Commissioner of Taxation v Burness

Federal Court of Australia|2009-09-14|Before: Gordon J

INTRODUCTION 1 The issue in this appeal is whether the Administrative Appeals Tribunal ("the Tribunal") erred in taking into account irrelevant considerations in exercising the discretion under s 227(3) of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act") to reduce the additional tax payable by Mr Robert Bottazzi ("Mr Bottazzi") from 75 % of the tax shortfall to 25 % of the tax shortfall for the year ended 30 June 1998 ("the 1998 tax year").

HISTORY OF THE PT IVC PROCEEDINGS 2 In his tax return for the 1998 tax year, Mr Bottazzi did not declare any capital gain as assessable income. On 8 September 1998, the Commissioner issued a notice of assessment based on his return. Mr Bottazzi's taxable income was assessed at $26,402 resulting in a refund of $3,112.49. 3 On 20 January 2005, the Commissioner issued an amended assessment to Mr Bottazzi in respect of the 1998 tax year to include a capital gain of $178,867 in his assessable income. The gain was in respect of the sale of a residential property in Brighton. When issuing that amended assessment, pursuant to s 226J of the 1936 Act, the Commissioner imposed additional tax equal to 75 % of the amount of the tax shortfall. Mr Bottazzi applied to the Tribunal for a review of the Commissioner's disallowance of his objection to the amended assessment. 4 On 6 October 2008, the Tribunal affirmed the objection decision under review except for the remission of penalty the subject of this appeal. 5 In relation to the remission of penalty, the Tribunal determined that "it [was] appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall". It dealt with that issue in the following terms (see Re Robert Bottazzi v Commissioner of Taxation [2008] AATA 890 at [17]): The final issue is that of penalty. In the amended assessment the [Commissioner] imposed by way of penalty additional tax equal to 75 per cent of the amount of the shortfall. This penalty was pursuant to s 226J of the 1936 Act on the grounds that the tax shortfall was caused by the intentional disregard by the taxpayer or his registered tax agent of the Act. Having found that the shortfall was the result of evasion it is difficult to find that the appropriate penalty section was other than s 226J. Sections 226G and 226H provide penalties at 25 per cent and 50 per cent respectively where the shortfall results from a failure to take reasonable care or from recklessness. Section 227 provides a discretion to the [Commissioner] and, therefore, to this Tribunal to remit the whole or part of any additional tax. In this matter, the findings against [Mr Bottazzi] have been primarily based on his failure to discharge the onus of proof, a failure to provide any substantiating evidence to support his contentions and a failure to explain the various factors seen as being against the acceptance of his evidence. On the other hand, Mr Bottazzi was not legally represented, there are some factors, such as the purchase price possibly being less than the true market value, which indicate a possible non arm's length dealing and he stated that he was not aware of the expectations of him at the hearing. In these circumstances it is appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall. In so deciding, I am conscious that the sale of the property was some 10 years ago and such a time-lag can cause difficulties with evidence. In addition, the amended assessment produces a substantial penalty by way of liability for General Interest Charge over which the Tribunal has no jurisdiction.

THE PARTIES' CONTENTIONS 6 The Applicant, the Commissioner of Taxation ("the Commissioner"), submitted the Tribunal erred in law by taking into account the following considerations which he contended were irrelevant, namely: 1. the findings against Mr Bottazzi were primarily based on his failure to discharge the onus of proof because of a failure to provide any substantiating evidence and a failure to explain various facts weighing against the acceptance of Mr Bottazzi's evidence; 2. Mr Bottazzi was not legally represented; 3. the purchase price paid was possibly less than the true market value indicating a possible non-arm's length dealing; 4. the sale of the property occurred ten years ago; 5. Mr Bottazzi was liable to pay general interest charge ("GIC") over which the Tribunal had no jurisdiction. 7 The Respondents submitted that in the exercise of its discretion to remit the penalty, considerations (4) and (5) were not taken into account by the Tribunal and that none of the other considerations was irrelevant.

RELEVANT LEGISLATIVE SCHEME 8 In exercising its merits review jurisdiction, the Tribunal stands in the shoes of the Commissioner and has available to it the same powers and discretions: s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth); s 14ZZA of the Taxation Administration Act 1953 (Cth) ("the TA Act"); Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 453; Commissioner of Taxation v Jackson (1990) 27 FCR 1 at 10; Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453 and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 9 Relevantly, s 227(3) of the 1936 Act (as it was in force at the relevant time) provided: The Commissioner may, in the Commissioner's discretion, remit the whole or any part of the additional tax payable by a person under a provision of this Part … 10 The "Part" is Part VII of the 1936 Act which contained the penalty tax regime which applied in relation to tax years from 1992/1993 up to and including 1999/2000. Where there was a difference between the amount of tax properly payable and that payable based on a statement made by a taxpayer or its agent (known as the "tax shortfall"), the regime provided specific levels of penalty for different levels of "culpable behaviour". In considering the application of those levels, it is necessary to refer to s 222F of the 1936 Act which provided that where a person omitted assessable income from a tax return, that person was deemed to have made a statement that the person did not derive that assessable income. 11 The tax shortfall provisions provided for the following base rates of penalty: Section Culpable behaviour Rate 226G Failure to take reasonable care 25% 226H Recklessness 50% 226J Intentional disregard of the law 75% 226K No reasonably arguable case 25% 226L Tax avoidance scheme 50% but reduced to 25% if reasonably arguable 226M Private Ruling Disregarded 25%

There was no dispute that in the present case, s 226J of the 1936 Act is the relevant provision. 12 Three further groups of provisions should be mentioned. First, ss 226C and 226X provided for the imposition of further penalties of 20 % if there was hindrance and secondly, ss 226D to 226F and ss 226Y to 226ZA provided for reduction in penalties if there was voluntary disclosure by the taxpayer. 13 The third group of provisions (s 170AA of the 1936 Act, Div 1 of Pt IIA of the TA Act) concern the GIC which, at the relevant time, was separate from the penalty regime just outlined and provided for "interest" to be paid for late payment of the primary tax: see Dixon v Federal Commissioner of Taxation (2008) 167 FCR 287 at [25]. As the Commissioner submitted, a taxpayer cannot object to GIC and cannot object against a decision not to remit or only party remit GIC. A taxpayer's rights in relation to that form of charge were limited to judicial review: see e.g. Nyack Investments Pty Ltd v Federal Commissioner of Taxation [2005] ATC 2173.

JURISDICTION 14 The Respondents submit this Court lacks jurisdiction to hear and determine this appeal because the appeal does not raise a question of law but invites "a reconsideration of the merits of the [Tribunal's] decision": s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). I reject that contention. Whether a Tribunal took into account irrelevant considerations when exercising a discretion is a question of law: see, by way of example, Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 856 at [5] - [6]; Commissioner of Taxation v A Taxpayer (2006) 91 ALD 335 at [50] and Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 366.

THE EXERCISE OF DISCRETION 15 In the present case a penalty of 75 % of the tax shortfall was imposed by the Commissioner pursuant to s 226J of the 1936 Act. The Tribunal was entitled to and did consider afresh whether to exercise the discretion conferred by s 227(3) of the 1936 Act on the Commissioner (and therefore the Tribunal) to remit the whole or any part of the penalty imposed by way of additional tax: see [8] above especially Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453. 16 Adopting the language used by French J (as he then was) in BHP Billiton Direct Reduced Iron Pty Ltd v Deputy Federal Commissioner of Taxation [2007] 2 ATC 5071 at [111], the Commissioner accepts that the discretion conferred on the Commissioner and therefore the Tribunal to remit the penalty under s 227(3) of the 1936 Act is: … unconfined by any explicit conditions or factors to be considered, [but] is necessarily to be exercised within boundaries created by the subject matter, scope and purpose of the statute and of the particular provision of which the discretion is conferred. While there may be generic considerations relevant to different kinds of … discretions, it is necessary in any particular case to focus upon the particular subject matter, scope and purpose of …. the discretion in question. (Emphasis added). 17 That is, where, as here, the factors to be considered by the decision maker are not expressly stated, the relevant factors are to be determined by implication from the "subject matter, scope and purpose of the statute". That principle is long standing: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (per Mason J) and Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579 (per Gummow and Hayne JJ) ("There appears much to be said, however, for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision maker to act rather than from the particular facts of the case that the decision maker is called on to consider"). 18 The decision of Hely J in Elias v Commissioner of Taxation (2002) 123 FCR 499, which dealt with an exercise of discretion by the Commissioner to extend time for payment of a tax debt, is instructive. As with the discretion under s 227(3), the discretion in that case (s 206) was "unconfined". Hely J dealt with it in the following terms: [56] … If [the] factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the statute. When a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: Peko-Wallsend at 40. Where the ground of review is that a relevant consideration has not been taken into account, and the discretion is unconfined by the terms of the statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication to that effect is to be found in the subject matter, scope and purpose of the statute: Peko-Wallsend at 40. [57] Where, as here, a discretion is conferred in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not. It is largely for the decision-maker, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor: Aronson & Dyer Judicial Review of Administrative Action (2nd ed, 2000), p 225. (Emphasis added). 19 After addressing earlier cases dealing with the exercise of the discretion in issue in that case (s 206), Hely J continued: [61] The factors on which the applicant relies in the present case are relevant considerations, in the sense that if the decision-maker chose to have regard to them it could not be said that his decision was based upon considerations which were extraneous to the power. … [63] If, on the other hand, a consideration is not relevant in a Peko-Wallsend sense, but is not a matter which the decision-maker is precluded from taking into account, then whether the consideration should be regarded as relevant at all, and if so, the weight to be given to it in an absolute or relative sense, are matters for the decision-maker. For the purposes of determining the issues raised in this appeal, I adopt the principles enunciated in paragraphs [56], [57], [61] and [63] of the reasons for decision of Hely J. 20 As noted earlier, in the present appeal, the Commissioner submits that there are five facts or matters outlined by the Tribunal in its decision that were considerations taken into account by the Tribunal in exercising its discretion to remit the penalty to 25 % (see [6] above) which were irrelevant. 21 Against that, the Respondents submitted that: [The Tribunal] balanced [its] consideration of [Mr Bottazzi's] circumstances by essentially saying that on the one hand, [Mr Bottazzi] had failed to make out his case, but on the other hand, he was not represented, nor was he aware of what was expected of him before [the Tribunal], and that there were some factors which may have indicated a non-arm's length transaction. 22 Further, the Respondents submitted that "[t]o the extent that [the Tribunal] did take any irrelevant consideration into account in arriving at its decision, such consideration was immaterial, and should not vitiate the [Tribunal's] decision", and further that "the [Tribunal] did not take into account any irrelevant considerations, or if it did, such considerations were insignificant…": see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (per Mason J) and Coco v Commissioner of Taxation (No 2) (1993) 43 FCR 140 at 145. Put simply, the Respondents submitted that if a factor that was taken into account is so insignificant that it could not have materially affected the decision, the Court may not be justified in setting aside the impugned decision and ordering that the discretion be re-exercised according to law. 23 It is necessary to recall what the Tribunal said in its reasons for decision (see [5] above) and in particular the following passage dealing with the remission of penalty: In this matter, the findings against [Mr Bottazzi] have been primarily based on [1] his failure to discharge the onus of proof, a failure to provide any substantiating evidence to support his contentions and a failure to explain the various factors seen as being against the acceptance of his evidence. On the other hand, [2] Mr Bottazzi was not legally represented, there are some factors, such as the purchase price possibly being less than the true market value, which indicate [3] a possible non arm's length dealing and he stated that he was not aware of the expectations of him at the hearing. In these circumstances it is appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall. In so deciding, I am conscious that [4] the sale of the property was some 10 years ago and such a time-lag can cause difficulties with evidence. In addition, [5] the amended assessment produces a substantial penalty by way of liability for General Interest Charge over which the Tribunal has no jurisdiction. (Enumeration added). 24 The careful reader will have noticed a number of things. First, not all of the factors taken into account by the Tribunal are listed: see phrases like "primarily based" and "there are some factors, such as ...". Secondly, the "circumstances" referred to by the Tribunal as "appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall" did not include the considerations identified by the Commissioner numbered [4] and [5].

ANALYSIS 25 Against that background, I reject the Commissioner's contention that any of the five matters identified by the Commissioner was an "irrelevant consideration". 26 First, the penalty was imposed on the basis of "intentional disregard of the law". The discretion to remit was "unconfined" in the manner earlier described: see [15], [18] and [19]. 27 Secondly, the Commissioner accepted (as he must) that in the exercise of the discretion to remit, it was relevant for the Tribunal to consider the particular circumstances of the taxpayer to determine whether there would be a harsh outcome if the penalty were not remitted: cf Dixon v Federal Commissioner of Taxation (2008) 167 FCR 287 at [20]. In my view, that is the task the Tribunal undertook. As the ultimate finder of fact, it made certain findings and having regard to those findings, exercised the discretion to remit the penalty to 25 %. It did so having regard to the "particular circumstances of the taxpayer": see [23] above. 28 Thirdly, having regard to the subject matter, scope and purpose of the 1936 Act, none of the first three allegedly irrelevant considerations can be said: 1. to be a consideration which was "extraneous" to the power; or 2. a matter which the Tribunal was precluded from taking into account. 29 Finally, the Commissioner's approach to the Tribunal's reasons for decision was to construe them in an impermissible manner. As is well established, the reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [118] citing Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [67]; Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 at 469; Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 13 citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

Consideration 1 - Failure to discharge Onus 30 In relation to the first "consideration" - the failure to discharge the onus of proof - I reject the Commissioner's contention that the consideration was "extraneous to the power". It cannot be disputed that it only becomes necessary to consider remission if the taxpayer fails to discharge the burden of proving that the "assessment is excessive": see s 14ZZK of the TA Act. 31 However, it cannot be said that the manner in which a taxpayer fails to discharge the burden is extraneous to the power or is extraneous to the "particular circumstances of the taxpayer". The Commissioner has long accepted, correctly, that the conduct of the taxpayer "at all stages" is relevant to the level of the penalty imposed on a taxpayer. If the Commissioner's submissions on this appeal were to be accepted, the taxpayer's conduct before the Tribunal (including the manner in which it sought to discharge the burden of proof) would be a prohibited consideration for the Tribunal even though the Tribunal stood in the shoes of the Commissioner. Such a result would be contrary to the express statutory language and long standing authority: see [8] above. 32 It is not possible for the Court to prescribe a list of particular considerations that should be and should not be taken into account in determining the appropriate level of penalty. As Hely J said in Elias 123 FCR 499(see [18] and [19] above), it is generally for the decision-maker to decide what is relevant and what is not and in light of the matters placed before him to determine what matters the decision maker regards as relevant and the comparative importance to be accorded to those matters. The limitations identified by Hely J are straightforward - has the decision-maker taken into account the things the legislation requires to be taken into account and, secondly, has the decision maker ignored any prohibited consideration? If so, grounds of taking into account an irrelevant consideration are not available. 33 In those circumstances, whether the manner in which the taxpayer failed to discharge the burden is a consideration that should be regarded as relevant at all, and if so, the weight to be given to it in an absolute or relative sense, are matters for the Tribunal: see e.g. Elias 123 FCR 499 at [63].

Consideration 2 - Mr Bottazzi was not legally represented 34 I do not accept that this consideration was "extraneous to the power". In my view, that consideration was relevant to the "particular circumstances of the taxpayer" in this case for it bore upon the significance that was to be attached to the finding that Mr Bottazzi had not discharged his burden of proof. Contrary to the Commissioner's submission, that conclusion is not to be taken as establishing some general principle which would result in a "taxpayer in the position of the [Mr Bottazzi] [being] able to benefit from an absence of legal representation". 35 As Counsel for the Respondents submitted, in Mr Bottazzi's case, there was a concrete example of why it was that the fact he was unrepresented was relevant. As the Tribunal noted in its reasons for decision, there was a real issue about whether the purchase price of the property (and therefore the cost base of the asset which gave rise to the capital gain) was in fact below the market price: see Re Bottazzi [2008] AATA 890 at [12] and [15]. If it was, then the capital gain the subject of the assessment would have been less. Mr Bottazzi did not adduce any evidence as to value and, in particular, did not seek to adduce any evidence that the value of the property at the time of purchase was less than the market value. These matters concern the taxpayer's conduct before the Tribunal and, in particular, the manner in which he sought to discharge the burden of proof. Again, whether that consideration should be regarded as relevant at all, and if so, the weight to be given to it in an absolute or relative sense, are matters for the Tribunal: see e.g. Elias 167 FCR 499 at [63].

Consideration 3 - "Possible" non-arm's length dealing 36 I do not consider that this "consideration" identified by the Commissioner was "extraneous to the power". This consideration overlaps and is interconnected with the first two "considerations" identified by the Commissioner. 37 First, the Commissioner selected only part of the sentence in which this matter was addressed. Taken in context, it is apparent that the phrase "a possible non arm's length dealing" was not the entirety of the Tribunal's deliberation. What in fact the Tribunal said in its reasons for decision was: On the other hand, Mr Bottazzi was not legally represented, there are some factors, such as the purchase price possibly being less than the true market value, which indicate a possible non arm's length dealing and he stated that he was not aware of the expectations of him at the hearing. (Emphasis added). 38 In the end what the Tribunal is to be understood as saying is that because Mr Bottazzi was not legally represented, not all of the facts and circumstances surrounding the transaction were explored in the depth to which they would or may have been had he been represented. That being so, the Tribunal considered that it did not assess Mr Bottazzi's conduct as having a degree of culpability that might otherwise have been inferred. 39 It is important to recognise, in that regard, that the correctness of the conclusion just identified is not in issue in these proceedings. What is in issue is whether the consideration mentioned was irrelevant. It was not.

Consideration 4 - Sale of the property occurred 10 years ago 40 I do not accept that this consideration was "extraneous to the power". In my view, it was relevant to the "particular circumstances of the taxpayer" in this case. 41 Section 170 of the 1936 Act (as in force at the relevant time) provided that where there was an avoidance of tax and the Commissioner is of the opinion that the avoidance of tax was due to "fraud or evasion", he may amend the assessment at any time. The Tribunal found there "was a clear avoidance of tax": see Re Bottazzi [2008] AATA 890 at [16]. 42 Before turning to consider the way in which the Tribunal dealt with whether there was "fraud or evasion", it is important to recall that they mean different things. The analysis by Drummond J of the phrase "fraud or evasion" in Kajewski v Federal Commissioner of Taxation [2003] ATC 4375 at [111] is instructive: There will be "an avoidance of tax" within this provision where, without any active or passive fault on the part of the taxpayer, less tax has been paid than ought to have been paid. See, eg, Australasian Jam Co Pty Ltd v FC of T (1953) 88 CLR 23 at 34. Fraud within s 170(2)(a) involves something in the nature of fraud at common law, ie, the making of a statement to the Commissioner relevant to the taxpayer's liability to tax which the maker believes to be false or is recklessly careless whether it be true or false. In Denver Chemical Manufacturing Company v Commissioner of Taxation (New South Wales)(1949) 79 CLR 296, Dixon J, at 313, said of the word "evasion" in a statute not materially different from s 170(2) in words applicable to this provision: I think it is unwise to attempt to define the word "evasion". The context of s 210(2) shows that it means more than avoid and also more than a mere withholding of information or the mere furnishing of misleading information. It is probably safe to say that some blameworthy act or omission on the part of the taxpayer or those for whom he is responsible is contemplated. An intention to withhold information lest the commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede, is conduct which if the result is to avoid tax would justify finding evasion. (Emphasis added, some citations abridged). 43 In the present case, the Tribunal made no finding of fraud and addressed the question of "evasion" in the following terms: The next contention was that the amended assessment was not valid, being out of time. Section 170 of the 1936 Act provides a limit of four years from the date upon which tax became due and payable on the original assessment. However, where the Commissioner is of the opinion that there has been an avoidance of tax due to fraud or evasion, there is no such time limit. Here the original assessment was issued on 8 September 1998 and the amended assessment issued on 20 January 2005, clearly outside the four year limitation. On the findings there was a clear avoidance of tax. Given the inclusion of rent received as income and the claims for deduction of interest on borrowings to purchase the property and other property expenses it is clear, also, that both Mr Bottazzi and his tax agent regarded the property as owned by him. No rental income or expense deductions were included in the income tax return for the year ended 30 June 1998, the year in which the property was sold. In Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) (1949) 79 CLR 296 at p 313, Dixon J said: … I think it is unwise to attempt to define the word "evasion". The context of s 210(2) shows that it means more than avoid and also more than a mere withholding of information or the mere furnishing of misleading information. It is probably safe to say that some blameworthy act or omission on the part of the taxpayer or those for whom he is responsible is contemplated. An intention to withhold information lest the commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede, is conduct which if the result is to avoid tax would justify finding evasion. It is difficult to accept that the tax agent did not at least enquire as to the non-inclusion of rent with the result of either considering the capital gain or amending prior returns. On balance, I am satisfied that here there was an avoidance of tax due to evasion and, consequently, the amended assessment was valid. 44 As the Tribunal noted, it took the Commissioner seven years to issue an amended assessment in respect of a sale that occurred in 1998. At the time the Tribunal considered the matter, the sale had occurred ten years earlier. That circumstance is particular to the taxpayer. Moreover it is a circumstance which was not and should not be viewed in isolation in the manner contended for by the Commissioner. In that context, I reject the contention that the statutory scheme (and in particular s 170) does not permit consideration of this matter in the context of s 227(3). On the contrary, what s 170 provides is an ability to issue an assessment at any time for fraud or evasion. A finding of fraud or evasion and the reasons for such a finding (including the length of time since the event the subject of the assessment) may be relevant. 45 Finally, for the sake of completeness, I do not accept that that the Tribunal in fact took the "consideration" complained about by the Commissioner into account in the manner alleged (see [22] above). The reference to the sale occurring ten years ago appears after the Tribunal concluded the question of the remission of penalty by stating "[i]n these circumstances it is appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall". The reasons for decision then go on to provide: In so deciding, I am conscious that the sale of the property was some 10 years ago and such a time-lag can cause difficulties with evidence. In addition, the amended assessment produces a substantial penalty by way of liability for General Interest Charge over which the Tribunal has no jurisdiction. 46 Put another way, the matters listed by the Tribunal (identified as considerations [1], [2] and [3]) were either sufficient to support the finding or they are not. The Commissioner does not seek to have the Tribunal's decision overturned on the grounds of Wednesbury unreasonableness: see Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223. 47 However, even if the Tribunal did take the consideration into account, then for the reasons set out above, I consider that whether in the circumstances of this case that consideration should be regarded as relevant at all, and if so, the weight to be given to it in an absolute or relative sense, are matters for the Tribunal: see e.g. Elias 123 FCR 499 at [63].

Consideration 5 - Mr Bottazzi was liable to pay the GIC over which the Tribunal had no jurisdiction 48 As noted earlier (see [13]), GIC is provided for separately in the legislation. 49 In Dixon 167 FCR 287 at [23], the Full Court said: … Those provisions are inconsistent with the exercise of a discretion that would interfere with the uniformity of the application of the administrative penalties. Where a taxpayer has had the benefit of a shortfall amount, or the Commissioner is deprived of such an amount, the payment of the [GIC] by the Taxpayer compensates the Commissioner for any harm that might have been suffered. That being so, it is clear that, whether or not the Commissioner suffers a financial detriment by reason of the fact that there is a shortfall amount has nothing to do with the imposition of administrative penalties or their remission. 50 The Commissioner submitted that it followed that it "[was] not relevant to the Tribunal's discretion to remit the penalty that another provision of the legislative scheme impose[d] a further financial liability to compensate the Commissioner for being out of his money for a period of time". In my view, the Commissioner's contention should not be accepted. 51 I do not accept that the Tribunal in fact took the "consideration" complained about by the Commissioner into account in the manner alleged (see [22], [46] and [47] above). The reference to GIC appears after the Tribunal had concluded its consideration of the question of the remission of penalty by stating "[i]n these circumstances it is appropriate to remit the penalty by way of additional tax to 25 per cent of the tax shortfall". 52 However, if I am wrong and GIC was a consideration taken into account by the Tribunal, then in my view: 1. The Full Court in Dixon 167 FCR 287 was clearly right to conclude "that, whether or not the Commissioner suffers a financial detriment by reason of the fact that there is a shortfall amount has nothing to do with the imposition of administrative penalties or their remission". 2. The language used by the Tribunal in the last sentence of para [17] of its reasons for decision if read in isolation is unfortunate. If the last sentence in para [17] had sat on its own, the reference to GIC would likely have been an irrelevant consideration warranting the setting aside of the decision and remitter to the decision maker to determine the matter according to law. 3. However, that is not the position here. The reference to GIC was at most, as Counsel for the Respondents submitted, an after thought. It was not one of the "principal" considerations identified by the Tribunal. 53 The reference to GIC was therefore immaterial and does not vitiate the Tribunal's decision. If it was a matter that bore upon the Tribunal's decision at all (and in my view it did not) it was in the circumstances of this case insignificant (see [22] above) and the Commissioner should not have the relief sought.

CONCLUSION AND ORDERS 54 Although it should be unnecessary to point this out, it is important to recognise that the decision of the Tribunal establishes no principles which govern, or even affect, decisions in future cases. Moreover, given what I have said earlier about the proper approach to the questions in issue in this case, it would be wrong to distil from what I have said any additional or broader propositions than those summarised by Hely J in Elias 123 FCR 499: see [18] and [19] above. In particular, a decision that the "considerations" at issue in this case are not shown to be irrelevant considerations does not entail any corresponding proposition that they are necessarily relevant. 55 The application should be dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 14 September 2009 Counsel for the Applicant: Mr J de Wijn QC and Mr A Dinelli

Solicitor for the Applicant: Legal Services Branch, Australian Taxation Office

Solicitor for the Respondents: Rigby Cooke Lawyers

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