Matestock Pty Ltd as Trustee for the Darling Family Trust and Ors and Commissioner of Taxation

[2004] AATA 1178

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1178

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No QT2002/96, 163, 164

TAXATION APPEALS DIVISION

)

Re

MATESTOCK PTY LTD as Trustee for THE DOWLING FAMILY TRUST

and LAURENCE MICHAEL DOWLING

and DEBORAH SUE DOWLING

Applicants

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Senior Member KL Beddoe
Senior Member BJ McCabe

Date10 November 2004  

PlaceBrisbane

Decision

The Tribunal makes the following decisions to the effect that:

(a)      the objection decision in relation to the Trustee is set aside and the applicant’s objection be allowed in full;

(b)      the objection decisions relating to assessment of income tax payable by the beneficiaries are affirmed;

(c) the objection decisions relating to assessment of penalty tax payable by the beneficiaries are set aside and decisions substituted that penalty tax be assessed in accordance with section 226G of the Act;

(d) there is no basis for exercising the discretion in sub-section 227(3) of the Act; and

(e)      these proceedings have terminated in a manner favourable to the applicants.

.......[Sgd].......

K L Beddoe

Senior Member

CATCHWORDS

TAXATION – appropriation of trust income – review of objection decision – purported appointment of income to beneficiary ineffective – consequences of ineffective appointment of income – decision to assess income of trustee set aside

Income Tax Assessment Act 1936 s97, 99A, 100A, 166, 166A, 170, 226G, 226H, 227

McPhail v Doulton [1971] AC 424
BRK (Bris) Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4111
Ramsden v Federal Commissioner of Taxation [2004] FCA 632
East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 19 ALD 85
Kajewski v Federal Commissioner of Taxation (2003) ATC 4375
Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW) (1949) 79 CLR 296

REASONS FOR DECISION

10 November 2004     Senior Member KL Beddoe
  Senior Member BJ McCabe

1.Matestock Pty Ltd (“the Trustee”) as trustee for the Dowling Family Trust seeks review of an objection decision by the respondent in relation to the year of income ended 30 June 1996.

2.The individual applicants also seek review of objection decisions in relation to the year of income ended 30 June 1996.

3.These applications arise because the respondent has assessed the Trustee under section 99A of the Income Tax Assessment Act 1936 (“the Act”) and individual applicants, as beneficiaries of the Trust, under section 97 of the Act in relation to the net income of the Trust.

4.Issues also arise as to whether amended assessments in relation to the individual applicants were authorised by section 170 of the Act and whether the respondent was correct in assessing additional tax in accordance with Part VII of the Act and, if so, whether the assessed additional tax should be remitted in part or in full.

5.These matters were heard jointly with other cases which have a common theme of appointment of net income of the relevant family trust to a company correctly described as No 2 Pitt Street Pty Ltd as Trustee of the Northbourne Holdings Unit Trust (“Northbourne”).

6.At the hearing Mr Russell QC appeared with Mr Bickford for all the applicants and Mr Hack SC appeared with Mr Robertson for the respondent.

7.The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal.  There is a generic set of documents marked T1 to T69 and also sets of documents specific to the applicants marked Exhibit AM.

8.Further documents were tendered and marked as exhibits and oral evidence was given by John Damian Andrews, Ian Roland Stevens, Ginette Danen Muller, Steven Irvine Hart, Laurence Michael Dowling and Deborah Sue Dowling.

9.By a deed of settlement made on 25 June 1996 Gregory Ian Pimm settled the Dowling Family Trust, the trustee being Matestock Pty Ltd and the specified beneficiaries being Laurence M Dowling and Deborah S Dowling.  No General Beneficiaries were nominated.  By force of the definition the Specified Beneficiaries were also General Beneficiaries.  Without setting out the detail of the definition, at this stage, we are satisfied that “General Beneficiaries” was defined to limit the beneficiaries of the Trust to persons real, or incorporated, with a familial connection to the Specified Beneficiaries.

10.We note, in particular, that clause 1(b)(iii) of the deed of settlement includes in the definition of “General Beneficiary” any entity which the Trustee may from time to time nominate in writing, as a General Beneficiary, the Trustee of any trust or settlement under which any General Beneficiary is a beneficiary whether present or contingent. 

11.Also on 25 June 1996 the Trustee, acting on the advice of Mr Pimm and Mr Hart, had decided to enter into arrangements to invest in a shopping centre at Wodonga knowing there was a tax advantage as they were sold, to be achieved from the arrangements.  We doubt that Mr and Mrs Dowling, as directors of the Trustee had any real understanding of what was put to them by Mr Pimm and Mr Hart.  That was made clear to us by Mr Hack’s cross-examinations of Mr Dowling.  As to Mrs Dowling’s evidence we are satisfied she had little or no understanding of the relevant transactions and relied on her husband (“my husband handled all that”).

12.The Trustee acting through its directors decided to participate in the Northbourne arrangements on the basis that the investment in the shopping centre complex would be a good investment.  By a letter dated 25 June 1995 the directors advised Northbourne that the Trustee would make a distribution to Northbourne for an amount not exceeding $100,000 for the relevant financial year and that the distribution would be paid over a ten year period by monthly instalments.  The Trustee enclosed a duly executed Acknowledgement of Debt and an application for 100 units in Northbourne.

13.Also on 25 June 1996 the Trustee, by its directors, resolved to nominate Northbourne as a General Beneficiary of the Trust.

14.By a subsequent resolution on that day the Trustee, by its directors, resolved as follows:

“It was resolved that the income for the Trust for the year ended 30^th of June 1996 be appropriated, set aside and applied to the beneficiaries:

Pitt Street No 2 Pty Ltd as Trustee for the Northbourne Holdings Unit Trust – the first $100,000

Laurence M Dowling – 50% of the balance

Deborah S Dowling – 50% of the balance

It was resolved that should the Commissioner of Taxation disallow any amount as a deduction or include any amount in the assessable income of the Trust, such amount or amounts are to be deemed to be distributed at 30^th of June 1996 in the same proportion as listed above.”

15.By a further resolution dated 25 June 1996 the Trustee, in effect, confirmed the terms of its letter to Northbourne of that date.

16.Northbourne issued a Unit Trust Certificate for 100 units in favour of the Trustee dated 30 June 1996.

17.The executed Acknowledgment of Debt acknowledged the debt of $100,000 to be repaid by 120 monthly instalments of $1406 commencing from 15 July 1996 or such other date as advised by the creditor.  Neither Mr or Mrs Dowling seem to be aware that this was a promise to pay $168,720 by the monthly payments.

18.As in other associated matters we have proceeded on the basis that nothing turns on the misdescription of Northbourne by the Trustee.

19.The Trustee’s income tax return for the year ended 30 June 1996 disclosed a net income of $103,000 which was said to be distributed as follows:

Northbourne Holdings Unit Trust  $100,000
Deborah Sue Dowling  $1,500
Laurence Michael Dowling  $1,500

20.Mr Dowling, in particular, has formed the view that the Trustee is not liable to repay the acknowledged debt but he was unable to give the Tribunal a basis for this view.  It seems to be based on advice from others including, perhaps, his lawyers.

Re Northbourne

21.The Northbourne Holdings Unit Trust (“Northbourne”) was established by deed in 1989 (Exhibit F) for the purpose of acquiring and redeveloping real property known as No 22 Pitt Street, Sydney.

22.For reasons not apparent to us and not relevant to these proceedings, the investment was unsuccessful and Northbourne incurred substantial losses.  The 20 issued units were held for the benefit of Northbourne Rural Property Trust.

23.At all relevant times No 2 Pitt Street Pty Ltd was the Trustee (initially the company was known as Northbourne Holdings Pty Ltd but nothing turns on the change of name).

24.In or about 1995 (probably March 1995), Harts Consulting Pty Ltd (“Harts”), a company controlled by Steven Irvine Hart, acquired the units in Northbourne and the two shares issued in No 2 Pitt Street Pty Ltd.  It is reasonable to infer, and we do, that the purchase of Northbourne was for the purpose of getting access to approximately $13.5 million in accumulated losses resulting from the unsuccessful Pitt Street development.  Northbourne does not appear to have had any commercial value at March 1995 or at any time immediately thereafter except for any value of tax losses.

25.While the evidence of Mr Stevens made it apparent to us that proper process was not a strong point of Harts so that it could be said that the share transfer was not properly executed, we accept that the company controlled No 2 Pitt Street Pty Ltd effectively from probably March 1995.

26.In the years of income ended 30 June 1995 through to 30 June 1999, Harts promoted a scheme whereby Trustees of family trusts were invited to acquire units in Northbourne on the basis of one unit for each $1,000 of net income of the family trust appointed to Northbourne.  Essential to this arrangement was the need for the Trustees of the family trusts to add Northbourne as a general beneficiary of the family trust.  Fees at 12% were payable to Harts.

27.As already noted, the Trustee nominated Northbourne as a General Beneficiary of the Trust by resolution dated 25 June 1996.

28.In pursuance of the scheme, the Trustee appointed income to Northbourne as set out above.  

29.On the basis of the evidence of Mr Stevens, Ms Campbell and Exhibit G, we are satisfied that there was no intention that the family trusts would be required to repay the acknowledged debts, being the unpaid distributions in favour of Northbourne.  Northbourne had limited recourse only for unpaid amounts, being the right to redeem the units issued to the family trusts by Northbourne.

30.Northbourne, guided by Harts, purported to enter into contracts for the purchase of the Birralee Shopping Centre.  The respondent initially contested that the shopping centre was never purchased.  Certainly Harts represented that the purchase had taken place in stages with completion by December 1997 (Exhibit F).  The documents before the Tribunal are not complete as to purchase of the shopping centre and shops, but we are satisfied that it is more likely than not that Northbourne had contracted to purchase the centre.  We are uncertain as to actual dates of purchase but note that the report in Exhibit H by Ms Muller indicates date of purchase as 5 July 1996 for $2.8 million.  We are satisfied that is in relation to the Centre but does not include the purchase of some strata title shops.  It is apparent, however, that final settlement in the purchase of the shopping centre and shops did not occur until February 1998 with a payment of $4.2 million funded by borrowing from Metway Bank.

31.The borrowing by Northbourne from Metway Bank was secured by bank guarantees to be provided by the unit holders in Northbourne, that is the respective Trustees of the family trusts including the present applicant Trustee.  It seems the case that the Trustee provided a guarantee about November 1996 for an amount of $35,000 (Exhibit AN).

32.Northbourne instituted proceedings in the Supreme Court of Victoria regarding matters arising out of the Birralee project.  Copies of two judgments by Balmford J are part of Exhibit B.  We have read the judgments but nothing arises from them in the context of this matter other than to explain one of the factors delaying the Birralee development.

33.The investment scheme for the Birralee Shopping Centre did not promise any profit to the unit holders in Northbourne until the tenth year of the scheme.  It is apparent to us from the material before us that any ultimate return to unit holders depended on a successful sale of the shopping centre after, it may be assumed, ten years.

34.We are satisfied that the applicant Trustee was motivated by two factors when entering into the arrangements proposed by Harts, namely:-

(a)      the projected ultimate return; and

(b)a vague understanding that income tax payments would be deferred for up to ten years.

35.In the ultimate, the development of the shopping centre failed and the company is in liquidation.  Northbourne’s investment in the development appears to be worthless.  That is not to say that the shopping centre was other than a reality – it was probably overly ambitious in its concept but we accept that the proposal put to the Trustee was such that it could not be foretold to be a failure.  In deciding to go into the scheme the applicant Trustee made decisions which included the investment in the shopping centre.  We accept that the investment decision followed the decision to appoint the net income to Northbourne and, we infer, it is unlikely the investment decision was made independently from the decision to appoint the net income to Northbourne.  We have come to that conclusion after taking into account the evidence of the documents dated 25 June 1996.

36.The arrangements entered into by the Trustee have their genesis in advice to the directors of the Trustee by Steven Irvine Hart.  Mr Hart was called to give evidence.  He answered formal questions but refused to answer questions relevant to the arrangements in question on the grounds that he claimed the privilege against self-incrimination.  The basis for this claim is set out in Exhibit 2. The Tribunal accepted that he was not required to answer questions where the privilege was claimed.  The Tribunal does not draw any inferences from the fact that Mr Hart claimed the privilege.

Consideration

37.Detailed written submissions were made on behalf of the applicants and the respondent.  These were explained and supplemented by oral submissions.

38.By clause 2 of the Deed of Settlement (“Trust Deed”) the Trustee stood possessed of the Trust Fund as defined and income thereof upon the trusts and subject to the powers and provisions expressed in the Trust Deed.

39.Clause 3 of the Trust Deed provides for the Trustee to determine the net income of the Trust Fund for each accounting period and may, in its complete discretion, at any time prior to the expiration of each accounting period until the Vesting Day, determine in respect of all or part of the net income for such accounting period to do all or any of the following:

(a)to pay, apply or set aside the net income for any one or more of the General Beneficiaries living or in existence at the time of the Trustee’s determination;

(b)to accumulate the net income; or

(c)to pay, apply or set aside for such charitable purposes as the Trustee may think fit.

40.We understand, as a question of law, that where a Trustee exercising its discretion decides to distribute the net income of the trust, the Trustee must ensure that a proposed appointee is within the range of beneficiaries (in this case general beneficiaries as defined), that the quantum of the distribution is appropriate and takes into account the interests, including needs, of all beneficiaries.

41.In McPhail v Doulton [1971] AC 424 at 449 Lord Wilberforce expressed the law as follows:

“Any Trustee would surely make it his duty to know what is the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to other possible claimants, the particular grant was appropriate.”

42.In this case the Trustee clearly failed Lord Wilberforce’s test.  Northbourne was clearly not a general beneficiary and therefore it was not within the Trustee’s power to appoint income to it.  We have come to that conclusion because we are satisfied that Northbourne was not an entity contemplated by the definition of “general beneficiary”. 

43.That definition reads as follows:

“1(b)    The ‘General Beneficiaries’ means:

(i)the Specified Beneficiary and the Specified Beneficiaries;

(ii)the brothers and sisters, spouses, children and grandchildren of the Specified Beneficiary or Specified Beneficiaries and the spouses children and grandchildren of such brothers and sisters, spouse, children and grandchildren; and

(iii)any of the following entities whether formed in Australia or elsewhere which the Trustees may from time to time in writing nominate as a General Beneficiary (subject to Clause 10 hereof) namely:

Athe Trustees (in their Capacity as such) of any trust or settlement (called an eligible Trust) under which any General Beneficiary hereinbefore referred to is a beneficiary whether present or contingent;

Bany corporation (called an eligible corporation) at least one share in which is owned by any General Beneficiary hereinbefore referred to or by the Trustees of an eligible Trust;

Cany other legal entity at least one share or other interest (whether present or contingent) in which is owned or held by any General Beneficiary hereinbefore referred to or by the Trustee of an eligible Trust or by any eligible corporation;

(iv)such additional persons corporations and Trusts (if any) as are named and described or defined in the Schedule as additions to the class of General beneficiaries;

PROVIDED HOWEVER that:

(1)       Any person from time to time being the Settlor the Guardian the Appointor or the Trustee or Trustees hereof or any other person or corporation settling property on the Trusts of the Settlement (herein called “an excluded person”) and also

(2)       Any corporation in which and the Trustees of any Trust in or under which and any other legal entity in which any excluded person has any actual or contingent beneficial interest so long as such interest continues are excluded from the class of general beneficiaries –

Aunless specifically included in the Schedule as a Specified Beneficiary; or

Bfor all purposes except as an Additional Income Beneficiary if specifically included as such in the Schedule;

PROVIDED FURTHER that the Trustees at any time and from time to time may declare in writing (subject to Clause 10 hereof and not otherwise) that any person who would otherwise be a General Beneficiary under paragraphs (i), (ii), (iii) or (iv) of this sub clause (b) shall be excluded from the class of General Beneficiaries and shall as from the date of making each declaration be modified accordingly but so that this power shall not be capable of being exercised so as to derogate from any interest to which such General Beneficiary has previously become indefeasibly entitled whether in possession or reversion or otherwise;”

44.Insofar as it may be said that the Trustee was a beneficiary of Northbourne, we are satisfied that the Trustee itself is not within the defined meaning of General Beneficiary so that the fact of it being a beneficiary in Northbourne does not thereby make the Trustee a General Beneficiary as defined.  Whatever doubts may exist as to the certainty of the definition should be resolved on the basis that there is a clear intention that the Trustee would not be a General Beneficiary as defined.  That intention is evident from construction of the definition itself.

45.We are satisfied, as submitted for the applicants, that the purported nomination of Northbourne as a General Beneficiary was ineffective.  It follows that there was no effective appointment of net income to Northbourne in the years of income before the Tribunal.

46.Without more, clause 3(e) of the Trust Deed would apply.  It reads:

“(e)Subject to the provisions of Clause 29 hereof the Trustees shall hold so much of the net income of the Trust Fund for each Accounting Period as shall not be the subject of a determination effectively made at or prior to the end of such Accounting Period pursuant to paragraph (b) of this Clause in Trust successively for the persons described in paragraphs (a), (b) and (c) of Clause 4 hereof as though the last day of such Accounting Period were the Vesting Day.”

47.Clause 29 provides, in effect, for the Trustee to make a declaration that clause 3(e) does not apply to some or all of the net income of an accounting period.  No such declaration has been made on the material before us.

48.Clause 4 is an extensive provision which we need not set out.  In the context of these matters its general effect is that the takers in default of an ineffective determination of appointment of net income, are the Specified Beneficiaries taking in equal shares.

49.The Specified Beneficiaries are the two personal applicants:

§Lawrence M Dowling

§Deborah S Dowling

50.Insofar as the minutes of the Trustee dated 25 June 1996 suggest either that the balance of the net income or any amount included in the assessable income of the Trust are deemed to be distributed “in the same proportions as listed above” or similar wording, we are satisfied those resolutions are ineffective on their face.  This is because the resolution clearly intends a distribution to Northbourne.  Such a purported appointment of income is beyond the power of the Trustee so that the resolution can have no further effect.  There is nothing in the material to suggest that the Trustee ever intended to accumulate the net income in the relevant year of income.

51.We are satisfied that because the resolution was ineffective, clause 3(e) of the Deed of Settlement operated so that the default beneficiaries (that is, the Specified Beneficiaries) became presently entitled, at 30 June 1996 to the net income of that year of income in equal shares (50% of net income each).  Insofar as it is suggested that the beneficiaries only became presently entitled after midnight on 30 June of each year of income, we do not follow what was said by Cooper J in BRK (Bris) Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4111 at paragraph 38.

52.In the BRK case the Trustee was Trustee of a discretionary trust with power to accumulate income or to distribute income to the beneficiaries set out in the schedule to the Trust Deed at the discretion of the Trustee.  To the extent that the Trustee had not decided to accumulate income and had not decided to distribute income during the year of income, the Trustee was held to have a reasonable time after the last day of the year of income to exercise the duty to consider whether net income should be accumulated and/or distributed before the default clause in the Trust Deed took effect, that is, the default clause did not require the discretions as to accumulation and distribution to be exercised within the relevant year of income.

53.In Ramsden v Federal Commissioner of Taxation [2004] FCA 632, Spender J said at paragraphs 32 to 37 as follows:

“32.     I do not agree that because the Trustee had had until the last instant of the 1996 year to exercise its discretion, the effect of the default clause would be to include the income in the default beneficiaries’ taxable income, not in 1996 year but in the next year of income.  I respectfully am unable to agree with the observations of Cooper J at 356 in this aspect of his Honour’s judgment in BRK (Bris), namely that where the discretion to the Trustee remained open until the last moment of the income year to exercise:

‘Default, in these circumstances, would not have occurred until the income year had expired.  Thereafter, if the default proviso were effective and valid, it would have taken effect according to its tenor.  The consequence would be that in the subsequent financial year, the default beneficiaries would become entitled to income of the Trust earned in the previous financial year.  However, the position would remain that as at the end of the financial year, there was no beneficiary presently entitled to the income.’ 

33.      The default clause in the Trust Deed, cl 3(e), is similar to the clauses in the trust deeds considered in Commissioner of Taxation v Marbray Nominees Pty Ltd (1985) 81 FLR 280 (“Marbray”) and East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (“East Finchley”). Clause 3(4) of the Trust Deed considered in Marbray provided:

‘The Trustees shall hold so much of the net income of the Trust Fund for each Accounting Period as shall not be the subject of a determination effectually made in relation to such Accounting Period in trust successively for the persons described in sub-clauses (1) (2) (3) and (4) of clause 4 hereof.’

34.      Tadgell J in Marbray said, at 292:

‘Clause 3(4) is obviously intended to be capable of operation upon the net income of the trust fund from year to year, save in so far as that income is not the subject of a determination pursuant to cl 3(1) to pay or apply it or to set it aside or accumulate it.  Clause 3(4) and (5) could not so operate if the expression “person described” in cl 3(4) were construed to mean, in effect, “the Specified Beneficiaries who shall be living on the Vesting Day”.  Clause 3(4) is not concerned at all with the factual position on the Vesting Day.  It is concerned to identify individuals, alive at the time it operates, by reference to their description in cl 4 and not by reference to their condition on the Vesting Day.

It follows that, in accordance with the deed, the respondent held the net income of the trust in each of the two years in question on trust for the specified beneficiaries.’

35.      Clause 4.2 of the relevant Trust Deed considered in East Finchley provided:

In the event that the Trustee shall fail to make an effective determination in accordance with cl 4.1 hereof prior to midnight on the last day of any accounting period then any such income not paid or applied or set aside or accumulated (hereinafter called “the undistributed income”), or, where a determination has been made under cl 4.1 to accumulate income and such accumulation would be void then the Trustee shall hold the undistributed income upon trust for the persons successively described in paras (a) to (e) of the second schedule as shall then be living and if more than one in any paragraph in equal shares …’

36.      Hill J said at 468:

‘Should it have turned out that the resolution was either legally ineffective to constitute present entitlement in the overseas beneficiaries or if it should have been the case that the discussion as to the overseas beneficiaries never happened or indeed if it had been the case that the resolution was a sham intended as a disguise to deceive the Commissioner or that the acts done by Dr Thomas overseas were a sham, then the consequence would be that the default beneficiary clause would have come into operation and the beneficiaries entitled under it would have been presently entitled to the whole of the income of the estate not otherwise disposed of by the resolution to the immediate family of Dr Thomas. This being the case there would have been no part of the net income of the trust estate that had not been dealt with either under s 97 or 98 with the consequence that s 99A of the Act could not have applied and the assessment would have been shown to have been excessive.’

37.      In each of Marbray and East Finchley, the court indicated that the income for the relevant year, where there was an ineffectual appointment by 30 June, went to the takers in default.”

54.Accepting, as we do, that the purported nomination of Northbourne as a beneficiary was ineffective, and accepting that the Trustee did not determine to accumulate any of the net income in each relevant year of income, there was default by the Trustee in respect of the net income said to have been appointed to Northbourne during each year of income.

55.It follows, in our view, that the Trustee holds so much of the net income, in respect of which no effective determination was made, for the beneficiaries described in clauses 4(a), 4(b) and 4(c) successively as though the last day of each accounting period (here the same as the year of income) was the Vesting Day. 

56.Clause 4(a) is the primary clause and has the effect of appointing the net income, in default of an effective determination, to the Specified Beneficiaries, i.e: the individual applicants in equal shares as tenants-in-common.

57.In coming to that view we have accepted the submission for the applicant to the effect that the residual income provisions of the distribution minutes do not apply to amounts purported to have been appointed to Northbourne.  The Trustee intended that the distribution of net income to Northbourne have effect and the whole of the arrangements entered into by the Trustee with Northbourne can only be explained by the Trustee having that intention.  Clearly, there was no basis for the Trustee to acknowledge debts owing to Northbourne except for the unpaid purported appointments of net income in favour of Northbourne.

58.In East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 19 ALD 90, the issue was whether the taxpayer company had been correctly assessed in accordance with section 99A of the Act. The company was Trustee of a discretionary trust. The company, as Trustee, purported to determine a distribution of net income to non-resident beneficiaries. The Commissioner assessed the company on the basis that the purported distributions were made in connection with a reimbursement agreement.

59.The case proceeded on the assumption that the non-resident persons, the object of the Trustee’s determination, were, in fact, beneficiaries of the Trust.  In that sense it is different to the present case because the applicants have not sought to argue that the appointment of income to Northbourne was effective.

60.In the course of his judgment, Hill J made it clear (ALD 87) that where there is no present entitlement to net income vesting in the relevant persons then section 100A of the Act has no operation.

61.So instructed, we are satisfied section 100A has no effect on the facts of this case given that we are satisfied that it is the default beneficiaries, and not Northbourne, who were presently entitled to the net income sought to be appointed to Northbourne. We are further satisfied, for the reasons given by Spender J in Ramsden, that the default beneficiaries were so presently entitled in the respective years of income, the Trustee having made no decision to accumulate the net income of each year of income.

62.In relation to the amended assessments and whether they are authorised in terms of section 170 of the Act, we make the following findings.

63.The respondent made assessments of income tax payable by Mr and Mrs Dowling.  These assessments were made on the basis of the income tax returns lodged and without adjustment by the respondent.  Notices of assessment were issued on 11 November 1996.  Credits for tax instalment deductions and franking rebates resulted in refunds of tax to both applicants.  In our view the notices of assessment were properly so described because tax was assessed although no tax was payable on each assessment because of credits and rebates.

64.In the context of each of the applicant beneficiaries the respondent made an assessment of the amount of the taxable income and the tax payable thereon from the returns and from any other information in the respondent’s possession (section 166 of the Act). No issue of deemed assessments arises in relation to the applicants because they are not a relevant entity for the purposes of section 166A.

65.Each of the applicant beneficiaries failed to disclose in their income tax returns that they were presently entitled to a share of net income for the respective years of income due to the operation of clause 3(e) of the Trust Deed.  The result was that there was an avoidance of tax.

66.Notices of amended assessment were issued on 23 April 2002, that is more than four years after the original notices of assessment became due and payable. The original notices of assessment were due and payable 30 days after service their service.

67.We are satisfied that the avoidance of tax was due to evasion of tax by the Trustee’s appointment of net income to Northbourne in the 1996 year of income but with the evident intent that the said net income not be paid to Northbourne, and we so find. It follows, in our view, that paragraph 170(2)(a) of the Act authorised the making of the amended assessment because the only apparent explanation of the Trustee’s action was to avoid payment of tax by the Trustee and the beneficiaries on net income of the Trust said to have been appointed to Northbourne but in fact derived by the beneficiaries.

68.In coming to that conclusion we have been instructed by the dicta of Drummond J in Kajewski v Federal Commissioner of Taxation (2003) ATC 4375 at 4400 where his Honour also referred to the judgment of Dixon J in Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW) (1949) 79 CLR 296 at 313 as follows:

“Dixon J, said of the word ‘evasion’ in a statute not materially different from s 170(2) in words applicable to this provision:

“…I think it is unwise to attempt to define the word ‘evasion’.  The context of s 210(2) shows that it means more than avoid and also more than a mere withholding of information or the mere furnishing of misleading information.  It is probably safe to say that some blameworthy act or omission on the part of the taxpayer or those for whom he is responsible is contemplated.  An intention to withhold information lest the Commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede, is conduct which if the result is to avoid tax would justify finding evasion.””

69.Section 226H of the Act provides, subject to Part VII, that if a taxpayer has a tax shortfall for a year and the shortfall, or part of it, was caused by the recklessness of the taxpayer or of a registered tax agent with regard to the correct operation of the Act or Regulations then the taxpayer is liable to pay, by way of penalty, additional tax equal to 50% of the amount of the shortfall or part of it.

70.Sub-section 227(3) of the Act provides for a discretion to remit the whole or any part of additional tax payable under a provision in Part VII.

71.The respondent submits that the required recklessness arose from the recklessness of Mr Hart (and it might be added – his organisation) as tax agent for the Trustee (and the other applicants).  It is submitted that Mr Hart was reckless as to the tax consequences of the scheme.

72.It is also submitted that the applicant beneficiaries were personally reckless in accepting the advice of Mr Hart to whom they were giving 12% of the distributions for entry into the scheme.  The respondent also made other submissions about the applicants being grossly careless.

73.In the context of the applicant beneficiaries we are of the view that their conduct must be considered separately to the conduct of the Trustee when considering the individual tax returns lodged by the beneficiaries. While the conduct of the tax agent may be relevant we are unable in these cases to come to a fair view of the conduct of Mr Hart and his organisation. In particular, we are unable to come to any view as to the conduct of Mr Hart in the context of his clients’ financial affairs on the one hand and his clients’ income tax affairs on the other hand. We are therefore unable to be satisfied that there was relevant conduct that could be described as reckless in the terms of section 226H.

74.We are satisfied, however, that there was a lack of reasonable care by both the beneficiaries and the tax agent in relation to the beneficiaries’ income tax returns.  This is because they seem to have disregarded the effect of the Trust Deed in preparing the relevant income tax returns and, in particular, failed to recognise that the appointment of net income to Northbourne had not been made in accordance with the Trust Deed.

75.In our view the beneficiaries and the tax agent displayed a lack of reasonable care in lodging the income tax returns so that there was a resulting tax shortfall in relation to the applicant beneficiaries. That satisfies us that the appropriate provision is section 226G of the Act. That section assesses penalty tax where a tax shortfall is caused by the failure of the taxpayer or of a registered tax agent to take reasonable care to comply with the Act or the Income Tax Regulations.  We are satisfied that was the case in these matters.  The evident lack of reasonable care does not justify any favourable exercise or discretion (section 227(3)).

76.For these reasons the Tribunal decides that:

(a)the objection decision in relation to the Trustee is set aside and the applicant’s objection be allowed in full;

(b)the objection decisions relating to assessment of income tax payable by the beneficiaries are affirmed;

(c)the objection decisions relating to assessment of penalty tax payable by the beneficiaries are set aside and in substitution thereof decides that penalty tax be assessed in accordance with section 226G of the Act;

(d)there is no basis for exercising the discretion in sub-section 227(3) of the Act; and

(e)these proceedings have terminated in a manner favourable to the applicants.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe and Senior Member BJ McCabe

Signed:     S Appleton

Associate

Dates of Hearing  18-26 September 2003 and 27 October 2003
Date of Decision  10 November 2004
Counsel for the Applicant         Mr Bickford
Solicitor for the Applicant          Abbott Tout
Counsel for the Respondent     Mr Hack SC and Mr Robertson
Solicitor for the Respondent     ATO Legal Practice