The Trustee for the Star Enterprises Trust (Eurodrive Tours Pty Ltd) and Commissioner of Taxation (Taxation) - [2020] AATA 1656

The Trustee for the Star Enterprises Trust (Eurodrive Tours Pty Ltd) and Commissioner of Taxation (Taxation) [2020] AATA 1656 (9 June 2020)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2016/1511 and 2016/2897
Re:The Trustee for the Star Enterprises Trust (Eurodrive Tours Pty Ltd)
APPLICANT

AndCommissioner of Taxation
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:9 June 2020
Place:Brisbane

The decisions under review are set aside and remitted to the Respondent to issue assessments in accordance with the Tribunal’s reasons for decision.
..................................[SGD]......................................
Senior Member Theodore Tavoularis
CATCHWORDS
TAXATION – LUXURY CAR TAX – supplies of luxury cars – liability for tax – whether putative lenders or purchaser - whether intention to hold as trading stock - onus of proof not discharged – credibility of witnesses – administrative penalties - decisions under review set aside and remitted to Commissioner
LEGISLATION
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
A New Tax System (Luxury Car Tax) Act 1999 (Cth)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Federal Commissioner of Taxation v Dalco (1989) 168 CLR 614
Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81
Hua-Aus Pty Ltd v Federal Commissioner of Taxation [2010] FCA 341
Imperial Bottleshops Pty Ltd and William John King Egerton & Commissioner of Taxation (1991) 22 ATR 148
Jones v Dunkel (1959) 101 CLR 298
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Palassis v Commissioner of Taxation [2011] FCA 1305
Rejfek v McElroy (1965) 112 CLR 517 at 520.
Repatriation Commission v Smith (1987) 74 ALR 537
Rodriguez v Telstra Corporation Limited [2002] FCA 30
Russell v Federal Commissioner of Taxation [2009] FCA 1224
Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63
SECONDARY MATERIALS
Goods and Services Tax Determination GSTD 2006/6
Miscellaneous Taxation Ruling MT 2006/1
Miscellaneous Taxation Ruling MT 2008/1
Law Administration Statement PSLA 2012/5
INDEX
REASONS FOR DECISION
INTRODUCTION
HOW THE MATTER AROSE
THE FACTUAL CIRCUMSTANCES
HOW EURODRIVE’S LIABILITY ARISES
THE RESPONDENT’S CONTENTIONS
WHAT IS THE APPLICANT’S ONUS OF PROOF?
HOW DOES THE APPLICANT DISCHARGE ITS BURDEN OF PROOF?
HAS EURODRIVE ADDUCED THE REQUIRED EVIDENCE NECESSARY TO MEET THE APPLICABLE ONUS OF PROOF?
RELEVANT LEGISLATION
THE HEARING
RESULTING ISSUES FOR DETERMINATION
EURODRIVE’S CONTENTIONS
THE APPLICANT’S EVIDENCE AT THE HEARING
FINDINGS
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 June 2020
INTRODUCTION

The substance of this review arises because the Applicant[1] (“Eurodrive”) disagrees with the Respondent’s[2] assessments of taxation (“the Tax Assessments”) and resulting penalties (“the Penalty Assessments”). The taxation assessments relate to (a) Luxury Car Tax (“LCT”), (b) Goods and Services Tax (“GST”), and (c) income tax. At all material times, the Applicant acted as trustee on the Star Enterprises Trust (“the Trust”).
[1] Eurodrive Tours Pty Ltd (as Trustee).
[2] The Commissioner of Taxation.
The hearing of the instant application proceeded on 15 and 16 March, and 3 April, 2018. The hearing received oral evidence from: (1) Mr Tomas Gasperak, sales manager of Eurodrive; and (2) Mr Thomas Moloney, tax agent of Eurodrive who also assumed the role as advocate for the Applicant at the hearing.
The Tribunal also received written evidence. This written evidence was particularised into an agreed exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A - Exhibit List”.
HOW THE MATTER AROSE
Eurodrive purported to purchase five luxury vehicles (“the luxury vehicles”) as trading stock. Specifically, between April 2011 and October 2012, Eurodrive purchased:
(a)an Audi R8 (on 6 April 2011);
(b)a Ferrari California (on 29 June 2012);
(c)a Bentley Continental (on 27 September 2012);
(d)a Ferrari 458 Italia (on 29 April 2013); and
(e)a Porsche Panamera (on 26 October 2012).
Eurodrive “quoted” for the LCT for the first four abovementioned vehicles, meaning the LCT was not paid on those four vehicles. Eurodrive paid the LCT for the fifth vehicle, but later sought a refund after purchase. The net outcome sought to be achieved by Eurodrive was (1) to obtain an exemption from LCT on the basis of quoting its ABN upon purchase of the first four vehicles as trading stock; (2) to claim a refund of the LCT on the fifth vehicle; and (3) to have the benefit of input tax credits derived from the purchase of all five of the abovementioned luxury vehicles.
The Respondent takes issue with the Applicant’s contended exemption from the LCT. The Respondent says the transactional evidence at the time of purchase of the vehicles points to an actual purchase by a customer and not Eurodrive. Accordingly, the Respondent considers that the Applicant’s contention that it purchased the luxury vehicles to be held as trading stock and for no other purpose is not sustainable. In the alternative, the Respondent contends that after the acquisition of the luxury vehicles by Eurodrive, they were not held as trading stock and for no other purpose.
THE FACTUAL CIRCUMSTANCES
Eurodrive conducted the business of a car dealership. Ms Michelle Smaus (“Ms Smaus”) was at all material times, for the purposes of these Reasons, Eurodrive’s sole director and secretary. It is her signature that appears on each of the quotes referrable to Eurodrive’s acquisition of the five aforementioned luxury vehicles. Her signature also appears on certain purported “loan documents” which attract relevance and importance upon consideration of the evidence.
In the conduct of its car dealership business, Eurodrive operated two bank accounts, one with the Bank of Queensland and the other with the Westpac Banking Corporation. The evidence points to Eurodrive’s car dealership activities being primarily focused on the acquisition and sale of second-hand, low-value cars. The conduct of the business involved acquisition of second-hand, low-value stock and its prompt sale to customers in order to minimise the costs of funding the purchase of those vehicles. It is reasonable to conclude that the regular run of Eurodrive’s car dealership activities did not include the acquisition and sale of high-end luxury vehicles that would attract the LCT.
The Respondent contends that each of the five subject luxury vehicles fall within a category of “exceptions” to Eurodrive’s usual car dealership activities. The centre of the contest between the Applicant and Respondent revolves around the Applicant’s contention that the subject vehicles were purchased via the use of “loan funds” from particular individuals and/or other entities. The Respondent has allocated the nomenclature of “the putative lenders” to the entities purportedly advancing those funds.
Eurodrive’s position is that these putative lenders advanced funds to Eurodrive in order to facilitate purchase of the subject vehicles. A critical term of this loan arrangement was that if the subject vehicles were sold within the defined loan period, any profit arising from the sale was to be shared between Eurodrive and each of the putative lenders. This “loan funds” arrangement involved each of the putative lenders depositing the stipulated amount into Eurodrive’s bank account with the Bank of Queensland. The loans comprised:
(f)For the Audi R8 – a loan from Bishop Brothers Engineering Pty Ltd to Eurodrive in the sum of $240,000;
(g)For the Ferrari California – a loan from the Springrange Partnership to Eurodrive in the sum $255,000;
(h)For the Bentley Continental – a loan from Mr Dennis Deane to Eurodrive in the sum of $400,000;
(i)For the Ferrari 458 Italia – a loan from Tom Elvin Pty Ltd to Eurodrive in the sum of $470,000; and
(j)For the Porsche Panamera – a loan from Sayers Investments (ACT) Pty Ltd to Eurodrive in the sum of $234,000.
Each of the subject purported loan agreements are in evidence before the Tribunal. As the evidence evolved, a clear and obvious disparity became apparent between the quantum of each deposit paid by the putative purchasers and the actual purchase price of each of the luxury vehicles. This disparity becomes material to the manner in which the Respondent viewed the putative loans in terms of the purchase of each of the subject vehicles.
Where any of the subject loan agreements are signed, the date affixed to a signed agreement is either contemporaneous with purchase of that vehicle or proximate to within one or two days of the purchase. The abovementioned mechanics of the purported “sale” of each vehicle was governed by clause 3 of the loan agreement document. It relevantly provided:
“The loan is repayable within 12 months, by which time:
The [Luxury Vehicle] may be sold and the profits if any, after repaying the loan to [the putative lender] of [the loan amount] be shared between Eurodrive and [the putative lender] in the ratio of 33.3% Eurodrive and 66.67% [the putative lender],
OR
The loan period may be extended as mutually agreed
OR
The [Luxury Vehicle] will be invoiced to [the putative lender] and the ownership transferred to [the putative lender] or its nominee, in full satisfaction of the loan at expiry of 12 months, or at the end of any mutually agreed extended period.”[3]
[3] Exhibit 3, Further supplementary Tribunal Documents, FST4, page 4477.
There are significant shortfalls in the evidence relating to these loan agreements. In none of the loan agreements were clauses 3(b) or 3(c) activated. That is to say, in none of the loan agreements was the loan period extended, nor were any of the subject vehicles invoiced by Eurodrive to the putative lender. The respective loan agreements regarding the Audi R8 and Porsche Panamera are unsigned. Further, Eurodrive could not produce any of the loan agreements when the Respondent conducted its audit resulting in a determination that Eurodrive had (1) failed to remit GST on certain supplies, and (2) claimed for alleged purchases which were not creditable acquisitions pursuant to relevant GST legislation.
It is necessary to outline the connection between provision of the putative loan funds to each of the subject vehicles:
(a)First, with reference to the Audi R8:
(i)It was purchased on 11 April 2011, pursuant to the purported loan advanced by Bishop Brothers in the sum of $240,000;
(ii)The purchase price was $212,000;
(iii)Its odometer reading at time of purchase was 6,000 klms;
(iv)Its odometer reading three years later in April 2014 was 17,054 klms;
(b)Second, with reference to the Ferrari California:
(i)It was purchased on 29 June 2012;
(ii)The purchase price was $315,000;
(iii)Its odometer reading in June 2013 was 1,454 klms;
(iv)Its purchase is referrable to the purported loan from the Springrange Partnership in the sum of $255,000 evidenced by a purported loan agreement dated 27 June 2012. There is conflict in the evidence due to the existence of a second purported loan agreement between the Springrange Partnership and Eurodrive, dated 29 June 2012 two days later, in the sum of $315,000;
(c)Third, with reference to the Ferrari 458 Italia:
(i)It was purchased on 29 April 2013, following its delivery in Australia on 8 March 2013;
(ii)Its odometer reading at 26 June 2013 was 1,880 klms;
(d)Fourth, with reference to the Porsche Panamera:
(i)It was purchased by Eurodrive from the Porsche Centre Brisbane on 26 October 2012;
(ii)Its odometer reading at time of purchase was 9,300 klms;
(iii)Its odometer reading as at 2 September 2013 involved an additional 2000 kilometres;
(iv)Eurodrive claimed the sum of $40,354 as an LCT refund in its business activity statement for the December 2012 quarter;
(v)As noted by the Respondent, the Porsche Panamera is an “enigma” in terms of the present factual matrix. No money appears to have been deposited into either of Eurodrive’s nominated bank accounts for its purchase. The high point of the Applicant’s evidence regarding this vehicle is an unsubstantiated contention that Sayers Investments (ACT) Pty Ltd provided $234,000 for the purchase of the vehicle.
HOW EURODRIVE’S LIABILITY ARISES
The Applicant is governed by a trust instrument in the form of a trust deed (“the Trust Deed”).[4] Relevantly, in the event of a failure by the trustee to exercise a relevant discretion, the following occurs:
“Failure to exercise discretion
9. If the trustee fails to exercise the trustee’s discretion under clause 6 or 8 on or prior to the 30 June in a financial year, the income in respect of which the discretion has not been exercised will be held by the trustee in trust successively for the persons described below and in accordance with the following rules:
9.1 The named beneficiaries who are alive on 30 June of that financial year. If there are more than one, the income must be paid to them as tenants in common.
9.2 If there are no named beneficiaries alive on 30 June of that financial year, the next of kin of the named beneficiaries the share that the relevant named beneficiary would have received had all of the named beneficiaries been alive on the 30 June of that year.
9.3 If there is no next of kin, the income is to be treated as having been accumulated.”
[4] Exhibit 1, Tribunal Documents (“T Documents"), T61 (681-697), page 684.
The Respondent’s revision of Eurodrive’s tax credits resulting from its audit had the result of increasing the trust’s taxable income for the financial years between 30 June 2011 and 30 June 2013. Eurodrive (as trustee) did not make any declaration about distribution and, as a consequence, the default beneficiaries defined in the abovementioned clauses 9.1 and 9.2 of the Trust Deed became liable for the resulting taxable income. Relevantly, those default beneficiaries were under a legal disability at the relevant time. The further consequence then becomes that Eurodrive, as trustee (for those default beneficiaries), assumed liability for the subject income tax assessments.
By letter dated 24 February 2014, the Respondent notified Eurodrive of the requirement of a meeting for the purposes of reviewing its business activity statements filed for the relative quarters during the period 1 July 2010 to 31 December 2013. This notification was accompanied by an audit commenced by the Respondent on or about 21 March 2014. A year later, on 4 March 2015, the Respondent published the results of its audit findings to Eurodrive in a document titled “Audit Position Paper.”
Following completion of the audit and notification of its attendant findings, the Respondent issued notices of assessment of shortfall penalty for the quarterly tax periods between 1 October 2010 to 31 December 2013 (collectively referred to as (“the Penalty Assessments”). There followed, on 7 April 2015, the Respondent’s Income Assessments for unpaid income tax for the years of income ending 30 June 2011 and 30 June 2012 (“the Income Assessments”).
Eurodrive objected to the Penalty Assessments and the Income Assessments by way of an objection dated 16 October 2015. In its determination, contained in an Objection Decision provided to the Applicant on 17 February 2016, the Respondent:
(a)Allowed certain of the GST credits for the reporting periods comprising March 2012 and June 2012;
(b)Determined that the varied GST shortfall amount was $411,466 (“the GST Shortfall”); and
(c)Varied the income assessment for the financial year June 2012.
Proceeding numbered 2016/1511 (now falling for determination) comprises Eurodrive’s requested review of this decision. That application for review was filed on 18 March 2016. A separate objection was filed by Eurodrive with reference to the Penalty Assessments, on 19 April 2016. The Respondent provided its Objection Decision to this objection on 25 May 2016. Eurodrive sought review of this Objection Decision by way of an application filed on 1 June 2016. That Application comprises proceeding number 2016/2897, also presently falling for determination.
THE RESPONDENT’S CONTENTIONS
The Respondent contends for two scenarios. Either the luxury vehicles were immediately on-sold by Eurodrive to the putative lenders, or that there is little or no evidentiary support for the subject vehicles being purchased by Eurodrive for the sole purpose of being trading stock. According to the Respondent, the regularly recurring discrepancy of between 10-12% between the purchase prices of at least three of the luxury vehicles and the funds actually paid into Eurodrive’s bank accounts by putative lenders makes it open to the Tribunal to infer that Eurodrive actually sold the vehicles to those putative lenders “with a profit margin in the order of 10%.”[5]
[5] Exhibit 7, Respondent’s statement of facts, issues and contentions, page 13, paragraph [58].
The two remaining vehicles are the Porsche Panamera and Ferrari California. The Respondent contends that the inference as to the profit margin of 10% should apply to the Porsche Panamera, notwithstanding the absence of any evidence about how much Eurodrive paid to acquire that vehicle and the absence of any evidence about any putative lender providing loan funds to Eurodrive in respect of this vehicle. With reference to the Ferrari California, the Respondent contends that the abovementioned inference should also be made in relation to that vehicle, despite the fact that the putative lender relating to that vehicle purportedly “loaned” $60,000 less than the purchase price of the vehicle.
With reference to the contended scenario of immediate on-sale to the putative lenders, the Respondent revised Eurodrive’s GST liability. With reference to the alternative scenario, the Respondent contends that the state of the evidence goes nowhere near proving the proposition that the luxury vehicles were purchased for the sole purpose of trading stock.
The contended position of the Respondent has resulted in the following assessments and penalties. First, the Respondent has reviewed the level of GST payable on Eurodrive’s activity assessments for the period 1 October 2010 to 31 December 2013. It has done likewise with GST credits claimed by Eurodrive for this period. The total GST shortfall arrived at by the Respondent was $153,939. Second, the Respondent made a determination about Eurodrive’s liability for income tax in its capacity for the years of income ending 30 June 2011, 2012 and 2013. For reasons outlined earlier, liability for income tax in this regard falls to Eurodrive. Thus, in its capacity as trustee for each of the nominated beneficiaries in the Trust Deed, the Respondent issued the following assessments for income tax for which Eurodrive is said to be liable:
·$147,889 for each of the entitled beneficiaries for the income year ending 30 June 2011;
·$125,287 for each of the entitled beneficiaries for the income year ending 30 June 2012;
·$1,865.25 for each of the entitled beneficiaries for the income year ending 30 June 2013.
Third, the Respondent made determinations about applicable administrative penalties as follows:
·An administrative penalty of 75% was applied to the LCT shortfall and the increased GST that was payable. This penalty was increased by 20% due to an asserted intentional disregard by Eurodrive for the taxation law in making a false and misleading statement to the Respondent;
·An administration penalty of 50% on the shortfall amounts arising from GST input credits was applied. This penalty was increased by 20% on the basis of Eurodrive’s asserted recklessness in making a false or misleading statement to the Respondent. This 20% penalty was subsequently remitted; and
·An administrative penalty of 75% regarding the income tax shortfall was applied based on Eurodrive’s failure to lodge any income tax returns for the three abovementioned financial years of income. This penalty was increased by 20% for the two specific years of income ending 30 June 2012 and 2013 respectively.
WHAT IS THE APPLICANT’S ONUS OF PROOF?

Section 14ZZK of the TAA provides that the Applicant bears the burden of proving that assessments are excessive:
14ZZK Grounds of objection and burden of proof
On an application for review of a reviewable objection decision:
(a)the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b)the applicant has the burden of proving:
(i)if the taxation decision concerned is an assessment—that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii)in any other case—that the taxation decision concerned should not have been made or should have been made differently.
The Applicant bears the onus of proof in these proceedings. The relevant onus is on the civil standard, specifically, on the balance of probabilities. In essence, this requires the Applicant to establish it is more likely than not that the Respondent’s revised LCT assessments, GST assessments and income tax assessments were excessive and thus wrong. This standard is to be contrasted to the criminal or “beyond reasonable doubt” standard of proof, which the High Court has held to be, “…inappropriate to the determination of any such fact in any civil action tried in any court in Australia where there are no statutory provisions to the contrary…”[6]. This application is clearly not a criminal proceeding and, in the absence of any statutory provisions to the contrary, the civil or “balance of probabilities” burden of proof applies. The Full Court of the Federal Court has instructively differentiated between actual “probabilities” compared to “mere probabilities”: “There is… a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…”[7]
[6] Rejfek v McElroy (1965) 112 CLR 517 at 520.
[7] Repatriation Commission v Smith (1987) 74 ALR 537 at 538 per Beaumont J, with who Northrop and Spender JJ agreed.
In addition to negatively proving that the Respondent’s revised LCT assessments, GST assessments and income tax assessments were excessive and therefore wrong, the Applicant must also positively prove what the correct assessment should be so that each of the relevant assessments are made right or “more nearly right”.[8] It is necessary that “[t]he amounts assessed represent the Commissioner’s bona fide judgement as to the amount of the taxpayer’s taxable income and the power to make the assessment was validly exercised. The assessments being valid, the burden was on the taxpayer to prove the amounts were excessive”.[9]
[8] Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63, as per Latham CJ at 88; see also Federal Commissioner of Taxation v Dalco (1989) 168 CLR 614 as per Brennan J at 623-625 and Toohey J at 632-634; and recently Palassis v Commissioner of Taxation [2011] FCA 1305 at [9] per McKerracher J.
[9] Federal Commissioner of Taxation v Dalco (1989) 168 CLR 614 at 623-625 per Brennan J.
There is no compulsion on the Respondent to demonstrate that the revised assessments were correctly made. As noted by Latham CJ, “… conceivably, there might be a case where it appeared that the assessment had been made upon no intelligible basis even as an approximation, and the court would then set aside the assessment and remit it to the Commissioner for further consideration”.[10] Similarly, there is no requirement on the Respondent to provide evidence to back up its assessments. As noted by the High Court, there is no “… 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… unless the appellant shows by evidence that the assessment is incorrect, it [the amended assessments] will prevail”.[11]
[10] Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 at 88.
[11] Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 89 per Mason J.
As inevitably occurs in matters such as this involving an Applicant trying to discharge the necessary onus, Eurodrive produced certain records in support of its contentions. The mere production of that material does not remove or modify the abovementioned onus of proof upon an Applicant. That material must be utilised by Eurodrive to discharge the onus of demonstrating, on the balance of probabilities, that the Respondent’s revised LCT assessments, GST assessments and income tax assessments were excessive and thus wrong.
Eurodrive does not meet the requirements of the burden by simply pointing to some kind of error or mistake in how the Respondent has arrived at the revised LCT, GST and income tax assessments for the relevant periods/years of income. If there was such a demonstrable error in how the Respondent reached its conclusions in those assessments, then it would be open to this Tribunal to set aside some or all of those assessments and remit some or all of them back to the Respondent for further consideration, as stipulated by Latham CJ in Trautwein’s case.[12] Eurodrive must utilise its evidence and convince a decision maker that its evidence, on the balance of probabilities, displaces the Respondent’s methodology behind the revised LCT, GST and income tax assessments for the relevant periods/years of income.
[12] See Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 at 88.
There is no question that the above mentioned authorities relating to the onus of proof, applicable as they are to income tax-related cases, have equivalent application to a case such as this, involving a liability for revised LCT, GST and income tax assessments for the relevant periods/years of income. This Tribunal would be “…absolutely correct in concluding that s14ZZK [of the TAA] imposed on [for present purposes, Eurodrive] the burden of proving that the amended assessment under review was excessive”.[13]
[13] See Hua-Aus Pty Ltd v Federal Commissioner of Taxation [2010] FCA 341 at page 435, paragraph [13], per Edmonds J.
HOW DOES THE APPLICANT DISCHARGE ITS BURDEN OF PROOF?
It is important in applications such as this to clearly identify not just the burden of proof incumbent upon an applicant, but how the applicant must convince the Tribunal that he has discharged it. A potentially complicating factor is the reality that this Tribunal is not bound by the rules of evidence and that it may inform itself on any matter in such manner as it thinks appropriate.[14] The evidentiary compass to be followed by the Tribunal is to be found in Dixon J’s (as his Honour then was) formative judgment regarding the civil or balance of probabilities standard of proof.[15] For the Applicant to convince this Tribunal of the facts it propounds to demonstrate that the amended assessments were excessive and thus wrong:
“… the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanised comparison of probabilities independently of any belief in its reality… it is enough that the affirmative of an allegation has been made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references”.
[14] See s33(1)(c) of the AAT Act.
[15] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362.
Applied to the present matter, the Applicant will not discharge its burden of proof by merely inviting the Tribunal to engage in some type of “like-for-like” comparison of probable outcomes when comparing the evidence the Applicant adduced about the methodology adopted by the Respondent in arriving at the now-contested revised assessments.
Discharge of the evidentiary burden in applications such as this should be analysed in a unique way because all of the evidence propounded by a taxpayer is squarely within that taxpayer’s possession or control.[16] Indeed, the Respondent has based its revised assessments on information squarely in the purview of the Applicant.
[16] Latham CJ in Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 at 87 to 88.
The law therefore affords the Applicant in these types of applications some opportunity to arrive at “reasonable explanation” for how the Respondent’s respective assessments are excessive and thus wrong. The process of demonstrating a “reasonable explanation” was defined by Hill J, thus[17]:
“A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self-serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be ‘tested more closely and received with the greatest of caution’… Some other corroborative evidence would normally be required which makes it more probable than not that his sworn testimony is to be believed.”
[17] Imperial Bottleshops Pty Ltd and William John King Egerton & Commissioner of Taxation (1991) 22 ATR 148 at [31] per Hill J.
HAS EURODRIVE ADDUCED THE REQUIRED EVIDENCE NECESSARY TO MEET THE APPLICABLE ONUS OF PROOF?
The Respondent contends that “…it is impossible for it [Eurodrive] to discharge that onus without any supporting witness evidence.”[18] In my view, the state of the evidence is supportive of this contention and, further, entitles the Tribunal to rely upon the rule in Jones v Dunkel[19] in order to form an inference, adverse to the Applicant, about that missing evidence.
[18] Exhibit 7, Respondent’s statement of facts, issues and contentions, page 17, paragraph [75].
[19] (1959) 101 CLR 298 at 308, 312, 320-31.
The state of the evidence relating to the Applicant’s case is such that there are no witness statements going to the crux of the Applicant’s contentions. Specifically, there is nothing from any of the putative lenders (or a related party) to demonstrate that the funds utilised for the purpose of each of the luxury vehicles, in fact, comprised a loan. In those circumstances, it is very difficult to displace or otherwise discount the Respondent’s contention that the provision of those funds, for all practical purposes, constituted respective sales of those vehicles to the entities providing those funds.
Statutory Declarations (Aside from those of the putative lenders)
In terms of written material, the Applicant sought to rely on a number of statutory declarations. The difficulty with that evidence is its generality and failure to address the specific deficiencies in the Applicant’s contention that the subject funds actually comprised a loan or series of loans. The material contains respective statutory declarations from witnesses sought to be relied upon by the Applicant. There is commonality amongst each of these statutory declarations to the effect that none of the deponents are able to convincingly or conclusively demonstrate a course of dealing with the Applicant such that (1) they (the putative lenders) “loaned” funds to Eurodrive to (2) purchase the luxury vehicles as trading stock and (3) then on-sell the vehicles to third parties for a profit and to then (4) split any surplus arising from that on-sale on the basis of 2/3 to the putative lender and 1/3 to Eurodrive.
Mr Goldman confirms that from February 2011 to 2015, he “…managed the Eurodrive Used Vehicles yard at Kangaroo Point, Brisbane.”[20] He says that he “…was aware that these vehicles were for sale…” and that he “…passed on details of prospective customers to either Tomas Gasperak or Eric Plachetka.” He apparently played no role in the presentation or demonstration of the vehicles to prospective customers, apparently leaving that task to either Mr Gasperak or Mr Plachetka. However, he says that he “witnessed the above vehicles being demonstrated to prospective customers by them.”
[20] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4459.
According to his evidence, Mr Goldman was largely detached from any marketing or other sales effort to prospective customers. He says: “I only drove these vehicles on a few occasions. Usually to collect…and deliver them between…either the Audi Centre Showroom, Brisbane, Waterford West, and the sales yards at Kangaroo Point or…Mermaid Beach.”
Mr Plachetka identifies himself as the “Sales Manager” of Eurodrive and declares that he “…demonstrated the vehicles to prospective customers who responded to advertising on the internet through the Eurodrive website…, Carsales and Gumtree” and customers who came to the car yard.[21] He says that he test drove all of the luxury vehicles held by Eurodrive and that he demonstrated those vehicles to prospective customers.
[21] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4463.
He adds that he has an understanding that Mr Gasperak “…has provided a list of clients who responded to the advertising on the internet.” However, Mr Plachetka himself – even as the Sales Manager – “did not keep a record of which cars were demonstrated to which customer.” Be that as it may, he declares that he “…demonstrated the vehicles on numerous occasions to numerous clients…” and that he “…collected the vehicles from the secure location at either the Audi Centre Showroom, Brisbane, or…Waterford West and demonstrated them from the sales yard at…Mermaid Beach.”
The respective statutory declarations of Mr Goldman and Mr Plachetka each fail to establish that either of them were demonstrably aware that the subject vehicles were actually for sale by Eurodrive. None of these statutory declarations corroborate Eurodrive’s contention that the subject vehicles were purchased as trading stock. Similarly, there is a concerning lack of detail regarding the manner of how the vehicles were to be held and marketed to prospective buyers by Eurodrive.
There follows a category of statutory declarations from a series of witnesses that are, at the same time, mostly generic, vague and unhelpful. For example, the statutory declaration of Mr Tony Jacklin goes no further than listing the subject vehicles and him saying that “I was a prospective customer and inspected the vehicles at either the Audi Centre Showroom in Brisbane, and/or the Eurodrive sales yard at Kangaroo Point; and/or the Eurodrive sales yard at…Mermaid Beach.”[22] The statutory declaration of Mr Ferdinand Rados says exactly the same thing and is exactly patterned on the statutory declaration of Mr Jacklin.[23]
[22] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4468.
[23] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4470.
Further respective statutory declarations were provided by Mr Scott Sutherland and Mr Jesse Wolfe. At the time of making his statutory declaration, Mr Sutherland was the Group Wholesale Manager, Willims Motor Group.[24] He purports to have an “understanding” that the Ferrari California vehicle was sold in 2015. He makes reference to the balance of the four subject luxury vehicles plus “Mercedes – various models” as being “…other vehicles for sale within [Eurodrive’s] trading stock…” but provides no detail around how he arrives at that realisation.
[24] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4478.
In his statutory declaration, Mr Wolfe says he was the Sales Manager for Euromarque Brisbane.[25] He says that he “…was aware that Eurodrive was dealing in luxury cars and had a number of vehicles for sale which included an Audi R8, a Bentley Continental, a Ferrari 458 Italia and a Ferrari California.” He also says that “All of these cars were occasionally displayed at the Euromarque or Ferrari showrooms.” The high point of his evidence is that he “was aware that these cars were shown to prospective clients from time to time.”
[25] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4479.
Taken in total, these statutory declarations provide scant details about how the aforementioned four step[26] scheme now sought to relied upon by Eurodrive was achieved in reality. There are vague references to where the vehicles were apparently displayed or shown, and whether they were actually demonstrated to customers. If the subject luxury vehicles were genuinely held as “trading stock”, then Eurodrive would surely now be able to demonstrate, for example, details of how the vehicles were marketed and how the vehicles were held. Ultimately, the primary configuration of these statutory declarations involves vague, self-serving, and, ultimately, unhelpful statements.
[26] See paragraph [39] of these reasons.
Mr Bruce Hallt has provided a statutory declaration.[27] He says that through his corporate entity (BH Investments Pty Ltd), he has “…been investing with Eurodrive Tours Pty Ltd for the purchase of vehicles since 2009.” He purports to explain the methodology behind Eurodrive’s operations thus:
“4. Profits and/or losses on the vehicles sold have been accounted to BH Investments Pty Ltd by Eurodrive Tours Pty Ltd at the time of sale. These profits, shared on a 50/50 basis, reflected the various cost [sic] associated with advertising these vehicles for sale, and presenting these vehicles to prospective purchasers.”
[27] Exhibit 3, Further supplementary Tribunal Documents, FST3, page 4497.
The high point of his evidence goes no further than him saying:
“5. As an investor in these vehicles, BH Investments Pty Ltd generally left the selling and presentation of these vehicles to Eurodrive Tours Pty Ltd. However, BH Investments Pty Ltd also actively promoted them to interested parties as it was its interest for these vehicles to be sold at the best possible price.”
Concerningly, the usually templated portion of his statutory declaration, relating to penalties for a declarant making a false statement in a declaration, has been intentionally ruled out and initialled by Mr Hallt. Mr Hallt’s evidence is very general and vague to the extent that (1) it makes no reference to any of the five subject vehicles and (2) his description of the purported terms of his “loan” of funds to Eurodrive is not consistent with the terms of the loan agreements relating to each of the five luxury vehicles. He speaks of playing some type of cameo role in the active “promotion” of vehicles to “interested parties”, yet none of those parties are identified.
In his statutory declaration, Mr Raman Bhardwaj describes himself as the “Company Accountant for the Elvin Group.”[28] He speaks of there being an investment-type relationship between Tom Elvin Pty Ltd and Eurodrive, “…for the purchase for trade of vehicles over the past five to six years.” He purports to provide some measure of detail around this “commercial investment arrangement” as follows:
[28] Exhibit 3, Further supplementary Tribunal Documents, FST3, pages 4474-4475.
“4. We have had a commercial arrangement with Eurodrive on the following vehicles.
4A Ferrari California, registration number…
Investment Date: 29/6/2012; Investment Amount: $255,000
4B Ferrari 458 Italia, registration number…
Investment Date: 30/04/2013; Investment Amount: $470,000
4C Porsche 911 registration number…
Investment Date: 27/7/2010; Investment Amount: $154,430
4D Mercedes Benz Vito Van provided for trade with a market value of $70,000
4E Audi R8, registration number…Investment Amount: $152,000, Settlement Date: 8/2/2012; Received Amount $170,000
4F Mercedes-Benz SLS, registration number…
Investment Date: 3/02/2012; Investment Amount $290,000,
Settlement Date: 20/4/2015; Received Amount $278,000
4H Ford Ranger, registration number…
Investment Date: 11/4/2016; Investment Amount: $42,017.55
…”

While he speaks of a “commercial investment arrangement with Eurodrive”, the difficulty with Mr Bhardwaj’s evidence is that he has little or nothing to say about how the abovementioned four-step scheme operated as between Tom Elvin Pty Ltd and Eurodrive. It is not possible to glean from Mr Bhardwaj’s evidence whether any of the vehicles he has nominated were actually “for sale”. He speaks of respective “investments” in vehicles having been made, but cannot outline the basis on which those vehicles were held by Eurodrive. A couple of the entries refer to “Received Amount”, but there is nothing in Mr Bhardwaj’s evidence explaining the status of those “Received Amounts” or how those amounts were derived.
Inconsistently with the “loan” scheme now propounded by Eurodrive, Mr Bhardwaj makes absolutely no reference to any “loan” between the investing entity he apparently speaks for (Tom Elvin Pty Ltd) and Eurodrive. Of perhaps greater and more fundamental concern is the reality that the statutory declaration purports to be in the name of “Raman Bhardwaj”, yet the signature of the person making the declaration is recorded as “Raman Kumar”. As noted by the Respondent, Mr Bhardwaj’s evidence is, at a fundamental level, hearsay. This evidence purportedly provided about the relationship between Tom Elvin Pty Ltd and Eurodrive should be provided by one of the directors of Tom Elvin Pty Ltd.
The rule in Jones v Dunkel can be properly invoked and relied upon by the Tribunal in the forming of an inference adverse to the Applicant in circumstances where none of Messrs Goldman, Lake, Plachetka, Rados, Jacklin, Sutherland, Wolfe, Hallt or Bhardwaj were actually called by the Applicant to give oral evidence at the hearing. Thus the Respondent has been denied the opportunity to test their evidence in cross-examination.
There is an astonishing lack of ancillary written evidence concerning Eurodrive’s purported acquisition, holding as trading stock and eventual on-sale of five luxury vehicles involving a sum in or about $1.5 million. Eurodrive has produced little or nothing in the way of the usual and expected ancillary documentation one would expect to find in an entity dealing with motor vehicles, particularly high-end motor vehicles. For example, where is the evidence that the subject vehicles were insured? If they were, where are the details of such insurance policies? Eurodrive now purports to say that acquisition of the vehicles was intended to be recorded as “trading stock”. Yet there is no evidence or any accurately kept list or inventory of trading stock relating to these five subject vehicles.
On its version, Eurodrive went to independent third parties and induced “loans” (relating to the five subject luxury vehicles) in the approximate sum of $1.5 million. The relationship between Eurodrive and its “lenders” is, for all intents and purposes, sought to be described as a collaborative partnership with the common intention of (apparently) sharing in profits upon Eurodrive’s sale of each of the vehicles. Yet the witness statements adduced by Eurodrive, from either putative lenders or its “sales managers” or individuals within the motor dealing industry are, at best, vague and unhelpful.
To illustrate this point, none of its employees could provide detailed evidence of how the “loan” scheme was to operate, nor could they produce any sort of advertising material relevant to the sale of the vehicles or, for that matter, duly signed and concluded contracts for the sale of those vehicles to ultimate purchasers. As will be seen, the putative lenders give evidence that rises no higher than that of Mr Bhardwaj, who vaguely deposes to things such as “investment date”/”investment amount”/”received amount”, but has nothing to say about how the “loan” scheme operated to produce those outcomes.
The Respondent alludes – validly to my mind – to a reasonbale expectation that an entitiy dealing in motor vehicles would have held and maintained dealer log books in respect of some $1.5 million worth or purported “trading stock”. It is also reasonable to expect the evidence to contain individual log books for each of the subject vehicles and for those log books to record details such as kilometres travelled by each vehicle for test-driving purposes, the specific location of each vehicle, the use to which the vehicles were put and any scheduled or other maintenance and upkeep performed on the vehicles.
The absence of such dealer logbooks deprives the applicant of the necessary corroborative evidence to demonstrate (and prove its now-made contentions that (1) the vehicles were test-driven by perspective customers and (2) the vehicles were genuinely held as trading stock for on-sale to ultimate purchasers. Instead, Eurodrive can only point to purported “loan” agreements with putative lenders on certain terms. This level of documentary evidence does not go anywhere near the necessary corroborative threshold to convince this Tribunal about the veracity of the aforementioned four-step scheme[29] purported by Eurodrive.
[29] See paragraph [39] of these reasons.
Thus, the Respondent’s contention is correct: the inconsistencies and unreliability of the abovementioned written statements of Messrs Goldman, Lake, Plachetka, Rados, Jacklin, Sutherland, Wolfe, Hallt and Bhardwaj (including the Applicant’s failure to call them to give oral evidence), coupled with the incomplete state of the written evidence provided by Eurodrive, fatally compromises Eurodrive’s ability to discharge its onus of proof.
Statutory Declarations of the Putative Lenders
This group of statutory declarations appears at Exhibits 9-11 of Annexure A to the Reasons. First, the putative lender for Eurodrive's purchase of the Porsche Panamera was Sayers Investments (ACT) Pty Ltd. Mr John Sayers is a director of that company. In his statutory declaration sworn on 19 April 2017,[30] he says that he caused the company to lend money to Eurodrive to receive a reasonable return. He says that after being contacted by Mr Gasperak (on behalf of Eurodrive), he was induced to apparently lend Eurodrive the sum of $234,000 for Eurodrive’s purchase of the Porsche Panamera.
[30] Exhibit 11, Statutory declaration of John Sayers declared 19 April 2017.
Mr Sayers says that Mr Gasperak:
“…ran through the terms of the standard loan agreement he had for these types of deals which are:
(i)     Eurodrive will complete the purchase of the Panamera;
(ii)    Eurodrive will repay the loan and agreed share of profit, if any, to Sayers within 12 months of the loan date by which time the Panamera will be sold;
(iii)   The loan period will be mutually extended; or
(iv)   Sayers will purchase the Panamera from Eurodrive for the loan amount in full satisfaction of the debt…”[31]
[31] Ibid.
Mr Sayers caused Sayers Investments Pty Ltd to deposit the sum of $234,000 into Eurodrive’s Bank of Queensland account on 25 October 2012. Despite Eurodrive’s best efforts to sell the Panamera, no sale was achieved such as to trigger the terms of the loan agreement involving the previously mooted splitting of profits. Mr Sayers then says that:
“8. Shortly after the purchase, I encumbered the vehicle to protect my investment.
9. Sayers (i.e. Sayers Investments Pty Ltd) has now taken possession of the Panamera.”[32]
[32] Ibid, page 2.
There are significant difficulties with attaching any credibility to this statutory declaration. Those difficulties may be stated as follows:
·     Mr Sayers deposes to a term of the purported loan agreement to allow for his company to purchase the subject vehicle from Eurodrive “for the loan amount in full satisfaction of the debt.” This is precisely what occurred because after encumbering the vehicle “shortly after purchase”, Mr Sayers confirms that his company “has now taken possession of the Panamera.” This transaction between Eurodrive and Sayers Investments Pty Ltd makes absolutely no provision for the LCT upon supply of that vehicle by Eurodrive;
·     In its third Statement of Facts, Issues and Contentions, Eurodrive says that Mr Sayers (or his company) caused the “investment money” for the subject vehicle to be deposited in two tranches: the first on 15 November 2012 and the second on 19 November 2012. This contention squarely contradicts Mr Sayers’ sworn evidence to the effect that “I deposited $234,000 to Eurodrive’s Bank of Queensland account on 25 October 2012”;
·     As a prelude to taking possession of the Porsche Panamera, Mr Sayers swore these things: “shortly after the purchase, I encumbered the vehicle to protect my investment” and “Sayers has now taken possession of the Panamera.” The difficulty with these contentions is that they squarely contradict the written evidence appearing in the relevant Personal Property Securities Register document which confirms that the subject vehicle was not encumbered by Mr Sayers until 16 April 2015.[33] This is almost three years after his purported loan to Eurodrive.
[33] Exhibit 2, Supplementary T Documents, ST34, page 3828.
Second, the putative lender for the Audi R8 was Mr Mark Colin Bishop. His statutory declaration was sworn on 18 April 2007.[34] He describes himself as, essentially, an investor in luxury motor vehicles. He says that he engaged Mr Gasperak “to source me a suitable vehicle to invest in.” He says that:
“On or about July 2011, Tomas telephoned me to inform me that he had located an Audi R8 that he believed would make a suitable investment. I agreed and subsequently transferred $237,689 to Eurodrive to make the investment who then acquired the vehicle.”[35]
[34] Exhibit 8, Statutory declaration of Mark Colin Bishop declared 18 April 2017.
[35] Ibid.
Almost three years later (in March 2014), Mr Bishop says he:
“5. …telephoned Tomas [Gasperak] and informed him that I wanted to exit my investment.
6. Around one month later, in April 2014, Eurodrive sold the vehicle to the Audi Centre Brisbane for its market value at the time and transferred me the proceeds from the sale less costs.
7. This concluded my dealings with Tomas and Eurodrive.”[36]
[36] Ibid.
One can only wonder at the utility of Mr Bishop’s evidence. He deposes to providing Eurodrive with $237,689 for the purchase of a motor vehicle and that he does so for “investment purposes”. Three years later, he tells Mr Gasperak that he wants to “exit” the investment. The car is then apparently sold by Eurodrive to a third party for its “market value” and Eurodrive then apparently remits the net sale proceeds to Mr Bishop. Mr Bishop says nothing about (1) owning or using the car at any time during the period of the “investment”, or (2) making any profit upon the sale of the car to the third party three years after he made the investment. As also noted by the Respondent,[37] Mr Bishop’s evidence as to the purchase date of the vehicle (i.e. July 2011) is at odds with his deposit of $237,666 into Eurodrive’s bank account tree months earlier, on 12 April 2011.
[37] Exhibit 14, Commissioner’s Final Submissions, paragraph [46].
Third, funds from the putative lender relating to the Ferrari 458 Italia and the Ferrari California were, for all intents and purposes, provided by Mr Craig Elvin. In his statutory declaration relating to the Ferrari 458 Italia,[38] Mr Elvin said that the putative lender “…has few dealings with Eurodrive since 2010.” He goes on to say that Mr Gasperak told him in April 2013 that he had located the Ferrari 458 Italia vehicle and that it represented a good investment with potential for a reasonable return. Mr Elvin says the putative lender was induced to invest $470,000 “…to enable Eurodrive to purchase the 458…”. He adds that after execution of the “…standard loan agreement between us…” Mr Elvin’s putative lender deposited the sum of $470,000 into Eurodrive’s bank account on 30 April 2013.
[38] Exhibit 9, Statutory Declaration of Mr Craig Elvin, declared on 19 April 2017.
Despite Mr Elvin being “…regularly in touch with…” Mr Gasperak, Eurodrive “…was not able to sell the vehicle for nearly 2 years.” Given this failure to find a buyer for the vehicle, Mr Elvin says that he instructed Mr Gasperak “…to sell the vehicle at the best available price and close the investment.” Ultimately, “The vehicle was sold at a considerable loss.” The putative lender “received the sale proceeds” (presumably from Eurodrive) some two years later on 20 April 2015.
Much as was the case with Mr Bishop, it is difficult to discern any commercial efficacy or purpose behind this transaction involving Mr Elvin’s putative lender. The essence of Mr Elvin’s evidence is that (1) he caused a putative lender to advance funds to Eurodrive for the purchase of a vehicle in April 2013 (as an “investment”), (2) Eurodrive apparently attempted to sell the vehicle for two years but was not able to do so, (3) the vehicle was then sold “at a considerable loss” and (4) two years after investing/lending the funds, the putative lender received the sale proceeds after the vehicle’s sale “at a considerable loss”.
Mr Elvin was also involved (via a putative lender entity) in the provision of funds for the acquisition of the Ferrari California. The preliminary paragraphs of his statutory declaration relating to this vehicle[39] are identical to his statutory declaration sworn on the same day relating to the Ferrari 458 Italia. However, in the statutory declaration relating to the Ferrari California, Mr Elvin deposes to the putative lender:
“…has had many previous dealings with [Eurodrive] in which [the putative lender] has invested with Eurodrive on being assured that vehicle purchase and sale can lead to high return on the money invested. The investments are made with the main idea of making a gain.”[40]
[39] Exhibit 10, Statutory Declaration of Mr Craig Elvin, declared on 19 April 2017.
[40] Ibid, paragraph [6].
Once again, much as occurred with the Ferrari 458 Italia, Mr Gasperak informed Mr Elvin that he had located a vehicle (in this case, the Ferrari California) and that it represented a good investment opportunity for the putative lender. Mr Gasperak apparently told Mr Elvin that the putative lender had to provide $315,000 to Eurodrive for the purchase of the vehicle. Also again, upon entering into the “standard loan agreement” with Eurodrive, the putative lender deposited $255,000 into Eurodrive’s bank account on 29 June 2012. According to this particular statutory declaration:
“8. On receiving the signed agreement and an invoice, Springrange deposited $255,000 to Eurodrive’s Bank of Queensland account on 29 June 2012. This deposit, together with $60,000, owed to [the putative lender] by Eurodrive in relation to another investment vehicle, made up the total investment of $315,000 for the California.”[41]
[41] Ibid, paragraph [8].
Once again, Mr Elvin deposes to Eurodrive proceeding to market and sell the subject vehicle, but “Unfortunately Eurodrive was not able to sell the vehicle for a gain for more than three years.” Mr Elvin adds that:
“…as the investment was not performing, Tomas was asked to sell the vehicle at the best available price and close the investment.
11. The vehicle was sold at a considerable loss.
12. On 7 September 2015, [the putative lender] received the sale proceeds and recorded a substantial loss.”[42]
[42] Ibid, paragraphs [10]-[12].
The same observations that were made about the lack of commercial efficacy or purpose behind the transaction involving the Ferrari 458 Italia can also be made about the Ferrari California. The reader of Mr Elvin’s statutory declaration is expected to believe, on the balance of probabilities, that someone would lend circa $300,000 to someone else for an investment that, just over three years later, realises “a substantial loss.” While it can be accepted that many investments result in losses, it is extraordinary that Mr Elvin did not take steps to protect his investment, such as, for example, taking a registered security over the subject vehicle, or, indeed, securing a personal guarantee from either Mr Gasperak or a third party for performance of the agreement, or to otherwise protect the interests of the putative lender.
As noted by the Respondent, this extraordinary lack of commercial efficacy and purpose deposed to in Mr Elvin’s respective statutory declarations “leaves more questions than it actually answers.”[43] Mr Gasperak’s oral evidence about the asserted commerciality of these two transactions (involving both Ferrari vehicles) was, to be frank, appallingly deficient and “did more to obfuscate than illuminate the resolution of the discrepancy.”[44] It is necessary to peruse Mr Gasperak’s oral evidence in order to comprehend his feigned incredulity towards questions put to him and his deliberate obfuscation of the real purpose of the particular arrangements between Eurodrive and the putative lenders for both Ferrari vehicles:
[43] Exhibit 14, Commissioner’s Final Submissions, paragraph [48].
[44] Ibid.
“MR BRENNAN: Yes, 4-4-7-7, this is one of these loan agreements, do you see that? For the record it’s FST4, it’s in volume 2 of exhibit 3. Do you know who created this document?
MR GASPERAK: Yes.
MR BRENNAN: Who?
MR GASPERAK: Craig Elvin, his accountants or whoever, it wasn’t created by us. This document was created by Elvin and it was given to - we took a copy of it and he provided it and - - -
MR BRENNAN: You’ll see in the recital, Eurodrive is interested in the purchase of a Ferrari California Coupe F1, well that’s incorrect isn’t it? It’s actually Mr Elvin who is interested in purchasing a Ferrari California Coupe F1?
MR GASPERAK: Well, no, it’s not because we approach Elvin and say that this car’s here and we want to buy it. Elvin provided us the money. I mean, I’m only telling you my understanding of it.
MR BRENNAN: This is an arrangement that you came up with Mr Elvin, okay?
MR GASPERAK: And I told you yesterday - - -
MR BRENNAN: I’m trying to understand it?
MR GASPERAK: I told you yesterday, it’s very simple. We want to buy a car, we find the car, Mr Elvin funds it. This is what he wrote. I’m not a contract expert.
MR BRENNAN: It says, “and requires a loan of $315,000”, do you see that?
MR GASPERAK: M’mm.
MR BRENNAN: In fact, only $255,000 was provided?
MR GASPERAK: Yes.
MR BRENNAN: Can you explain why that is so?
MR GASPERAK: I’d have to go back through the records. There could have been other cars used as payments, I don’t know. That happened a lot of times and that’s a normal thing in the motoring industry.
MR BRENNAN: Sorry, another car used as a payment?
MR GASPERAK: Yes, that’s right.
MR BRENNAN: What do you mean by that?
MR GASPERAK: Well, we do it all the time, even now, all the investors do it. Bruce has a Jaguar and says, “I want to buy a $500,000 Ferrari Dino.”
MR BRENNAN: Yes?
MR GASPERAK: We’ll value the Jaguar and we’ll go and on-sell the Ferrari Dino to make money.
MR BRENNAN: No, no, no, I’m still fixated on the Jaguar and how that’s used to finance the purchase of your hypothetical Dino?
MR GASPERAK: Well, it’s a form of payment. It’s - - -
MR BRENNAN: So - - ?
MR GASPERAK: Eurodrive could have owned the car and I don’t know, I would have to check exactly what cars went where because I know what you’re going to ask, what cars and where, and how, and I don’t know. I don’t have that.
MR BRENNAN: Don’t anticipate what I’m going to ask?
MR GASPERAK: Well, I’m - - -
MR BRENNAN: I’m just asking about this particular transaction. Okay. Now, do you recall a time when Mr Elvin had a car that he used for part of the - what you call the loan amount?
MR GASPERAK: Yes, probably.
MR BRENNAN: Well, not probably. I’m asking you whether you recall a time. Do you recall a time?
MR GASPERAK: Yes. Yes.
MR BRENNAN: Okay?
MR GASPERAK: Yes. Yes.
MR BRENNAN: So can you just give me the background to that time?
MR GASPERAK: The figures have all been given to you guys though.
MR BRENNAN: No, no, no, I’m asking you to recall from your own memory what happened, how that transaction proceeded?
MR GASPERAK: If Mr Elvin had car X and he wanted to trade it with - - -
MR BRENNAN: No, no, no?
MR GASPERAK: - - - with the - - -
MR BRENNAN: I’m sorry, Mr Gasperak, I’m not asking you about hypothetical situation. I’m asking you about the situation that you recall - - ?
MR GASPERAK: On the - - -
MR BRENNAN: No, no, no. Listen?
MR GASPERAK: M’mm.
MR BRENNAN: You see, when you say “If,” blah, blah, blah, what you’re doing is you’re saying hypothetically if that occurred. I’m asking you if you can recall the situation, and if you can recall it, tell me about it. Do you understand that?
MR GASPERAK: M’mm.
MR BRENNAN: Okay. So can you recall the situation?
MR GASPERAK: I’ve got to recall a car because I don’t - - -
MR BRENNAN: Okay. Well, recall your car for me?
MR GASPERAK: I’m thinking, and I know you think I’m - but - well, actually I can’t recall because I don’t know which car. I know that he had one or two cars he used as part payment, but I don’t know which ones and when.
MR BRENNAN: Okay. So if you can’t give me the exact details let’s now talk about it in broader terms. You said that he gave Eurodrive the cars in part-payment. Is that a circumstance where Eurodrive used that car as part-payment for the purchase of the luxury vehicle?
MR GASPERAK: Could have been, yes, on one occasion, I think, yes.
MR BRENNAN: So that was - that’s a trade-in situation. Is that right? Where a car is traded in as part of the purchase price for another car?
MR GASPERAK: Eurodrive still would have had that car as trading stock.
MR BRENNAN: Well, which car? Mr Elvin’s car?
MR GASPERAK: Eurodrive would have still had a car - so if Mr Elvin invests in five cars and he’s got them with me, and he puts 200 grand and another car out of trading stock to purchase another one, what’s wrong with that?
MR BRENNAN: But that’s not his - that’s not your trading stock. That’s his trading stock, isn’t it?
MR GASPERAK: But it’s not, because he’s invested money with us. We’ve gone to buy that trading stock. That trading stock is on display as well.
MR BRENNAN: But, Mr Gasperak, he’s telling you wish [sic] car to use to trade in for the new car, isn’t it?
MR GASPERAK: No. No.
MR BRENNAN: No, he’s not? You’re doing that, are you?
MR GASPERAK: No. Someone - look, Michelle, me, Eric, one of us would have been there with the deal, and the deal would have been negotiated. I don’t know what - I’m not going to tell you cars and what, because I don’t remember them. I’ll say a car, and then it’ll be wrong, and then you’ll - you know, I’ll look like an idiot five minutes later.
MR BRENNAN: I’m not going to do that, Mr Gasperak. I’m asking you about the situation wherein you apparently hold a car from Mr Elvin as an investor - - ?
MR GASPERAK: That’s on the yard. That’s on the yard, and there was a van on the yard.
MR BRENNAN: Just let me finish the question. There’s a car in your yard. I assume that’s at Mermaid Waters?
MR GASPERAK: That’s correct, yes.
MR BRENNAN: That was held on behalf of Mr Elvin?
MR GASPERAK: That was trading stock. That was basically second-hand or whatever cars that we had purchased to sell. I know there was a Porsche there. I know there was a van there. I know there was an F50 truck. I know there was another Mercedes van there. If he said to me at the time, “Look, put those cars up for sale,” and they’re up for sale for six months and two or three of them haven’t sold, and I go in and say I want to purchase this California, why don’t we trade a couple of the cars, or one of the cars over on the California, so we can get - it’s the - it’s like a form of using money. We do it until now. People do it all the time. And Gosford and Museum do it all the time. They bought $300 million worth of cars, put them in a museum and avoided luxury car tax, and now they’re selling all the cars and everybody is okay with that. There’s 50 other dealers around Brisbane doing it, but we’re the only one under investigation.
MR BRENNAN: So, Mr Elvin has invested in a car previously that is still in your yard?
MR GASPERAK: Many cars. Many cars. Mr Elvin has invested in many cars.
MR BRENNAN: I’m talking about this situation. Okay. And you go to him and you say, “I’ve got a Ferrari California”?
MR GASPERAK: That’s right.
MR BRENNAN: Okay. Why didn’t you go to him with the Bentley?
MR GASPERAK: What do you mean?
MR BRENNAN: Well, why did you go to Mr Dean for the Bentley instead of the Ferrari?
MR GASPERAK: Well, because Craig doesn’t like Bentleys. He hates Bentleys. He said, “I don’t find anything attractive about the Bentleys.” What’s wrong with that? The investor has got to trust me, like me, and he’s got to like the thing he’s dealing in too. You know what I mean? The thing he believes will sell. So if he believes - he’s had maybe a bad experience or heard something, “No, I’m not investing in the Bentley.” I’m sure - look, I put a lot of cars up to Craig Elvin. I put hundreds of cars up to Bruce, up to all the people that I deal with, you know. Look, I put Bruce’s Jaguar to another investor, to another client last week, he came very close to buying it, and then he found out that it didn’t have the documentation he wanted, so he didn’t buy it.
MR BRENNAN: Bruce’s Jaguar, that’s the Jaguar that’s owned by Eurodrive, isn’t it? Or is it Bruce’s Jaguar?
MR GASPERAK: Well, no, he’s put up the money. When I say Bruce’s Jaguar, we keep the car. The car is displayed at the showroom, and he’s put up the money. So, you know, Bruce’s Jaguar. I refer to them - I know what you’re saying. I refer to them by who’s put the money up for the car. Okay. We’ll say, correct me, Eurodrive’s Jaguar - or, sorry, not Eurodrive’s. Whoever’s Jaguar. Lambhill or whoever owns it. Bruce paid for it, so…”[45]
[45] Transcript, page 104, line 27, to page 107, line 28.

Again, the credibility of Mr Gasperak’s evidence on this specific issue did not improve when the questioning moved to the realm of discussing what type or level of insurance cover the putative lenders would have expected Eurodrive to have in place for those luxury vehicles:
“MR BRENNAN: Well, you were the person who was the go between, between the investors and Eurodrive, weren’t you?
MR GASPERAK: That’s correct, yes.
MR BRENNAN: And you never discussed insurance with the investors?
MR GASPERAK: No. They knew that I had 150 of it, that there was 150,000 for driving risk.
MR BRENNAN: Well, how did they know that?
MR GASPERAK: Because I told them so. But I didn’t discuss insuring each and every vehicle. We just said there’s a blanket cover for when the vehicles get driven. And Eurodrive and every other company works like that for the last I don’t know.
MR BRENNAN: So are you saying that, for example, Euro Marque would only have an insurance policy of $150,000 for its vehicles?
MR GASPERAK: I don’t know what policy they have, but I am sure they don’t have 20 million dollars, they wouldn’t because you’re not driving 30 cars at once or 50 cars at once.
MR BRENNAN: But that doesn’t even cover one car, one of those luxury cars, Mr Gasperak. Don’t you understand?
MR GASPERAK: Okay, well, alright, so what? Okay, my mistake, I didn’t know, so what? So how does have to do anything with any of this [sic]? I’m sorry, I don’t understand.
MR BRENNAN: Well, the basis upon which you said you didn’t have to insure the vehicles is because you could get them repaired more cheaply, is that right?
MR GASPERAK: Well, if something had happened we’re not going to 400 grand to repair a car if you prang it.
MR BRENNAN: What happens if it was written off?
MR GASPERAK: I don’t know.
MR BRENNAN: You didn’t think that through?
MR GASPERAK: No.
MR BRENNAN: How long have – sorry, you have 15 years in this business?
MR GASPERAK: Yes, yes.
MR BRENNAN: And you value vehicles as your business?
MR GASPERAK: You know what -
MR BRENNAN: No, no, just listen to the question?
MR GASPERAK: Yes, yes, go on.
MR BRENNAN: You value vehicles?
MR GASPERAK: Yes.
MR BRENNAN: And you say when I saw “What happens if it’s written off and there’s no insurance?” You say you don’t know?
MR GASPERAK: No. You know what, Bruce Holt has over $2 million in cars and he’s never had insurance in 40 years that he’s been in the car industry, never had insurance.”[75]
[75] Transcript, page 66, line 25 to page 67, lines 16.
It is simply astonishingly incredible for Mr Gasperak to purport to say that he (via Eurodrive) induced third parties to place something in the order of $1.5 million with him to facilitate Eurodrive’s purchase of five luxury vehicles and yet to respond with “I don’t know” to a question about what happens in the event one of those vehicles was written off. It is similarly unbelievable for him to assert that some type of “blanket” insurance cover limited to $150,000 is somehow sufficient insurance cover to adequately protect an apparent loan or investment by a third party in favour of Eurodrive for a sum two or three times that amount. It is also unbelievable for Mr Gasperak to say that capping insurance on a $400,000 vehicle at $150,000 is somehow justifiable and credible because he – through his experience/contacts in the motor vehicle industry – can arrange for repairs to be done at a cheaper rate than a general motorist/car owner.
There followed in Mr Gasperak’s evidence simultaneously altered positions about what he had to say regarding Mr Hallt’s insurance arrangements over his motor vehicles. Initially, Mr Gasperak said he was not certain about what type of arrangements Mr Hallt had put in place in this regard:
“MR BRENNAN: And would you agree with me that that’s the usual way that somebody who’s providing finance for a car would conduct the business of insuring it or requiring the person to whom they’re giving the car to insure it?
MR GASPERAK: That’s what finance companies do, yes. Private financiers are very different. We’ve done business with Bruce Holt [sic], as I said, for many years and we’ve never had one car insured and he’s got, you know – I’ve worked with Bruce personally and I drove his Audi R8 the other day and it’s got no insurance on it.
MR BRENNAN: Mr Holt’s Audi R8?
MR GASPERAK: That’s up to him to insure.
MR BRENNAN: Sorry, Mr Holt’s [sic] Audi R8, is that right?
MR GASPERAK: That’s correct.
MR BRENNAN: And this was just the other day you were driving this vehicle, is that right?
MR GASPERAK: That’s correct.
…
MR BRENNAN: So you don’t know whether Mr Holt [sic] has actually insured the vehicles that you were just talking about, three or four vehicles apparently that you’re selling for him independently?
MR GASPERAK: I would not have a clue.
MR BRENNAN: And he’s not here to answer those questions obviously, is he?
MR GASPERAK: Why would he be here to answer questions about his vehicles and whether he’s insured them?”[76]
[76] Transcript, page 68, lines 18-31 and 38-45.
There then followed a further about-face in Mr Gasperak’s evidence about Mr Hallt’s policy with regard to insuring his cars. The about-face involved Mr Gasperak moving from “not having a clue” about whether Mr Hallt insured his cars, to Mr Hallt “doesn’t have any of his cars covered”:
“MR GASPERAK: …Look, I’ve seen motor dealers crash cars and the insurance doesn’t pay out, so what’s the relevance? And, for example, that’s why Bruce doesn’t have any of his cars covered. I met Bruce years ago and I asked him “What about insuring?” “No, I don’t because I’ve had cases where cars get crashed and the insurance company pulls out and doesn’t pay.”[77]
[77] Transcript, page 70, lines 40-44.
Apart from the blatant inconsistencies in Mr Gasperak’s evidence on this specific point, no credible weight can be allocated to the immediately preceding portion of his evidence because Mr Gasperak is purporting to give Mr Hallt’s evidence. This evidence should, rightly, be given by Mr Hallt.
The fatal difficulty with the totality of Mr Gasperak’s evidence in relation to the LCT issue is that it is not corroborated by another sufficiently reliable source.[78] It would be unsafe for this Tribunal to, on the strength of Mr Gasperak’s uncorroborated evidence, find the facts that he propounds both on his own behalf and on behalf of Eurodrive to be proved in the absence of such corroboration. As noted by Logan J in Russell v Federal Commissioner of Taxation [2009] FCA 1224:
“… recalling on whom the onus lies and applying that standard of proof, I did not regard Mr [Gasperak’s] uncorroborated evidence on the subject as sufficiently reliable to admit of a conclusion that these facts were proved.”[79]
The Evidence of Mr Moloney
[78] See the comments of Logan J. in Russell v Federal Commissioner of Taxation [2009] FCA 1224.
[79] Ibid at paragraph [76].
It is difficult to glean any credible assistance from the evidence of Mr Moloney, due to the primary reason that he was not a direct witness to any of the events relating to any of the five subject luxury vehicles. While Mr Moloney gave evidence at the hearing, the primary focus of his evidence involved aspects of the Gatfield Audit. His evidence was predicated on the basis that Eurodrive is the victim of procedural unfairness and a denial of natural justice due to the maker(s) of the Gatfield Audit report not being made available for cross-examination at the hearing. For reasons I have outlined earlier, such a contention fundamentally misunderstand the nature of the onus resting on the Applicant in matters such as this.
Mr Moloney’s evidence does not assist in the discharge of Eurodrive’s evidential and persuasive onus to demonstrate, on the balance of probabilities, that the Respondent’s revised LCT assessments were excessive and therefore wrong. His evidence does not positively prove (on the balance of probabilities) what the correct LCT assessment(s) should be so that each of the relevant assessment(s) are made right or “more nearly right”.[80]
[80] Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63, as per Latham CJ at 88; see also Federal Commissioner of Taxation v Dalco (1989) 168 CLR 614 as per Brennan J at 623-625 and Toohey J at 632-634; and recently Palassis v Commissioner of Taxation [2011] FCA 1305 at [9] per McKerracher J.
Accordingly, it would be unsafe to allocate any weight to Mr Moloney’s evidence in the determination of the LCT issue.
Other Shortfalls and Difficulties Affecting the Evidence Sought to be adduced by the Applicant
I have earlier referred to consequences and outcomes arising from the Applicant’s failure to submit its witnesses[81] to cross-examination. While this evidence can be accepted by the Tribunal pursuant to s33 of the AAT Act, it would be unsafe to allocate any measure of weight to that evidence, given (1) the very significant levels of inconsistency between respective deponents, (2) the absence of any contemporaneous documents to corroborate and/or augment the purported evidence of those deponents; (3) the illogical and uncommercial outcomes resulting from each of the “investment” ventures sought to be evidenced by the witnesses; and (4) the failure of both Mr Gasperak’s evidence and that of Mr Moloney in explaining or otherwise improving the state of the evidence.
[81] Specifically (1) witnesses who were not putative lenders, and (2) those who purported to be putative lenders.
The transactions in relation to the five subject luxury vehicles involve Eurodrive’s receipt of something in the order of $1.5 million. In circumstances where Eurodrive now claims to be entitled to respective LCT exemptions for each subject vehicle, its failure to create and/or maintain appropriate records to support such claims is astonishing. One would reasonably have expected Eurodrive to be in a position to produce, for example:
·     sworn evidence from someone about Eurodrive’s intention when the luxury vehicles were purchased;
·     evidence about an advertising or marketing campaign for the subject vehicles;
·     evidence consistent with Eurodrive’s now-propounded position that, at all material times, the subject vehicles were acquired and held as trading stock;
·     evidence relating to pre-deal negotiations with putative lenders before entering into the purported “loan agreements”;
·     evidence that the vehicles were individually insured;
·     evidence to explain why Eurodrive had under-insured the vehicles or not insured them at all;
·     evidence to demonstrate that the vehicles were maintained, garaged and otherwise maintained to a state worthy of vehicles having a value of hundreds of thousands of dollars;
·     evidence demonstrating a list of interested purchasers who undertook test drives;
·     evidence that the subject vehicles were exhibited or otherwise publicly displayed for sale; and
·     evidence that safety certificates were secured and kept current for each of the vehicles.[82]
[82] See Exhibit 7, Respondent’s SFIC, paragraph [110].
I reject Mr Gasperak’s purported explanation for this evidentiary shortfall as apparently being attributable to (1) him not being efficient with paperwork or recordkeeping; or (2) apparent burglaries at Eurodrive’s car yard facility at the Gold Coast.
FINDINGS
I find that the Applicant has failed to discharge its onus of proof in terms of demonstrating, on the balance of probabilities, that, for any of the relevant years of income, the Respondent’s respective assessments for LCT were excessive and thus wrong. Accordingly, I also find that the Applicant has failed to prove, on the balance of probabilities, how the Respondent’s amended assessments in relation to LCT can be corrected in order to make them right, “or more nearly right”.
Having regard to (1) the identified issues and (2) the state of the evidence, I make the following findings:
·     Were the subject luxury vehicles actually purchased by a customer of Eurodrive and not, as Eurodrive asserts, for itself? Put another way, were the putative lenders in fact the purchasers and Eurodrive the seller of these vehicles? Answer: Yes.
·     Whether, at the time of Eurodrive’s purchase of the subject luxury vehicles, did Eurodrive intend that the subject vehicles be held as trading stock and for no other purpose? Put another way, was Eurodrive entitled to “quote” for each of the luxury vehicles’ purchase and to thus avoid liability for LCT pursuant to Division 9 of the LCT Act? Answer: No.
·     In the alternative, whether, subsequent to Eurodrive’s purchase of the luxury vehicles, it can be demonstrated that those vehicles were not held as trading stock and for no other purpose? Answer: Yes.
·     Can Eurodrive satisfactorily explain the otherwise unexplained deposits (for the five subject vehicles) into its bank accounts during the relevant period? Answer: No.
Earlier in these Reasons, I explained that in its original configuration, this proceeding involved three inter-dependent issues. Shortly described, they comprised (1) Eurodrive’s liability for Luxury Car Tax, (2) Eurodrive’s liability for the Goods and Services Tax, and (3) Eurodrive’s liability for income tax. There was a fourth and consequential issue and it involved applicable penalties on, collectively, the three relevant Tax Assessments.
I further explained that the parties reached agreement about an approach to the second and third issues involving the adoption of an industry benchmarking standard to the determination of the Applicant’s liability for both GST and income tax. Eurodrive’s resulting liability – for the purposes of this determination – is limited to the LCT issue. It follows that the Respondent’s decision under review must inevitably be set aside and remitted for further determination with specific reference to the second (i.e. GST) and third (i.e. income taxation) issues.
DECISION
Taking into account the Respondent’s concession[83] to the setting aside of the decision under review, I make the following ancillary directions or recommendations:
[83] Exhibit 14, Commissioner’s Final Submissions, paragraph [54].
a)    That the LCT payable on the luxury vehicles be adjusted in terms of Annexure A, Table 3 to the Commissioner’s Final Submissions;[84]
[84] Ibid.
b)    That the GST payable in consequence of the immediately preceding direction/recommendation be adjusted in terms of the aforementioned Annexure A, Table 3;[85]
[85] Ibid, page 21.
c)    That the penalties attributable to the LCT issue be calculated on the adjusted amount;
d)    That the parties are to provide a short minute of order dealing with the balance of the issues, namely, the Income Tax issue and GST issue

I certify that the preceding 143 (one hundred and forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.................................[SGD].......................................
Associate
Dated: 9 June 2020

Date(s) of hearing: 15, 16 March and 3 April 2018

Date final submissions received: 30 May 2018

Advocate for the Applicant: Mr Thomas Moloney

Counsel for the Respondent: Mr Vincent G Brennan

Solicitor for the Respondent:
Mr Scott Turner

Annexure A – Exhibit List

Date

Document

Exhibit No.

15/03/2018

Tribunal documents volumes 1 and 2 (2 volumes)

1

15/03/2018

Supplementary Tribunal documents (9 volumes)

2

15/03/2018

Further supplementary Tribunal documents (2 volumes) .

3

15/03/2018

Applicant's first statement of facts, issues and contentions

4

15/03/2018

Applicant's second statement of facts, issues and contentions

5

15/03/2018

Applicant's third statement of facts, issues and contentions

6

15/03/2018

Respondent's statement of facts, issues and contentions

7

15/03/2018

Statutory declaration of Mark Colin Bishop declared 18 April 2017

8

15/03/2018

First statutory declaration of Craig Elvin declared 19 April 2017

9

15/03/2018

Second statutory declaration of Craig Elvin declared 19 April 2017

10

15/03/2018

Statutory declaration of John Sayers declared 19 April 2017

11

15/03/2018

The Gatfield Audit (19 June 2013 to 19 November 2013)

12

16/03/2018

Group of photographs

13

17/04/2018

Commissioner’s Final Submissions received 17 April 2018

14

30/05/2018

Applicant’s Consolidated Final Submissions dated 30 May 2018

15

Date(s) of hearing:	15, 16 March and 3 April 2018
Date final submissions received:	30 May 2018
Advocate for the Applicant:	Mr Thomas Moloney
Counsel for the Respondent:	Mr Vincent G Brennan
Solicitor for the Respondent:	Mr Scott Turner

Date	Document	Exhibit No.
15/03/2018	Tribunal documents volumes 1 and 2 (2 volumes)	1
15/03/2018	Supplementary Tribunal documents (9 volumes)	2
15/03/2018	Further supplementary Tribunal documents (2 volumes) .	3
15/03/2018	Applicant's first statement of facts, issues and contentions	4
15/03/2018	Applicant's second statement of facts, issues and contentions	5
15/03/2018	Applicant's third statement of facts, issues and contentions	6
15/03/2018	Respondent's statement of facts, issues and contentions	7
15/03/2018	Statutory declaration of Mark Colin Bishop declared 18 April 2017	8
15/03/2018	First statutory declaration of Craig Elvin declared 19 April 2017	9
15/03/2018	Second statutory declaration of Craig Elvin declared 19 April 2017	10
15/03/2018	Statutory declaration of John Sayers declared 19 April 2017	11
15/03/2018	The Gatfield Audit (19 June 2013 to 19 November 2013)	12
16/03/2018	Group of photographs	13
17/04/2018	Commissioner’s Final Submissions received 17 April 2018	14
30/05/2018	Applicant’s Consolidated Final Submissions dated 30 May 2018	15