Nguyen and Commissioner of Taxation

DECISION AND REASONS FOR DECISION [2000] AATA 1044

ADMINISTRATIVE APPEALS TRIBUNAL )

) No ST1999/30, 31 & 32

TAXATION APPEALS DIVISION         )
           Re      HA THI NGUYEN
  Applicant
           And    COMMISSIONER OF TAXATION
  Respondent

DECISION

Tribunal Mr D.J. Trowse (Member)

Date24 November 2000
PlaceAdelaide

Decision The Tribunal sets aside the decisions under review and in substitution therefor decides that the applicant's objection should be allowed to the extent of reducing her taxable incomes by the following amounts: For the 1995 Year Amounts received from "Hui" and deposited into applicant's bank account $12,425 Term deposit incorrectly brought to account and conceded by Commissioner $3,500 For the 1996 Year Expenditure duplicated and conceded by Commissioner $2,050 In all other respects the decisions under review are affirmed.

(Signed)
D.J. TROWSE
(Member)
CATCHWORDS
INCOME TAX – omitted income – loans from family members – gambling - draws from community finance group – living expenses – T-account analysis – penalty tax – onus of proof – decision in part set aside, and in part affirmed.
Income Tax Assessment Act 1936 s.226G, 226H, 226J
Taxation Administration Act 1953 s14ZZK(b)
Cross on Evidence – Privilege against self-incrimination para25040
FC of T v Dalco 90 ATC 4088
George v FC of T (1952) 86 CLR 183
Trautwein v FC of T (1936) 56 CLR 63
Gauci v FC of T 75 ATC 4257
Ma v FC of T 92 ATC 4373
Jones v Dunkel (1959) 101 CLR 298
Krew v FC of T 71 ATC 4219
Shawinigan Ltd v Vokins & Co Ltd [1961] 3 ALL ER 396
Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

24 November 2000 Mr D.J. Trowse (Member)

The current dispute between the parties relates to the financial years 1994, 1995 and 1996 and to alleged discrepancies calculated by the Commissioner of Taxation (the Commissioner) with the aid of a method that is described as "T-account analysis". The major difference of opinion pertains to the Commissioner's treatment of various deposits made to bank accounts of the applicant as being income sourced. The applicant refutes that view and contends that the deposits in question represent loan monies from family members, gambling monies won by her defacto spouse from the playing of cards and entrusted to her and advances received from a community financing group that goes under the title of a "Hui". Also in issue are the extent of living expenses incurred by the applicant during the three years under review and the quantum of penalty tax imposed under Part VII of the Income Tax Assessment Act 1936 (the Act).
At the hearing, the applicant was represented by Mr K.D. Schurgott, of counsel, and the respondent by Mr S. Cole, of counsel. The Tribunal had before it a copy of the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with 18 exhibits. Witnesses appearing before the Tribunal were the applicant, her defacto spouse Kim Bang Tran, Kim Thanh Tran who is a brother of the applicant's defacto spouse, and Ho Thi Nho who is the mother of the applicant's defacto spouse. While all witnesses required the assistance of a Vietnamese interpreter, the Tribunal is satisfied that they had little, if any, difficulty in understanding the questions put to them and the procedures adopted and that, seemingly, their recall of past events exceeded normal expectations.
An examination of the income tax returns prepared on behalf of the applicant revealed that her declared assessable income for the years 1994, 1995 and 1996 consisted of wages earned from a bakery and interest received and that the disclosed amounts of taxable income were $23,754, $32,071 and $27,261 respectively. It is noted that the amounts of taxable income for the 1994 and 1995 years were subjected to a prior adjustment by the Commissioner to include additional sums of interest received of $165 for 1994 and $1,625 for 1995 which had not been brought to account.
The T-accounts prepared by the Commissioner, and made available to the applicant on 21 March 1997, are based on the accounting concept that funds available should equal funds applied. If, in any year, funds applied exceed funds available then, according to the application of this concept, the difference represents a preliminary understatement of taxable income. Calculations of this kind recorded the following amounts of understated taxable income:
1994              $57,605
1995              $79,813
1996              $19,900

The above understatements were brought to account in amended assessments which were issued on 24 March 1997 and included amounts of penalty tax for incorrect returns. The amounts of penalty tax attributed to what is known as the culpability factor and to which the applicant objects are as follows:

1994              $12,998
1995              $18,794
1996              $3,944
Those amounts of penalty represent 50% of the tax avoided on the alleged understatements.

It is appropriate for the Tribunal to comment on the following entries appearing in the accounts prepared by the Commissioner:
(a)A bank term deposit of $3,500 has been included incorrectly as an application of funds in the 1995 accounts. The error was acknowledged and the adjustment will reduce the calculated understatement for that year by that amount. (See p.5 of the transcript)
(b)An expenditure item of $2,050 paid in the 1996 year has been duplicated and thus the funds applied have been overstated to that extent. Again, the required correction will reduce the understatement in that year. (See p.5 of the transcript)
(c)During the 1995 year, the purchase of land and the building of a home at 9 Fred Hollows Court, Pennington, was recorded at an overall cost of $132,829. The acquisition of this asset was funded in part by a bank loan of $60,000.
(d)The calculations made regarding the applicant's private living expenses which are pertinent to one of the matters in issue are summarised hereunder:

1994 Year
Payment by bank cheque – unidentified 26,000
Bank Fees     24
Personal living expenses   13,792
           $39,816

The figure of $13,792 had been arrived at by taking the amount of gross salary received during the year and subtracting therefrom tax instalments deductions and other identified amounts either banked or expended on items not falling within the classification of being personal living expenses.

1995 Year
Cash – Adelaide Casino     1,000
Bank charges and interest 1,022
Unidentified Bank withdrawals     20,000
Identified cash and bank payments         5,610
Food and clothing    24,646
           $52,278

On this occasion, the food and clothing figure represented the difference between gross salary received and the tax instalments deduction made from that income source.

1996 Year
Bank charges and interest 6,083
Unidentified bank withdrawals     37,000
Identified cash and bank payments         6,173
Food and clothing    21,239
           $70,495
Once more, the food and clothing figure equates with gross salary received less tax instalment deductions.

The applicant is aged 32 years and came to Australia from Vietnam in April 1992. Initially, she resided with her parents who had migrated to Australia in 1990. In August 1992, the applicant moved into a Housing Trust home which was being rented and occupied by her boyfriend, Kim Bang Tran (Bang), and with whom she participated in a marriage-like relationship. This tenancy continued until about June 1995 when the applicant and Bang took possession of a house property at 9 Fred Hollows Court, Pennington, the improvements of which had been erected on land acquired by the applicant in January 1995. The applicant's evidence was that, during the period August 1992 to June 1995, Bang paid the Housing Trust rental and all related accommodation expenses and that her contribution towards the cost of food and domestic requirements was between $10 and $20 per week. Thereafter, the applicant estimated that the cost of food had increased to $30 to $40 per week. Also, the applicant stated that she owned a motor vehicle that had been given to her by Bang sometime in 1993 and that she paid $25 per week for petrol and $90 every six months for servicing.
The applicant's employment at the bakery commenced in July 1993 and continued on throughout the years under review. Her gross earnings from that source were as follows:
1994              $22,462
1995              $32,194
1996              $27,309

In answering questions put to her by her representative, the applicant denied being involved in any other business activity during the period and refuted any suggestion of her selling drugs or working as a prostitute in the period April 1992 to October 1998.

Documents pertaining to the purchase of the land at 9 Fred Hollows Court, Pennington, were before the Tribunal and it seems that the contract was signed in about November, December 1994. According to the applicant, it was after this execution that she approached the bank regarding the possibility of borrowing funds sufficient to cover the costs of the improvements.
The following summaries record bank deposits and, in some cases, parts thereof that are in dispute and which, effectively, have been brought to account by the Commissioner as assessable income. These deposits have been grouped under the various sources alleged by the applicant.
1994 Financial Year
Monies received from family members
Date of Deposit       Family Member        Amount
24.9.93          Kim Thanh Tran (Thanh)    10,000
29.10.93        Nguyen Thanh Tam (Tam) 8,500
9.5.94 Thanh 13,500
11.5.94          Thanh 1,500
23.5.94          Do Huu Danh (Do) 5,000
10.6.94          Tam    3,500
14.6.94          Tam    10,000
  $52,000

1995 Financial Year
Gambling winnings received from Bang
Date of Deposit       Amount
4.7.94 4,000
29.12.94        5,000
16.1.95          5,000
19.1.95          5,000
24.1.95          3,000
21.2.95          4,000
28.2.95   (part of deposit of $11,650)     10,000
19.6.95          3,000
           $39,000

Draws Received from "Hui"
Date of Deposit       Member Entitled      Amount
27.9.94          Bang 5,000
4.10.94          Applicant      7,425
16.12.94        Nguyen Thi Huong (Huong)         2,435
19.12.94        Huong 5,000
  $19,860

1996 Financial Year
Gambling Winnings Received from Bang
Date of Deposit       Amount
25.9.95          $5,000

It should be noted that, subject to two exceptions, all of the above transactions were in cash and are devoid of any documentation. As will be seen later in these reasons, the exceptions relate to the gambling gains banked on 28 February 1995 and 25 September 1995.

It is opportune to commence with an examination of a bank withdrawal of $26,000 occurring on 23 March 1994 and which pertains to the ultimate funding of two of the alleged inter-family loans. The withdrawal was in the form of a bank transfer to the credit of the account of David Chi Fashions at the State Bank of NSW, Canley Height Branch in New South Wales, and which, according to the applicant's evidence, represented a loan made by her at Bang's request to a former school friend who had moved to Sydney and needed the funds to "buy a car or to open a shop or something" (transcript p.71). The applicant informed the Tribunal that the advance was interest free and was to be repaid in a month's time. It seems that the amount of $26,000 was nominated by Mr Chi and that it was his good fortune that the sum sought coincided with the funds then available to the applicant.
The applicant testified that the repayment of the Chi loan was by two instalments, the first of $12,000 being made about a week after the advancement and the second approximately 10 to 14 days after the first, and that, on both occasions, Mr Chi travelled from Sydney by bus to effect the repayments. Both repayments were by cash which was handed over by Mr Chi when he called at the home then being occupied by the applicant and Bang. The applicant told the Tribunal that she was present on both occasions and that those were the only times she had met Mr Chi. Finally, it was the applicant's evidence that the cash amounting to $26,000 was retained by her at home until the making of loans to Thanh and Tam.
It is fair to say that the Commissioner viewed the above explanation with suspicion and that, in part, this distrust resulted from information obtained and tendered that the proprietor of the business known as David Chi Fashions was a Mr Chi Hieu Vo and the acknowledgment by Bang, after inspecting a passport photograph of Mr Vo and noting his date of birth, that this person was not his former schoolboy companion. Also of concern to the Commissioner was that no mention of the Chi loan had been made in earlier discussions between the applicant, her lawyer and officers of the Commissioner and that the applicant's recall of the relevant event occurred only after sighting a copy of the bank transfer in favour of David Chi Fashions which had been acquired by the Commissioner without her knowledge.
The Tribunal now turns to a consideration of the applicant's evidence as to loans made to and from family members, amounts won by Bang and entrusted to her and, finally, the monies received from the "Hui".
loans
The Tribunal is of the view that it is more helpful to record the said series of transactions on the basis of the individuals involved as distinct from a chronological sequence and, with this in mind, it moves to those financial events claimed to exist between the applicant and Thanh, who, as previously mentioned, is a brother of Bang.
The applicant said that in about August/September 1993 she spoke with Thanh at his home on the possibility of him lending her an amount of $10,000 to assist with the purchase of a block of land on which she intended to build a residence. The applicant stated that the figure of $10,000 had been selected because of Bang's thought that such an amount was financially viable to Thanh and that his response was along the lines of wait for about one month, I will need to discuss it with my "wife", I will lend it to you if I can get money back from other loans made to friends. It appears that Thanh was able to recover amounts previously lent and that, when the applicant again called on or about 24 September 1993, he handed to her two bundles of notes each containing $5,000. The arrangement for repayment was that the monies be returned after the building of the home and when the applicant's resources permitted. It was submitted that the bank deposit of $10,000 appearing on 24 September 1993 represented the banking of this borrowing. It is noted that the stated object of the borrowing, that is the purchase of land, was not achieved until some 15 months later.
The next transaction involving Thanh is, to some extent, the reverse of the one already outlined. The applicant asserted that Thanh approached her in about April 1994 for a loan of $13,500 for the purchase of a car and that, having accepted the proposal, she advanced cash of that amount to him. The applicant maintained that the loan of $13,500 was made out of the cash recently received from Mr Chi.
According to the evidence, Thanh was unable to locate a car meeting his specifications and thus the borrowing of $13,500 was in excess of his requirement. It was agreed that that amount be repaid to the applicant who claims that the cash deposit of $13,500 into her bank account on 9 May 1994 reflects the outcome of that agreement. The applicant further asserted that Thanh offered her an additional sum of $1,500 within days of receiving the $13,500 and that the cash deposit into her bank account on 11 May 1994 embodies her acceptance of the offer.
A consolidation of the above alleged transactions with Thanh reveals a net indebtedness to him of $11,500, which, according to the applicant, was reduced by a payment of $2,000 to $3,000 from Bang sometime in 1996 or 1997.
The applicant's testimony relating to the movement of cash between herself and her brother-in-law, Tam, bears hallmarks similar to those recounted for Thanh. The applicant claims that, on or about 29 October 1992, Tam handed to her cash amounting to $8,500 and that the advancement resulted from an earlier request to borrow a sum of between $5,000 to $10,000 to assist with the purchase of a block of land. According to the applicant, this borrowing explains the deposit of $8,500 made to the credit of her bank account on 29 October 1993.
The next transaction is said to have taken place in about April 1994 or, more accurately, within a week or so of the receipt of the $26,000 from David Chi and the payment therefrom of $12,500 to Thanh. It was then that the applicant was approached by Tam for a loan of $12,500 for the purpose of adding a room to his home. The applicant told the Tribunal that she acceded to the request and that the cash of $12,500 remaining from the David Chi repayment was handed to Tam towards the end of April 1994. The fact that the loan requested equalled the cash then on hand was said to be coincidental.
Like Thanh, Tam decided not to expend the monies in the manner indicated and for that reason the monies borrowed from the applicant were no longer required. The applicant's evidence was that, in June 1994, Tam gave to her cash instalments of $3,500 and $10,000 and that those receipts represented the source of the bank deposits appearing on the 10 and 14 June 1994. When asked as to why the amount repaid exceeded the borrowing by $1,000, the applicant replied that the second instalment had been increased to $10,000 because that figure was "easier to remember". No explanation was forthcoming as to why Tam found it necessary to repay by instalments.
The foregoing cash exchanges resulted in a debt of $9,500 to Tam which, according to the applicant, was reduced by a payment of $2,000 made in mid 1996.
The applicant stated that a further loan had been received from Do, who is married to her sister, Huong. The evidence was that the applicant spoke with Do regarding the possibility of borrowing $5,000 to assist with the acquisition of a block of land and that, after a couple of months, he handed over to her cash to that extent on the understanding that repayment be made within a couple of years. The applicant related this borrowing to the bank deposit appearing on 23 May 1994. The Tribunal was informed that the debt of $5,000 had been repaid in full sometime after 30 June 1996.
draws from "Hui"
It was alleged that additional loan monies had been received from or on behalf of Bang and Huong and that the source of those funds was from the community financing group known as the "Hui". Evidence before the Tribunal indicated that the membership of the "Hui" consisted of individual members of Vietnamese families and friends who joined together in the making of monthly monetary contributions to a common fund which then was applied towards the granting of interest free draws in favour of its membership. It seems that draws were made on a monthly basis and were awarded to the member making the highest bid. The applicant told the Tribunal that she joined the group in December 1993 and, in support, tendered what was referred to as the "Hui" contract. Details shown in the contract include the names of 26 participants, time and place of monthly meetings at which draws were decided, monthly contributions of $300 per member and the name of the organiser as being Ho Thi Nho. The contract also discloses that the applicant, Bang and Huong were members numbered 16, 15 and 24 respectively. (Exhibit A5)

The evidence given by the applicant was that she, Bang and Huong had lodged successful bids at meetings of members and that all three had become entitled to draws of between $7,300 to $7,400. It was stated that the first of the successful bids was made by Bang at the meeting held on 28 August 1994 which resulted in the organiser paying over to Bang cash of $7,425 about a week after the holding of the meeting. The applicant asserted that Bang gave to her cash of $5,000 from his "Hui" draw and that it is the same $5,000 that shows as a bank deposit on 27 September 1994. The delay in the banking of those funds was put down to the applicant's inability to visit the bank because of work commitments.
It is claimed that the next "Hui" entitlement arose from the applicant's successful bid at the meeting held on 25 September 1994 and that such entitlement was satisfied about a week later when the organiser paid to her cash of $7,425. The applicant pointed to a bank deposit of $10,000 transacted on 4 October 1994 and maintained that the amount received from the "Hui" was included in that banking.
Finally on the issue of monies received from the "Hui", the applicant attested to the existence of an arrangement between Huong and herself whereby any draw payable to Huong would be advanced to the applicant and used in connection with the land purchase. Furthermore, the Tribunal was advised that Huong was the successful bidder at the meeting held on 20 November 1994 and that, in terms of the arrangement, the organiser handed to the applicant cash of $7,435 about a week after the meeting date. It was said that $2,435 formed part of the deposit of $3,000 which was paid into the applicant's bank account on 16 December 1994 and that the balance constituted the deposit of $5,000 into that same account on 19 December 1994. When asked to explain the reasons for the split into two deposits and the delays in banking, the applicant replied that she kept the $2,435 in her handbag because "I just like it, I don't know why" and the $5,000 at home and that, when she decided to bank the $2,435, she did not have time to return home for the remainder.
monies received from bang's gambling
The applicant's testimony on the issue of alleged gambling gains deposited into her bank account and identified in paragraph 9 of these reasons is now considered. She told the Tribunal that those gains consisted of various amounts handed to her by Bang and that, with two exceptions, those advances were in cash amounts of either $3,000, $4,000 or $5,000. The evidence was that Bang commenced playing a card game called Xap-Xam on a regular basis sometime in 1993 or 1994 and that the games were located at either a friend's home or a sports club where Bang played tennis. Evidently, those receipts were entrusted to the applicant for the purpose of assisting with the buying of the land and the building of a home and yet, by way of counter-balance, the applicant identified withdrawals totalling $25,000 which she described as being advances to Bang to enable him to settle his gambling losses.
One of the exceptions previously mentioned relates to a professed gambling debt of $10,000 by a Mr Phuong to Bang and which was settled out of the proceeds of the debtor's car which realised $11,650. According to the applicant, a cheque for $11,650 was received and banked into her account with the excess of $1,650 being refunded to Mr Phuong in cash. This alleged win of $10,000 is shown in paragraph 9 as being deposited into the applicant's bank account on 28 February 1995.
The other non-cash transaction involved a purported gambling loss of $5,000 by a person identified in these reasons as Dr Who. Dr Who provided a cheque drawn in favour of the applicant for $5,000 which was banked into her bank account on 25 September 1995. It appears that the cheque was made payable to the applicant at the behest of Bang.
Evidence of Bang
Bang, who was born in Vietnam in 1968, migrated to South Australia in March 1982, where, for a period of several years he lived with his elder brother Thanh. In 1991, he moved into a Housing Trust home which, later, was to become the residence of himself and the applicant. It seems that the relationship took on a more permanent nature in September 1993 and that, from then on, the parties regarded themselves as husband and wife. Upon the completion of the home being built at 9 Fred Hollows Court, Pennington, the applicant and Bang shifted to that address and, to this day, continue to occupy same as their home. Notwithstanding the foregoing, Bang advised the Tribunal that his address was 142 Arthur Street, Pennington, and that was where he lived. It is clear that this same address, which, incidentally, is where his parents reside, had been supplied by Bang to the Department of Family and Community Services when claiming unemployment benefits.
After leaving school in 1985, Bang was engaged in a variety of employments, none of which extended beyond a period of five months. Those activities encompassed the period 1985 to March 1993. From March 1993 until finding employment in March 1996, Bang was in receipt of unemployment benefits.
Bang's participation in the card game called Xap-Xam progressed from being "little" in 1994 to "a lot" in 1995. Indeed, it seems that, in 1995, the game was played daily, first at a friend's house and, later, at a sports club where Bang played tennis. Bang estimated a success rate of 70% and added the opinion that the ability to quickly sort the cards dealt to him into the three groups required by the game gave him a winning edge. Bang informed the Tribunal that his involvement in the game all but ceased soon after December 1995 and that final termination occurred in 1997 when the applicant expressed concerns that losses could jeopardise the security of her home.
The game of Xap-Xam originated in China and is popular in Vietnam. In fact, it appears that Bang learnt to play the game as a child in Vietnam and yet any advantage from that early exposure is reduced upon the realisation that all game participants were of a Vietnamese background. It seems that there are four players, all of whom receive thirteen cards which are sorted into three groups, one of three cards and two of five cards. The aim of the sorting is to arrange within each group a combination of cards capable of beating the combinations formed by the opposition. In deciding the winning hand, it seems that the rules governing poker, a game commonly played in Australia, have application. Notwithstanding questions put to Bang and the answers given, the Tribunal still does not comprehend how the speed of sorting cards into the three groups is capable of converting a losing hand into a winning one.
Bang's statement that he handed his winnings to the applicant in cash lots varying between $3,000, $4,000 and $5,000 matches with evidence given by the applicant and is supportive of the deposits made to the credit of the applicant's bank account during the period 4 July 1994 to 25 September 1995 and which had been identified by her as representing winnings by Bang from the playing of cards. It appears that the funds were entrusted to the applicant also in the hope that this would curb Bang's propensity to gamble.
The transactions involving Phuong's alleged gambling debt of $10,000 and the discharge thereof was covered in some detail. It was claimed that the debt came into existence in about February 1995 as a result of a card game held at the premises of Bang's friend and that settlement was effected from the proceeds received from the sale of Phuong's car which realised $11,650. Acting upon Bang's request, the buyer of the vehicle provided a cheque for $11,650 made payable to the applicant which she banked on 28 February 1995. The excess of $1,650 was refunded to Phuong in cash.
The circumstances pertaining to the other gambling collect which resulted in the receipt of a cheque as opposed to cash, and which concerned Dr Who, were discussed at length. Bang explained that, in about September 1995, he and Dr Who played cards at the sporting club and that, at the end of play, Dr Who was in his debt to the extent of $14,000. Settlement in the form of two cheques, each for $5,000 and cash of $4,000 eventuated a week later when the game was reconvened. On that occasion, Bang lost $5,000 in favour of Dr Who, which was satisfied by the taking back of one of the cheques. The cash of $4,000 was retained by Bang as his stake for future games, whereas the remaining cheque was handed to the applicant who banked same on 25 September 1995.
It was said by Bang that he maintained a note book in which was recorded details of his wins and losses and that the book had been thrown away sometime after the cessation of the gambling activity. Initially, the evidence was that the disposal took place one year after the issue of the amended assessments to the applicant, but in the course of cross-examination the time of disposal became a variable.
Bang's evidence as to his interest in the "Hui" was stated in brief terms. He was referred to the contract document and identified himself as member number 15 and advised that he had been successful in gaining the draw made at the meeting of the members held on 28 August 1994. He recalled that the amount received by him from the organiser some seven days later was in the region of seven to eight thousand dollars from which he paid $5,000 to the applicant. The balance was retained for the purpose of paying future monthly contributions to the "Hui".
David Chi was described by Bang as a good and close friend and a former school companion. Notwithstanding Chi's movement to Sydney in about 1984 or 1985, it seems that the friendship endured and that, from time to time, they communicated with each other by telephone. In one such conversation occurring in March 1994, Bang reputedly made reference to his success at the card table which, in turn, precipitated a loan request from Chi for an amount of $26,000 required to "open up a business". According to Bang, his reply was that the monies available were lodged in a bank account in the applicant's name and that her approval was needed despite the fact that those monies constituted his winnings which he had entrusted to her. The outcome was that on 23 March 1994, $26,000 was withdrawn by way of bank transfer to the credit of account David Chi Fashions with the State Bank of New South Wales at its Canley Height branch. The advance was free of interest and repayable within a "couple of months".
The method and timing of repayments previously attested to by the applicant were repeated with the exception that, according to Bang, Chi met with the applicant on only one of the two occasions he visited their home.
In the course of cross-examination, questions were raised regarding a possible conflict of identity between Chi, the former school friend who requested the loan and attended to the repayment and Chi Hieu Vo, the registered proprietor of the business known as David Chi Fashions which received the advance. While acknowledging that the name David Chi is synonymous with the Vietnamese translation of Chi Hieu Vo, Bang, when confronted with a copy of a passport application made by Chi Hieu Vo showing a photograph of him and his date of birth, confirmed that his friend Chi and the owner of business were not the same person. The situation was further confused by Bang's statement that he had never known his friend's Vietnamese name.
Once more in cross-examination, but only after advising the witness of his right not to provide answers that may incriminate him, questions were put to Bang concerning him being charged on 24 July 2000 with knowingly taking part in the sale of heroin, and the applicant being charged on 27 June 2000 with knowingly having in her possession heroin for the purpose of selling or supplying it to another person. On questions relating to his possible involvement in the sale of heroin, Bang elected not to answer. With regards to the charge laid against the applicant, Bang answered that he had no knowledge of that event. Information statements issued under the seal of the Magistrates Court of South Australia and tendered by the Commissioner reveal that the applicant and Bang were charged on the offences indicated and that, in the case of Bang, his two co-accused were from New South Wales.
The Tribunal pauses to comment on the evidence given by Bang concerning the loan to Chi. The bank records relied upon by the applicant, together with her testimony indicate that the flow of so called winnings from gambling did not commence until July 1994 and that, in the main, the monies used to fund the advance to Chi came from the alleged loans from Thanh ($10,000) and Tam ($8,500). This evidence stands in stark contrast to Bang's assertions that his winnings from the playing of cards provided the source from which the loan was made. Additionally, there remains the unanswered problem of the two faces of David Chi. The Tribunal has considered all of Bang's evidence on this matter and finds it far from convincing. Moreover, it is the view of the Tribunal that Bang was not honest in his presentation and that the greatest of caution should be exercised in assessing the worth of his evidence.
Also, it is apposite for the Tribunal to indicate that no adverse inference was drawn from the claim by the witness of privilege against self-incrimination. It is accepted that no one is bound to answer any question if the answer would tend to expose that person to the conviction for a crime. However, as pointed out in "Cross on Evidence" at paragraph 25040 "the practical consequences of a successful claim for privilege cannot, however, be ignored. It may be that the party who needs the evidence to discharge the burden of proof will fail".
Evidence of Thanh
Thanh, brother of Bang, gave his address as being 142 Arthur Street, Pennington, and stated that he had lived there with his parents for several years. He arrived in Australia in 1981 and, after a short period of casual employment, obtained a more permanent position that extended over a period of 9 years. Upon termination of the employment he received a retirement payout of $3,000 in cash which, together with other savings, were retained at his home. He remained unemployed during the period 1992 to 1995 and was in the receipt of unemployment benefits.
Thanh told the Tribunal that, in about September 1993, the applicant approached him at his parents' home for a loan of $10,000 needed to build a house and that he immediately took from the cache under his bed $10,000 in cash and handed it to her. The advance was interest free and repayable on Thanh's demand. It appears that the payment to the applicant reduced the amount of cash in Thanh's possession to about five to six thousand dollars.
The Tribunal was informed that repayment of the $10,000, together with a loan of $3,500 from the applicant, was sought by Thanh for the purchase of a car he had seen advertised for sale in a car year for a consideration of between $13,500 and $14,000. It was asserted that the outcome of the request was the cash payment of $13,500 by the applicant to Thanh to April 1994.
The evidence presented was that, upon closer inspection, the car in question did not come up to Thanh's expectations and that he re-offered to the applicant the $13,500 plus $1,500 that was in excess of his immediate requirement. Thanh stated that the cash of $15,000 was advanced to the applicant in a single lump sum in May 1994. The witness confirmed that the combination of the transactions entered into with the applicant left her indebted to him for an amount of $11,500 which, again, was interest free and repayable on his demand. According to Thanh, the applicant repaid an amount of $2,000 in either 1996 or 1997 and thus the outstanding amount is currently $9,500.
Answers to various questions put to Thanh in the course of cross-examination are of interest particularly when assessing his credibility. The first matter related to the address stated by him and his living arrangements. It was accepted that the house adjacent to those occupied by the applicant and the parents of Bang is owned by a woman known as Thuy and that, in terms of an arrangement entered into by them, the land upon which those three dwellings are erected was acquired as a single parcel. In the progress of Thanh's evidence, and with some prompting, Thuy went from a woman whose name he did not know, to the person he lived with "most of the time". It was suggested that Thuy and Thanh were in a defacto relationship and that Thanh had knowingly withheld that information from the Department of Family and Community Services.
The next query concerned the home owned by Thuy and shared by her and Thanh. After agreeing to the existence of a bank mortgage on the property, Thanh was asked why he had not demanded repayment of the non-interest bearing loan from the applicant so that those monies could be applied to the reduction of the bank debt upon which Thuy was paying interest. The answer supplied was that assistance of the kind suggested was not offered because it had not been sought by Thuy, but had she asked, the money would have been recalled and lent to her on an interest free basis.
The final matter raised goes to the amount of cash in Thanh's possession at the time he was contemplating the purchase of the car advertised for sale at a price of about $13,500. It appears that the $5,000 to $6,000 cash remaining after the original loan of $10,000 to the applicant was still intact and that the full amount of the purchase price had been borrowed to cover the possibility of a more expensive and suitable vehicle being located.
In concluding Thanh's evidence, the Tribunal notes that he has never heard the name David Chi and that he was aware of Bang's card playing.
It is apposite to refer to two discrepancies that are revealed when comparing the evidence of Thanh with that of the applicant. The first relates to the time delay between the applicant's request for the loan of $10,000 and its receipt. According to the applicant, a waiting period of about one month had to be endured to enable Thanh to discuss the request with his "wife" and to recover loans made to friends, whereas Thanh's version was that the advance coincided with the request. The other concerns the additional $1,500 lent by Thanh in May 1994 and which, according to him, formed part of a single lump sum payment of $15,000 to the applicant. Contrarily, the applicant stated that the amount of $1,500 was received on an occasion separate from when the $13,500 was produced.
After due consideration, the Tribunal finds that Thanh was not an impressive witness and that, on the matter of his address and living arrangements, he lied. The overall impression gained by the Tribunal was that Thanh shaped his evidence in whatever form necessary to aid the cause of the applicant and himself.
Evidence of Ho Thi Nho
Ho Thi Nho, who is the mother of Bang, told the Tribunal of her involvement as organiser of the "Hui" formed in December 1993. In that role, she attended the monthly meetings of members and collected from those in attendance their monthly contributions. Also, the task of collecting contributions from members not attending was her's, as was the distribution of those receipts to the member making the highest bid. The evidence indicated a delay of approximately 7 days between the holding of the meeting and the distribution of the amounts collected. Furthermore, it seems that all contributions were made in cash, which in turn was used in the distribution.
Upon production of what was described as the "Hui" contract, the witness identified the applicant, Bang and Huong as members and advised that the three of them had been successful bidders at meetings conducted on 25 September 1994, 28 August 1994 and 20 November 1994 respectively and that their entitlements were:
Applicant                  $7,425
Bang  $7,340
Huong  $7,435

Evidently, Ho Thi Nho had knowledge of the agreement whereby Huong was to lend her draw entitlement to the applicant and, with that in mind, she handed the $7,435 to the applicant on or about 27 November 1994. According to the organiser, the $7,425 was paid to the applicant on or about 2 October 1994 and the $7,340 to Bang on or about 4 September 1994.

In conclusion, Ho Thi Nho told the Tribunal that she had not heard the name David Chi nor was she aware of Bang's alleged gambling.
Submissions
The provisions of sub-section 14ZZK(b) of the Taxation Administration Act 1953 clearly establish that the applicant has the burden of proving that the assessments issued by the Commissioner are excessive. In determining whether or not the applicant has discharged that burden, the Commissioner submitted that the Tribunal have regard to quotations cited with approval and the statements made by Brennan J in FC of T v Dalco 90 ATC 4088. The first of the quotes appears at p4092 and is taken from the judgement of Kitto J in George v FC of T (1952) 86 CLR 183 at p189:
"(Section) 190(b) [which was the forerunner of SS14ZZK(b) and expressed in identical terms] places the burden of proving that the assessment is excessive upon the appellant; and in order to carry that burden he must necessarily exclude by his proof all sources of income except those which he admits. His case must be that he did not derive from any source taxable income to the amount of the assessment."

The next citation which appears at p4093 is from the decision of Latham CJ in Trautwein v FC of T (1936) 56 CLR 63 at p88 where he said that the taxpayer must show:

"Not only negatively that the assessment is wrong, but also positively what correction should be made in order to make it right."

A further citation is at p4093 and is from a statement made by Mason J, as he then was, at p4261 in Gauci v FC of T 75 ATC 4257:

"The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with sec. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail."

The statement made by Brennan J appears at p4093:

"… the Commissioner is entitled to rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment, though the taxpayer is limited to the grounds of his objection."

Additionally, the Tribunal is attracted to the following statement made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at p361:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found."

Further on the subject of the onus carried by the applicant and its discharge, the Tribunal was referred to the judgement of Burchett J in Ma v FC of T 92 ATC 4373. In that case, the facts of which resemble those extant in the current matter, the learned Judge had the following to say at p4377 on the discharge of the onus:
"Whether, ultimately, Mr Ma should be believed is not, of course, a matter for me. Nor, if it were, could it be decided upon the written record alone. The decision must take account of the onus under s.190(b). But if a taxpayer denies any undisclosed source of income, provides acceptable evidence of how he spends his time, and demonstrates a reasonable explanation for any appearance of the possession of assets, he will generally discharge his burden of proof unless some positive reason is shown why he is to be disbelieved."
The Tribunal accepts that the manner in which a taxpayer can discharge the onus of proof varies with the circumstances. For present references, it seems that the matters in issue are capable of being divided into two categories, one relating to the source of certain receipts and the other to the quantum of living expenses. Cognisant of the source of receipts similarity between this matter and Ma, the Tribunal adopts the standard of proof espoused by Burchett J for issues coming within this category. With regards to living expenses, the Tribunal opines that the applicant must show "not only negatively that the assessments are wrong, but also positively what corrections should be made in order to make them right" and for that purpose estimates founded on reasonable grounds would suffice. Irrespective of the kind of test being applied, it is essential that the Tribunal feel an actual persuasion of the occurrence or existence of the facts attested to. Anything less will result in a failure to discharge the burden.
Now is a convenient point for the Tribunal to consider a submission made on the Commissioner's behalf regarding the failure by the applicant to call as witnesses David Chi, Tam, Huong, Do and Dr Who. It was contended, on the authority of the High Court decision in Jones v Dunkel (1959) 101 CLR 298, that because of the failure, it should be inferred that the people nominated would not have supported the applicant's case had they been called. The Tribunal has made reference to the case stated and accepts, subject to the availability of the persons to be called as witnesses and the exercise of caution in the application of the principle, the validity of the submission. In particular, the Tribunal is attracted to what was said by Windeyer J at p321:
"Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case."

For the applicant, it was contended that the evidence given by the witnesses called was truthful and should be acceptable to the Tribunal and, on that basis, there was no need to call additional witnesses. The Tribunal finds little merit in the further submission that those people were not called because their appearances would have prolonged an already lengthy hearing. It will be observed that the submission made no reference to Mr Phuong who allegedly lost $10,000 to Bang and that his exclusion is explained by a certificate produced to the Tribunal that revealed that he died of heroin-morphine toxicity on 29 August 1997.

The Tribunal now proceeds to a consideration of whether the evidence adduced for the applicant is sufficient to enable it to find the facts necessary to support the matters contended on her behalf. In this regard, the credit worthiness of the applicant's evidence is an appropriate starting point. Her answer as to why she had not previously disclosed to the Commissioner details of the David Chi transaction demonstrated the equivocal nature of her evidence. First, it was said that she did not remember. Then came, I remembered but not important and finally that she kept the transaction to herself, but would disclose it to the Tribunal. The Tribunal is satisfied that disclosure only occurred after the applicant became aware of the Commissioner's prior knowledge and that the answers adverted to were knowingly false. The overall impression gained by the Tribunal of the applicant was that there were occasions when she was evasive in answering questions put to her and that, in part, her evidence lacked conviction. The credibility of Bang and Thanh has been considered earlier in these reasons and, for the reasons stated, the Tribunal finds that their evidence is of limited assistance to the applicant's case.
It is trite to say that the Tribunal's view of the evidence is damaging to the applicant's case and, yet, as Walsh J stated in Krew v FC of T 71 ATC 4213 at p4214:
"A witness upon whose word one cannot rely may yet give evidence which is true in part."

The task of the Tribunal is to decide, if possible, the parameters as to what is false and what is not. If the Tribunal is unable to reach such a decision on a point of substance then, in its opinion, the onus placed on the applicant has not been discharged.

An examination of the circumstances pertaining to the professed loan to David Chi and its repayment leaves the Tribunal in a material state of doubt. Here, we have monies being requested by a former school friend for the purpose of establishing a business on the understanding that repayment would take place within a month of advancement. At the direction of that friend, an amount of $26,000, incorrectly said to have been derived from gambling, was paid by bank transfer to a bank account under the control of a person not known to Bang and whose Vietnamese name when translated is identical with the name of the former school friend. Finally, it was claimed that repayment was made within about three weeks of advancement when the former school friend twice travelled by bus from Sydney and handed over cash totalling $26,000 which, for a time, was retained in that form by the applicant. Overshadowing the circumstance outlined, is the Tribunal's rejection of the applicant's testimony that she forgot to mention the alleged David Chi transaction at the time of her interview with officers of the Commissioner. The Tribunal is far from satisfied with the explanations provided by Bang and the applicant and, indeed, accepts no more than the transfer of $26,000 from the applicant's bank account to that of David Chi Fashions. It follows that the Tribunal has a difficulty with the evidence that the fund created by the suggested repayment by David Chi was applied to the repayment and making of loans to Thanh and Tam.
In considering the evidence relevant to the Thanh and Tam loans, the first observation is that all advances were in cash and are not supported by any documentation. Next, it is noted with some concern that the transactions entered into with Thanh and Tam bear a remarkable similarity inasmuch that – both lent cash to the applicant at about the same time in 1993 to assist with the purchase of land – both requested repayment plus extra sums in April 1994 for projects being contemplated – and both refunded the resultant advances plus additional monies in May/June 1994 when they decided not to proceed with those projects. Lastly, it appears likely that the greater part of those advances remain outstanding.
The evidence pertinent to the Thanh debt is summarised in the following terms. The applicant stated that she approached Thanh on the recommendation of Bang who had nominated to her an asking figure of $10,000 and that Thanh had paid to her cash to the extent sought one month after making the request because of Thanh's need to speak with his wife and to recall monies he had lent to friends. There is conflict in that evidence insofar as Bang telling the Tribunal that he was not involved in suggesting any figure to the applicant and Thanh's statement that the cash was paid to the applicant within minutes of the request being made. The borrowing of $13,500 by Thanh for the purchase of a particular car seen advertised for sale at about $13,500 was confirmed by Thanh who also accepted that, prior to this borrowing, he possessed cash of between $5,000 and $6,000 which was being held in reserve as a safeguard against the possibility of acquiring a more expensive vehicle. Within a period of two to three weeks, Thanh, having decided not to purchase any vehicle, offered to repay to the applicant $13,500 plus an additional amount of $1,500. Upon acceptance of the offer, cash totalling $15,000 was handed to the applicant. According to Thanh, the $15,000 was paid over in a lump sum, whereas the applicant maintained that there were two instalments involved, one for $13,500 and the other for $1,500, which explain deposits made into her bank account on 9 May 1994 and 11 May 1994. The net result of those transactions left the applicant indebted to Thanh to the extent of $11,500 which, according to the applicant, has since been reduced by a payment of $2,000 or $3,000 by Bang in about 1996 or 1997. In the course of Bang's evidence, he denied having made any payments in reduction of the debt.
The only testimony before the Tribunal regarding the loans by Tam and Do is that given by the applicant and which is outlined earlier in these reasons. However, it is repeated that both loans involved cash and that no documentary or corroborative evidence was presented to the Tribunal.
In the Tribunal's opinion the evidence adduced in connection with the loans by Thanh, Tam and Do is insufficient to enable a finding of the facts necessary to support the submissions made on behalf of the applicant. In more simple terms, the Tribunal is not actually persuaded that the facts outlined occurred or existed in the manner described. The onus placed upon her by sub-section 14ZZK(b) of the Taxation Administration Act has not been discharged. In arriving at this conclusion, the Tribunal has had regard to all the circumstances surrounding these loans, including the nature of the transactions, the unreliable quality of evidence presented to the Tribunal and, in the case of Thanh, the discrepancies in the evidence tendered. Had it been necessary, the Tribunal would have inferred from the failure of the applicant to call Tam and Do that their evidence would not have assisted her cause.
The witness, Ho Thi Nho, presented in an honest and forthright manner. Notwithstanding an incorrect answer to a question related to the dating of correspondence attached to the "Hui" contract, which the Tribunal regards as no more than a mistake, her evidence is accepted as being truthful. On the basis of that acceptance and the "Hui" contract which was tendered into evidence, the Tribunal is satisfied that the "Hui" came into existence in December 1993 and that the applicant, Bang and Huong were members of the group. Furthermore, it is accepted that all three were successful bidders and that their entitlements were handed to the applicant and Bang by the organiser approximately one week after the draw. In the case of the applicant, her entitlement amounted to $7,425, which she received on or about 3 October 1994 and which, it was submitted, formed part of the $10,000 bank deposit made on 4 October 1994. Bang's entitlement of $7,340 was received on or about 3 September 1994. In terms of the evidence, $5,000 was passed to the applicant who deposited same into her bank account on 27 September 1994 with the balance being retained by Bang and applied towards the payment of future contributions to the "Hui". The delay in banking the $5,000 was put down to difficulties experienced by the applicant in visiting the bank because of work commitments. On the balance of probabilities, and in the matter of the $5,000 the line is a fine one, the Tribunal is satisfied that the amounts of $7,425 and $5,000 representing draws from the "Hui" were deposited into the applicant's bank account during the 1995 income year and, to that extent, her taxable income should be reduced.
The position of the monies received on behalf of Huong is more problematic. For the applicant to succeed on this issue, she needs to establish that the cash amount of $7,435 is reflected in her bank balance as opposed to it being applied towards the meeting of unrecorded expenditure. In the latter situation, it seems that the effect on the source and application formula would be neutral.
The testimony as to the disposal of the "Hui" cash received on Huong's behalf is far from convincing. The evidence is that the money, when received on or about 27 November 1994, was separated into two bundles – one of $5,000 which was kept at home until banked on 19 December 1994 and the other of $2,435 which was carried by the applicant in her handbag until it was banked on 16 December 1994 as part of a deposit of $3,000. The applicant's explanation that the cash was retained for a time because "she liked it" is, in the opinion of the Tribunal, vacuous and unhelpful. In all of the circumstances, the Tribunal is not persuaded that the amount of $7,435 formed any part of the bank deposits made on 16 and 19 December 1994.
The alleged surpluses derived by Bang from the playing of cards and deposited into the applicant's bank account are now considered. By way of introduction, the Tribunal commences with the following observations. First, the Commissioner acknowledged the possibility of Bang having participated in the playing of cards for money. It is the extent of that activity and the monies so derived that is in contention. Secondly, the result of the dispute is dependent upon the Tribunal's view of Bang's evidence on this subject. Thirdly, that Ho Thi Nho, Bang's mother and next door neighbour, and the one witness viewed favourably by this Tribunal, stated that she did not know that Bang gambled.
As previously indicated, the Tribunal finds Bang to be a discredited and unreliable witness. The indecisive nature of his evidence on when the record of gambling wins and losses was disposed of further confirmed that view. It is the decision of the Tribunal that the acceptance of Bang's evidence on winnings generated from gambling is contingent upon it being corroborated by some independent source. No such support was forthcoming and, on that basis, the Tribunal is not persuaded that the identified credits to the applicant's bank account represent amounts won by Bang from the playing of cards. Notwithstanding the apparent availability of Dr Who and, no doubt other players, none were called to give evidence. Once more, had it been necessary, the Tribunal would have inferred that their evidence, had they been called, would not have helped the applicant's case.
The Tribunal moves to a consideration of the amounts expended by the applicant on living expenses for all of the three years in question and begins with the reiteration that on this issue the applicant must show not only that the assessments are wrong, but what corrections should be made to make them right or more nearly right. As pointed out in the course of the hearing, the Tribunal would have been receptive to the acceptance of estimates based on a reasonable foundation.
It will be recalled that the method applied by the Commissioner in quantifying living expenses for the first of the three years differed slightly from that used for the other years. For the first year, living expenses of $13,792 were calculated on the basis of gross salary received less tax instalment deductions and other amounts either banked or expended on items not regarded as being personal living expenses. For the subsequent years, the amounts of $24,646 and $21,239 were arrived at by the subtraction only of the tax instalment deductions from the gross salary. It appears that the applicant's representative adopted and extended the method outlined for the first year and that the modifications made produce living expenses of $2,190 in 1994, $8,546 in 1995 and $11,961 in 1996. The deductions made from the net salaries included bankings of $10,400, $5,260 and $1,528 respectively, contributions to the "Hui", allowances for other items of expenditure paid by cash and estimated amounts of cash on hand as at the end of the years. The Tribunal was referred to those parts of the applicant's evidence concerning amounts expended on some items pertaining to living expenses and which, it was said, indicated a frugal life style. It was claimed that the figures resulting from the re-calculations were more in keeping with such a life style.
The adoption of the system proposed by the applicant may be appropriate in certain circumstances. In this instance, we have a situation where, with very rare exception, all transactions were for cash and no record of those transactions was maintained. Additionally there exists the problems arising from the Tribunal's view that the applicant was an unreliable witness. With those points in mind, it seems at least possible that the information before the Tribunal may not present the whole picture. Subjecting data of this kind to mathematical analyst in an effort to estimate amounts of living expenditure is not, in the Tribunal's opinion, an acceptable means of discharging the onus of proof. Although the Tribunal has misgivings as to the accuracy of the figures arrived at by the Commissioner, it is left in the predicament of the applicant not demonstrating by an acceptable method what corrections should be made to rectify the position. Nor, in the circumstances, is the Tribunal able to estimate the amounts expended by the applicant on living expenses. For these reasons, the amounts used by the Commissioner in his calculations must prevail. Perhaps, it is unfortunate that the Tribunal's indication that the preparation of a schedule setting out reasonable estimates of items of expenditure normally encountered in maintaining self, family and property may be of assistance was not acted upon.

The final matter to be determined is the degree of penalty tax imposed by the Commissioner for the "tax shortfall" caused by the behaviour of the applicant. A tax shortfall is the difference between the tax properly payable and the tax payable on the basis of statements made by a taxpayer. The submission made on behalf of the applicant was put in the alternative: one, that there was no shortfall and thus the issue of penalty tax does not arise and, two, that, in the event of the Tribunal finding against the applicant because she has not discharged the onus of proof, a lesser percentage of 25 would be more appropriate. As to alternative two, the reality is that the Tribunal will affirm the greater part of the Commissioner's decision on the objection which translates into the conclusion that the applicant has grossly understated her assessable income and that such non-disclosure has resulted in a tax shortfall. The task of the Tribunal is to assess how the applicant's behaviour impacted on that shortfall.
The Commissioner contended that the tax shortfall has been caused by the recklessness of the applicant and that, in terms of section 226H of the Act, penalty tax of 50% of the amount of the shortfall should be imposed. The Tribunal accepts that recklessness is gross carelessness, that is, the doing of something which in fact involves a risk, whether the doer realises it or not, and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as reckless – see Shawinigan Ltd v Vokins & Co Ltd [1961] 3 ALL ER 396.
A comparison of section 226H with the provisions comprised in sections 226G and 226J is helpful in understanding how the differing classifications of a taxpayer's behaviour might influence the penalty rate. Section 226G instructs that the penalty be 25% where the shortfall is caused by lack of reasonable care. However, where the shortfall is caused by intentional disregard of the law, section 226J provides that penalty be 75% of the shortfall.
The Tribunal has had regard to all of the circumstances and sees no reason to reduce the penalty percentage imposed by the Commissioner.
For the reasons enunciated, the Tribunal sets aside the decisions under review and in substitution therefor decides that the applicant's objection should be allowed to the extent of reducing her taxable income by the following amounts:
For the 1995 Year
Amounts received from "Hui" and deposited
into applicant's bank account  $12,425
Term deposit incorrectly brought to account
and conceded by Commissioner   $3,500
For the 1996 Year
Expenditure duplicated and conceded by
Commissioner   $2,050
In all other respects the decisions under review are affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.T. Trowse (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  11-14 July 2000, 21 August 2000, 28-29 August 2000, 16 October 2000
Date of Decision  24 November 2000
Counsel for the Applicant        Mr K. Schurgott
Solicitor for the Applicant         Thomson Playford
Counsel for the Respondent    Mr S. Cole
Solicitor for the Respondent    ATO

[2000] AATA 1044

24 November 2000

Key Legal Topics

Areas of Law

Taxation Law

Legal Concepts

Onus of Proof

Income Tax

Unreported Income

Penalty Tax