Southwestern Indemnities Ltd v Bank of New South Wales

The sole question therefore before this Court, is whether or not the proceeds of the dividend paid to the taxpayer by Mitchell Credits Ltd. was income derived by the taxpayer from sources within Norfolk Island. If yea, no part of the Act will apply in respect of the taxpayer's receipt of that sum. If nay, then ss. 44 and 99 clearly apply and no further questions arise. [2] .

It is the source of the dividend in this case which determines whether the Act other than s. 7 applies at all to the circumstances of the case. If that source is within Norfolk Island none of the other provisions of the Act apply, including ss. 44 and 260. [3] .

1. (1973) 129 C.L.R., at p. 213.
   1. (1973) 129 C.L.R., at p. 209.
   2. (1973) 129 C.L.R., at p. 213.

These expressions of opinion need to be read together, making it plain that it was the application of the Act to the receipt of the income in the circumstances of the case which was there under consideration. Both s. 44 and s. 260 are provisions of the Act relating to the receipt of income.

The short answer to that reliance is, I think, to be found in s. 7 itself which provides that the Act does not apply to the income upon which the Commissioner seeks to assess tax. It is not possible by means of s. 260 to tax income which s. 7 puts outside the operation of the Act, including s. 260 itself. 1. (1973) 129 C.L.R., at pp. 222-223.

My brother Stephen, in his reasons, said as to the Commissioner's reliance on s. 260 [2] :

If, as I have concluded, s. 7 (1) operates to exclude from the operation of the Act this income of the taxpayer then I consider that s. 260 cannot have any operation in relation to that income. 1. (1973) 129 C.L.R., at p. 230.

I find nothing in these passages to support the view that a section such as s. 263 cannot apply in Norfolk Island simply because the records or papers to which access is sought are those of a company which is assumed for the purposes of the submission to be in fact a resident of the Territory of Norfolk Island with no income of which the source is not within that Territory. Further, as a matter of construction of s. 7 (1), the limitation upon the application of the Act to the Territory, which the "proviso" within the section effects, is with respect to the income which falls within the terms of the proviso. That means, in my opinion, that only those parts of the Act which depend upon or deal with the receipt of income and its assessability are made inapplicable to the receipt of income which satisfies the description in the "proviso" in s. 7 (1).

What I have just said assumes that the assertions of the applicant as to its residence and the sources of its income are accepted. But the Commissioner is not bound to accept the applicant's assertions. According to him, he does not. Further, in my opinion, the facts as to residence and income source ought not to be determined in proceedings such as the present, unless as an incident of a claim that the purpose of the officer in making the demand for access to records was a purpose extraneous to the Act and to the Commissioner's powers and duties thereunder. No such claim is made in this case. The submission is that the applicant's circumstances deny the availability of s. 263 at all in relation to the applicant and its affairs. In my opinion, an examination of the applicant's affairs to test its assertions as to residence and income source is within the purposes of the Act.

But, perhaps more fundamentally, the exclusion of the income of a Territorial resident from Territorial sources from the application of the Act does not mean, in my opinion, that the powers given by s. 263 are unavailable to the Commissioner on Norfolk Island with respect to the books, documents and the papers of and relating to such a resident. Whilst on the one hand it cannot properly be said that the proviso to s. 7 (1) does no more than exclude income derived from a source within the Territory from the assessable income of the Territorial resident - and the Court's decision in Esquire Nominees Ltd v Federal Commissioner of Taxation [1] indicates that it does do more than that - on the other hand, it cannot in my opinion be said that any part of the Act which is not concerned or dealing with the receipt and assessability of income is excluded from operation in the Territory.

In this case, however, the purposes of the Act which the respondent claims to be pursuing, include an investigation into the affairs of others than the applicant. On that footing alone, it could not be said that in making the demands on the bank on Norfolk Island the officers of the Department of Taxation were not doing so for the purposes of the Act.

I should observe upon one other argument of the applicant. It was submitted that because of the inclusion of the words "whether a taxpayer or not" in s. 264, and their absence in s. 263, the access given by s. 263 should be construed as limited to business places, books etc. relating to the affairs of a "taxpayer". It is then submitted that a Territorial resident in receipt only of Territorially sourced income is not liable to be assessed for income tax and is therefore not a taxpayer, notwithstanding the definition of taxpayer in s. 6.

But, in my opinion, upon its proper construction, s. 263 is not limited in its application to the affairs of a person who in fact is in receipt of assessable income. It suffices that the exercise of the power given by the section is for the purposes of the Act, which of course include an investigation into whether or not a person is or has been in receipt of assessable income. Such an investigation cannot be limited to buildings, books, etc. of a person who is liable to taxation but must extend to any person.

Section 264 authorizes the giving of a notice to any person to furnish information. It was appropriate in such a provision to make it clear that the notice could be given to persons who were not taxpayers as defined in the Act. In contrast with s. 264 in this respect s. 263, in giving to the Commissioner a right to access, gave rise to no similar need. It was quite sufficient to use universal expressions such as "at all times" and "to all buildings", etc. No further emphasis was required. No limitation could be suggested. As I have indicated, the sole limitation or qualification is that the access should be sought for "the purposes of the Act".

Being of this opinion, there is no need for me to discuss the further submission of the applicant, which involved the proposition that the definition of taxpayer in s. 6 was made inapplicable to the applicant, though in receipt of income, by the proviso in s. 7 (1). Also, I find it unnecessary to discuss the question whether the applicant, assuming it to be a Territorial resident in receipt only of Territorially sourced income, was a "person" within the meaning of s. 161 (1), bearing in mind the definition of "taxpayer", and bound to furnish a return of income upon the publication of an appropriate notice under s. 161 (1).

In my opinion, the submissions of the applicant should be rejected and those of the respondent accepted. I dismiss the motion for declarations and injunction.