Consideration
62 As earlier mentioned at [18] to [22] of these reasons, a "*tax-related liability" is a pecuniary liability to the Commonwealth arising directly under a taxation law, including a liability the amount of which is not yet due and payable.
63 As to the 1997 Act, for example, persons (and entities generally; "you", which we will call the "addressee"; s 4-5) are obliged to lodge an income tax return as required by the 1936 Act: s 3-10(1), 1997 Act. The addressee must pay income tax for each financial year: s 4-10(1). Income tax is worked out by reference to a person's taxable income for the income year (which will usually be the financial year; s 4-10(2)) according to the method described at s 4-10(3), 1997 Act, and a person's taxable income is calculated according to the method at s 4-15, 1997 Act. The method described at s 4-10(3) uses the term "income tax liability" which means, for an income year, the amount assessed as being the amount of income tax that the entity (as to which see s 960-100 which includes a person, company, trust), owes for the financial year (applicable to the entity; s 4-10(2)), as mentioned in Step 4 of the Method Statement in s 4-10(3): s 995-1, 1997 Act. The income tax is only "due and payable" if the Commissioner makes an assessment of the income tax for the year: s 5-5(2), 1997 Act. However, if the Commissioner makes an assessment of the addressee's income tax for the year, "the tax may be taken to have been "due and payable" at a time before the assessment was made": s 5-5(3). This provision seems to be designed to ensure that the "General interest charge" on unpaid income tax (which is calculated from the time when the tax is due and payable, not from the time when the assessment is made (s 5-15)), begins to accrue from the same date for all entities: see the Note to s 5-5(3).
64 If the addressee is a "self-assessment entity" (that is, a company or the trustee of a relevant trust, among other things; s 995-1, 1997 Act; s 6(1), 1936 Act, a "full self-assessment taxpayer"), the income tax is "due and payable" on the first day of the sixth month after the end of the income year and thus, if the income year ends on 30 June, the income tax would be due and payable on 1 December: s 5-5(4).
65 If the addressee is not a self-assessment entity, the income tax is due and payable 21 days after the day (the return day) on or before which the addressee is required to lodge an income tax return with the Commissioner: s 5-5(5). If the addressee lodges a return on or before the return day and the Commissioner gives notice of assessment after the return day, the income tax is "due and payable" 21 days after the Commissioner gives notice of the assessment: s 5-5(6).
66 As to the requirements of the 1936 Act contemplated by s 3-10(1) of the 1997 Act, every person must, put simply, give the Commissioner a return in the approved form for the year of income, within the specified period: ss 161(1), 161A, 1936 Act. However, the Commissioner may defer the time for giving the return (s 388-55(1), Schedule 1, Administration Act) although such a deferral "does not defer the time for payment of any amount to the Commissioner": s 388-55(2), Administration Act. The return must specify the matters in s 161AA, 1936 Act, including the amount of tax payable on taxable income (s 995-1, 1997 Act) or net income or that no tax is payable. A person must, if required by the Commissioner, whether before or after the year of income, give the Commissioner, within the time required and in the approved form, a return or further or fuller return or any information about the person's taxable affairs: s 162, 1936 Act. Every person, whether a taxpayer or not, if required by the Commissioner, must furnish any return required by the Commissioner for the purposes of the Act, in the approved form and in the time required by the Commissioner: s 163, 1936 Act.
67 From the returns and any other information in the Commissioner's possession, the Commissioner must make an assessment of the amount of the taxpayer's taxable income (or that there is no taxable income); the amount of the tax payable (or that no tax is payable); and the total of the taxpayer's tax offset refunds: s 166, 1936 Act. As to the scope of the defined term "assessment", see s 6(1), 1936 Act.
68 However, if no return has been provided to the Commissioner, or he or she is not satisfied with a return or he or she has reason to believe a person who has not furnished a return has derived taxable income, the Commissioner may make an assessment of the amount upon which, in his or her judgement, income tax ought to be levied: s 167, 1936 Act.
69 In addition, the Commissioner may, at any time during any year (or after the expiration of the relevant year), make an assessment of the taxable income derived by the taxpayer (or that there is no taxable income); the tax payable (or that no tax is payable); and any tax offset refunds for that year (or any part of it): s 168, 1936 Act. Where any person is liable to pay tax, including a "nil liability" to tax, the Commissioner may make an assessment of the amount of the tax payable or that no tax is payable: s 169, 1936 Act.
70 As "soon as conveniently may be" after an assessment, the Commissioner shall serve notice of the assessment upon the person "liable to pay the tax": s 174, 1936 Act.
71 As to the GST Act, the tax payable under a "GST law" is payable on "taxable supplies" and "taxable importations".
72 However, entitlements arise to input tax credits on "creditable acquisitions" and "creditable importations" (s 7-1) and the scheme of the GST Act involves setting off, against each other, amounts of GST and amounts of input tax credits so as to produce a "net amount" for a tax period applying to the relevant entity: s 7-5, s 7-10. The amount "assessed" as being the net amount for a tax period is the amount that the entity "must pay" to the Commonwealth (or the Commonwealth must refund to the entity for the relevant period): s 7-15.
73 The notion of "taxable supplies" is given content by Subdivision 9-A. A person, "you", makes a taxable supply if the supply is made (among other considerations) in the course or furtherance of an enterprise (s 9-20) the addressee (s 9-5) carries on (which includes anything in the course of commencement of an enterprise; s 195-1), and a "supply" includes a supply of goods or services or a grant of an interest in real property: s 9-10.
74 However, a supply is not a taxable supply to the extent it is "GST-free" (s 9-30; Division 38) or "input taxed" (s 9-30; Division 40). As to who is liable for GST on taxable supplies, "you must pay the GST payable on any taxable supply made by you": s 9-40.
75 Taxable importations are addressed by Division 13 of Part 2-3. Creditable acquisitions and creditable importations are addressed by Division 11 of Part 2-2 and Division 15 of Part 2-3.
76 The "net amount" for an addressee's applicable tax period is worked out according to the formula at s 17-5 although the term "net amount" also has the meaning given to it at s 195-1. However, the addressee may choose to work out the net amount in the way specified in an "approved form" (s 388-50, Schedule 1, Administration Act), if that form is used to notify the Commissioner of the net amount for the period.
77 As to the assessment of the net amount for an entity's applicable tax period, the Commissioner may "at any time" make an assessment of an "assessable amount": s 155-5(1). An assessable amount is defined to mean each of six things recited at s 155-5(2) of the Administration Act, including a "net amount" as defined by ss 17-5 and 195-1 of the GST Act. The Commissioner must give the addressee notice of an assessment of an assessable amount as soon as practicable after the assessment is made: s 155-10(1). Assuming the Commissioner has not already, under s 155-5(1), made an assessment, s 155-15(1) addresses the topic of "self-assessment" and provides that the Commissioner is "treated" as "having made" an assessment under s 155-5 of an assessable amount (of the addressee's "net amount" for the relevant period) if the addressee has given the Commissioner a "GST return" for the relevant tax period. Section 155-15(1) addresses three other classes of deemed assessment by the Commissioner of an assessable amount. Each s 155-15(1) deemed assessment is treated as having been made on the day the document (for example, the GST return for the period) is given to "the recipient" which, apart from one example where the recipient is "Customs" (Item 3), is the Commissioner: s 155-15(2).
78 The amount, taken to be assessed, is the amount recited in the document given to the Commissioner (where the document is required to state the "assessable amount" - for example, the GST return), otherwise it is the amount "worked out" in accordance with the information in the document (s 155-15(4)) and the document itself is taken to be "notice" of the assessment by the Commissioner for the purposes of s 155-10 (the notice requirement mentioned earlier).
79 For the purpose of making an assessment of an assessable amount for a relevant period under s 155-5(1), the Commissioner may treat part of the period as being the whole period: s 155-25.
80 The scheme of the GST Act is to look to the net amount "for a tax period" and generally the tax periods applying to an addressee are each a period of three months ending on 31 March, 30 June, 30 September and 31 December in any year although an addressee may elect to have tax periods of "each individual month": ss 27-5, 27-10. The Commissioner, however, may determine, by notice, that a particular period applies to the addressee: s 27-30.
81 As to the GST return, each addressee who is registered or required to be registered "must give" to the Commissioner a GST return for each tax period (s 31-5) whether or not the addressee's net amount for the period is zero or whether or not the addressee is liable for GST on any taxable supplies attributable to the tax period. If quarterly tax periods apply, the addressee must give a GST return to the Commissioner as follows: for quarterly periods in which 1 September, 1 December, 1 March and 1 June fall, the GST return must be given to the Commissioner on or before, respectively, 28 October, 28 February, 28 April and 28 July: s 31-8 (that is, on or before the 28th day after the end of the relevant quarter).
82 For a tax period other than a quarterly tax period, the GST return must be given to the Commissioner on or before the 21st day of the month following the end of the tax period or within such further period as the Commissioner allows: s 31-10. For periods other than quarterly periods, if the tax period ends during the first seven days of a month, the addressee must give the GST return to the Commissioner on or before the 21st day of that month or within such further period as the Commissioner allows. The form and content of the GST return is determined by s 31-15.
83 As to payment of the "assessed net amount for a tax period", if that amount is greater than zero and the tax period is a quarterly tax period, the addressee "must pay" the assessed net amount to the Commissioner for quarterly periods during which the following days fall, 1 September, 1 December, 1 March and 1 June, on or before, respectively, 28 October, 28 February, 28 April and 28 July: s 33-3. Thus, a GST return for each quarterly period might be lodged before (or on) the 28th day after the end of the relevant quarter and the assessed net amount falls due for payment on the 28th day after the end of the quarter which, in many cases, will be the day of lodgement of the GST return. Section 155-15 of the Administration Act, as earlier mentioned, has the effect of treating the Commissioner as having made an assessment of the net amount for the relevant quarter (s 155-15(1)) upon the day the addressee gives the Commissioner a GST return (s 155-15(2)) and so giving the document is treated, as a statutory construct, as notice of the assessment to the addressee: s 155-15(5).
84 If the relevant period is other than a quarterly tax period and the assessed net amount for the period is greater than zero, the addressee must pay the assessed net amount to the Commissioner on or before the 21st day of the month following the end of the tax period. However, if the tax period ends during the first seven days of a month, the addressee must pay the assessed net amount to the Commissioner on or before the 21st day of that month: s 33-5.
85 Amounts of assessed GST on taxable importations are to be paid by the importer to the Commonwealth either at the same time, at the same place and in the same manner, as Customs duty is payable on the goods in question (or would be payable if the goods were subject to Customs duty) or in the circumstances specified by the Regulations, within such further time specified in those Regulations and at the place and in the manner specified in the Regulations: s 33-15.
86 Chapter 4 of the GST Act contains special rules relating to payments of GST having regard to the topics identified in the various items in s 33-99.
87 Division 75 of the GST Act addresses the topic of the sale of freehold interests and enables the addressee to apply the "margin scheme".
88 The margin scheme applies in working out the amount of GST on a taxable supply of real property made by an addressee in selling a freehold interest in land, selling a stratum unit or granting or selling a long term lease if the addressee and the recipient of the supply have agreed in writing that the margin scheme is to apply: s 75-5. Real property includes, among other things, any interest in or right over land: s 195-1. The agreement between the addressee and the recipient of the supply must be made on or before the making of the supply (s 75-5(1A)) although the margin scheme does not apply if the addressee acquired the entire freehold interest through a supply that was "ineligible for the margin scheme" as that phrase is defined in s 75-5(3): s 75-5(2). If a taxable supply of real property is under the margin scheme, the amount of GST on the supply, as determined by s 75-10, is 1/11th of the margin for the supply where the margin is the amount by which the consideration for the supply exceeds the consideration for the addressee's acquisition of the interest. Particular rules apply according to the particular circumstances described in s 75-11. Section 75-15 applies if the addressee makes a taxable supply of real property that relates only to part of the land in which the addressee acquired an interest (that is to say, the taxable supply of subdivisional lots).
89 We have sought to illustrate by reference to the 1997 Act and its relationship with the 1936 Act (with respect to income tax) and the GST Act (as to GST), two examples of the way in which a pecuniary liability to the Commonwealth arises directly under a taxation law and the circumstances under which the amount of the pecuniary liability becomes "due and payable" to the Commissioner. Section 250-10(1) and s 250-10(2) of Schedule 1 to the Administration Act set out a summary, respectively, of each tax-related liability arising under the 1936 Act, and the range of legislation identified in the table at s 250-10(2) (including the 1997 Act and the GST Act). It is not necessary to analyse each of those summarised tax-related liabilities.
90 However, s 255-100(1) confers a discretionary power upon the Commissioner to require the addressee to give security for the due payment of a tax-related liability which the Parliament, by the use of the defined phrase "*tax-related liability", must, as a matter of construction, be taken to have intended to be capable of exercise, in the relevant circumstances, in a way which engages each tax-related liability falling within the scope of the defined term subject to the role and effect of the qualifying descriptive language "existing" and "future".
91 Section 255-100 contemplates two states. The first is an existing tax-related liability of yours and the second is a future tax-related liability of yours. An existing tax-related liability is that state in which, at the time of the exercise of the power, a presently existing pecuniary liability to the Commonwealth arises directly under a taxation law including a liability the amount of which is not yet due and payable to the Commonwealth (Commissioner). A presently existing pecuniary liability to the Commonwealth arises, although the amount of it may not be due and payable, once the Commissioner has made an assessment or is taken to have made an assessment and notice of it has been given to the addressee or notice is taken to have been given to the addressee.
92 A future tax-related liability is that state in which, at the time of the exercise of the power, a tax-related liability does not presently exist. The statutory term looks to future events and postulates the possibility (at the time of the exercise of the power by the Commissioner, standing in the present), of a pecuniary liability to the Commonwealth arising directly, in the future, under a taxation law.
93 There is nothing in the text of the term "future *tax-related liability of yours" which suggests that the discretionary power conferred on the Commissioner to require the addressee to give security for the due payment of a future tax-related liability is conditioned upon facts (taxable facts) having occurred at the time of the exercise of the power upon which the Commissioner could then act to make and notify an objectively correct quantification of the amount of the future tax-related liability.
94 The statutory factors upon which the exercise of the conferred power rests, suggest no such requirement. The Commissioner may exercise the power if he or she has reason to believe the addressee is "establishing" an enterprise or, having regard to the definition of "carrying on" an enterprise (in s 995-1 of the 1997 Act for the purposes of s 255-100(1)(a)(i)), he or she has reason to believe the addressee is doing "anything in the course of commencement of an enterprise" (s 9-20, GST Act); and the Commissioner has reason to believe the addressee intends to carry on the enterprise for a "limited time only". These terms "establishing" and doing "anything in the course of commencement" of an enterprise are inconsistent with a discretionary power to require security for the due payment of a future tax-related liability construed in such a way as to limit the subject matter of the exercise of the power to those future tax-related liabilities where the Commissioner can presently isolate, at the time of the exercise of the power, existing taxable facts having occurred (such as an existing sale of any one or more of 28 subdivisional lots) which, if then assessed, would give rise to a presently objectively correct amount of a future tax-related liability.
95 We accept that the text of s 255-100(1)(a)(i) aids in understanding and construing the meaning of the phrase "future *tax-related liability".
96 However, there is little to be gained, with respect, by seeking to construe the text of "future *tax-related liability of yours" in s 255-100(1) by adopting, in place of the word "future", the words "expected" or "anticipated". Neither of those words were selected by the Parliament for use in s 255-100(1). The word selected, as conveying Parliamentary intention, to describe one state of tax-related liability is the word "future" as contrasted with another state, "existing". "Future" means, in the phrase, "due payment of [a] future *tax-related liability of yours", just that, a pecuniary liability to the Commonwealth arising directly, in the future, under a taxation law thus conveying the notion of facts occurring, in the future, which give rise to a pecuniary liability to the Commonwealth arising directly under a taxation law.
97 Section 255-100(3) contains an example which illustrates the way in which the Commissioner might exercise a discretionary power to require an addressee to give security "as often as the Commissioner reasonably believes is appropriate": s 255-100(3)(b). That illustration postulates an earlier requirement to give security based on an estimate which has proved to be an underestimate of the likely tax-related liability. In that sense, the notion of an estimate and an "underestimated amount" and a "likely tax-related liability" gives some statutory force to the notion that a future tax-related liability is an expected tax-related liability. The example set out in s 255-100(3)(b) is inconsistent with the appellant's construction of "future *tax-related liability" based on present taxable facts having occurred giving rise to an objectively ascertainable correct amount but the word "future", in the phrase, should not be pushed aside in favour of "expected" or "anticipated".
98 We accept that the "subject matter" of the conferral of a discretionary power in s 255-100(1) is to be found in the introductory text of the section, that is, a power to require the addressee to give security for the due payment of either an "existing *tax-related liability" or a "future *tax-related liability", and the criteria upon which the power, so conferred (as earlier described), is enabled for exercise, rests upon whether the Commissioner has "reason to believe" both matters in s 255-100(1)(a)(i) and (ii) or whether the Commissioner "reasonably believes" in terms of s 255-100(1)(b).
99 However, for the reasons indicated, the subject matter of the power, so far as it concerns a power to require security for the due payment of a "future *tax-related liability", is not constrained by, or to be construed according to, the construction urged by the appellant.
100 It should be noted that s 255-100(1) uses the term "due payment" and because the power is conferred by reference to the defined term "*tax-related liability" (s 255-1(1); [18] of these reasons), the section also introduces reference to amounts which are not yet "due and payable", rather than amounts not yet "due". The section confers power upon the Commissioner to require the giving of security for the "due payment" of an existing pecuniary liability to the Commonwealth arising directly under a taxation law (including a liability which is not yet due and payable), or a future pecuniary liability to the Commissioner, so arising, including a liability the amount of which is not yet due and payable. The term "due", prima facie, simply means "owing": Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 ("Clyne") at pp 9-10, Gibbs CJ. However, as Keane J observes in Australian Building Systems at [119], Mason J accepted (with whom Aickin J and Wilson J agreed and with whom Brennan J agreed (on this question at least, at p 24), that Isaacs J was correct in Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 382, when he said of the words "debts due", absent anything in the context giving a different construction, those words include "all sums certain which any person is legally liable to pay, whether such sums had become actually payable or not".
101 "Due payment" of an existing tax-related liability means payment, when due, of an existing tax-related liability being a sum certain which a person is legally liable to pay although the time for payment may not have fallen due. Section 255-1(1) makes plain that a tax-related liability includes a liability, the amount of which is not yet due and payable, that is, the date fixed for payment has not arisen. The "due payment" of a "future *tax-related liability" means, prima facie, the payment, when due, to the Commissioner (for the Commonwealth) of the amount of a pecuniary liability, in the future, arising directly under a taxation law and since the pecuniary liability so arising will not arise until sometime in the future, the time for payment (on a date fixed for payment), will not arise until sometime after the future tax-related liability has arisen.
102 Thus, no amount, so far as it relates to a "future *tax-related liability", could be "yet due and payable" at the date of exercise of the power. Again, s 255-1(1) makes plain that the tax-related liability includes a liability the amount of which is not yet due and payable. Section 255-100 looks to future events and future tax amounts which become due for payment, in the future.
103 The appellant contends that the construction adopted in these reasons is inconsistent with the construction adopted by the High Court, at least as a matter of analogous principle, in Bluebottle and then in Australian Building Systems, in construing the phrase "tax which is or will become due", in s 255(1)(b) (in Bluebottle) and s 254(1)(d) (in Australian Building Systems) of the 1936 Act. However, the text of s 255-100 of the Administration Act is fundamentally different to the text of either section. Also, the context of each section within the 1936 Act was fundamentally different to the context within which the power is conferred on the Commissioner in s 255-100 of the Administration Act. Sections 254 and 255 of the 1936 Act were directed to a number of objects including: imposing an obligation on the addressee of s 254 to be "answerable as taxpayer" and to be responsible "for payment of tax …"; imposing an obligation on the addressee of s 255 to "pay the tax due and payable by the non-resident"; and imposing a "retention obligation" on the addressee under s 254 and, in quite different terms, a retention obligation on the addressee in s 255, so as to protect the revenue in each case. Section 255-100, on the other hand, is a recovery and collection provision serving the object described in s 250-25 of the Administration Act of conferring the power on the Commissioner to ensure unpaid amounts of "*tax-related liabilities" and other related amounts are collected or recovered in a timely manner. Nevertheless, having regard to the appellant's submissions, it is necessary to examine what these two cases actually decided.
104 Bluebottle (and we will repeat the citation here for convenience, (2007) 232 CLR 598) concerned a retention obligation imposed, pursuant to s 255(1)(b) of the 1936 Act, on a publicly listed company in relation to tax payable by overseas corporate shareholders on dividends the company had declared. That section provided, at the relevant date, put simply, that every person having control, receipt or disposal of money belonging to a non-resident who derives income or profits or capital gains from a source in Australia is:
… hereby authorised and required to retain from time to time out of any money which comes to the person on behalf of the non-resident, so much as is sufficient to pay the tax which is or will become due by the non-resident.
[emphasis added]
105 The Court held that the reference to "the tax which is or will become due by the non-resident" must be read as referring to an "ascertained sum" (Bluebottle, (2007) 232 CLR 598 at [78]) and if not read in that way, the section would impose a retention obligation of "undefined content" on the controller of a non-resident's money: Bluebottle at [78]. It was "undefined" because all that could be retained by the person (controller) out of money coming to him or her on behalf of the non-resident was so much as is sufficient (and only that amount) to pay the tax that is or will become due by the non-resident: Bluebottle at [78]. If not read as a reference to an ascertained sum, the Commissioner might require the person to retain more than the statute authorised, that is, more than "is sufficient" to pay the tax that is or will become due.
106 Having regard to the precise formulation of the statutory obligation as one of only being "authorised and required" to retain so much "as is sufficient" to pay the tax which is or will become due, the Court observed at [79] that:
Until the tax payable by the non-resident has been assessed it is not possible to say more than that there may be tax due by the non-resident. It is not possible to say that tax is due or that tax will become due. The prediction that tax may be due (and any prediction of its likely amount) may be able to be made with more or less certainty by a person who is armed with a deal of information, but there is no reason to suppose that the controller of a non-resident's money would ordinarily, let alone invariably, have that information and be in a position to make any useful prediction about the taxation affairs of the non-resident whose money the controller receives.
[original emphasis]
107 At [80], the Court said this:
Paragraph (b) of s 255(1) should be read as referring to an amount of tax that has been assessed. The phrase "tax which … will become due" is to be understood as referring to tax which, although assessed, is not yet due for payment.
[emphasis added]
108 At [81], the Court said this:
This construction of s 255(1)(b) gives proper weight to the language used in that paragraph (the tax which is or will become due by the non-resident) when compared with the different expression used in para (a) (the tax due and payable by the non-resident). As Gibbs CJ observed in Clyne v Deputy Commissioner of Taxation "[t]he word 'due' is ambiguous; it can mean owing, although not payable until some future date, or it can mean presently payable". And as the decision in Clyne illustrates, it is necessary to consider expressions like "due", and "due and payable", when used in the 1936 Act, in the context of the Act as a whole. When "due" is used in the collocation found in s 255(1)(b), "the tax which is or will become due by the non-resident", the requirement for specifying the amount of money that meets that description requires that the word "due" is read as meaning assessed as owing.
109 Keris says, as an adaptation of the construction attributed to the words "tax which is or will become due", not that, the reference in s 255-100(1) of the Administration Act to "security for the due payment of [a] future *tax-related liability", is to be understood (in the Bluebottle sense at [80]), as referring to a tax which, although assessed, is not yet due for payment, but rather, as a reference to a pecuniary liability to the Commonwealth where, although no assessment has been made and notified, taxable facts nevertheless exist (have occurred) at the time of the exercise of the power which would render the pecuniary liability an objectively ascertainably correct amount, should the Commissioner make an assessment on the basis of those foundation taxable facts.
110 The statutory obligation cast upon the addressee by an exercise of the Commissioner's power under s 255-100(1) is not expressed in terms of an obligation to provide security "as is sufficient" to pay (and only that amount) the tax which "will become due" but is an obligation to provide security, so far as it relates to a "future *tax-related liability", in a particular amount nominated by the Commissioner, and of a particular kind, for the due payment of a pecuniary liability to the Commonwealth in the future arising directly under a taxation law. The addressee under s 255-100(1) does not suffer from any information asymmetry of the kind suffered by the controller of the non-resident's money called upon to discharge the "sufficiency obligation" in s 255(1)(b) of the 1936 Act as discussed in Bluebottle at [79]. The precise amount of the security to be given and the form it is to take are recited in the Notice. Thus, the parity of reasoning concerning s 255(1)(b) (apart from the profound textual and contextual differences with s 255-100) does not apply to the construction of s 255-100(1) of the Administration Act.
111 In Australian Building Systems (and again, we repeat the citation as a matter of convenience, (2015) 257 CLR 544), the High Court considered the construction to be attributed to s 254(1)(d) of the 1936 Act (as it was on 21 July 2011). Section 254(1)(a) rendered each agent or trustee answerable, as a taxpayer, for doing all things required by the 1936 Act concerning income, profits or capital gains derived by him or her in a representative capacity or derived by the principal (by reason of any agency), and rendered such person answerable for the payment of tax. Section 254(1)(d) provided that every agent and every trustee:
… is hereby authorised and required to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains.
[emphasis added]
112 French CJ and Kiefel J held that the considerations which led the Court to the construction of s 255(1)(b) in Bluebottle were, having regard to their "textual setting", equally applicable to the "retention requirement" in s 254(1)(d) and thus the proposition that content can be given to the obligation imposed by s 255(1)(b) only if an assessment has issued (Bluebottle at [79]), "is true also of the obligation imposed by s 254(1)(d)": French CJ and Kiefel J at [26].
113 French CJ and Kiefel J considered that the High Court's interpretation of a particular provision in an Act is a "powerful indicator" of the correct interpretation of a provision of the same Act serving similar purposes and using identical or substantially similar language, although a different construction might be required by considerations of the text, context and purpose of the other provision: Australian Building Systems at [27]. Their Honours considered that use of the word "sufficient" in s 254(1)(d) was to be given its ordinary meaning which was entirely consistent with the proposition that the retention obligation concerning "so much as is sufficient to pay tax … which is or will become due in respect of the income, profits or gains", only arises upon the making of the assessment.
114 In Bluebottle, the particular information asymmetry rendered compliance with the retention obligation difficult to determine because the controller could not determine that which was "sufficient" so as to comply with the limits of the statutory obligation and in Australian Building Systems, the reference to "so much as is sufficient to pay" rendered the retention obligation, for French CJ and Kiefel J, one only arising upon an assessment giving content and precision to that tax "which is or will become due". The differences between the "immediate" statutory contexts of the retention obligations in s 254 and s 255 did not, for their Honours, open a "logical pathway" to construing the retention obligation (so framed) as one comprehending a "future tax liability [which] may not be known with precision": French CJ and Kiefel J at [39].
115 Gageler J in Australian Building Systems was "persuaded" to the view that the retention obligation in s 254, like the retention obligation in s 255, was limited to the retention of monies "after an assessment was made" (at [58]), notwithstanding the "significant difference" that an agent or trustee would not suffer from the information limitations confronting a controller of a non-resident's money. Nevertheless, such a construction produced "certainty" as to the "total amount" authorised and required to be retained in performance of the obligation: Gageler J at [60]. For textual and contextual reasons and considerations of statutory purpose, Keane J concluded that the construction attributed to s 255(1)(b) in Bluebottle was not determinative of the construction to be attributed to the reference "so much as is sufficient to pay tax which is or will become due" in s 254(1)(d) (at [93], [104], [115] and [124]) and concluded that the phrase cast an obligation on the addressee to retain so much as is sufficient to pay the tax which "is owing as assessed" or which "will become owing as assessed": [124].
116 Keris says, by parity of reasoning based on the reasoning in Bluebottle and that of French CJ and Kiefel J (Gageler J agreeing although for different reasons) in Australian Building Systems, that the obligation to give security under s 255-100 concerning the "due payment" of a "future *tax-related liability" should not be understood as comprehending a future tax liability which may not be known with precision at the time of exercise of the power. However, this contention fails to recognise: first, the fundamental differences in the text of s 254(1)(d) (and also s 255-1(b) as explained in Bluebottle), on the one hand, and the text of s 255-100(1), on the other hand; second, the role of the remaining subsections of s 255-100 in giving context to the terms of the conferral of the power; third, the context of s 255-100 within the Administration Act as discussed earlier; fourth, the conferral of the power in relation to each and every future pecuniary tax-related liability arising directly under a taxation law, as earlier described, and thus its broadly-based application; fifth, the object of the section.
117 Having regard to textual and contextual considerations concerning s 255-100 and the statutory purpose of the section, the reasoning in Bluebottle and Australian Building Systems does not support the construction contended for by the appellant.
118 Keris says that because the Parliament has ascribed criminal consequences to non-compliance with the obligation to give security, the words "due payment of an existing or future *tax-related liability", framing the scope of the subject matter of the power, should be construed in the way contended for by the appellant so that, at the time of exercise of the power, there is an objectively ascertainably correct amount of the existing or future *tax-related liability. Otherwise, it is said, the citizen will be subject to criminal sanctions concerning obligations with respect to tax-related liabilities that may have no precision when the time for compliance with the requirement to give security arises. The citizen's obligation, however, to which criminal sanctions attach for non-compliance, is an obligation to provide security in a precise amount and of a particular kind. The citizen is left in no doubt about the content of the obligation or whether the amount and kind of security bears a relationship with an "existing *tax-related liability" or a "future *tax-related liability", and thus the citizen can plainly see and understand what must be done in order to comply with the obligation and what might arise through non-compliance.