Deputy Commissioner of Taxation v Haritos
[2010] VSC 275
•21 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9827 of 2009
| DEPUTY COMMISSIONER OF TAXATION | Plaintiff |
| v | |
| GEORGE HARITOS | Defendant |
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JUDGE: | MUKHTAR As J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 March, 16 April 2010 | |
DATE OF JUDGMENT: | 21 June 2010 | |
CASE MAY BE CITED AS: | Deputy Commissioner of Taxation v Haritos | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 275 | |
INCOME TAX ― Conclusiveness of assessment ― Assessment based on deemed dividend provisions of tax laws ― Whether assessment based on provisional or tentative facts ― Whether jurisdictional error present ― Validity of assessment
CONTRACT ― Time stipulation for performance of action ― Time not expressed to be of the essence ― Non performance within time despite repeated requests ― Final request made with threat of termination of contract for non compliance ― Creation of essentiality ― Entitlement to terminate for breach
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M. Schilling | Australian Government Solicitor |
| For the Defendant | Mr J. Ribbands | T F Grundy Lawyer |
HIS HONOUR:
The plaintiff (“the Commissioner”) seeks summary judgment against the defendant (“the taxpayer”) for income tax due for the years of income ended 30 June 2006, 2007 and 2008. As at 16 April 2010, the Commissioner certifies under the Taxation Administration Act 1953 (“the Administration Act”) that the taxpayer owes $3,236,488.80 for tax due; owes $3,212,311.43 for administrative penalties for intentional disregard; and owes $497,907.96 as a shortfall interest charge. The total amount is $6,946,708.19.
This proceeding is based on a Notice of Amended Assessment issued on 10 June 2009 for each of the relevant tax years. Under s 177 of the Income Tax Assessment Act 1936 (“the ITAA”) the production of the Notices of Assessment is conclusive evidence of the due making of the assessment. Unless proceedings are brought by a taxpayer under Part IVC of the Administration Act for a review or appeal, the conclusivity also attaches to the amount and the particulars of the assessment. Furthermore, s 175 of the ITAA states that “The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.”
The Commissioner believes there is no defence to this claim. Pleadings have been filed. The taxpayer has raised three defences.
First, he makes a challenge under the Australian Constitution. In paragraph 3 of the defence, it is alleged that:
(a)The provisions of the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), which purport to allow the imposition of interest upon administrative penalties and interest upon interest are not a legitimate exercise of the power to impose income tax as provided for within s 51(ii) of The Constitution (Cth); and
(b)the decision of the plaintiff to impose interest upon administrative penalties and interest upon interest is not a legitimate exercise of the power to impose income tax as provided for within s 51(ii) of The Constitution (Cth); and
(c)the Notices of Amended Assessment are not a legitimate exercise of the power to impose income tax as provided for within s 51(ii) of The Constitution (Cth) in that there is no foundation in fact which would enable the plaintiff to arrive at the amount of tax provided for in the assessment; and
(d)the decision of the plaintiff to impose a liability for tax upon the plaintiff as is particularised in the Notices of Amended Assessment is not a legitimate exercise of the power to impose income tax as provided for within s 51(ii) of The Constitution (Cth) in that there is no foundation in fact which would enable the plaintiff to arrive at the amount of tax provided for in the assessment; and
(e)the provisions of s 175 and 177 of the Income Tax Assessment Act 1936 (Cth) are invalid under The Constitution (Cth) in that they purport to:
(i)remove the power of the Judiciary to determine whether as a matter of fact or law there exists an underlying obligation on the part of the defendant to pay tax; and/or
(ii)remove the power of the Judiciary to determine whether the decision by the Deputy Commissioner of Taxation to impose a tax liability on the defendant was a proper exercise of the decision making powers of the Deputy Commissioner of Taxation
A notice of a Constitutional matter as is required under s 78B of the Judiciary Act, and Order 19 of the Rules of Court, was served on the Attorneys−General of the Commonwealth, the States, the Northern Territory and the ACT. The Court was informed by counsel that no Attorney‑General has chosen to intervene. There is no application for removal to the High Court of Australia under s 40 of the Judiciary Act. The taxpayer by his counsel does not signify an intention to definitely proceed to the High Court, saying that the taxpayer might not have the “stamina or fortitude”.
Eventually in argument, the taxpayer abandoned the Constitutional challenge in paragraphs 3(a), (b) and (d) of his defence together with related paragraphs 11(a) and (b). But that left paragraph 3 (c) and (e) of the defence. There was no reason why this Court should not proceed to hear and determine the application for summary judgment in accordance with s 78B(2)(c) of the Judiciary Act. That became doubtless because in the end the taxpayer’s challenge was put on the basis of a jurisdictional error in the making of the assessments because of an absence of a factual foundation for the assessments and the absence of an underlying obligation to pay tax.
There was a second line of attack which put to one side the validity of the assessments. The taxpayer contended the Commissioner has precluded himself from recovering on the assessments because he made an agreement with the taxpayer under the Commissioner’s “Receivables Policy”. The taxpayer says that agreement was wrongfully terminated by the Commissioner. On this issue, although an estoppel was pleaded, there was no argument advanced on that basis. Rather, there was an argument that the Commissioner ought maintain or observe the agreement, even though the taxpayer has not complied with it. I shall expose the facts of that matter later.
For the reasons that follow, I would hold that there is no basis to challenge the validity of the assessments under the ITAA. I would also hold that the Commissioner was entitled to terminate the agreement and therefore there is no basis for contending that there is an agreement in place which somehow prevents the Commissioner from enforcing the notices of assessment.
The assessments
The taxpayer’s argument on the validity of the assessments depends on the following facts. The taxpayer is a director and shareholder of AES Services (Aust) Pty Ltd (“AES Services”), which is now in voluntary administration. After an audit of the company, the Commissioner assessed the taxpayer by applying the deemed dividend provisions of Division 7A of the ITAA. In general terms, if a payment from a private company to a shareholder or his Associate is not repaid at the end of the financial year, the outstanding amount is a non‑commercial loan and treated as an unfranked dividend to the extent of the company’s distributable surplus. A private company’s distributable surplus for a year of income is worked out using this legislative formula: net assets less non commercial loans less paid up share capital less repayment of non‑commercial loans. It is important to see that under s 109Y(2) of the ITAA, the Commissioner has valuation powers in this, as in other parts of the taxation legislation. That section says:
If the Commissioner considers that the company’s accounting records significantly undervalue or overvalue its assets or undervalue or overvalue its provisions, the Commissioner may substitute a value that the Commissioner considers is appropriate.
The taxpayer submits that where he has been assessed on the basis of a deemed receipt of dividends from a company under Division 7A, that assessment must “in all the circumstances” be tentative or provisional until the existence of a distributable surplus is established. Therefore, it is said, the assessment cannot be proved by reliance upon the provisions of s 175 and 177 of the ITAA. He submits such a position does not undermine the evident policy of the taxation legislation to facilitate the recovery of tax. All he is doing, he says, is to require a preliminary factual step to be determined before a transaction can be deemed to be a dividend, and thereby taxed in the hands of a taxpayer. That is said to be not offending the Act, but insisting upon compliance with it.
The submission then goes on to say that as a matter of fact, according to the taxpayer, there was no distributable surplus in 2006, 2007 and 2008, and therefore no capacity for the deeming of a dividend to have taken place in those years. The taxpayer says he has already paid $1,000,000 to the Commissioner which exceeds the distributable surplus and therefore there can be no entitlement to judgment.
There are two issues here. First, are the relevant assessments only tentative or provisional and therefore not within reach of s 175 of the ITAA? Secondly, in making the assessment, has the Commissioner, arguably at least, committed a jurisdictional error by making a mistaken assumption which thereby precludes a reliance on s 175 and 177 of the ITAA?
For the Commissioner, it was submitted that the High Court’s decision in Commissioner of Taxation v Futuris Corporation Ltd[1] authoritatively, and resoundingly, disposes of the issues against the taxpayer. The judgment of the majority in Futuris stands for or affirms the following propositions, which I think also incidentally deal with the Constitutional points remaining in the defence:
[1](2008) 237 CLR 146.
(a)The Commissioner has the general administration of the ITAA, and under s 166 makes an assessment from the returns, and from any other information in his possession. An assessment by the Commissioner identifies the completion of the process by which the provisions of the ITAA relating to liability to tax are given concrete application in a particular case with the consequence that a specified amount of money will become due and payable as the proper tax in that case.[2]
(b)The provisions of Part IVC of the Administration Act set up a regime for the making of taxation objections, and review, and appeals to the Federal Court. Section 177 of the ITAA operates to change what would otherwise be the operation of the relevant laws of evidence. The presence of Part IVC means section 177 meets the requirement of the Constitution that a tax may not be made incontestable because to do so would place beyond examination the limits upon legislative power.
(c)When s 175 is read with s 177, the result is that the validity of an assessment is not affected by failure to comply with any provisions of the Act. But a taxpayer with a grievance may object to the assessment in the manner set out in Part IVC. The effect of s 175 is that errors in the process of assessment do not go to jurisdiction.
(d)There are two situations that may attract a remedy for jurisdictional error. First, section 175 only operates where there has been what answers the statutory description of an “assessment”. A tentative or provisional assessment does not answer to that description. Secondly, conscious maladministration of the assessment process may also not produce an “assessment”.
(e)An amended assessment is not to be treated as tentative or provisional simply because it might be the subject of a compensatory adjustment in the future or may not entirely survive a proceeding under Part IVC. An assessment may be tentative or provisional where it is self-described as such or it fails to specify the amount of the taxable income which has been assessed and the tax payable.
(f)The notion of conscious maladministration arises as section 175 should be construed to not bring within the jurisdiction of the Commissioner an assessment which is made with a deliberate failure to comply with the provisions of the Act. That is, it does not encompass deliberate failures to administer the law according to its terms. Such a failure is a manifestation of jurisdictional error. But allegations that statutory powers have been exercised corruptly or with deliberate disregard of the scope of those powers are not likely to be made or upheld.
[2]See Batogol v FCT (1963) 109 CLR 243 at 252 (per Kitto J).
Justice Kirby in Futuris did not regard the categories of jurisdictional error as confined to the two situations as posited by the majority of the Court. His Honour, adopted some Australian academic thinking to include a category of “acting on the mistaken assumption or opinion as to the existence of a certain event, occurrence or fact…or other requirement, when the act makes the validity of the decision‑maker’s acts contingent on the actual or objective existence of those things, rather than on the decision‑maker’s subjective opinion.”[3] As his Honour’s views went beyond the decision of the majority, those views cannot be regarded as enlarging the content of the law.
[3](2008) 237 CLR 146 at 185-5, [134]-[136].
Were the assessments tentative or provisional? It was submitted that although the assessments in this case were not patently tentative or provisional, they were latently so, because the ultimate determination of liability for tax would depend upon an actual determination of the company’s net distributable profits. Until those profits were ascertainable as a matter of fact, it was submitted, an assessment to tax under Division 7A was necessarily, or by character, only tentative or provisional.
I cannot accept that submission. According to Futuris, there has been an assessment in this case in each of the relevant years and sections 175 and 177 of the ITAA take effect to give them validity. Each assessment is not tentative or provisional in the relevant sense. Each assessment is final for recovery purposes and does not await anything, at least not on the Commissioner’s part. Any challenge by the taxpayer to the basis of any of those assessments must occur under Part IVC procedures. In the face of sections 175 and 177, there is nothing in the Act on its terms or by implication that renders the process of assessment of Division 7A contingent upon the establishment of some objective or ultimate fact, before which any assessment must be regarded as tentative or provisional.
To my mind, the taxpayer’s two arguments cover the same ground, and involve the same misconception. They both amount to saying that the formation of a finding that there is a distributable surplus is a fact that must be established before an “assessment” is made, or a jurisdictional fact on which the exercise of the Commissioner’s powers is dependent. Whether something is or is not a jurisdictional fact is a matter of statutory construction, and not to be regarded as doctrinal: see Timbarra Protection Coalition Inc v Ross Mining NL [4] and Shalom v Health Services Commissioner [5] A statute may make any fact a jurisdictional fact, that is, a fact which must objectively exist. And the statute may reveal an intention that the absence or the presence of that fact will invalidate action taken under the statute. Or the process of construction could leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non‑existence of the fact. Where the statute does not express the power to be dependent on the formulation of a particular opinion or judgment, it is more likely that the existence of the particular fact in question was intended to be a jurisdiction of fact.
[4](1999) 46 NSWLR 55 at 63-4 (Ct Appeal).
[5][2009] VSC 514 (Kaye J).
In this case (as in many other parts of the ITAA) it is clear that the Commissioner’s power of assessment under Division 7A includes a power to form his own view about the value of net assets and the deemed dividends. That is not a jurisdictional fact in the relevant sense. The Commissioner’s powers of assessment under Division 7A are not expressly or by implication contingent on the actual or objective existence of certain things, in this case a company’s distributable surplus. The Commissioner has powers to come to his own views about the value of the net assets for the purposes of making an assessment.
In the end, the taxpayer is really saying in this case that the Commissioner got it wrong because there is no distributable surplus. In my view, that is no basis for even attempting to impeach the validity of the assessment. If an assessment has been made, and it is not provisional or tentative or infected with conscious maladministration, then the assessment is valid under the statute and enforceable for recovery purposes. The remedy of the taxpayer is under Part IVC of the Administration Act. But in the meantime the Commissioner is entitled under the Administration Act to proceed to recovery.
Accordingly, in my view this part of the taxpayer’s case is unsustainable. There is no basis for saying the assessments are invalid.
The agreement with the taxpayer
In a separate proceeding in this Court, on 10 June 2009, Mandie J made freezing orders against the taxpayer and AES Services and 11 other defendants on the ex parte application of the Commissioner. Those orders froze dealings in a number of properties held in the name of the taxpayer and his co‑director, Mr Alex Kyritsis (his brother in law) as well as family members and companies related to the taxpayer and Kyritsis. The Commissioner’s claim was that AES Services and its directors had failed to disclose over $30 million in assessable income in the financial years ending June 2005, 2006, 2007 and 2008. The Commissioner contended successfully that the company and its directors had alienated funds or assets to third parties and there was a likelihood that without a freezing order the Commissioner would be unable to recover tax owed by the company and the directors, as well as GST owed by the company.
The taxpayer’s family business interests are intertwined and the freezing orders were designed to cover family assets to the value of the Commissioner’s claims. The properties subject to the freezing orders were divided into two groups. First there were the properties purchased after the company’s incorporation in October 2004. Secondly, there were the properties purchased before that date.
The freezing orders were subsequently extended on a number of occasions by other judges of this Court and eventually by (J) Forrest J on 28 September 2009 after an attempt was made to challenge them.[6]
[6]See Deputy Commissioner of Taxation v AES Services [2009] VSC 418.
The Australian Taxation Office has published a “Receivables Policy”. Chapter 28 of that policy concerns “recovering disputed debts”. Paragraph 48 of that chapter states, in essence, that if the Commissioner determines it necessary to secure payment of the disputed tax debt before resolution of a dispute, one option to be considered as an alternative to the instigation of legal action for recovery of the debt is to accept payment of 50% of the disputed debt together with the provision of acceptable security for the remaining balance. This is in lieu of the Commissioner’s overriding power to take legal action to recover outstanding tax irrespective of whether the tax is subject to an objection, review or appeal.
In accordance with that policy, and at a time when the taxpayer had lodged objections to the Commissioner over the assessments, the Commissioner made an agreement with the taxpayer and with AES Services dated 16 September 2009. The agreements are not complicated. Clause 1A of the agreement with the taxpayer obliged him to –
(a)Pay the sum of $1.8 million in respect of the Haritos tax debt in cash to the Commissioner which sum shall be raised by way of drawings on the mortgage over 51 Lansell Road, Toorak … and which shall be payable as follows:
(i)$1 million shall be paid by cleared funds by Friday 25 September 2009; and
(ii)$800,000 shall be paid by 16 November 2009 and shall be secured until full payment by first mortgages to be provided or procured by George Haritos by 1 October 2009, provided that no such mortgages shall be provided or procured in respect of properties owned by George Haritos, Alex Kyritsis and/or their related entities and purchased after October 2004 (“the Post 2004 Properties”);
(b)Provide or procure further security in the form of first mortgages for the balance of the Haritos tax debt by 1 October 2009, provided that no such mortgages shall be provided or procured in respect of the Post 2004 Properties.
Under that agreement, the Commissioner agreed to vary the freezing orders to the extent necessary to enable the taxpayer to comply with his obligations in respect of the Toorak property.
It is not necessary to expose the terms of the agreement with AES Services. In essence it required the company to procure first mortgages over specified properties to secure $1.5 million in favour of the Commissioner to secure the company’s tax liability.
The evidence is that the taxpayer did not comply with clauses 1(a)(ii) and 1(b) of his agreement by the date specified. In effect, those clauses required mortgages to be in place by 1 October 2009 over pre 2004 property. There is in evidence a lot of correspondence which is not necessary to refer to in any detail. In essence the facts are as follows.
The Commissioner asked the taxpayer’s solicitor to act urgently and gave him until 7 October 2009 to comply with the agreement. The Commissioner wrote again on 12 October 2009 putting another deadline of 12.00 pm on 13 October 2009 for compliance, failing which the Commissioner would regard the taxpayer as being in breach of the agreement. On 12 October 2009 the taxpayer’s solicitor enquired whether the Commissioner would agree to a second mortgage over a property owned by one of the taxpayer’s companies, Jinacan Pty Ltd at 624 Sydney Road, Brunswick in satisfaction of clause 1(b) of the agreement. This was refused by the Commissioner as being not in accordance with the agreement. Then on 14 October 2009 the taxpayer’s solicitor wrote with another proposal which was not in accordance with the agreement and required the Commissioner’s consent to make additional variations to the freezing orders, as well as causing delay. The Commissioner gave another extension of the deadline until 16 October 2009.
On 27 October 2009 the Commissioner wrote to the taxpayer’s solicitor terminating the Haritos agreement by reason of the breach of clause 1(b). It is important to remember that clause 1(b) did not require the payment of any money by the taxpayer. It required him to provide or procure further security in the form of first mortgages for the balance of the debt by 1 October 2009.
Thereafter more correspondence followed. Broadly speaking, the taxpayer acknowledged that he was “overdue” in providing the security, but contended he was endeavouring to do so and that in any event the Commissioner’s position was protected by the freezing order. The problem seemed to be the taxpayer’s inability to isolate a property and free it from interests of other members of his family held in the properties.
The taxpayer’s next move was to file a summons on 27 October 2009 seeking a variation of the freezing order to enable the sale of one of the properties. There was a suggestion he would take action to enforce the agreement, yet no action is taken and it is difficult to see how action could be taken to enforce an agreement if he was in breach of it. Thereafter more correspondence occurred from the taxpayer’s solicitors by and large making protestations that Mr Haritos was doing all that he could to find mortgage security but was having to deal with the interests of other parties. At all times he seemed to be contending that he would act as if the agreement was still in existence, yet at no time was any action taken to somehow hold the Commissioner to the agreement. The evidence is that to this date the taxpayer still has not given any security to the Commissioner in accordance with clause 1(b) of the Haritos agreement.
The fact, which I think is incontrovertible, is that the taxpayer breached the agreement. He was given numerous extensions of time. He failed to comply with them. Yet he asserted through his solicitor that he still regarded himself as entitled to have the benefit of the agreement. But he was in breach; and the Commissioner had unequivocally terminated the agreement for breach. His grievance seemed to be that he made alternative arrangements but that the Commissioner would not entertain any further discussion to enable the agreement to be performed.
The Commissioner’s case is that he was entitled to terminate the agreement by reason of the taxpayer’s breach. The Commissioner gave him three notices identifying the breach and requiring him to remedy it and nominated another time for performance. Each of the notices conveyed a definite and specific intention that strict compliance with clause 1(b) would be required failing which the plaintiff would terminate the agreement for breach.
For the taxpayer, counsel concentrated on the “factual matrix”. It was submitted that at all times the Commissioner knew that the taxpayer did not own properties by himself and would need to come to arrangements to deal with the interests of others held in those properties. He submitted that the freezing orders gave the Commissioner an “overarching layer of comfort” and there was no necessity to insist on performance under the agreement. It was submitted that all Mr Haritos was seeking was time to organise his affairs in order to get a clear property, and at all times evinced his intention to comply with the agreement. In the light of the freezing orders, it was said that the mortgages were facilitative rather than essential because the freezing orders gave a ready means to satisfy any judgment that the Commissioner might obtain, especially as the freezing orders involved properties worth about $33 million (even though there were multiple interests in those properties).
Counsel conceded that there was no claim for specific performance of the agreement. His submission was that the taxpayer needed to be ready willing and able to proceed with the agreement when the matter went to trial, not now. He asserted that the taxpayer has not tendered any money or tendered performance because the Commissioner has resolutely said that the agreement has been terminated.
The taxpayer’s arguments tended, I think, to the contention that in all the circumstances the time limit under the agreement was not an essential obligation and therefore the Commissioner was not justified in terminating it.
I cannot accept that submission. I do not think it stands up to any scrutiny under the principles of contract law.
It is an elementary principle of contract law that a right to terminate a contract for breach arises by law if the breach constitutes repudiation, a breach of an essential term, or causes loss of the substantial benefit of the contract: see generally Cheshire and Fifoot’s Law of Contract.[7] Repudiation comprises the manifestation of inability as well as of unwillingness or conduct that is self‑disabling.
[7](Ninth Aust ed) at 1005-1032.
But the Commissioner did not terminate for repudiation. Yet it seems to me much of the taxpayer’s submissions were designed to show that he was always intending to honour the agreement, even though he could not comply with its deadline. I detect the taxpayer was seeking to show that he was making genuine attempts to perform it, although he simply eventually could not do so. Rather, the question seemed to turn on essentiality. The taxpayer made much of the fact that the Haritos agreement did not stipulate that the performance of any obligation was essential or that time was of the essence. But that does not matter. Essentiality is determined by law, to be objectively inferred from the terms of the contract and the circumstances: see DTR Nominees Pty Ltd v Mona Homes Pty Ltd.[8]
[8](1978) 138 CLR 423 at 431.
At common law, performance on time was generally treated as essential, whether this was expressly agreed or not. If time was expressed to be of the essence, and performance was not given on time, then both in equity and at common law, the innocent party can terminate the contract. But equity treated performance on time as essential only where this was expressly agreed. But if time is not of the essence, the innocent party cannot terminate a contract without first giving notice requiring performance within a specified time. The time allowed must be reasonable, and the notice must convey a definite and specific intent to require strict compliance with the terms of the contract so that the recipient will be made aware that the party giving the notice may elect to treat the contract as at an end unless there is compliance:[9]
[9]See Laurinda v Capalaba Park Shopping Centre Pty Ltd. (1999) 166 CLR 624 at 638, 654 and 664. See also generally Cheshire and Fifoot’s Law of Contract, above, at 1028-9.
These principles were recognised by Mason J in Louinder v Leis[10] where his Honour said:
But because equity treats the time stipulation as non‑essential, mere breach of it does not justify rescission by the innocent party and will not bar specific performance at the suit of the party in default. Unreasonable delay in complying with the stipulation in substance amounting to a repudiation is essential to justify rescission. It is to this end that, following breach, the innocent party gives notice fixing a reasonable time for performance of the relevant contractual obligation. The result of non‑compliance with the notice is that the party in default is guilty of unreasonable delay in complying with a non‑essential time stipulation. The unreasonable delay amounts to a repudiation and this justifies rescission.
[10](1982) 149 CLR 509 at 526.
Likewise Brennan J said:[11]
A notice to complete is thus a step in securing the lifting of the equitable restraint upon the legal right to rescind. A notice to complete is sometimes said to make time of the essence. That is a convenient description of its effect, though it may be misunderstood. A valid notice makes time of the essence in that a consequence of non‑completion within the time specified by the notice is to enable rescission by the promisee to be given effect in equity as well as in law, equity taking the day specified in the notice to be the essential time for completion.
[11]At 532.
There is no question about the reasonableness of the time limits, or the content of the notices given by the Commissioner to complete the agreement. Whatever comfort the freezing orders may have given the Commissioner, they do not dilute the legal effect of the terms of the agreement. The fact that the taxpayer was encountering difficulties in “freeing up” any property is irrelevant because his obligations under the contract are absolute. Likewise I think it irrelevant for the taxpayer to complain that at all relevant times the Commissioner knew that the interests of third parties were involved.
Conclusion
Accordingly, as there is no case to be investigated on the facts, or no other reason why this case should go to trial, I would grant summary judgment to the Commissioner on the ground that there is no defence. Given the passage of time between argument and the publication of this judgment, I will allow the Commissioner to bring into Court updated certificates under the Administration Act to recalculate the amounts due, if that be sought.
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