Fogarty and Commissioner of Taxation
[2007] AATA 1822
•28 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1822
ADMINISTRATIVE APPEALS TRIBUNAL )
) No WT200600651-653
TAXATION APPEALS DIVISION ) Re PETER FOGARTY Applicant
And
COMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date28 September 2007
PlacePerth
Decision The Tribunal affirms the decisions under review. The Tribunal remits the matter to the respondent to issue further amended assessments to correct the arithmetical errors in the 2001 and 2003 years of assessment.
.............[Sgd Mr A Sweidan]...........
Senior Member
CATCHWORDS
Income Tax - deductions - property expenses - apportionment
LEGISLATION
Income Tax Assessment Act 1997 s8-1
CASES
Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation[1949] HCA 15; (1949) 78 CLR 47)
Fletcher v Federal Commissioner of Taxation 173 CLR 1
Inglis v Federal Commissioner of Taxation 87 ATC 2037
Temperley v Commissioner of Taxation [2005] AATA 208
Ronpibon Tin No Liability v Federal Commissioner of Taxation (1949) 78 CLR 47
Spassked Pty Ltd v Commissioner of Taxation (2003) 136 FLR 441 at [51]
Hope v Bathurst City Council (1980) 144 LR 1 at 8
Ell v Commissioner of Taxation [2006] ATC 4098 at [111]
REASONS FOR DECISION
28 September 2007 Mr A Sweidan, Senior Member BACKGROUND
1. The applicant is seeking a review of the respondent’s decision to disallow objections to amended assessments relating to the income years 2001 to 2003.
2. The applicant was audited and adjustments were made to the rental losses claimed in respect of an apartment owned by the applicant in Sydney ("the apartment") by disallowing amounts of $190,432 in 2001, $164,181 in 2002 and $48,318 in 2003 claimed as deductions in respect of expenses related to the apartment.
3. The respondent allowed the expenses only on a pro rata basis based on the number of days that it was considered that the apartment was used to gain assessable rental income, being 30 days in each of 2001 and 2002 and therefore 8.2% of the expenses were allowed as deductions in those years. In 2003 it was considered that the apartment was used for gaining income from rental on 8 of the 91 days that the apartment was owned by the applicant in that year and deductions were allowed for 8.8% of the expenses. However, arithmetical errors were made when calculating the adjustment in 2001 and 2003 and it appears that the correct figures should have been $189,400 in 2001 and $48,003 in 2003.
ISSUES
4. In essence the issue is whether the applicant is entitled to any further deductions in respect of the expenses relating to the apartment for the relevant years.
5. The applicant has formulated the issues as follows:
6. “Whether the amount of $190,432 (or some lesser amount), being part of the expenditure incurred, depreciation and capital works deductions claimed in relation to the apartment that was disallowed as a deduction by the respondent in the year ended 30 June 2001, was incurred by the applicant in gaining or producing his assessable income and whether the apartment was used or was ready for use for this purpose.
7. Whether the amount of $164,181 (or some lesser amount), being part of the expenditure incurred, depreciation and capital works deductions claimed in relation to the apartment that was disallowed as a deduction by the respondent in the year ended 30 June 2002, was incurred by the applicant in gaining or producing his assessable income and whether the apartment was used or was ready for use for this purpose.
8. Whether the amount of $48,312 (or some lesser amount), being part of the expenditure incurred, depreciation and capital works deductions claimed in relation to the apartment that was disallowed as a deduction by the respondent in the year ended 30 June 2003, was incurred by the applicant in gaining or producing his assessable income and whether the apartment was used or was ready for use for this purpose.
9. Whether the expenses incurred in relation to the apartment were incurred in gaining or producing the applicant's assessable income.
10. Whether the apartment was used or was ready for use during the relevant period for the purposes of gaining or producing the applicant’s assessable income.
11. Whether the deductions allowed by the respondent in each of the years of income (being an apportionment of the total deductions claimed by the applicant in relation to the apartment) were correct or should be increased.”
ONUS
12. s 14ZZK of the Taxation Administration Act 1953 limits the applicant to the grounds stated in his objection and places the burden on him of proving that his assessment is excessive. The Tribunal notes that there is no issue as to the quantum of the expenses.
APPLICANT’S EVIDENCE
13. The applicant purchased the apartment in Sydney in March 2000. The Tribunal finds on the evidence before it that the reasons that he has given for buying the apartment appear to have changed over time, as set out below.
14. Originally he claimed that the apartment was purchased as an investment. He stated this in an interview with the respondent’s officers and he repeated this in a letter that he signed following that meeting. The applicant stated in the third paragraph of the letter which appears on page 120 of the T-documents:
"As explained in our meeting, the property was purchased by Mr Fogarty as a long term investment property."
15. In the same letter, the applicant stated in respect of the arrangements in respect of the apartment:
"Rent was paid for use of the property by LTC which in turn billed ERG. ERG's Board approved the use of the property at rental rates on a per night basis equivalent to hotel accommodation in Sydney."
(LTC and ERG are entities with which the applicant was associated and from which he derived income directly or indirectly.)
16. He also stated in an attachment to that letter at page 122:
"The unit was acquired on 24 March 2000 for $2.5 million and furnished so that it could be rented as a fully furnished unit"
17. It was stated further down that page:
"It was intended that the property would be leased out to third parties over periods where it was unlikely that LTC could utilise the accommodation. However, the strata body requirements for the building were that the minimum lease permitted to a third party was six months."
18. In his evidence to the Tribunal the applicant claimed that he only became aware of this restriction after purchasing the apartment.
19. In his Statement of Facts and Contentions the applicant states that a real estate agent advised him that he would be able to get approximately $2-3000 per month in rent for the apartment. This was corrected during the hearing to “per week”.
20. At paragraph 29 of his Statement of Facts, Issues and Contentions (SFIC), the applicant states that his intention in acquiring the apartment was to use it in the course of carrying out his business activities for ERG and LTC and, if he was not using it, to rent it out.
21. The Tribunal also notes that at paragraph 17 of his SFIC, the applicant says that if ERG was successful in obtaining a contract for the ticketing system in Sydney for which it had lodged a tender he would be spending more than 50% of his time in Sydney.
22. Paragraph 19 says:
"The applicant decided to purchase an apartment in which to stay while he was in Sydney, rather than in hotels. He required accommodation which was available at short notice, central, close to ERG's offices and service providers, somewhere private where he could hold meetings, entertain etc and large enough to provide the applicant with a separate office from which to work."
23. In the fifth paragraph of his Outline of Evidence, the applicant states:
"I set aside one of the bedrooms as an office and outfitted it with a desk, filing cabinet and fax/printer. I equipped it with broad band for use of my computer and I stored confidential documents, computer paper and other office supplies…"
24. The applicant also stated that he used the apartment for meetings and work for Lakes Folly (which was the vineyard purchased by his entity LTC Management through two subsidiary companies in June 2000).
25. Apart from the restriction that the apartment could not be rented out for less than 6 months, the Tribunal finds it unlikely that the applicant ever in fact contemplated renting it out as on his evidence he set it up for his own needs including storage of confidential documents.
26. It is clear from the applicant’s evidence that it was likely that that the apartment would be vacant for most of the time each year and, in the Tribunal’s view, it is highly unlikely that there was any real intention to use the apartment for the gaining of rental income by renting it to third parties.
27. The Tribunal accordingly does not accept that the applicant purchased the apartment as an investment for the purposes of gaining rental income.
28. The Tribunal notes that the gross rent received was $6,000 in the 2001 year, $6,300 in the 2002 year and $2,400 in the 2003 year; whereas the claimed expenses were $206,318 in 2001, $178,847 in 2002 and $52,635 in 2003.
29. The Tribunal also finds that the applicant's claim that the apartment was purchased to use for work related purposes is not supported by the facts, having regard to the following factors ie:
· The evidence was that most of the work in preparation for filing the ERG tender in relation to the electronic ticketing system for Sydney had already been completed before the apartment was purchased.
· The NSW Government had not decided who was to be awarded the tender at the time of purchasing the apartment.
· The applicant was the Chief Executive Officer of ERG Limited and had company office and storage space available to him in Sydney.
· ERG was obliged under the contracts with the applicant and his entities to pay any reasonable documented expenses so if the applicant needed to travel to Sydney on ERG business, then ERG would have paid his travel expenses including his accommodation.
· LTC had not acquired Lakes Folly vineyard at the time of purchasing the apartment.
30. The evidence shows that the applicant spent relatively little time in Sydney. The schedule at page 269 of the T-documents shows that the applicant went to Sydney 21 times during the 2001 to 2003 years but in the same period, he went to Melbourne 24 times and Europe 22 times on business trips.
31. It is also noteworthy that the applicant purchased an apartment in Sydney at a time when ERG only had a chance of winning the tender but did not buy one in Melbourne when ERG won the tender there.
32. In his Outline of Evidence, the applicant stated:
"I do not deny that one of the reasons for which I purchased the apartment was that I considered it a good investment for me and ultimately my family, as I thought that it was in a good location and had good prospects for growth."
33. The Tribunal is of the view that the applicant’s evidence overall shows that the applicant purchased the apartment with the dominant intention of holding it for a period and then selling it at a profit, and that the balance of probabilities supports this view.
34. In this regard the Tribunal notes the evidence that the applicant took out a three year interest only loan, the apartment was purchased shortly prior to the Olympics being held in Sydney, the applicant considered that the property had good potential for growth and the applicant incurred a large amount of costs in holding the property, as well as the apparent lack of business use of the apartment all of which supports the view of the Tribunal.
35. However even if the Tribunal’s view as to the applicant’s purpose is wrong the Tribunal must still determine whether on the evidence before it the applicant is entitled to the deductions claimed or any part thereof on an apportionment basis under either the first or second limbs of s.8-1 of the Income Tax Assessment Act 1997 (“the Act”).
RELEVANT LAW
36. s.8-1 of the Act provides:
"8-1(1)You can deduct from your assessable income any loss or outgoing to the extent that:
(a) it is incurred in gaining or producing your assessable income; or
(bit is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income.
8-1(2)However, you cannot deduct a loss or outgoing under this section to the extent that:
(a) it is a loss or outgoing of capital, or of a capital nature; or
(b) it is a loss or outgoing of a private or domestic nature; or
(c)it is incurred in relation to gaining or producing your exempt income or your non-assessable non-exempt income; or
(d) a provision of the Act prevents you from deducting it."
37. The phrase “to the extent that” clearly requires an apportionment of expenses between those which are deductible and those which are not.
38. Similarly, the Act also provides for the apportionment of deductions for repairs, borrowing expenses, capital allowances and capital works
39. In the Tribunal’s view it is clear that the expenses incurred by the applicant should be apportioned, because:
(a) the applicant has admitted that at least one of the :reasons that he purchased the apartment was to make a capital gain; and
(b) the evidence shows that the apartment was only partially used by the applicant for the purpose of gaining assessable income by way of rental from his associated entities which was much less than the expenses related to the apartment; and
(c) there is no evidence that the apartment was used or available for use at any relevant time by anyone other than the applicant and persons or entities associated with him.
CASE LAW
40. In Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation[1949] HCA 15; (1949) 78 CLR 47) the High Court stated:
"Section 51(1) adopts a principle that will allow of the dissection and even apportionment of losses and outgoings. It does this by providing for the deduction of losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income. In the second place it introduces an alternative ground or head of deduction; it allows the deduction of all losses and outgoings to the extent to which they are necessarily incurred in carrying on a business for the purpose of gaining or producing such income."
41. Further the High Court stated:
"...the provision contained in s51(1), as has been already said, contemplates apportionment. The question what expenditure is incurred in gaining or producing assessable income is reduced to a question of fact when once the legal standard or criterion is ascertained and understood. This is particularly true when the problem is to apportion outgoings which have a double aspect, outgoings that are in part attributable to the gaining of assessable income and in part to some other end or activity. It is perhaps desirable to remark that there are at least two kinds of items of expenditure that require apportionment. One kind consists in undivided items of expenditure in respect of things or services of which distinct and severable parts are devoted to gaining or producing assessable income and distinct and severable parts to some other cause. In such cases it may be possible to divide the expenditure in accordance with the applications which have been made of the things or services. The other kind of apportionable items consists in those involving a single outlay or charge which serves both objects indifferently......With the latter kind there must be some fair and reasonable assessment of the extent of the relation of the outlay to assessable income."
42. Generally, in determining whether expenses are “incurred in gaining or producing assessable income”, the essential character of the outgoing must be examined. The High Court in Fletcher v Federal Commissioner of Taxation 173 CLR 1 said:
"The question whether an outgoing was, for the purposes of s 51(1), wholly or partly 'incurred in gaining or producing the assessable income' is a question of characterization. The relationship between the outgoing and the assessable income must be such as to impart to the outgoing the character of an outgoing of the relevant kind. It has been pointed out on many occasions in the cases that an outgoing will not properly be characterized as having been incurred in gaining or producing assessable income unless it was "incidental and relevant to that end. It has also been said that the test of deductibility under the first limb of s 51(1) is that "it is both sufficient and necessary that the occasion of the loss or outgoing should be found in whatever is productive of the assessable income or, if none be produced, would be expected to produce assessable income". So to say is not, however, to exclude the motive of the taxpayer in making the outgoing as a possibly relevant factor in characterization for the purposes of the first limb of s 51(1). At least in a case where the outgoing has been voluntarily incurred, the end which the taxpayer subjectively had in view in incurring it may, depending upon the circumstances of the particular case, constitute an element, and possibly the decisive element, in characterization of either the whole or part of the outgoing for the purposes of the sub-section. In that regard and in the context of the sub-section's clear contemplation of apportionment, statements in the cases to the effect that it is sufficient for the purposes of s 51(1) that the production of assessable income is "the occasion" of the outgoing or that the outgoing is a "cost of a step taken in the process of gaining or producing income" are to be understood as referring to a genuine and not colourable relationship between the whole of the expenditure and the production of such income.
Nonetheless, it is commonly possible to characterize an outgoing as being wholly of the kind referred to in the first limb of s 51(1) without any need to refer to the taxpayer's subjective thought processes. That is ordinarily so in a case where the outgoing gives rise to the receipt of a larger amount of assessable income. In such a case, the characterization of the particular outgoing as wholly of a kind referred to in s 51(1) will ordinarily not be affected by considerations of the taxpayer's subjective motivation. If, for example, a particular item of assessable income can be earned by making a lesser outgoing in one of two possible ways, one of which is a loss or outgoing of the kind described in s 51(1) and the other of which is not, it will ordinarily be irrelevant that the taxpayer's choice of the method which was tax deductible was motivated by taxation considerations or that the non-deductible outgoing would have been less than the deductible one. In such a case, the objective relationship between the outgoing actually made and the greater amount of assessable income actually earned suffices, without more, to characterize the whole outgoing as one which was incurred in gaining or producing assessable income. If the outgoing can properly be wholly so characterized, it "is not for the Court or the commissioner to say how much a taxpayer ought to spend in obtaining his income, but only how much he has spent.
The position may, however, well be different in a case where no relevant assessable income can be identified or where the relevant assessable income is less than the amount of the outgoing. Even in a case where some assessable income is derived as a result of the outgoing, the disproportion between the detriment of the outgoing and the benefit of the income may give rise to a need to resolve the problem of characterization of the outgoing for the purposes of the sub-section by a weighing of the various aspects of the whole set of circumstances, including direct and indirect objects and advantages which the taxpayer sought in making the outgoing. Where that is so, it is a "commonsense" or "practical" weighing of all the factors which must provide the ultimate answer. If, upon consideration of all those factors, it appears that, notwithstanding the disproportion between outgoing and income, the whole outgoing is properly to be characterized as genuinely and not colourably incurred in gaining or producing assessable income, the entire outgoing will fall within the first limb of s 51(1) unless it is either somehow excluded by the exception of "outgoings of capital, or of a capital, private or domestic nature" or "incurred in relation to the gaining or production of exempt income". If, however, that consideration reveals that the disproportion between outgoing and relevant assessable income is essentially to be explained by reference to the independent pursuit of some other objective and that part only of the outgoing can be characterized by reference to the actual or expected production of assessable income, apportionment of the outgoing between the pursuit of assessable income and the pursuit of that other objective will be necessary."(page 17-19)
43. In Inglis v Federal Commissioner of Taxation 87 ATC 2037 the taxpayer owned a holiday property which was mainly let during school holidays and Easter. The property was advertised by word of mouth and in the Canberra Times. It was rented for between 5-12 weeks per year in the relevant years. The AAT held that the taxpayer was entitled to deductions for expenses based only on the period the property was let. Deputy President Todd found:
"While it is true that the property was vacant and theoretically available at all times, it cannot be said to have been truly available for letting unless some perceptible effort was being made to obtain tenants in respect to those times, or at least some step taken to draw its availability to the attention of the public, the classic method of so doing being the placing of it with an agent. The sufficiency of the steps taken is a question of fact to be decided in each case, but in this case, considering the irregular advertising and the restriction of the opportunity of renting to Canberrans, there has in my view been insufficient done for it to be able to be said that the property was available for letting for periods adequate to support the claims made." (2049 [71]).
44. Similarly, in Case P116 87 ATC 2037 a property was let for 16 days in the relevant year through ‘word of mouth’ by the taxpayer and his wife to people they knew. The Board rejected the submission that the property was available for letting for half of the year.
45. In Case R118 84 ATC 773 the taxpayer was a specialist medical practitioner. She purchased a holiday house at a beach resort as an investment and to earn money. During the relevant year the taxpayer used the house herself for a total of five weeks, let it to a medical practitioner for three weeks and let it to a neighbour for two weeks. The taxpayer claimed deductions for expenses, repair costs and depreciation connected with the house, reduced by 5/52 to account for private use. The house was not let by agents, but by the taxpayer. It was made known only by ‘word of mouth’. At no time did the taxpayer refuse to let the house because of her own use of it.
46. The Board of Review found that:
"while the house was available for letting at any time, there was a difference between investing in a house that one was prepared to let and investing in a house for letting," [emphasis added] at 775 [3]
"it was not possible to accept that the sole purpose of the taxpayer in relation to the house was the earning of assessable income," and
"the income earning was a relatively minor or incidental object." at 777 [6].
47. By contrast, in Case V133 88 ATC 847 the evidence showed that the main purpose of an investment in a holiday home was the earning of income. In that case, the taxpayer applicant succeeded in being granted entitlement to part of the property expenses on the basis of the number of nights the holiday/rental property was available for rent. That basis excluded only that part of the property expenses that were referrable to the period the property was actually occupied by the applicant as holiday accommodation, rather than the basis of the period the property was actually tenanted. The primary reason for that finding was the Tribunal’s finding that the applicant presented "strong and verifiable evidence" of a definite purpose. A major component of that evidence was the extensive nature of the advertising undertaken (including daily and specialist newspapers, and listing with a number of real estate agents) by the applicant over a lengthy period which cost around $2000. The Tribunal noted:
"In Case R118 the evidence of the taxpayer led Dr Beck (with whom the majority agreed) to the view that the way in which the taxpayer went about earning income for her investment showed that income earning was a ‘relatively minor or incidental object’. In my view, the present facts call for the opposite conclusion … This is one of those exceptional cases where strong and verifiable evidence is presented for a definite purpose. It is a case where the applicants are believable and where their evidence is supported and corroborated in all relevant details by objective evidence. The Ruling to which I have referred recognises that individual cases will give results different from those in the mainstream. In my view, this is one of those individual cases." (at 851 at [17] – [18])
48. In Temperley v Commissioner of Taxation [2005] AATA 208 the Tribunal adopted the words of the Board in Case R118 84 ATC 773 and found it was “a situation of investment in a unit Mr Temperly is prepared to let rather than investment in a unit for letting” at [16]. The Tribunal stated that “Case V133 does not assist Mr Temperly. I do not have before me the sort of evidence which led the Tribunal to the decision it made in that case.” At [18]. The Tribunal is of a similar view in this matter.
49. As noted earlier, the second limb of section 8-1 of the ITAA97 allows for deductions to be made of any loss or outgoing to the extent that it is necessarily incurred in carrying on a business for the purpose of gaining or producing of assessable income.
TRIBUNAL’S FINDINGS
50. The Tribunal finds that the applicant was not carrying on a business. While his entity LTC was carrying on business the Tribunal notes that the applicant's income tax returns show income from salary, interest, dividends, trust distributions and capital gains but no income from carrying on business.
51. However, it has been noted that the second limb of s.8-1 adds little to the first limb Ronpibon Tin No Liability v Federal Commissioner of Taxation (1949) 78 CLR 47 at 56, cited with approval in Spassked Pty Ltd v Commissioner of Taxation (2003) 136 FLR 441 at [51].
52. The phrase “carrying on a business” denotes “activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”. Hope v Bathurst City Council (1980) 144 LR 1 at 8, cited with approval in Ell v Commissioner of Taxation [2006] ATC 4098 at [111].
53. In Ell v Commissioner of Taxation [2006] ATC 4098 Emmet J said:
"Provided that an activity said to constitute carrying on business is engaged in for the purpose of profit on a continuous and repetitive basis, that activity may constitute the carrying on of business (see Hope v Bathurst City Council (1980) 144 CLR 1).
If there were no real expectation of a profit from engaging in a particular activity, there will be real doubt as to whether engaging in that activity can be said to be the carrying on of a business. Where the expenses and outgoings of an activity are disproportionate to any income that might reasonably have been expected from engaging in the activity that involved incurring those expenses and outgoings, it may be legitimate to draw an inference that the expenses and outgoings were not incurred in gaining or producing the relevant assessable income but were incurred for some other purpose.
Where expenses and outgoings claimed as deductions are disproportionate to the assessable income produced, subjective factors, including the direct and indirect objects of a taxpayer, may become determinative (see Fletcher v FCT (1991) 173 CLR 1 at 17-19). Where an expense or outgoing claimed as an expense or outgoing of a business is disproportionate to any assessable income that may be gained, it will not be as easy to conclude that the expense or outgoing was incurred in gaining or producing that income (see Spassked Pty Ltd v Commissioner of Taxation (2003) 136 FCR 441 at [64])." Ell v Commissioner of Taxation [2006] ATC 4098 at [112]-[113.]
54. In every case like this, the critical issue is the essential characterisation of the outgoing, based on the evidence.
55. Here, the evidence shows that the applicant did very little if anything to endeavour to gain income from rent. The only evidence is that the applicant received small amounts of rent each year from his associated entities and incurred large amounts of costs in holding and maintaining the apartment resulting as noted above in a very large disproportion between the income and the expenses.
56. The Tribunal also notes that the applicant also stated in his letter at page 120 of the T-documents that the amount paid by ERG for the applicant’s use of the apartment while in Sydney on ERG business was equivalent to the cost of hotel accommodation in Sydney. It appears that no regard was had to the commercial rental value of the apartment.
57. It is clear that a weighing of all of the above factors dictates that the expenses should be apportioned.
58. The Tribunal notes that while the applicant claimed that he used the apartment "in the course of carrying out his business activities for ERG and LTC" this does not mean that the applicant is entitled to the all of the deductions claimed.
59. ERG and LTC were carrying on business but the applicant was only an employee of LTC and was the Chief Executive Officer of ERG. On the evidence he himself was not personally carrying on any business.
60. The apartment was in fact a residence. The fact that the applicant chose to use part of the residence to conduct some of his employment related activities does not change the essential character of the apartment or the costs in holding and maintaining it.
61. In the Tribunal’s opinion there is insufficient nexus to the gaining of assessable income to treat the expenses as being incurred in gaining the applicant’s employment income.
62. Clearly, the fact that the applicant may have received income from ERG and LTC in the form of dividends or bonuses or other distributions does not give rise to the deductibility of the expenses. There is also in the Tribunal’s view insufficient nexus between the expenses incurred in holding and maintaining the apartment and any income received by the applicant in the form of wages, bonuses or dividends.
63. In the Tribunal’s view the applicant has failed to show that the method of apportionment used by the respondent is not a fair and reasonable basis of apportionment having regard to the quantum of rental income received.
64. The applicant has therefore not discharged the burden that is placed on him by section 14ZZK of the Taxation Administration Act of proving that the assessments are excessive.
DECISION
65. The decisions under review are affirmed and the matter is remitted to the respondent for the issue of further amended assessments to correct the arithmetical errors in 2001 and 2003.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ..............[Sgd Ms C Skinner]....................................
AssociateDate of Hearing 1 May 2007
Date of Decision 28 September 2007
Counsel for the Applicant Mr J Pickering
Solicitor for the Applicant Freehills
Solicitor for the Respondent Mr F Maloney
Australian Taxation Office
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