Deputy Commissioner of Taxation v Tilley Property Management Services Pty Ltd

REASONS FOR JUDGMENT 1 The Deputy Commission of Taxation has applied, under the Corporations Act 2001 (Cth) (Corporations Act), for the winding up in insolvency of Tilley Property Management Services Proprietary Limited (TPMS). The application is made under s 459P of that Act. Upon such an application, the Court has a discretion as to whether or not to order that company be wound up: see s 459A. 2 The Commissioner presses today for the making of a winding up order, whereas TPMS submits that the circumstances of this case are such that the winding up application should be adjourned to a time after the determination of whether or not documents which it seeks to have treated as objections have been or have not been so treated by the Commissioner and, if treated as objections, determined. It is necessary to put matters that way because, in respect of the assessments or as the case may be notices, which ground the liability to the Commonwealth payable to the Commissioner and which give the Commissioner his status as a creditor, TPMS did not make objection to those assessments or notices within the prescribed time. Unlike in years gone by though, there is a discretion on the part of the Commissioner to treat documents by which a challenge to an assessment or notice is sought to be made as if they were objections within time. 3 Before turning to applicable case law, it is necessary to set out in some detail the background circumstances to this application. As apparent from the material read on the winding up application and the adjournment application, a brief chronology of events from the point of a notice of liability being issued by the Commissioner to the advertisement of the winding up application and its filing in court is as follows. 4 On 3 March 2010, the Commissioner gave a notice of liability in respect of the 2002 to 2007 income years to TPMS. That liability is a liability said to arise pursuant to the provisions of the now former Div 6D of Pt III of the Income Tax Assessment Act 1936 (Cth) (Income Tax Assessment Act), provisions which relate to certain closely held trusts. On 26 November 2010, the Commissioner gave notice of liability to TPMS in respect of the 2008 year and notice of assessment and liability to pay penalty for the 2002 to 2008 income years. On 15 February 2011, the Commissioner served a statutory demand, under the Corporations Act on TPMS in the amount of $7,808,336.56. On 12 April 2011, the Commissioner filed and also served that day on TPMS an application for the company to be wound up in insolvency. That application was advertised in the Courier Mail newspaper on 10 May 2011. 5 Thereafter, on 18 May 2011, the application came on before a registrar of the Court. The registrar, understandably in the circumstances, referred the winding up application to a judge for hearing. It is that hearing which I have conducted today. 6 There is a much more detailed background in respect of dealings between TPMS and the Commissioner to that rather terse chronology just given. That more detailed background is to be found in the affidavit of TPMS's sole director, Mr Brian William Tilley. The statements made by Mr Tilley were not the subject of cross-examination. 7 If it were not already apparent from the reference to Div 6D of Pt III of the Income Tax Assessment Act in respect of the liability of TPMS, Mr Tilley confirms in his affidavit that TPMS acts as the trustee of a trust known as the Property Consulting Services Trust. The Property Consulting Services Trust (PCST) was established pursuant to a deed of trust on 11 September 1990. 8 Mr Tilley deposes that in or about 2000, TPMS ceased any activities as a trading entity. He states that TPMS has not traded since that time and that it does not incur any trading debts. It appears, from the accounts which have been prepared in respect of TPMS, which are up to date as to the last concluded financial year, ie that ended 30 June 2010, that TPMS acts solely in its capacity as trustee for The Property Consulting Services Trust. Regard to those accounts discloses that in the year ended 30 June 2009, TPMS did derive a profit in that income year of some $110,640. In the 2010 income year, it incurred a net loss in a modest amount, namely $285. 9 There is no necessary antipathy between those particular entries in the profit and loss statement and the statement by Mr Tilley that TPMS has not traded. That is so because it may be that the profit arises from non-trading activities such as passive investment. It is not possible to confirm this one way or the other on the material to hand. Mr Tilley gives, in his affidavit, a most detailed chronology indeed of dealings as between TPMS and those accountants or solicitors acting for it from time to time and officers of the Australian Taxation Office. Especially given the nature of the application for adjournment made by TPMS, it is both desirable and necessary to set out in full that particular account, which appears between paragraphs 15 and 69 of his affidavit. Given its length, that account appears in a schedule to this judgment. 10 Mr Tilley further deposes as to the present solvency of TPMS. Apart from his exhibiting the most recent prepared financial accounts, he offers the following explanation so as to bring matters up to date. The 2010 accounts of TPMS disclose a liability in the sum of $1085 to a related entity. Mr Tilley states that this is a loan debt to the related entity, Tilley Services Development Trust, of which TPMS is also trustee. This, he states, is referable to an interest free loan payable on demand. He further states that: (a) TPMS in its capacity as trustee for the Tilley Services Development Trust has not demanded the repayment of that particular loan; (b) TPMS currently has $2400 in liquid funds in a bank account; (c) TPMS, and I infer from this in its capacity as trustee for the PCST, has no other current liabilities save for the debt owed to the Commonwealth and payable to the Commissioner. 11 Against this background Mr Ferrett of counsel, in his concise submissions on behalf of TPMS as to why an adjournment ought be granted, advanced the following propositions: (a) Apart from a small related entity loan, to which I have already made reference there is no other debt than that which is the subject of the winding up application by the Commissioner; (b) There is no recent trading activity. He points as well to an undertaking which was given, the giving of which foreshadowed in Mr Tilley's affidavit both by the company and Mr Tilley personally that TPMS in its capacity as trustee of the PCST, would not trade whilst this proceeding remains on foot. (c) Related to proposition (b) that there is no prospect of the company incurring further liabilities; (d) Accordingly, success on the objection (or a subsequent appeal to this Court or review application to the Administrative Appeals Tribunal) would mean that the company was certainly solvent; (e) All of the amount claimed to be owing is, for reasons he further developed, essentially penal in nature; (f) The lack of any property or funds to be distributed upon a winding up means that the proceeding has no utility in the protection of the revenue; (g) Related to proposition (f), the harshness of the remedy and what was submitted to be a reputational consequence for Mr Tilley as director is particularly important. 12 In advancing that submission on behalf of the company, Mr Ferrett was astute to recognise what he termed a predisposition to prioritise the integrity of the revenue over relief from "harsh consequences", referring in that regard to Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473. This acknowledged, a submission made for the company that to insist upon the harsh consequence of winding up where a prospect of benefit to the revenue from that winding up was not evident was a matter which should in the exercise of discretion, lead to an adjournment of the winding up. 13 Reference was also made to what was submitted to be a purpose of the existence of the regime for the imposition of liability under Div 6D of the Income Tax Assessment Act, which was said to be "to coerce trustees in disclosing ultimate beneficiaries of distributions so that the Deputy Commissioner can ensure that those ultimate beneficiaries meet their tax obligations". It was submitted that a corollary of this was that a winding up proceeding concerned wholly with a tax liability referable to that particular division or related penalties was not one to be characterised as a proceeding for the protection of the integrity of the revenue, but "merely to recover what amounts to fines for alleged misconduct." 14 There was also advanced the submission that it was a harsh consequence for a winding up to be ordered in circumstances where there was a challenge even if this was, as was conceded, belated to the notices or assessments concerned. The objection documents were not lodged with the Commissioner until after the filing and service of the winding up application. 15 The Commissioner, as might be expected, points to the presumption which flows from s 459C, that in circumstances where there has been no compliance with a statutory demand that the company is insolvent. Indeed, the Commissioner goes further. Taking into account the asset in the form of the bank balance of $2,400 and the related loan liability of $1085 as well as the tax and penalty liability of $7,808,36.56, the Commissioner makes the submission that TPMS is "hopelessly insolvent." 16 Further to this, the Commissioner relies upon a statutory presumption, to which I will make further reference in detail shortly, flowing from the tender of the notices or, as the case may be, assessments that there is conclusively proved the existence of the tax liability just mentioned. The Commissioner further submits, again by reference to provisions which I shall detail shortly, that even if there were objections within time that would not affect his ability to recover the taxation and penalty amount mentioned. Thus, having regard to debts which must be taken to be conclusively proved in a proceeding such as this, as well as the statutory presumption, the Commissioner submits that this is a case where a winding up order ought to be made as a matter of discretion. 17 The situation before the Court is not one free from authority. In terms of statutory provisions s 102UR(5) of the Income Tax Assessment Act and s 14ZW(1)(c) of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act) have the effect that the prescribed time for the making of objection as against the notices of non-disclosure tax liability or administrative penalties as the case may be had to be lodged was within 60 days after the service of the notice or, as the case may be, assessment although there is a discretion given to the Commissioner to treat a later lodged document as if it were an objection lodged within time. 18 Section 14ZZM of the Taxation Administration Act provides that the fact that a review is pending in relation to a taxation decision does not in the meantime interfere with or affect the decision and any tax, additional tax or other amount may be recovered as if no review were pending. Like provision is made by s 14ZZR in relation to taxation appeals against taxation objection decisions which are pending in this Court. In this case the position is even stronger in the sense that there is not even, as yet, a valid taxation objection let alone an objection decision or later review or appeal. 19 In Deputy Commissioner of Taxation v Jonrich Pty Ltd (1986) 70 ALR 357 at 360 (Jonrich) Connolly J referring to the then predecessor of s 14ZZM and s 14ZZR of the Taxation Administration Act, which was s 201 of the Income Tax Assessment Act, observed: What is to be borne in mind, in my opinion, is that s 201 was, in one sense, otiose in providing that income tax might be recovered notwithstanding the pendency of an appeal or reference as by s 204 income tax is and was due and payable on the date specified in the notice or, if no date was specified, on the 30th day after service of the notice. For this obligation to be intercepted or suspended would have required a positive provision of the legislation. The real effect of s 201 was to state a policy; and its practical consequence was to provide a powerful factor influencing the courts against staying proceedings pending appeal or reference. This is recognised in a series of cases from Deputy Commissioner of Taxation (WA) v Australian Machinery and Investment Co Pty Ltd (1945) 3 AITR 236 at 241 which Latham CJ said: My brothers Rich, Dixon and Williams JJ and myself are of the opinion that the contention that there is no jurisdiction to grant a stay in these proceedings by reason of the provisions of the Income Tax Assessment Act, s 201 and the associated sections, should not be accepted. We are of the opinion that there is jurisdiction to grant a stay in such proceedings, but that in considering any application for a stay the policy of the Act as stated in s 201 is a matter to which great weight should be attached. From Australian Machinery, cf Deputy Commissioner of Taxation (NSW) v Mackey (1982) 45 ALR 284, a decision of the Court of Appeal of New South Wales and Deputy Commissioner of Taxation v Trower (1986) 86 ATC 4157. The continuing authority of that observation is in no way diminished by the later reversing, on other grounds, of the decision of the Full Court in Jonrich in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55. 20 Some of the cases to which Connolly J made reference in Jonrich in the passage quoted had earlier fallen for consideration by Sir Nigel Bowen, then Chief Judge in Equity in the New South Wales Supreme Court (and later the first Chief Justice of this Court) in Re Roma Industries Pty Ltd (1976) 1 ACLR 296. His Honour was faced there in that case, as I am here, with an application that a winding up order ought not to be made against a company which had challenged, in that case within time, assessments giving rise to the taxation liability. His Honour observed, at page 299: The next question which arises is whether the amount claimed by the Commissioner should be treated as a disputed claim, and an order be refused on this ground. In one sense, of course, the Commissioner's claim is disputed, because appeals to the Board of Review have been lodged. However, the provisions of s 201 of the Income Tax Assessment Act require me to treat the debt as in effect undisputed. Such a statutory provision may, in some cases, lead to hardship on a taxpayer, particularly where he has paid the amount of tax assessed and later wins his appeal, whereupon the money is repaid to him without interest. This led Higgins J, in Hickman v Federal Commissioner of Taxation (1922) 31 CLR 232 at 245 to describe it as "unjust and even baneful", but it remains in the Act. It must be appreciated that from the point of view of the revenue it is a protection against that class of taxpayer who might withhold payment and use the money as the sinews of war to conduct appeals against the Commissioner and who, being finally unsuccessful, was found to be unable to meet his tax liability having spent his money on the litigation. Whatever the merits or demerits of the provision may be, it will generally leave the court to refuse a stay. His Honour then made reference to authority, including Australian Machine & Investment Co: Furthermore, where a taxpayer has been sued to judgment by the Commissioner and has lodged an appeal, there being no stay of execution granted, the Commissioner will generally be entitled to a winding up order notwithstanding the appeal has been lodged and has not been heard. (In Re Amalgamated Properties of Rhodesia (1913) Limited (1917) 2 Ch. 115, Federal Commissioner of Taxation v Trautwein (No 1) 56 CLR 211) 21 In that case, Bowen CJ in Eq was disposed to make a winding up order if, after a short adjournment, which he was also disposed to grant, agreement had not been reached as between the Commissioner and the company in relation to a particular offer to give the Commissioner a second mortgage over two particular properties to secure the payment of tax. There is no offer of that kind in the present case. Indeed, the application for the adjournment is grounded in the proposition that the prospect of any recovery, either before or after a winding up order, is unlikely. 22 Later in time and binding on me, are observations made in the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 at paras 40 to through to and including 49: 40 As indicated above, the familiar "conclusive evidence" provision of s 177(1) of the Assessment Act, significant for Broadbeach, is reflected in the terms of s 105-100 in Sch 1 to the Administration Act (with respect to GST notices of assessment and declarations) and s 298-30 in Sch 1 (with respect to administrative penalties including tax shortfall penalties), which are significant for Neutral Bay and Howard Racing. 41 The apparent asperity with which s 177(1) operates and its impact upon what otherwise may be avenues open to taxpayers when defending recovery proceedings has attracted comment in various decisions, including those of this Court. Section 177 is found in Pt IV of the Assessment Act but was linked to ss 208 and 209 which appeared in Pt VI. In FJ Bloemen Pty Ltd v Federal Commissioner of Taxation, Mason and Wilson JJ remarked: "[The appellants] point to the fact that notwithstanding that the assessment may be under review or appeal ... the tax assessed is payable and the Commissioner has access to the extensive powers prescribed in Pt VI ... It is true that Pt VI contains large powers to enable the recovery of tax; powers the exercise of which may make life uncomfortable both for the taxpayer and perhaps others who owe money to the taxpayer. So much may be conceded, but [the Assessment Act] does not proceed upon the hypothesis that the Commissioner will be motivated in the exercise of his powers by improper or collateral purposes." 42 The reference by Mason and Wilson JJ to the position of taxpayers may be thought to extend particularly to the position of directors of a corporate taxpayer which is a trading corporation. 43 At a time when the provision for objections and appeals was found in Pt V of the Assessment Act, Mason A-CJ said in Clyne v Deputy Commissioner of Taxation: "I was informed that it is a somewhat unusual course for the Deputy Commissioner to commence proceedings for recovery in a court relying on a notice of assessment which is under challenge in proceedings under [the Assessment Act]. It is to be hoped that this is so. The institution of proceedings for recovery on a notice of assessment which is challenged in proceedings under [the Assessment Act] may operate oppressively and unfairly to a taxpayer ... In the ultimate analysis the Deputy Commissioner's charter to commence recovery proceedings, notwithstanding a challenge ... to the correctness of the assessment, is to be found in s 201 of [the Assessment Act]. It provides: "The fact that an appeal or reference is pending shall not in the meantime interfere with or affect the assessment the subject of the appeal or reference; and income tax may be recovered on the assessment as if no appeal or reference were pending." It is a provision which has been stringently criticised. However, it appears to be impervious to criticism for Parliament has not seen fit to amend it." 44 But harsh though the operation of these provisions may be, they implement a long-standing legislative policy to protect the interests of the revenue. In Deputy Commissioner of Taxation v Niblett, Asprey J struck out pleas of non-liability to a recovery action instituted by the Deputy Commissioner in the Supreme Court of New South Wales while objections were pending under what was then s 185 of the Assessment Act. His Honour observed: "It may be thought to be a hardship that a taxpayer should have to pay the tax assessed when an objection to the assessment has not been decided upon but there are obvious financial considerations of high policy that must be weighed in the balance against cases of individual hardship with which the Commissioner through the appropriate use of his powers under [the Assessment Act] can cope ... Where the meaning of the words of a statute is clear "it is not open to the Court to narrow or whittle down the operation of the Act by seeming considerations of hardship or of business convenience or the like" - Attorney-General v Carlton Bank." 45 Thereafter, Bowen CJ in Eq, when dealing with resistance by the taxpayer to the making of a winding up order, said in Deputy Federal Commissioner of Taxation v Roma Industries Pty Ltd: "The next question which arises is whether the amount claimed by the Commissioner should be treated as a disputed claim, and an order be refused on this ground. In one sense, of course, the Commissioner's claim is disputed, because appeals to the Board of Review have been lodged. However, the provisions of s 201 of [the Assessment Act] require me to treat the debt as in effect undisputed. Such a statutory provision may in some cases lead to hardship on a taxpayer, particularly where he has paid the amount of tax assessed and later wins his appeal, whereupon the money is repaid to him without interest. This led Higgins J in Hickman v Federal Commissioner of Taxation to describe it as "unjust and even baneful", but it remains in the [Assessment Act]. It must be appreciated that from the point of view of the revenue it is a protection against that class of taxpayer who might withhold payment and use the money as the sinews of war to conduct appeals against the Commissioner and who, being finally unsuccessful, was found to be unable to meet his tax liability, having spent his money on the litigation." (Emphasis added) 46 With regard to the reasons of Bowen CJ in Eq in Roma Industries (given in 1976) three points should now be made. The first is that the reference to repayment without interest must be treated as displaced by the enactment in 1983 of the Overpayments Act. Part III of that statute provides an interest entitlement where an amount of "relevant tax" (as defined in s 3C) is found to have been overpaid as a result of a decision to which the Overpayments Act applies (as explained in s 3(1)). This includes successful AAT reviews and Federal Court "appeals" under Pt IVC of the Administration Act. 47 The second point is that s 201 of the Assessment Act was repealed by the Taxation Laws Amendment Act (No 3) 1991 (Cth) (Sch 4), which inserted the relevantly identical provisions of ss 14ZZM and 14ZZR in the Administration Act by way of replacement. 48 The third point respecting Roma Industries is that the treatment there of disputed claims by the Commissioner indicates the appropriate path to be followed in reading the provisions for the setting aside of statutory demands now found in the Corporations Act. 49 It is true that s 459G provides for curial decisions to set aside statutory demands and that grants of jurisdiction to superior courts such as the Federal Court and the Supreme Courts are not to be construed with limitations without sufficient reason to do so. The many authorities to this effect were collected by Kirby J in Aussie Vic Plant Hire. But the provisions of the taxation legislation, with an eye to which the statutory demand provisions clearly were drawn, and, in particular, the antecedents in what was s 201 of the Assessment Act and now s 14ZZM (as to pending AAT reviews) and s 14ZZR (as to pending Federal Court "appeals"), supply sufficient reason for construing the statutory demand provisions as the Commissioner contends. 23 Even prior to those obligations in the High Court in Broadbeach Properties, a Full Court of this Court in Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 62 FCR 302 at page 315, had drawn attention to earlier pre-corporations law authorities in respect of the making of a winding up order where there was a contested taxation debt. The particular issue in that case concerned not a contest as to whether or not a winding up order should be made, but whether or not a statutory demand should have been set aside. It is useful, with respect nonetheless, for the reference in it to earlier corporations law authorities. One of these is Re Norper Investments Pty Ltd (1977) 33 FLR 87 (Norper). In that case, Needham J had dismissed a winding up petition brought against a company by the Commissioner. As their Honours recite in Hoare Bros at 315: His Honour did not decide that there was a genuine dispute about the debt created by the notice of assessment issued by the Commissioner. Rather, Needham J (at p 92) relied on the principle that the trial judge had a discretion to grant or refuse a stay of the winding-up proceedings where an appeal by the taxpayer was pending. His Honour held (at 92) that, despite s 201 of the ITAA (now ss 14ZZM and 14ZZR of the TAA), the Court had a discretion to grant a stay of the winding-up proceedings, if the Company had a substantial argument that the assessment should be set aside entirely. In Norper itself, no appeal was underway but this was because the Commissioner had "omitted to obey the clear direction of the statute which he administers", by failing to forward the Company's objection to the Court. Moreover, the then current state of the law, as applied by the Board of Review, meant that the assessment was "misconceived" and the Company was not liable to tax. For these reasons, Needham J exercised his discretion in favour of the Company. The case was a special one, such as to lead Needham J to conclude that the petition was oppressive and the proceedings an abuse of process. 24 For completeness, reference should also be made to a judgment of the Queensland Court of Appeal. Deputy Commission of Taxation v Denlay & Anor [2010] QCA 217 (Denlay), in which the court dismissed an appeal by the Commissioner against a refusal by a trial judge to grant summary judgment in respect of liabilities grounded in assessments which were the subject of challenge. Denlay is not binding upon me. Further, though there is reference in the judgments in that case to Broadbeach Properties, this does not in my respectful opinion, sit happily with that case. Be that as it may, Denlay is, again with respect, explicable on the basis that the challenge made by Mr and Mrs Denlay was not just by way of the invoking of the statutory rights of objection, appeal and review, but also by way of a judicial review proceeding, the effect of which was to allege that the assessments concerned were not in truth and in law assessments at all, but rather the product of conscious maladministration. It is possible to explain the outcome both in the Trial Division and the Queensland Court of Appeal in that proceeding on the basis that reliance upon s 177 of the Income Tax Assessment Act could not rise higher than its source and if the source itself, namely the assessment, said to be conclusive evidence of a liability was the subject of a challenge which went to the very existence of an assessment at all, then the effect of s 177 was moot. Drawing these disparate threads together from the authorities, the position seems to me to be this. There is undoubtedly a discretion as to whether or not to wind up the company. It is relevant, in that regard, to take into account whether there is any conduct on the part of the Commissioner which might be said to amount, at least prima facie, to oppression or an abuse of process. It is also relevant, in that regard, to have regard not just to the existence of any challenge but also the state of progress through the statutory channels of that challenge and at least, in a summary way, what prospect that challenge might have. It is further relevant to take into account what arrangements, if any, have been made or may be in prospect of being made within a reasonable time as between the company and the Commissioner in relation to the payment of some or some agreed proportion of the outstanding tax. 25 Further, in a case such as the present, another consideration does in my opinion intrude. That is, for all practical purposes, there is but one creditor, namely the Commissioner. It is not impossible to envisage a situation where a winding up order might be sought so as to foreclose the pursuit of a challenge by the company to the underlying revenue assessment or notice. Were there evidence, and this case is not one, that the winding up application had been brought so as to lead to that foreclosing, then this might provide yet another example of that type of abuse which led Needham J in Norper to decline to make a winding up order. 26 As to the provisions of Div 6D of the Income Tax Assessment Act, they can be seen to have as their purpose the ensuring of the provision of information to the Commissioner in respect of closely held trusts, with respect to what the division terms "the trustee beneficiaries". Section 102UA(1) recites: This will allow the Commissioner to check whether the assessable income of the trustee beneficiaries includes the correct share of net income and whether the net assets of the trustee beneficiaries reflect the receipt of the tax preferred amounts. 27 Section 102UA(2) further states, accurately with respect: To achieve this purpose, the Division: (a) provides for the trustee to correctly identify the trustee beneficiaries within a specified period after the end of the year of income; and (b) if the trustee fails to do so, provides for taxation at a penalty rate (in the case of net income) or offences under the Taxation Administration Act 1953 (in the case of the tax-preferred amounts). 28 This is a case which concerns the imposition of taxation at the penalty rate on TPMS. There is undoubtedly merit in the proposition that the regime is harsh. I do not accept though that either the regime or, more importantly, a winding up application cannot seem to be a proceeding for the protection of the revenue even if it be apparently manifest on the company's accounts that at least without further investigation, recovery of any part of the penalty tax amount is unlikely. That winding up may be a sequel to non-payment of a penalty tax for which Div 6D offers but further incentive for those companies who fall within the definition of "trustee group" to furnish information as required in what are known as TB statements to the Commissioner. Further, that the effect of s 102UK and s 102UL can be that directors of a corporation have a joint and several liability adds to that particular incentive. Harsh though the regime may be it represents, as do s 14ZZM and s 14ZZR, a value judgment made by the Parliament as to what is necessary for the vindication of the revenue of the Commonwealth. 29 The counter to that harshness, in a case such as the present, is the existence of a discretion which reposes in those who exercise Commonwealth judicial power on a winding up application. 30 In respect of the exercise of that discretion, everything truly which could be submitted reasonably on behalf of TPMS has been put, and the facts well detailed, by Mr Tilley. Even so, what remains is a circumstance where a company is, and I am bound to conclude, hopelessly insolvent and where there is no challenge at all to the underlying notices or assessment within time. I accept, and a survey of the chronology in Mr Tilley's affidavit bears this out, that the company has not, in a practical sense, rested on its rights by not taking up with the Commissioner the question of liability. It has done that informally. Nonetheless, the position remains there is no objection as of right on foot. 31 Further, it would not, in my opinion in this particular case be appropriate for me to pass any comment on the merits of the documents which are asked to be treated as objections. There are difficulties in the language of Div 6D in terms of the circumstances which give rise to an excusing from liability and it would take a more developed case than that advanced today to make patent that there was a strong likelihood that it would be other than perverse for the Commissioner not to extend time and, for that matter, allow objections. All there is at present is a supplication, not an objection as of right. Further, there is nothing at all put forward which would see any assurance that any part of that demand by the Commissioner is even secured, pending the determination of the request to treat the documents as an objection. Neither, in my opinion, is there evidence which would support, even prima facie, that there has been conduct which could amount to conscious maladministration in the sense described by the High Court in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146. 32 In those circumstances, I decline to adjourn the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.