Deputy Commissioner of Taxation v Richard Walter Pty Ltd

[1994] HCATrans 217

~ /~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl26 of 1993

B e t w e e n -

THE DEPUTY COMMISSIONER OF

TAXATION OF THE COMMONWEALTH

OF AUSTRALIA

Plaintiff

and

RICHARD WALTER PTY LTD

Defendant

Directions hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Walter(2) 1 22/2/94

AT SYDNEY ON TUESDAY, 22 FEBRUARY 1994, AT 9.35 AM

Copyright in the High Court of Australia

MS S.C. KENNY: If the Court pleases, I appear for the

Deputy Commissioner.	(instructed by the Australian
Government Solicitor)

MR R.F. EDMONDS:  May it please the Court, I appear for the

defendant in this matter.	(instructed by Mallesons
Stephen Jaques)

HIS HONOUR:	Ms Kenny.
MS KENNY:	Your Honour, this matter comes before the Court

on a summons for directions for a case to be stated

pursuant to section 18 of the Judiciary Act.	I
understand that there is in substance no

disagreement about the facts which form part of the
draft case stated annexed to the summons and there
is also no disagreement about the question which
the Deputy Commissioner would have asked for the
consideration of the Full Court.

There is, however, disagreement between the

taxpayer and the Deputy Commissioner about the
statement of a second question which the taxpayer

would have stated. That question, Your Honour, is

"Are the Richard Walter assessments notices of

assessment for the purpose of section 177 of the

Income Tax Assessment Act?" The Deputy

Commissioner -

HIS HONOUR:  Where do I find - in fuller form, is that

question stated in the letter dated

21 December 1993 from Mallesons Stephen Jaques to

the Australian Government Solicitor?

MS KENNY:  Yes, Your Honour, it is. The question about

which the dispute is centred is question 1 on that

second page of that letter.

HIS HONOUR:  Yes. There being agreement about question 2

which is the question that you want included in the

stated case on its own.

MS KENNY:  Yes, Your Honour. The Deputy Commissioner would

say that the first question does not arise on the
order for removal made by the Court in October last

year. Secondly, it depends on findings of fact

which should be appropriately determined by the

Federal Court.

HIS HONOUR:  Now, can we deal with your first objection.

Why does it not arise on the order for removal that

was made last year?

MS KENNY:  The matters removed were only the proceedings on

the notice of motion in the Federal Court. The notice of motion in the Federal Court sought an

Walter(2) 2 22/2/94

order that the Federal Court not have jurisdiction

to treat as inva_lid the notices of assessment; in

other words, to inquire into the validity of the

notices of assessment. And Your Honour will recall

that the problem was that the Deputy Commissioner

relied upon section 177 of the Income Tax

Assessment Act and on the production of documents

in accordance with that section and on the decision

in Bloemen's case. The Deputy Commissioner said

that upon production of those documents it was not

open to the Federal Court to inquire into the due

making of the assessments or, as the notice of
motion put it, the Federal Court had no

jurisdiction to so inquire.

The notice of motion appears as annexure Jin

the draft case stated and Your Honour will see that

the specific order was one concerning the

jurisdiction - - -

HIS HONOUR:  It is a little difficult to find annexure J

because at this stage it is not paginated.

MS KENNY:  It appears in the bundle at virtually the second-

last document.

HIS HONOUR:	Yes, I have it now.
MS KENNY:	Your Honour will see that the Deputy Commissioner

sought orders that the Federal Court

lacks jurisdiction to make orders or any of

them sought by the applicant by reason of:

(a) the production of the notices or documents

produced as annexures to the affidavit of

Garry Keevers ..•.. ; and

(b) ss.175 and 177 of the Income Tax

Assessment Act -

And it sought orders that the applicant's

application be set aside.

The affidavit of Mr Keevers, in effect,

produced the documents referred to in section 177

and that appears from paragraph 2 of his affidavit.

In other words, there were produced copies of the notices of assessment certified as copies of the

amended assessment by the Deputy Commissioner.

Your Honour will recall that when that notice of Federal Court in David	motion came on before Mr Justice Hill in the of the decision of the Full
Jones Finances he did not believe he could
entertain the notice of motion. In other words,

Walter(2) 22/2/94

although in Bloemen's case this Court had said that

the production of.section 177 documents prevents
any challenge to either the fact, the validity or
the correctness of an assessment, notwithstanding

that decision the Full Federal Court had held in

David Jones Finances that, because of section 39B

of the Judiciary Act, section 177 did not operate

to preclude the Federal Court from inquiring into
the due making of the assessment. And because of

the perceived conflict between those case, and the

fact that His Honour was bound as a single judge by

the decision of the Full Court, the notice of

motion had an unhappy conclusion.

HIS HONOUR:	Your submission is that all that has been removed into this Court is proceedings on the
notice of motion.

MS KENNY: That is correct, Your Honour, and that appears

from page 22 of the transcript of 28 October 1993.

HIS HONOUR:	Yes, I have looked at that.
MS KENNY:	In fact, Your Honour, orders have been taken out

reflecting the terms of the order made by the Court

that day.

HIS HONOUR:  Yes. So that you say that all that has been

removed into this Court is a proceeding for an

order that the Federal Court lacks jurisdiction to
make the orders sought by the applicant by reason

of the production of the notices pursuant to

section 177?

MS KENNY:  Yes, Your Honour, I do. The draft case stated

put the question a little differently but, in

substance, it does not depart from the question

that Your Honour has just stated.

HIS HONOUR:  Now, you had another point and that was that it

involved issues of fact in any event.

MS KENNY:  Yes.

HIS HONOUR: But that could be overcome, could it not, by

agreement between the parties?

MS KENNY:  No, Your Honour, it could not, with respect. question which the taxpayer would ask is whether
the assessments are notices of assessment for 177
purposes but, below that - and that reflects the The

substance of the application made to the Federal

Court. What in fact that question is asking or the

grounds relied upon to make good a negative answer

to that question is the taxpayer's contention that

two notices of assessment have issued in respect of

Walter(2) 22/2/94

the same income; one to Richard Walter, one to

another company, another taxpayer.

The Deputy Commission would not concede that

those notices of assessment related to the same

income at all.	The reasons can be fairly briefly
stated.	The first reason is that the assessments

depended upon Part IVA determinations, that is,

that a tax benefit had been obtained by, in this

case, Richard Walter, in relation to a scheme; a

tax benefit being an amount which would, or would

have but for the scheme, been included in the

assessable income.

The case may be that the scheme identified for

Richard Walter and the scheme identified for

Morlea, the other taxpayer, are not the same at

all. So that if that is the case then there is no

question of the same income, as such, being in

question.

HIS HONOUR:  But that submission is a legalistic submission,

is it? I am not saying that in a pejorative sense

at all. But presumably, in reality, there is but

one transaction or series of transactions. There

may be a legal question as to how you determine
what is the relevant scheme that arises from that

transaction or series of transactions.

MS KENNY:	The difficulty may be, Your Honour, that the transactions which relate to Richard Walter are
different from those which relate to Morlea. For
example, one may have a series of transactions which stop with Richard Walter and then another set
of transactions which pass on, if you like, a tax
benefit to Morlea. Now, before any of that could
be gone into, one would need a court to make
certain findings of fact, and that is the
difficulty which the Deputy Commissioner has. He
says that he cannot agree upon those facts in this
Court, that is a matter which must be investigated
in the Federal Court. In any event, that
investigation is not preliminary to the question,
"Does section 177 preclude an inquiry?", it is
posterior. It comes afterwards.

HIS HONOUR: It is a separate question and, really, it is a

question that in this litigation, I imagine, would
only arise in the event that your submission on

section 177 was rejected.

MS KENNY: That is so, Your Honour, yes. There has never

been any submission put by the Deputy Commissioner

to the contrary. His position is that if one can

determine the first question, that is the one he

would have asked, in his favour, that disposes of

the litigation.

Walter(2)

22/2/94

HIS HONOUR: 

Yes.

MS KENNY: 

If not, then the matter should go back to the

Federal Court for investigation. But that, in
substance, is the reason why the Deputy
Commissioner does not agree to the first question

or cannot agree to the first question. One, it

comes, logically, after question No 2; two, it
depends upon findings of fact and, three, on my

submission, it does not arise from the matter

removed into this Court.

HIS HONOUR: It does not - - -?

MS KENNY:  - - - arise from the precise matter which has

been - or part of the cause which has been removed into this Court. That is, the only matter removed

was the question arising on the notice of motion

relating to the jurisdiction of the Full Federal

Court to make the inquiry.

I can take Your Honour further if Your Honour

would wish into why I say the first question

depends upon factual matters.	Does Your Honour
wish me to do so?

HIS HONOUR:  At this stage, I do not think so, Dr Kenny. I

will hear what Mr Edmonds has to say. My attitude

to the first question, leaving aside the point that

it may not arise from that part of the proceedings

that have been removed into this Court, is that if

I thought that it was merely a matter of the

Deputy Commissioner refusing to make concessions in

relation to facts that I would have thought could

be readily agreed or should be readily agreed, then

I would not allow the submissions you have made to

deter me from including that question, putting to

one side the other objection you have.

But certainly, if, in reality, there is no

agreement between the parties arising from real

difficulties in determining what the facts are, I
would not include a question in the stated case.	I
would take the view that the matter should be

determined by the Federal Court before any question

was presented in a form suitable for determination

by this Court.

MS KENNY:  Your Honour, perhaps, if Mr Edmonds wants to

explain to Your Honour why facts are not in issue,

then I might reply to that.

HIS HONOUR:  Yes, I quite agree. But can I just take you to

one matter in the stated case. I think it is

paragraph 11, which is the paragraph that is

designed to lay the foundation that there has been

a production of the notices. Now, the paragraph

Walter(2) 6 22/2/94

refers to the affidavit of Garry Keevers and states that that affidavit "produced copies of the Richard

Walter assessments". Now, I suppose that in terms

of the application of section 177 to documents

produced in a proceeding, the section operates in

terms of the actual production to the Court of

those documents.

MS KENNY:	Yes, that is so.
HIS HONOUR:	Now, in a sense, the mere fact that an

affidavit is filed and the deponent produces or
exhibits documents to that affidavit does not give
rise to a production of the kind that one

ordinarily contemplates when you are seeking to

apply section 177. So that, in a sense, the

question is proceeding on the footing that the

Deputy Commissioner is going to tender those

documents in the proceedings.

MS KENNY: In substance, that is correct, I think,

Your Honour. My instructions are that this has

never formally been produced to the Full

Federal Court.

HIS HONOUR:  No, because in a sense the motion has not come

on for hearing.

MS KENNY:	Yes, that, I think, is correct.
HIS HONOUR:	If the motion had come on for hearing, the

documents, presumably, would have been the first

thing produced. The affidavit would have been read

and then the document produced.

MS KENNY: That, I think, accurately reflects the true

position, Your Honour. It has to proceed on the

basis that the Commissioner does wish to produce

them to the Full Federal Court - the Court.

HIS HONOUR:  Yes. I think it may be necessary to be

specific in the stated case and to indicate that -

you need something after what appears in the last

sentence there to indicate that on the motion

coming on for hearing the Commissioner intends to

read the affidavit and to produce the documents.

And I take it that that is not in contest at all.

MS KENNY:  I would be very surprised if it was, Your Honour,

yes. Certainly that change can be made readily.

HIS HONOUR:	Yes, certainly. Yes, Mr Edmonds?
MR EDMONDS:	If Your Honour pleases.  Your Honour, what my

learned friend has said concerning what was removed

into this Court, there is no issue between us.

While I did not appear on behalf of the defendant

Walter(2) 22/2/94

at the removal application, it is quite apparent

that the orders that were made by this Court were

that only proceedings - - -

HIS HONOUR:	On the notice of motion.
MR EDMONDS:	On the plaintiff's notice of motion.

Your Honour may or may not recall that at the time

that the removal application in this matter was

matter. heard it was heard in conjunction with another

HIS HONOUR:	Carmody.
MR EDMONDS:	Involving Carmody and Wengermeier, Your Honour.

Your Honour, while the only proceedings which have

been removed into this Court are the proceedings on

the notice of motion, Your Honour did say something
to both counsel that appeared on this application

during the course of hearing it which, in our

respectful submission, perhaps showed a prescience

and - - -

HIS HONOUR: Omniscience is a better and more fulsome word,

Mr Edmonds.

MR EDMONDS:  "Omniscience", yes, Your Honour. Does Your

Honour have a copy of the transcript of the - - -

HIS HONOUR:	Yes, I have.
MR EDMONDS:	If I could take Your Honour to the foot of

page 7 where His Honour Mr Justice Toohey puts a

question to Mr Nettle, senior counsel, where

Mr Nettle said:

Whether the Court chooses, as we thought

appropriate, to bring up the whole cause, deal

with that motion, and then assuming it thinks

it appropriate remit the balance, or whether

the Court would wish us to reconstitute the

before it, is a matter, with respect, of not a application so as to bring only that motion great deal of significance to us. What we

seek is a determination of the question.

And then Your Honour said:

There is some advantage, if the case is to be

removed, in removing the proceeding rather

than your particular motion, because it may

give the Court greater flexibility in stating

questions if it is to be thought that a

statement of questions or a reservation of
questions is the best way of proceeding once

the matter gets to this Court.

Walter(2) 22/2/94

And, Mr Nettle:

Yes, with respect, Your Honour, we would adopt

that and that is why we have asked thus far
that the whole of the cause be removed under

section 40(2).

HIS HONOUR:  The wisdom of that statement remains obvious

but none the less, the Court decided to remove only
the notice of motion and the effect, granted the

wisdom of the statement, is that there is not that

flexibility.

MR EDMONDS:  Your Honour, the difficulty that we would see

if the first question, as we call it, is not

reserved for the consideration of this Court is

that the Court's opinion on the second question

will not dispose of the proceedings which are in

the Federal Court. That is the 39B proceedings.

That, shortly stated, is our principal submission

as to why the first question should be included.

HIS HONOUR:  But how do you overcome the difficulty that I

have not got a relevant proceeding before me or I
have not got so much of the proceeding before me as

enables me to state the question?

MR EDMONDS: 

Your Honour, the only question which my learned

friend would ask be reserved for the consideration
of the Full Court is premised, as all section 177
questions of this kind must be, on the basis that
the Richard Walter assessments are valid notices of
assessment. In effect, if that is the only
question which is reserved for the consideration of

this Court, it becomes, in effect, asking the Court
or it may be asking the Court to opine on a

hypothetical question because it is quite clear, of assessment for the purposes of section 177, then they do not get the protection that that section provides.

HIS HONOUR:  Yes, but that happens from time to time. The

Court abstracts a question out of proceedings in

courts below and decides it, notwithstanding that

the foundations of the question may be subsequently

undermined.

MR EDMONDS:	Your Honour, I merely make those points in relation to the first point that my friend made,
that it does not arise on the removal of the
motion.  It undoubtedly was a matter which was at
the forefront of Your Honour's mind at the time that this removal application was considered.
HIS HONOUR:	One of the reasons for that was I was aware of

this question.

Walter(2)	9	22/2/94
MR EDMONDS:	Yes, Your Honour.	The second matter on which

my friend relies is that there are issues of fact

to be determined and that it is not appropriate

that, in the light of the determination of those

issues of fact, for the first question to be

reserved for the opinion of this Court.

Hopefully, Your Honour has received a copy of

a statement of facts and grounds upon which we

would rely to say that the notice is bad.

HIS HONOUR:  Yes, that was filed in the Registry yesterday,

I think.

MR EDMONDS:  Your Honour will have seen from that statement

that we rely totally on the face of the notice.

HIS HONOUR:  Yes, I follow that. By the way, what is the

explanation for the 5 per cent discount?

MR EDMONDS:  Your Honour, I am not in the position to tell

Your Honour what the explanation of that 5 per cent

discount is. It applied in every one of the

Richard Walter assessments. They gave this

discount for income which had previously been

returned, as I understand it, by Richard Walter as

assessable income of it but it had not been

included as assessable income of Morlea

Professional Services. So that the Commissioner,

in exercising his determination under Part IVA,

gave Richard Walter a discount as compared to -

HIS HONOUR:	Do you agree with that statement, Dr Kenny?
MS KENNY:	I have asked for instructions upon it,

Your Honour.

MR EDMONDS:  So that so far as the issue that there would be

matters of fact to be determined, we would say that

we rely totally on the face of the assessments,

Your Honour, and we say that we could only succeed,	on the authorities, on the basis of the face of the	assessment. If we cannot show that the assessments
are bad on their face then we cannot succeed on the
first question at all. So that so far as my
learned friend's proposition that it would involve
this Court in seeking to determine issues of fact
on matters which are not in evidence, we would not
agree with that proposition. They are my
submissions, Your Honour.

HIS HONOUR:	Yes, thank you, Mr Edmonds.
MS KENNY:	Your Honour, to answer the question Your Honour

just asked, no is the answer from the

Deputy Commissioner's point of view, he would not

agree with the characterization of the 5 per cent

Walter(2) 10 22/2/94

discount that has been given by the taxpayer.	The
5 per cent discount, I am instructed, relates

partly to the scheme and the amount went through a

number of hands including a trust, and in the hands
of the trust, I understand, it was discounted to
the extent of 5 per cent and that accounts for the
5 per cent discount appearing in the adjustment

sheet, none of which probably means a great deal to

Your Honour, and in fact goes perhaps to illustrate

my point that, really, before any of these

questions concerning the validity or otherwise of

the assessment can be determined, there has to be

an inquiry into the scheme relied upon by the

Deputy Commissioner in determining that there was a

relevant tax benefit for the purposes of Part VIA.

There is a further point which arises. My

learned friend said that he relies on the face of the notice and the face of the notice only. With

respect, Your Honour, that cannot be so. What he

in fact -

HIS HONOUR:	He is including the adjustment sheet in that.
MS KENNY:	He must, in fact, include the adjustment sheet if

he is to say that. But section 177 really refers

only to the notice of assessment and provides that

you cannot go behind that. This is not a - - -

HIS HONOUR:  I do not think that is a complete answer,

Dr Kenny. I would have thought myself that there

is a strong case for saying that the notice of

assessment includes the adjustment sheet.

MS KENNY:  Your Honour, perhaps I do not have to go so far

as to make that proposition good. I would,

however, distinguish this case from the tentative

or provisional assessment notice which, on its

face, says it is not a definitive assessment or

something which says, on its face, this notice of

assessment issued under the wrong enactment.

But going back to the question of facts, which seems to be the chief matter between us, and

perhaps turning to, if I may, the submissions which

Mr Edmonds provided to the Court or, rather, his

instructors provided to the Court the other night,

I would say the following, and that is that the gist of the taxpayer's case would appear to emerge

at paragraph 5 on page 3. That is, the taxpayer

says, and I will take midway down that passage:

The principle that the Commissioner may assess

different taxpayers in respect of the same

income on alternative bases is not applicable

to -

Walter(2) 11 22/2/94

this case, I assume him to mean.

Now the problem is that that statement,

whether true or not, depends upon the fact that the

same income has been assessed on alternative bases

to either taxpayer. That is a fact in issue in the

Federal Court. The taxpayer has sought to overcome

that by saying that the same amount or an identical

figure has been included in the calculation which
led to the issue of the notice of assessment and

for that he relies upon the adjustment sheet. In

my submission, that does not make good or it does

not follow from that that the same income is in
question because, first of all, one asks oneself,

"What is the test put by the legislation under

Part IVA?", and that is, "Is there an amount which,

but for a scheme, would or could reasonably be

expected to have been included in the assessable

income of the taxpayer?"

Now, one may receive a positive answer to that

question in relation to two taxpayers even though

an identical figure, for argument sake, is included

in the adjustment because it may be there are two

different schemes which depend upon the same figure

or, alternatively, as I said to Your Honour

earlier, it may be that the scheme is divisible

into two parts, one affecting the first taxpayer

which is Walter, and the second part of the scheme

affecting another taxpayer and, until one has a

decision of a court determining whether or not that

is so, one really cannot get to first base on

paragraph 5. One cannot accept that paragraph 4

necessarily applies. In other words, the statement

made in paragraph 4 is that the same - the question

is whether the amount has been returned can be

attributed to the taxpayer who obtained the
relevant tax benefit, but the answer may be that

both taxpayers obtained a tax benefit referable to

an identical sum.

So, the submission made in paragraph 4 may

never arise. Similarly, in paragraph 3. It is

said that one cannot predicate, in terms of

section 177C, that two or more taxpayers can obtain

the same tax benefits in connection with the

scheme. Put in that bland fashion - one may argue

the rights and wrongs of it, but in the end one has
to analyse whether, in fact, it is the same tax

benefit and, again, one gets back to the problem I

have just outlined to Your Honour. They may

resemble one another as tax benefits in the sense

that they may rely upon an identical figure but
they may, in the end, not be the same tax benefits

at all. In other words, they may be referable to

entirely different arrangements or, alternatively,

the answer may be they should have been included in

Walter(2) 12 22/2/94

the ass~ssable income of both.	So that, again, the
foundation of 3 falls apart.	One cannot assume

that there will be any foundation for it until

there has been a finding of fact.

The other matter which is of some concern is

that the taxpayer has placed his argument upon the

basis that the Commissioner relied only on Part IVA

whereas he, in fact, according to the adjustment

notice, has relied upon section 260 and upon the

notion of sham. Now, it may be that when one

analyses the transactions entered into by these
taxpayers, one will discover that Richard Walter
entered into one series of transactions; the other
taxpayer into another series of transactions, and

section 260 may properly disclose that it applies

to one and not to the other; alternatively, to both

in a different fashion. But, in a sense, all one

can do is argue in the hypothetical until there is

a finding of fact by the Federal Court.

That, in effect, is the problem which is faced

by asking the first question, Your Honour. The

only other point I would make, Your Honour, is

this: the truth may be that the Deputy

Commissioner has either issued independent

assessments, relying upon independent - these

figures or, alternatively, has issued alternative

assessments on the basis that if the arrangements

in question constituted scheme A, then

Richard Walter was the taxpayer who obtained the

relevant tax benefit. But if it was, in fact, a

scheme characterized under scheme B, then Morlea,

or the second taxpayer, was the taxpayer obtaining

the relevant tax benefit.

This Court has accepted that alternative

assessments may be properly issued. So, in the

end, the first question necessarily fails because

there is really no adequate factual basis put

forward. That is really all I would like to say to

Your Honour on that, unless I can assist further.

HIS HONOUR:	Yes, did you want to say something?
MR EDMONDS:	I just wanted to say this.  I would be quite

happy if it would appease my friend's concern about

the delving into factual matters to have the first

question that we would ask be reserved limited by

saying, "Are the Richard Walter assessments, on

their face, notices of assessment for the purposes

of section 177(1)?", Your Honour. So that one

would only have to look at the document itself. It

would require no delving into any factual matter at
all other than what is stated on the assessment,
the adjustment sheet and the accompanying

determination.

Walter(2) 13 22/2/94

HIS HONOUR:  But at the moment I find it hard to conceive

that that question would give rise to anything but an affirmative answer. In other words, I think if the question was stated in that form, you would be severely confining the basis on which you

ultimately want to attack the validity of the

notice of assessment.

MR EDMONDS:  Yes. On reflection, Your Honour, I think

Your Honour has done me a favour.

HIS HONOUR: It is not often I do favours, Mr Edmonds.

MR EDMONDS:	Thank you, Your Honour.
HIS HONOUR:	The only question requiring determination at this stage of the proceedings is whether the draft
stated case should contain more than the question
of law which is currently proposed in the draft.
That question is in this form:

Does the production of the Notices of Assessment preclude wholly or in part challenge or review of the Richard Walter

assessments in the proceeding under

section 39B of the Judiciary Act, 1903 (C'th)
by reason of the operation of section 177 of
the Income Tax Assessment Act, 1936 (C'th)?

The taxpayer wishes to have included in the stated case an additional question in this form:

Are the Richard Walter assessments notices of assessment for the purpose of section 177 of the Income Tax Assessment Act, 1936 (C'th)?

It seems to me that it is not open to me to

include that additional question in the stated case

for the reason that the taking of that course is

precluded by the form of order for removal made by

this Court on 28 October 1993.	On that day, the
Court made an order for removal of the proceedings

on the notice of motion pending in the Federal

Court. That notice of motion sought an order in

the form that the court - that is the Federal

Court - lacked jurisdiction to make the orders sought by the taxpayer by reason of the operation
of section 177 of the Income Tax Assessment Act on

the notices of assessment which were to be

produced. So, on that ground alone, it seems to me

that it is not open to me to include the question

suggested by the taxpayer in the stated case.

In any event, I have come to the conclusion

that until such time as precise facts are agreed

upon by the parties or findings of fact are made by

a court, preferably the Federal Court, it would be

Walter(2) 14 22/2/94

of no utility, to say the least of it, to include

the second question in the stated case. It may be

possible that the parties can ultimately come to
agreement on the facts that underlie the suggestion

put by the taxpayer that the Deputy Commissioner

has assessed two different taxpayers to the payment

of income tax on the same income but, at this

stage, it seems to me that in the absence of

agreement, this Court must await the making of

appropriate findings of fact.

So, accordingly, I am not disposed to include

in the stated case any question other than the

question that is presently contained in the draft.

Now, does it remain for me to do anything

else?

MS KENNY:  Your Honour, I think not. The only question

which remains is, is Your Honour content with the

form of the question which the Deputy Commissioner

has posed?

HIS HONOUR:  The parties ought to give that further

consideration in the light of the amendment I have

suggested to paragraph 11. You might need some

slight alteration to the question to accommodate

what you are proposing to put in paragraph 11.

MS KENNY:  I think that may be right, Your Honour, so that

appropriate change will be made and then brought

back in due course.

HIS HONOUR:  I am prepared to sign the case provided I am

assured that the parties are in agreement as to the

amendments to be made. All you need do is have the

case retyped; lodged in the Registry; it can be

handed to me and provided the amendments meet with

my approval, which almost certainly they will, I

will sign the stated case.

MS KENNY:  Thank you, Your Honour.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE

Walter(2) 15 22/2/94