Ground One: The relevant consideration not taken into account
14 The Commissioner's first ground of appeal is that the Tribunal failed to take into account a mandatory relevant consideration consisting of his inability now to consider whether to amend the assessments of the health practitioners who sold their practices to Primary in the event that Primary's objections were permitted to be lodged out of time and thereafter were successful.
15 It is not in dispute that prejudice to the Commissioner is a matter which must be considered in the exercise of the discretion to permit an objection to be lodged out of time. Both parties accepted the correctness of what was said to that effect by Hill J in Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 42 ATR 118 ('Brown') at 130 [51] and 131-132 [58]; see also Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235 ('Windshuttle') at 249 [43]-[44] per von Doussa J. Before the Tribunal, the Commissioner submitted that permitting Primary's objections to be lodged out of time could occasion to him two forms of prejudice. The first was that he would suffer forensic prejudice because the passage of time would necessarily make it difficult to obtain a full and reliable picture of the context in which the purchases by Primary had occurred. That kind of procedural prejudice lies squarely within what is contemplated in Brown (at 129-130 [48]) and, more clearly, in Windshuttle (at 249 [44]). The Tribunal rejected this argument on the basis that it did not accept, as a matter of fact, the existence of the asserted prejudice. No appeal is brought from that factual conclusion.
16 The second was more substantive than procedural. It was said that the Commissioner would suffer prejudice because if Primary's five objections had been lodged in a timely fashion (and allowed) he would then have been able to consider amending the assessments which had been issued to the health practitioners on the basis that the purchase moneys paid to them by Primary for their practices was on revenue account and hence exigible to the income tax. The Tribunal explicitly set out this argument at [70] and proceeded to reject it at [71] and [72]:
'70. Counsel for the Commissioner also asserted prejudice to the Commissioner on the following basis in the Respondent's Outline of Submissions at p 16, [51]:
Had the proposed objections been lodged in a timely fashion and allowed, the Commissioner could have considered whether amended assessments should issue to the recipients of the Purchase Prices on the basis that those monies were income in their hands. Indeed the Commissioner would have been open to justifiable criticism had he not at least considered that possibility. However, that avenue is now foreclosed by section 170 of the Income Tax Assessment Act 1936 as there is no suggestion of any fraud or evasion on the part of those recipients. The Commissioner's ability to ensure that the correct amount of tax is collected in connection with the relevant transactions would therefore be significantly constrained.
71. We agree with the submissions of counsel for Primary that there are at least three problems with the above and adopt those submissions extracted below as our reasons.
First, the Commissioner proceeds upon the flawed premise that there is a necessary symmetry between the tax treatment of a payment in the hands of Primary and the Health Practitioner. It is clear that the deductibility of the payment to the payer is not determinative of whether the payment is assessable as income for the Health Practitioner; rather, the focus is on the quality and character of the payment in the hands of the Health Practitioner. …Hence, irrespective of the approach taken by Primary in its tax returns, the Commissioner was required to examine the capital treatment adopted by the Health Practitioners for the payments received by them from Primary.
Secondly, the Commissioner did examine the tax treatment of those receipts within the period that would have allowed him to reopen the assessments issued to Health Practitioners and concluded that they were on capital account independently of the position adopted by Primary as to its own position. Any failure by the Commissioner to address the tax treatment of payments received by Health Practitioners is entirely the Commissioner's responsibility, and any prejudice arising from the Commissioner's inability to issue amended assessments is of the Commissioner's own making…
Thirdly, even if it is accepted that the Commissioner could have offset the loss of revenue by issuing amended assessments to Health Practitioners, this should be given little weight in the exercise of the Tribunal's discretion under s 14ZX of the Administration Act. Section 14ZX presupposes that he favourable exercise of the discretion will result in a loss of revenue to the Commonwealth. Nothing in the text or structure of the [Administration Act] founds an implication that an extension should not be granted unless the net effect of allowing the objections would be neutral. Indeed, by setting time periods under s 170 of the ITAA 1936 that are equivalent to or less than the time periods under s 14ZW, the legislature implicitly recognised that there may be occasions where objections are made (and allowed) in respect of payments even when the opportunity to issue amended assessments to the recipient has passed. In particular, the time limit under s 170 for the issue of amended assessments to a Health Practitioner which is a "small business entity" (i.e. entities with a turnover less than $2 million) is 2 years from the date of the original assessment, whereas the time limit for Primary to lodge a objection is 4 years: Outline of Applicant's Submissions at pp 23-24, [74]-[76], (emphasis in originals, footnotes omitted).
72. Primary's situation is distinguishable from cases where a taxpayer has deliberately delayed lodging an objection so as to game the tax system - that is, to delay so as to cause the Commissioner to be out of time to issue amended assessments to other taxpayers. See, for example, Re DTMP and Commissioner of Taxation [2016] AATA 684 at [240] where Senior Member O'Loughlin considered "that type of prejudice is not only influential, it is determinative". In that case, the taxpayer had allowed the Commissioner to proceed in the belief that certain grounds of objection would not be agitated but later sought to raise the grounds after the Commissioner was out of time to pursue other taxpayers. There was no evidence of any kind of opportunistic or mischievous behaviour in the present case.'
17 We would counsel the Tribunal against the practice of adopting verbatim and without more one party's written submissions as its own reasons. Although on this occasion no direct criticism was levelled at the Tribunal because of it, such a practice may, in some circumstances, lead to the conclusion that the Tribunal's duty to give reasons has not been properly discharged. For example, the incorporation by the New South Wales Compensation Court into its reasons for judgment of all of the submissions of all of the parties before it together with an indication that the Court preferred one set of submissions to the others was held, perhaps unsurprisingly, not to be a proper discharge of the Court's duty to give reasons in Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407. Closer to home, in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166 the Full Court of this Court set aside a decision of the Tribunal which had involved extensive copying of one party's submissions (without attribution). The Full Court did so because the submissions which had been copied did not deal with an affidavit filed subsequent to their preparation. As such, the submission could not have taken the affidavit into account. Since it was plain that the Tribunal had merely copied the submissions, the Court felt constrained to conclude that the Tribunal had not taken the affidavit into account either. There may not be an absolute rule prohibiting the adoption of written submissions as reasons for judgment but, on any view, it is not a practice which should generally be emulated.
18 Returning to the argument, Mr Lloyd SC who, with Mr O'Meara of counsel, appeared for the Commissioner, also drew the Court's attention to [79] where the Tribunal appeared, in part, to summarise the finding in [71]-[72] as being that the Commissioner had suffered no genuine prejudice:
'79. Our decision in this case requires us to balance the various considerations. We acknowledge Primary's explanation for the delay is not especially compelling, albeit it is understandable and reasonable. We accept a taxpayer would ordinarily be expected to offer more compelling reasons to revisit assessments after a more lengthy delay given the public interest in finality. But the quality of the explanation is just one (admittedly important) factor that must be considered. The apparent strength of the taxpayer's case and the absence of genuine prejudice to the Commissioner weigh heavily in favour of the extension of time. The fact Primary is effectively seeking to ensure correct and consistent tax treatment over time of a long-standing business model that continues to the present day also weighs in favour of the extension of time, and helps to distinguish this case form other cases where an extension of time has not been granted.'
(bold emphasis added)
19 Taken together, these paragraphs were submitted to show that the Tribunal had failed to take into account the prejudice upon which he relied.
20 On its face, this is an unpromising submission. Paragraph [70] appears to be the Tribunal considering the Commissioner's argument on his substantive prejudice and paragraphs [71]-[72] do not appear to suggest that the prejudice alleged was irrelevant to the decision that had been made. The ordinary reading of these paragraphs is that the Tribunal took into account the asserted prejudice but afforded it no real weight (the word used at [79] was 'genuine' rather than 'real' but there is no difference in this context).
21 If that be the correct reading then the Tribunal's reasons do not involve a failure to take into account a mandatory relevant consideration. This is because 'it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power': Peko-Wallsend at 41 per Mason J. This includes, in an appropriate case, a determination that the matter which is required to be considered is one which, in the particular circumstances, should be given no weight. In the same way that a decision-maker does not take into account an irrelevant consideration by picking up a red herring, examining it and putting it down (a metaphor used by Burchett J in Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 693), neither does a decision-maker fail to take into account a relevant matter which, after appropriate consideration, it has decided should be given no weight. What is involved in the concept of appropriate consideration does not call for discussion in this case.
22 As the Commissioner's arguments were developed, it was submitted that the Tribunal had failed to take account of his asserted prejudice despite appearing to do so because:
(a) none of the three matters set out in [71] 'compelled the conclusion that the prejudice to the Commissioner… was not a relevant species of prejudice…';
(b) the rejection of the argument in [71] was a rejection of an argument which had not been put. In fact, the Tribunal had failed to deal with the argument which had been put which was that if Primary had successfully raised the issue earlier it would have assisted the Commissioner in relation to the position of the other health practitioners. What he had lost was not the right to make corresponding amended assessments for the health practitioners but the chance to do so assisted by the position of Primary; and
(c) there was a tension between what the Tribunal had done and one of its earlier decisions, Esso Australia Pty Ltd v Federal Commissioner of Taxation [2007] AATA 1776.
23 None of this is persuasive. Proposition (a) involves an inaccurate reading of [71]. The Tribunal did not conclude that the Commissioner's prejudice was irrelevant. Rather, it concluded that it was relevant but should be given no real weight. There are passages in Brown and Windshuttle which could form the basis of an argument that the ability to amend an assessment might not be a form of relevant prejudice (we make no comment about the correctness of that argument). Indeed, Primary pursued that argument both before the Tribunal and again in this Court. But it is quite apparent that the Tribunal did not reason that way. The relevance of the alleged category of prejudice was at all times accepted by the Tribunal.
24 Proposition (b) is not really an argument that the Commissioner's prejudice was not taken into account (that is to say, a Peko-Wallsend argument) but instead an argument that the Tribunal had failed to deal with a substantive argument raised for its consideration. Such a failure is capable of being both a denial of procedural fairness and a constructive failure to exercise jurisdiction: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17-18 [55] per Black CJ, French and Selway JJ. Assuming in the Commissioner's favour that this argument can be permissibly rebadged so as to fit within the Peko-Wallsend argument contained in his notice of appeal, the answer to it, once again, is that it is not a fair reading of [70]-[71]. Paragraph [70] identifies accurately the Commissioner's contention. Paragraphs [71]-[72] explain the Tribunal's reasons for not accepting that argument. So viewed, the Commissioner's submission is revealed as a contention that the reasoning in [71] is wrong. That, however, is a far cry from an irrelevant consideration argument.
25 Proposition (c) does not rationally advance the Commissioner's contention that the Tribunal failed to take into account the Commissioner's submitted prejudice. Indeed, it does not seem to be connected to it at all.
26 None of these three arguments, therefore, provides a reasonable basis for reading paragraphs [70]-[72] other than as they appear to be, namely, as an explicit consideration of the Commissioner's prejudice argument. The argument based on Peko-Wallsend must, therefore, fail. Further, it comfortably fails without resort to the well-known caution against judicial review courts reading a Tribunal's reasons with an eye keenly attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 at 287 [22].