Grofam P/L & Ors v. The Commissioner of Taxation of the Commonwealth of Australia [1994] FCA 950

the construction of the Rialto building in Melbourne (the

-2- Rialto issue) and as to income tax issues other than the Rialto issue arising out of or relating to the income tax affairs of the applicants. In 1992 there were negotiations between the parties regarding the resolution of these disputes and on 30 June 1993 certain of the applicants instituted Proceedings in this Court (the 1993 proceedings) seeking, inter alia, a declaration that the Commissioner and the applicant parties to those proceedings had concluded an enforceable settlement of the disputes. In the 1993 proceedings the Commissioner denied that any such agreement had been made. On 22 September 1993, prior to the trial of the 1993 proceedings the applicants and, inter alia, the Commissioner executed an agreement (the terms of settlement)

in respect of the 1993 proceedings and the disputes.

By the terms of settlement the parties agreed in full settlement of all issues other than the Rialto issue and one presently immaterial issue (the non-Rialto issues) that the applicants would pay the Commissioner $27.5 million, that the Commissioner would issue assessments in respect of the non- Rialto issues (the non-Rialto assessments) for a total amount not exceeding $27.5 million, that the payment by the applicants of the $27.5 million would be in full and final discharge of all liability under the non-Rialto assessments and that the applicants would forego certain carried forward losses specified in the terms of settlement (the foregone

-3- The parties also agreed in full settlement of the Rialto issue that the Commissioner would issue and serve assessments for a total sum (including additional tax and other penalties) not exceeding $39 million, being $19 million primary tax and $20 million penalties, that the Commissioner could issue and serve alternative assessments, and that except as expressly provided to the contrary in the terms of settlement all such assessments (the Rialto assessments) would be raised in accordance with the provisions of the Income Tax Assessment Act 1936 and be subject to the ordinary objection and referral

The parties are in dispute as to whether on the true construction of the terms of settlement, the Commissioner, in making the Rialto assessments, is entitled to make adjustments to the income and losses as returned by any or all of the applicants in respect of issues other than the Rialto issues.

The applicants deny that the Commissioner is so entitled, whereas the Commissioner says that in making the Rialto assessments he is entitled to have regard solely to the profit derived from the construction of the Rialto building and to disregard or adjust the income and losses as returned by any

A further dispute has arisen between the parties as to whether if, contrary to the applicants' contention, on the proper

construction of the terms of settlement the Commissioner in

making the Rialto assessments is entitled to make adjustments

of the type referred to, the taxpayers to whom the Rialto

assessments are issued are entitled to object against the

Rialto assessments in respect of those adjustments on any

grounds. The applicants contend that they are so entitled

whereas the Commissioner denies any such entitlement.

a declaration that on the proper construction of the terms of settlement, the respondent, in making the Rialto assessments, is not entitled pursuant to the terms of settlement to make adjustments to the income and losses as returned by any or all of the applicants in respect of issues other than the Rialto issue;

alternatively, if contrary to the contention of the applicants the respondent, in making the Rialto assessments, is entitled pursuant to the terms of settlement to make adjustments to the income and losses as returned by any or all of the applicants in respect of issues other than the Rialto issue, a declaration that on the proper construction of the terms of settlement the taxpayers against whom the Rialto assessments are issued are entitled pursuant to the terms of settlement to object against the Rialto assessments in respect of those adjustments on any grounds;

such further or other order or orders as the Court thinks

-5- The following further facts were proved by evidence given at

In accordance with the terms of settlement the 1993

proceedings were struck out with no order as to costs.

On 28 September 1993 the Commissioner issued assessments in

respect of the non-Rialto issues for an aggregate sum of $27.5

On 27 September 1993 the Commissioner issued the Rialto assessments, including alternative assessments. In each case (that is, in the initial assessments and in the alternative

assessments ) the aggregate amount of tax assessed is

On 17 October 1993 notices of objections were lodged by the respective taxpayers in respect of all of the Rialto assessments. All objections were disallowed in their entirety by the Commissioner and on 29 October 1993 each taxpayer referred the relevant objection decision to the

Administrative Appeals Tribunal for review. No profit or income derived by any of the applicants by or from the construction of the Rialto building was returned in

The various sums set out in schedule 3 of the terms of

-6- settlement (to which reference is made hereunder) represent the respective amounts claimed in the income tax returns of the companies and other entities referred to in that schedule lodged for the year ending 30 June 1989 as being the s 80

It appears from the material put in evidence that in preparing the Rialto assessments the Commissioner has adopted as his starting point the net income or loss as returned by the relevant taxpayer, and has then made adjustments by adding "Rialto Construction Profit" and "Other Adjustments in accordance with Deed of Settlement" and by deducting any losses brought forward pursuant to s 80 of the Act in order to

The applicants dispute the entitlement of the Commissioner, in accordance with the terms of settlement, to make the "other adjustments" referred to, and say that if the Commissioner is s0 entitled, the applicants are entitled to object to same in the review proceedings. In cases where an assessment involves an adjustment of this type the relevant taxpayer's notice of objection identifies the adjustment and contends that it was not authorised by the terms of settlement and, in

the alternative, was wrong as a matter of proper application

The Commissioner's response is that the net income or losses

as returned have no relevance to the assessment of the profit

-7- or income derived from the construction of the Rialto building and that having taken same into account, it is necessary to make an adjustment in order to achieve the result that the

It is appropriate to now refer to the relevant provisions of

As a matter of convenience the defined meanings of several

terms referred to in the following extracts from the terms of

"Rialto issue" means the issue as to whether any and if so what taxable profit or income was derived by any and if so which member or members of the Grollo Group by or

"Rialto assessments" means the assessments to be issued in respect of the Rialto issue in accordance with

"Non-Rialto issues" means all income tax issues (other

than the Rialto issue) arising out of or relating to the

(a) the Grollo Group (other than Grocon Pty Limited, No 1 Spring Street Pty Ltd, Grollo Finance Pty Ltd and Collins Street Constructions Pty Ltd) for all years

of income from the year of income ended 30 June 1981

-8- up to and including the year of income ended 30 June 1989;

Grocon Pty Limited for all years of income up to and including the year of income ended 30 June 1989, with the exception of the emerging profits issue (1T2450), being the issue as to the appropriate basis for recording the profit from unfinished construction contracts as raised by Grocon Pty Limited in its income tax return for the year ended 30 June 1989 by way of application under s 169A of the ITAA;

No 1 Spring Street Pty Ltd, Grollo Finance Pty Ltd and Collins Street Constructions Pty Ltd, for all years of income from the year of income ended 30 June 1981 up to and including the year of income ended 30 June 1991;

each trust referred to in Schedule One hereto (other than the Karenda Trust) and the beneficiaries of such trust in so far as they derived assessable income from the trust for all years of income from the year of income ended 30 June 1981 up to and including the year of income ended 30 June 1989; and

the Karenda Trust and the beneficiaries of such trust in so far as they derived assessable income from the trust for all years of income from the year of income ended 30 June 1981 up to and including the

~9- and all issues under the ITAA relating to or arising out of profit or income derived from the construction of the

"Non-Rialto assessments" means the assessments to be

issued in respect of the Non-Rialto Issues in accordance

"Tax appeals" means the applications for review or the

appeals under Part IVC of the Taxation Administration Act 1953 instituted pursuant to sub-paragraph 13(a) hereof.

"Further applications" means the objections lodged and any proceedings instituted, brought or otherwise taken by the Grollo Group to set aside, to have declared invalid or otherwise to challenge the validity or correctness of any further assessments referred to in sub-paragraph

In the terms of settlement the applicants are referred to collectively as the Grollo Group, a term which is defined to mean all or any or any combination of those persons and

Following the recitals, and paragraphs containing definitions and provisions relating to the interpretation of the document,

(i) will pay to the Commissioner the sum of $27.5 million; (ii) subject tc paragraph 4 hereof, agrees to

forego all of the carried-forward losses as at 30 June 1989 of each of the members of the Grollo Group named in Schedule Three hereto (other than carried~forward losses in the Rialto Unit Trust in the sum of $11 million) which carried-forward losses are agreed to be in the sums specified in Schedule Three hereto;

(iii) agrees that Grollo Finance Pty Ltd and No 1 Spring Street Pty Ltd shall forego the Residual Losses as referred to in paragraph 9 hereof;

{b) will pay to the Commissioner the sum of $10.2 million on account of any tax and penalties payable in respect of the Rialto Issue.

The payments referred to in paragraph 2 hereof shall be made by electronic funds transfer to the account of the Commissioner being the Commonwealth Public Account No 31034-6 at the Reserve Bank of Australia, Melbourne, by the following instalments:

(a) $30 million on or before 24 September 1993; (b) the balance, namely $7.7 million, on or before 15 October 1993.

The parties agree that the Rialto Unit Trust shall be entitled as at 1 July 1989 to carried-forward losses in the sum of $11 million.

$ Rialto Unit Trust 41,778,623.00 Collins Street Constructions Pty Ltd 20,871,635.00 Grollo Finance Pty Ltd 14,963,114.00 No 1 Spring Street Pty Ltd 4,774,922.00 William Street (GB) Trust 3,261,874.00 4 Trusts 222,892.00 Russell Street (GB) Trust 84,654.00 20 Greensborough Trusts 2,021,400.00 Grollo Administration Unit Trust 14,670.00 Listaven Trust 450,013.00 Losses as above 88, 443,797.00

Legs agreed loss to be retained in Rialto Unit Trust 21.000,000.00

-11- Paragraphs 5 to 9 (inclusive) deal with the issuing of assessments in respect of the non-Rialto issues, the general thrust of which are set out earlier in these reasons. It is

however necessary to refer specifically to the following

5. (a) The Commissioner will issue such assessments as he determines in respect of the Non-Rialto Issues provided that:

the year ended 30 June 1989 shall be for an amount of primary tax not greater than the sum of $2.5 million;

(ii) no assessment shall be made or issued which is contrary to the matters contained in paragraphs 7 and 8 hereof;

(iii) the total amount due under the Non-Rialto Assessments on any account whatsoever including any tax and penalties shall not exceed in aggregate the sum of $27.5 million; and

{iv) The payment by the Grollo Group of the sum of $27.5 million referred to in sub-paragraph 1(a)(i) (sic) hereof shall be in full and final discharge of each and every liability under the Non-Rialto Assessments, including the assessment against Grocon Pty Limited referred to in sub-paragraph 5(a})(i) above and all other assessments against it for the years up to and including the year ended 30 June 1989;

(b) the parties agree that the Commissioner will not serve Adjustment Sheets in respect of the Non-Rialto Assessments, unless such adjustment sheets are requested in writing by the Grollo Group.

6. The Grollo Group agrees not to lodge an objection against or to take any curial proceeding to set aside or otherwise to have declared invalid any of the Non-Rialto Assessments.

Paragraphs 10 to 20A (inclusive) deal with the Rialto issue.

The paragraphs relevant to the present issue are as follows:

10. (a) The Commissioner will issue and serve any assessments in respect of the Rialto Issue on or before 27 September 1993, provided that the aggregate amount of tax assessed (including additional tax and any other penalties) shall not exceed in total $39 million (being $19 million primary tax and $20 million penalties) ;

(b) The Commissioner may in addition to the assessments referred to in sub-paragraph 10({a) above issue and serve on or before 27 September 1993 alternative assessments to those referred to in sub-paragraph 10(a) above, provided always that the total amount of tax assessed (including

additional tax and any other penalties) in respect of the Rialto Issue does not exceed $39 million.

(c) Subject to paragraph 20 hereof, nothing in these Terms of Settlement shall prevent, restrict or limit in any way the Commissioner's power to issue further assessments in respect of the Rialto Issue if he considers it necessary to do so following the determination of the Tax Appeals, provided that the Grollo Group shall be at liberty to lodge objections against such further assessments and to bring, institute or take such proceedings under Part IVC of the Taxation Administration Act 1953, s 3958 of the

or otherwise as it determines to set aside, to have declared invalid or otherwise to challenge the validity or correctness of such further assessments er any objection decision in respect of such further assessments.

(da) Except as expressly provided to the contrary in these Terms of Settlement, the Rialto Assessments shall be raised in accordance with the provisions of the ITAA and shall be subject to ordinary objection and referral or appeal provisions contained in Part Ivc of the Taxation Admini ti A 1953

The Grollo Group agrees that any objections against the assesaments issued and served in accordance with sub-paragraph 10(a) or sub-paragraph 10(b) hereof shall be lodged on or before 18 October 1993.

The Commissioner agrees to make his decisions on the objections

referred to in paragraph 11 hereof on or before 25 October 1993,

(a) In the event that the Commissioner disallows any or all ef the objections referred to in paragraph 11 hereof, whether in part or in whole, the Grollo Group agrees that any application for a review of or any appeal againat the said objection decisions under Part Ivc of the Taxation

Administration Act 1953 shall be instituted on or before 1 November 1993;

(b) The Grollo Group agrees that save for the Tax Appeals it shall not institute or otherwise take any curial proceeding to set aside or otherwise to have declared invalid or to challenge the validity or correctness of any assessment issued and served in accordance with sub- paragraphs 10(a) or 10(b) hereof.

(a) they shall make a joint application forthwith after the institution of the Tax Appeals for directions for an expedited hearing of the Tax Appeals; and

(b) they shall each use his or its best endeavours to achieve the hearing and determination of the Tax Appeals on or before 31 May 1994.

The Grollo Group hereby waives any right to challenge the adequacy of the cCommissioner's review of the objections referred to in paragraph 11 hereof, provided that such waiver is made without prejudice to its rights to contend in the Tax Appeals that the amounts and the particulars of the assessments issued and served in accordance with sub-paragraph 10(a) or sub-paragraph 10(b) hereof are incorrect.

20A (a) Subject to paragraph 20A(b) hereof, the Grollo Group acknowledges that the due date for payment of the amounts of tax (including additional tax and any other penalties) payable under the Rialto Assessments (after deduction of any amounts paid on account of such tax and penalties) is as specified in the said assessments, provided always that such date shall not be less than 30 days after service of the assessments.

(b) In the event that the Grollo Group institutes the Tax

Appeals and/or any proceedings under Part Ivc of the

further assessments referred to in sub-paragraph 10(c)

hereof, the Commissioner and the Grollo Group agree that

the date for final payment under the Rialto Assessments

shall be twenty-one days after the final determination or

discontinuance of the Tax Appeals or of the said proceedings, whichever is the later date.

(c) If upon the final determination or discontinuance of the Tax Appeals and any proceedings referred to in sub- paragraph 20A(b) hereof, the amount of tax (including additional tax and any other penalties) due and payable in respect of the Rialto Issue is more than $10.2 million, the Commissioner shall be entitled to and may recover additional tax under s 207 of the ITAA upon any unpaid balance of the amount due and payable, which

additional tax shall accrue from the date for payment specified in the Rialto Assessments.

The only other provision of the terms of settlement to which reference needs to be made is sub-paragraph 36(b) which provides:

(b) The parties acknowledge that the Grollo Group intends if any assesements are issued in respect of the Rialto Issue to contend that no member of the Grollo Group derived a taxable profit or income by or from the construction of the Rialto building and that no tax was or is due or payable in respect of the Rialto Issue.

By separating the income of the applicants into two separate streams, that is the Rialto income and the non-Rialto income, the terms of settlement contemplate a procedure not otherwise open to the Commissioner in the assessment of income tax payable by each individual applicant. Ordinarily, the tax assessed to a taxpayer would take into account all of the taxable income of the taxpayer from all sources, and in that process the taxable income of each taxpayer would from year to

year reflect the effect of any losses carried forward from

-14- previous years pursuant to s 80 of the Income Tax Assessment

In my opinion the effect of sub-paragraphs 2(a), 5(a) and 5(b) and paragraph 6 of the terms of settlement is that the agreed sum of $27.5 million represents the tax payable on the taxable incomes of the applicants for the various periods referred to in the definition of ""Non-Rialto issues" after taking into account all losses capable of being carried forward pursuant to s 80 but without regard to any income that may have been derived from the construction of the Rialto building. The terms of settlement recognise that, if contrary to the applicants' contention, any member of the Grollo Group derived a taxable profit or income by or from the construction of the Rialto building, any tax payable in respect of such profit or income is (subject to the agreed limit) payable in addition to the agreed sum payable in respect of the non-Rialto

The terms of settlement provide an agreed framework within which to facilitate, in isolation from all other issues relating to the taxable affairs of the applicants, the determining of the question first as to whether any taxable profit or income was derived by or from the construction of the Rialto building and second, if so, what amount of tax is payable. It necessarily follows that in issuing the Rialto assessments the Commissioner was entitled to entirely ignore

any returns lodged by any of the applicants, which returns it

-15- is conceded were prepared without regard to any taxable profit or income derived from the construction of the Rialto building. The Commissioner was however entitled to assess as income only such amount of profit or income as was derived

Paragraph 10 contemplates that the Rialto assessments would not require the payment of tax in excess of the agreed maximum amount. It does not contemplate that in the event that the tax assessed exceeded the agreed limit, the Commissioner would accept the lesser sum in satisfaction of the combined liabilities of the various taxpayers. It must necessarily follow therefore that in order to give effect to the provisions of sub-paragraph 10(a) and 10(b) the Commissioner was entitled to make such adjustments to the assessable income of the applicants as would have the effect of limiting the total amount of primary tax to $19 million. Such adjustments would only be called for if the maximum limit imposed by the

terms of settlement would, in the absence of some adjustment,

The declaration sought in paragraph (a) of the application does not in my opinion reflect the proper construction of the terms of settlement. As has been demonstrated above the Commissioner is entitled to make such adjustments as may be

necessary to ensure that the terms of settlement are adhered

(da) Except as expressly provided to the contrary in these Terms of Settlement, the Rialto Assessments shall be raised in accordance with the provisions of the ITAA and shall be subject to ordinary objection and referral or appeal provisions contained in Part Ivc of the Taxation

it envisages that the Rialto assessments will not necessarily be raised "in accordance with the provisions of the ITAA".

This must be the case as the basis of the agreement is that the Rialto assessments will not take into account any non- Rialto issue. And the second part of sub-paragraph 10(d) should be construed in that context, namely, that it provides for the preservation of the ordinary objection and referral or appeal provisions in respect of assessments which relate only to the taxable profit or income derived from the construction of the Rialto building but otherwise disregard all other tax issues relevant to the particular taxpayer. In my opinion sub-paragraph 10(b) preserves the rights of the applicants under Part IvC of the Paxation Administration Act to object to the Rialto assessments insofar as they purport to assess the taxable income or profit derived from the construction of the Rialto building. In these circumstances, the declaration sought in paragraph (b) of the application does not reflect

the proper construction of the terms of settlement.

Paragraph (c) of the application invites the Court to make such further or other order as it thinks fit. In the course of argument counsel for the Commissioner suggested that it might be appropriate for the Court to make a declaration that

on the proper construction of the terms of settlement the

-17- Commissioner, in raising the Rialto assessment, was entitled to disregard all losses returned in the income tax returns of

Whilst such a declaration would be consistent with the reasoning which has led me to decline to make either of the declarations sought by the applicants, it appears to me to be unnecessary to so declare and in view of the evidence that the Commissioner did not in fact disregard the returned losses when raising the Rialto assessments, it would seem

In my opinion the relief sought should be refused. The

Grofam Pty Ltd (ACN 004 970 487) in its own right and as trustee of:

Grofam Unit Trust Grofam Australia Pty Ltd (ACN 004 844 026)

Grollo Australia Pty Ltd (ACN 005 717 199) in its own right and as trustee of:

Rialto Unit Trust Bruno Gordano Grollo Rino John Grollo Grollo Finance (Holdings) Pty Ltd (ACN 004 970 478) Grollo Finance Pty Ltd (ACN 004 970 692)

Grollo Constructions Pty Ltd (ACN 006 264 295) in its own right and as trustee of:

Grollo Nominees Pty Ltd (ACN 004 970 576) in its own right and trustee of:

Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Bruno Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Rino Grollo (Greensborough) Trust No Bruno Grollo Trust No 11

Bruno Grollo Trust No 16 Bruno Grollo Trust No 17 Bruno Grollo Trust No 18 Bruno Grollo Trust No 19 Bruno Grollo Trust No 20 Bruno Grollo Trust No 21 Bruno Grollo Trust No 22 Bruno Grollo Trust No 23 Bruno Grollo Trust No 24 Bruno Grollo Trust No 25 Bruno Grollo Trust No 26 Bruno Grollo Trust No 27 Bruno Grollo Trust No 28 Bruno Grollo Trust No 29 Bruno Grollo Trust No 30 Rino Grollo Trust No 11 Rino Grollo Trust No 12 Rino Grollo Trust No 13 Rino Grollo Trust No 14 Rino Grollo Trust No 15 Rino Grollo Trust No 16 Rino Grollo Trust No 17 Rino Grollo Trust No 18 Rino Grollo Trust No 19 Rino Grollo Trust No 20 Rino Grollo Trust No 21

Rino Grollo Trust No 22 Rino Grollo Trust No 23 Rino Grollo Trust No 24 Rino Grollo Trust No 25 Rino Grollo Trust No 26 Rino Grollo Trust No 27 Rino Grollo Trust No 28 Rino Grollo Trust No 29 Rino Grollo Trust No 30 The Russell Street (GB) Trust The William Street (GB) Trust

Collins Street Constructions Pty Ltd (ACN 005 338 152)

Grollo Developments Pty Ltd (ACN 005 717 162) in its own right and as trustee of:

No 1 Spring Street Pty Ltd (ACN 006 772 238) Grocon Pty Ltd (formerly Grocon Limited) (ACN 006 772 288)

Oasis Holdings Pty Ltd (ACN 005 589 202) in its own right and as trustee of:

Collins Street (GB) Trust Collins Street (MM) Trust Collins Street (TL) Trust L. Grollo & Co Pty Ltd (ACN 004 622 717)

Princess Investments Pty Ltd (ACN 006 261 605) in its own right and as trustee of:

L. Grollo Administration Pty Ltd (ACN 004 970 307) in its own right and as trustee of:

200 Queen Street Pty Ltd (ACN 005 603396) in its own right and as trustee of:

The Emma Grollo Trust The Luigi Grollo Trust The Rino Grollo Trust

Main Beach Holdings Pty Ltd (ACN 005 483 384) in its own right and as trustee for:

Cusignana Pty Ltd (ACN 005 608 677) in its own right and as trustee of:

The Grollo Unit Trust I certify that this and the preceding 19 pages are a true

copy of the Reasons for Judgment of the Honourable Justice Olney.

Mr B. Shaw QC and Mr G. Davies (instructed by Arnold Bloch Leibler & Co) appeared for the applicant.

Mr P. Hayes QC, Ms A. Moshinsky QC and Mr T. Murphy (instructed by the Australian Government Solicitor) appeared for the respondent.