Michael John Hayes Trading Pty Ltd as trustee of the MJH Trading Trust and Commissioner of Taxation (Taxation) [2023] AATA 3005 (20 September 2023)

Income Tax Assessment Act 1936 (Cth)

Income Tax Assessment Act 1997 (Cth)

BBlood Enterprises Pty Ltd v F. C. of T. & B&F Investments Pty Ltd as Trustee for the Illuka Park Trust v F. C. of T. [2023] FCAFC 89

BBlood Enterprises Pty Ltd v F. C. of T. [2022] FCA 1112

CPH Property Pty Ltd v F. C. of T. [1998] FCA 1276; (1998) 88 FCR 21

Deputy Commissioner of Taxation v Black [1990] FCA 267; (1990) 25 FCR 274

Esquire Nominees Limited v F. C. of T. [1973] HCA 67; (1973) 129 CLR 177

F. C. of T. v Consolidated Press Holdings Ltd (No 1) [1999] FCA 1199; (1999) 91 FCR 524

F. C. of T v Consolidated Press Holdings Ltd [2001] HCA 32; (2001) 207 CLR 235

Lawrence v F. C. of T. [2009] FCAFC 29; (2009) 175 FCR 277

Lawrence v F.C. of T. [2008] FCA 1497

Taxpayer v F.C. of T. [2010] AATA 497

1. The present applications concern whether fully franked dividends paid in May 2010[1] by each of four Hayes Group Operating Companies[2] to the Applicants constituted distributions 'made as part of a dividend stripping operation' within the meaning of s 207-155 of the 1997 Assessment Act.[3]
2. Each of the four Hayes Group Operating Companies had profits available for distribution to shareholders. Each of them also had franking account balances to enable the dividends that were paid to be franked, and each of them paid significant dividends to new shareholders (the Applicants) in respect of newly created and issued shares.
3. The Applicants are companies who act as trustees of four trusts that are treated as companies by the Assessment Acts[4] for some tax purposes. The four (trustee) companies were acquired in February 2010 by members of the Hayes family and shortly thereafter became trustees of trusts that were formed with particular features or attributes (so as to attract the Trading Trust rules[5]) to participate as Trading Trusts in a reorganisation of the Hayes Group[6] late in the 2010 Year.[7]
4. Shortly after the Applicants were formed, in different combinations two of the Applicants each acquired 10 Z Class shares (shares with special rights) for $1 per share in three of the four Hayes Group Operating Companies,[8] and the other two Applicants[9] each acquired 10 Z Class shares for $1 per share in each of the four Hayes Group Operating Companies. The Z Class shares acquired 'proved to be a good bargain'.[10] Later, on the day the Applicants acquired those shares, the four Hayes Group Operating Companies declared and paid fully franked dividends totalling $8,008,459.72 to the holders of the Z Class shares.
5. In their 2010 Year income tax returns, each Applicant included the franked dividend amounts and the associated franking credit amounts in its assessable income and claimed tax offsets[11] on account of those franking credits. The effect of the tax offset was to shelter the franked dividends from tax: in cash flow and economic terms the franked dividends were received free of any tax burden. Each Applicant contends it was entitled to the tax offsets claimed.
6. The Commissioner disagrees. He says that all of the dividends that were paid to the Applicants were distributions made as part of a dividend stripping operation[12] because those dividends were paid pursuant to a scheme that:

(a) was by way of, or in the nature of, dividend stripping; or > > (b) had substantially the effect of a scheme by way of, or in the nature of, dividend stripping,

with the effect that the amounts of the franking credits associated with the dividends are not included in the Applicants' assessable income,[13] and the Applicants are not entitled to tax offsets for these amounts,[14] while the dividends received remain included in the Applicants' assessable incomes.

1. At the core of the dispute is whether the relevant purpose in carrying out the 2010 Hayes Group reorganisation was tax avoidance. The Applicants contend that it was not, and that the purpose was to secure better asset protection features of the asset ownership arrangements within a group of family entities, and to streamline those arrangements. The Commissioner contends the purpose was to avoid tax.
2. The Commissioner does not allege that the transactions were shams. He accepts that the transactions entered into produced the legal and or equitable effect they purport to have produced. Further, the Commissioner has not sought to apply Part IVA of the 1936 Assessment Act to a tax benefit comprising an assumed payment of a dividend to any alternative recipient, or to any amount of tax benefit that may otherwise have arisen for Hayes family members or entities, or to arrangements that allowed loans to be made by entities that were treated as companies for some purposes but not Division 7A[15] purposes.
3. The transactions entered into to pay the challenged dividends to the Applicants and to use the funds representing those dividends after the dividends were paid were of a kind that would naturally attract curiosity. Those transactions were:

(a) designed and/or formulated: > > > (i) by solicitors;[16]; > > > > (ii) having particular regard to various 1936 Assessment Act rules that are not of common application; and > > > > (iii) to pass corporate wealth to an unexpected new owner in an unusual way; > > (b) the subject of professional advice; > > (c) effected by executing documents, entering accounting journals, and executing and passing BPNs;[17] and > > (d) executed in a short space of time, and in a choreographed manner and order. > > > (i) Each Operating Company that issued the newly created Z Class shares observed constitutional and the Corporations Act[18] obligations and offered the new shares first to existing shareholders. Each offer was declined. On the same day that these offers were made and declined, the Applicants took up the opportunity to acquire the previously offered and declined Z Class shares. Dividends were paid on the same day. > > > > (ii) The funds representing the dividends paid were earmarked to be provided by the dividend recipient Applicant to either: > > > > * a Hayes brother (or group of brothers jointly) by way of loan, so he (or they) could repay debts owed to the Operating Company paying the dividend or another related entity; or > > * by way of loan directly back to the Operating Company paying the dividend or another related entity, > > such that the funds represented by the dividend were returned (by way of loan or debt repayment) to the Operating Company that paid the dividend or another related entity. > > > (iii) Each dividend payment, loan or debt repayment transaction was effected by passing a BPN. The dividend payments were effected by passing one or more BPNs with an aggregate face value equal to the dividend amount paid, with each BPN having a face value reflecting the intended next use of the funds represented by the BPN. Ultimately each BPN was passed back to the issuer/obliged party as part of a further transaction, whereupon the BPN being held by its obliged party was cancelled.

4. The transactions were effected in accordance with advice received, and having regard to the evidence, including that of the accounting adviser and tax agent Mr Miller, it can be concluded that the entities that entered into and effected the transactions or the individuals who caused that to happen were to various extents unaware of the finer details of the significance or effect of all of what they were doing and of the relevant taxation and other rules serviced by the form, manner and order of the transactions entered.
5. The parties do not dispute the transactions that were entered into or carried out. Further, they agree that those transactions and the circumstances in which they were entered into or carried out mean that at least some elements of what is necessary to constitute a dividend stripping operation are satisfied. The parties agree:

(a) the four Hayes Group Operating Companies had retained profits (and three of them current Year profits as well); > > (b) had those profits been distributed without changes to shareholding structures, tax liabilities would have arisen; > > (c) new shares in the Hayes Group Operating Companies were acquired by new shareholders (the Applicants); > > (d) dividends were paid to the new shareholders shortly after the Applicants acquired the new shares; > > (e) the dividends were paid following external advice, careful planning of the steps taken with all relevant parties acting in concert; and > > (f) if the requisite tax avoidance purpose is not present then neither of the the s 207-155(a) (first limb) or (b) (second limb) tests apply.

6. The parties dispute the proper answers to three questions.

(a) Whether the Applicants received the dividends free of tax (in the relevant sense)? > > (b) Whether the pre-existing shareholders received non-taxable or capital amounts in full or sufficiently partial substitution for the dividends paid to the new shareholders? > > (c) Whether the required sole or dominant purpose was to avoid tax?

7. Resolution of the dispute calls for an understanding of family asset and business ownership arrangements involving a number of family members, partnership, trust and corporate entities, the advice the family had received, reorganisation steps taken in 2007 and 2010, and their effect. To the extent relevant, the context in which events happened may also permit an understanding of the goals of, and advice given by, the advisors involved in formulating and effecting the transactions in dispute. These factual matters also need to be viewed in the context of what the authorities say the elements of dividend stripping operations are.

1. The reach of s 207-155 is critical to resolution of the present disputes. Section 207-155 is in the following terms:

207-155 When is a distribution made as part of a dividend stripping operation?

A distribution made to a * member of a * corporate tax entity is taken to be made as part of a dividend stripping operation if, and only if, the making of the distribution arose out of, or was made in the course of, a * scheme that:

(a) was by way of, or in the nature of, dividend stripping; or

(b) had substantially the effect of a scheme by way of, or in the nature of, dividend stripping.

1. Section 207-155 is part of a suite of rules directed to prevent manipulation of 'the imputation system in a manner that is not permitted under the income tax law [by]...cancel[ling] the effect of the gross-up and tax offset rules'.[19] Viewed holistically, the dividend imputation rules and their associated integrity rules seek to align the benefit of imputation credits with those who are sufficiently the owners of the shares and in a sense entitled to the company profits.

1. Consistent explanations of the elements of a dividend stripping operation or a scheme of that nature or effect have been given by courts here and in the United Kingdom over an extended period.
2. The Consolidated Press Full Court appeal decision[20] summarised Australian and United Kingdom authorities[21] to the effect that there are six common characteristics of dividend stripping operations:

(a) 'a target company, which had substantial undistributed profits creating a potential tax liability either for the company or its shareholders;' > > (b) 'the sale or allotment of shares in the target company to another party ...;' > > (c) 'the payment of a dividend to the purchaser or allottee of the shares out of the target company's profits;' > > (d) 'the purchaser escaping Australian income tax on the dividend so declared (whether by reason of a s 46 rebate, an offsetting loss on the sale of the shares, or the fact that the shareholders were resident outside Australia);' > > (e) 'the vendor shareholders receiving a capital sum for their shares in an amount the same as or very close to the dividends paid to the purchasers (there being no capital gains tax at the relevant times).' And > > (f) careful planning 'with all the parties acting in concert, for the predominant if not the sole purpose of the vendor shareholders, in particular, avoiding tax on a distribution of dividends by the target company.'[22]

3. The Full Court agreed with and endorsed the Consolidated Press summary in its Lawrence appeal decision[23] and again in its BBlood appeal decision,[24] the latter also endorsing the Lawrence appeal decision.
4. The hallmark among the six characteristics of dividend stripping operations is the tax avoidance purpose, which possibly explains why rules to address dividend stripping operations are now found in general anti-avoidance rules and franking credit anti-manipulation rules and were previously found in a provision denying entitlements to inter-corporate dividend rebates. That characteristic of dividend stripping schemes and operations is pivotal to resolving the present disputes.
5. Further, the emphasis is on the 'purpose of the vendor shareholders, in particular, avoiding tax on a distribution of dividends by the target company'.[25] This emphasis in effect acknowledges that the recipient of a dividend enjoying the benefit of credits, rebates or tax offsets in connection with the dividend is a feature of the tax system. Enjoying this feature of the tax system is not of itself determinative. Subject to meeting applicable at-risk rules, franking credit tax offsets would be available in the same amount to an original shareholder and a new shareholder in a company, so the fact a new shareholder obtains a tax offset benefit, of itself, is not determinative. In the Lawrence primary decision[26] the Court concluded that in both the Plaster Plus and Zinkris schemes '... the profits of the target company would effectively have been disposed of, and would no longer have been a potential source of income tax obligation, either for the taxpayer or for anybody else'[27] and that the amount of loan capital available to the family members associated with the dividend stripping operations was substantially all of the profit stripped from the target companies. There, the focus was the dual features of the original shareholder enjoying the benefit of the amount of the dividend that escaped tax and the relevant profits never being taxable in anyone's hands.
6. A beneficial tax effect (to use a neutral expression) of a series of transactions can be seen in terms of degree. At one end might be deferral of imposition of tax liability for the same taxpayer group without altering its quantum. Moving toward the other end might be shifting a tax liability to a different taxpayer group without altering its quantum. And at the other end might be removal of otherwise taxable amounts from the tax system completely. The closer a given setting is to the complete removal of taxable amounts from the tax system, the easier it will be to find that the requisite tax avoidance purpose is made out. This is particularly so in circumstances where the remaining elements of a dividend stripping operation are present.
7. There are two schools of thought concerning how the relevant purpose is to be determined.

(a) In the BBlood primary decision,[28] Thawley J noted that: > > > (i) Hill J's observations in the Consolidated Press primary decision[29] (namely, that it is relevant to ask what conclusion an objective observer would reach as to why the scheme had taken place) were endorsed by the High Court in its Consolidated Press decision;[30] > > > > (ii) the relevant test is the purpose of the vendor shareholders (who can be taken to include the existing shareholders) of the company pregnant with profits said to underly the dividend stripping operation, see [‎17(f)] above; > > > > (iii) the conclusions of the assumed objective observer must be directed to the purposes of those shareholder entities determined by reference to objective facts and circumstances; > > > > (iv) such an enquiry is but one tool in the process of determining purpose; > > > > (v) there is no reason to exclude evidence of the individuals involved in the transactions concerning their subjective reasons for doing what was done; and > > > > (vi) there isn't anything other than an actual tax avoidance purpose that is relevant.[31] > > (b) In the dividend stripping context, the BBlood Full Court referred to the Consolidated Press Full Court decision[32] and observed that '... whether a scheme is by way of or in the nature of dividend stripping did not involve an enquiry into the subjective purpose of any participant in the scheme. The purpose of the scheme was to be assessed objectively'.[33] The BBlood appeal decision also endorsed the six features of a dividend stripping operation, and suggested caution is required in accepting the conclusion that the second limb (s 207-155(b)) of the definition of a dividend stripping operation could involve an operation both with and without the payment of a dividend - as was endorsed by Thawley J in the BBlood primary decision and as is urged upon the Tribunal in the present matter.

8. The Consolidated Press decisions are important. The underlying dispute concerned the dividend stripping rules in s 177E of the 1936 Assessment Act.[34] In that setting the Commissioner urged upon the Consolidated Press Full Court that:[35]
   1. ... The substantive purpose of the transaction was to confer a capital receipt upon the vendor shareholders which represented, in substance, profits of the UK companies. It was also to enable CPIL(B) to 'strip' the UK companies of their profits. The transaction did not lose its character as a dividend stripping scheme merely because the motive for the transaction was to reorganise a group of companies. It was not a requirement of a dividend stripping scheme that the objective purpose of the scheme be the avoidance of tax by the vendor shareholders.
   2. In the alternative, the Commissioner argued that if, contrary to his submissions, an objective purpose of some kind was required for the operation of s 177E, it was only necessary to establish that the purpose was to enable the purchaser to strip the target of its distributable dividends. Moreover, the relevant purpose did not have to be the sole or dominant purpose; it was sufficient that the relevant purpose be a substantive, or not incidental, purpose of the scheme. A substantive, or not incidental, purpose of this transaction was to enable CPH and MLG to receive capital instead of distributions of profits and to allow CPIL(B) to strip the UK companies of their profits.
   3. In any event, the scheme had 'substantially the effect of a scheme by way of or in the nature of dividend stripping', within the meaning of s 177E(1)(a)(ii), in relation to both UK companies. According to the Commissioner, the characteristics of the scheme identified by him showed that the scheme had the relevant effect. The primary judge had reached a contrary conclusion with respect to CPIL(UK), but his Honour (so it was said) had overlooked the fact that there had been current year profits available for distribution.

in response to which the Full Court said:[36]

1. When the concept of a 'dividend stripping' scheme or arrangement was introduced into the ITAA in 1972, it was on the basis, expressed in the Explanatory Memorandum, that the concept had a widely understood connotation. This was also the basis for the use of the expression 'scheme by way of or in the nature of dividend stripping' in s 177E(1)(a). There is no other explanation for Parliament's disinclination to define or clarify the expression.
2. The widely understood connotation was explained in the pre-1981 case law to which we have referred. The so-called dividend stripping cases invariably had as their dominant, if not exclusive, purpose the avoidance of tax that otherwise would or might be payable by the vendor shareholders in respect of the profits of the target companies. The apparent exceptions, such as Slutzkin, are readily explicable on the basis that the particular scheme, insofar as it involved vendor shareholders, was complete before the dividend stripper began its operations and thus could not itself be described as a dividend stripping operation. The case law preceding the 1981 Act strongly supports the view that Parliament framed s 177E(1)(a) on the basis that dividend stripping operations necessarily involve a predominant tax avoidance purpose.
3. This conclusion is reinforced by the extrinsic materials to which we have also referred. The Explanatory Memorandum and second reading speech accompanying the 1981 Bill emphasised that Part IVA, which includes s 177E, was concerned with 'tax avoidance arrangements that ... are blatant, artificial or contrived'. According to the Explanatory Memorandum, Part IVA was not designed to catch arrangements of a normal business or family kind. Section 177E itself was to be a 'self-contained code, within the framework of Part IVA" and was to deal with "dividend-stripping schemes of tax avoidance and certain variations on such schemes'.
4. These carefully formulated observations, in our opinion, clearly indicate that s 177E was intended to apply only to schemes which can be said to have the dominant purpose of tax avoidance. The section was not intended, in our view, to apply to a 'scheme' entered into or carried out primarily for business or other purposes unconnected with avoidance of tax, even if the scheme is implemented in a manner that produces taxation advantages: Spotless, at 425, per McHugh J. (We recognise, of course, that a taxpayer may have the dominant purpose of avoiding tax consistently with the pursuit of commercial gain in the course of carrying on a business: Spotless, at 415.) Since the section is directed at vendor shareholders participating in or benefiting from dividend stripping schemes, the required tax avoidance purpose is ordinarily that of enabling the vendor shareholders to receive profits of the target company in a substantially (if not entirely) tax-free form, thereby avoiding tax that would or might be payable if the target company's profits were distributed to shareholders by way of dividends.
5. We accept that the concept of a tax avoidance 'purpose' is itself ambiguous. Depending on the statutory context, it can refer to the subjective intentions of particular persons. This was held to be the case, for example, with s 80B(5)(c) of the ITAA, which referred to an arrangement being entered into 'for the purpose, or for purposes that included the purpose of enabling the company to take into account' certain losses: K Porter & Co Pty Ltd v Federal Commissioner of Taxation (1977) 19 ALR 510, at 517, per Stephen and Murphy JJ; Federal Commissioner of Taxation v Students World (Australia) Pty Ltd [1978] HCA 1; (1978) 138 CLR 251, at 266-267, per Mason J.
6. Section 177D of the ITAA, on the other hand, in terms posits an objective test. The question posed by that provision is whether, having regard to the eight objective factors specified in s 177D(b), a reasonable person would conclude that the taxpayers entered into or carried out the scheme for the dominant purpose of enabling the taxpayers to obtain a tax benefit in connection with the scheme: Spotless, at 422. The expression 'dominant purpose' (which is the sense in which "purpose" is used in s 177D(b): see s 177A(5)) means 'the ruling, prevailing, or most influential purpose': Spotless, at 416.
7. In our view, the first limb of s 177E(1) embraces only a scheme which can be said objectively to have the dominant (although not necessarily the exclusive) purpose of avoiding tax. The requirement of a tax avoidance purpose flows from the use by Parliament of the undefined expression 'a scheme by way of or in the nature of dividend stripping'. What is important is the nature of the scheme, not the subjective motives or intentions of any of the participants or the beneficiaries. The purpose of the scheme is to be assessed from the perspective of the reasonable observer, having regard to the characteristics of the scheme and the objective circumstances in which the scheme was designed and operated.
8. The Consolidated Press Full Court:

(a) observed[37] that the objective examination of the circumstances of the relevant transaction had been correctly considered by the primary judge, Hill J, to have been a corporate reorganisation effected for commercial purposes albeit there were advantageous taxation effects. Amounts that what may otherwise have been received as taxable dividends were received as a non-taxable capital sum. In those circumstances the dominant purpose of the scheme was not to enable shareholders to avoid paying tax on dividends from company profits; and > > (b) noted:[38]

1. ... The documentation attending the scheme was consistent with the object of restructuring the group so as to overcome the threat of double taxation, while still maintaining a future stream of dividends to the Australian controllers. Had the scheme not been entered into, the UK companies would have been exposed to double taxation in respect of future earnings. By contrast, as the primary judge pointed out, the UK companies were under no immediate obligation to distribute their accumulated profits. 2. The scheme involved the distribution of assets of far greater value than the accumulated and current year profits of the UK companies. As we have observed, this fact suggests that the scheme is not one by way of or in the nature of dividend stripping. In the circumstances of this case, it reinforces the conclusion that the dominant purpose of the scheme was to avoid threatened double taxation, rather than to convert the taxpayer's entitlement to dividends into receipt of a capital sum. This conclusion is also reinforced by the fact that the taxpayer received assessable capital gains as the consideration for the transfer of the shares in the UK companies. 3. For these reasons, the scheme was not by way of or in the nature of dividend stripping and therefore was not within the first limb of s 177E(1)(a) of the ITAA.
2. In the Consolidated Press primary decision, Hill J noted that any tax advantages to the stripper (e.g. rebates, the contemporary equivalent being tax offsets for franking credits) are not an essential ingredient in a dividend stripping scheme, a connection between the stripper and the shareholder is not critical either, and what is required is an enquiry as to whether a reasonable observer looking at the transaction would conclude that the essential character of the transaction was dividend stripping. And what differentiates a dividend stripping scheme from a scheme which is not, e.g. a mere reorganisation, is whether 'it could be predicated that it would only have taken place to avoid the shareholders in the target company becoming liable to pay tax on dividends out of the accumulated profits of the target company'.[39]
3. The Consolidated Press High Court decision did not comment on the methodology adopted to determine the purposes of the transactions, but the High Court did:

(a) endorse the result that both Hill J and the Full Court reached concerning absence of tax avoidance;[40] > > (b) describe the tax avoidance purpose as the hallmark of a dividend stripping scheme;[41] and > > (c) note that if there was a difference in approach between Hill J and the Full Court in formulating the tax avoidance predication test, the Full Court's formulation: > > that s l77E was intended to apply only to schemes which can be said to have the dominant purpose of tax avoidance; the required tax avoidance purpose ordinarily being that of enabling the vendor shareholders to receive profits of the target company in a substantially tax-free form, thereby avoiding tax that would or might be payable if the target company's profits were distributed to shareholders by way of dividends[42]

1. Informed by the authorities noted above, the evidence led[43] permits the findings of fact set out below upon which the present applications are determined.

1. Following the 2010 Year reorganisation, the Hayes Group comprised:

(a) the Hayes family being Cecil (now deceased) and Shirley and their four sons Michael, John, Bryan and Paul;[44] > > (b) a number of trust entities,[45] namely; > > > (i) the Applicants (formed and/or acquired in 2010): > > > > * the MJH Trading Trust (with Michael John Hayes Trading Pty Ltd as trustee); > > * the JPH Trading Trust (with John Hayes Trading Pty Ltd as trustee); > > * the BGH Trading Trust (with Bryan Hayes Pty Ltd as trustee); and > > * the PAH Trading Trust (with Paul Hayes Trading Pty Ltd as trustee); > > > > (ii) the family trusts (formed and/or acquired in 2007): > > > > * Michael Hayes Family Trust (with Michael Hayes Family Pty Ltd as trustee); > > * John Hayes Family Trust (with John Hayes Pty Ltd as trustee); > > * Bryan Hayes Family Trust (with Bryan Hayes Pty Ltd as trustee); and > > * Paul Hayes Family Trust (with Paul Hayes Pty Ltd as trustee); > > > > (iii) the fixed trusts (formed and/or acquired in 2010): > > > > * MJH Fixed Trust (with Michael Hayes Family Pty Ltd as trustee); > > * JPH Fixed Trust (with John Hayes Pty Ltd as trustee); > > * BGH Fixed Trust (with Bryan Hayes Pty Ltd as trustee); and > > * PAH Fixed Trust (with Paul Hayes Pty Ltd as trustee); > > > > (iv) the rural unit trusts (formed and/or acquired in 2010): > > > > * MJH Rural Unit Trust (with Michael Hayes Family Pty Ltd as trustee); > > * JPH Rural Unit Trust (with John Hayes Pty Ltd as trustee); > > * BGH Rural Unit Trust (with Bryan Hayes Pty Ltd as trustee); and > > * PAH Rural Unit Trust (with Paul Hayes Pty Ltd as trustee); > > > > (v) CWH Family Trust (with Marclef[46] as trustee); > > > > (vi) Hayes Discretionary Trust (with Grawlex[47] as trustee); and > > > > (vii) OilsPlus Unit Trust (with Grawlex as trustee); > > (c) The four Hayes Group Operating Companies (excluding companies that only acted as trustees of trusts), namely: > > > (i) Malacorp, whose shareholders were John, Bryan, Paul and Shirley Hayes; > > > > (ii) Fuentes, whose shareholders were Michael, John and Bryan Hayes; > > > > (iii) MJB&P, whose shareholders were Michael, John, Bryan and Paul Hayes; and > > > > (iv) Hayes Investments, whose shareholders were Michael John Hayes Family Pty Ltd, John Hayes Pty Ltd, Bryan Hayes Pty Ltd and Paul Hayes Pty Ltd; > > (d) three superannuation funds, namely > > > (i) MJH Superannuation Fund (with Marclef as trustee); > > > > (ii) Malacorp Pty Ltd Superannuation Fund (with Malacorp as trustee); and > > > > (iii) Lady Hayes Superannuation Fund (Self-Managed Superannuation Fund for Julie Kathleen, Julie Margaret, Narelle and Tanya); > > (e) partnerships, namely, > > > (i) Hayes Partnership, whose partners were Michael, John, Bryan and Cecil (now deceased) Hayes; > > > > (ii) MJBP Hayes Rural Partnership, whose partners were Michael Hayes Family Pty Ltd, John Hayes Pty Ltd, Bryan Hayes Pty Ltd and Paul Hayes Pty Ltd; > > > > (iii) B&J&P&M Hayes Partnership, whose partners were Michael, John, Bryan, and Paul Hayes; and > > > > (iv) Haysen Partnership, whose partners were CMW Family Trust and Haymor 17 Pty Ltd.

1. The Hayes Group has had external legal and accounting service providers and advisors:

(a) Tim Hine & Co (Mr Timothy Hine) (accounting services); > > (b) PMW[48] (Mr Raymond Miller) (accounting services); > > (c) CPT Lawyers[49] (Mr Andrew Kermode); and > > (d) Cleary Hoare Solicitors (Messrs loannou and Bailey).

2. Before 2009, CPT Lawyers handled both personal legal affairs of the Hayes family and the business affairs of the Hayes Group. The nature of the work was fairly minor and transactional. The work included preparing wills, conveyancing and business transactions such as litigation and debt recovery actions. CPT Lawyers did not provide the Hayes Group or individuals within it with asset protection, succession planning or taxation advice.[50]
3. Cecil Hayes engaged Mr Hine, sometime around 1992 to carry out both his personal and business accountancy work. The other Hayes family members, and over time Hayes Group entities also engaged Mr Hine.[51] Mr Hine provided advice concerning structuring new business ventures and property purchases, the formation of partnerships, settlement of trusts, and incorporation of corporate entities.[52] Mr Hine's advice was accepted and acted upon if it appeared to the Hayes family that '[the advice] sounded rational and suited their needs.'[53]
4. This arrangement continued until Mr Hine closed his accountancy practice in 2007 to take up the role of Chief Financial Officer at Oilsplus[54] of which Hayes Group member, Grawlex (in its capacity as trustee for the Hayes Discretionary Trust), was the majority unitholder.[55]
5. In the first half of 2007 Mr Hine advised Michael and Bryan that he was moving away from his accountancy practice to take up the position as Chief Financial Officer for Oilsplus. On the recommendation of CPT Lawyers, the Hayes Group engaged Mr Miller of PMW to take over their accountancy work.[56] Mr Miller has remained as accountant to the Hayes Group and family since.[57]
6. Mr Miller was asked to undertake a review of the anything that needed to be done before the end of the 2007 Year. Mr Miller conducted that review and reported back to the Hayes brothers. In summary Mr Miller had initial concerns related to the:

(a) risks associated in the transport, fuel storage and distribution and primary production industries in which the family businesses operated; > > (b) direct and indirect ownership of assets by the Hayes brothers as individuals; and > > (c) lack of clarity of inter-entity loans, loans to shareholders and associates and unpaid present entitlements.[58]

7. Mr Miller made a series of recommendations following that review, including that:[59]

(a) each Hayes brother have a discrete family trust for which a new corporate trustee would be established (Family Trusts) 'to eliminate the possibility of personal liability to each family should any part of the family operation be attacked by outside creditors or other persons who may wish to sue the family operation'; > > (b) each family member's salary and wage income from the business operations be held at $35,000 each (which was less than 10% of total income for each family member) to allow for further superannuation deductions; > > (c) a separate superannuation fund be set up for contributions made on behalf of each family members' spouse; and > > (d) further discussions be held regarding distributions to family members' children.

8. Mr Miller's objectives were to 'spread the wealth within the families, develop conduits to enable the funds owing to, or by, each family to be traced, while protecting the risk aspect and limiting the impact of Division 7A.'[60]
9. Implementing this advice, the following steps were taken:

(a) discrete family trusts[61] were established for each brother to receive distributions and dividends; > > (b) while departing from the recommended amounts to be paid by way of salary, the wages and total income of each Hayes brother in the 2008 Year were as set out in Table 1.[62]

(c) during the 2007 Year, Lady Hayes Superannuation Fund was set up and $54,847 was contributed for each of Julie Kathleen, Julie Margaret and Narelle;[63]

(d) 'children of the Specified Beneficiaries' were included as 'General Beneficiaries' of each of the Family Trusts, which were executed on 27 June 2007;[64]

(e) Hayes Investments was established to receive trust distributions from the CWH Family Trust and Hayes Discretionary Trust; and

(f) significant concessional contributions were made to superannuation funds.[65]

1. The arrangements to establish family trusts with corporate trustees for each brother were identical in form (with necessary adaptation to identify the relevant Hayes brother and his family). The arrangements for the Michael Hayes Family Trust (which is typical of all four Family Trusts) were as follows:

(a) Michael Hayes Family Pty Ltd[66] was incorporated on 25 June 2007; > > (b) the share capital of Michael Hayes Family Pty Ltd was two shares fully paid at $1 issue price. The sole shareholder and director was Michael Hayes;[67] > > (c) the Michael Hayes Family Trust was settled on 27 June 2007; > > (d) the settlor was Mr Miller; > > (e) the trustee was Michael Hayes Family Pty Ltd; and > > (f) the specified beneficiaries were Michael Hayes and his wife and the general beneficiaries were their children.[68]

1. In addition to the flexibility introduced by the Family Trusts Mr Miller came to the view superannuation contributions would result in tax savings for the Hayes brothers. Said to be 'to that end', was a recommendation that a company be incorporated as an investment vehicle to receive trust distributions.
2. Hayes Investments was incorporated on 25 June 2007.

(a) The share capital was eight shares fully paid at $1 issue price. The ordinary members were the trustees of the Family Trusts. > > (b) The directors are the Hayes brothers.[69]

1. While the steps taken shortly after Mr Miller began advising the Hayes Group looked to the future, or stopped the perceived problem from compounding, Mr Miller remained concerned regarding the risk presented both by the nature of the businesses undertaken by entities within the Hayes Group and the quantum of retained earnings within the Hayes Group Operating Companies which were not addressed by any of his recommendations.

Engaging Cleary Hoare and Cleary Hoare advice

1. In late 2009 Mr Miller attended the Count Financial Services Annual Conference in Adelaide.[70] Mr Ioannou, a principal at the law firm Cleary Hoare presented at the conference. His presentation was generally directed to asset protection strategies. The presentation included discussion of an asset protection structure in or by which trading companies with retained profits moved those profits to non-trading entities keeping them safe from the usual risks of business while allowing the trading companies continued access to the relevant funds for working capital.[71]
2. After hearing Mr Ioannou's presentation, Mr Miller then arranged a meeting between representatives of Cleary Hoare, Michael and Bryan Hayes, Mr Hine and himself on 20 January 2010. To enable Cleary Hoare to prepare for the meeting, Mr Miller provided Cleary Hoare with information relating to the structure and financial position of the Hayes Group.[72] Mr Miller wrote:

As per our recent correspondence please find attached to this letter a summary of all the entities relating to Hayes Group outlining the following information for each entity:

• Shareholders/Partners
• Percentage of holdings or shares held
• Profit for the 2009 financial year
• Retained Earnings at 30 June 2009
• Property Owned

Furthermore to this please also find attached a diagram outlining the above information as well as a copy of the Financial Report for the Year Ended 30 June 2009 for each of these entities. > > Could you please review the above provided information and offer guidance regarding estate planning and asset protection. > > Additionally, recent conversations have also been held regarding CWH Family Trust. As you are already aware, there is currently an unpaid present entitlement in the Trust, with debit loans to associates also present. These loans have been on the balance sheet of CWH Family Trust for a number of years, dating back further than 5 years. > > We have requested assistance from you in regards to how to treat this matter. Therefore to assist you in understanding this matter further, please find attached a summary of the balance sheet for CWH Family Trust for the past five years, outlining the movement between each year. [73]

1. Messrs Ioannou and Bailey met with Mr Miller, Michael and Bryan Hayes and gave preliminary advice. After that meeting Mr Miller spoke with Michael Hayes and told him;

the advice was above [his] technical level and [he] would be relying on Cleary Hoare as the experts. [He] had confidence in their work based on Ioannou's presentation at the conference, [his] colleague's comments about Cleary Hoare and the discussion at the office earlier that day.[74]

2. Messrs Ioannou and Bailey proposed a formal engagement at a projected cost of $232,100. Mr Miller was surprised by the quote and gave evidence that:

I received a client agreement from Cleary Hoare and arranged a meeting with Michael and Bryan. I later met with Michael and Bryan to discuss the arrangement and the fee agreement. The biggest point for discussion was the fee of approximately $200,000. The proposed fee was a surprise to everyone including me. It was much higher than we had anticipated or that I had experienced for professional advice. I explained that the advice was foreign to me. I had never used a public trading trust and wasn't aware of them. I explained that technically this work was above our level of expertise and that the work involved a lot of detail. I explained that I had reference­ checked Cleary Hoare and those references confirmed them to be a reputable firm. I can't recall who proposed it but one of us rationalised the fee on the basis that it was like an insurance premium of $50,000 for each brother's family and everyone agreed that it sounded sensible.[75]

3. The engagement was accepted as proposed at the projected cost. The retainer agreement projected that fees of $202,100.00 would relate to:

1. Dealing with the Oilsplus Unit Trust so that it has the power to distribute to discretionary beneficiaries. > > 2. Dealing with issues in relation to asset protection and the protection of both the retained earnings within entities within [the] group and the corresponding value [of interest held] in those entities [by] individuals. > > 3. Addressing loans and entitlements between your current structures so as to simplify interactions between your current structures.

and $30,000.00 would relate to 'taking instructions, attending interviews with clients and provision of advice' with up to 20% of the pre GST fee remitted to PMW for accountancy work involved in the restructure. The cover letter suggested that approximately 70% of the Cleary Hoare fee would be directly tax deductible as tax advice. The basis for that representation is questionable.

1. Messrs Ioannou and Bailey gave advice in a letter dated 22 January 2010[76] setting out recommendations emerging from the 20 January 2010 meeting. The recommendations had five broad topics, namely:

(a) Oilsplus Unit Trust and its power to distribute to discretionary beneficiaries; > > (b) protection of: > > > (i) assets and retained earnings within entities of the Hayes Group; and > > > > (ii) the corresponding value of the interests in the entities held by the brothers as individuals; > > (c) loans and entitlements between the current structures; > > (d) written advice on stamp duty, capital gains tax, Division 7A, self-managed superannuation fund's investment in the trading trusts, value shifting provisions and asset protection work in relation to the Corporations Act and Bankruptcy Act; and > > (e) personal asset holding planning and succession planning within the Hayes Group.

(a) for the Oilsplus Unit Trust, Cleary Hoare recommended that the Trust Deed be updated to incorporate discretionary provisions to maximise commercial and taxation flexibility; > > (b) for the protection of the assets and retained earnings within entities of the Hayes Group and corresponding value of interests in entities held by individuals, Cleary Hoare recommended: > > > (i) creating new entities (which when implemented were the Applicant Trading Trusts with the Family Trusts and Fixed Trusts as unitholders); > > > > (ii) creating a new class of shares (Z Class) in the Operating Companies and issuing those Z Class shares to the new entities; > > > > (iii) the Operating Companies declaring and paying discretionary dividends on the Z Class shares; and > > > > (iv) the Z Class shareholder lending amounts back to the Operating Companies; > > (c) for the loans and entitlements between the current structures, Cleary Hoare recommended: > > > (i) the trusts in the group pay the total amount of unpaid present entitlements to corporate beneficiaries ($4.6 million), which would be funded via entering into loan agreements and repaying the loans over seven years using dividends declared; > > > > (ii) incorporating Public Trading Trusts that are taxed at the same rate as a company but still regarded as a trust eligible for discount capital gains; and > > > > (iii) having the Public Trading Trusts lend funds to the borrowers so they could use the funds to repay their loans; and > > (d) for the personal asset holding planning and succession planning within the Hayes group, Cleary Hoare recommended that: > > > (i) each of the Hayes brothers gift a sum of money equal to the value of the equity in the real property that they held in their own name or in a partnership with others to their respective Family Trusts, by way of a BPN; and > > > > (ii) the gifted sum be lent by the Family Trust back to the Hayes brother, by passing the BPN.[77]

Steps taken to implement the Cleary Hoare advice

1. The Cleary Hoare advice and recommendations concerning protecting assets and retained earnings are central to the present applications. There was a degree of overlap with dealing with the loans and entitlements between the current structures. Implementing those recommendations entailed the following steps.
2. On 16 February 2010 four companies were incorporated, each with a single director and shareholder as set out in Table 2.

1. On 24 February 2010 four groups of events occurred:

(a) four fixed trusts were formed, with trustees and beneficiaries as set out in Table 3.[78]

Michael Hayes Family Pty Ltd in its capacity as trustee of the Michael Hayes Family Trust, as to a 95% share;

Grawlex in its capacity as trustee of the MJH Superannuation Fund, as to a 5% share

John Hayes Pty Ltd in its capacity as trustee of the John Hayes Family Trust, as to a 95% share;

Malacorp as trustee of the Malacorp Pty Ltd Superannuation Fund, as to a 5% share

Bryan Hayes Pty Ltd in its capacity as trustee of the Bryan Hayes Family Trust, as to a 95% share;

Malacorp in its capacity as trustee of Malacorp Pty Ltd Superannuation Fund, as to a 5% share

Paul Hayes Pty Ltd in its capacity as trustee of the Paul Hayes Family Trust, as to a 95% share;

Malacorp in its capacity as trustee of the Malacorp Pty Ltd Superannuation Fund, as to a 5% share

(b) the four Trading Trusts (the Applicants) were formed, with trustees and unitholders as set out in Table 4.[79]

Michael Hayes Family Pty Ltd as trustee for the Michael Hayes Family Trust, as to 80 units

Michael Hayes Family Pty Ltd as trustee of the MJH Fixed Trust, as to 20 units

John Hayes Pty Ltd as trustee for the John Hayes Family Trust, as to 80 units

John Hayes Pty Ltd as trustee of the JPH Fixed Trust, as to 20 units

Bryan Hayes Pty Ltd as trustee for the Bryan Hayes Family Trust, as to 80 units

Bryan Hayes Pty Ltd as trustee of the BGH Fixed Trust, as to 20 units

Paul Hayes Pty Ltd as trustee for the Paul Hayes Family Trust, as to 80 units

Paul Hayes Pty Ltd as trustee of the PAH Fixed Trust, as to 20 units

(c) four rural unit trusts were formed with trustees and unitholders as set out in Table 5.[80]

Michael John Hayes Trading Pty Ltd in its capacity as trustee of the MJH Trading Trust

John Hayes Trading Pty Ltd in its capacity as trustee of the JPH Trading Trust

Bryan Hayes Trading Pty Ltd in its capacity as trustee of the BGH Trading Trust

Paul Hayes Trading Pty Ltd in its capacity as trustee of the PAH Trading Trust

(d) a new partnership was formed between the trustees of the four rural units trusts (the New Hayes Partnership). The New Hayes Partnership continued the business operated by the Old Hayes Partnership with the livestock, plant and equipment used by the Old Hayes Partnership.

1. In the lead up to 7 May 2010, Mr Miller prepared a series of calculations, that included of debts owed by the Hayes brothers either individually or collectively to related parties. These calculations would form the basis of preparation of BPNs that would be used to pay dividends and then be used to create loans and/or retire pre-existing debt.
2. On 7 May 2010 two of the new Trading Trusts (the Applicants) acquired 10 Z Class shares in three of the Hayes Group Operating Companies and the other two new Trading Trusts each acquired 10 Z Class shares in the four Hayes Group Operating Companies as noted above. The steps taken to issue these shares reveal the choreographed nature of the process and the precision in the planning. In each case, at consented to short notice the Operating Company's constitution was amended to allow for the issue of Z Class shares for $1 per share. After the constitutions were amended, on the same day:

(a) offers were made to existing shareholders to take up Z Class shares; > > (b) all offers were declined; > > (c) the new Trading Trusts were offered the opportunity to take up 10 Z Class shares; and > > (d) those offers were accepted.

3. Also on 7 May 2010, notices of intention to pay dividends in respect of the Z Class shares were given to shareholders by at least two of the Operating Companies,[81] consents to that course of action were given. Significant dividends were declared and made payable that day by all four Operating Companies in respect of the Z Class shares.
4. Tables 6 sets out the relevant profits and the aggregate dividends paid. All dividends were fully franked.

*Note: the profits to the date of the dividend were not disclosed in Mr Miller's first affidavit. The 2010 Year financial statements reveal 2010 Year profits after tax of $117,482.38, and retained profits at 30 June 2010 of $19,455.39, so, when the 30 June 2009 retained profits are taken into account, it can be accepted that there were sufficient profits to the date of the dividend to pay the amount of the dividend paid. Mr Miler's second affidavit refers to various parties' interests in aggregate MJB&P profits of $309,000.00.

1. Table 7 sets out the amounts of the dividends paid by each Hayes Group Operating Company to each holder of Z Class shares (each Applicant).

1. The process by which the dividends were paid referred to below also reveals the choreographed nature of the process and the precision in the planning.
2. As noted above the dividends paid by the Hayes Group Operating Companies were all satisfied by passing one of more BPNs with an identifying number. The total dividend paid to an Applicant Trading Trust was, at times, discharged by two BPNs. Splitting the dividend into these smaller amounts facilitated execution of the plan to use parts of some of the gross dividends in different ways. Parts of some dividends were to be advanced by the recipient Applicant directly back to the BPN issuer (usually the dividend-paying Hayes Group Operating Company) by way of loan. Other parts of some dividends were to be advanced by way of loan to one or more of the Hayes brothers and used by them to repay existing loan balances. Ultimately all BPNs were passed either by way of loan to or repayment of debt owed to the issuer of the BPNs.

1. Table 8 sets out the dividends paid by Malacorp and the BPNs to effect payment of those dividends.

1. Table 9 sets out the dividends paid by Fuentes and the BPNs passed to effect payments of those dividends.

Intermediate Recipient and Basis[83]

1. BPNs 1A, 2A, 3A totalling $2,833,287 were issued by Marclef also and were passed to Fuentes. The Marclef accounts[84] reveal that between 30 June 2009 and 30 June 2010 it discharged obligations owed to the Fuentes of $2.373 million and Fuentes became indebted to Marclef to the extent of $0.460 million. BPNs 1A, 2A and 3A were passed in a circle back to Marclef and cancelled. The endorsement on the back of those BPNs suggests that they were passed on from Fuentes by way of payment of dividend. Mr Miller's evidence was that only BPNs 1B, 2B, 3B, 1C, 2C and 3C issued by Fuentes were passed to pay dividends to the Applicants.[85] The sum of the BPN 1B, 2B, 3B, 1C, 2C and 3C face values equalled the dividend declared and reported in Fuentes' accounts. The sum of the dividend declared and reported in Fuentes' accounts and the other dividend amounts received by the Applicants from the other Operating Companies equals the total of the income reported as dividends from related companies in the Applicants' accounts. While the Commissioner identified that all of the BPNs including those numbered 1A, 2A, and 3A passed by way of payment of dividend, he made no submission concerning the impact of the aggregate face values of those BPNs exceeding (by doubling) the amount of dividend otherwise shown.
2. The conclusion to be reached is that the annotation on BPNs 1A, 2A and 3A was mistaken and that they formed a part of a collateral reorganisation of inter-entity loans that was effected at the same time and not part of the process of payments of dividends by Fuentes.

1. Table 10 sets out the dividends paid by MJB&P and the BPNs to effect payment of those dividends.

Intermediate Recipient and Basis[86]

1. For MJB&P the documentation also includes a BPN 1A with a value of $77,250.00. If the value of BPN 1Ais added to the value of the BPNs listed in Table 10, the aggregate value of BPNs exceeds the amount of the dividend that was declared by $77,250.00. It seems that the dividend declared in favour of the Michael Hayes Trading Trust was $77,250 and not $154,500 as would be suggested by the total on the face value of BPNs 1A and 2A. The Michael Hayes Trading Trust included only $77,250 in its dividend income and the total of all dividend income from MJB&P included in the Applicants' income equals the $309,000 which is the same amount as the dividend declaration. Further, Mr Miller's evidence was that like the John Hayes Trading Trust, all of the Michael Hayes Trading Trust dividend was applied against loans.[87] The proper conclusion to reach is that the second BPN in favour of the Michael Hayes Trading Trust was a mistake or not a payment of a dividend.

1. Table 11 sets out the dividends paid by Hayes Investments and the BPNs passed to effect payment of those dividends. The Hayes Investments dividends were funded by BPNs issued by Grawlex (as trustee for Hayes Discretionary Trust) which repaid amounts it owed to Hayes Investments. Hayes Investments received the loan repayment by way of these BPNs which were used by Hayes Investments to pay dividends to three of the newly formed Trading Trust Applicants in respect of the Z Class shares.
2. The dividend statements for the dividends paid by Hayes Investments reveal an aggregate dividend of $1,958,700 was paid in respect of the Z Class shares, i.e., $489,675 per shareholder. The 2010 Year Tax Return for Hayes Investments also discloses this amount. The Hayes Investments 2010 Year financial statements disclose that dividends of $1,958,701.72 were paid. Each Applicant's financial statements shows a dividend receipt total that reflects a 25% share of $1,958,701.72, and the BPNs passed to effect payment of the Hayes Investments dividends totalled $1,958,701.72. The difference between the tax return total and the Hayes Investments financial statements appears to be the result of rounding down (or ignoring cents) the amount of the dividend in the dividend statement.

Intermediate Recipient and Basis[88]

1. The beginning of the flow of funds for the dividends paid by Hayes Investments was a loan repayment of $1,958,701 by Grawlex to Hayes Investments effected by the BPNs 1A, 2A, 3A and 4A. The end of the flow of dividend funds was in each case, a loan by the dividend recipient to Grawlex. The BPNs ending with their issuer were then cancelled. In effect, in addition to removing retained earnings from Hayes Investments' balance sheet/statement of financial position, Grawlex was refinanced with new lenders, the Applicants, replacing the former lender Hayes Investments.

1. Tables 12 and 13 are a summary of the value of BPNs that were received by the Applicants and advanced by way of loan, directly back to the BPN issuer (namely, the Operating Company or in the case of Hayes Investments, Grawlex, which issued the BPNs that funded the Hayes Investments dividend payments) and the value of the BPNs that were passed to one or more Hayes brothers before being passed back to the BPN issuer. Table 12 summarises those details from the perspective of the dividend paying Operating Company. Table 13 summarises those details from the perspective of the Applicant Trading Trusts.

BPNs passed directly from dividend recipient Applicant to issuer

BPNs passed from dividend recipient Applicant to one or more Hayes brother and then to issuer

Proportion of dividends received loaned to the Hayes brothers (%)

1. In aggregate, the amounts the Hayes brothers received by way of loans from the Applicants were significantly less than the dividends paid to the Applicants.
2. The Commissioner notes that the reason or basis for passing BPNs from the Applicants to the Hayes brothers is not endorsed on those notes. Having said that he does not advance any proposition that the terms on which they were passed was other than as contended for, namely by way of loan. In fact, the Commissioner relies on the loans to make good his contention that the pre-existing family members received capital or non-taxable money in lieu of taxable dividends. Mr Miller's evidence was that the BPNs passed from the Applicants to the Hayes brothers by way of loan and that he did calculations to have BPNs with face values aligned with the intended secondary uses to be advanced by way of loan and then used to discharge other debts.
3. Table 14 shows the current year profits, retained earnings and net assets of each Applicant for the 2010 Year and as at 30 June 2010. There were not distributions by the Applicants of any amounts (including the BPNs used to pay dividends) in the sense of there being any disbursal, bestowal, or dealing out of the Applicants' property or assets.

For the 2010 Year and as at 30 June 2010 (as applicable)

Profit from Ordinary Activities after Income Tax ($)

1. In and for its first year of operation, in reality the period between formation in February 2010 to 30 June 2010, with the period between February and May 2010 a period of no activity of any material kind, each Trading Trust Applicant had net assets equal to its Profit from Ordinary Activities after Income Tax as shown in Table 14. Retention of net assets equal to retained profits in the first year of operation for each Applicant, a year when each Applicant received BPNs in payment of dividend entitlements and passed some of those BPNs to one or more Hayes brother, is entirely consistent with Mr Miller's evidence that the passing of those BPNs to the Hayes brothers was by way of loan, notwithstanding that there was not an endorsement of that reason on the relevant BPNs. The proper conclusions to reach in these circumstances are that those BPNs that did pass through the Trading Trusts to the Hayes brothers, passed in the manner described by Mr Miller (by way of loan) and were used to retire debt in circumstances where new debt owed by the Hayes brothers to the Trading Trust arose.
2. Implementing the Cleary Hoare personal asset holding plans entailed:

(a) estimating of each Hayes brother's equity in their real property assets; > > (b) each Hayes brother executing a BPN for the amount in (a); > > (c) each Hayes brother gifting the BPN to his related/connected Family Trust; > > (d) each Family Trust lending the funds represented by the gift back to the Hayes brother donor; and > > (e) cancelling the BPN being because it was in the possession of the issuer.

3. The debts on account of the loans from the Family Trust to the respective Hayes brother were not secured to as not to attract duty. The effect of this sequence of events was to create a creditor for each Hayes brother who would stand equally with other unsecured creditors. The degree of asset protection created by those steps could be affected by the quantum of the amounts owed to other unsecured creditors.

1. The Hayes Group had insurance that included public liability insurance.

1. The Applicants led evidence that implementing the Cleary Hoare advice simplified the structure of the group.[89] Evidence was also led that in later years, loans and group arrangements were further rationalised.

[There were] ...four schemes [which] were the means by which the [Hayes] brothers distributed retained earnings that had been previously accumulated in four [Operating] Companies[90] that the brothers controlled in carrying on the family's farming, livestock transport, and fuel distribution businesses.[91]

The retained earnings of the [Operating] Companies were distributed on 7 May 2010, but were not paid by way of a cash dividend to the ordinary shareholders, as one might ordinarily expect. Instead, the retained earnings were distributed in an elaborate, complicated and contrived means by which each of the [Operating] Companies paid dividends to the Trading Trusts, being newly created Z class shareholders in the [Operating] Companies, by delivery of [BPNs]. Those [BPNs] were then delivered back to each of the [Operating] Companies that had issued them, either directly or via their ordinary shareholders and associates, in a convoluted sequence of transactions that ended with all of the [BPNs] being cancelled.[92]

... the [BPNs] in the schemes travelled in one of two loops. The first loop involved the relevant [BPN] being received by one of the Trading Trusts for the payment of the dividend and then returned to the issuing [Operating] Companies (by way of loan) and then cancelled. The second loop involved the particular [BPN] being received by one of the Trading Trusts for payment of the dividend. Then this [BPN] was received by one or more of the individuals (by way of loan), and then the individuals delivered that [BPN] back to the issuing [Operating] Companies to repay existing (usually, the subject of Division 7A) loans that the individuals owed to that [Operating] Company. Upon receipt, the [Operating] Company would cancel the [BPN]. Those individual taxpayers, involved in the second loop, did not return those amounts in their individual tax returns or pay any top-up tax on such amounts, but yet used those amounts to discharge existing loans. In previous years, such loan payments had been made by dividends declared by the relevant [Operating] Company.[93]

The Trading Trusts were involved in schemes, the dominant purpose of which was to extract the accumulated, retained earnings in each of the [Operating] Companies in a manner that would cause the brothers, being the ordinary shareholders to receive the benefit of those profits but to avoid tax on that distribution.[94]

... applying an objective consideration, the reason the schemes were implemented was to avoid tax.[95]

1. Three of the Commissioner's submissions are pivotal in the present setting:

(a) that the Operating Companies' existing shareholders and their associates: > > > (i) avoided tax by receiving amounts which were not income (the amounts advanced by way of loan represented by the BPNs) that were used to discharge loans that were subject to Division 7A conditions; and > > > > (ii) that the Operating Companies' existing shareholders and their associates received 'a capital sum for the shares in an amount the same as or very close to the dividends paid to the purchasers'. In this regard the Commissioner says:

the [existing shareholders and their associates] are the entities beneficially entitled to the assets of the Trading Trusts, and the transfer of capital (by the retained earnings, in the form of the fully franked dividend) from the Private Companies to the Trading Trusts could constitute a capital sum being received by the shareholders as compensation for the Private Companies profits being paid to the Z class shareholders;

in addition, the [existing shareholders and their associates] were provided, by delivery, the value of some of the bearer promissory notes by the Trading Trusts, which they used to discharge loans that the Private Companies had made to them, prior to the 2010 income year. Such amounts were received by the [existing shareholders and their associates] were not income and hence not returned;

the [existing shareholders and their associates] of the [Operating] Companies and ... are the entities that are ultimately beneficially entitled to the assets of the Trading Trusts;

the [Operating] Companies' [existing shareholders and their associates] were thereby able to discharge loans and the Private Companies were able to remove those loans from their balance sheets[96]

(b) 'the scheme [was] carefully planned, with all the parties acting in concert, for the predominant if not the sole purpose of the vendor shareholders, in particular, avoiding tax on a distribution of dividends by the target company.'[97] In this regard the Commissioner says that the schemes were contrived, were not required to provide asset protection for various reasons including separate business owning entities, the existence of adequate insurance, minimal if any reduction in complexity of group asset ownership arrangements and inter-entity loans.

(a) witness evidence ought not be accepted unless corroborated by contemporaneous documents; and > > (b) the Cleary Hoare advice added a significant number of new entities to the structure and complexity to it.

(a) the schemes were implemented to achieve improved asset protection and better and diversified asset ownership arrangements; > > (b) the Applicants received taxable dividends and the entitlement to tax offsets on account of franking credits does not change that assessment; and > > (c) the latent tax liability in the pre-existing retained profits (that were moved from the Operating Companies to the Applicants) remains or continues to be a latent tax liability that will come home when the Trading Trusts' profits are distributed beyond the corporate environment. The 2010 reorganisation left those profits in a corporate tax environment. A subsequent reorganisation in 2016 also kept those profits in a corporate tax environment. The fact that tax liability still awaits makes a critical difference in the required analysis.

1. The Commissioner sought findings concerning the evidence. Great effort was made by the Commissioner to discredit the Hayes brothers. Given the Full Court's decision in BBlood, their personal evidence is not a great moment. If it were necessary to have particular regard to their evidence, and if it were the case that the matter would turn upon its acceptance or otherwise, the conclusion properly reached is that their evidence concerning the transactions in issue and the motivation for them should be accepted. The Hayes brothers had engaged an accountant and then a second accountant who gave them advice and they followed that advice. The second accountant accepted that in some matters he was somewhat out of his depth and introduced the Hayes brothers to a firm perceived to be experts in their area. That firm gave advice. The Hayes brothers accepted that advice. It is not an uncommon phenomenon for people in the community to engage advisors, trust their advisors and do what their advisors tell/advise them to do. So much was effectively recognised even in a corporate setting in the Consolidated Press decisions[98] where the purposes of a corporate entity, notably a corporate entity with significant resources, could be found in the purposes of their advisors without whom they might not have any purpose at all. The Tribunal accepts that the Hayes brothers acted in accordance with the advice that they were given and accepted that that advice was proper.
2. Paul and John Hayes call for particular note. They left financial and similar matters to Michael and Bryan Hayes, and generally followed whatever approach to business and investment activity that their brothers recommended. They had no real knowledge or memory of the detail of the transactions and in some cases the meetings held and documents executed. It is difficult to see how a person's evidence that they have little or no memory and/or knowledge ought be rejected unless it is corroborated by contemporaneous documents. Absence of memory or knowledge is not usually accompanied by contemporaneous documents corroborating that fact.
3. The Hayes brothers' evidence generally, to the extent that they had any independent knowledge and understanding of the transactions that they caused entities to enter into, was entirely consistent with the documents that were executed and with the advice that they had been provided by Mr Miller and by Cleary Hoare.
4. The Applicants sought to impress on the Tribunal and sought findings that they lived frugally and did not have great need to draw upon the Operating Companies' reserves. In support, evidence was led that necessities, such as new car tyres, might be given as special occasion gifts by a Hayes brother to his wife. The topic involves questions of degree and perception: one person's frugality may be another person's indulgence. The Commissioner sought to contradict or challenge those assertions in part by reference to the amount of taxable income disclosed by at least one of the Hayes brothers. In this regard, a measure of taxable income is not necessarily the same as a measure of cash flow in or for the same period, particularly for taxpayers who find themselves with loans that are subject to Division 7A compliant terms and receive dividends that are offset against loan repayment obligations. Such taxpayers may legitimately perceive that they earn, or have, less than their taxable incomes would suggest.
5. Given frugality is an ambiguous concept subject to differing perceptions, and its limited relevance to the matters in dispute, it is not necessary to make any findings as encouraged by the Applicants.
6. Mr Miller's evidence was that the 2010 steps laid a foundation for further rationalisation of the Hayes Group structure in later years, and it was beneficial from an organisational sense. Whether organisational arrangements are complex or not calls for a degree of subjective opinion. Those working with and managing structures may have a perception that differs from others looking in from the outside. And it is possible that additional entities may well make organisation and understanding easier for those with that need just as organisation of an office or warehouse may be improved by having additional containers to house things that need a home. Given the subjective nature of opinion on topics like the present, no material weight is to be afforded to the contention that the February and May 2010 steps simplified the structure. It was open to Mr Miller to have the view that it did, and there is no reason to conclude that his view was not honestly held. The Tribunal does not reject the contention, as the Commissioner has sought, but Mr Miller's view is not of material weight in the analysis required.

Were the dividends paid by the Operating Companies dividends paid as a part of a dividend stripping operation?

1. As noted above, there are only three elements of a dividend stripping operation that are disputed, namely whether:

(a) the dividends in the Applicants' hands were taxed; > > (b) the original shareholders (as represented by the Hayes brothers) received any, and if so what, capital sum as a substitute for taxable dividends; and > > (c) the schemes had the requisite tax avoidance purpose.

The dividends were not taxed in the Applicants' hands

1. The Applicants' proposition that the dividends paid to them by the Operating Companies attracted taxation in the relevant sense is misconceived. They contend that the dividends were included in assessable income upon which tax liability is calculated, but acknowledge, and indeed claim, the entitlement to a tax offset, the very attribute in dispute in these matters. They say, nevertheless, that tax liability was attracted and that a tax offset in the relevant way is different to a rebate.
2. It might be true that in years past, when a zero-tax liability did not constitute an assessment, a rebate may have been seen and recognised differently in the tax system when compared with a tax credit. And it can be accepted today that a tax offset is the equivalent of a tax credit. For present purposes, namely analysis of whether there is a dividend stripping operation, a tax credit, a tax offset and a tax rebate should all be seen in the same light. The authorities concerning what constitutes a dividend stripping operation acknowledge that the dividend in question can escape taxation by a variety of means, one of which was the availability of what was once known as a s 46 rebate. The relevant test is to look to whether the dividend received, after associated credits or deductions or rebates, and in today's parlance tax offsets, bears taxation liability in a net sense. In a net sense, a fully franked dividend received by a corporate taxpayer who is entitled to the tax offset on account of the imputation credits does not bear taxation. That dividend remains eligible for consideration as to whether the dividend was received as part of a dividend stripping operation.
3. If a fully franked dividend (with corresponding tax offset entitlements) is to be regarded as attracting tax liability as contended for by the Applicants, and if the existence of that tax liability meant there was no dividend stripping operation, it is difficult to see how rules to prevent entitlements to tax offsets (such as those under current consideration) could ever operate.
4. The Applicants' contentions cannot be accepted.

The original shareholders (as represented by the Hayes brothers) did not receive any capital sum as a substitute for taxable dividends paid

1. The proportion of the dividends that made their way to the Hayes brothers in the form of loans was 30.46% as noted above. Even if loan funds could be regarded as a substituted receipt of capital, 30.46% is well short of the extent of the substitute required to be a dividend stripping operation.
2. In the present matters:

(a) the majority of what was paid in the form of a dividend to the Applicants was returned to the original source of the dividend (the Operating Companies) by way of inter-entity loan. The dividends formed part of the system of continuing finance provided to trusts and companies in the Hayes Group. The majority of the money did not make its way back to the original shareholders who maintained substantially the same economic interests in the Hayes Group both before and after the 2010 reorganisation; and > > (b) a minority of the dividend money passed to the Hayes brothers (either individually or jointly) and was then used to retire or repay existing debt. That minority of the dividend money could be seen to be a refinancing of pre-existing debt. The Hayes brothers either individually or jointly assumed new liabilities in substitution for earlier liabilities owed to Hayes Group entities. They did not in any relevant sense receive any capital. They assumed dollar-for-dollar debt obligations in substitution of pre-existing debt obligations.

The requisite tax avoidance purpose was not present

1. These applications call for consideration of whether the dividend stripping rules can apply to a series of transactions that:

(a) did not release for the pre-scheme owners of the target companies any capital sum in the traditional sense; > > (b) did not involve any distribution to or for the benefit of the pre-scheme owners of the target companies in the sense contemplated by the definition of dividend in s 6(1) of the 1936 Assessment Act, i.e. in that there was no dealing out or bestowal; [99] > > (c) did not release to the pre-scheme owners of the target companies any of the retained profits at the core of the dividend stripping operations alleged; > > (d) did not release profits from the target companies in a manner that eliminated future taxation burdens arising in respect of those profits; > > (e) were entered into and executed after a change in accounting advisor and receipt of asset protection advice; and > > (f) preserved within the same family group: > > > (i) ownership of all original entities and some additional entities; > > > > (ii) the same partly taxed profits; and > > > > (iii) the same latent future tax liability in respect of the accrued pre transaction profits,

such that when those profits are released to the Hayes Group owners of the Applicants beyond a corporate tax setting, the same or substantially equivalent tax liability will be attracted as would have been attracted had those profits been distributed to those Hayes Group owners directly.

1. The critical consideration that arises out of what the Consolidated Press Full Court said, as endorsed by the BBlood Full Court decision, is that an objective assessment of the transactions is required. The Consolidated Press Full Court endorsed Hill J that it is necessary to look to the essential character of the transaction and in doing that it was of most significance to look to the position of the original shareholders and to see whether they had received in capital, or non-taxable, or preferred taxable form, what would otherwise have been taxable dividends.
2. As noted above, the relevant profits were not transformed to become non-taxable amounts, or moved beyond the Hayes family. In that sense the present matters are very different to the circumstances in Lawrence where the Primary Judge's findings, not reversed on appeal, were that the relevant profits were dealt with in a way that they were no longer liable to be taxed in the hands of anyone as noted above.
3. Alternative motivators are advanced by the Applicants, namely asset protection and what might be described as better and simpler organisation of asset and loan arrangements within a family group. Such motivations are not determinative because the question to be addressed is whether there was the requisite tax avoidance purpose. Alternative motivators are only relevant to the extent that they demonstrate that the requisite tax avoidance purpose is absent. In a setting where the requisite tax avoidance purpose cannot be demonstrated or shown, because, for example, tax is not avoided in the requisite sense, then the existence of other motivators does not have the same impact in the analysis.
4. Nevertheless, the series of transactions which included the dividends at the core of the present applications was entered into at the same time other steps were taken to reduce the Hayes brothers' personal wealth by first gifting amounts approximately equal to their equity in real property and then borrowing those gifted funds back. These transactions did not have any tax consequence.
5. Notions of asset protection advanced as the purpose for which a transaction is entered into or a scheme is undertaken or effected are, at times, appropriately regarded with caution, scrutiny and even scepticism. This Tribunal has in the past chosen not to be influenced by unwarranted and overly repetitive such contentions and has opted to be guided by contemporaneous documents and prevailing circumstances.[100] In Lawrence[101] where the conclusion as to tax avoidance was not challenged on appeal, the Primary Judge was not satisfied that asset protection was the dominant purpose of the Plaster Plus or Zinkris scheme arrangements as noted above.
6. The Hayes Group's circumstances are somewhat different from those before the Court in Lawrence. First it is clear that upon a change of accountant the situation of the group was identified, and steps were taken to begin distributing money to discretionary trusts and superannuation funds rather than the Hayes brothers individually. Second, the Hayes brothers and at least some of their entities were involved in businesses where it was possible for exposures to arise. Third, at least one of those entities had previously been sued. Fourth the relevant schemes entered into and carried out were the result of their new accountant attending a conference, participating in a session directed at asset protection, albeit asset protection without attracting additional tax liability, which led to the firm Cleary Hoare being engaged to assist the Hayes family in the manner that they did. Sixth, the assistance provided by Cleary Hoare was also directed to the Hayes brothers' personal positions and steps were taken to divest themselves personally of wealth, in addition to the four Operating Companies' position which had accumulated profits represented by assets and/or wealth. Seventh, while the Lawrence circumstances did involve loans being made to members of the family associated with the companies whose profits had been stripped out, in both the Plaster Plus and Zinkris schemes '... the profits of the target company would effectively have been disposed of, and would no longer have been a potential source of income tax obligation, either for the taxpayer or for anybody else.'[102] Eighth, the amount of loan capital available to the family members associated with the dividend stripping operations was substantially all of the profit stripped from the target companies.
7. In the present circumstances, most of the amounts of the dividends paid by the Operating Companies to the Applicants was returned by way of loan by the Applicants to the Operating Companies or trusts connected with them and were not made available to the pre-scheme shareholders in the Operating Companies or their associates. Further the profits underlying the dividends paid to the Applicants, being corporate entities, remain profits of a company owned within the same family group available and liable to tax upon distribution to the ultimate owners thereof namely the same Hayes families with the same tax effect. The profits were not removed from the Australian income tax system at all.
8. It may be that the suite of steps taken may be perceived to have been somewhat over-engineered, and/or expensive for the particular circumstances in which the Hayes Group found itself. In Hayes Investments' case, given its ownership and the activities it undertook, that proposition would have considerable force. However, in circumstances where any tax position can be seen to be neutral, the over-engineered aspect of the asset protection work that was undertaken does not require a different conclusion or a conclusion that the contended-for purpose ought to be rejected. Hayes Investments was included in the group of Operating Companies and the four entities were approached as a block. Relevant purposes can be considered in the same manner. To the extent permissible, this conclusion is consistent with one of the conditions the Hayes brothers had in going into the 2010 restructure, namely that it was to be tax neutral. This condition is consistent with the effect of the steps taken. For example:

(a) security was not taken for the loans from the Hayes brothers' personal trusts to each Hayes brother so as to ensure duty liabilities did not arise; and > > (b) the dividend paid by Fuentes was $2,833,287 when it had profits of $3,217,064 as at the date of the dividend because the dividend paid was limited to the availability of franking credits at the time.

The dividends paid to the Applicants are not to be taken to have been made as part of a dividend stripping operation

(a) the Consolidated Press predication test; > > (b) the focus on the vendor, or original, shareholders; > > (c) the absence of: > > > (i) transformation of taxable profits; > > > > (ii) relocation of those taxable profits beyond the Hayes family; and > > > > (iii) any compensating non-taxable receipt, usually found in dividend stripping operations; and > > (d) the setting in which the transactions occurred including the 2007 transactions,

the conclusion that follows is that the sole or dominant purpose of the transactions was not to avoid tax on the dividends paid, and that the dividends paid to the Applicants by the Hayes Group Operating Companies were not part of either a dividend stripping operation or a scheme of that nature or effect.

1. Shortfall interest charge is in dispute. Given the conclusions as to whether or not there was a dividend stripping operation it is unnecessary to consider the objection in relation to shortfall interest charged because the proper outcome to be reached is that there is no shortfall.

1. The Commissioner's objection decisions are set aside and in lieu thereof the objections are allowed in full.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F D O'Loughlin KC

............................[sgd]............................................

ANNEXURE A: EVIDENCE AND OTHER MATERIALS PROVIDED TO THE TRIBUNAL

ANNEXURE A: EVIDENCE AND OTHER MATERIALS PROVIDED TO THE TRIBUNAL

Memorandum and Articles of Association of Malacorp Pty Limited

Constitution of M, J, B & P Pty Ltd ACN 123 058 257

Memorandum and Articles of Association of Fuentes Pty Ltd ACN 080 164 389

Constitution of MBJP Hayes Investments Pty Limited ACN 126 162 436

Malacorp Pty Ltd Superannuation Fund - Deed of Trust

Malacorp Pty Ltd Superannuation Fund - Deed of Variation

Registers of Unit Holders and Unit Certificates

Australian Securities and Investment Commission (ASIC) extract for Fuentes Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for Malacorp Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for MBJP Hayes Investments Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for MJB&P Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for Grawlex Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for Bryan Hayes Trading Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for John Hayes Trading Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for Michael John Hayes Trading Pty Ltd

Australian Securities and Investment Commission (ASIC) extract for Paul Hayes Trading Pty Ltd

Promissory note 1A issued by Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust to Fuentes Pty Ltd ACN 080 164 389

Loan agreement between Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust and Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust

Promissory note 1B issued by Fuentes Pty Ltd ACN 080 164 389 to Michael John Hayes Trading Pty Ltd 142 083 878 as trustee of the MJH Trading Trust

Promissory note 1C issued by Fuentes Pty Ltd ACN 080 164 389 to Michael John Hayes Trading Pty Ltd 142 083 878 as trustee of the MJH Trading Trust

Promissory note 1D issued by Fuentes Pty Ltd ACN 080 164 389 to Michael John Hayes Trading Pty Ltd 142 083 878 as trustee of the MJH Trading Trust

Loan agreement between Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust and Fuentes Pty Ltd ACN 080 164 389

Promissory note 2A issued by Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust to Fuentes Pty Ltd ACN 080 164 389

Loan agreement between Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust and Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust

Promissory note 2B issued by Fuentes Pty Ltd ACN 080 164 389 to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Promissory note 2C issued by Fuentes Pty Ltd ACN 080 164 389 to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Promissory note 2D issued by Fuentes Pty Ltd ACN 080 164 389 to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Loan agreement between Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust and Fuentes Pty Ltd ACN 080 164 389

Promissory note 3A issued by Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust to Fuentes Pty Ltd ACN 080 164 389

Loan agreement between John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust and Marclef Pty Ltd ACN 071 992 446 as trustee of the CWH Family Trust

Promissory note 3B issued by Fuentes Pty Ltd ACN 080 164 389 to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Promissory note 3C issued by Fuentes Pty Ltd ACN 080 164 389 to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Promissory note 3D issued by Fuentes Pty Ltd ACN 080 164 389 to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Loan agreement between John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust and Fuentes Pty Ltd ACN 080 164 389

Promissory note 1A issued by Malacorp Pty Ltd to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Loan agreement between Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust and Malacorp Pty Ltd

Promissory note 1B issued by Malacorp Pty Ltd to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Promissory note 1C issued by Malacorp Pty Ltd to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Promissory note 2A issued by Malacorp Pty Ltd to Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Loan agreement between Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust and Malacorp Pty Ltd

Promissory note 2B issued by Malacorp Pty Ltd to Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Promissory note 2C issued by Malacorp Pty Ltd to Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Promissory note 3A issued by Malacorp Pty Ltd to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Loan agreement between John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust and Malacorp Pty Ltd

Promissory note 3B issued by Malacorp Pty Ltd to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Promissory note 3C issued by Malacorp Pty Ltd to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Promissory Note no. 1A issued by Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust to MBJP Hayes Investments Pty Ltd ACN 126 162 436

Loan agreement between Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust and Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust

Promissory Note no. 2A issued by Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust to MBJP Hayes Investments Pty Ltd ACN 126 162 436

Loan agreement between Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust and Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust

Promissory Note no. 3A issued by Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust to MBJP Hayes Investments Pty Ltd ACN 126 162 436

Loan agreement between Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust and Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust

Promissory Note no. 4A issued by Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust to MBJP Hayes Investments Pty Ltd ACN 126 162 436

Loan agreement between John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust and Grawlex Pty Ltd ACN 080 401 092 as trustee of the Hayes Discretionary Trust

Promissory Note no. 1A issued by MJB&P Pty Ltd ACN 123 058 257 to Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust

Loan agreement between Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust and MJB&P Pty Ltd ACN 123 058 257

Promissory Note no. 1B issued by MJB&P Pty Ltd ACN 123 058 257 to Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust

Promissory Note no. 2A issued by MJB&P Pty Ltd ACN 123 058 257 to Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Loan agreement between Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust and MJB&P Pty Ltd ACN 123 058 257

Promissory Note no. 2B issued by MJB&P Pty Ltd ACN 123 058 257 to Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Promissory Note no. 3A issued by MJB&P Pty Ltd ACN 123 058 257 to Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Loan agreement between Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee for PAH Trading Trust and MJB&P Pty Ltd ACN 123 058 257

Promissory Note no. 3B issued by MJB&P Pty Ltd ACN 123 058 257 to Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Promissory Note no. 4A issued by MJB&P Pty Ltd ACN 123 058 257 to John Hayes Trading Pty Ltd ACN 142 083 869 as trustee for the JPH Trading Trust

Loan agreement between John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust and MJB&P Pty Ltd ACN 123 058 257

Promissory Note no. 4B issued by MJB&P Pty Ltd ACN 123 058 257 to John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Financial Records for Private Companies, Trusts and Other Entities

MJH Income Tax Reconciliation for year ended 30 June 2010

MJH Income Tax Reconciliation for year ended 30 June 2011

B G Hayes, J P Hayes, P A Hayes & Hayes Family Management Trust

Hayes Partnership/CW, BG, JP & MJ Hayes ABN 82 393 853 341

B & J & P & M Hayes Partnership ABN 19 261 251 991

BGH Trading Trust Tax Return 2010 (Applicant Amendment) attaching CGT Schedule

BGH Trading Trust Tax Return 2010 (Audit Amendment)

BGH Trading Trust Tax Return 2010 (Objection Amendment)

BGH Trading Trust Tax Return 2011 (Applicant Amendment)

BGH Trading Trust Tax Return 2012 (Original Return)

JPH Trading Trust Tax Return 2010 (Applicant Amendment) attaching CGT Schedule

JPH Trading Trust Tax Return 2010 (Audit Amendment)

JPH Trading Trust Tax Return 2010 (Objection Amendment)

JPH Trading Trust Tax Return 2011 (Applicant Amendment)

JPH Trading Trust Tax Return 2012 (Original Return)

MJH Trading Trust Tax Return 2010 (Applicant Amendment) attaching CGT Schedule

MJH Trading Trust Tax Return 2010 (Audit Amendment)

MJH Trading Trust Tax Return 2010 (Objection Amendments)

MJH Trading Trust Tax Return 2011 (Applicant Amendment)

MJH Trading Trust Tax Return 2012 (Original Return)

PAH Trading Trust Tax Return 2010 (Applicant Amendment) incorporating CGT Schedule

PAH Trading Trust Tax Return 2010 (Audit Amendment)

PAH Trading Trust Tax Return 2010 (Objection Amendment)

PAH Trading Trust Tax Return 2011 (Applicant Amendment) attaching CGT Schedule

PAH Trading Trust Tax Return 2012 (Original Return)

Fuentes Pty Ltd Tax Return 2011 attaching CGT Schedule

Hayes Discretionary Trust Tax Return 2010 attaching CGT Schedule

Hayes Discretionary Trust Tax Return 2011 attaching CGT Schedule

B & J & P & M Hayes Partnership ABN 19 261 251 991

Hayes Partnership Tax Return 2010 attaching Rental Property Schedule

Hayes Partnership/CW, BG, JP & MJ Hayes ABN 82 393 853 341

Cecil W & Michael J & John P & Brian Hayes Partnership Tax Return 2010

Cecil W & Michael J & John P & Brian Hayes Partnership Tax Return 2011

Cecil W & Michael J & John P & Brian Hayes Partnership Tax Return 2012

MJH Super Fund Tax Return 2011 (taxpayer return) attaching CGT and Loss Schedules

MJH Super Fund Tax Return 2011 (objection amendment)

MJH Super Fund Tax Return 2012 (taxpayer amendment) attaching CGT and Loss Schedules

MJBP Hayes Rural Partnership Tax Return 2011 (Applicant amendment)

MJBP Hayes Rural Partnership Tax Return 2012 attaching Capital Allowance Schedule

Marclef Unit Trust Tax Return 2010 attaching Property Schedule

Marclef Unit Trust Tax Return 2011 attaching CGT and Property Schedules

Malacorp Pty Ltd Super Fund Tax Return 2011 (taxpayer lodged) attaching Loss Schedule

Malacorp Pty Ltd Super Fund Tax Return 2011 (audit amendment)

Malacorp Pty Ltd Super Fund Tax Return 2011 (objection amendment)

Malacorp Pty Ltd Super Fund Tax Return 2012 (taxpayer lodged) attaching CGT and Loss Schedules

Malacorp Pty Ltd Super Fund Tax Return 2012 (audit amendment)

Malacorp Pty Ltd Super Fund Tax Return 2013 (audit amendment)

Malacorp Pty Ltd Super Fund Tax Return 2013 attaching CGT and Loss Schedules

Malacorp Pty Limited Tax Return 2010 attaching Capital Allowance Schedule

Malacorp Pty Limited Tax Return 2011 attaching Capital Allowance and CGT Schedules

Malacorp Pty Limited Tax Return 2012 attaching Capital Allowance Schedule

Shareholder Dividend Statement - Class Z franked dividend issued to Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to John Hayes Trading Pty Ltd as trustee for JPH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to John Hayes Trading Pty Ltd as trustee for JPH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust

Shareholder Dividend Statement - Ordinary franked dividend issued to Cecil Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Shirley Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Bryan Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to John Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Paul Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Cecil Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Shirley Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Bryan Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to John Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Paul Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Cecil Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Shirley Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Bryan Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to John Hayes

Shareholder Dividend Statement - Ordinary franked dividend issued to Paul Hayes

Shareholder Dividend Statement - Class Z franked dividend issued to Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to John Hayes Trading Pty Ltd as trustee for JPH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to John Hayes Trading Pty Ltd as trustee for JPH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust

Shareholder Dividend Statement - Class Z franked dividend issued to Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust

Company Resolutions and Issue of Z Class Shares

Bundle of documents received in relation to issue of Z Class Shares in Fuentes Pty Ltd comprising Resolution of directors of Fuentes Pty Ltd and including:

Notice of Extraordinary General Meeting of Shareholders

Resolution to amend Company Constitution

Notice to Fuentes Pty Ltd that Michael John Hayes declined offer to take up Z Class Shares

Resolution of the sole director of John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust to apply for Z class shares

Application for shares from John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Resolution of Fuentes Pty Ltd to accept application for Z class shares of John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Share certificate issued to John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Resolution of the sole director of Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust to apply for Z class shares

Application for shares from Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust

Resolution of Fuentes Pty Ltd to accept application for Z class shares of Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust

Share certificate issued to Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust

Resolution of the sole director of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust to apply for Z class shares

Application for shares from Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Resolution of directors of Fuentes Pty Ltd to accept application for Z class shares of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Share certificate issued to Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Notice of intention to declare a dividend to "Z" class shareholders

Shareholder's Consent signed by Bryan Gregory Hayes

Resolution of directors of Fuentes Pty Ltd to declare dividends to "Z" class shareholders

Resolution of directors of Fuentes Pty Ltd to accept Promissory Note 1B from Michael John Hayes Trading Pty Ltd ACN 142 083 878 as trustee of the MJH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Resolution of directors of Fuentes Pty Ltd to accept Promissory Note 2B from Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Resolution of the sole director of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust to loan the dividend amount to Fuentes Pty Ltd by way of Promissory Note 2B

Resolution of directors of Fuentes Pty Ltd to enter a loan agreement with Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Resolution of directors of Fuentes Pty Ltd to accept Promissory Note 3B from John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Bundle of documents received in relation to issue of Z Class Shares in Malacorp Pty Ltd comprising Resolution of directors of Malacorp Pty Ltd and including:

Notice of Extraordinary General Meeting of Shareholders

Resolution to amend Company Constitution

Resolution of the sole director of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust to apply for Z class shares

Application for shares from Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Resolution of directors of Malacorp Pty Ltd to accept application for Z class shares of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Share certificate issued to Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Resolution of the sole director of Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust to apply for Z class shares

Application for shares from Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Resolution of Malacorp Pty Ltd to accept application for Z class shares of Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Share certificate issued to Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Resolution of the sole director of John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust to apply for Z class shares

Application for shares from John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Resolution of Malacorp Pty Ltd to accept application for Z class shares of John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Share certificate issued to John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Resolution of directors of Malacorp Pty Ltd to declare dividends to "Z" class shareholders

Notice of intention to declare a dividend to "Z" class shareholders

Shareholder's Consent of Cecil Hayes, signed by his attorneys

Shareholder's Consent of Shirley Hayes, signed by her attorneys

Shareholder's Consent signed by Bryan Gregory Hayes and Paul Andrew Hayes

Resolution of directors of Malacorp Pty Ltd to pay dividends to "Z" class shareholders

Resolution of the sole director of Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust to loan the dividend amount to Malacorp by way of Promissory Note 1A

Resolution of directors of Malacorp Pty Ltd to enter a loan agreement with Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust

Resolution of directors of Malacorp Pty Ltd to accept Promissory Note 1A from Bryan Hayes Trading Pty Ltd ACN 142 083 850 as trustee of the BGH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Resolution of the sole director of Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust to loan the dividend amount to Malacorp by way of Promissory Note 3A

Resolution of directors of Malacorp Pty Ltd to enter a loan agreement with Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust

Resolution of directors of Malacorp Pty Ltd to accept Promissory Note 2A from Paul Hayes Trading Pty Ltd ACN 142 083 887 as trustee of the PAH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Resolution of the sole director of John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust to loan the dividend amount to Malacorp by way of Promissory Note 3A

Resolution of directors of Malacorp Pty Ltd to enter a loan agreement with John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust

Resolution of directors of Malacorp Pty Ltd to accept Promissory Note 3A from John Hayes Trading Pty Ltd ACN 142 083 869 as trustee of the JPH Trading Trust as payment of the loan, to execute receipt, and to cancel the Promissory Note

Grawlex Pty Ltd ACN 080 401 092 as trustee for Hayes Discretionary Trust

Memorandum of resolutions of directors for the year ending 30 June 2010

Memorandum of resolutions of directors for the year ending 30 June 2011

Memorandum of resolutions of directors for the year ending 30 June 2012

Memorandum of resolutions of directors for the year ending 30 June 2013

Marclef Pty Ltd ACN 071 992 446 as trustee for CWH Family Trust

Memorandum of resolutions of directors for the year ending 30 June 2010

Memorandum of resolutions of directors for the year ending 30 June 2011

Memorandum of resolutions of directors for the year ending 30 June 2012

Memorandum of resolutions of directors for the year ending 30 June 2013

Formal notice to give evidence issued to Bryan Hayes pursuant to section 264 of the Income Tax Assessment Act 1936

Formal notice to give evidence issued to John Hayes pursuant to section 264 of the Income Tax Assessment Act 1936

Formal notice to give evidence issued to Michael Hayes pursuant to section 264 of the Income Tax Assessment Act 1936

Formal notice to give evidence issued to Paul Hayes pursuant to section 264 of the Income Tax Assessment Act 1936

Audit Position Paper, Responses and Audit Reasons for Decision

Notification of audit letter sent to Malacorp Pty Limited

Notification of audit letter sent to Fuentes Pty Ltd

Request for information sent to the BGH Trading Trust

Request for information sent to the JPH Trading Trust

Request for information sent to the MJH Trading Trust

Request for information sent to the PAH Trading Trust

Request for information sent to Malacorp Pty Limited

Revised request for information sent to the BGH Trading Trust

Revised request for information sent to the JPH Trading Trust

Revised request for information sent to the MJH Trading Trust

Request for information sent to the PAH Trading Trust

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's request for information dated 28 March 2014 sent to Fuentes Pty Ltd attaching:

Annexure 1-Hayes entity structure (reproduced at T221)

Annexure 2-Financial Statements (reproduced at T96, T98, T104, T105, T116-T123T127-T129, T110- T142, T131,)

Annexure 3-Constitutions, Articles of Association and Memorandum of Understanding (reproduced at T2, T3, T4)

Annexure 5-Shareholder dividend statements together with additional Shareholder Dividend Statement (reproduced at T148-T150 and T169T176))

Annexure 6-(reproduced at T46-T63, T76-T95) together with diagrams prepared by Pigot Miller Wilson

Annexure 8-Franking account documents (reproduced at T99)

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's request for information dated 28 March 2014 sent to Malacorp Pty Ltd and attaching:

Annexure 1 - Hayes entity structures, Share Certificates and ASIC Company extract for Malacorp Pty Limited ACN 003 476 257

Annexure 2 - Shareholder dividend statements (reproduced at T151-T168)

Annexure 3 - Diagram showing dividends to Z class shares

Annexure 4 - Malacorp profit and loss statement for the year ended 30 June 2011 (reproduced at T101)

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's revised request for information dated 28 March 2014 to BGH Trading Trust and attaching:

Annexure 1 - Financial Report years ended 30 June 2010 and 2011 (reproduced at T106 and T107)

Annexure 2-Financial Report year ended 30 2012 (reproduced at T108)

Annexure 3-Income tax reconciliation for the year ended 30 June 2010

Annexure 4-Income tax reconciliation for the year ended 30 June 2011 Annexure 5-(reproduced at T5)

Annexure 6-(reproduced at T318) Annexures 8 & 9-(reproduced at T25)

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's revised request for information dated 28 March 2014 to JPH Trading Trust and attaching :

Annexure 1 - Financial Report years ended 30 June 2010 and 2011 (reproduced at T109-T110)

Annexure 2-Financial Report year ended 30 2012 (reproduced at T111)

Annexure 3-Income tax reconciliation for the year ended 30 June 2010

Annexure 4-Income tax reconciliation for the year ended 30 June 2011 Annexure 5-(reproduced at T6)

Annexure 6-(reproduced at T338) Annexures 8 & 9-(reproduced at T26)

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's revised request for information dated 28 March 2014 to PAH Trading Trust and attaching:

Annexure 1 - Financial Report years ended 30 June 2010 and 2011 (reproduced at T113-T114)

Annexure 2-Financial Report year ended 30 2012 (reproduced at T115)

Annexure 3-Income tax reconciliation for the year ended 30 June 2010

Annexure 4-Income tax reconciliation for the year ended 30 June 2011 Annexure 5-(reproduced at T8)

Annexures 8 & 9-Unit Holder Register (reproduced at T28)

Letter from Ray Miller of Pigot Miller Wilson responding to the Commissioner's revised request for information dated 28 March 2014 to MJH Trading Trust and attaching:

Annexure 1 Financial Report years ended 30 June 2010 and 2011 (reproduced at T112-T112A)

Annexure 2-Financial Report year ended 30 2012 (reproduced at T112B)

Annexure 3-Income tax reconciliation for the year ended 30 June 2010 (reproduced at T112BC)

Annexure 4-Income tax reconciliation for the year ended 30 June 2011 (reproduced at T112D)

Annexures 8 & 9-(Unit Holder Register reproduced at T27)

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information

Email from Ray Miller of Pigot Miller Wilson to Yvonne Warner (ATO) in relation to request for information dated 14 May 2014

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information

Email from Ray Miller of Pigot Miller Wilson to Yvonne Warner (ATO) attaching Bryan Hayes Family Trust Deed (reproduced at T13)

Email from Ray Miller of Pigot Miller Wilson to Yvonne Warner (ATO) attaching John Hayes Family Trust Deed (reproduced at T14)

Email from Ray Miller of Pigot Miller Wilson to Yvonne Warner (ATO) attaching Paul Hayes Family Trust Deed (reproduced at T16)

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information in relation to information sent on 17 December 2013

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information in relation to the MJBP Hayes Rural Partnership

Email from Gurpreet Mander (ATO) to Ray Miller of Pigot Miller Wilson requesting further information

Email from Ray Miller of Pigot Miller Wilson to Yvonne Warner (ATO) attaching:

Letter dated 10 July 2014 in response to Commissioner's email dated 20 June 2014

Letter dated 10 July 2014 in response to Commissioner's email dated 19 June 2014

Email from Yvonne Warner (ATO) to Julie Watson of Pigot Miller Wilson

Email chain between Yvonne Warner (ATO) and Ray Miller of Pigot Miller Wilson providing response to request for information and requesting further information

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information

Email from Justin Walker of Pigot Miller Wilson to Yvonne Warner (ATO) attaching:

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson requesting further information

Email chain between the Commissioner and Pigot Miller Wilson containing further information request and response

Email from Yvonne Warner (ATO) to Ray Miller of Pigot Miller Wilson attaching:

Formal notice to produce documents relating to Malacorp Pty Ltd and related entities, issued pursuant to section 264 of the Income Tax Assessment Act 1936

Formal notice to produce documents relating to Fuentes Pty Ltd and related entities, issued pursuant to section 264 of the Income Tax Assessment Act 1937

Email from Candice Ralston of Pigot Miller Wilson to Yvonne Warner (ATO) attaching documents (reproduced at T130-T134)

Email chain between Maricar Vale (ATO) and Ray Miller of Pigot Miller Wilson containing further information request and response

Email from Candice Ralston of Pigot Miller Wilson to Maricar Vale (ATO) attaching documents (documents reproduced at T46, T47, T52, T53, T58, T59)

Email from Maricar Vale (ATO) to Ray Miller of Pigot Miller Wilson outlining action items from meeting on 2 February 2015

Email from Maricar Vale (ATO) to Ray Miller of Pigot Miller Wilson requesting information relating to promissory notes

Email from Candice Ralston of Pigot Miller Wilson to Maricar Vale (ATO) attaching worksheet with breakdown of amounts in each promissory note

Email from Maricar Vale (ATO) to Adrian Bailey of Cleary Hoare requesting information relating to promissory notes

Email from Adrian Bailey of Cleary Hoare to Maricar Vale (ATO) providing response to email dated 5 March 2015

Email from Maricar Vale (ATO) to Ray Miller of Pigot Miller Wilson

Email from Maricar Vale (ATO) to Pigot Wilson Miller and Cleary Hoare attaching letter and Position Papers (Position Papers reproduced at TT199, T204, T206)

Email from Ian Collie of Cleary Hoare to George Watson (ATO) attaching covering letter and Interim Response to Position Paper (Interim Response to Position Paper reproduced at T202)

Letter from ATO to Malacorp Pty Ltd - Notification of alternative assessments

Email from George Watson (ATO) to Pigot Wilson Miller and Cleary Hoare attaching covering letters notifying of alternative assessments and Reasons for Decision (Reasons for Decision reproduced at T200, T203, T205, T207)

Letter from the ATO to Ian Collie of Cleary Hoare notifying objections received

Email from Ian Collie of Cleary Hoare to Boriana Lefterova (ATO)attaching:

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Fuentes Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Malacorp Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to MBJP Hayes Investments Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to MJB&P Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Grawlex Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Marclef Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Ragem Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Bryan Hayes Trading Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to John Hayes Trading Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Michael John Hayes Trading Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Paul Hayes Trading Pty Ltd

Notice Pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 issued to Michael Hart

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Bryan Hayes Trading Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to John Hayes Trading Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Michael John Hayes Trading Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Paul Hayes Trading Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Cleary Hoare Solicitors

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Michael Hart

Letter from Ian Collie of Cleary Hoare attaching a bundle of documents in response to section 35310 notices issued to the Hayes Group, including:

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Fuentes Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Malacorp Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to MBJP Hayes Investments Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to MJB&P Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Grawlex Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Marclef Pty Ltd

Letter from Ian Collie of Cleary Hoare attaching response to section 353-10 notice issued to Ragem Pty Ltd

PART B-DOCUMENTS RELEVANT TO INDIVIDUAL MATTERS

Michael John Hayes Trading Pty Ltd as trustee of the MJH Trading Trust and Commissioner of Taxation-No 2017/2813

Letter notifying decision on objection together with Reasons for decision

Income tax return for the year ended 30 June 2010 (as amended by the Applicant)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010 (alternative assessment)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010

John Hayes Trading as trustee of the JPH Trading Trust and Commissioner of Taxation-No. 2017/2812

Letter notifying decision on objection together with Reasons for decision

Income tax return for the year ended 30 June 2010 (as amended by the Applicant)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010 (alternative assessment)

Notice of amended assessment for the year ended 30 June 2010 (primary assessment)

Notice of objection to the primary and alternative amended assessments

Notice of amended assessment for the year ended 30 June 2010

Bryan Hayes Trading as trustee of the BGH Trading Trust and Commissioner of Taxation-No. 2017/2814

Letter notifying decision on objection together with Reasons for decision

Income tax return for the year ended 30 June 2010 (as amended by the Applicant)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010 (alternative assessment)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010

Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust and Commissioner of Taxation-No. 2017/2815

Letter notifying decision on objection together with Reasons for decision

Income tax return for the year ended 30 June 2010 (as amended by the Applicant)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010 (alternative assessment)

Notice of amended assessment for the year ended 30 June 2010

Notice of amended assessment for the year ended 30 June 2010

Bryan Hayes and Commissioner of Taxation-No. 2017/2820-2821

Notice of assessment for the year ended 30 June 2010

Notice of assessment for the year ended 30 June 2011

John Hayes and Commissioner of Taxation-No. 2017/2822-2823

Notice of assessment for the year ended 30 June 2010

Notice of assessment for the year ended 30 June 2011

Paul Hayes and Commissioner of Taxation-No.2017/2824

Income tax return for the year ended 30 June 2010

Notice of assessment for the year ended 30 June 2010

Michael Hayes and Commissioner of Taxation-No.2017/2825-2826

Income tax return for the year ended 30 June 2010

Notice of assessment for the year ended 30 June 2010

Income tax return for the year ended 30 June 2011

Notice of assessment for the year ended 30 June 2011

Cecil Hayes and Commissioner of Taxation-No.2017/2827

Notice of assessment for the year ended 30 June 2010

Shirley Hayes and Commissioner of Taxation-No.2017/2828

Notice of assessment for the year ended 30 June 2010

ANNEXURE A: EVIDENCE AND OTHER MATERIALS PROVIDED TO THE TRIBUNAL

Letter from Pigot Miller Wilson to Australian Taxation Office attaching

• Schedule A & B-Malacorp Pty Ltd
• Attachment 1-Not reproduced, see T178.2
• Attachment 2-Tax Invoices
• Attachment 3-Not reproduced, see T1
• Attachment 4-Not produced, see T178
• Attachment 5-Not reproduced, see T48- T51, T54-T57, T60-T63, T97, T107, T110 and T112A
  • Schedule A & B-Fuentes Pty Ltd
• Attachment 1-Not reproduced, see T177.2
• Attachment 2-Tax Invoices
• Attachment 3-Produced in part (Registration Certificate), see T3
• Attachment 4-Not reproduced, see T177

Attachment 5-Not reproduced, see T48- T51, T54-T57, T60-T63, T97, T107, T110 and T112A

Minutes of meeting held on 18 June 2014 between Australian Taxation Office (ATO) officers, Messrs Bailey and Hart from Cleary Hoare Solicitors and Mr Raymond Miller from Pigot Miller Wilson

Minutes of meeting held on 29 July 2014 between ATO officers and Mr Raymond Miller and Ms Julie Watson from Pigot Miller Wilson

Email from Yvonne Warner (ATO) to Ray Miller from Pigot Miller Wilson

Letter from Commissioner of Taxation to Pigot Miller Wilson

Email from Yvonne Warner (ATO) to Ray Miller from Pigot Miller Wilson

Letter from Commissioner of Taxation to Pigot Miller Wilson

Email from Greg Watson (ATO) to Adrian Bailey from Cleary Hoare Solicitors with attachments

Letter from Cleary Hoare Solicitors to Commissioner of Taxation (excluding attachments)

Letter from Cleary Hoare Solicitors to Commissioner of Taxation (excluding attachments)

Letter from Cleary Hoare Solicitors to Commissioner of Taxation (excluding attachments)

Letter from Cleary Hoare Solicitors to Commissioner of Taxation

Email from Greg Watson (ATO) to Benjamin Trost from Cleary Hoare Solicitors

Email from Benjamin Trost from Cleary Hoare Solicitors to Manfred Hotger (ATO) together with attachment

Resolution of the shareholders of MBJP Hayes Investments Pty Limited

ASIC Form - Application for registration as an Australian company

ASIC Extract - Personal roles held by Michael John Hayes

ASIC Extract - Personal roles held by Michael John Hayes

ASIC Extract - Personal roles held by Paul Andrew Hayes

ASIC Extract - Personal roles held by Bryan Gregory Hayes

ASIC Extract for John Hayes Pty Ltd ACN 126 160 638

ASIC Extract - Personal roles held by John Patrick Hayes

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by the Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by the Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by the Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by the Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by the Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Spreadsheet containing bank statements and accounting data information provided by Pigot Miller Wilson converted by Commissioner

Financial Records for Private Companies, Trusts and Other Entities

Document titled 'Executive Summary' relating to issue of "Z" class shares by Malacorp Pty Ltd

Malacorp Pty Ltd diagram "Z" class share arrangement (redacted)

PART B-DOCUMENTS RELEVANT TO INDIVIDUAL MATTERS

Michael John Hayes Trading Pty Ltd as trustee of the MJH Trading Trust and Commissioner of Taxation-No. 2017/2813

Consent to extend amendment period in accordance with subsection 170(7) of the Income Tax Assessment Act (ITAA) 1936 for the 2010 income year

John Hayes Trading as trustee of the JPH Trading Trust and Commissioner of Taxation-No.2017/2812

Consent to extend amendment period in accordance with subsection 170(7) of the Income Tax Assessment Act (ITAA) 1936 for the 2010 income year

Bryan Hayes Trading as trustee of the BGH Trading Trust and Commissioner of Taxation-No.2017/2814

Consent to extend amendment period in accordance with subsection 170(7) of the Income Tax Assessment Act (ITAA) 1936 for the 2010 income year

Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust and Commissioner of Taxation-No.2017/2815

Consent to extend amendment period in accordance with subsection 170(7) of the Income Tax Assessment Act (ITAA) 1936 for the 2010 income year

Fuentes Pty Ltd-Record of Conversation between Mr Raymond Miller, from Pigot Miller Wilson and Ms Yvonne Warner (ATO)

Malacorp Pty Ltd-Record of Conversation between Mr Raymond Miller, from Pigot Miller Wilson and Ms Yvonne Warner (ATO)

Bryan Hayes-Income Tax Return (2010 year of income) - Amendment

Historical details for ABN 63 034 601 326 (Entity name: Trustee for BGH Rural Unit Trust, Trustee for JPH Rural Unit Trust, Trustee for MJH Rural Unit Trust and Trustee for PAH Rural Unit Trust

Spreadsheet containing General Ledger data extracted taxpayers' accounting systems provided during audit

Spreadsheet containing account summary data extracted taxpayers' accounting systems provided during audit

ANNEXURE A: EVIDENCE AND OTHER MATERIALS PROVIDED TO THE TRIBUNAL

Affidavit of Michael John Hayes sworn 30 September 2020

Affidavit of Michael John Hayes sworn 15 June 2021 and Annexure MJH-1

Affidavit of John Patrick Hayes sworn 30 September 2020

Affidavit of Paul Andrew Hayes sworn 30 September 2020

Affidavit of Bryan Gregory Hayes sworn 29 September 2020

Affidavit of Raymond Miller sworn 30 September 2020

Affidavit of Raymond Miller sworn 18 June 2021 and Annexure RM-1

Affidavit of Raymond Miller sworn 11 August 2021 and Annexure RM-2

Affidavit of John Ioannou sworn 18 June 2021 and Annexure JI-1

Affidavit of Adrian Mason Bailey sworn 18 June 2021 and Annexure AMB-1

ANNEXURE A: EVIDENCE AND OTHER MATERIALS PROVIDED TO THE TRIBUNAL

PART A - FINANCIAL STATEMENTS, TAX RETURNS, RESOLUTIONS AND OTHER FINANCIAL DOCUMENTS

Bryan Hayes Family Trust financial statement for FY2016

Bryan Hayes Family Trust financial statement for FY2019

CWH Family Trust Division 7A interest calculations for FY2010

John Hayes Family Trust financial statement for FY2016

John Hayes Family Trust financial statement for FY2019

Michael Hayes Family Trust amended financial statement for FY2016

Michael Hayes Family Trust financial statement for FY2019

Paul Hayes Family Trust financial statement for FY2016

Paul Hayes Family Trust financial statement for FY2019

Malacorp Pty Ltd Superannuation Fund financial statement for FY2008

Malacorp Pty Ltd Superannuation Fund financial statement for FY2016

Malacorp Pty Ltd Superannuation Fund tax return for FY2016

Malacorp Pty Ltd Superannuation Fund financial statement for FY2019 in draft

Malacorp Pty Ltd Superannuation Fund tax return for FY2019 in draft

MJH Superannuation Fund financial statement for FY2016

MJH Superannuation Fund financial statement for FY2019 in draft

MJH Superannuation Fund tax return for FY2019 in draft

BG Hayes Holdings Pty Ltd financial statement for FY2016

BG Hayes Holdings Pty Ltd financial statement for FY2019

BG Hayes Holdings Pty Ltd dividends paid transactions to Bryan Hayes for FY2019

JP Hayes Holdings Pty Ltd financial statement for FY2016

JP Hayes Holdings Pty Ltd financial statement for FY2019

MJ Hayes Holdings Pty Ltd financial statement for FY2016

MJ Hayes Holdings Pty Ltd financial statement for FY2019

PA Hayes Holdings Pty Ltd financial statement for FY2016

PA Hayes Holdings Pty Ltd financial statement for FY2019

Fuentes Pty Ltd journal entries and Division 7A calculator for FY2009

Fuentes Pty Ltd Division 7A interest calculations for FY2008 and 2009

Fuentes Pty Ltd amended financial statements for FY2016

Fuentes Pty Ltd Division 7A calculations for FY2017

Fuentes Pty Ltd Division 7A calculations for FY2018

Hayes Discretionary Trust balance sheet page 2 for FY2008

Hayes Discretionary Trust journal entries for FY2009

Malacorp Pty Ltd Division 7A loan calculations for FY2008

Malacorp Pty Ltd Division 7A loan calculations for FY2009

Malacorp Pty Ltd Division 7A calculations to B J & P Hayes for FY2009

Malacorp Pty Ltd Division 7A calculations to C, M, J & B Hayes for FY2009

Malacorp Pty Ltd notes to the financial statements for FY2014

Malacorp Pty Ltd interest received - private lending transactions for FY2015

Malacorp Pty Ltd loan - CA & JP Hayes transactions for FY2016

MBJP Investments Pty Ltd financial report for FY2008

MBJP Hayes Investments Pty Ltd trial balance sheet for FY2011

MBJP Hayes Investments Pty Ltd balance sheet for FY2020

MBJP Investments Pty Limited summary of loan for FY2019

M J B & P Pty Ltd Division 7A calculations for FY2009

M J B & P Pty Ltd Division 7A calculations for FY2016

Hayes Rural Partnership ABN 63 034 601 326 financial statement for FY2015

Hayes Rural Partnership ABN 63 034 601 326 financial statement for FY2016

Memorandum of resolutions by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Trustee resolution by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Memorandum of resolutions by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Trustee resolution by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Trustee resolution by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Trustee resolution by Michael Hayes Trading Pty Ltd as trustee of the MJH Trading Trust

Memorandum of resolutions by Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Trustee resolution of Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Notice of a meeting of a member by Bryan Hayes Trading Pty Ltd as trustee for the BGH Trading Trust regarding $39,417.94 dividend for

Memorandum of resolutions of Bryan Hayes Trading Pty Ltd as trustee for the BGH Trading Trust regarding approval of $39,417.94 dividend for FY 2016

Members consent in Bryan Hayes Trading Pty Ltd as trustee for the BGH Trading Trust dispensing with 21 days' notice for passing Members Resolution

Dividend statement by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust to Bryan Hayes Pty Ltd as trustee of the Bryan Hayes Family Trust for FY 2016

Dividend statement by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust to Bryan Hayes Pty Ltd as trustee of the BGH Fixed Trust for FY 2016

Memorandum of resolutions of Bryan Hayes Pty Ltd as trustee for the Bryan Hayes Family Trust regarding distributions FY 2016

Dividends received by Bryan Hayes Pty Ltd as trustee for the BGH Holdings Trust to BG Hayes Holdings Pty Ltd

Dividend statement by Fuentes Pty Ltd to Bryan Hayes for FY 2016

Dividend statement by Fuentes Pty Ltd to John Hayes for FY 2016

Dividend statement by Fuentes Pty Ltd to Michael Hayes for FY 2016

Dividend statement by Fuentes Pty Ltd to Bryan Hayes for FY 2017

Dividend statement by Fuentes Pty Ltd to John Hayes for FY 2017

Dividend statement by Fuentes Pty Ltd to Michael Hayes for FY 2017

Dividend statement by Fuentes Pty Ltd to Bryan Hayes for FY 2018

Dividend statement by Fuentes Pty Ltd to John Hayes for FY 2018

Dividend statement by Fuentes Pty Ltd to Michael Hayes for FY 2018

Notice of a meeting of member by John Hayes Trading Pty Ltd as trustee for the JPH Trading Trust regarding $38,890.72 dividend for

Memorandum of resolutions of the members by John Hayes Trading Pty Ltd as trustee for the JPH Trading Trust regarding $38,890.72 dividend for FY 2016

Members consent in John Hayes Trading Pty Ltd as trustee for the JPH Trading Trust regarding dispensing with 21 days' notice for passing Members Resolution

Dividend statement by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust to John Hayes Pty Ltd as trustee of the John Hayes Family Trust for FY 2016

Dividend statement by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust to John Hayes Pty Ltd as trustee of the JPH Fixed Trust for FY 2016

Notice of a meeting of member by Michael Hayes Trading Pty Ltd as trustee for the MJH Trading Trust regarding $34,063.09 dividend for FY 2016

Memorandum of resolutions of the members by Michael Hayes Trading Pty Ltd as trustee for the MJH Trading Trust regarding

Members consent in Michael Hayes Trading Pty Ltd as trustee for the MJH Trading Trust regarding dispensing with 21 days' notice for passing Members Resolution

Dividend statement by Michael Hayes Trading Pty Ltd as trustee of the MJH Trading Trust to Michael Hayes Family Pty Ltd as trustee of the Michael Hayes Family Trust for FY 2016

Dividend statement by Michael Hayes Trading Pty Ltd as trustee of the MJH Trading Trust to Michael Hayes Family Pty Ltd as trustee of the MJH Fixed Trust for FY 2016

Memorandum of resolutions of Paul Hayes Trading Pty Ltd as trustee for the PAH Trading Trust regarding distributions FY 2016

Notice of a meeting of member by Paul Hayes Trading Pty Ltd as trustee for the PAH Trading Trust regarding $33,623.56 dividend for FY 2016

Memorandum of resolutions of the members by Paul Hayes Trading Pty Ltd as trustee for the PAH Trading Trust regarding $33,623.56 dividend for FY 2016

Members consent in Paul Hayes Trading Pty Ltd as trustee for the PAH Trading Trust regarding dispensing with 21 days' notice for passing Members Resolution

Dividend statement by Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust to Paul Hayes Pty Ltd as trustee of the Paul Hayes Family Trust for FY 2016

Dividend statement by Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust to Paul Hayes Pty Ltd as trustee of the PAH Fixed Trust for FY 2016

Division 7A unsecured loan agreement between Malacorp Pty Ltd and Bryan Hayes, John Hayes, Paul Hayes and Hayes Family Management Trust

Division 7A unsecured loan agreement between Malacorp Pty Ltd

Division 7A unsecured loan agreement between Malacorp Pty Ltd and Marclef Unit Trust

Division 7A unsecured loan agreement between Malacorp Pty Ltd and Oilsplus Unit Trust

Terms of loan advance between Malacorp Pty Ltd and Roy Hayes and Jennifer Hayes

Mortgage over 2/717788 - mortgagors Roy Hayesand Jennifer Hayes and mortgagee Malacorp Pty Ltd

Division 7A unsecured loan agreement between Malacorp Pty Ltd and Christopher Hayes and John Hayes

Division 7A unsecured loan agreement between Malacorp Pty Ltd and Leewood Trust

Division 7A unsecured loan agreement between M, J, B & P Pty Ltd and Leewood Trust

Division 7A unsecured loan agreement between M, J, B & P Pty Ltd and BGH Rural Unit Trust, JPH Rural Unit Trust, MJH Rural Unit Trust and PAH Rural Unit Trust

Loan agreement between Malacorp Pty Ltd, Lady Hayes Investments Pty Ltd and Ragem Pty Ltd

Loan agreement between Fuetnes Pty Ltd and Bryan Hayes Trading Pty Ltd

Loan agreement between Fuetnes Pty Ltd and John Hayes Trading Pty Ltd

Loan agreement between Fuentes Pty Ltd and Michael John Hayes Trading Pty Ltd

Loan agreement between BG Hayes Holdings Pty Ltd and Bryan HayesTrading Pty Ltd

Loan agreement between JP Hayes Holdings Pty Ltd and John Hayes Trading Pty Ltd

Loan agreement between MJ Hayes Holdings Pty Ltd and Michael John Hayes Trading Pty Ltd

Loan agreement between M, J, B & P Pty Ltd and Bryan Hayes Pty Ltd, John Hayes Pty Ltd, Michael Hayes Family Pty Ltd and Paul Hayes Pty Ltd

Loan agreement between PA Hayes Holdings Pty Ltd and Paul Hayes Trading Pty Ltd

Bearer promissory note 1 issued by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Bearer promissory note 2 issued by Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Bearer promissory note 2 issued by John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Bearer promissory note 1 issued by Michael Hayes Trading Pty Ltd as trustee of the MJH Trading Trust

Bearer promissory note 2 issued by Michael Hayes Trading Pty Ltd as trustee of the MJH Trading Trust

Bearer promissory note 1 issued by Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Bearer promissory note 2 issued by Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Memorandum of resolutions of Bryan Hayes Trading Pty Ltd as trustee for the BGH Trading Trust regarding $39,417.94 dividend for FY 2016

Resolution of Bryan Hayes Pty Ltd as trustee of the BGH Fixed Trust to distribute a dividend to the absolute beneficiaries

Resolution of Bryan Hayes Pty Ltd as trustee of the Bryan Hayes Family Trust to distribute dividends to BG Hayes Holdings Pty Ltd

Resolution of BG Hayes Holdings Pty Ltd to lend an amount of money to Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust

Resolution of Bryan Hayes Trading Pty Ltd as trustee of the BGH Trading Trust to cancel bearer promissory notes 1 and 2

Memorandum of resolutions of John Hayes Trading Pty Ltd as trustee for the JPH Trading Trust regarding $38,890.72 dividend for FY 2016

Resolution of John Hayes Pty Ltd as trustee of the JPH Fixed Trust to distribute a dividend to the absolute beneficiaries

Memorandum of resolutions of John Hayes Pty Ltd as trustee of the John Hayes Family Trust to distribute dividends to JP Hayes Holdings Pty Ltd FY 2016

Resolution of JP Hayes Holdings Pty Ltd to lend an amount of money to John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust

Resolution of John Hayes Trading Pty Ltd as trustee of the JPH Trading Trust to cancel bearer promissory notes 1 and 2

Memorandum of resolutions of Michael Hayes Trading Pty Ltd as trustee for the MJH Trading Trust regarding $34,063.09 dividend for

Resolution of Michael Hayes Family Pty Ltd as trustee of the MJH Fixed Trust to distribute a dividend to the absolute beneficiaries

Resolution of Michael Hayes Family Pty Ltd as trustee of the Michael Hayes Family Trust to distribute dividends to MJ Hayes Holdings Pty Ltd

Resolution of MJ Hayes Holdings Pty Ltd to lend an amount of money to Michael Hayes

Trading Pty Ltd as trustee of the MJH Trading Trust

Resolution of Michael John Hayes Pty Ltd as trustee of the MJH Trading Trust to cancel bearer promissory notes 1 and 2

Memorandum of resolutions of Paul Hayes Trading Pty Ltd as trustee for the PAH Trading Trust regarding $33,623.56 dividend for FY 2016

Resolution of Paul Hayes Pty Ltd as trustee of the PAH Fixed Trust to distribute a dividend to the absolute beneficiaries

Trustee resolution of Paul Hayes Pty Ltd as trustee for PAH Fixed Trust to distribute a dividend to absolute beneficiaries

Memorandum of resolutions of Paul Hayes Pty Ltd as trustee of the Paul Hayes Family Trust to distribute dividends to PA Hayes Holdings Pty Ltd

Resolution of PA Hayes Holdings Pty Ltd to lend an amount of money to Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust

Resolution of Paul Hayes Trading Pty Ltd as trustee of the PAH Trading Trust to cancel bearer promissory notes 1 and 2

PART C - PERSONAL DOCUMENTS

Hayes property summary compiled by Pigot Miller Wilson

Deed by Cecil Hayes, Bryan Hayes, Michael Hayes and John Hayes

Resolution of the sole director of Bryan Hayes Pty Ltd as trustee for the Bryan Hayes Family Trust

Bearer promissory note issued by Bryan Gregory Hayes to Bryan Hayes Trading Pty Ltd as trustee for the Bryan Hayes Family Trust

Loan Agreement between Bryan Hayes Pty Ltd as trustee for the Bryan Hayes Family Trust and Bryan Gregory Hayes

Resolution of the sole director of John Hayes Pty Ltd as trustee for the John Hayes Family Trust

Bearer promissory note issued by John Patrick Hayes to John Hayes Trading Pty Ltd as trustee for the John Hayes Family Trust

Loan Agreement between John Hayes Pty Ltd as trustee for the John Hayes Family Trust and John Patrick Hayes

Resolution of the sole director of Michael Hayes Family Pty Ltd as trustee for the Michael Hayes Family Trust

Bearer promissory note issued by Michael John Hayes to Michael Hayes Family Pty Ltd as trustee for the Michael Hayes Family Trust

Loan Agreement between Michael Hayes Family Pty Ltd as trustee for the Michael Hayes Family Trust and Michael John Hayes

Resolution of the sole director of Paul Hayes Pty Ltd as trustee for the Paul Hayes Family Trust

Bearer promissory note issued by Paul Andrew Hayes to Paul Hayes Trading Pty Ltd as trustee for the Paul Hayes Family Trust

Loan Agreement between Paul Hayes Pty Ltd as trustee for the Paul Hayes Family Trust and Paul Andrew Hayes

PART D - SEARCHES

Title search of Folio 11/112228, 1/173519, 16- 18/750170, 1-4/1088600

Title search of Folio 29/756883, 39/756883, 75/756883, 93/756883, 94/756883

Tax invoice and letter from Derek Pigot & Associates to Hayes Group

Environmental contamination investigation of K.L. Tough Fuel Supplies, Canada Street Lake Cargelligo NSW - prepared by Envirowest Consulting

Environmental contamination investigation of West Wyalong Caltex, 220 Main Street West Wyalong NSW - prepared by Envirowest Consulting

Hayes structure diagram prepared by Pigot Miller Wilson

Letter by Pigot Miller Wilson to Cleary Hoare Solicitors

Client agreement between Cleary Hoare Solicitors and Barney Hayes, John Hayes, Michael Hayes and Paul Hayes

Free phase product from monitoring well analysis results - prepared by Envirowest Consulting

Email chain between Cleary Hoare Solicitors and PMW Accountants regarding Hayes Trading Trusts

National Australia Bank statements for BG Hayes regarding Malacorp Pty Ltd credits

National Australia Bank statements for JP Hayes regarding Malacorp Pty Ltd credits

National Australia Bank statements for PA Hayes regarding Malacorp Pty Ltd credits

Letter from National Australia Bank to Malacorp Pty Ltd regarding term deposit

List of Oilsplus Incidents post 2012 - prepared by Envirowest Consulting

List of Oilsplus pre 2012 - prepared by Envirowest Consulting

Hayes Group entities structure diagram by Pigot Miller Wilson

Individual incomes spreadsheet by Pigot Miller Wilson

Various Correspondence and documents from Campbell Paton & Taylor Lawyers

Letter from Campbell Paton & Taylor to Nolly Pty Ltd enclosing documents regarding the purchase of 5 and 7 Leewood Drive, Orange

Chronology of dispute between John Frisby and Marclef Pty Ltd t/as Hayes Petroleum

Draft letter from Campbell Paton & Taylor to Boyd House & Partners

Information provided by Fuentes Pty Ltd tax agent Schedule A and B

PART A - FINANCIAL STAT-EMENTS, INCOME TAX RETURNS AND OTHER FINANCIAL DOCUMENTS

Hayes Discretionary Trust financial report for FY2007

Hayes Discretionary Trust financial report for FY2008

Hayes Discretionary Trust financial report for FY2009

Hayes Discretionary Trust various documents regarding purchase of units in Oilsplus Unit Trust in FY2009

Hayes Discretionary Trust trial balances for FY2010

Hayes Discretionary Trust various working papers regarding bearer promissory note calculations

Hayes Discretionary Trust general ledger for FY2012

Hayes Discretionary Trust transactions record for FY2013

Hayes Discretionary Trust financial report for FY2014

Hayes Discretionary Trust transactions record for FY2014

Hayes Discretionary Trust annual accounts for FY2015

Hayes Discretionary Trust transactions record for FY2015

Hayes Discretionary Trust financial statements for FY2016

Hayes Discretionary Trust financial statements for FY2017

Hayes Discretionary Trust financial statements for FY2018

Hayes Discretionary Trust financial statements for FY2019

Lady Hayes Superannuation Fund financial report for FY2007

Lady Hayes Superannuation Fund financial statements for FY2008

Lady Hayes Superannuation Fund financial statements for FY2009

Lady Hayes Superannuation Fund financial statements and income tax return for FY2013

Lady Hayes Superannuation Fund financial statements and income tax return for FY2014

Lady Hayes Superannuation Fund financial statements for FY2015

Lady Hayes Superannuation Fund financial statements for FY2016

Lady Hayes Superannuation Fund financial statements for FY2017

Lady Hayes Superannuation Fund financial statements for FY2018

Lady Hayes Superannuation Fund financial statements for FY2019

Malacorp Pty Ltd Superannuation Fund financial statements for FY2009

MJH Superannuation Fund financial statements for FY2009

MBJP Hayes Investments Pty Ltd retained profit estimate calculations

MJBP Hayes Rural Partnership loan transactions for FY2017

Loan Agreement between M,J,B & P Pty Ltd and Michael John Hayes Trading Pty Ltd

Minutes of Meeting of M,J,B & P Pty Ltd regarding loan agreement with Michael John Hayes Trading Pty Ltd

Loan Agreement between Malacorp Pty Ltd and Bryan Hayes

Lenders Resolution by Malacorp Pty Ltd regarding loan agreement to Bryan Hayes

Loan Agreement between Malacorp Pty Ltd and John Hayes

Lenders Resolution by Malacorp Pty Ltd regarding loan agreement to John Hayes

Loan Agreement between Malacorp Pty Ltd and Paul Hayes

Lenders Resolution by Malacorp Pty Ltd regarding loan agreement to Paul Hayes

Historical Company Search of Riverina Fuel Supplies Pty Ltd

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• John (4 ordinary shares)
• Paul (4 shares)
• Bryan (4 ordinary shares)
• Shirley (3 ordinary shares)

• Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust
• John Hayes Trading Pty Ltd as trustee for JPH Trading Trust
• Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

'Cec Hayes Transport' (livestock transport business)

• Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust
• John Hayes Trading Pty Ltd as trustee for JPH Trading Trust
• Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Primary production activities, owns rural property and owns an aircraft used in these operations

• Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust
• John Hayes Trading Pty Ltd as trustee for JPH Trading Trust
• Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust
• Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Established for the purpose of buying a fuel depot at 34-38 Peisley St, Orange (Folio 1-3/8524)

MBJP Hayes Investments Pty Limited (incorporated 25 June 2007)

• Michael John Hayes Family Pty Ltd
• John Hayes Pty Ltd
• Paul Hayes Pty Ltd
• Bryan Hayes Pty Ltd

• Michael John Hayes Trading Pty Ltd as trustee for MJH Trading Trust
• John Hayes Trading Pty Ltd as trustee for JPH Trading Trust
• Paul Hayes Trading Pty Ltd as trustee for PAH Trading Trust
• Bryan Hayes Trading Pty Ltd as trustee for BGH Trading Trust

Investment vehicle that was never intended to trade

Derived income from distributions from the CWH Family Trust and the Hayes Discretionary Trust

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• Michael Hayes Family Pty Ltd as trustee for the Michael Hayes Family Trust, as to 80 units
• Michael Hayes Family Pty Ltd as trustee of the MJH Fixed Trust, as to 20 units

• John Hayes Pty Ltd as trustee for the John Hayes Family Trust, as to 80 units
• John Hayes Pty Ltd as trustee of the JPH Fixed Trust, as to 20 units

• Bryan Hayes Pty Ltd as trustee for the Bryan Hayes Family Trust, as to 80 units
• Bryan Hayes Pty Ltd as trustee of the BGH Fixed Trust, as to 20 units

• Paul Hayes Pty Ltd as trustee for the Paul Hayes Family Trust, as to 80 units
• Paul Hayes Pty Ltd as trustee of the PAH Fixed Trust, as to 20 units

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• Michael, John, Bryan, Paul
• Family
• Family Entities

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• Grawlex Pty Ltd as trustee for the Hayes Discretionary Trust, as to 1 unit
• M Finemore Pty Ltd as trustee for the M Finemore Family Trust, as to 1 unit
• Kizrone Pty Ltd as trustee for the Timothy Hine Family Trust, as to 1 unit
• Salrema Pty Ltd as trustee for the K&D Tough Family Trust, as to 1 unit

Received dividends from OilsPlus Trust, which was a fuel wholesaler

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• Michael Hayes Family Pty Ltd in its capacity as trustee of the Michael Hayes Family Trust, as to a 95% share;
• Grawlex Pty Ltd in its capacity as trustee of the MJH Superannuation Fund, as to a 5% share

• John Hayes Pty Ltd in its capacity as trustee of the John Hayes Family Trust, as to a 95% share;
• Malacorp Pty Ltd in its capacity as trustee of Malacorp Pty Ltd Superannuation Fund, as to a 5% share

• Bryan Hayes Pty Ltd in its capacity as trustee of the Bryan Hayes Family Trust, as to a 95% share;
• Malacorp Pty Ltd in its capacity as trustee of Malacorp Pty Ltd Superannuation Fund, as to a 5% share

• Paul Hayes Pty Ltd in its capacity as trustee of the Paul Hayes Family Trust, as to a 95% share;
• Malacorp Pty Ltd in its capacity as trustee of Malacorp Pty Ltd Superannuation Fund, as to a 5% share

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

Michael John Hayes Trading Pty Ltd in its capacity as trustee of the MJH Trading Trust

John Hayes Trading Pty Ltd in its capacity as trustee of the JPH Trading Trust

Bryan Hayes Trading Pty Ltd in its capacity as trustee of the BGH Trading Trust

Paul Hayes Trading Pty Ltd in its capacity as trustee of the PAH Trading Trust

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

Hayes Partnership (or CW, BG, JP & MJ Hayes Partnership)

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

HAYES PARTNERSHIP (OR CW, BG, JP & MJ HAYES PARTNERSHIP)

Purchasing of rural property, beef cattle farming and grain production

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

• Michael Hayes Family Pty Ltd
• John Hayes Pty Ltd
• Bryan Hayes Pty Ltd
• Paul Hayes Pty Ltd

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

'Property, Operators and Developers' as listed in FY10 ITR

ANNEXURE B: LIST OF RELEVANT PARTIES AND ENTITIES

Purchase and lease of 18-22 Peisley Street, Orange

[1] The present dispute is a long history. An audit of the Hayes brothers' affairs began in March 2014. A position paper was issued in May 2015 and reasons for audit decisions were given in September 2015. Objections were lodged in November 2015 and were decided in March 2017. Applications were lodged for review in the Tribunal were in May 2017 that were held pending the outcomes in Trustee for the Michael Hayes Family Trust v F. C. of T. [2019] FCA 426 and F. C. of T v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; (2019) 273 FCR 567.

[2] Malacorp Pty Ltd ("Malacorp"), Fuentes Pty Ltd ("Fuentes") MJB&P Pty Ltd ("MJB&P") and MBJP Hayes Investments Pty Ltd ("Hayes Investments") collectively, and each an Operating Company.

[3] The Income Tax Assessment Act 1997 (Cth).

[4] The 1997 Assessment Act and the Income Tax Assessment Act 1936 (Cth) (the "1936 Assessment Act").

[6] The Family of Cecil and Shirley Hayes and the companies, trusts, partnership and superannuation entities connected with them listed in paragraph 28 below.

[7] A Year being a year of income, normally (as is applicable in the present circumstances) a 12 month period that ends on 30 June in a calendar year.

[8] The MJH Trading Trust acquired 10 Z Class shares in each of Fuentes, MJB&P and Hayes Investments and the PAH Trading Trust acquired 10 Z Class shares in each of Malacorp, MJB&P and Hayes Investments.

[9] The BGH Trading Trust and the JPH Trading Trust.

[10] Adopting an expression used by Gibbs J in Esquire Nominees Limited v F. C. of T. [1973] HCA 67; (1973) 129 CLR 177 at p 184 which is apt in the present setting.

[11] Pursuant to 1997 Assessment Act, s 207-20.

[12] Meeting the terms of the 1997 Assessment Act, s 207-145(1)(d).

[13] By operation of 1997 Assessment Act, s 207-145(1)(e).

[14] By operation of 1997 Assessment Act, s 207-145(1)(f).

[18] The Corporations Act 2001 (Cth).

[20] F. C. of T. v Consolidated Press Holdings Ltd (No 1) [1999] FCA 1199; (1999) 91 FCR 524, French, Sackville and Sundberg JJ.

[21] [1999] FCA 1199; (1999) 91 FCR 524 [132]-[137].

[22] F. C. of T. v Consolidated Press Holdings Ltd (No 1) [1999] FCA 1199; (1999) 91 FCR 524 [136]-[137] (French, Sackville and Sundberg JJ) referring to Gibbs J in F. C. of T. v Patcorp Investments Ltd [1976] HCA 67; (1976) 140 CLR 247 and his honour's references there to Bell v F. C. of T. [1952] HCA 34; (1953) 87 CLR 548; Newton v F. C. of T. [1958] UKPCHCA 1; (1958) 98 CLR 1 (PC); Hancock v F. C. of T. [1961] HCA 90; (1961) 108 CLR 258; F. C. of T. v Ellers Motor Sales Pty Ltd [1972] HCA 17; (1972) 128 CLR 602, and to See CJ Vincent, "Dividend Stripping: stricto sensu or strictly senseless" (1989) 24 Taxation in Australia 82, at p 92. These references were endorsed in BBlood Enterprises Pty Ltd v F. C. of T. [2022] FCA 1112 (BBlood) at [311] and [312] by Thawley J.

[23] Lawrence v F. C. of T. [2009] FCAFC 29; (2009) 175 FCR 277 [42]-[43].

[24] BBlood Enterprises Pty Ltd v F. C. of T. and B&F Investments Pty Ltd as Trustee for the Illuka Park Trust v F. C. of T. [2023] FCAFC 89, Moshinsky, Colvin and Hespe JJ.

[25] [1999] FCA 1199; (1999) 91 FCR 524 [137].

[26] Lawrence v F. C. of T. [2008] FCA 1497, Jessup J.

[27] [2008] FCA 1497 [84].

[28] BBlood Enterprises Pty Ltd v F. C. of T. [2022] FCA 1112 Thawley J at [315].

[29] CPH Property Pty Ltd v F. C. of T. [1998] FCA 1276; (1998) 88 FCR 21.

[30] F. C. of T v Consolidated Press Holdings Ltd [2001] HCA 32; (2001) 207 CLR 235 [132] and [125].

[31] [2022] FCA 1112 [315].

[32] [1999] FCA 1199; (1999) 91 FCR 524 [174].

[33] [2023] FCAFC 89 [108]. C.f. where the purpose to be established is of a person, a subjective test might be undertaken: see [2023] FCAFC 89 at [47], [50], and [55].

[34] The BBlood dispute was not a s 177E dispute but the statutory language is very similar.

[35] [1999] FCA 1199; (1999) 91 FCR 524 [105]-[107].

[36] [1999] FCA 1199; (1999) 91 FCR 524 [168]-[174].

[37] [1999] FCA 1199; (1999) 91 FCR 524 [175].

[38] [1999] FCA 1199; (1999) 91 FCR 524 [176]-[178].

[39] [1999] FCA 1199; (1999) 91 FCR 524 [105].

[40] [2001] HCA 32; (2001) 207 CLR 235 [134].

[41] [2001] HCA 32; (2001) 207 CLR 235 [133].

[42] [2001] HCA 32; (2001) 207 CLR 235 [129] referring to the Consolidated Press Full Court decision at [1999] FCA 1199; (1999) 91 FCR 524, p 569.

[43] Annexure A Is a catalogue of the evidence and other materials provided to the Tribunal.

[44] Michael, John, Bryan and Paul Hayes referred to collectively as the Hayes brothers and at times each of them referred to individually as a Hayes brother.

[45] Particulars of the entities are set out in Annexure B.

[48] At the time the firm was Pigot Miller Wilson, it is now pmwPlus.

[49] Campbell Paton and Taylor Lawyers.

[50] Affidavit of Michael John Hayes dated 30 September 2020 ("First Michael Hayes Affidavit") [26]-[31].

[51] Affidavit of Timothy Hine dated 30 September 2020 ("Hine Affidavit") [19], [24], [36].

[52] First Michael Hayes Affidavit, p 4; Affidavit of John Patrick Hayes dated 30 September 2020 ("John Hayes Affidavit"), p 3; Affidavit of Bryan Gregory Hayes dated 29 September 2020 ("Bryan Hayes Affidavit"), p 3; Affidavit of Paul Andrew Hayes dated 30 September 2020 ("Paul Hayes Affidavit"), p 3.

[53] First Michael Hayes Affidavit [22].

[56] First Michael Hayes Affidavit [23].

[57] First Michael Hayes Affidavit [25].

[58] Affidavit of Raymond Miller dated 30 September 2020 ("First Miller Affidavit") [15].

[59] Applicants' Tribunal Documents ("AT"), AT-314 Letter from Derek Pigot & Associates dated 27 June 2007.

[60] First Miller Affidavit [22]; AT-314.

[61] See Annexure B under the heading 'The Family Trusts'.

[62] AT-330 2008 to 2019 Individual Income Spreadsheets.

[63] Balance of Members Funds at the beginning of the 2007 Financial Year was nil. See Note 3 to the Lady Hayes Superannuation Fund Financial Statements for the Year Ended 30 June 2007 at AT-353. See also First Miller Affidavit [285].

[64] T-Documents T-15 Michael Hayes Family Trust Deed [1.9.2]; T-14 John Hayes Family Trust Deed [1.9.2]; T-13 Bryan Hayes Family Trust Deed [1.9.2]; T-16 Paul Hayes Family Trust Deed [1.9.2].

[66] For the other family trusts, the corporate trustees does not include the word 'family' in its name. See Supplementary T-Documents ST-29; ST-31; ST-34.

[71] First Miller Affidavit [37]-[38].

[72] First Miller Affidavit [46]; Affidavit of Adrian Mason Bailey dated 18 June 2021 ("Bailey Affidavit") [8]; Annexure AMB-1; Affidavit of John Ioannou dated 18 June 2021 ("Ioannou Affidavit") [6].

[76] Annexure JI-1 to Ioannou Affidavit p 345.

[80] Trust Deeds at T-Documents T17-T20.