assessment Act 1936: ss. 185, 186, 187, 188, 189, 190.

Administrative Appeals Tribunal Act 1975: s. 28.

Acts Interpretation Amendment Act 1984

Income Tax Regulations: reg. 35.

Income Tax - Objections and Appeals - Reference to Board of Review - Commissioner's duty to supply reasons for disallowance of taxpayer's claim - Interval between disallowance of claim and requirement to supply reasons - Existence of general statutory obligation of disclosure on decision-makers - Whether Commissioner bound to disclose findings of fact and material upon which based - Whether taxpayer a "person aggrieved" by Commissioner's refusal to disclose - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Acts Interpretation Act 1901 (Cth), s 25D - Income Tax Assessment Act 1936 (Cth), s 186 - Income Tax Regulations (Cth), reg 35.

Administrative Law - Person "making a decision" - Decision-maker required to give reasons - Interval between decision and requirement to give reasons - Whether decision-maker still in process of "making a decision" when giving reasons - Whether nexus required between the two steps for operation of statutory requirement to disclose findings of fact and material upon which based - Nature of Nexus - Acts Interpretation Act 1901 (Cth), s 25D.

HEADNOTE

Held: Per Lockhart & Wilcox JJ. (Smithers J. dissenting):

(1) When the Commissioner of Taxation, in compliance with reg 35 of the Income Tax Regulations, supplies a statement of his reasons for disallowing a taxpayer's claim, he is not obliged by s 25D of the Acts Interpretation Act 1901 to set out his findings on material questions of fact or refer to material on which his findings were based.

(2) Section 25D contemplates a nexus between the making of the decision and the giving of written reasons for it, in the sense that the two steps must be of the one function of the decision-making process where the giving of reasons must be essentially for the benefit of persons affected by the decision. Under reg 35(1), however, the Commissioner is not involved in the process of decision-making; he simply furnishes information about a past decision to a statutory tribunal, a copy of which he is required to furnish to the taxpayer.

Sutton v. Federal Commissioner of Taxation (1959) 100 CLR 518; R. v. Cain; Ex parte Evatt (1975) 133 CLR 37, referred to with approval.

(3) Per Smithers & Wilcox JJ. (Lockhart J. not deciding): The taxpayer was a "person aggrieved" within the meaning of s 5 of the Administrative Decisions (Judicial Review) Act 1977, by the Commissioner's refusal to disclose his findings of fact and the material on which they were based, and therefore the taxpayer had standing to bring these proceedings.

Tooheys Ltd v. Minister for Business and Consumer Affairs (1981) 36 ALR 64, applied.

Attorney-General of Gambia v. N'Jie (1961) AC 617, considered.

HEARING

Sydney, 1985, June 12; August 9. #DATE 9:8:1985
APPEAL

Appeal from a decision of Franki J. of the Federal Court of Australia dismissing the taxpayer's application for an order of review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977.

D H Bloom, for the appellant.

J E H Brownie QC and L Katz, for the respondent.

Cur adv vult

Solicitors for the appellant: Christie & Partners.

Solicitors for the respondent: Australian Government Solicitor.

FPC

ORDER

1. The appeal be dismissed.

2. The appellant, Thomas Andrew Dalton, pay to the respondent, the Deputy Commissioner of Taxation, his costs of the appeal.
   
   NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal dismissed

JUDGE1

This is an appeal brought by Thomas Andrew Dalton (the appellant) against the rejection of an application brought by the appellant pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to review two decisions of the Deputy Commissioner of Taxation (the Commissioner).

The decisions sought to be reviewed were made by the respondent in connection with the reference by him to the Board of Review of his decision to disallow the appellant's objections to assessments of income tax in relation to his income for the years ending 30 June 1979 and 30 June 1980. The decisions in question were decisions by the respondent not to state, in his written reasons to the Board of Review for his decision to disallow the appellant's objections to the assessments, the findings on material questions of fact and refer to the evidence or other material on which those findings were based and not to furnish the appellant with a copy of such statements.

It is provided by reg. 35(1) of the regulations made under the Income Tax Assessment Act 1936 (ITA Act) that where a taxpayer, whose objection to the assessment of tax has been disallowed by the Commissioner and who has paid the required fee and requested the Commissioner to refer his decision to the Board of Review, the Commissioner shall so refer the decision and shall supply to the Board a statement of its reasons for disallowing the objection of the taxpayer.

In this case the respondent having disallowed objections of the appellant to the assessments made in respect of his income for the years ending 30 June 1979 and 30 June 1980, the appellant paid the required fees and requested the respondent to refer each decision of disallowance to the Board of Review. This the respondent did and he supplied to the Board in relation to each such reference a statement purporting to be a statement of his reasons for disallowance of the objection in question. This statement was also supplied to the appellant. It did not set forth the material findings of fact upon which the respondent had disallowed the appellant's objections to the assessment. Upon receipt of these statements the appellant's solicitors by letter dated 4 February 1985 requested the respondent to amend them by including therein pursuant to s. 25D of the Acts Interpretation Act 1903 (AI Act), the findings on material questions of fact upon which the decision to disallow the appellant's objections to the assessments made in respect of his income for the relevant years were based and a reference to the relevant evidence. No reply to this letter having been received the appellant's solicitor wrote to the respondent on 12 February 1985 informing him that the appellant would apply to this Court if the statements were not amended in the manner requested by the appellant.

By letter dated 22 February 1985, the respondent stated that, in his view, the statements provided by him to the Board of Review and the appellant complied with the requirements of reg. 35(1). The respondent also stated that it was his current view that s. 25D had no application to particulars which the Commissioner is required to provide to a Board of Review pursuant to reg. 35(1).

Sections 186, 187(1), 188 and 189 of the ITA Act provide as follows:-

"186. The Commissioner shall consider the objection, and may either disallow it, or allow it either wholly or in part, and shall serve the taxpayer by post or otherwise with written notice of his decision."

"187. (1) A taxpayer dissatisfied with the decision may, within 60 days after such service, in writing request the Commissioner either -

(a) to refer the decision to a Board of Review for review; or

(b) to treat his objection as an appeal and to forward it to a specified Supreme Court."

"188. (1) If the request is accompanied by a fee of $2, the Commissioner shall refer the decision or forward the objection to a Board or Court in accordance with the request.

(2) The fee shall be refunded to the taxpayer if his assessment is reduced either by amendment or as a result of the decision of the Board or Court."

"189. If within 60 days after receiving the request accompanied by the fee of $2 the Commissioner does not refer the decision or forward the objection, the taxpayer may at any time thereafter give him notice in writing to do so, and the Commissioner shall within 60 days after receiving the notice refer the decision or forward the objection to a Board or Court accordingly:

Provided that, if, within 60 days after receiving the request, the Commissioner requires the taxpayer in writing to furnish information relating to the decision or objection, the Commissioner shall not be bound to refer the decision or forward the objection to a Board or Court until the expiration of 60 days after the receipt by him of that information."

Regulations 35(1) and (2) provide as follows:-

"35. (1) The Commissioner, in referring a decision to a Board of Review in accordance with sub-section (1) of section 188 of the Act or section 189 of the Act, shall furnish the Board with a printed or typewritten statement in quadruplicate, containing -

(a) the name and address of the taxpayer;

(b) full details of the taxpayer's claim as made to the Commissioner; and

(c) the Commissioner's reasons for disallowing the taxpayer's claim.

(2) The Commissioner shall at the same time furnish the taxpayer with a copy of the statements referred to in sub-paragraphs (b) and (c) of the last preceding sub-regulation."

Section 25D of the AI Act which was enacted subsequently to the coming into operation of all the above provisions, namely in 1984, provides as follows:-

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons' 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

The questions which need to be considered and resolved in this matter may be outlined as follows:-

1. Whether the duties specifically imposed on the respondent by reg. 35(1) of the Regulations are expanded by s. 25D of the AI Act.

2. If the scope of the duties imposed upon the respondent under reg. 35(1) of the Regulations are expanded by s. 25D of the AI Act, whether the additional information which the respondent is obliged to supply to the Board of Review must also be supplied to the appellant.

3. If the answer to both the preceding questions is in the affirmative, then the remaining question is whether, should the respondent fail to fulfill its obligations under reg. 35(1) and (2) of the Regulations as expanded by s. 25D, the appellant has locus standi under the ADJR Act to seek relief as a person aggrieved.

In the decision under appeal the learned trial judge took the view that s. 25D does not apply to regulation 35(1) and (2). He said, however, that "the critical point is that at the stage where the Commissioner has an obligation to furnish written reasons he is not making a decision. The decision has been made earlier under s. 186 and the Commissioner, at that stage, has no obligation to furnish any reasons. He only has to serve the taxpayer with written notice of his decision."

However, the obligation to supply such findings arose, if at all, pursuant to s. 25D out of circumstances occurring after the decision under s. 186 had been made and served. The decision under review is the decision not to supply material findings on which the decision to reject the taxpayer's objections was based.

It might have been argued that the omission by the respondent to supply the material findings was but a failure to comply with a statutory duty and that no decision was involved therein. But the Court was informed that the respondent had conceded that its omission to supply the findings was the result of a deliberate decision not to supply them. The correspondence referred to above would in any event evidence such a decision.

In the case of a decision pursuant to s. 186 the respondent need only serve upon the taxpayer written notice of his decision. He is not required to give reasons for his decision or state the material findings of fact upon which his decision is based. This is the effect of the decision of Lockhart J. in Robinson v. Deputy Commissioner of Taxation (1984) 52 ALR 719. On the other hand, where a taxpayer requests the Commissioner to refer to the Board of Review the decision disallowing his objection and has complied with s. 188(1), or the provisions of s. 189 have been implemented and the taxpayer is entitled to have the decision forwarded to the Board of Review for consideration, sub-reg. 35(1) comes into operation, and the respondent is obliged to furnish the Board with a statement containing, inter alia, his reasons for disallowing the taxpayer's claim. It is at that stage that s. 25D takes effect.

Counsel for the respondent contended, that s. 25D is confined to those cases where a decision maker is obliged to give written reasons for a decision at the time of making his decision. It is my view that so to hold would do violence to the words of the provision. It is to be noted that s. 25D is, but for the final words, expressed in the present tense. It does not state that it is only to apply to decision makers who are obliged to give reasons for their decision at the time of making their decision. There is, in my view, no requirement for contemporaneity or temporal nexus between the making of a decision and the imposition upon the person making it of the requirement to give written reasons therefor. The section applies to a person "making" a decision, one may say "who makes" a decision, upon whom at any time an obligation comes into existence to give reasons therefor. It is ambulatory, being directed to situations where the requirement to give reasons exists, whenever it comes into existence. It could not be to the point that the obligation to give reasons arose after the making of the decision, as for instance upon request, or by reason of supervening circumstances.

The critical question is whether s. 25D does upon its proper construction, expand the obligation of the respondent which is imposed on him by sub-regs. 35(1) and 35(2). Section 25D refers to the situation where an obligation to supply reasons is imposed on a body or entity by an Act. The duty under reg. 35 is imposed by regulation. By s. 46 of the AI Act it is provided that:-

"Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then -

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; and

(b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power."

A contrary intention, if there is one, will be found in the regulation imposing the duty to supply reasons. It is not to be found in the AI Act. There is no express statement of a contrary intention in the regulation itself or in the body of provisions of which it is part. But the suggestion is that, in the light of the subject matter and the procedure for review arising from ss. 185, 186, 187(1), 188 and 189 of the ITA Act, an obligation on the Commissioner to include in his statement reasons for his decision disallowing the taxpayer's objection to the assessment made in respect of his income would create difficulties and delays in the implementation of the review procedure of such nature and extent that an implication of an intention that s. 25D shall not apply in relation to that procedure is seen to arise. Such implication, if it is to be found, must exist in a form broad enough to embrace s. 25D without specific reference to it. The regulation was promulgated before s. 25D was enacted.

It may be that the imposition on the respondent of the requirement to state and supply such findings will be burdensome and may create delays, but the possibility or probability of such consequences cannot to my mind exclude the operation of the natural meaning of the statutory provisions which apply to the situation under consideration.

I am unable to perceive any express or implied intention that s. 25D should not apply to regs. 35(1) or (2). But it could be that s. 25D properly construed in the light of its context, does not so apply. Relevant considerations are:

(a) that the obligations on the Commissioner under reg. 35 to furnish reasons for his decision to reject the taxpayer's objections arises only after the taxpayer has made a decision to request him to refer the matter to the Board of Review. Compliance with reg. 35(2) plays no part in assisting the taxpayer to decide whether he will request a reference to the Board;

(b) the benefit to the taxpayer of information as to the findings and references to the evidence which would be contained in the statement pursuant to reg. 35(1) of s. 25D of the AI Act is limited or reduced by the circumstance that before the Board the Commissioner is not bound by those findings or references.

(c) the obligations imposed on the Commissioner in reg. 35(1)(c) to supply his reasons for rejecting the objection of the taxpayer "is directed, not to ensuring that the taxpayer is informed of the Commissioner's reasons but to supplying the Board with them". See Sutton v. Commissioner of Taxation (1959) 100 CLR 518 at p. 524 and The Queen v. Cain; Ex parte Evatt (1975) 133 CLR 37;

(d) the obligation of the Commissioner pursuant to reg. 35(1) places a somewhat light burden on the Commissioner in that it may be satisfied by a statement of his ultimate conclusions not revealing the steps in his reasoning. See per Gibbs CJ in The Queen. v. Cain (supra) at p. 42.

However, once it is accepted that s. 25D applies in cases where an obligation upon the decision making body to state the reasons for its decision arises at a time subsequent to the making and communication of that decision, as it does in respect of reg. 35(1), then the language of s. 25D is apt to impose an obligation on the Commissioner to state also his findings and the material references to the evidence when he states his reasons under reg. 35(1)(c). Section 25D is an enactment of a remedial character. Accordingly it is not to be read narrowly. To my mind the exclusion of reg. 35 from what appears to me the plain terms of s. 25D would require compelling considerations.

As to (a) above, it is clear that s. 25D will not assist the taxpayer to decide whether he will appeal to the Supreme Court or seek a reference to the Board of Review or take any action by way of appeal. But this is not to say that Parliament did not consider that the findings and references to evidence would not be of use to the Board on a reference to it. And indeed various observations in Sutton's Case (supra) indicate a judicial view that it could well be of use. If then the findings and reference to evidence are to go to the Board reg. 35(2) provides they shall be supplied to the taxpayer. Those same observations indicate the propriety of this.

As to (b), it is difficult to resist the conclusion that despite the non-binding character of the statement of findings and references to evidence the knowledge of those findings and the evidence on which they were based would be of considerable benefit to the Board and the taxpayer in the conduct of the review.

As to (c), the observations referred to are certainly to the effect stated. It is difficult to see, however, that they affect the construction of s. 25D in its application to reg. 35 which concerns primarily the Commissioner's obligation to the Board and only secondarily to the taxpayer. Nevertheless, reg. 35(2) is itself enough to create an obligation to the taxpayer.

As to (d) there is no reason to reject the notion that in enacting s. 25D Parliament did not consider that the obligation in reg. 35 should be expanded.

Counsel for the respondent referred to two decisions of the High Court of Australia in which the relationship between the respondent and the Board was considered, namely, Sutton's Case (supra) and The Queen v. Cain (supra). In Sutton's Case reference was made to the distinction between the position of the Commissioner appearing before the Board of Review and that of a party to an action before the Court. "The Board is an administrative tribunal reviewing at the instance of taxpayers the work of the Commissioner in dealing with objections . . . . Of course the Board deals with the cases before it in a judicial spirit. . . . But it is not exercising judicial power . . . the basis does not exist for implying a power over the Commissioner as a litigant party to impose on him a legal obligation to formulate his case by pleadings or particulars or to give discovery by answering interrogatories or otherwise." See Sutton's Case (supra) at pp. 523. The Court added however:-

"But the relations of the board to the commissioner should not and doubtless do not begin and end with legal obligation. As an administrative body reviewing his decisions upon objections, if the board finds that it needs the assistance of this or that information as to what the commissioner did there is no reason why the board should not ask for it nor is there anything to prevent it asking for the information in some specific form which the board might find useful for the facilitation of the proceedings. Natural justice, it is needless to say, requires that the taxpayer shall know the course that is taken and what is placed before the board. But the procedure of a board is not necessarily a formal or technical affair.

The commissioner is unlikely to withold any information or assistance which a board might reasonably require, and it would serve no purpose to speculate as to the effect that might legitimately be produced upon the board's determination of the case by a refusal on the commissioner's part to supply information in his possession without which the board could not get at a just conclusion on the merits."

The decision in The Queen v. Cain (supra) affirmed what had been decided in Sutton's Case (supra). These cases were decided before s. 25D was enacted. Expansion by s. 25D of the obligation of the respondent under regs. 35(1) and 35(2) would operate in a manner significantly compatible with these last mentioned observations.

It is to be noted that in the context of an appeal to a State Supreme Court from a decision of the Commissioner, the High Court of Australia has held that a Supreme Court has authority to order the Commissioner to give particulars of the basis of his assessment. See Bailey v. Federal Commissioner of Taxation (1977) 136 CLR 214. In that case, Mason J. said at p. 221:-

"Indeed there is very much to be said for the view that fairness to the taxpayer demands that the Commissioner should be compelled to give particulars of his assessment when it issues so that the taxpayer is adequately informed as to the manner in which the assessment has been arrived at and may then determine whether he will object to the assessment and subsequently appeal. But that is a matter for the legislature."

This decision was given prior to the enactment of s. 25D of the AI Act.

By enacting s. 25D the legislature made a provision in line with the views expressed in the opening words of the observations. True it is that the operation of s. 25D does not assist the taxpayer to decide whether to appeal to the Court or to seek a review or not to take either course. But it is a step towards ensuring that the taxpayer is "adequately informed as to the manner in which the assessment has been arrived at.".

Having regard to the foregoing reasons I would hold that s. 25D has application to regs. 35(1) and (2). I would also hold that the respondent is required to give the appellant a copy of the statement forwarded to the Board of Review pursuant to s. 35(1) of the Regulations which by reason of s. 25D will include the findings on material questions of fact and refer to the evidence or other material on which those findings are based in deciding to disallow each of the appellant's objections.

It remains to determine whether the appellant has standing to bring proceedings before this Court under the ADJR Act. It is my view that the appellant is a "person aggrieved" within the meaning of that term as contained in s. 5 of that Act.

The decisions on this point indicate that it is sufficient that a person, such as the appellant in this case, has a special interest. As a taxpayer with a right which arises from s. 35(2), as expanded by s. 25D, the appellant qualifies. See Tooheys Ltd. v. Minister for Business & Consumer Affairs (1981) 36 ALR 64; Safadi v. Minister for Immigration & Ethnic Affairs (1981) 38 ALR 399, especially at p. 403. See also the decision of the Full Court of the Federal Court of Australia in Ricegrowers Co-Operative Mills Ltd. v. Bannerman and Trade Practices Commission (1981) 38 ALR 535 especially at p. 539.

Accordingly the answers to each of the three questions stated above is in the affirmative and the appeal should be allowed.

JUDGE2

This appeal raises a short but important question under the Review and Appeal provisions of the Income Tax Assessment Act 1936 ("the Assessment Act") and the Income Tax Regulations ("the Regulations").

I shall set out the relevant statutory provisions. Sections 185, 186, 187 and 188 of the Assessment Act provide as follows:

"185. A taxpayer dissatisfied with any assessment under this Act may, within 60 days after service of the notice of assessment, post to or lodge with the Commissioner an objection in writing against the assessment stating fully and in detail the grounds on which he relies:

. . .

186. The Commissioner shall consider the objection, and may either disallow it, or allow it either wholly or in part, and shall serve the taxpayer by post or otherwise with written notice of his decision.

187. (1) A taxpayer dissatisfied with the decision may, within 60 days after such service, in writing request the Commissioner either -

(a) to refer the decision to a Board of Review for review; or

(b) to treat his objection as an appeal and to forward it to a specified Supreme Court.

. . .

188. (1) If the request is accompanied by a fee of $2, the Commissioner shall refer the decision or forward the objection to a Board or Court in accordance with the request.

(2) The fee shall be refunded to the taxpayer if his assessment is reduced either by amendment or as a result of the decision of the Board or Court."

Regulation 35 of the Income Tax Regulations provides:

"35. (1) The Commissioner, in referring a decision to a Board of Review in accordance with sub-section (1) of section 188 of the Act or section 189 of the Act, shall furnish the Board with a printed or typewritten statement, in quadruplicate, containing -

(a) the name and address of the taxpayer;

(b) full details of the taxpayer's claim as made to the Commissioner; and

(c) the Commissioner's reasons for disallowing the taxpayer's claim.

(2) The Commissioner shall at the same time furnish the taxpayer with a copy of the statements referred to in sub-paragraphs (b) and (c) of the last preceding sub-regulation."

Section 189 of the Assessment Act provides:

"189. If within 60 days after receiving the request accompanied by the fee of $2 the Commissioner does not refer the decision or forward the objection, the taxpayer may at any time thereafter give him notice in writing to do so, and the Commissioner shall within 60 days after receiving the notice refer the decision or forward the objection to a Board or Court accordingly:

Provided that, if, within 60 days after receiving the request, the Commissioner requires the taxpayer in writing to furnish information relating to the decision or objection, the Commissioner shall not be bound to refer the decision or forward the objection to a Board or Court until the expiration of 60 days after the receipt by him of that information."

Section 25D of the Acts Interpretation Act 1901 ("the Interpretation Act") was inserted into that Act by the Acts Interpretation Amendment Act 1984 (Act No. 27 of 1984). Section 25D provides:-

"25D. Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

It is this section that has given rise to the question in the present case.

The taxpayer, the appellant before us, lodged income tax returns for the years ended 30 June 1979 and 1980 in which he claimed certain losses arising from the activities of "thoroughbred trading" as deductions. The Commissioner disallowed the deductions essentially on the ground that the taxpayer was not carrying on a business. The taxpayer objected to both of the assessments. The Commissioner disallowed the objections pursuant to s. 186 and the taxpayer requested the Commissioner to refer the decisions to a Board of Review pursuant to s. 187. This was done by the Commissioner, who also furnished to the Board of Review the statement required by sub-regulation 35(1). At the same time the Commission furnished a copy of the statement to the taxpayer in accordance with sub-regulation 35(2).

The taxpayer asserted to the Commissioner that the statement pursuant to regulation 35 should also have set out, pursuant to s. 25D of the Interpretation Act, the findings of the Commissioner on material questions of fact and should have referred to the evidence or other material on which those findings were based. The Commissioner's reply in substance was that s. 25D did not apply to regulation 35.

The taxpayer then filed an application in this Court for a review, pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), of the decision of the Commissioner that he is not bound by s. 25D of the Interpretation Act to supply to a Board of Review and to the taxpayer the information referred to in that section. The appellant claims to be a person aggrieved by that decision.

The application was heard by a single Judge of this Court and was dismissed. The learned primary Judge found that s. 25D did not extend to regulation 35 and that the appellant had not established that he was a person aggrieved within the meaning of s. 5 of the Judicial Review Act. The appellant appealed to this Full Court from his Honour's judgment.

I propose to turn first to the question whether s. 25D operates to require the Commissioner to incorporate in a statement furnished pursuant to para. 35(1)(c) his findings on the material questions of fact and to refer therein to the evidence or other material on which those findings were based.

It was common ground before the primary Judge and before this Court on appeal that s. 46(a) of the Interpretation Act has the effect that the expression "a regulation" may be substituted for the expression "an Act" in s. 25D.

Counsel for the taxpayer submitted that s. 25D is a remedial section and should be construed liberally; it applies to regulation 35 both literally and according to the purpose underlying that provision. Counsel accepted that the only decision to which s. 25D could apply is the decision of the Commissioner disallowing a taxpayer's objection under s. 186. He argued that s. 25D is not confined to the circumstance where the making of the decision and the giving of reasons therefor are contemporaneous, so that where, as in the present case, no requirement to give reasons for the decision disallowing the taxpayer's objection arose until the Commissioner referred his decision to the Board of Review, s. 25D then operated to require him to include in the regulation 35 statement the matters specified in that section.

Section 25D is another illustration of the increasing tendency of legislatures today to give effect to the principle of open government and, in particular, to expose the decision-making processes of government tribunals, bodies and officers to public scrutiny and to ensure that persons whose rights and interests may be affected by decisions made in the course of administrative processes are properly informed of the reasons for them and the findings upon which they are based. It is remedial legislation and must not be construed narrowly or technically. An Act amending an interpretation Act is perhaps a curious vehicle to give effect to this purpose but nothing turns on that circumstance in the present case.

Section 25D was designed to achieve substantially the same object as s. 13 of the Judicial Review Act and s. 28 of the Administrative Appeals Tribunal Act 1975 ("the Administrative Appeals Tribunal Act"). Under the Judicial Review Act a person aggrieved by the making of a decision and who is entitled to apply to the Court under s. 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a written statement setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision: s. 13. He may then use that information to chart his future course of action; for example, he may rely upon it to establish the requisite ground or grounds under ss. 5 or 6 to support an order of review. The position is similar under the Administrative Appeals Tribunal Act. A person affected by a decision in respect of which an application may be made to the Administrative Appeals Tribunal for a review may obtain from the person who made the decision a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision: s. 28.

The rationale of s. 25D, like s. 13 of the Judicial Review Act and s. 28 of the Administrative Appeals Tribunal Act, is that the citizen whose property or whose interests are affected by some administrative decision ought to be fully informed of matters pertaining to the decision. In particular, the citizen has an opportunity to consider whether there is any error in the decision-maker's process of reasoning which he may attack by means of the processes of review or in courts of law: Re: Palmer (1978) 23 A.L.R. 196.

Considered in the light of these objectives, s. 25D sits uneasily with regulation 35 and the Assessment Act.

Under Part V of the Assessment Act the Commissioner shall consider a taxpayer's objection and decide whether to disallow it or to allow it in whole or in part and serve written notice of the decision upon the taxpayer: s. 186. The Commissioner's ruling may be in the taxpayer's favour or, if it is unfavourable, the taxpayer may nevertheless accept it. In either case that is the end of the matter for the purposes of objection and appeal. Alternatively, if the Commissioner disallows the objection, the taxpayer may elect to take the matter further and request the Commissioner to refer his decision to a Board of Review or to a Supreme Court and, provided the request is accompanied by the prescribed fee, the Commissioner is required to comply with the request: sub-s. 188(1). Sub-regulation 35(1) then operates to require the Commissioner, in referring the decision to a Board of Review, to furnish it with a printed or typewritten statement in quadruplicate containing:- (a) the name and address of the taxpayer; (b) full details of the taxpayer's claim as made to the Commissioner; and (c) the Commissioner's reasons for disallowing the taxpayer's claim. A copy of the "statements" referred to in (b) and (c) must at the same time be furnished to the taxpayer: sub-reg. 35(2). The reference in the sub-regulation to the plural "statements" is curious; but it means simply that the Commissioner must furnish the taxpayer with a document containing the information referred to in paragraphs (b) and (c). In practice this is doubtless the same document as the one furnished to the Board.

The obligation imposed on the Commissioner by regulation 35 arises after the Commissioner has disallowed the taxpayer's objection and the taxpayer has elected to proceed further and, in particular, has chosen the Board of Review, rather than a Supreme Court, as the appropriate forum to hear the matter. Although it may be of some interest to a taxpayer to know at that stage, not only the reasons for the Commissioner's disallowance of the objection, but the matters to which s. 25D, is directed it would be of limited use; it was common ground before us that the Commissioner would not be bound by those statements during the course of the review before the Board.

If s. 25D imposed an obligation upon the Commissioner to set out findings on material questions of fact and refer to the evidence or other material on which they were based after the disallowance of an objection but before the time had expired for the taxpayer to determine whether he would appeal to a Supreme Court or a Board of Review then perhaps some real purpose would be served by the section. The taxpayer would then be armed with material which may assist him in deciding whether to appeal at all or, if a discretion of the Commission is under attack, whether to choose the Board as the appropriate reviewing tribunal. But no real purpose would be served by s. 25D if it applied because it would operate after, and not before, the Board became seized of the matter.

The principal strength of the taxpayer's argument lies in the close correspondence between the language of s. 25D and para. 35(1)(c). But that is only one consideration. In my opinion this does not lead to the conclusion that, upon the Commissioner referring his earlier decision disallowing an objection to a Board of Review, an obligation springs into existence to set out in the regulation 35 statement the findings on material questions of fact with reference to the evidence or other material on which those findings were based. Paragraph 35(1)(c) "is directed not to ensuring that the taxpayer is informed of the Commissioner's reasons but to supplying the board with them": Sutton v. Commissioner of Taxation (1959) 100 C.L.R. 518 at p. 524; R. v. Cain (1975) 133 C.L.R. 37.

The limitations of regulation 35 have been adverted to more than once by the courts: see for example Cain's Case especially per Gibbs J. at p. 43; Robinson v. Deputy Commissioner of Taxation (1984) 52 A.L.R. 719. Parliament has not, however, shown any enthusiasm to amend the Assessment Act or the Income Tax Regulations, including regulation 35, to enlarge the rights of taxpayers whose objections have been disallowed. In my opinion s. 25D was not intended to achieve this object by a side-wind.

Section 25D is intended to inform a person affected by a relevant decision not only of the reasons for the decision but also of the findings of the decision-maker on material questions of fact with reference to the evidence or other material on which those findings were based, essentially so as that person may, armed with this information, decide on his future course of action.

Section 25D contemplates some nexus between the making of the decision and the communication of written reasons for it in the sense that the two steps are part of the one function of the decision-making process. They need not be contemporaneous; but the giving of reasons must be essentially for the benefit of the person affected by the decision. The nexus is qualitative rather than temporal. Under Reg. 35 the Commissioner is not involved in any process of decision-making at all; he simply furnishes details of his earlier decision affecting a taxpayer to a statutory tribunal of review.

Section 25D doubtless affects a large number of diverse decisions made in the course of Commonwealth administrative processes. The section does not, however, apply to regulation 35 of the Income Tax Regulations.

Although it is not strictly necessary to consider the question of whether the taxpayer is a person aggrieved within the meaning of s. 5 of the Judicial Review Act it was argued fairly fully before us so I will deal with it, although it is only necessary to do so briefly.

The taxpayer's case is that he is a person aggrieved by the decision of the Commissioner in essence not to provide the taxpayer with the information mentioned in s. 25D. I have found that the Commissioner is not bound to provide this information to the taxpayer. However, if the Commissioner were bound to do so yet declined in a particular case to provide the requisite information to a taxpayer, it seems to me that the taxpayer in those circumstances would be a person aggrieved by the decision of the Commissioner. Otherwise the taxpayer would be bereft of remedy and the Commissioner without sanction.

The appeal should be dismissed with costs.

JUDGE3

The appellant, Thomas Andrew Dalton, is in dispute with the respondent, the Deputy Commissioner of Taxation, in relation to his taxable income for the financial years 1978-1979 and 1979-1980. For present purposes the details of the dispute do not matter. It is enough to say that Mr Dalton claimed to deduct losses sustained by him in the breeding of thoroughbred horses and that these losses were disallowed by the Deputy Commissioner in his assessment of income tax for each of the two years on the ground that the breeding activities did not constitute the carrying on of a business. Mr Dalton objected to the two assessments but his objections were disallowed. Thereupon, by letters dated 6 August 1982 and 7 October 1982 respectively and acting in reliance upon s. 187(1) of the Income Tax Assessment Act 1936, the appellant requested the respondent to refer his decisions disallowing the two objections to a Board of Review. On 30 November 1984 - - the reason for the two year delay is not explained - - the respondent forwarded the relevant documents to a Board. The documents included what purported to be a statement pursuant to reg. 35(1) of the Income Tax Regulations. A copy of that statement was sent to the appellant. Regulation 35 provides:

"(1) The Commissioner, in referring a decision to a Board of Review in accordance with sub-section (1) of section 188 of the Act or section 189 of the Act, shall furnish the Board with a printed or typewritten statement in quadruplicate, containing - -

(a) the name and address of the taxpayer;

(b) full details of the taxpayer's claim as made to the Commissioner; and

(c) the Commissioner's reasons for disallowing the taxpayer's claim.

(2) The Commissioner shall at the same time furnish the taxpayer with a copy of the statements referred to in sub-paragraphs (b) and (c) of the last preceding sub-regulation."

The regulation 35(1) statement furnished to the Board set out the respondent's reasons for disallowing the appellant's claims in this way:

"(i) During the years of income ended 30 June 1979 and 30 June 1980 the taxpayer was not carrying on a business of primary production.

(ii) No part of the amounts of $12,044 and $17,449 claimed as losses in respect of primary production activities for the years of income ended 30 June 1979 and 30 June 1980 respectively is allowable as a deduction under sub-section 51(1), section 82D or any other section of the Act."

The appellant did not dispute that the reg. 35(1) statement included all of the material itemised in the regulation. However, by letter dated 4 February 1985 he contended that s. 25D of the Acts Interpretation Act 1901 - - which was added to that Act by the Acts Interpretation Amendment Act 1984 and which commenced to operate on 12 June 1984 - - applies to a reg. 35(1) statement so as to require that the statement set out the findings of the Deputy Commissioner on material questions of fact, with reference to the evidence or other material on which those findings were based. He requested an amended statement. The respondent disputed the application of s. 25D to a reg. 35(1) statement and, by letter dated 22 February 1985, declined to amend the statement. Pursuant to the Administrative Decisions (Judicial Review) Act 1977, the appellant sought review of the decision of the respondent not to amend the statement but his application was dismissed by Franki J. The appellant now appeals against that dismissal.

A preliminary point was taken both before Franki J. and before this Court, relating to the appellant's standing to contest the legal validity of the Deputy Commissioner's decision not to amplify his reg. 35(1) statement. The respondent has drawn attention to the circumstance that reg. 35(1) requires the statement to be provided to the Board. The obligation under reg. 35(2) is merely to furnish the taxpayer with a copy of that statement. In Sutton v. Commissioner of Taxation (1959) 100 C.L.R. 518 at p.524 the High Court of Australia (Dixon C.J., Fullagar, Kitto, Taylor and Windeyer JJ.) commented, in relation to a complaint about the adequacy of the reasons contained in a reg. 35(1) statement:

"It is to be observed that reg. 35(1)(c) is directed not to ensuring that the taxpayer is informed of the Commissioner's reasons but to supplying the board with them. It is not the board that appears to be dissatisfied with the Commissioner's statement of reasons."

Section 5 of the Administrative Decisions (Judicial Review) Act gives a right to apply to this Court for review of a relevant decision to ' a person who is aggrived" by that decision. The argument put on behalf of the Deputy Commissioner is that the duty imposed upon him by reg. 35(1) is a duty imposed for the benefit of the Board rather than for the benefit of the relevant taxpayer, so that the taxpayer is not to be regarded as a "person aggrieved" by any failure to comply with the requirements of the sub-regulation in relation to the content of the statement.

The term "person aggrieved" is not defined in the Administrative Decisions (Judicial Review) Act. Section 3(4) provides that a reference to a person aggrieved by a decision includes a reference to a person whose interests are adversely affected by the decision or, in case of a decision by way of the making of a report or recommendation, a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation. But this is not an exhaustive statement of the categories of people who fall within the term, as it is used in the Act. In Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at p. 79 Ellicott J. discussed the meaning of the phrase in these terms:

"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties . . . "

The approach of Ellicott J. has been endorsed in subsequent decisions of Full Courts of this Court: see Ricegrowers Co-Operative Mills Limited v Bannerman (1981) 38 A.L.R. 535 at pp. 539-540, 544 and Lamb v Moss (1983) 49 A.L.R. 533 at p. 554. The only case in which the Court has held an applicant for review not to be a "person aggrieved" appears to be Fowell v Ioannou (1982) 45 A.L.R. 491; see per Bowen C.J. and Northrop J. at p. 504. However, that holding seems to be connected to their Honours' view that there had not been a relevant "decision" reviewable under the Administrative Decisions (Judicial Review) Act and, although the High Court said nothing as to standing, its decision to allow the applicant's appeal and to grant review implicitly overrules the Full Court view on that matter.

The position, then, is that the minimum content of the phrase "person aggrieved", as used in s. 5, has yet to be defined. It may be that something less than the interests mentioned in Tooheys will suffice. The phrase is one which has been commonly used as a criterion of standing. Although, at one time, the courts treated the phrase as confining applicants to those who had suffered a legal grievance (see Ex parte Sidebotham, Re Sidebotham (1880) 14 Ch. D. 458 at pp. 465, 466) this approach is now regarded as too narrow. In Attorney-General of Gambia v N'Jie (1961) A.C. 617 at p. 634 Lord Denning, speaking for the Judicial Committee of the Privy Council, said:

"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."

The word "interests" is ambiguous but it is clear that it was not used in this passage in a sense limited to legal or financial interests. The point of the case is that the Attorney-General was held to have sufficient "interest", as guardian of the public welfare, to appeal against a decision of the West Africa Court of Appeal setting aside an order for the disbarment of the respondent. The Attorney-General had no legal interest, or statutory function, in the matter.

N'Jie has been followed in numerous cases. A notable Australian example is the decision of the Full Court of the Supreme Court of Victoria in National Trust of Australia (Vic) v T. & G. Mutual Society (1976) V.R. 592 that the National Trust was competent to appeal, as a "person who feels aggrieved", by the decision of the Melbourne City Council to grant a permit for the demolition of an historic building. The Trust, a company limited by guarantee, had no legal interest in, or statutory function in relation to, the matter but the court took into account the objects for which it was incorporated and the fact that it had been accorded recognition in some other statutory contexts as "representative of cultural interests centred upon buildings of historical, architectural or other special interests of a like nature".

For the purpose of considering the appellant's submission in the present case it is not necessary to express any view upon the questions whether the N'Jie test confers a wider right of standing than that enunciated in Tooheys or, if so, whether that wider right applies to applications for review under the Administrative Decisions (Judicial Review) Act. Adopting merely the test propounded in Tooheys, it is clear that the appellant is a "person aggrieved" in relation to the decision of the respondent not to include the demanded material in the reg. 35(1) statement relating to his reference. He has an interest, beyond the interest of any other member of the public, in the Board of Review having before it, for the purpose of the reference, the whole of the information required by law. Moreover, the appellant himself is entitled, under reg. 35(2), to receive before the hearing by the Board a copy of the statement. To have a statement as to relevant findings of fact, with a reference to the material upon which those findings are based, may be of assistance to a person in the position of the appellant, both in considering whether or not to prosecute the reference to the Board (cf. Re Palmer and Minister for Australian Capital Territory (1978) 23 A.L.R. 196 at p. 206, Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 A.L.R. 500 at p. 507) and, if the reference does proceed, at the hearing itself. Although these advantages may not affect the legal rights of the appellant they are advantages peculiar to the particular taxpayer. The denial of those advantages is a grievance which the particular taxpayer will suffer beyond that suffered by other members of the public.

I turn to the second, and principal, point in the case: whether s. 25D applies to a statement under reg. 35(1) of the Income Tax Regulations. In terms, the section applies only to a situation where an Act requires a tribunal, body or person making a decision to give written reasons for the decision. However, the application of the section is extended, so as to include the like requirements of regulations, by s. 46(a) of the Acts Interpretation Act. That paragraph provides that "where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then - unless the contrary intention appears . . . this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act". There being no indication in this case of a contrary intention, the command contained in s. 25D must be read as applying to reg. 35(1) if, upon the proper construction of that regulation, it imposes a requirement answering the description contained in the section.

Section 25D of the Acts Interpretation Act provides:

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

The relevant question is whether reg. 35(1) "requires a . . . person making a decision to give written reasons for the decision". The appellant argues that this question should be answered affirmatively. Regulation 35(1), he says, requires the Commissioner, in referring a decision to a Board of Review, to furnish to the Board a statement containing, inter alia, "the Commissioner's reasons for disallowing the taxpayer's claim". The appellant concedes that the Commissioner is not obliged to give reasons for any decision to disallow an objection at the time of making or announcing that decision or, indeed, at all unless he is requested by the taxpayer, within 60 days of disallowance, to refer his decision to a Board. But, he says, once there is a reference then, by force of reg. 35(1), an obligation to give reasons arises. The phrase "person making a decision" is descriptive of the person to whom the command of the section is addressed; it does not, according to the appellant, import any element of contemporaneity between the making of the decision and the obligation to give reasons. Counsel suggests that cases may exist in which a statute or regulation provides that a decision-maker need not give reasons unless and until they are sought by a person affected by a decision. It would be strange, he says, if the fact that an interval of time may elapse between the announcement of the decision and the incurring of an obligation towards the affected person to give reasons had the effect of denying the application of s. 25D and, in effect, reducing the information required to be supplied to the affected person.

The major difficulty I see about the argument for the appellant is that it would require s. 25D to be read as if the reference was to a person who "has made" a decision; the verb being used merely to identify the person now affected by the command of the section. But Parliament elected to use the present participle "making", the command being addressed to a person who was presently involved in the function of "making a decision". It may be that absolute contemporaneity between the announcement of the decision and the incurring of the obligation to give reasons is not required. A person may discharge his decision-making function in two separate stages. But I think that, at least, the relevant person must still be involved in the function of making, and communicating to the person affected, a relevant decision. I agree with Lockhart J. that the rationale of the section is the supply to a citizen, whose property or interests are affected by an administrative decision, of full information relating to the decision; one purpose being to enable the citizen to make a better informed judgment as to his future course of action. It is not consistent with that rationale, or enough to come within the section, that the decision-maker, being not now engaged in any decision-making function, has, at some previous point of time, made a decision. In my view it is critical, and fatal to the contention of the appellant, that the Deputy Commissioner is not under reg. 35 involved in any decision-making function but rather the supply of information about his past decision to a third party, a review tribunal.

The conclusion which I have expressed gains support from a comparison between the wording of s. 25D on the one hand and s. 13 of the Administrative Decisions (Judicial Review) Act and s. 28 of the Administrative Appeals Tribunal Act 1975 on the other. Each of these three sections is addressed to the same matter; the imposition upon a decision-maker of an obligation to furnish findings on material questions of fact, with reference to the material upon which the findings were based. But s. 13 and s. 28 are framed so as to cast the obligation upon a person who has, in the past, made a relevant decision. Section 13(1) provides: "Where a person makes a decision to which this section applies, any person . . . may . . . request him to furnish a statement . . . ". Section 13(2) requires the statement to be furnished within 28 days. Section 28 follows a similar form. In enacting s. 25D Parliament had before it these models. Although the substantive obligation under s. 25D is similar to that arising under s. 13 and s. 28, Parliament has elected to employ different words to describe the person upon whom the obigation is cast. It must, I think, be assumed that this course was taken because of a deliberate decision not to select as the criterion of obligation the fact that the decision-maker had, in the past, given a relevant decision. Parliament was concerned to impose upon decision-makers, acting in that role, a requirement of fuller disclosure.

During the argument before us counsel for the appellant referred to a number of matters of desirability or convenience which he suggested favoured the construction for which he contended. These matters were discussed exclusively in terms of taxation reviews. Matters of desirability or convenience, as distinct from matters going to the apparent legislative policy, are rarely of much assistance but, in the present case, even less than usual; s. 25D is a provision of general application and cannot be construed by reference to the desirability of a particular operation in one particular situation. But, in any event, these arguments are not clear cut. It is true, as counsel for the appellant pointed out, that dissatisfaction has been expressed over a long time about the extent of the information as to the Commissioner's position available to a taxpayer who is contemplating, or preparing for, a reference to a Board of Review. The High Court has held that the Commissioner may not be compelled to provide to a Board of Review particulars as to his assessment of tax (Sutton) or of steps in the reasoning by which he reached his ultimate conclusion disallowing an objection (The Queen v Cain; ex parte Evatt (1975) 133 C.L.R. 37). (The position is otherwise in relation to an appeal to a Supreme Court: see Bailey v Commissioner of Taxation (1977) 136 C.L.R. 214). In Robinson v Deputy Commissioner of Taxation (1984) 52 A.L.R. 719 Lockhart J., in this Court, held that the Commissioner could not be compelled to furnish particulars of his reasons for disallowing an objection and so as to enable a taxpayer to make an informed decision whether to request a reference to a Board or to appeal to a Supreme Court. The taxpayer may perhaps outflank the Commissioner by obtaining information under the Freedom of Information Act 1982 (cf. Murtagh v Commissioner of Taxation (1984) 54 A.L.R. 313) but it remains a fair comment that the procedures preliminary to a hearing before the Boards of Review have proved remarkably resistant to the winds of administrative change which have penetrated most Commonwealth Government agencies and tribunals during recent years. It does not follow that a requirement for provision of information as to the Commissioner's findings of fact in relation to the disallowance of an objection is the most appropriate method of remedying any present informational inadequacies. Such a requirement would be likely to cause the Commissioner, before determining an objection, to seek extremely detailed information from taxpayers, with consequential additional delay being imposed upon an already protracted process. Moreover, the benefit to the taxpayer of information as to findings, at this stage of the review process, must be put into context. At hearings before the Boards the Commissioner is not bound by his previous findings. The taxpayer has the onus of showing that the assessment is incorrect (Income Tax Assessment Act s. 190). He might be seriously prejudiced if, in reliance upon a statement of findings, he neglected to prove a material fact. If there is a need for reform of the pre-hearing procedures, it may be more useful to require, or to empower the Boards to require, the provision of fuller information as to the basis of the assessment together with particulars as to the case which the Commissioner will present to the Board; rather than to require from the Commissioner a formal statement of possibly irrelevant findings.

The appeal should be dismissed with costs.