Hadfield Finacne Pty Ltd v Commissioner of Taxation

[1989] FCA 727

JUDGMENT No. ... 721 g7 ........ ... Y ........ ...-.

CATCHWORDS

INCOME TAX - assessment - review by the Adminlstrat~ve Appeals Tribunal - the Tribunal havlng power to review only those decis~ons of the Commissioner which can be said to form part of the process of assessment - whether the exerclse or non-exercise of the Commissioner's discretion to allow an additional period for distribution under s.105AA of the Act forms part of such an assessment so as to be reviewable by the Tribunal.

Income Tax Assessment Act 1936, s ~ . 6 , 1 0 4 , 1 0 5 A , 1 O 5 A A , 1 6 6 , 1 7 0 ,

17/,185,186,187,189

Administrative Appeals Trlbunal Act 1975 ss.25(4),43(1)

Intervest Corporation Pty Ltd v The Federal Commiss~oner of

Taxation and the Deputy Commissioner of Taxation

(1984) 3 FCR 59 affirmed.

HADFIELD FINANCE PTY LIMITED V COMMISSIONER OF TAXATION

21 April 1988

No. VG 251 of 1987

Woodward, Jenkinson & Foster JJ
Melbourne

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 251 of 1987
)
GENERAL DIVISION	)

ON APPEAL FROM THE TAXATION APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :  HADFIELD FINANCE PTY.
LIMITED

Appllcant

AND :  COMMISSIONER OF TAXATION
Respondent

MINUTES OF ORDER

COURT: Woodward, Jenklnson and Foster JJ.
DATE: 21 Aprll 1988

PLACE: Melbourne

THE COURT ORDERS THAT:

1.   The appeal be dlsmlssed.

2.    The Appllcant pay the Respondent's costs.

(NOTE: Settlement and entry of orders is dealt wlth by 0.36

of the Federal Court Rules).

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) NO. VG 251 of 1987
)
GENERAL DIVISION	)

ON APPEAL FROM THE TAXATION APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  HADFIELD FINANCE PTY.
LIMITED

Applicant

AND :  COMMISSIONER OF TAXATION
Respondent

COURT: woodward, Jenklnson and Foster JJ.
DATE: 21 Aprll 1988

PLACE: Melbourne

REASONS FOR JUDGMENT

WOODWARD J.

I agree, for the reasons which he gives, wlth the decision of Foster J and the orders he proposes.

I certify that this page 1s a
true and accurate copy of the
Reasons for Judgment hereln of

The Hon Mr Justlce Woodward

Associate

Dated: 21 April 1988

IN THE FEDERAL COURT OF AUSTIULIA	)
VICTORIA DISTRICT REGISTRY	) No. VG251 of 1387
GENERAL DIVISION	)

: - B HADFIELD FINANCC PTY.
LIMITED

Applicant

m: COMMISSIONER OF TAXATION

Respondent

JUDGES	:	Woodward, Jenkinson and Foster JJ.
PLACE	:	Melbourne
W:	21 Aprll, 1988

REASONS FOR JUDGMENT

JENKINSON J .

I am of oplnion that the appeal should be drsmlssed with

costs, for the reasons grven by Foster J.

I certify that this page is a true

copy of the Reasons for Judgment hereln of the Honourable Mr. Justlce Jenklnson.

Assoclate

Dated: 21 Aprll, 1988

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) NO. VG 251 of 1987
)
GENERAL DIVISION	)

ON APPEAL FROM THE TAXATION APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  HADFIELD FINANCE PTY.
LIMITED

Applicant

AND :  COMMISSIONER OF TAXATION
Xespondent

COURT: Woodward, Jenkinson and Foster JJ

E: 21 Aprll 1988

PLACE: Melbourne

REASONS FOR JUDGMENT

FOSTER J. This is an appeal from a decision of the Taxation Appeals Divlsion of the Adminrstratrve Appeals Trlbunal ("the

Tribunal affirmed the decision of the Respondent disallowing,	Tribunal"), given on the 28th August, 1987 at Melbourne. The
under S. 186 of the Income Tax Assessment Act, 1936 ("the Act"), an objection lodged by the Appllcant company under S. 185 of the Act. The oblectlon was against an amended assessment made by the Respondent on the 19th September, 1985. Under that assessment, the Appllcant became liable to pay an amount of tax under Division 7 of Part I11 of the ~ c t for the 1981 tax year. The assessment was made pursuant to S. 104 of the Act on the basls that the Applicant company had not in that year been deemed to have made a sufficient distribution pursuant to the provrsions of S . 105A of the Act.
The Applicant had, pursuant to S. 187 of the Act, requested the Respondent to refer the declslon on the
objection to a Taxatlon Board of Review. The matter was
referred in April 1986 but the hearlng before the Board had not commenced before the 30th June, 1986. Consequently, pursuant to the Taxation Board of Review (Transfer of Jurisdiction) Act 1986, the reference was deemed to be an application to the Admlnistratlve Appeals Trlbunal for revlew of the respondent's decision disallowing the objection.
Prior to the issue of the amended assessment, the Applicant had made a request to the Respondent pursuant to S. 105AA of the Act for a determination of a further period in which it might pay dividends for the purpose of making a
income. sufficient distribution in relation to the 1981 year of
This request was made by letter of the 19th October, 1984, settlng out grounds upon w h ~ c h it was submitted that the request should be granted. On the 3rd

September, 1985 the respondent repl~ed, advising that the request was refused and that:-

"Therefore it 1s proposed to ralse a Dlvision V11 assessment on $122,459 undlstrrbuted In respect of the year ended 31st July, 1981."

The amended assessment was thereafter made on the 19th
September, 1985.

One of the grounds of the Applicant's objectron was that the Respondent's refusal to allow an addrtlonal period under S. 105AA of the Act was erroneous and should be reversed. It appears that rn February, 1987 a preliminary question was argued before the Tribunal as to whether the Trlbunal had power to revlew the Respondent's decision under

S. lO5AA. On the 24th June, 1987 the Trlbunal held that rt

had no power to do so and gave its reasons for thrs decision. It was conceded on behalf of the Appllcant that if the Respondent's refusal to allow the further period for the maklng of a sufficient distribution could not be reviewed, then the assessment could not otherw~se be attacked. The Tribunal accordingly afflrmed the Respondent's decision disallowrng the objection under S. 186 of the Act.

The Appllcant, by its appeal to thrs Court, seeks

that the Tribunal's declslon be set aslde and that the
proceedlngs be remitted to it for further hearlng acco~dlng
to law, on the grounds that the Trrbunal erred in law ln
holdrng that rt was not empowered to revlew the Respondent's
decision under S. 105AA (l)(a) of the Act and in holdlng that
the decision of the Respondent refusing the request did not
form part of the assessment of the tax payable by the
Applicant under Division 7 of Part 111 of the Act.

These two questions of law thus ralsed are rnter-dependent as is demonstrated by a revrew of the relevant sections of the Act.

Section 166 of the Act provides:-

"From the returns, and from any other

information in his possession, or from any one

or more of these sources, the Commissioner shall make an assessment of the amount of the taxable income of any taxpayer, and of the tax payable thereon."

Section 170(1) provides:-

"The Commlssioner may, sublect to this section, at any tlme amend any assessment by making such alterations thereln or additions thereto as he thinks necessary, notwithstandrng that tax may have been pald in respect of the assessment."

"Assessment" 1s defined in S. 6 as meaning:-

"(a) the ascertainment of the amount of taxable Income and of the tax payable thereon;

0	r
(b) the ascertainment of the amount of additional tax payable under a provision of

Part VII;"

A taxpayer who is dissatisfied with an assessment

"withln slxty days after servlce of the notlce of assessment, lodge with the Commlssioner an objection in writrng against the assessment stating fully and in detail the grounds on which he relies." (Section 185).

By S. 186 the Commissioner considers the objection and elther disallows lt or allows it either wholly or in part. If the taxpayer is dlssatlsfied with this decision, he may, pursuant to S. 187, request the Commissloner (inter alia) to refer the decisron to the Tribunal, a request with whlch the Commissloner is required to comply (S. 189(1)).

By S. 189(2) the referral of the dec~sion upon the

objection to the Tribunal shall, for the purposes of the Administrative Appeals Tribunal Act 1975, be deemed to constitute the making by the taxpayer of application to the Tribunal for review of the declslon. By S. 190, on a revlew before the Tribunal, the taxpayer, unless an order to the contrary is made, is llmlted to the grounds stated in the objection and has the burden of provlng that the assessment is excessive.

The Tribunal then deals with the referred objection under S. 2 5 ( 4 ) of the Administrative Appeals Tribunal Act. By S. 43(1) of that Act, it may, for the purpose of reviewing the decision of the Respondent, exercise all the powers and discretions conferred upon hlm by the Act.

It is thus plarn that the Tribunal under these sections has power to review on the merits only those decisions of the Respondent which can be said to form part of the process of "assessment" under the Act, i.e. the ascertainment of the amount of the taxpayer's taxable income and of the tax payable thereon.

The Tribunal, in the present case, held that the

Respondent's decisron to refuse the Applicant's request under

S. 105AA for the determrnation of a further period for the

making of a sufficient dlstributlon was not part of the assessment of the Applicant to pay addltlonal tax under S. 104 for the relevant years of income, and that it, therefore, had no power to revrew that decision. In these proceedings, the Applicant asserts that, in so holding, the Trlbunal was wrong in law.

Before considerrng the correctness or otherwise of the Tribunal's decision on thrs polnt, it is helpful to refer to some portions of the judgment of Kltto, J. in Batagol v. F.C.T. (109 C.L.R. 243) in which hls Honour considered the

definition of "assessment' in the Act. Hls Honour (at page

251) after referring to the def~nltlon in S. 6 said:-

"'Ascertainment' is a word the force of whrch depends upon the context. It is here used in an Act under whlch the service of a notice of assessment 1s the levylng of the tax. Assessment in the sense of mere calculation produces no legal effect. No step that the Commlssloner may take, even to the polnt of

satisfying hlmself of the amount of the

taxable Income and of the tax thereon, has under the Act any legal slgnlflcance. But if the Comrnlssioner, havrng gone through the
process of calculation, serves on the taxpayer
a notlce that he has assessed the taxable

income and the tax at speclfled amounts, the tax becomes by force of the Act due and payable on the date specified in the notlce or ( ~ f no date is speclfled) on the thlrtleth day after the servlce of the notlce: S. 204. Thus, and thus only, there 1s brought about an

"ascertainment" of the taxable Income and of

the tax, in the sense that thereafter it is posslble to say what could not have been said before: that amounts have been flxed so that they are to be taken for all purposes (except those of appeal: see S. 177) to be the result flowing from the appllcatlon of the Act in the

particular case. The respective amounts of the taxable Income and the tax have been rendered certaln. The word "ascertainment" being understood in this sense, the definition of "assessment" means, rn my oprnlon, the completron of the process by whlch the provisions of the Act relating to liabrlity to tax are given concrete application in a particular case wlth the consequence that a specified amount of money wlll become due and payable as the proper tax in that case."

Later, (at page 253) hls Honour spoke- of

"assessment" as meanrng:-

"the whole process whlch comes to a head in the servlce of a notice of assessment and thereby becomes, as a whole, an act in the

law. "

It is also important to bear in mind that the Respondent makes hls "assessment" from the "returns, and from any other information in hls possesslon, or from any one or more of these sources" (S. 166). The Act does not refer to the act of "ascertainment" belng based upon any factual material whlch does not fall Into these categories.

The Tribunal, in its reasons, referred to the fact

that in one case before the Board of Revlew (E 23, 73 A.T.C.

under S. lO5AA formed part of an assessment and that there	174) it had been held that a declslon refusing a request
was therefore power to review that decision at the taxpayer's request. However, in a later case, ( K 57, 78 A.T.C. 551) some doubt was expressed as to the existence of the power.
The Tribunal based rts declsion that it lacked the relevant power of revlew upon the declsion of Sm~thers, J. in Intervest Corporation Pty. Ltd. v. The Federal Commrssioner of Taxation and the Deputy Commlssloner of Taxation, (1984) 3 F.C.R. 591. In that case, an appllcatlon under S. 1 0 5 A ~ had been made and refused after the Commlssloner had assessed the taxpayer company to additional tax under Part 111 Divlslon 7 of the Act. There was posed for hls Honour's declsion the question whether the Commlssloner's refusal to allow a further period under S. 105AA was revlewable by the Court pursuant to S. 5 of the Administrative Declslons (Judrcial Review) Act, 1977 ("the Judicral Revlew Act"). 1t was
submitted on behalf of the Respondents that the declsion was
excluded from revlew through the operation of S. 3 and clause (e) of the Flrst Schedule of the Judicral Revlew Act, in that it was a decision:-

I

"making, or formlng part of the process of making, or leading up to the making, of assessments or calculations of tax . . ."

Hls Honour held that the declsion did not fall wlthin the excluded category and was therefore revlewable.

He held that the refusal was not, in law, a declsion maklng

or formlng part of the process of mak~ng an assessment. In

thrs regard, hls Honour said (at pages 593 to 594):-

"Assessment as deflned in S. 6 of the Act is the ascertainment of the amount of taxable Income and of the tax payable thereon. The amount of taxable income and the tax payable thereon must be ascertained by the Commlsioner by reference to the facts before hlm concerning the income of the taxpayer. Those facts are established by the taxpayer's return of income and such other information as he may supply voluntarily or on demand of the

Commrssloner. ...

A refusal of a request made under S. 105-
after servlce of a notice of assessment is
relevant to the llabllity of the applicant to
pay the tax demanded in the notice of
assessment which has been issued. If the
request 1s granted a reduction in liability
may result. If it is refused the chance of
any such reduction 1s ellmlnated. But there
is no sense In whlch a declslon to refuse the
request is a declslon maklng an assessment or
calculation of tax, or a decislon formlng part
of the process of making an assessment or
calculation of tax. A declslon refuslng a
request denies to the taxpayer making the
request an opportunity to change the basis of
fact by reference to which an assessment, or
an amended assessment, depending upon
appropriate calculations, might be made."

His Honour further held that the declsion was not, in law, one leading up to the making of an assessment of tax. He said (at page 595):-

"The distinction between the Commissioner's assessment function and hls admlnistratlve function is relevant zn thls case. It is in his administrative function that he may or may not sanctron the taking of steps by a taxpayer which, if taken by hlm, may produce a state of facts by reference to whlch an amended assessment may be made whrch might dlffer from that upon whlch the assessment already made was made. When he approaches the task of making an assessment wlth reference to the facts before him and makes the necessary calculations for that purpose he is exerclslng

hls assessment function. But however widely	the net is cast by the words of cl. (e) it
the process of assessment and which relates only to the question whether a taxpayer shall be permitted to carry out transactlons whrch may reduce the amount of lncome upon whlch he is liable to pay tax. It may result in the maklng of an amended assessment. But it 1s so far removed from the assessment process that it does not, in the relevant sense, lead up to the making of an assessment. It provides an opportunity for the taxpayer to make payments the maklng of which wlll introduce new elements into his financial affairs by reference to whlch the amount of income on whlch he is l~able to pay tax may be reduced and the amount of hls taxable income may be
ascertained. Decisions maklng or formlng part
of the process of making an assessment or calculation of tax are clearly made in the process of assessing tax. Declslons leading up to the making of an assessment may not necessarily be so confined. But, in my vlew, a decislon not being connected dlrectly or indirectly wrth the process of the maklng of an assessment is not within the category specified rn cl. (e) of the Schedule merely because the maklng of an assessment or a particular assessment thereafter was a consequence of buslness deallngs which flowed from the decision and affected its income pos~tron and tax liability but did not otherwise operate upon or have any other significance in respect of the assessment."

does not cover a decision not being part of

His Honour found support for thls analysis in prevlous decisions of this Court. He cited from Deputy Commissioner of Taxatron v. Clarke & Kann (1984) 1 F.C.R.

3 2 2 , a case involv~ng the questlon of whether the

Commissioner's demand for information under S. 2 6 4 of the Act was reviewable under S. 5 of the Judlcial Revlew Act, the following passage from the judgment of the Full Court (at pp.

"Because par. (e) plalnly Intends to exclude from review some declsions which are made prior to assessment, lt must be taken to refer not only to assessments which have been made but to those whrch will be made. The

declslons whlch are excluded from review by	par. (e) of the Schedule are decisions maklng
assessments, decisions formlng part of the process of making assessments, and decisions leadlng up to the making of assessments. Each category provldes for some extension of the former, but the overall effect is to emphasrse the essential need for a connection between the declsions and an assessment.
It is inappropriate to attempt to define the boundary between those declsions whlch are and those whlch are not 'declsions leadlng up to' the maklng of an assessment. However, a declslon does not lead to the maklng of an assessment merely because it precedes the maklng of an assessment or because its purpose 1s to enable or facllltate the maklng of any assessment whlch may be made. A decision is not a declsion leadrng up to the maklng of an assessment unless the maklng of an assessment has followed or wlll follow from the declsion.
The notices are declsons because they are demands for information (Judrcial Revlew Act,
S. 3(2)(e)). Although a sharp dlstlnction
cannot be drawn between the appellant's
inquisitorial functlon and hls assessment
functlon, where, as in thls case, no assessment has been made and there can be no
certainty that an assessment will be made, it
cannot be concluded that a demand for lnformatlon w h ~ c h does not form part of the maklng of an assessment necessarily is leadlng up to the making of an assessment. The information produced by the demand may result in an assessment, or in a decls~on not to assess, or may be of no utillty. There is no sufficient relationship between the demands for information and the maklng of an assessment to attract par. (e) of the Schedule."

Hls Honour also relied upon Tooheys Ltd. v. Mlnister for Buslness h Consumer Affairs ((1981) 54 F.L.R. 421; and on appeal at 42 A.L.R. 260) a case ln which it was argued, in support of the submission that a determlnatlon under S. 273 of the Customs Act was not revlewable under the Judicial Review Act, that the determination was part of the

paragraph (e) of Schedule 1.	of duty, and was therefore not revlewable by vlrtue of process of, or that rt led up to the maklng of, a calculation
~t first instance, Elllcott, J. sald (at p. 436) In a passage which was approved by the Full Court (at page 271) :-

"The words 'leading up to the maklng' are intended to point to decisions whlch have to be made or in the c~rcumstances rt is appropriate to make before the actual process of assessment or calculation can begln. A determlnatlon may be made under S. 273 relatrng to particular goods but the process of calculatrng duty does not depend on it any more than it depends on the existence of the general provlsrons of the Act relating to value or duty.

In other words, what par. (e) 1s directed to is the process whereby the liability to tax or duty is calculated in a partrcular case. A decislon to make a by-law or determination 1s a decision whlch affects liability. It 1s not a decislon deallng wlth the calculation of

liability."

Their Honours rn the Full Court (at page 270) also

"The prrmary Judge rightly explained the necessrty of having in mlnd the distlnctron between provlslons ln a taxlng statute whlch prescribe the circumstances in whrch lrabllity to tax can arlse and those in which the amount of tax 1s calculated or assessed ln a

particular case. "

In my view, these authorrtles clearly support hls Honour's conclusion that the Respondent's refusal of the request under S. 1 0 S A A dld not fall wlthln the categories enunciated in clause (e) of Schedule 1 of the Judlcial Review

Act.

Before the Tribunal and before thls Court, submissions were made that the present case was drstlngu~shable from Intervest on the basrs that in the latter case the S. 105AA request was made after the assessment had issued and that in the present case it preceded the assessment. I consider that this submission should be rejected. If the refusal of a S. 105AA request cannot properly be characterrsed as part of the assessment process or as a declsion leadrng up to an asessment of tax, simply because it cannot be accommodated, as a matter of strlct analysis, wlthln those concepts, then rt matters not whether the refusal precedes or follows the assessment.

It was finally argued that this Court should disapprove the reasoning of Smlthers J. In Intervest and hold that, at least in the sltuatlon where a refusal of a S. 105AA request precedes the making of an assessment, the refusal is properly part of the asessment.

It was put that matters not apparently considered by Smithers J. compelled thls result.

In the flrst place, it was submitted that cases such as Commissioner of Taxation v. Brlan Hatch Timber Co. (Sales) Pty. Ltd. (1971-2) 128 C.L.R. 28; Kolotex Hoslery (Australia) pty. ~ t d . v. C. of T. (1974-5) 132 C.L.R. 535; Avon Downs Pty. Ltd. v. C. of T. (1949) 78 C.L.R. 353; and

arguments by way of analogy for the acceptance of the	Perron v. F. C. of T. (1972) 128 C.L.R. 595, prov~de strong
proposition that the refusal of add~tronal tlme was truly
part of the assessment process. It was not put that they were deterrnlnatlve of that proposltlon.
I do not find it necessary to refer to these cases in detail. In my view, the declslons made by the Commissioner rn those cases under ss. 80A and 99A of the Act were quite clearly part of the process of assessment and drfferent in kind from a decision of refusal under S . 1 0 5 u . A declsron wlthin this sectron, as pointed out in the pasages clted earlier, is one w h ~ c h elther affords or denies the taxpayer company the opportunity of alterlng the factual basis upon which its assessment to tax is to be made. It is an opportunity which, if granted, need not necessarily be availed of. That is a matter w~thin the company's own discret~on, a discretion which 1s necessarily interposed between the discretion of the Commrssroner to grant or refuse the request and the ultlmate calculation of tax. The declsions in the cases referred to led directly to the assessment and were necessarily rnvolved in it. The decisions, indeed, in my vlew, point up the exclusion of the
S. l O 5 M decision process from the process of assessment.
This latter process involves the appllcatlon of the appropriate income tax legislation to the relevant facts as found by the Commissloner to exist at the tlme of that
application. [See passage cited from Batagol]. In arrivlng at his ascertainment of thls factual basrs of the assessment,
he will have to make declsions whlch may well involve relection of assertions of fact made by or on behalf of the taxpayer. Such decrsions are qulte clearly, in my vrew, different in kind from decisions of a dlscretlonary nature allowing or disallowing a taxpayer an opporhnlty to produce
an alteration to that factual basis such as by the payment of additional dividends in order to produce a sufficient distribution under 5 . 105A. In my vlew, such a decrsron does not even "lead up" to the making of the assessment as it cannot be said that the making of the assessment "will follow from the decision" (Deputy Commissroner of Taxatlon v. Clarke
& Kann (op crt) at p. 325). It is a decislon whlch "affects
liability. It is not a decislon dealing wlth the calculation of liability." (Tooheys Ltd. v. The Minlster for Buslness and Consumer Affairs (op cit) at p. 436).
It was further submitted that policy considerations compel a conclusion that the Respondent's declslon under S.
105AA is to be regarded as part of the assessment process.
It was put that, as by S. 177 of the Act a notice of assessment is conclusive evidence of the due making of the assessment and (except in proceedrngs on appeal against the assessment) that the amount and all particulars of the assessment are correct, lt is to a high degree desirable that all discretzonary decis~ons of the Commissioner which could have any relation to or bearing upon the making of the assessment should be reviewable on the merits by way of the
out. This policy was said to be discernible in Jolly v. appeal procedures put in place by the sectlons already set
Federal Commissioner of Taxation, (1936) 53 C.L.R. 206 at 214, where Rlch and Dixon, JJ. said:-

"The Board is only an executive body in an admlnlstrative hierarchy. The purpose of erecting it was to enable taxpayers to have a

reconsideration or re-examination of the

process by whrch liability has been imposed upon them, particularly In relation to matters in which the Commissioner had a discretion."

However, thls comment must, in my opinlon, be read in the context of the Issue in that case, whlch was whether the Commissroner's discret~on to remlt additlonal tax wholly or in part was reviewable by the Board. The Hlgh Court held that it was, as belng a declsron of the Commissioner clearly bound up with his power to lmpose addltronal tax in respect of an assessment. The case, in my view, has no dlrect

I

bearing upon the questlon arlslng here. It may be that there is unfarrness in restricting a taxpayer company, denred an

opportunity to make sufflclent distribution after the explry

of the prescribed period, to an appeal conflned to administrative law considerations rather than affording it a full reconsideration on the merlts. However, this unfairness, if such it be, can, in my view, be remedied only by the Legislature; ~t cannot be eliminated by any available construction of the Act.

I am therefore, with respect, of the opinion that
the decision of Smlthers, J. in Intervest correctly
part of the process of assessment under the Act. categorises a refusal of a request under S. 105AA as being no

Accordingly the Tribunal's decision that it had no power to revlew the Respondent's declsion in the present case was correct in law.

I propose that the Appeal be dismissed with costs.

I certify that this and the sixteen preceding

pages are a true copy of the Reasons for
Judgment hereln of his Honour, Mr. Justice

Foster.

Assoclate

Dated:  2 1 April 1 9 8 8

Counsel for the Applicant: Mr G. Davles

Solicltors for the Applrcant: Mowbray

Counsel for the Respondent: Mr G. Nettle

Solicitors for the Respondent:  Australian Government

Sollcltor