Trust Co. of Australia v Chief Commissioner of State Revenue

[2002] NSWADT 21

CITATION:	Trust Co. of Australia Ltd -v- Chief Commissioner of State Revenue [2002] NSWADT 21
DIVISION:	Revenue Division
PARTIES:	APPLICANT Trust Company of Australia Ltd RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	016001
HEARING DATES:	28/09/2001
SUBMISSIONS CLOSED:	12/20/2001
DATE OF DECISION:	02/25/2002
BEFORE:	Verick A - Judicial Member
APPLICATION:	Taxation Administration Act - liability to pay interest
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Land Tax Management Act 1956 Taxation Administration Act 1996
CASES CITED:	Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Latham v Director General, Department of Community Services [2000] NSWADT 58 Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306 Re Murtagh and the Commissioner of Taxation (1984) 6 ALD 112 Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 Walker v Federal Commissioner of Taxation (1994) 95 ATC 2001 Re Saunders and FC of T (1988) 15 ALD 761
REPRESENTATION:	APPLICANT K Grant, agent RESPONDENT G Van Emmerick, agent
ORDERS:	1. That the interest on late lodgement of the Initial Return at the market rate was correctly assessed in the applicant's land tax assessment for year 2001; 2. That the document "Business Rules" is not an exempt document under Cl.9 (1)(a) and (b) of the FOI Act.

Introduction
1 This is an application to the Tribunal under Division 2 of the Taxation Administration Act 1996 (TA Act) requesting a review of an objection decision made by the Chief Commissioner of State Revenue (Chief Commissioner) under Division 1 of the TA Act in respect of an assessment under the Land Tax Management Act 1956 (LTM Act).

2 The principal question at issue is essentially whether the interest included in the Land Tax assessment for late lodgement of the initial return for the 2001 year should be fully or partly remitted. An additional issue arises in respect of a claim by the Chief Commissioner that his "Business Rules" to guide his officers in the imposition and remission of interest and penalty tax is an "exempt document" for purposes of the Freedom of Information Act 1989 (FOI Act).

3 The TA Act and Administrative Decisions Tribunal Act 1997 (ADT Act) were recently amended to allow taxpayers to lodge as from 1 July 2001 applications to this Tribunal to review objection decisions of the Chief Commissioner made under Division 1 of the TA Act. Prior to these amendments taxpayers had only a right of review by way of an appeal to the Supreme Court. The changes introduced allow taxpayers a less formal and an inexpensive means of review before this Tribunal.

4 With the agreement of the relevant parties, this application was decided on the documents and material lodged with the Tribunal pursuant to the provisions of s 76 of the ADT Act. The documents and material included those lodged by the Chief Commissioner as required under s 58 of the ATD Act and the statement of reasons for the decision of the Chief Commissioner under s 49(3) of the ATD Act.

5 The Chief Commissioner also provided the Tribunal with three copies of a document titled "Business Rules" concerning the exercise of the Chief Commissioner's discretion under sections 25 and 33 of the TA Act but claims that the relevant document is an "exempt document" within clause 9 of Schedule 1 to the FOI Act and that accordingly section 124 of the ATD Act applies to preclude disclosure of the document to the applicant.

6 In addition the parties also lodged written submissions.

Background
7 The facts are quite straightforward and are not in dispute.

8 On 14 July 2000 a property known as," Lot 111 IN DEPOSITED PLAN 1014769, AT SYDNEY LOCAL GOVERNMENT AREA: SYDNEY PARISH OF ST JAMES, COUNTY OF CUMBERLAND" was divided into two strata titles. This was done with Lot 111 retaining some part of the property and with the creation of a new property described as Lot 112 with ownership of such part of the property not retained in Lot 111. Lot 111 remained with its previous owner and Lot 112 was sold on 14 July 2000 to the applicant as trustee of the Park Plaza Development Trust. Lot 112 is now merely described and referred to as "2 PARK STREET SYDNEY".

9 This application is in respect of the liability to land tax of Lot 112. An Initial Land Tax Return was lodged by the applicant on 1 May 2001 and which was received by the Chief Commissioner on 2 May 2001. On 16 May the Chief Commissioner issued the applicant a Land Tax Notice of Assessment for 2001 tax year which included an amount of $22,118.76 as "Interest On Late Lodgment". Full interest was imposed on both premium and market rates.

10 The applicant lodged on 18 May 2001 an objection against the inclusion of the interest in the relevant assessment. The Commissioner considered the objection and on the basis of his guide lines (Business Rules) took the view that the taxpayer had taken reasonable care but the default was within its control. However, the Commissioner on the basis "of the information provided and having regard to the fact that initial land tax return was lodged" proceeded to remit the interest to the market rate. The amount of $22,118.76 was thus reduced to an amount of $12,684.59.

11 The applicant has lodged this application for a review of the Chief Commissioner's decision not to make any remission of the interest imposed at full market rate.

The Taxpayer's Case for further remission of interest
12 The taxpayer provided the Tribunal with the following written statement to support its case for a further remission of the interest imposed:

Our defence of the imposition of the interest charge however rests on the following factors which relate to the "Facts" and interpretation thereof:
A series of queries directed by the Managing Agent for the property to personnel at the OSR over a period from October 2000 to January 2001 in regard to Land Tax due for the property. The property was referred by Title details on hand. It was never mentioned by anyone at the OSR during the course of these inquiries that registration of the property for Land Tax purposes had not occurred.
This Property was, until 14th July 2000 included with Lot 111 and noted under the ownership of one party. At the sale date the property was divided into a Stratum with Lot 111 remaining under the previous ownership and Lot 112 (subject of this decision) passing into new ownership.
The sale of property occurred as stated on 14th July 2000. However, due to an unexpected and turbulent change in the Responsible Entity acting for the owner for the Trust during this time, due diligence on the registration for Land Tax was overlooked. One manager assumed that the other had carried out this process.
The transfer of historical documentation for the property was held up for some time as it was held by a number of different legal firms acting for the various parties involved who were trying to finalise not only the Trust requirements but also details of the Stratum.
Therefore, due to the lack of documentation available at the time and understanding our requirement that the property would be liable to pay land tax, we endeavoured to determine whether we were registered through enquiry with the OSR.
However, the results of several phone conversations with OSR indicated to us that that the Property was, and subsequently had been valued again for Land Tax and a notice would issue in early February advising us of the valuation and Land Tax assessment. At no time was any indication made to us by the OSR that there was any information lacking which would lead us to believe registration had not occurred.
Therefore, based on these inquiries and conversations, we were led to believe that there were no issues which had not been carried out in relation to our Land Tax obligations.
When we received the Land Tax Assessment at our office we quickly identified that it was for Lot 111 and not Lot 112. We accordingly forwarded the assessment to the correct owner for that Lot and set about trying to find our assessment. It was only at that time that we were advised by the OSR that there was no registration for our property. The registration was then immediately made with the OSR and payment of the Land Tax amount due including all interest penalties paid within the required time.
It would appear from the fact that we received the Assessment for Lot 111 which needed to be forwarded to another owner, that there may have been confusion in the OSR regarding the Property and Lot references we had been discussing over the previous months.'
13 The Chief Commissioner does not dispute any of the facts as set out in the applicant's statement.

The Chief Commissioner's case
14 The Chief Commissioner in his Statement of Reasons for decision for purposes of section 58 of the ADT Act provided the following grounds to support the interest imposed at the market rate:

‘Rules for exercise of discretion.
The Chief Commissioner imposes the market rate of interest in cases where there is a late lodgement of a return. This is to encourage taxpayers to meet their obligations. There are however exceptions to this rule. Examples of the exception would include cases where the owner is unaware of the liability due to the land value moving over the threshold without the owner being notified; or non-lodgement due to official postal/DX delays; industrial disputes/strikes and natural disasters.
The Chief Commissioner imposes the premium rate of interest in cases where there is a failure to lodge a return or there is evidence that the failure to lodge or late lodgement of the return is due to culpable conduct by the taxpayer. This criteria also be a determinant in cases where penalty tax has been imposed.
Facts:
In the present case, interest at both market and premium rate was imposed at the time of assessment. This was based on the conclusion that the taxpayer, as an entity within the Managed Investment Scheme field, was culpable as their business requires them to have knowledge of state taxes and their requirements. It was also considered that as the land was acquired for a consideration of $78m, the vendor would have required a land tax adjustment on settlement, which should also have alerted the company to its land tax obligations.
Following receipt of the objection, it was accepted that the failure to lodge the return was an oversight and not culpable action. It was also accepted that the lodgement of the return constituted a voluntary disclosure before commencement of an investigation within section 72 of the Taxation Administration Act. That is, as the failure was in respect to the lodgement of an initial return, it was determined appropriate to remit the premium component of the interest imposed.
However, the taxpayer did fail to lodge the return by the due date. Although enquiries were made to the Chief Commissioner in March/April 2001, these enquiries only related to the question of non-lodgement and occurred after the due date had passed.
Accordingly, it was determined that the imposition of late lodgement interest at the market rate was appropriate, because to fully remit the interest would be inequitable to other taxpayers who did lodge their return by the due date.’
Relevant Legislation
Land Tax
15 Section 7(1) of the LTM Act imposes land tax on the land value of all land situated in New South Wales which is owned by taxpayers other than land which is exempt from taxation under the Act. The relevant date of ownership is midnight on the 31 December immediately preceding the year commencing on 1 January (s 8). Section 12(1) of the LTM Act provides that the Chief Commissioner may, by order published in the New South Wales Government Gazette, require all persons or specified classes of persons to furnish land tax returns.

16 The Chief Commissioner pursuant to section 12 of the LTM Act published in the Government Gazette a notice on 5 January 2001, which in relation to lodgment of "Initial Returns" provided as follows:

‘Land Tax Returns for the 2001 Tax Year
THIS Order is made under section 12 of the Land Tax Management Act 1956.
Requirement to Lodge an "Initial Return"
An "Initial Return" for the 2001 tax year is required to be lodged by a person:
(a) who was not liable for land tax in respect of the 2000 tax year but is liable for the 2001 tax year; or
(b) who has not previously lodged a land tax return or received an assessment, and is liable for land tax in respect of the 2001 tax year; or
(c) who is liable for land tax for the 2000 and 2001 tax years and did not receive a notice of assessment for the 2001 tax year; or
(d) who receives notice from the Chief Commissioner of State Revenue that a return is required to be lodged.
Copies of the blank "Initial Return" forms are available from the Office of State Revenue at Parramatta or its regional Offices located in Sydney, Newcastle and Wollongong or by telephoning the Office of State Revenue on the numbers listed below.
Those clients who must lodge an "Initial Return" form, may instead provide the relevant information by telephoning the Office of State Revenue's telephone inquiry service on [phone] or 1 800 061 163.
Time and Place for Lodgement of Returns
"Initial Returns" are required to be lodged by 28 February 2001.’
17 Section 12(1A) of the LTM Act provides that every person required by the Gazette notification to furnish a land tax return must lodge the return on or before 31 January in that year. The Gazette notice dated 5 January 2001 made special concession in relation to "Initial Returns" and extended the required lodgment date to the 28 February 2001. The notice also allowed "clients" to provide the relevant information over the telephone instead of lodging an "Initial Returns". The Chief Commissioner is allowed to make these concessions under the provisions of Divisions 1 and 2 of the TA Act.

18 In practice, land tax assessments are issued by the Chief Commissioner on the basis of a combination of information included in returns lodged by taxpayers and the data bases available to the Chief Commissioner. In New South Wales a "no returns" system was introduced in 1988. Under this system a person is not required to lodge a land tax return if the person was assessed for land tax in the previous year and there has been no change in either land holdings or land use. The only persons required to lodge returns are new owners who must lodge "Initial Returns" and persons seeking a variation of the assessment issued on the basis of the previous year information need to lodge "Variation Returns".

19 Section 72(1) of the LTM Act provides that a taxpayer who fails or neglects duly to furnish any return as and when required by the Act or the Chief Commissioner is taken to have committed a "tax default" for the purposes of Part 5 of the TA Act.

20 The provisions of the LTM Act must be read in conjunction with the provisions found in the TA Act. The TA Act makes general provision with respect to the administration and enforcement of the principal taxation laws administered by the Chief Commissioner. The taxation laws include the LTM Act. The matters that the TA Act makes general provision for include the "imposition of interest and penalty", the "approval of special tax return arrangements" and "objections and appeals"

21 Where a "tax default" occurs, interest is imposed under s 21 of the TA Act on the amount of tax unpaid on a daily basis from the end of the last day for payment until (and inclusive of) the day upon which the tax unpaid is paid. Under section 22 of the TA Act the applicable interest rate consists of two components; a market rate component and a premium rate component. The market rate component is linked to the Commonwealth Treasury Note yield rate rounded to the second decimal place (rounding 0.005 upwards) or is the rate specified for the time being by order of the Minister published in the Gazette. The relevant market rate for purposes of this application was fixed at 5.95%. The premium rate component is fixed by the Act at 8 per cent per annum.

22 Section 25 of the TA ACT gives the Chief Commissioner a discretionary power to remit either the market rate component or the premium component of interest, or both, by any amount in such circumstances as the Chief Commissioner considers appropriate.

Reasons and decision - whether applicant is entitled to any further remission of the interest imposed
23 The Chief Commissioner is given a wide discretionary power to make a remission in circumstances he considers appropriate. The relevant legislation and the explanatory notes to the legislation when introduced provide no guidance as to the circumstances, that would warrant the exercise of this discretionary power. The Chief Commissioner, unlike his counterpart in Victoria, has not issued any publicly available document disclosing circumstances that would be taken into account when considering remission of either or both the interest amounts.

24 The interest regime found in the TA Act is essentially designed to promote compliance of the relevant taxation laws. The interest regime also promotes equity between the taxpayers who meet their taxation obligations on time and taxpayers who do not meet such obligations as and when required by the law. In addition, it compensates the state for loss of use of funds.

25 The market rate component would reflect the use by the party in question of the relevant amount of money on one hand, and the lack of use of the relevant funds by the state on the other. But the fixed premium rate component is a rate imposed by way of a penalty for the "tax default" in question. A premium rate of interest is imposed where a "tax default" is a result of some culpable conduct on the part of the taxpayer. The Chief Commissioner can also impose a penalty tax under s 26 of the TA Act in cases where more serious tax defaults occur due to deliberate conduct of taxpayers.

26 Different considerations should apply when applications for remission of market rate or premium rate interest are determined by the Chief Commissioner. In considering applications, the Chief Commissioner, of course, needs to take into account all the facts of each individual case.

27 In cases where an amount of interest is imposed by the application of the market rate, only exceptional circumstances would justify any remission. The narrow category of circumstances would include cases where the "tax default" is entirely due to a fault of the Chief Commissioner. Other circumstances would include situations completely out of the control of the taxpayer, such as postal strikes, serious illness of the taxpayer and natural disasters (bush fires, floods and earthquakes).

28 On the other hand, a wider range of circumstances would be available to justify a remission of the premium rate interest. Cases where, as was the case in the present matter, there has been a change in ownership of a property and the lodgment of an "Initial Return" was not made due to some confusion as to its lodgement.

29 In the present matter, the agents of the taxpayer did take reasonable care in making inquiries with the Chief Commissioner's office about the initial return but due to some "confusion" as to who was responsible to lodge the return there was a delay in lodging the initial return. There were clearly, circumstances to support a remission of the premium rate interest imposed in this case. The Chief Commissioner has correctly at the objection stage made a full remission of the of premium rate interest that was imposed when the original assessment was made.

30 I agree with the Chief Commissioner that there are no grounds to warrant any remission of the market rate in this matter. A remission of the market rate interest, in my opinion, can only be made in exceptional circumstances. No exceptional circumstances have been raised by the taxpayer in this case. There was some communication with the State Revenue Office but the applicant did not either by telephone means or otherwise lodge an "Initial Return" until 2 May 2001.

FREEDOM OF INFORMATION ISSUE
Legislation and issue
31 The exemption on which the Chief Commissioner relies is that set out in Clause 9 of Schedule 1 to the FOI Act. The clause states that:

A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
matter that appears in an agency's policy document; or
factual or statistical material.
32 The Chief Commissioner claims that his guidelines described by the Chief Commissioner as "Business Rules" is an internal working document within clause 9(1)(a) and (b) of Schedule 1 to the FOI Act and that the Chief Commissioner is entitled to the exemption provided by section 124 of the ADT Act. Section 124(3) of the ADT Act allows the disclosure of an exempt document to the Tribunal but requires the Tribunal to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal.

33 The Chief Commissioner claims the exemption on the following grounds:

'The document "Business rules" has been prepared by the Chief Commissioner, to give policy direction to staff on how to exercise his discretion having regard to the particular facts of the case. That is, the document canvasses the several options available depending on the particular facts, thus enabling various staff to make fair and consistent decisions where the facts are similar.
It is considered that the disclosure of this policy will challenge the integrity and viability of the decision-making process. That is, by knowing what facts will achieve a desirable outcome, the facts as supplied may be adjusted accordingly and this would distort the decision making process. It follows that such an outcome would be detrimental and contrary to public interest.'
34 The purpose of Cl 9 is to "protect the processes involved in government decision-making, by preventing disclosure of information which relates to all stages of decision-making before an actual decision is made, so as to preserve the integrity of those processes." (Cossins Anne, Annotated Freedom of Information Act New South Wales History and Analysis LBC Information Services 1997 at 399).

35 The purpose of Cl 9 must of course be considered in the general context of the policy of the FOI Act as a whole. The policy enshrined in the FOI Act was stated by the former Deputy Premier of New South Wales, Mr Wal Murray, in the following comments made when introducing the Freedom of Information Bill to the New South Wales Parliament in June 1988:

"This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility … It has become common place to remark upon the degree of apathy and cynicism which the typical citizen feels about the democratic process ... This feeling of powerlessness stems from the fact electors know that many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public. The government is committed to remedying this situation." (Legislative Assembly Debates, New South Wales, 2 June 1988, p 1399).
Application of the law
36 In dealing with the Chief Commissioner's claim that the document, "Business Rules" is an exempt document, three questions arise which can be summarised:
(a) is the document an "internal working document" as defined in Cl 9 (1) (a) ;
(b) if, the answer is in the affirmative to question (a), would the disclosure "be, on balance, contrary to the public interest"; and
(c) is the document not exempt because it merely consists of "matter that appears in an agency's policy document" or "factual or statistical material".
37 The provisions of the FOI Act are required to "be interpreted and applied so as to further the objects of this Act"(s.5 (3)(a)). The objects of the FOI Act are set out in s.5, which are to extend the rights of the public to obtain access to information held by government and to ensure that records held by government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

38 In considering the history and policy of the FOI Act, Kirby P in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 said at p.627:

"I tend to favour the view that the Act, understood against its background and interpreted in uniformity with the intention of Parliament expressed in s 5, must be approached by decision-makers with a general attitude favourable to the provision of the access claimed. It is important that the decision-makers (and especially in the tribunals and courts which set the standards) should not allow their approaches to be influenced by the conventions of secrecy and anonymity which permeated public administration in this country before the enactment of the Act and its equivalents."
That observation remains valid for any current application for access.

39 The language used in cl.9 (1)(a) is very wide and would include a range of documents to which the exemption could apply. But the real test to determine whether a document falls within the category of exempt documents depends on the contents of the document and the process of its use by an agency. It is documents containing opinion, advice, recommendations "that have been obtained, prepared or recorded" relating to internal processes of consultation or deliberation that are potentially protected from disclosure.

40 As was correctly observed by Hennessy DP when considering the scope of the words in cl 9 in Latham v Director General, Department of Community Services [2000] NSWADT 58 at para [56]

"There is, … a legitimate public policy interest in agencies being free to 'think' about decisions and to record their deliberations without having to disclose those thought processes. Giving access to the content of documents which merely represent the 'thought processes' of the agency prior to any final or operative decision being made would make officers much more circumspect and self-conscious about the content of those documents and would inhibit the free flow of ideas and options. However, once a decision becomes final or operative, it will be much more difficult to establish that disclosure would not be contrary to the public interest."
41 A distinction, therefore, has to be made between documents which contain purely factual or well established policy matters of an agency and those which contain matters of opinion, advice or recommendation and relate to any consultation or deliberation that has taken place in the decision-making functions of an agency.

42 Having carefully examined the content of the document I am unable to find in the content of the document "Business Rules" any opinion, advice or recommendation which has been developed or made in the course of any consultation or deliberation. The "Business Rules" contain, on the contrary, well established guidelines to deal generally with the imposition and remission of interest and penalty tax under the TA Act.

43 The document "Business Rules" is a policy document that would fall under s 15 of the FOI Act, which requires policy document to be made available for inspection and purchase by members of the public. In his own statement in claiming the exemption, the Chief Commissioner acknowledges that 'the document "Business rules" was prepared by the Chief Commissioner to outline his policy on when and how to exercise his discretion having regard to the particulars facts of the case'.

44 Clause 9(2)(a) provides that a document is not exempt as an "internal working document" under cl 9 if it merely consists of "matter that appears in an agency's policy document". The term "policy document" is widely defined in s 6 and includes "a document containing interpretations, rules, guidelines, statements of policy, practices or precedents". The document "Business Rules" would fall within that class of documents.

45 The Chief Commissioner's claim must accordingly fail on the ground that properly described the document "Business Rules" is a well settled policy document that provides guidelines for officers of the Office of the Chief Commissioner and cannot in any sense be described as a document falling within the ambit of documents Cl 9 is designed to apply to. In any case, it is specifically excluded by cl 9(2)(a).

46 I am also satisfied that public interests would not be damaged by disclosure of the document. Cl.9 does not confer an exemption upon a document merely because it is an internal working document; the disclosure of the document must also "on balance, be contrary to the public interest" before the exemption arises: cl 9(1)(b).

47 Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests. (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306).

48 The Chief Commissioner claims that the disclosure of his policy contained in the 'Business Rules' " will challenge the integrity and viability of the decision-making process." "That is, by knowing what facts will achieve a desirable outcome, the facts as supplied may be adjusted accordingly and this would distort the decision making process. It follows that such an outcome would be detrimental and contrary to public interest".

49 In considering, the "public interest" test in relation to the equivalent provision (s.36) in the Commonwealth FOI legislation, the courts and the tribunals have identified various factors or criteria as guidance to the application of this test (Re Murtagh and the Commissioner of Taxation (1984) 6 ALD 112, Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 and Walker v Federal Commissioner of Taxation (1994) 95 ATC 2001). The principal factors identified by these and other cases include the following: (a) disclosure will prejudice the proper working of government, (b) disclosure would inhibit candour and free flow of ideas within the government, (c) disclosure would result in the public being confused or misled and (d) information was obtained in confidence relating to confidential relationships. These factors assist in the formulation of the ambit of the public interest.

50 I have carefully examined these factors and I am unable to find any support for the Chief Commissioner's claim. The argument that the integrity and viability of the decision making process would be affected by the release of the "Business Rules" has no merit in the present circumstances. It is a fairly novel argument to suggest that "by knowing what facts will achieve a desirable outcome, the facts as supplied may be adjusted accordingly and this would distort the decision making process". I think this makes a fairly serious assumption that taxpayers will lie to achieve outcomes.

51 The claim in this case, in many respects, is similar to that raised by the Federal Commissioner of Taxation in two cases where it was sought to sustain a public interest refusal of access (Re Saunders and FC of T (1988) 15 ALD 761 and Walker v Federal Commissioner of Taxation (see above)). In both cases, the documents dealt with how the tax laws would apply to facts of individual cases. In rejecting the claim in Walker, BJ McMahon DP made the following observations:

"The case is on all fours with the decision in Re Saunders and FC of T 88 ATC 4349; (1988) 15 ALD 761. The documents in the case dealt with internal discussions within the Commissioner's office as to the application of certain sections of the Income Tax Assessment Act to the facts as discerned by the officers concerned. As the Tribunal pointed out (paragraph 43) that Act and the manner in which it has been, or should be, interpreted are matters of public knowledge and public interest. There is nothing confidential about the law. It cannot be contrary to the public interest, therefore, to disclose the views of officers as to the application of the law to facts leading to a routine assessment."
52 In the present matter, the "Business Rules" are far more general and indicate how the Chief Commissioner will apply the law "in the imposition and remission of interest and penalty tax and to promote as much consistency as possible in their application" to facts of individual cases. Some jurisdictions have seen the wisdom of making these rules public (example Victoria has published an Interest and Penalty Tax Ruling (Revenue Ruling TAA005).

53 The document "Business Rules" the subject of this review is part of a larger document. The views expressed in this matter are in relation to "Business Rules Part 5 Interest and Penalty Tax", the document provided to the Tribunal by the Chief Commissioner.

54 I am also satisfied that the applicant in this matter has not been, in any way, prejudiced by the non-disclosure of the document.