NT1998/212-215 and Commissioner of Taxation

[2000] AATA 827

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2000] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No NT98/212/213

GENERAL ADMINISTRATIVE  DIVISION		)              NT98/214/215
Re		CONFIDENTIAL

Applicant

Re CONFIDENTIAL

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date12 September 2000 

PlaceSydney

Decision  The objection decisions are affirmed.

..............................................

BJ McMahon
  Deputy President

CATCHWORDS

TAXATION – income tax – assessable income – business activities – deposits made into accounts assessed as dividends received from taxpayer’s company – capital gains tax – whether property was the sole or principal residence of the taxpayer – objection decisions affirmed.

Income Tax Assessment Act 1936 – ss 160Z, 160ZZO, 160ZZQ(12), 167, 221YYHZK

Taxation Administration Act – ss 14ZZK

AAT Case 26/93 (1993) 93 ATC 320

Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614

REASONS FOR DECISION

12 September 2000 Mr B.J. McMahon (Deputy President)     

1. These applications arise out of four assessments issued under section 167 of the Income Tax Assessment Act 1936 against a husband and a wife. Neither of them lodged income tax returns for the years ended 30 June 1994 and 1995. They were the only shareholders in an importing company. The assessments arose from an examination of accounts in the names of the husband and wife with the Commonwealth Savings Bank, Artarmon (the CBA accounts). The Commissioner assessed deposits made into these accounts as dividends received from the company.

2.      The second origin of the assessments came from dealings with a house which I will refer to as 105 White Road. In the 1995 year, the former house at that address was demolished and a new dwelling erected. The new dwelling was ultimately sold and an amount of capital gains tax was included in the assessment for each of the husband and wife in the 1995 year.

3.      For the year ended 30 June 1994, the applicant husband was assessed on a taxable income of $588,725, representing deposits to his CBA account and bank interest of $2,050. In the second assessment year, he was assessed on a taxable income of $677,035, representing deposits made into his CBA account during that year of $430,379, bank interest of $1,468 and a net capital gain of $245,188. The wife was assessed in the 1994 year on a taxable income of $217,589, representing deposits paid into her CBA account, together with bank interest of $1,763. In the second assessment year, she was assessed on a taxable income of $498,290, representing deposits into her CBA account of $252,342, bank interest of $760 and a net capital gain of $245,188.

4.      It is important to know something of the husband’s personal background. He was born in China in 1950 and attended primary school to grade 5. At the age of 12, he left China with his brother and came to Hong Kong. While there he attended an evening college to study English and the following year obtained employment as a trainee clerical assistant in a bank. He stayed there for five and a half years until he joined an oil company as a clerk. After employment with that company for one year, he obtained employment as a clerk with another trading company and then progressed to the Star Foreign Exchange, where he practised as a dealer in foreign exchange for three years.

5.      After that, he went to work for Liu Chong Hing Bank Limited, where he was employed for three years as a foreign exchange dealer. He later took up a position as an administration manager with a construction company. He was to stay with that company for the next 13 years.

6.      In 1987, he came with his wife and only son to Australia. He had remitted approximately $200,000 from Hong Kong to establish funding in this country and in order to obtain approval for permanent migration. After a while, he returned to Hong Kong as he was still employed and resident there. Once the family had decided to stay in Australia he resigned and returned under a business migration program.

7.      The wife had been living here with their only child since 1987. The husband arrived in December 1989 intending to settle permanently. They immediately started business as an importer, wholesaler and distributor of Chinese and Asian goods through the company in question. In addition to this company, a number of other companies were incorporated with professional assistance. Apart from the fact that the existence of some of them was not disclosed to the respondent’s auditor, and apart from the fact that the principal company for a time was unregistered but continued to maintain a bank account, it will not be necessary to mention these companies or their activities in these reasons. The assessments essentially relate to monies received by the individual applicants. If one is to accept their accounts of the way in which the relevant monies came into their possession, then one must depend to a large extent upon their credit.

8.      It will be seen that the husband has had considerable experience in the handling of money through foreign exchange dealings and through employment with banks. His formal education was not extensive. His practical experience in business, however, was widely based. In Australia, he engaged accountants to advise him from time to time and incorporated a number of companies apart from the trading company with which the assessments are principally concerned. There is no evidence as to the wife’s business background. She presented in her evidence, however, as an alert, intelligent woman. Their son is now an economics student at university. The family continue to live in their own house on the upper north shore of Sydney. I formed the view (contrary to some of the assertions by the husband) that they were familiar with Australian business conditions and operated easily within their parameters. I do not accept any explanation that relies upon their ignorance to account for some of the matters to which I will turn.

9.      There were three principal explanations offered to account for the large amounts of monies deposited to the two savings accounts. The husband gave most of this evidence. The wife appeared to have little understanding of the movements into and out of the account which stood in her name. She was accustomed to obeying her husband in signing whatever document he requested. The three principal explanations for the deposits can be referred to as the loan from the nephew, the cheque swapping for the relative and the fruit joint venture. I will deal with each of those in turn.

10.     About 1990, the husband wished to expand the business of the company. He discussed a proposal with the ANZ Bank at Chatswood (where the company banked) that it might borrow approximately $2,000,000 for this purpose. The bank officer told the husband that before the bank would consider such an application, it would need accounting information in order to determine whether the company had the ability to repay the loan. About that time, his nephew approached him and said that he had a reasonably large sum of money which he was looking to invest. He told the husband that he had obtained this money from selling some Chinese artefacts on coming to Australia. The husband’s evidence was that following discussions with him, he and his wife borrowed from the nephew a total sum of $1,650,000. This money was received between November 1991 and September 1994 in numerous advances in cash.

11.     The nephew was not called to give evidence. There was no explanation given for the ongoing availability of the nephew’s capital in tranches over three years. No explanation was given why all the money would not have been available initially if it had arisen from the sale of artefacts. No explanation was given as to how such an arrangement could be seen as a desirable alternative to the borrowing of a large capital sum from a bank in order to expand the business of the company. There was no loan agreement produced. The husband considered that this was not unusual. In the circumstances, I find it unbelievable.

12.     The terms of the borrowing were said to be that the loan (presumably each sum advanced) was repayable at one month’s notice unless the circumstances of its investment made that impracticable, for example if the money had been invested in real estate. There was no evidence that any demand for repayment of any particular advance had been made at any time. The husband asserted that there was no provision for payment of interest, but said that any profit generated by utilisation of the funds was to be divided between the nephew, the husband and the wife on an equal basis. Notwithstanding this alleged agreement, no part of the monies said to have been received from the nephew was ever invested in a profit-making undertaking. They were used for the purchase of a house for the husband and wife, and allegedly for the cheque swapping arrangements to which reference will later be made. Some of the borrowings were also said to have been used in the business of the company but, according to the husband, that company never made a significant profit.

13.     In 1995, the sum of $550,000 in cash was said to have been repaid to the nephew as a partial discharge of the borrowings. These funds came from the proceeds of the sale of 105 White Road. The amended assessments issued on 3 September 1996. The husband said that his brother repaid the balance of the borrowings owing to the nephew, namely $1,100,000, later that month, and he then became liable to repay that amount to his brother. A document was drawn up evidencing these transactions. In my view, it is a sham. Firstly, it is not expressed to be with the husband and the wife, although the wife was said to be a joint borrower. Secondly, as the husband readily admits, the deed was drawn up merely to satisfy inquiries that had been made by the tax auditor. Thirdly, provision for important terms of the deed in the schedule have not been completed. Fourthly, there was confusing and unconvincing evidence concerning the execution of the document. The husband’s brother was not called to give evidence. The so-called deed is not dated. The evidence clearly placed its creation, however, during the month of September 1996. At that stage, the auditor had not been told of the alleged arrangements with the nephew. This document was created, in my view, solely to give verisimilitude to a fiction which was later to appear in evidence before this Tribunal.

14.     In the 1994 year, there was deposited to the husband’s credit with his CBA account a sum of $586,675 in cash and cheques. An amount of $215,826 in cash and cheques was deposited to the account of the wife in the same year. In the 1995 year, the account of the husband received $430,379 in cash and cheques, but the account of the wife was the recipient mainly of cash. The addition of three small cheques made the amount credited to her account in that year $525,342. The cash amounts are said to have been advances from the nephew. The cheques are said to have been received from the relative in the cheque swapping enterprise to which I will refer.

15.     Even on the applicant’s own story, these figures are incredible. No explanation was given as to why the sum was advanced in odd small amounts in cash. All deposits were less than $10,000. Sometimes deposits were made more than once on the  same day from which one can assume that the husband travelled from his warehouse at Guildford to Artarmon in order to make the deposits. Even if one assumes the genuineness of the alleged loan agreement, there was no attempt to share the profits derived from bank interest with the nephew. The applicant husband asserted that at all times he held amounts of cash in his house varying from $30,000 to $500,000. No explanation was given for this extraordinary behaviour, nor was any attempt made to explain why the amounts were not banked with all the other cash receipts.

16.     On the husband’s own evidence, the draw downs were from November 1991 to September 1994. The records of the two accounts, however, show that prior to November 1991, cash sums unaccounted for totalling $710,766.52 were paid into the husband’s CBA account between 11 August 1988 (when the account was opened) and 1 November 1991, when the arrangement with the nephew was said to commence. From October 1994 (after the arrangement with the nephew was supposed to have ended) to 9 May 1995 (when the account was closed) further sums totalling $786,855.34 were paid to the credit of the husband’s account.

17.     No records of the nephew’s banking transactions were put in evidence to explain the coincidence of draw downs from the alleged loan and deposits to the CBA accounts. No explanation was offered for the absence of any loan agreement. The supposed deed that was tendered in evidence in which the husband’s brother was supposed to take up liability is not credible. The real source of these deposits therefore remains unexplained.

18.     That they were a matter of concern to the husband is evident from the way in which the accounts were conducted and closed. No tax file number was supplied to the bank by either the husband or the wife. The copies of pass sheets in evidence show so-called TFN tax being deducted by the bank at regular intervals. Notwithstanding this, and notwithstanding the husband’s ability to obtain advice on these matters, the bank was kept in ignorance of the husband’s and wife’s tax file numbers for a number of years. Although trading accounts had been opened for the company (and possibly for other companies in the group) with the ANZ Bank Chatswood, no explanation was given why the Commonwealth Savings Bank at Artarmon was chosen as the recipient of monies destined to accounts standing in the names of the husband and wife. One can only assume an intention on their part to keep these activities secret from the management of the bank dealing with the company’s day-to-day trading transactions.

19.     The closure of the accounts also occurred in curious circumstances. Within days of the auditor first making contact with the husband, advising him that he was making inquiries about the husband’s and wife’s taxation affairs, the husband and wife visited the Artarmon branch of the CBA and closed the accounts forthwith. The husband agreed in cross examination that he did this in order to conceal the existence of the accounts from the auditor. He did not disclose them during the course of their first comprehensive interview which took place a few days after the accounts had been closed.

20.     The second explanation proffered for the deposits related to cheques. A relative of the wife was said to import Chinese health products. According to the husband, this relative approached him and asked him if he would give him cash for the face value of cheques he received in payment for sales of these products. It was his practice always to obtain cheques made out to ‘cash’ from his customers. The husband said that on these occasions, he gave him cash to the face value of the cheque and then paid the cheque either to his account or his wife’s account with the CBA. No explanation was given to indicate why any particular cheque was paid to the account of the husband, rather than to the account of the wife. Significantly, these monies were not paid to the company’s account with the ANZ Bank at Chatswood. The husband said that he was simply helping a relative and that this was a common occurrence within the Chinese community. He was not able, however, to give an example of offering such a service to any other member of the community. Occasionally cheques negotiated with the relative would not be met on presentation. If that occurred, the husband said he would ring the relative, who would then contact the drawer and arrange a time when the cheque could be re-presented. If a cheque was dishonoured on the second occasion, then the relative gave the husband cash to cover the value of the cheque.

21.     The relative became ill and returned with his wife to China where he died on 17 April 1996. However, the investigation had been on foot for almost a year at that stage. No attempt was made to obtain a statement from the relative before his death. Once again, corroboration of a most unlikely account was not available to the Tribunal.

22.     The relative’s wife returned to Australia to obtain her citizenship and returned to China in 1998. The husband said that his wife had made attempts to telephone her unsuccessfully. No evidence was given as to the extent of these attempts or the efforts that had been made to obtain any statement. The result is that there was no evidence either from the relative or from his wife. The existence of the cheque swapping arrangement was sought to be proved solely on the evidence of the applicants, mainly the husband. I do not accept this evidence. The arrangement has a totally unreal appearance. The applicants assert that all cheques deposited into the accounts were the result of these arrangements. The amounts deposited to the two accounts were $802,501 in 1994 and $682,721 in 1995. The husband and wife would have borne all bank charges and taxes. It is hard to accept that this would have been undertaken on such a scale.

23.     It was said that the relative could not afford to wait for cheques to be cleared and that the relative needed cash in order to pay for purchases of trading stock. This is quite unlikely as the relative always had cash available in order reimburse the husband for dishonoured cheques. Furthermore, it was not until the hearing before me that the husband volunteered that the cheques were postdated and that the encashment of them was because of the delay that would have otherwise been experienced with postdated cheques. Three of the cheques were retrieved from the bank and were tendered in evidence. None of them was dated after the corresponding date of deposit. Like the arrangement with the nephew, the cheque swapping arrangement was never mentioned to the auditor. It was not until a statement of facts and contentions was prepared in these proceedings that the arrangement alleged was first set out.

24.     The cheque swapping arrangements had no prospect of generating any profit for the husband and wife, yet they say they used cash funds which they had received from the nephew for this purpose. This was contrary even to the terms which they allege, namely that the nephew’s funds were to be invested at a profit. Furthermore, the arrangement had a high risk aspect for no profit.

25.     The third principal explanation for the deposits into the two CBA accounts related to the fruit export joint venture. There was said to have been an arrangement in which the husband was interested with an exporter of fruit to Asia. The venture was not successful and no profit was made. The exporter is said to have made some contribution which was banked to the husband’s CBA account. There is no indication why these monies were paid to the husband’s CBA account rather than to the company’s trading account with the ANZ Bank. There was no identification of any withdrawals in any event from the bank account to substantiate that it was used in connection with outgoings for the fruit export joint venture. In addition, the husband is said to have dispersed some of his own funds for the purchase of a property by the exporter and his wife, such funds being later reimbursed. A cryptic statement said to have been signed by the exporter was tendered in evidence as an attachment to the husband’s statement. In the absence of the exporter (who is alive) to corroborate these arrangements and in the absence of any testing of the arrangements through cross examination, I do not consider that the statement has any probative value.

26.     In Commissioner of Taxation v Dalco 168 CLR 614, a Full Court of the High Court held that the task for a taxpayer upon an appeal or a review is to show that the amount of money for which the tax is levied by a notice of assessment exceeds his actual substantive liability. A taxpayer does not prove that his taxable income was less than the amount shown in the assessment merely by showing that in some respects the Commissioner erred in the way in which he attributed income to the taxpayer or otherwise dealt with the material available to him. At 623, Brennan J said:

“But mere error in the formation of that judgment by the Commissioner does not warrant the setting aside of the amount assessed. Given the validity of the exercise of the power to make an assessment under section 167(b), the ultimate question is whether the amount of the assessment is excessive. The amount of the assessment might not be excessive in fact, though the reasons which led to the assessment were erroneous.”

27.     His Honour expressly approved of the observation of Wilcox J in the Full Federal Court hearing that “the task for the taxpayer upon an appeal or review under  Pt V of the Act, is to show that the amount of money for which tax is levied by particular notice of assessment exceeds the actual substantive liability of the taxpayer”.

28.     A good deal of hearing time was spent cross examining the respondent’s auditor in an attempt to show some procedural deficiencies in his method of interviewing and auditing. In my view, this was misconceived. There was clearly a basis justifying the default assessments raised. The history of regular large deposits to the two savings accounts, the unstable history of company incorporations and de-registrations to which the auditor referred in his initial report, the absence of bank accounts for some companies, the conduct by the husband of the trading company’s ANZ bank accounts after the company had ceased to exist through failure to file proper returns, the conduct of the husband in closing the two accounts and the failure to give any explanation until proceedings in this Tribunal, all justified the making of the assessments. It then became the task of the applicants to show on the balance of probabilities that the amounts of the assessments were excessive. This could be done only by showing affirmatively, the correct amount of taxable income. Neither applicant has made any attempt by business records or expert accounting evidence to show this.

29.     Their case is that every dollar assessed to them as taxable income was disputed. In the absence of any return, in other words, they ask the Tribunal to find that they had no assessable income in these two years. This is a finding I am clearly not prepared to make. It is not sufficient for the applicants to show (as they have attempted) that the monies treated by the respondent as being their income are not in truth their income. More is required of them in order to discharge the heavy onus they bear under section 14ZZK of the Taxation Administration Act . They had an onus to show what part of the bank deposits assessed as income was not their income, or to explain how they lived and conducted various businesses for two years without income, or to show what their real taxable income was otherwise during those two years. They have failed to do this.

30.     The CBA accounts served an undoubted purpose. They enabled large cash deposits from whatever source to be converted into bank cheques. The respondent has presumed the source to be business income. This remains the fact until the applicants prove otherwise on the balance of probabilities. The deposits are likely to have been undeclared business gross income for a number of reasons, although it is not necessary for me to find this affirmatively. All business expenses of the company were paid in cash. That conduct is consistent with an intention not to return business income. The failure to record business income could account for the small profit said to have been made by the company in 1994 and 1995.

31.     The story of the draw downs of loan from the nephew clearly do not account for the deposits as large amounts were put in before and after the period of the supposed arrangement. It is not necessary to find that the husband and wife in reality traded in partnership and used their CBA accounts for the business. The fact is, that neither has affirmatively proved that the amount of taxable income assessed to them is excessive.

32.     The second basis for the assessments was said to be the capital gain arising from the acquisition and sale of 105 White Road. A house previously at that address was purchased by agreement dated 18 March 1988. The husband, the wife and their son lived there from 1989 to 1993. They decided to demolish the existing house and to build a new home on the same block. Although there were only three members of the family, they decided to build a house containing five bedrooms and six bathrooms. A building application was lodged on 5 March 1993. The following day they entered into an agreement to lease 24 Black Avenue for 12 months beginning from 15 March 1993. They moved from temporary accommodation to that address on that day. All their furnishings from 105 White Road were moved into the Black Avenue property. The White Road house was demolished about that time. Council approval was obtained on 25 May 1993 and a building contract was entered into the following month. Progress payments were made to the builder, mostly in sums of five or ten thousand dollars. All were in cash. The husband was not able to say whether these sums corresponded with draw downs from the nephew’s loan, although he agreed that the monies came from that source.

33.     It was the husband’s evidence that the family was not happy living at Black Avenue. The neighbours complained about his wife’s dog and caused other unspecified problems. Eventually the new dwelling at 105 White Road was habitable though not completed. Final completion did not take place until 10 August 1994, when a satisfactory building inspection certificate was issued by the Council on that day. It was the husband’s case, however, that the family had moved in two months previously in June. According to his statement of evidence, some of the furniture was moved from Black Avenue to White Road. In cross examination, however, it appeared that the only furnishings were one mattress for each of the three persons, a folding table and folding chairs and some cooking utensils. All of this was kept in a cupboard under the stairs from time to time. Records of electricity, water and telephone connections to White Road are equivocal. It is clear, however, that during the whole time in which the family is said to have been living in White Road, namely between June and December 1994, the telephone continued to be connected at Black Avenue, and rent continued to be paid for that house.

34.     The husband said that shortly after commencing to live again in 105 White Road, the family was approached by a real estate agent who said he could obtain a very high price for the property. A sales agency agreement was signed on 19 June 1994 (some two months prior to building completion). The husband’s evidence was that the family did not wish to sell the house but merely wished to ascertain the value of the property. An auction sale took place on the site on 27 August 1994 (17 days after the Council’s certificate). The husband’s evidence was that in accordance with the estate agent’s suggestion, the family had cleared out the residence a few days beforehand to make it look as if nobody had lived there. A few days after the auction, the family is said to have moved back in. The highest bid was $1.26 million which was substantially less than the $1.75 million the agent said the property might be worth. That bid was not accepted.

35.     Shortly afterwards, the agent scheduled another auction for 12 November 1994. Close to that date, however, the auction was cancelled as the agent was not confident of sufficient interest in the property. It was the husband’s evidence that the family was still living at 105 White Road at the date of the proposed second auction.

36.     His evidence further was that although the large house had been designed for their purposes “to show off to our friends and to impress business people” it was not satisfactory and they reached the conclusion that they could no longer live in the house. They therefore moved out in December 1994 and returned to live at 24 Black Avenue. In April 1995 they entered into a third sales agency agreement for 105 White Road. The agent was successful in finding a buyer and the property was eventually sold for $1.2 million on 6 May 1995. The profit on sale has been brought to tax as a capital gain under section 160Z for the 1995 year.

37. The applicants sought to take advantage of section 160ZZQ(12). That subsection provides that a capital gain is not to be deemed to have accrued to the taxpayer on the disposal of a dwelling if “throughout the relevant period” it was the “sole or principal residence of the taxpayer”. The “relevant period” is defined in subsection (1) to mean the period during which the dwelling was owned by the taxpayer. The use of the word “throughout” indicates that the exemption has application only if the dwelling was the sole or principal residence of the taxpayer for the whole of the period. Whether or not a dwelling is a sole or principal residence is not merely a question of fact. It also requires an intention on the part of the taxpayer that the dwelling should have that status. During the whole of the relevant period, there were two dwellings in existence, namely the White Road and the Black Avenue dwellings. The question is to determine the intention of the applicants as to which was to be their principal residence for the whole of that period (Case 26/93, 93 ATC 320 at 322).

38. As the original dwelling was demolished in March 1993 and a new dwelling was constructed on the site between that date and 10 August 1994, the applicants could only come within the exemption in section 160ZZQ(12) with the aid of subsection (5) for the construction period because it would have been physically impossible for them to live either in the new or the old dwelling throughout the relevant period. I have no doubt that Black Avenue was their principal place of residence during the whole of the relevant period. Almost all of the furniture was kept there and they maintained the lease on that property from month to month after it had expired. Although the applicants contend otherwise, the probabilities are that they never actually resumed living at 105 White Road at all. Certainly, it was not their principal residence during the whole of the relevant period, nor was it their intention that it be so. Accordingly, subsection (5) is not available to the applicants. The new dwelling did not become their principal place of residence as soon as practicable after its construction. In my view, it did not become their principal place of residence after they left it prior to demolition. Ultimately, they moved from Black Avenue to another address in White Road after the sale of 105 White Road.

39.     From its plain lexical meaning, there can be only one principal place of residence at any one time. At all relevant times before the demolition, during the construction period, during the sales and preparations for the auctions and afterwards, until the purchaser entered into possession of 105 White Road, the principal place of residence, in my view, for both the husband and the wife was Black Avenue. This conclusion is supported by other factual evidence. White Road was listed and put up to auction on 27 August 1994, as soon as possible after the building work was certified complete by the Council on 10 August 1994. It remained on the market continuously until it was sold. There was evidence that there was no need of a removalist when they moved their few belongings from White Road a second time back to Black Avenue. There was no satisfactory explanation for the disconnection of the telephone at White Road between 31 August 1994 and 6 October 1994. There was no convincing evidence to explain the size of the newly erected house.

40. Accordingly, there being no entitlement to an exemption from the obligation to return the capital gain, the respondent properly included that sum as to one half share each in the 1995 income year assessments of the applicants under section 160ZZO. The calculations supporting the assessment indicate that the applicants have been given the benefit of the Division 18 principal residence exemption up until June 1993, when they vacated the properly in order to demolish it and build a new residence. The only capital gain brought to account (that is, the only capital gain for which they have been denied the principal residence exemption) is for the period from June 1993 until the sale of the property on 16 May 1995.

41. A submission was raised by counsel for the applicants that his clients should be given credit in any event for the TFN tax deducted by the Commonwealth Bank from the interest credited to the two savings accounts at Artarmon. I accept the respondent’s submission that the TFN credit arises by operation of law by virtue of the deduction of the TFN tax at source. The credit does not form part of the assessment process of the respondent in respect of each of the applicant’s taxable income for the two years in question. The effect of section 221YYHZK is to make the amount of that credit available to each applicant in any recovery action. I assume, therefore, that this will be taken into account if it becomes necessary to institute any such action.

42.     For the above reasons, the objection decisions are affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed:         .....................................................................................
  Dominika Rajewski, Associate

Date of Hearing  01 November 1999,

28-29 February 2000,

06-07 March 2000,

09-10 August 2000  

Date of Decision  12 September 2000
Counsel for the Applicant                         Mr C L Lonergan
Solicitor for the Applicant  P W Turk & Associates
Counsel for the Respondent                      Mr Christopher Bevan
Solicitor for the Respondent   Australian Government Solicitor