Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd

Under the relevant legislation, which includes both the Act, which is an assessment Act, and two taxing Acts, recoupment tax is imposed when, pursuant to a scheme as defined, shares in a "target" company have been sold with the result that the company is unable to pay overdue company tax. The type of recoupment tax which is relevant for present purposes is vendors recoupment tax. This tax is imposed upon a vendors taxable amount, which may comprise either a primary taxable amount or a secondary taxable amount, or both.

Speaking in somewhat simplified and broad terms, a primary taxable amount exists in relation to the vendors of the shares in a target company and the total is the whole of the overdue company tax. A secondary taxable amount comes into existence, again speaking broadly, where, in the first instance, a vendor of shares in a target company was itself a company (called the relevant company) and has ceased to exist, or where the shares in the relevant company or its holding company have been sold and the Commissioner is of the opinion that it would be unreasonable that it should be liable to pay recoupment tax, or where the Commissioner is of the opinion that the relevant company is unlikely to pay the recoupment tax. In these circumstances, a secondary taxable amount is to be taken to exist in relation to a person entitled, at the relevant time (which is specified), to participate in a capital distribution of the relevant company, the amount being proportionate to that entitlement. Where, as a result of this tracing process, a secondary taxable amount exists in relation to another company, the process may be continued until the conditions laid down for the application of the relevant provisions are no longer satisfied. In the case of a relevant company in which shares have been sold, the process will be halted if the Commissioner does not form the opinion that it would be unreasonable that the company should be liable to pay recoupment tax.

It is s. 6 of the Act which deals with secondary taxable amounts and it is sub-s. (2) of that section which deals with the sale of shares in relevant companies. The section applies to trust estates as well as companies but it is unnecessary in this case to deal with the former separately. Sub-section (2) provides, so far as is relevant, that:

(a) at any time (in this sub-section referred to as the "relevant time") a vendors taxable amount exists in relation to a company (in this sub-section referred to as the "relevant company") in relation to a sale of shares or of an interest in shares;

(b) after the time of sale of the shares or interest referred to in paragraph (a) and before the relevant time -

(i) if the vendors taxable amount exists in relation to the relevant company -

(A) some or all of the shares in the relevant company were sold; or

(B) some or all of the shares in another company that, immediately before the time of sale of the shares or interest referred to in paragraph (a), was a holding company of the relevant company, were sold; and

(c) the Commissioner is of the opinion that, by reason of a circumstance mentioned in paragraph (b), it would be unreasonable that the relevant company be liable to pay recoupment tax on the vendors taxable amount ,

a secondary taxable amount shall be taken to exist in relation to each person entitled to participate as a shareholder in a capital distribution of the relevant company at the relevant time being a proportion of the vendors taxable amount calculated on the basis of that person's entitlement upon the notional capital distribution. Pursuant to later sub-sections which extend the operation of sub-s. (2), various persons are deemed to be persons who would have been entitled to participate in such a distribution of capital as shareholders in the company, including a shareholder who in fact received a distribution of capital from a company after the time of sale of shares in the target company.

The submission made on behalf of the defendant company is that liability to pay recoupment tax under s. 6(2) of the Act and the relevant section of the taxing Act (the Taxation (Unpaid Company Tax - Vendors) Act 1982 Cth), is imposed in an arbitrary manner and, as a consequence, the sub-section is not a law with respect to taxation. The primary basis upon which the submission is made is that liability arises under the sub-section only where the Commissioner forms an opinion that it would be unreasonable that a relevant company, otherwise liable, should be liable to pay recoupment tax and that in forming that opinion the Commissioner is entitled to look only to the circumstances in par. (b), that is to say, the sale of shares in the company or its holding company.

A further basis put forward for the submission that the relevant tax is arbitrary is that the persons upon whom it is imposed need have no connexion, direct or indirect, actual or derivative, with the transaction in which the target company was stripped and need not even have been in existence at that time. In this latter respect, reliance is placed upon s. 6(13) of the Act. That sub-section defines the relevant distribution time in relation to a vendors taxable amount that exists in relation to a company for the purposes of a notional capital distribution. If the company existed at the time of sale of the shares in the target company which, in the first instance or by tracing, gave rise to the vendors taxable amount, then the relevant distribution time is the time of sale. If, however, the company did not exist at that time, the relevant distribution time is the time when the company was created. If the Commissioner is of the opinion that either time is inappropriate, the relevant distribution time is such later time as the Commissioner determines.

In MacCormick v. Federal Commissioner of Taxation [2] it was held that the recoupment tax, for which the Act provides, answers the usual description of a tax. Amongst the characteristics which were said by the majority to bring it within that description was the fact that the tax is not arbitrary. This was, as the relevant passage shows, a reference to the fact that liability can only be imposed by reference to ascertainable criteria with a sufficiently general application and that the tax cannot lawfully be imposed as a result of some administrative decision based upon individual preference unrelated to any test laid down by the legislation. To say that a tax may not be arbitrary in that sense does not, of course, preclude the pejorative description of a tax as arbitrary in the sense that the criteria which are laid down for its application give it a harsh or unreasonable incidence with regard to either its subject-matter or objects. To describe a tax as arbitrary in the latter sense is to do so in a manner which does not go to its validity.

The submissions made by the defendant company, however, assert that the tax authorized by s. 6(2) of the Act, which was not the subject of any particular attack in MacCormick v. Federal Commissioner of Taxation, is arbitrary in the sense referred to in that case in that it may be imposed in an arbitrary manner. This is said to be so because liability to pay the tax may arise under the sub-section for no other reason than that the Commissioner is of the opinion that it would be unreasonable that a relevant company otherwise liable should pay the tax.

As a matter of strict construction, s. 6(2) does not operate to produce that result. The provisions of the sub-section would, in the absence of the discretion - if an administrative opinion may be so described - vested in the Commissioner by par. (c), apply of their own force and would continue to apply until the incidence of the tax came to rest upon a person from whom the tracing process authorized by the sub-section could be carried no further. It is the application, or further application, of that process which is made contingent upon the formation by the Commissioner of an opinion that it would be unreasonable that a relevant company should be liable to pay recoupment tax. The actual liability to recoupment tax based upon a secondary taxable amount under s. 6(2) arises from the provisions of the sub-section other than par. (c). The effect which that paragraph has as a matter of form is to provide for the relief of persons from a liability otherwise imposed upon them.

On the other hand, the effect in substance of par. (c) is to vest in the Commissioner an authority or discretion to determine the extent to which the process for which the sub-section provides should apply and thus to determine the liability to tax of persons who would not otherwise be liable. In considering the defendant's submission, regard should, we think, be had to substance rather than form: see Giris Pty. Ltd. v. Federal Commissioner of Taxation [3] .

Approaching the matter in this way, it is nevertheless the sub-section itself and not the Commissioner which determines the identity of those persons who may be made liable to tax by the application of the tracing process. Having regard to the nature of the process, it cannot, in our view, be said that those persons might not validly be made the objects of the recoupment tax. Any argument to the contrary could only be upon the basis that there was insufficient connexion between those persons and the subject-matter of the tax. In MacCormick v. Federal Commissioner of Taxation [4] the proposition that a law is not a law with respect to taxation unless there is a real connexion between the objects of the tax and its subject-matter was doubted. However, assuming that the proposition was well founded, consideration was given in that case to the subject-matter of the recoupment tax and it was held that it is not a tax upon company profits, as is the company tax which is recouped, but is in each instance a tax upon a transaction which resulted in a company being stripped of its assets so as to be unable to pay its overdue company tax.

There is a real connexion between the persons who might be made liable to pay recoupment tax under s. 6(2) of the Act and the subject-matter of the tax because those persons form links in a chain which commences with a company which sold its shares in a target company, that being a transaction which led to the failure of the target company to pay its overdue company tax. It is plain enough that s. 6(2) is aimed at those who benefited, or are likely to have benefited, from the transaction with the intention that one or other or some of them should bear the tax. Whether or not that aim is achieved in every case, a real connexion between the persons identified by the application of the tracing process and the transaction can clearly be established, however remote some persons may ultimately prove to be. The tax imposed is nonetheless a tax even although it may operate harshly upon those who in fact received little or no benefit from the transaction: MacCormick v. Federal Commissioner of Taxation; Herald and Weekly Times Limited v. The Commonwealth [5] . Nor can it matter if, by the application of s. 6(13), persons who were not in existence at the time of the transaction are made liable to pay recoupment tax under s. 6(2). It is only persons who can be traced to the original transaction who can be made liable under s. 6(2); indeed, the whole tracing process is designed to establish a connexion between the transaction and the persons made liable. Whether the degree of connexion is commensurate with the benefit actually received is not to the point. What is relevant is that a real connexion is required by the sub-section.

It seems to us that this view of the Act disposes of the defendant's demurrer. However, we should, perhaps, deal more specifically with the defendant's reliance upon the scope afforded to the Commissioner's opinion under par. (c). The submission is that in forming an opinion under par. (c) of s. 6(2) the Commissioner is authorized or required to act in such a manner that recoupment tax imposed by reference to a secondary taxable amount is an arbitrary tax. It is not submitted that the incidence of a tax could not be made dependent upon the formation of an opinion by the Commissioner of the reasonableness of the result. Indeed, such a submission would not be possible in the light of the decision in Giris Pty. Ltd. v. Federal Commissioner of Taxation [6] . What is submitted is that the only matters which the Commissioner might take into account in forming an opinion under par. (c) are, because of the words "by reason of a circumstance mentioned in paragraph (b)", limited to the sale of the shares in a relevant company or in its holding company. This, it is said, confines the Commissioner to the sale and hence to a consideration of the situation of the relevant company or its holding company to the exclusion of the situation of persons otherwise contingently liable. Necessarily, the submission continues, an opinion formed upon that basis is arbitrary and any tax imposed as a result is arbitrarily imposed.

There are two answers to the submission. First, even if the forming of the opinion of the Commissioner is controlled as tightly as the defendant suggests, the result is not to produce an arbitrary tax. Indeed, the contrary might be supposed because the more limited the scope afforded to the Commissioner the more the statute itself determines the incidence of the tax. Secondly, the submission in any event takes too narrow a view of par. (c). True it is that the opinion which the Commissioner may form pursuant to that paragraph is of the unreasonableness of the relevant company's being liable to pay recoupment tax by reason of the circumstance that shares in it or in its holding company have been sold. But the question whether or not it would be unreasonable that a company should be so liable is not to be considered in isolation to the exclusion of relevant matters other than the sale itself. In particular, par. (c) does not exclude from the Commissioner's consideration the situation of any other person who would be made liable to pay recoupment tax, if, under s. 6(2), a company should be relieved of liability. Unreasonableness is a relative concept and its application requires the consideration of all the relevant circumstances. Such a consideration is not excluded by par. (c).

It may be unreasonable, by reason of a sale of shares in a company or in its holding company and having regard to that fact alone, that the same company should remain liable to pay recoupment tax. Clearly there may be circumstances in which, because of the sale, the present shareholders do not derive any benefit from the transaction which is the subject-matter of that tax. But whether or not it is unreasonable that the company should remain liable to pay recoupment tax falls to be determined by the Commissioner under par. (c) having regard to all relevant matters, including the reasonableness of the effect which any decision he might make may have upon other persons.

What may be unreasonable having regard only to the situation of the relevant company or its shareholders may not be unreasonable when considered in the context within which the Commissioner is required to form his opinion. That context is provided by s. 6, in which sub-ss. (1), (2) and (3) should be read together. When so read, each is clearly part of an overall design to ensure that recoupment tax, when it has become payable, will be paid by some person or persons falling within the description provided by the legislation. If recovery from a company otherwise liable to pay is not possible because it has ceased to exist, or because it is insolvent, or if it is unreasonable by reason of a sale of its shares into different hands, then liability may be passed further along the chain which commences with the transaction which resulted in the stripping of the target company. The Commissioner is to be guided and controlled by the policy and purpose of the enactment and, whatever the width of his discretion, it is not unexaminable should he exceed the limits which may be discerned from its provisions:Giris Pty. Ltd. v. Federal Commissioner of Taxation. The legislation does not contemplate the formation of an opinion by the Commissioner in an arbitrary manner and any attack upon it on that ground cannot, in our view, succeed.

In MacCormick v. Commissioner of Taxation [7] , I expressed the view that in imposing a tax Parliament was at liberty "to select such criteria as it chooses, subject to any express or implied limitations prescribed by the Constitution, irrespective of any connexion between them". I remain of that view and I find it unnecessary - indeed, inappropriate - to consider whether there is a "real connexion" between the persons who might be made liable to pay recoupment tax under s. 6(2) of the Taxation (Unpaid Company Tax) Assessment Act 1982 Cth and the subject-matter of the tax. Subject to that qualification, I agree with the reasons of my brothers for overruling the demurrer.