GHP 104 160 689 Pty Ltd and Commissioner of Taxation
[2014] AATA 869
•24 November 2014
[2014] AATA 869
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4618, 4619, 4674
Re
GHP 104 160 689 Pty Ltd
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal President D Kerr
Date 24 November 2014 Place Sydney The amounts to be substituted for the Commissioner’s assessments in each income tax year the subject of these proceedings are as follows:
Year Tax Shortfall 2003 Nil 2004 Nil 2005 $697,582 2006 $1,295,052 2007 $138,426 TOTAL $2,131,060 The Tribunal varies the amount of the Shortfall Interest Charge (SIC) imposed on the Applicant as follows:
a. Remit SIC for the period 19 July 2008 to 3 September 2008 in full.
b. Remit SIC for the period 29 May 2009 to 7 July 2009 in full.
c. Remit SIC for the period 11 July 2009 to 15 February 2010 in full.
d. Remit SIC for the period 15 February 2010 to 18 June 2010 in full.
e. Remit the remaining SIC imposed on the Applicant to the base rate.
........................................................................
President D Kerr
Catchwords
TAXATION AND REVENUE – income taxation – remission of shortfall interest charge – shortfall quantum agreed by parties – orders made in terms of short minutes of orders submitted by consent
Legislation
Taxation Administration Act 1953 (Cth) Schedule 1 s 280-100
REASONS FOR DECISION
President D Kerr
24 November 2014
The Tribunal on 29 July 2014 gave its reasons for decision on the principal issues in these proceedings: GHP 104 160 689 Pty Ltd and Commissioner of Taxation [2014] AATA 515. In very short summary, the Tribunal varied the decisions of the respondent Commissioner relating to the applicant’s entitlement to enhanced tax deductibility for R&D expenditure incurred in respect of plant trials at the applicant’s copper and lead concentrator and copper smelter at Mt Isa. These reasons for decision should be read in conjunction with the reasons of 29 July 2014.
By agreement of the parties, submissions on and determination of the contingent issue of shortfall interest charge (if any) under s 280-100 of Schedule 1 of the Taxation Administration Act 1953 (Cth) were deferred until after the Tribunal’s decision on the principal issues. The parties also undertook to calculate the precise amounts (if any) to be substituted for the Commissioner’s assessments rather than burdening the Tribunal with that task. The Tribunal again expresses its gratitude to counsel and their instructors for their practical approach to these proceedings.
In accordance with the directions of the Tribunal, following the publication of the Tribunal’s 29 July 2014 decision the parties filed on 19 September 2014 a joint minute of the agreed quantum of the tax shortfalls arising in each tax year. The Tribunal did not at that point order that the Commissioner’s decision be varied to reflect the agreed tax shortfalls, preferring instead to deal with the remaining issue of remission of the shortfall interest charge and then make one set of orders finalising all outstanding issues in the proceedings. The Tribunal noted that the parties were in agreement as to the tax shortfalls arising as a consequence of the Tribunal’s decision dated 29 July 2014 and noted the amounts arising in each income tax year the subject of the proceedings. Those were as follows:
Year Tax Shortfall 2003 Nil (due to tax losses) 2004 Nil 2005 $697,582 2006 $1,295,052 2007 $138,426 TOTAL $2,131,060
On 29 September 2014, having noted the amounts of the tax shortfalls, the Tribunal invited the applicant to make any written submissions on remission of the shortfall interest charge by 27 October 2014, with the respondent to file written submission by 10 November 2014. Following a request by the applicant, the Tribunal granted leave for the applicant to reply to the respondent’s submissions by 17 November 2014.
The applicant on 27 October 2014 duly filed its written submissions on shortfall interest charge. On 10 November 2014, the solicitors for the respondent notified the Tribunal that the parties had settled ‘in principle’ the issue of the shortfall interest charge and requested an additional 48 hours for the respondent to file its submissions, in order to allow the parties to execute short minutes of order and file them in the Tribunal without the respondent breaching the direction for filing of its submissions.
The Tribunal granted the extension of time. As foreshadowed by the respondent’s solicitors, on 11 November 2014 the parties filed short minutes of order seeking that the Tribunal make orders in the following terms:
The Tribunal, by consent, notes the exercise of discretion by the Respondent to vary the amount of the Shortfall Interest Charge (SIC) imposed on the Applicant as follows:
a. Remit SIC for the period 19 July 2008 to 3 September 2008 in full.
b. Remit SIC for the period 29 May 2009 to 7 July 2009 in full.
c. Remit SIC for the period 11 July 2009 to 15 February 2010 in full.
d. Remit SIC for the period 15 February 2010 to 18 June 2010 in full.
e. Remit the remaining SIC imposed on the Applicant to the base rate.
I directed my associate to communicate the following to the parties:
The President has reviewed the minutes of order emailed today and notes that the parties appear to have resolved between themselves the remaining issues in the proceedings.
In order that the Tribunal is able to complete its statutory task, the parties are requested to provide a brief account of the circumstances (in so far as these can be disclosed to the Tribunal) that have led to submission of these minutes of order, and confirmation that the Applicant no longer seeks remission of SIC other than as set out in the minutes of order.
The solicitor for the applicant responded:
The parties advise that they had resolved all disputes in relation to the matters which were the subject of the AAT proceedings No 4618, 4619 and 4674 and, as a part of that resolution, reached an agreement on SIC as outlined in the short minutes of order provided. The Applicant confirms that it does not seek remission of SIC other than as set out in the minutes of order.
We also advise that the parties have agreed to discontinue the appeal of the Tribunal’s decision.
It is clear from the correspondence and the terms of the minutes of orders that the parties have settled the remaining issues in the proceeding between themselves, and seek by consent to have the Tribunal make orders finalising the proceedings. The minutes of orders on their face do not, however, seek that the Tribunal vary the decision of the respondent – rather they seek that the Tribunal ‘note’ a decision of the Commissioner. It is not clear that the Tribunal has any power to ‘note’ a decision of the respondent. Nor is it clear that the Commissioner has power to vary a decision before the Tribunal on review. It is not, however, necessary for any of these matters to be explored further, given that the parties are in substance seeking to have the Tribunal make orders determining the shortfall interest charge to be applied by consent. The Tribunal is satisfied that the position advanced by the applicant in its submissions on the shortfall interest charge, and the position taken by the respondent in its correspondence to the Tribunal on this issue, were reasonably arguable. The outcome sought by the parties is consistent with the Tribunal’s reasons and the Tribunal is satisfied that a decision in those terms is both lawfully open to be made and correct. Accordingly to complete these proceedings the Tribunal will make orders to dispose of the entirety of the matter.
In respect of the remission of the shortfall interest charge, the Tribunal remits the shortfall interest charge in full for the periods 19 July 2008 to 3 September 2008, 29 May 2009 to 7 July 2009, 11 July 2009 to 15 February 2010, and 15 February 2010 to 18 June 2010 and remits the remaining shortfall interest charge imposed on the applicant to the base rate.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of President D Kerr ........................................................................
Associate
Dated 24 November 2014
Date(s) of hearing 10-14, 18-19, 27 February; 13-14 March 2014 Date final submissions received 12 November 2014 Counsel for the Applicant Mr JW de Wijn QC and Ms CA Burnett Solicitors for the Applicant King & Wood Mallesons Counsel for the Respondent Mr S Lloyd SC and Ms M Hirschhorn Solicitors for the Respondent Maddocks Lawyers
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