"The Taxpayer" and Commissioner of Taxation
[2007] AATA 1185
•23 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No WT200400355, 483 - 484
TAXATION APPEALS DIVISION ) Re “THE TAXPAYER” Applicant
And
COMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date23 March 2007
PlacePerth
Decision The Tribunal affirms the decisions under review. ........(Sgd. Mr A Sweidan)..................
Senior Member
CATCHWORDS
FRINGE BENEFIT TAX – living away from home allowance – whether GST Rulings have application to FBT
LEGISLATION
Fringe Benefits Tax Assessment Act 1986 (Cth) ss 30, 31 and 136
Fringe Benefits Tax Act 1986 s 5
Taxation Administration Act 1953
A New Tax System (Goods and Services) Tax Act 1999
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
George v Federal Commissioner of Taxation (1952) 86 CLR 183
Commissioner of taxation v Dalco (1990) 168 CLR 614
Federal Commissioner of Taxation v ANZ Savings Bank Ltd (1994)181 CLR 466
Crane v Commissioner of Taxation [2005] AATA 872
Best v Commissioner of Taxation [2005] AATA 560
State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329
Douglas Thomas Dean and Douglas Stuart McLean v The Commissioner of Taxation of the Commonwealth of Australia [1997] FCA 861
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1
Marana Holdings Pty Ltd v FCT (2004) 214 ALR 190
Bellinz and Others v Commissioner of Taxation (1998) 84 FCR 154
REASONS FOR DECISION
23 March 2007 Mr A Sweidan, Senior Member Background
1.An employer who is dissatisfied with an assessment of fringe benefits tax (“FBT”) made under the Fringe Benefits Tax Assessment Act 1986 (“FBTAA 1986”) may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953 (“TAA 1953”): see FBTAA 1986, s 78A and TAA 1953, s 14ZL. The term “assessment” is defined in s 136 as the ascertainment of the fringe benefits taxable amount of an employer and of the tax payable on that amount.
2.The applicant objected to assessments of FBT in respect of living away from home allowances paid to its employees for the years 1998 to 2002. The objections for the years 1998 and 1999 were out of time and the applicant requested the respondent to treat them as lodged within time: see TAA 1953, ss 14ZW(2) and 14ZX. The Commissioner disallowed the objections and denied the request in relation to the 1998 and 1999 years. The applicant seeks a review of the objection decisions by this Tribunal
The objections
3.There were initially 3 grounds of objection which were identical in each application: see e.g. the grounds for the 2002 year at T13, 113-124. The notice of objection for the 2002 year was lodged first and is dated 14 January 2004; notices for 1998, 1999, 2000, and 2001 are all dated 4 February 2004. The applicant claimed in each instance that the assessment is excessive as the allowance paid to its employees was not a living away from home allowance fringe benefit under FBTAA 1936, s 30(2). In particular it claimed:
(a)Ground 1 and 2: the cabin facilities on the mobile offshore drilling rigs are not residential accommodation so the allowance paid does not come under s 30(2). In support of this ground the applicant claimed that its position is supported by the Commissioner’s public ruling GSTR 2000/20 and a private GST ruling made on 19 September 2002, which was subsequently withdrawn and later re-issued.
(b)Ground 3: the allowance is a travelling allowance and constitutes salary and wages, and was not a living away from home allowance.
4.The applicant did not dispute in the objections that it paid the allowance as an employer to its employees.
The Contentions and Issues in the Tribunal
5.By s 14ZZ of the TAA 1953, the applicant may apply to the Tribunal for review of the respondent’s objection decisions. The applicant may also apply for review of the decision to refuse the request to treat the two objections as within time: see s 14ZX(4).
6.In its statement of contentions the applicant repeated it’s grounds of objection and further contended that:
(a)it is not the employer within the meaning of s 136 of the FBTAA 1986 (Contention 1 in support of Objection Ground 1, and proposed additional Objection Ground 4);
(b)a reasonable person could not conclude that the allowance is in the nature of compensation for disadvantages to which the employee is subject (Contention 1 in support of Objection Ground 1); and
(c)the employees are not required to live away from their usual place of residence in order to perform their duties (Contention 1 in support of Objection Ground 1).
The question for the Tribunal is whether the decision of the respondent disallowing the objections was the correct or preferable one on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.
8.In reviewing an objection decision, regard must be had to Part IVC of the TAA and in particular s14ZZK. It is clear that in an appeal from an assessment of taxable income the burden lies upon the taxpayer of establishing affirmatively that the amount of taxable income for which he has been assessed exceeds the actual taxable income which he has derived during the year of income: see George v Federal Commissioner of Taxation (1952) 86 CLR 183 at 201. In this case, where the appeal is from an assessment of FBT, the burden is on the applicant to establish that the amount of FBT assessed by the respondent is excessive.
8. The issue for determination by the Tribunal is whether the applicant has satisfied the burden cast by s 14ZZK of proving that the assessment is excessive. Whether an assessment is excessive refers to the amount of the assessment, not to any unauthorised step in the process of its calculation. (see Commissioner of Taxation v Dalco (1990) 168 CLR 614 at 626; and Federal Commissioner of Taxation v ANZ Savings Bank Ltd (1994) 181 CLR 466 at 479.)
9.In the Tribunal’s view the key question is whether the relevant amounts paid to the employees were living away from home allowances as defined in s 30 of the FBTAA.
The Statutory Framework
10.By s 5 of the Fringe Benefits Tax Act 1986 (“FBTA 1986”) tax is imposed “in respect of the fringe benefits taxable amount of an employer of a year of tax.”
11.Section 66(1) of the FBTAA 1986 provides that, subject to the Act, "tax imposed in respect of the fringe benefits taxable amount of an employer of a year of tax is payable by the employer."
12.By s136 ,
“fringe benefits taxable amount has the meaning given by section 5B”.
13.Section 5B provides formulae for working out the fringe benefits taxable amount of an employer for a year of tax. That amount is calculated by reference to the taxable value of each "fringe benefit" provided: see ss 5B and 5C.
14.Relevantly, s 136 also defines fringe benefit, living-away-from-home allowance benefit and living-away-from-home allowance fringe benefit as follows:
“fringe benefit, in relation to an employee, in relation to the employer of the employee, in relation to a year of tax, means a benefit:
(a) provided at any time during the year of tax; or
(b) provided in respect of the year of tax;
being a benefit provided to the employee or to an associate of the employee by:
(c) the employer;
… in respect of the employment of the employee….
living-away-from-home allowance benefit means a benefit referred to in section 30.
living-away-from-home allowance fringe benefit means a fringe benefit that is living-away-from-home allowance benefit.”
15.Part III of the FBTAA 1986 sets out different categories of benefits. Relevant in this case is Division 7, comprising ss 30 and 31. By s 30(2):
“If:
(a) at a particular time after 10 October 1991, in respect of the employment of an employee of an employer, the employer pays an allowance to the employee; and
(b) the employee’s usual place of employment is on an oil rig, or other petroleum or gas installation, at sea; and
(c) the employee is provided with residential accommodation at or near that usual place of employment; and
(d) the allowance is expressed to be paid as a living-away-from-home allowance; and
(e) no part of the allowance is covered by subsection (1[1]) and
(f) it would be concluded that the whole or a part of the allowance is in the nature of compensation to the employee for disadvantages to which the employee is subject, during a period, by reason that the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment;
the payment of the whole of the allowance constitutes a benefit provided by the employer to the employee at that time.”
16.
Section 30(2) was introduced in 1991. The Explanatory Memorandum to Taxation Laws Amendment Bill (No. 3) 1991, later enacted as Taxation Laws Amendment Act (No. 3) 1991, No 216 of 1991 sets out the background to the then proposed amendment as follows:“Chapter 1 FBT Assessment Act - Living Away From Home Allowance Benefits
Overview
Ensures that living-away-from-home-allowances paid to offshore oil and gas rig workers are treated as fringe benefits.
Summary of proposed amendments
1.1. The Bill will amend the fringe benefits tax law to ensure that living-away-from-home-allowances (LAFHAs) paid to offshore oil and gas rig workers are treated as fringe benefits.
Background to the legislation
1.2. When fringe benefits tax (FBT) was introduced in 1986, the Government's intention was that all LAFHAs would be subject to FBT. The need to amend the fringe benefits tax law arises because the wording of a LAFHA provision in an offshore oil industry award was not sufficiently clear to bring it within the LAFHA provision in the FBT law.
Explanation of proposed amendments
1.3. LAFHAs are defined in section 30 of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) as being allowances paid to compensate an employee for additional expenses incurred by the employee or additional expenses incurred by the employee and other additional disadvantages that the employee is subject to while required to live away from his usual place of residence in order to perform his work duties.
1.4. Some LAFHAs paid to offshore oil and gas rig workers are paid solely to compensate the employee for additional disadvantages of living away from home. Because these allowances do not include a component for additional expenses incurred by the employee they do not fall within the definition of a LAFHA in section 30 of the FBTAA.
1.5. The proposed amendment will widen the definition of a LAFHA to include those allowances paid to offshore oil and gas rig workers where they are only paid for additional disadvantages of living away from home.
1.6. Section 30 of the FBTAA will therefore be amended by inserting new subsection 30(2) to ensure that a LAFHA paid by an employer to an employee after the date of introduction of this Bill will be treated as a fringe benefit if-
·the allowance is not already a fringe benefit under subsection 30(1);
·the employee's usual place of employment is on an oil or gas rig;
·the employee is provided with residential accommodation at or near the worksite; and
·it could be concluded that the whole or part of the allowance is paid to compensate the employee for additional disadvantages of having to live away from home.
1.7. When these conditions are satisfied, the whole of the allowance will be treated as a LAFHA fringe benefit.
1.8. Section 31 of the FBTAA will be amended so that the taxable value of those allowances described in new subsection 30(2) is the amount of the allowance.”
17.By s 31 the taxable value of a living-away-from-home allowance fringe benefit covered by subsection 30(2) in relation to a year of tax is the amount of the recipient’s allowance.
The evidence before the Tribunal
18.The evidence before the Tribunal consisted of :
· “T” Documents under s 37 (1AB) of the AAT Act
· Oil Drilling Rig Workers’ (Offshore Mobile Drilling Rigs) Award, 1984 (as amended at 17 December 2001)(the award)
· Total Marine Ensco 56 Enterprise Agreement (dated 7 July 2000) (the agreement)
· Witness statement and oral evidence of Malcolm Thomas Wardle, the applicant’s managing director
· Witness statement of Raymond Douglas Meadowcroft, the applicant’s general manager
19.The Tribunal notes that the applicant has not provided any of the contracts between itself and Ensco or Sedco or any individual contracts with employees.
20.On the evidence it appears that the applicant is best described as a labour hire company which at the relevant times supplied the services of various personnel to its customers which, in this case, were Ensco and Sedco, the owners or operators of oil rigs.
The payment of salary, wages and allowances
21.The award: the applicant’s evidence is that it was a respondent to the award as amended from time to time. Only the award from December 2001 is in evidence. The applicant is named in the Schedule of Respondents as an employer. Under that award, the employee is entitled to receive wages and the applicant pays and is liable to pay them.
22.The agreement: similarly the agreement names the applicant as the employer. By that agreement, the employees are entitled to receive wages and the applicant is liable to pay them.
23.The witness statements - (the statements of Malcolm Thomas Wardle and Raymond Douglas Meadowcroft are essentially the same, so reference here is only to the statement of Mr Wardle) which relevantly set out the following:
· Par 3.6-3.7; 4.6-4.7 Total Marine (the applicant) charges Ensco and Sedco (the applicant’s customers, being the rig owners or operators) for the actual cost of employing the personnel, including salaries, allowances and the like. A labour hire management fee was charged in addition.
· par 10.16- when a contract finished the rig owner would cease the contract with the applicant and the applicant would terminate the employment of the employees unless they were required for another rig.
· Par 11.7 – rig worker employees are paid on a monthly basis on return from the rig.
24.In the Tribunal’s opinion it is clear that the applicant paid and was liable to pay the wages and allowances to the rig workers at all relevant times.
The Living Away from Home Allowance
25.The award: simply provides in cl 11.2 for a living away from home allowance (LAHA) on a daily rate. It provides also in cl 11.7 for reimbursement of fares.
26.The agreement provides in cl 9.5 for a LAHA in lieu of that in the award which “forms part of the salary for all purposes of the award.” The LAHA is a flat rate for all workers, and is independent of the base salary of the employee. The agreement separately provides a “margin to compensate for all time taken to travel to and from the designated assembly point and the workplace and return.” (see cl 10.2);
27.The witness statement and oral evidence of Mr Wardle describes the facilities on each rig (Ensco 56 at cls 6.1-6.7; Sedco at 7.1-7.8). In relation to Sedco, he says at cl 7.10 that the rig crew received compensation described as the LAHA for the conditions in which they lived. (The Tribunal notes that the “hardlying” allowance for marine crew referred to in cl 7.9 was considered by the AAT in Crane v Commissioner of Taxation [2005] AATA 872, where member Prof Barton held that the hardlying allowance was not a living away from home allowance only because it was not expressed to be paid as a living-away-from-home allowance and so did not meet s30(2)(d). See also Best v Commissioner of Taxation [2005] AATA 560). The LAHA was based on the number of days on board: cl 11.8.
The applicant’s objections and the contentions filed in the Tribunal put 6 matters in issue ie:
Issue 1: Was the applicant the employer (s 30(2)(a))
28.In the Tribunal’s view the evidence clearly shows that at all relevant times the applicant was the employer of the relevant employees, for the purposes of s 30(2)(a) of the FBTAA 1986.
29.The Tribunal notes that the definitions of employer, employee, and employment in s136 of the FBTAA 1986 have remained constant during the period covered by these assessments ie:
Employee means:
(a) a current employee;
(b) a future employee; or
(c) a former employee.Employer means:
(a) a current employer;
(b) a future employer; or
(c) a former employer.
employment, in relation to a person, means the holding of any office or appointment, the performance of any functions or duties, the engaging in of any work, or the doing of any acts or things that results, will result or has resulted in the person being treated as an employee.
30.Reference should also be made to the definition of current employee and current employer. The form of these definitions was amended in 1999. Before 22 December 1999 the definitions were in these terms:
“current employee means an employee within the meaning of Division 2 of Part VI of the Income Tax Assessment Act 1936.
current employer means an employer within the meaning of Division 2 of Part VI of the Income Tax Assessment Act 1936.”
Division 2 of Part VI of the ITAA 1936 leads to s 221A. In the part now relevant, that section defined employee and employer as follows:
“employee means a person who receives, or is entitled to receive, salary or wages.
employer means a person who pays or is liable to pay any salary or wages…”
31.The 1999 amendment moved the substance of the definition into s 136 of the FBTAA 1986, so the definitions in that Act now read:
“current employee means a person who receives, or is entitled to receive, salary or wages.
current employer means a person (including a government body) who pays, or is liable to pay, salary or wages….”
32.The Tribunal notes that the relevant definitions are not confined to the traditional relationship of master and servant but include others whose relationship is constituted by the payment and receipt of salary or wages: see State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329; Douglas Thomas Dean v The Commissioner of Taxation of the Commonwealth of Australia; Douglas Stuart McLean v The Commissioner of Taxation of the Commonwealth of Australia [1997] FCA 861.
33.In particular, the FBTAA 1986 requires regard to be had to who pays or is liable to pay salary and wages. Concepts such as “control” which traditionally have been used to distinguish between employment and a contract for services are of no assistance when the question is who is the current employer, and thus the employer, for the purposes of the Act.
34.On all of the evidence, the applicant is clearly the person who pays the wages of the employees, and as the respondent employer to the award and the agreement is legally liable to pay the wages. The Tribunal is of the view that the fact that the cost is reimbursed by the rig owner does not affect the result.
Issue 2: Taxation Ruling TR2003/11
35.The applicant sought inter alia to support its agreement by referring to this Taxation Ruling. The Ruling addresses the approach to be taken in determining the meaning of the term ‘employer’ for the purposes of the general exclusion provision under the Dependent Services Article, or its equivalent, of Australia’s Double Tax Agreements. In particular, par 5 expressly states that the ruling does not deal with the definition of ‘employer’ for PAYG withholding tax purposes, or for any other purposes relating to income tax, and does not deal with fringe benefits tax. In the Tribunal’s opinion TR2003/11 lends no support to the applicant’s case.
Issue 3: Were the employees provided with residential accommodation for purposes of section 30(2)(c) of the FBTAA
36.In the Tribunal’s view contrary to the applicant’s contentions, the task in this matter is not to interpret the words “residential accommodation” or “residential premises” out of the context of s 30(2) of the FBTAA 1986. See generally in this regard CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, at 112; and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1, at [11]. In particular, that context shows that the construction here is of a provision which applies:
(a)where the employee’s usual place of employment is on an oil rig, or other petroleum or gas installation, at sea s 30(2)(b); and
(b)by reason that the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment.
37.Further, as the Explanatory Memorandum shows, s 30(2) was introduced for the purpose of meeting a particular problem arising out of an offshore oil industry award.
38.The respondent contends that the decision of the Tribunal in AAT Case 10,476 (1995) 31 ATR 1264 in which the Tribunal said:
“To suggest that residential accommodation cannot be temporary nor relatively spartan in the context of accommodation on an offshore rig is unacceptable. Accommodation in those circumstances, according to industry standards, is temporary in that employees’ terms of employment ordinarily allow for a short time of continuous work with a similarly short time of onshore leave. Employees reside temporarily on the MODU in accommodation provided by the employer. That accommodation is residential albeit of a temporary nature.”
was correct.
39.The respondent contends further that nothing in the judgment of the Full Federal Court in Marana Holdings Pty Ltd v FCT (2004) 214 ALR 190, on which the applicant sought to rely, casts doubt on the reasoning in that case. The Court noted the Tribunal’s decision “concerned accommodation offered at a place of employment. Such usages may reflect the special meaning (noted in the dictionaries) of dwelling in a particular place for the purpose of occupying an office or performing duties there.” (at [49])
40.The respondent submitted also that the legislature could not have intended that the term “residential accommodation,” in a provision which applies only to employees on an oil rig or other installation at sea, was limited to “residence” involving a degree of permanent or long-term commitment to the occupation of the premises in question.
41.The Tribunal notes that the respondent’s contentions are consistent with the view expressed in Taxation Determination TD95/49 where it is accepted that accommodation in a ship, vessel or a floating structure is residential accommodation for the purposes of s 47(7) of the FBTAA and the Tribunal accepts the above contentions of the respondent.
Issue 4: Was the whole of part of the allowance in the nature of compensation for disadvantages to which the employees are subject by reason of the requirement to live away from their usual place of residence
42.Both the award and the agreement refer to the allowance as a living away from home allowance.
43.On the evidence, including the evidence of the nature of the accommodation while the employees were on the rig and the presence in the award and the agreement of other allowances for fares and the like, the Tribunal is of the view that the whole of part of the LAHA was in the nature of compensation for disadvantages to which the employees were subject by reason of their being required to live away from their usual place of residence in order to perform their employment duties.
44.Mr Wardle, in relation to the Sedco agreement, says at cl 7.10 of his statement that the rig crew received compensation described as the LAHA for the conditions in which they lived. Further, the LAHA was based on the number of days on board: cl 11.8 of Mr Wardle’s statement.
45.There is, in the opinion of the Tribunal, nothing to support the applicant’s contention that the employees were travelling in the course of their employment rather than living away from home.
Issue 5: Does GST public ruling GST 2000/20 apply to s 74A of the FBTAA 1986
46.Section 74A(2) provides, in relation to a public ruling:
“(2) Subject to section 74C, if:
(a)there is a public ruling on the way in which a fringe benefits tax law applies to a person in relation to an arrangement (ruled way); and
(b)that law applies to that person in relation to that arrangement in a different way; and
(c)the amount of fringe benefits tax under an assessment in relation to that person would (apart from this section and section 74C) exceed what it would have been if that law applied in the ruled way;
the assessment and amount of fringe benefits tax must be what they would be if that law applied in the ruled way.
47.The term public ruling has the same meaning as in Part IVAAA of the TAA 1953.
48.In the Tribunal’s view it is clear that s 74A(2) of the FBTAA 1986 applies only to a public ruling on the way in which a fringe benefits tax law applies. The term fringe benefits tax law is defined in s 14ZAAA of the TAA 1953 as follows:
“fringe benefits tax law means a law under which the extent of liability for tax imposed by the Fringe Benefits Tax Act 1986 is worked out.”
49.The applicant placed substantial reliance on the definitions contained in GSTR 2000/20 and the GST Private Ruling referred to further below. In the Tribunal’s view GSTR 2000/20 is clearly not a public ruling on the way in which a fringe benefits tax law applies to any person. It states the Commissioner’s view on the definition of “residential premises” and provides guidance on “residential premises” for the purposes of s 195-1 and Subdivision 40-B of the A New Tax System (Goods and Services) Tax Act 1999 (GST Act) and only for those purposes.
Issue 6: Does the GST Private Ruling Apply in Relation to s 74b(2) of the FBTAA
50.Section 74B of the FBTAA is in similar terms to s 74A, save that it refers to private rulings. Relevant terms are defined in the TAA 1953 as set out above.
51.On 19 September 2002, the Commissioner issued a private ruling to the applicant. (the GST Private Ruling). That ruling was on 4 questions, relating to the supply of accommodation, under ss 40-35 and 9-5 of the GST Act:
52. Section 40-35 provides:
“(1)A supply of premises that is by way of lease, hire or licence (including a renewal or extension of a lease, hire or licence) is input taxed if
(a)the supply is of residential premises (other than commercial residential premises); or
(b)the supply is of commercial accommodation and Division 87 (which is about long-term accommodation in commercial premises) would apply to the supply but for a choice made by the supplier under section 87-25.
(2) However:
(a)the supply is input taxed only to the extent that the premises are to be used predominantly for residential accommodation; and
(b)the supply is not input taxed under this section if the lease, hire or licence, or the renewal or extension of a lease, hire or licence, is a long-term lease.”
53.That private ruling was subsequently withdrawn by the Commissioner and then later re-issued. Further reference to this appears below.
54.Section 74B(2) of the FBTAA only applies to “a private ruling on the way in which a fringe benefits tax law applies”. In the Tribunal’s view the GST private ruling is clearly not a private ruling which falls within the terms of section 74B(2) of the FBTAA.
55.Section 74C(3) of the FBTAA applies where there are rulings on different ways in which the same fringe benefits tax law applies which give rise to conflicting requirements under either s 74A or s 74B or both. As neither GSTR 2000/20 nor the GST private rulings are rulings on the way in which a fringe benefits tax law applies, s 74C(3) can in the view of the Tribunal have no application to the issues in this matter, and the applicant cannot place any reliance thereon.
56.At the hearing the applicant sought to lead evidence from the Commissioner’s officers who issued the GST Private Ruling and subsequently withdrew and later re-issued it as well as the officer who disallowed the objections. The applicant contended that these officers could provide evidence of the “processes and procedures” which were followed in relation to those matters.
57.The applicant also contended that those officers and others had conspired to disallow the objections and “remove any potential technical argument by wrongly purporting to withdraw the private ruling given to the applicant for the sole purpose of facilitating the disallowance of the objection” and that the evidence to be adduced from them would show this.
58.The respondent objected to the Commissioner’s officers being called to give evidence on the grounds that any such evidence would not be relevant to the Tribunal’s review of the objection decisions. The Tribunal upheld the respondent’s objection on the basis that even if the position was shown to be as contended by the applicant this would have no bearing on the Tribunal’s determination of the matter: In this regard the Tribunal notes the decision of the Full Federal Court in Bellinz and Others v Commissioner of Taxation (1998) FCR 154 at 168 and 169.
DECISION
59.It follows that in the Tribunal’s view the applicant has failed to discharge the onus which it bears and the decisions of the respondent under review are affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ..................(Ms R Riberi)................................
AssociateDate of Hearing 20 November 2006
Date of Decision 23 March 2007
Applicant’s Representative Mr P Moltoni
Counsel for the Respondent Mr J AllansonSolicitor for the Respondent Mr T Burrows
Australian Government Solicitor
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