Nowlan Enterprises Pty Ltd v Chief Commissioner of State Revenue

Part B Relevant legislation and related matters 9The Chief Commissioner assessed the Applicant for payroll tax on the basis that the Applicant should be grouped with DNT in accordance with section 71(3) of the Payroll Tax Act 2007; ("the Act"); sections 71(3) and 71(4) of the Act read as follows: (3) If one or more employees of an employer perform duties for or in connection with one or more businesses carried on by one or more other persons, being duties performed in connection with, or in fulfilment of the employer's obligation under, an agreement, arrangement or undertaking for the provision of services to any one or more of those other persons in connection with that business or those businesses, the employer and each of those other persons constitute a group. (4) Subsection (3) applies to an agreement, arrangement or undertaking: (a)whether the agreement, arrangement or undertaking is formal or informal, express or implied, and (b)whether or not the agreement, arrangement or undertaking provides, for duties to be performed by the employees or specifies the duties to be performed by them. Note. Section 79 (Exclusion of persons from groups) allows the Chief Commissioner, for payroll tax purposes, to exclude persons from a group constituted under this section in certain circumstances. 10RS contains a (helpful) summary of the genesis of section 71 of the Act; it is convenient for this reason to include clause 3.4 to 3.10 of RS (which have been checked and can be accepted as correct) as follows: 3.4 The explanatory notes for the Payroll Tax Act 2007 stated that the legislation was to harmonise the Act with the payroll tax legislation in Victoria: see Payroll Tax Bill 20067 Explanatory Note at I. 3.5 This was of particular significance to s 71 as the draftspersons of the Payroll Tax Act 2007 preferred the former s 9A (1A) (d) of the Payroll Tax Act 1971 (Vic) (the "Predecessor Provision") to the former s 106H of the Taxation Administration Act (NSW). S 71(3) is substantially the same as the Predecessor Provision. 3.6 The explanatory note for s 71 relevantly provided: Clause 71 provides for groups arising from the inter-use of employees. Where: (a)one or more employees of an employer perform duties for one or more businesses carried on by the employer and one or more other persons, or (b)one or more employees of an employer are employed solely or mainly to perform duties for one or more businesses carried on by one or more other persons, or (c)one or more employees of an employer perform chilies for one or more businesses carried on by one or more other persons, being duties performed in connection with or in fulfilment of the employer's obligation under an agreement, arrangement or undertaking for the provision of services to any of those persons, the employer and each of those other persons constitute a group. 3.7 The Predecessor Provision was inserted in the Victorian payroll tax legislation to clarify the law following Muir Electrical Co Pty v Commissioner of Stale Revenue (2001) 4 VR 70; [2001] VSCA 86. 3.8 In Muir a head service company provided services to the branch entities, including accounting services, preparation and dissemination of monthly management accounts and profit and loss statements, financial control, funding for fit out, administration of the central bank account, processing of salaries and wages, maintenance of stock and sales information, receipt information, price lists, company secretarial records and payroll records and effecting payment of accounts approved by the stores. These arrangements were held not to give rise to a grouping of the branch entities under the then s 9A of the Payroll Tax Act 1971 (Vic) because the agreement was as to services and not as to the duties of the relevant employees of the head service company: see Muir at [10]412] per Callaway JA, Ormiston and Buchanan JJA agreeing. 3.9 The Victorian legislature saw fit to amend the payroll tax legislation in response to Muir. 3.10 The explanatory note for the introduction of the State Taxation Acts (Miscellaneous Amendments) Bill 2003 (Vic) at 8-10 relevantly stated: 5 The amendment also specifically clarifies that section 9A (1A) (d) is to apply irrespective of whether the duties to be performed for or in connection with the business or businesses of the associates are specified in the relevant agreement, arrangement or undertaking. This is in response to the finding by the Court of Appeal in Muir Electrical Co Pty v Commissioner of State Revenue [2001] VSCA 86 that paragraph (d) would not apply where there was an agreement for the provision of services which did not specify that the duties were to be carried on by the employer's employees. The original intent of section 9A (1A) (d) was that it would apply to many different arrangements, which would be found to create a group. These would he constituted by an employer and persons who are associates of that employer, i.e.: where there was a degree of dependence and connection between businesses. The discretion contained in section 9A(1.1) could then allow the Commissioner of State Revenue to exclude a member from a group for the purposes of the Act if the Commissioner was satisfied as to certain matters set out in that sub-section. New section 9A (1A) (d) clarifies that original intention. Sub-clauses (2), (3) and (4) insert notes at the foot of subsections (1), (1) and (2) of section A, which confirm that each sub-section is subject to the discretion contained in section 9A(1.1). The grouping provisions are intended to apply to many different arrangements. There is, then, the discretion to exclude a member from a group. 11It is clear that in accordance with its terms section 71(3) of the Act can apply to a wide variety of different arrangements. Section 79 of the Act furnishes the Chief Commissioner with a discretion as to the exclusion of a member of the group; section 79 reads as follows: 79 Exclusion of persons from groups The Chief Commissioner may, by order in writing, determine that a person who would, but for the determination, be a member of a group is not a member of the group. The Chief Commissioner may only make such a determination if satisfied, having regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other matters the Chief Commissioner considers relevant, that a business carried on by the person, is carried on independently of and is not connected with the carrying on of a business carried on by any other member of that group. The Chief Commissioner cannot exclude a person from a group if the person is a body corporate that, by reason of section 50 of the Corporations Act 2001 of the Commonwealth, is related to another body corporate that is a member of that group. This section extends to a group constituted by reason of section 74 (Smaller groups subsumed by larger groups). A determination can be expressed to take effect on a date that is earlier than the date of the determination. The Chief Commissioner may by order in writing revoke a determination that applies in respect of a person if satisfied that the circumstances in which a determination may be made do not apply to the person. The revocation of a determination can be expressed to take effect on a date that is earlier than the date of the determination. 12Having included section 79 of the Act it is desirable to include the relevant explanatory note for the Payroll Tax Bill 2007 as follows: Clause 79 provides the Chief Commissioner with discretion to exclude a member from a group if satisfied that the business conducted by that member is independent of, and not connected with, the business conducted by any other member of the group. In considering the application of this discretion, the Chief Commissioner will have regard to the nature and degree of ownership and control of the businesses, the nature of the businesses, and any other relevant matters. The discretion is not available for corporations that are related bodies corporate under section 50 of the Corporations Act 2001 of the Commonwealth. 13The phrase "in connection with" is clearly a phrase of wide import, In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 Neaves French and Cooper JJ observed at 10: Its construction does not merely involve the identification of some activity. The words "connected with" are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (SA) at FCR 378, the meaning of the word "connection" is wide and imprecise, one of its 6 common meanings being "relation between things one of which is bound up with, or involved in, another": Shorter Oxford English Dictionary. Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v International Computers (Aust) Ply Ltd (No 2) (1987) 16 FCI? 410 at 418-19 ; Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712- 13. In the end this is not a process of fact finding. The facts are found. What is left. What is left is a value judgment about the range of the Act and that is a question of law. 14In Conte Mechanical and Electrical Services Pty Ltd v CSR [201111 VSC 104 Pagone J considered the equivalent discretion in the Victorian payroll tax legislation. Pagone J made the following relevant observations at [11]: For de-grouping to occur the Commissioner must be satisfied that a business carried on by one member of a group is "carried on independently of, and is not connected with any other member of that group". The equivalent provisions in New South Wales were considered by Rath J in Mead Packaging (Aust) Pty ltd v Cmr of Pay-roll Tax (NSW) [(1978) ATC 4164] who said: Section 16H (1) requires two findings to be made, namely (1) that a business carried on by the plaintiff (as a member of a group) is carried on substantially independently of a business carried on by any other member of that group; and (2) that the business is not substantially connected with the carrying on of the business carried on by the member of the group. The first limb appears to relate to the independence of the businesses and requires an examination of the connection between the business activities. The second limb appears to relate to connection in management. At all events the composite expression used in the sub-section requires a consideration of the businesses and their control and a finding of substantial independence and substantial absence of connection .Whereas here there are three members of a group one of them will not be entitled to exclusion by an order under the sub-section unless the requisite satisfaction is had in respect of each of the other members of the group. Though no argument was addressed to me on the point it would appear that a non-Australian corporation (such as The Mead Corporation here) may be a member of the group even though it is does not carry on business in Australia. Under Section 16C one member of the group is an employer (as defined in s3); but it does not appear the other members of the group must be such employers. The other members are described as "persons". An employer is defined to mean any person who pays or is liable to pay any wages. "Person" includes a company; and "company" is defined to include all bodies and associations (corporate or unincorporated) and partnerships. In s 16D the criterion for membership of a group is the existence in "persons" of a controlling interest in two businesses. The steps which led the Commissioner to group the plaintiff, Leigh-Mardon Pty Ltd with the Mead Corporation are briefly as follows. By virtue of s 16 D (3) (b) Leigh-Mardon has a controlling interest in the business of the plaintiff. Being the sole owner of its business Leigh-Mardon Pty Ltd has a controlling interest in that business by virtue of s 16D93)(e). Leigh-Mardon Pty Ltd accordingly has a controlling interest in two businesses and by virtue of s l6D (2) Leigh-Mardon Ply Ltd and the plaintiff constitute a group. By a parity of reasoning The Mead Corporation and the plaintiff constitute a group. The plaintiff is thus a member of two groups; and by virtue of s 16E (1) all members of those two groups constitute a group. By the operation of s 16E(2) the two groups (consisting of two members each) cease to be groups, thus leaving one group of three members. There was no challenge to this line of reasoning. It is complicated, but appears to be correct. The result is that the plaintiff is not entitled to an order excluding it from this group of three members unless the requisite satisfaction is had in relation to its business and that of Leigh-Mardon Ply Ltd, and also in relation to its business and that of The Mead Corporation. The facts that The Mead Corporation does not carry on business in Australia, and pays neither taxable wages nor interstate wages, are irrelevant. The provisions reflect the legislature's view that the fiscal base for payroll tax should not treat some employers as one group where the Commissioner is satisfied about certain matters by reference to specified criteria. In reaching a state of satisfaction the Commissioner is required to have regard to three broadly defined categories of matters. The first is "the nature and degree of ownership and control of the businesses". The second is "the nature of the businesses". The third is "any other matters the Commissioner considers relevant". For the Commissioner to "have regard" to these matters it will be necessary for the Commissioner to take them into account and to give such weight to each of them as the circumstances of the case require. 15It is clear (on the evidence before the Tribunal) that the employees of DNT performed duties in connection with the Applicant's business of road freight transport. Specifically, the DNT employees performed road freight transport so as to enable the Applicant to discharge its contractual obligations to its customers. This was integral to the Applicant's business. It was done by DNT as part of a subcontracting arrangement between the Applicant and DNT for the provision of road freight transport.

16It is necessary to deal in some detail with the position of Ruth who, as set out in clause 2.1 of RS, is Danny's mother. 17The Chief Commissioner served a summons on Ruth requiring her attendance at the hearing. (It may be noted that no witness statement in respect of Ruth was filed by the Applicant). Mr Beazley contended that Ruth was not obliged to attend the hearing because the summons compelling her attendance was defective as regards its service. It is not necessary for me to deal with the reasons advanced in respect of that contention. In this context Mr Beazley informed the Tribunal (TS24 lines 39 to 41): "The son is available today. The difficulty with them both being required is they effectively operate the business and there is no other employees except the drivers of the trucks." 18Danny's evidence was that his mother performed a very limited role in the affairs of the Applicant. He said that she came in for about 3 hours each day and so as to give him an opportunity to have lunch. He described her function as akin to that of a receptionist or quasi-receptionist although he also said that she performed a supervisory role in respect of major expenditures. He said that although in the past the Applicant's business was paper-based it was, during the Relevant Years, run through a computer and that his mother was not able to operate a computer. As he described the situation the business of the Applicant and DNT were during the Relevant Years effectively managed by him. 19The Tribunal was informed that the Applicant has only two employees in the office and being Danny and Ruth. Towards the end of the hearing Mr Mitchell advised that Ruth would not be required to attend the hearing in response to the summons by the Respondent. This leaves open the question of whether the Applicant should of its own accord have called Ruth. The Tribunal warned that while it was for the Applicant to decide whether she should be called a failure to call her might give rise to an inference that her evidence would not have assisted the Applicant. Her evidence was, as Mr Beazley admitted, (TS29) undoubtedly relevant. 20At the end of the day (and in the absence of evidence by Ruth) the Tribunal has no option but to refer to the evidence of Danny as to the manner in which the business of the Applicant was conducted, and more particularly as to the fact that the role of Ruth was very limited during the Relevant Years (and for a considerable period prior to the Relevant Years.)".

21As set out previously Danny, after confirming the content of Exhibit A1, was cross-examined at some length. This part D relates in the main to his evidence in cross-examination. 22Danny was asked the following question (TS 34 lines 41 to 44): "Is it true to say that when you make this statement in your affidavit at paragraph 14 that you are employed to manage the office of Nowlan Enterprises that you've done that since your father ceased to be a director in 1997?" The answer was "Yeah". At TS 35 Danny said that he had taken over the office management partly; he explained that he meant "well partly between my mother and myself." 23Danny was asked to describe what he meant when he referred to managing the office (and being the phrase used in his affidavit). His answer was that it involved maintenance of records and allocation. He explained that allocation referred to the allocation of vehicles to jobs. 24Danny's evidence (and see TS 37 and following pages) was that in respect of the year ending June 2009 DNT received $459537 from the Applicant and this amount constituted the whole of its income for that Relevant Year. A substantial amount ($517806) was received from the Applicant during the other Relevant Year. DNT was the second largest subcontractor to the Applicant during both Relevant Years and during both of which all of its income was derived from DNT; His evidence indicated that there were other periods in respect of which DNT was the largest sub-contractor to the Applicant. 25In answer to a question as to how many trucks the Applicant owned Danny answered that the number was 8. See TS39 lines 19 to 22 as follows: Q. You said seven trucks in paragraph 11 okay. Is it maintenance of just those seven trucks or is it maintenance of other trucks in addition to those seven that you've referred to in paragraph 11? A. It'd be the maintenance of those seven and the one owned by Danny Nowlan Transport. 26I next include an extract from TS starting with line 26 on page 41 and ending with line 15 on page 42 as follows: Q. Yes it does. Further down in paragraph 14 on the fourth line of the paragraph you say sorry, if I take you to the third sentence. "In addition to this wage enterprise pays for the insurance on transports truck. Is that true? Am I to understand that statement to mean that you have one insurance policy that covers your seven trucks. Sorry the Nowlan Enterprise truck and the same policy covers the single Danny Nowlan truck. Is that correct? A. Yes that's correct. Q. What role does your mother play Ruth in the Enterprises business? What does she do in the office? A. As little as possible but look any- any capital expenditure and that, like that's, you know, I've got no say in that. That's her call. Look she voices her opinion if she's not happy with the way things are going. She's pretty quick to let me know and quite often I threaten to walk away with the truck and go and do my own thing. Q. So would it be a correct characterisation just based on what you've just said that you really -you personally do the day to day management of the Enterprises business but that your mother has if you like an oversight role. A. Yes Q. Sometimes a veto role? A. Yes Q. Where she will disagree with you about decisions? A. Yes Q. You mentioned capital expenditure. I take that would mean things like buying a new truck- A. Buying or selling a truck Q. Buying and selling a truck she would want to have a say about that would she, right. What about compiling the accounts for the business? Who has responsibility for that? A. Ultimately me because she barely knows how to turn a computer on. So unfortunately that's fallen into my lap. 27Danny said (as noted previously) that his mother performed a role which could be described as that of a receptionist or quasi receptionist. (TS 42) and that since the advent of computers she has played a lesser role. (TS 43). 28Danny was referred to certain aspects of his affidavit which relate to loans owing by DNT to the Applicant. The amount was approximately $208000 in 2008 and approximately $358000 in 2009. Danny agreed that these amounts constituted unsecured and undocumented loans by the Applicant to DNT; he said (TS 47 lines 35 and 36). "Look to the best of my recognition it has to do with just Danny Nowlan Transport getting into financial trouble a number of years back and yeah." 29The evidence before the Tribunal indicated that the assistance provided by the Applicant to DNT was by no means confined to the loans referred to in the preceding clause (and later evidence indicated that those loans related in some manner to Danny's divorce and payments which had to be made in consequence of that divorce). When DNT purchased its single truck it borrowed a significant sum from Commonwealth Bank and that that loan was guaranteed by the Applicant. (TS 48). TS 49 indicates that the guarantee document pursuant to which the Applicant guaranteed the loan to DNT was executed by Danny as a director of the Applicant. 30The evidence before the Tribunal indicates that apart from entries for printing and stationery DNT was not debited with any amounts in respect of head office expenditure. (TS 50) 31As to rent for the premises Danny's evidence was somewhat inconsistent. He was asked (TS 51) whether rent was paid for the premises leased to the Applicant and he answered "yes'. He said (TS 5 2) that the Applicant paid rent of about $1000 per month and that DNT was not required to refund any part of it. The Applicant bore other overhead expenses referable to DNT and in particular telephone expenses. (TS 52) 32It is not necessary for me to deal in detail with the somewhat convoluted evidence as to who owned the premises occupied by the Applicant and DNT. However it emerged in re-examination that in fact the premises are owned through a unit trust structure which relates to a superannuation fund of which the beneficiaries are Ruth and Danny. 33Danny said that while the Applicant's trucks are parked at the premises referred to in the preceding clause DNT's truck is usually parked at the home of its driver. 34In re-examination Mr Beazley elicited the fact that the loan moneys related to a divorce settlement referable to Danny; he also elicited details of the superannuation structure referred to previously. 35Exhibit A1 indicates that the DNT truck did not carry any advertising and that DNT did not seek outside business in that its only customer was the Applicant.

Part E: Conclusion 36Considered as a whole the evidence before the Tribunal indicates that the businesses of each of the Applicant and DNT were managed by Danny. The evidence before the Tribunal also establishes that the relationship between the two businesses was extremely close. . That this is so is indicated by the financial relationship between them and the manner in which Danny on behalf of the Applicant dealt with its freight contracts some of which were performed by the Applicant and some of which were allotted to subcontractors and including in particular DNT. It will be remembered that DNT during the Relevant Years derived all of its income from the Applicant and that it received substantial financial support as set out previously in these reasons. 37Having regard to the manner in which the words "in connection with" must be interpreted the Commissioner correctly grouped the Applicant and DNT in respect of the Relevant Years. This case turns in the end result on the question of whether the Chief Commissioner should in respect of the Relevant Years have exercised his discretion so as to degroup DNT. Having regard to the evidence before the Tribunal there was no basis upon which the Chief Commissioner could or should have exercised his discretion so as to degroup DNT. 38Accordingly the decision under review is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2013