WR Carpenter Holdings Pty Ltd v Commissioner of Taxation

Division 13 8 There are a number of fundamental concepts underlying Div 13 - "property", "supply", "acquisition", "international agreement" and the central concept of "arm's length consideration". The concept of "international agreement" is defined in s 136AC and the other concepts are all defined in s 136AA. Relevantly, "arm's length consideration in respect of the supply of property" is defined in subs 136AA(3) as follows: "(c) a reference to the arm's length consideration in respect of the supply of property is a reference to the consideration which might reasonably be expected to have been received or receivable as consideration in respect of the supply if the property had been supplied under an agreement between independent parties dealing at arm's length with each other in relation to the supply." 9 The operative provision is s 136AD, which deals with situations where property is supplied or acquired under an international agreement where the Commissioner, having regard to the relevant circumstances, is satisfied that the parties were not dealing at arm's length with each other in relation to the supply or acquisition, as the case may be. Subsection 136AD(1) concerns supply by a taxpayer for a consideration less than the arm's length consideration in respect of the supply. It provides: "(1) Where: (a) a taxpayer has supplied property under an international agreement; (b) the Commissioner, having regard to any connection between any 2 or more of the parties to the agreement or to any other relevant circumstances, is satisfied that the parties to the agreement, or any 2 or more of those parties, were not dealing at arm's length with each other in relation to the supply; (c) consideration was received or receivable by the taxpayer in respect of the supply but the amount of that consideration was less than the arm's length consideration in respect of the supply; and (d) the Commissioner determines that this subsection should apply in relation to the taxpayer in relation to the supply, then, for all purposes of the application of this Act in relation to the taxpayer, consideration equal to the arm's length consideration in respect of the supply shall be deemed to be the consideration received or receivable by the taxpayer in respect of the supply." 10 Subsection 136AD(2) is in similar terms except that para (c) speaks of no consideration being received or receivable by the taxpayer in respect of the supply. Subsection (3), not relevant for present purposes, deals with the acquisition of property by a taxpayer. 11 In the case of each of WRCH and WRCA the Commissioner made determinations under both subs 136AD(1) - "consideration … received or receivable … was less than the arm's length consideration …" - and subs 136AD(2) - "no consideration was received or receivable …". It is not clear why he did this, but whatever the reason, it does not appear to be relevant to the application for leave to appeal or, if successful, the appeal itself. It seems clear that the determinations were made in the alternative; certainly, the applicants have treated them as such. Presumably, the Commissioner took this course out of an abundance of caution and in the absence of information which definitively pointed one way or the other as to whether or not consideration was received or receivable by each of the taxpayers for the relevant supplies of property. 12 Subsection 136AD(4) empowers the Commissioner to determine the amount of the arm's length consideration in respect of the supply or acquisition where it is not possible or not practicable for him to otherwise ascertain it. A major issue in this case is whether the Commissioner's use of this power is subject to judicial review. The subsection provides: "(4) For the purposes of this section, where, for any reason (including an insufficiency of information available to the Commissioner), it is not possible or not practicable for the Commissioner to ascertain the arm's length consideration in respect of the supply or acquisition of property, the arm's length consideration in respect of the supply or acquisition shall be deemed to be such amount as the Commissioner determines."

Other Relevant Provisions 13 Section 14ZZO(b) of the TAA provides that on appeal the appellant has the burden of proving that the assessment is "excessive". 14 Section 175 and subs 177(1) of the ITAA restrict the potential for attacks on assessments outside the appeal process of Pt IVC. They provide: "175 The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with. … 177(1)The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct."

ISSUES IN THE PART IVC APPEALS 15 The applicants accept that they are "taxpayers", and that they have "supplied" "property" under an "international agreement": para (a) of subss 136AD(1) and (2). 16 They further accept that the Commissioner was entitled to be satisfied that they "were not dealing at arm's length" with the other party to the respective agreements in relation to the supply: para (b). 17 However, they dispute that the consideration received or receivable in respect of the supply was less than the arm's length consideration: para (c). 18 The applicants also seek to raise further arguments, which are relevant to the present dispute over particulars. 19 First, they say that the Commissioner's determinations under para (d) of subss 136AD(1) and (2) were flawed by the failure to take into account (i) the absence of "profit shifting" as a consequence of the transactions and (ii) the absence of any purpose of profit shifting or tax avoidance on the part of the applicants. 20 Second, the determination of the relevant arm's length consideration under subs 136AD(4) was flawed by the failure to consider what the consideration would have been in comparable circumstances and by regard having been had to what the consideration might have been in circumstances which were not comparable.

THE CONCLUSION AND REASONS BELOW 21 His Honour below concluded that the Commissioner should not be required to supply the particulars sought. He so concluded on two primary bases: (1) First, apart from the condition in para (b) of subss 136AD(1) and (2), namely, that the Commissioner is satisfied that the parties to the international agreement were not dealing at arm's length with each other - a condition about which the applicants concede the Commissioner is entitled to be satisfied - all of the conditions that have to be met to empower the Commissioner to make a determination under para (d) of subs 136AD(1) or (2) are "objective" conditions. Similarly, all of the conditions that have to be met to empower the Commissioner to make a determination under subs 136AD(4) are "objective" conditions. Apart from the para (b) exception referred to, these subsections, like s 177F, do not make the existence of any particular state of mind of the Commissioner in relation to the making of the determination a condition of the power to make it and, by virtue of subs 177(1), it is not open to the applicants to make the Commissioner's state of mind and reasoning processes leading to the making of the determinations under subss 136AD(1), (2) and (4) an issue in the appeals: at [11], [144] and [153]. (2) Second, because the Commissioner has not asserted, and does not propose to assert, a positive case as to his state of mind or reasoning processes, of which, in accordance with the general principles governing the supply of particulars, particularisation might be appropriate. In the light of s 136AD, subs 177(1) of the ITAA and s 14ZZO(b) of the TAA, the Commissioner is entitled not to assert any particular state of mind or reasoning process, and simply to rely on his assessments leaving it to the applicants to discharge the onus incumbent on them of proving that the assessments are excessive: at [12] and [157]. 22 His Honour's analysis or process of reasoning in respect of the first basis for his conclusion is predicated on: (1) The statutory architecture of Div 13, in particular s 136AD: at [16] - [18]. (2) A comprehensive review of the authorities from Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 to Syngenta Crop Protection Pty Ltd v Commissioner of Taxation (2005) 61 ATR 186 at the conclusion of which his Honour, by reference to Commissioner of Taxation v Peabody (1994) 181 CLR 359, in particular at 382, Commissioner of Taxation v Sleight (2004) 136 FCR 211, in particular at [103] to [110] in the judgment of Hill J, and Syngenta, drew a distinction between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (Avon Downs, George v Commissioner of Taxation (1952) 86 CLR 183, Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365, Duggan & Anor v Commissioner of Taxation (1972) 129 CLR 365, Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28, Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation (1975) 132 CLR 535, Western Australian Capital Investment Co Ltd v Commissioner of Taxation (1989) 87 ALR 183 and Commissioner of Taxation v Dalco (1990) 168 CLR 614) and those in which it specifies not a state of mind but the making of a determination as the event on which the amount of taxable income (and tax) depends (Jackson v Commissioner of Taxation (1989) 87 ALR 461, Peabody, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, Binetter v Commissioner of Taxation (2003) 130 FCR 135, Sleight and Syngenta). In the latter class of case, the legislature is taken to indicate that the interaction between subs 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the matters the Commissioner takes into account in making the determination are part of the due making of the assessment, and cannot be put in issue by the taxpayer: at [154]. 23 His Honour was aware that the state of mind/Commissioner's determination distinction may not be "an entirely satisfactory one", but said at [155]: "… it carries the day in a situation in which the distinction between procedural steps going to substantive liability (or excessiveness of the assessment) on the one hand, and other procedural steps, on the other hand, is itself a difficult one." The difficulty with this latter distinction is a reference back to what was said in the joint judgment in George at 206 - 207: "The clear policy of s 177 is to distinguish between the procedure or mechanism by which the taxable income and tax is ascertained or assessed on the one hand and on the other hand the substantive liability of the taxpayer. The former involves the due making of the assessment. The production of the notice of assessment is conclusive evidence of the due making of the assessment." Their Honours concluded (at 207): "Obviously the 'due making of the assessment' was intended to cover all procedural steps, other than those [apparently, procedural steps] if any going to substantive liability and so contributing to the excessiveness of the assessment, the thing which is put in contest by an appeal." His Honour below was caused to observe at [49]: "The distinction between the two classes of procedural steps is a difficult one. A taxpayer is to be at liberty, by attacking procedural steps of one class, to prove in an appeal that one amount of the assessment is excessive, but may not attack other procedural steps which are left shielded by the 'due making' of the assessment." 24 His Honour's analysis or process of reasoning in respect of the second basis for his conclusion is sourced in what was said, first by Kitto J, and subsequently by the Full High Court, in George - Kitto J at 189 - 190 in the passage at [47] of his Honour's reasons below and the Full Court at 204 in the passage at [48] of his Honour's reasons below. His Honour concluded at [51] and [52]: "51. The Commissioner has identified the various objective conditions, the determinations made, and the amounts or the respective arm's length considerations involved ($17,897,644 in the case of WRCH, and $986,180 in the case of WRCA). He has not, however, positively asserted, or foreshadowed an intention to prove, that he had regard to any particular matters in making the determination. Why would he? His having regard to any particular matters is not made a condition of liability to tax. 52. George is at least clear authority against the Taxpayers' right to particulars on the second ground on which the Commissioner relies."

THE APPLICANTS' ARGUMENTS ON APPEAL 25 Mr Durack, Senior Counsel for the applicants, accepted that the Commissioner does not have to advance a positive case. But he submitted that the applicants are nevertheless entitled to know the matters the Commissioner took into account. 26 In broad outline, the steps in Mr Durack's argument were along the following lines. Both the para (d) determinations (under subss 136AD(1) and (2)) and the subs (4) determinations (under subss 136AD(4)) involve choices, and thus the exercise of discretions. A discretion must be judicially reviewable to ensure it has been exercised correctly according to law - otherwise there would be an incontestable impost and not a tax in the constitutional sense. According to Mr Durack, "correctly" in this context means "… not involving the errors of law of the Avon Downs type, that is, the taking into account of irrelevant matters, the failure to take into account relevant matters and so on". Subsection 177(1) does not purport to prevent such a review. Finally, he argued that the authorities show that the particulars of a reviewable exercise of discretion should be supplied.

HOW DOES DIVISION 13 WORK? 27 Division 13 sets up a number of objectively ascertainable criteria, the satisfaction of which will create liability. Relevantly for present purposes, those are: · an international agreement · between parties not dealing with each other at arm's length · under which property · is supplied · for less than the arm's length consideration in respect of the supply or for no consideration. 28 In Pt IVC proceedings a taxpayer may challenge, by evidence and argument, the existence of all or any of those criteria. The taxpayer bears the burden of doing so. However, the matters in respect of which the applicants in the present case seek particulars do not concern the existence or otherwise of any of these criteria. 29 In making the para (d) determination that subs 136AD(1) or (2) should apply, the Commissioner is not making any finding as to an element or criterion of tax liability. It was argued, with some support from extrinsic materials, that Div 13 was enacted for the purpose of capturing for Australian revenue purposes what would otherwise escape by means of "profit shifting". That may well have been the case. But what lies behind the enactment of a taxing provision as a matter of public policy or economic theory is not the same thing as the elements or criteria of tax liability which Parliament has laid down. To have the present Pt IVC appeal turn on whether or not "profit shifting" has taken place would be to create a new dispensation. 30 Another theoretical possibility that was discussed in argument was that the Commissioner might determine under para (d) of subss 136AD(1) and (2) that the section should not apply because the amounts involved were trivial or, as lawyers would say, de minimis. But if the Commissioner does make a determination, it would hardly be open to the taxpayer to argue in the Pt IVC appeal that there should be no liability because, in the taxpayer's view, trivial amounts were involved. 31 As to the determination of the deemed arm's length consideration under subs (4), there may have been an implicit assumption in the present case that such determinations are a necessary and inevitable feature of Div 13 assessments. That is not so. A subs (4) determination only becomes necessary when "for any reason" it is "not possible" or "not practicable" for the Commissioner to ascertain the arm's length consideration. In many cases such ascertainment could be quite possible and practicable for the Commissioner, indeed, relatively straightforward. The "property" in question might be something of a kind regularly traded in a market between arm's length traders. Examples spring readily to mind: shares in listed companies, cargo ships, aircraft, or commodities such as copper or coffee. The market may be able to tell the Commissioner without much difficulty, after appropriate consultation with economists and other experts, what the property in question would have fetched between arm's length traders. 32 Once it is seen that subs (4) is there for the exceptional case, its function in the Div 13 machinery becomes apparent. It operates like an averment clause. It does not create an irrebuttable presumption. It simply provides the Commissioner with a means of proof. Presumably in the present case the applicants will endeavour to show that the arm's length consideration would have been the amount in fact received or receivable by them, or at any rate would have been something less than the figure deemed by the Commissioner. It is difficult to see how the possibility or practicability of ascertainment that faced the Commissioner at the time of assessment would be relevant to the applicants' argument, before the Court, that the figure advanced by them is in fact the correct arm's length consideration. 33 If, after evidence and argument, the applicants fail to show that the figure advanced by them is, on the balance of probabilities, the correct arm's length consideration, then the assessments will be affirmed. It could hardly matter that at the time of the assessment it might have been practicable or possible for the Commissioner to ascertain an arm's length consideration. Logically, what tax liability must turn on is whether the applicants have managed to displace the Commissioner's deemed figure. 34 Conversely, if the applicants succeed with their figure on the appeal, the Commissioner could not argue that his deemed figure (ex hypothese arrived at on the basis of inadequate information or perhaps no information at all) should nevertheless prevail because at the time of assessment it had indeed been not possible or practicable to ascertain anything else. 35 In the present case, the Commissioner avers that it is not possible or not practicable for him to ascertain the arm's length consideration in respect of the relevant supply of property and, in reliance on that averment, has made a determination of an amount as the arm's length consideration in respect of that supply. That determination, by virtue of the deeming operation of subs 136AD(4), provides the arm's length consideration in respect of the supply for the purposes of para (c) of subss 136AD(1) and (2). 36 Had the Commissioner taken the position, as he may well have, that it was possible or practicable for him to ascertain the arm's length consideration in respect of the relevant supply of property and ascertained it to be the same amount as he determined it to be under subs 136AD(4), then, and subject to what we have to say below, it does not appear to us that there would be any difference in the nature of the contest between the Commissioner and the applicants. 37 The only difference may be this: in order to show that an assessment made in reliance on determinations made under para (d) of subs 136AD(1) or (2) and subs 136AD(4) is excessive, it would be necessary for the applicants to show that the arm's length consideration is both ascertainable and less than the deemed amount; that, in itself, would seem to require the applicants to prove the actual amount of the arm's length consideration. In the course of doing so they would necessarily establish that the arm's length consideration was ascertainable. Whereas, in order to show an assessment made in reliance on a determination made under para (d) of subs 136AD(1) or (2) when the Commissioner has ascertained the arm's length consideration otherwise than in reliance on a determination under subs 136AD(4), it may only be necessary for the applicants to prove that the correct arm's length consideration is less than the Commissioner's ascertainment of it; it may not be necessary to prove the actual amount of the arm's length consideration, that is, that it is ascertainable.

ANALYSIS OF APPLICANTS' ARGUMENT 38 It lies at the heart of the applicants' case that unless the exercise of the Commissioner's discretions under para (d) of subss 136AD(1) and (2) and subs 136AD(4) can be examined on judicial review grounds, the determinations cannot be challenged, with the result, so it is contended, that s 136AD provides for an "incontestable tax". For the reasons already referred to above ([27] to [37]), and those that follow, we are unable to accept this contention. 39 First, it is open to a taxpayer to challenge the existence of the pre-conditions necessary to empower the Commissioner to make a determination under subs 136AD(4), that is, by showing that it is possible or practicable for the Commissioner to ascertain the arm's length consideration in respect of the supply. The applicants appear to concede as much but contend that this does not enable the Court to substitute its opinion of the arm's length consideration in respect of the supply for that determined by the Commissioner. But it is not a matter of the Court substituting its opinion of the arm's length consideration for that determined by the Commissioner. It is a matter of the applicants proving that the assessment is excessive by showing that the correct arm's length consideration is less than the deemed amount of the Commissioner's determination. 40 Second, if the applicants were able to show that it was possible or practicable for the Commissioner to ascertain the arm's length consideration in respect of the supply, by proving that the correct arm's length consideration in respect of the supply was an amount less than the amount determined by the Commissioner under subs 136AD(4) (they would hardly seek to do this if the ascertainable arm's length consideration in respect of the supply was greater than the amount determined by the Commissioner under subs 136AD(4)), then the applicants would have done two things: 1. proved that the statutory pre-conditions for the Commissioner's reliance on subs 136AD(4) did not exist; and 2. proved that the assessment was excessive: s 14ZZO(b) of the TAA In the result, the Commissioner's objection decision would be set aside and substituted by a decision allowing the objection to the extent of the excess. 41 Third, in seeking to show that the pre-conditions of the subs 136AD(4) determination did not exist, the applicants would have to establish that there was an ascertainable arm's length consideration and that it was less than the Commissioner's amount (see [37]) above). If they failed to do so, the Commissioner's determination would stand. But that is no different from a taxpayer failing to discharge the onus in respect of an assessment issued in reliance on s 167 of the ITAA: see Dalco. 42 In our view, the fact that the Commissioner's exercise of the discretions vested in him under para (d) of subss 136AD(1) and (2) and under subs 136AD(4) may not be examined on judicial review grounds does not mean that the determinations cannot be challenged; it certainly does not lead to the result that s 136AD provides for an "incontestable tax". 43 Before we turn to examine some of the authorities, we would make the general observation that, in our view, the answers to the questions posed by this appeal lie in the analysis of the language of Div 13 in the light of subs 177(1) itself rather than an intermediate classification of provisions as turning on the Commissioner's state of mind or otherwise. This is not to suggest that a distinction of the kind drawn by his Honour below between "state of mind" cases and "determination" cases is neither valid nor appropriate, but arguably it does not fully explain why subs 177(1) does not prevent examination of the due formation by the Commissioner of his state of mind or satisfaction, whereas it does prevent examination of the due making by the Commissioner of his determination. In our view, the explanation is to be found in the fact that the first goes to substantive liability whereas the second is merely procedural. Where Parliament intended that the criteria for liability should include the due formation by the Commissioner of his state of mind, opinion or judgment, either in lieu of objective criteria, or as an addition to incomplete objective criteria, subs 177(1) has never denied the ability of a taxpayer to examine the due formation of that state of mind on judicial review grounds. But where Parliament has exhaustively set out the criteria for liability by reference to objective matters, but has made the application of those criteria dependent upon a step being taken by the Commissioner, the step is procedural in the sense that it is not a step which forms part of the criteria for liability. The due making of such a determination is not subject to examination on judicial review grounds. 44 As indicated in [22] above, his Honour below undertook a comprehensive review of the authorities from Avon Downs to Syngenta. We do not propose to undertake a similar review. The principal authorities relied on by his Honour were Peabody, Sleight and Syngenta although his Honour spent some time seeking to reconcile what was said by Gummow J, as a judge of this Court, in Jackson and by Mason CJ in Richard Walter. In addition, there is the decision of Hill J in CPH Property Pty Ltd v Commissioner of Taxation (1998) 88 FCR 21, a case not referred to below, but which appears to support his Honour's conclusion below and the position taken by the Commissioner on this appeal. Undoubtedly, it makes more explicable what Hill J said as a member of the Full Court in Sleight. 45 In Peabody, the High Court (at 382) said: "Under s 177F(1), the Commissioner's discretion to cancel a tax benefit extends only to a tax benefit obtained in connexion with a scheme to which Pt IVA applies. The existence of the discretion is not made to depend upon the Commissioner's opinion or satisfaction that there is a tax benefit or that, if there is a tax benefit, it was obtained in connexion with a Pt IVA scheme. Those are posited as objective facts. The erroneous identification by the Commissioner of a scheme as being one to which Pt IVA applies or a misconception on his part as to the connexion of a tax benefit with such a scheme will result in the wrongful exercise of the discretion conferred by s 177F(1) only if in the event the tax benefit which the Commissioner purports to cancel is not a tax benefit within the meaning of Pt IVA. That is unlikely to be the case if the error goes to the mere detail of a scheme relied upon by the Commissioner. An error of a more fundamental kind, however, may have that result - where, for example, it leads to the identification of the wrong taxpayer as the recipient of the tax benefit. But the question in every case must be whether a tax benefit which the Commissioner has purported to cancel is in fact a tax benefit obtained in connexion with a Pt IVA scheme and so susceptible to cancellation at the discretion of the Commissioner." (Emphasis added) 46 In CPH Property, Hill J (at 53F) said: "… Part IVA (and in particular s 177D) itself applies without the exercise of discretion. Further, although s 177F(1) and (3) proceed on the basis of an exercise of discretion, the existence of the discretion is not made to depend upon the Commissioner's opinion about tax benefit or that such a benefit results in connection with the scheme, for these are matters of objective fact: cf Peabody at 382. While it may be thought to be extraordinary as a matter of administrative law that the exercise of a discretion by reference to wrong matters may nevertheless be a valid exercise of discretion, that proposition may flow from Peabody itself." (Emphasis added) 47 Interestingly, in the same case, his Honour had to consider the application of s 177E to a distribution of the assets of two United Kingdom incorporated companies, in particular the formation of the Commissioner's opinion under para (b) of subs 177E(1), which provides: "(b) in the opinion of the Commissioner, the disposal of that property represents, in whole or in part, a distribution (whether to a shareholder or another person) of profits of the company (whether of the accounting period in which the disposal occurred or of any earlier or later accounting period);" The formation of an opinion by the Commissioner in terms of para (b) of subs 177E(1) is an element or one of the criteria for liability to tax. His Honour (at 51F - G) said: "It is clear from the language of s 177E(1)(b) that for s 177E to operate so as to deem the scheme to be one to which Pt IVA applies the Commissioner must form an opinion that the disposal represents a distribution of profits of the target company, although the relevant profits may be of the accounting period in which the disposal occurred, or of any earlier or later accounting period. The opinion is relevant, as well, to the operation of par (c), which makes it clear that the Commissioner must determine a figure to be the amount of profits represented by the disposal. It is submitted on behalf of the applicants that the formation of an opinion by the Commissioner was vitiated in law and, for that reason, whether otherwise there was a dividend stripping, the provisions of Pt IVA had no operation. It is necessary to turn to what the Commissioner did." At 52F - 53B, his Honour concluded: "Apart from it being conceded that the Commissioner had the names of the United Kingdom companies reversed, so that the figures shown, for example, as the net assets of CPIL(UK) are, it would seem, the net assets of CPIHL(UK) and vice versa, it is now also conceded that CPIL(UK) did not on any view of the matter have profits sufficient to support treating any disposal of assets as representing a distribution of profits. The Commissioner was only able to get to the result he did by pooling the assets of the two companies, when clearly he had to consider each separately for the purposes of s 177E(1)(b). The fact that the paid up share capital of CPIL(UK) was, as at 10 May 1990, US$546,819,650 and that of CPIHL(UK) was US$103,252,414 hardly seems to have disturbed the Commissioner from the arbitrary course which he pursued, even if it is true that each company had more net assets than are shown on the determination. What the determination makes clear is that the Commissioner never turned his mind to the question of what amount of profits existed in each company, let alone how much thereof was represented by the relevant disposal which he identified. The determination was made at a time when it was known that each target company had been liquidated. Once liquidated it could never have more profits than it had immediately before. It is clear that the discretion of the Commissioner under s 177E(1)(b) miscarried. As Pt IVA can not apply to a case under s 177F unless the Commissioner has formed the relevant opinion, and as he did not, the assessments, so far as they are dependent upon s 177E, must be set aside. " 48 Hill J's reasons in this case illustrate the distinction drawn by his Honour below between "state of mind" cases and "determination" cases. The Commissioner's state of satisfaction under para (b) of subs 177E(1) was one of the criteria for liability to tax and, notwithstanding subs 177(1), the formation of that state of satisfaction by the Commissioner could be examined to see whether it was infected by error of law, that is, whether the Commissioner turned his mind to the right question, whether he failed to take into account relevant considerations, whether he took into account irrelevant considerations and so on. On the other hand, the Commissioner's determination under subs 177F(1) is posited not on the Commissioner's opinion about the tax benefit or that such a benefit results in connection with the scheme, for these are matters of objective fact. They are elements or criteria for liability to tax, but the Commissioner's opinion about them is not. In this sense, the determination is procedural and the due making of it is beyond examination. 49 In Sleight, Hill J at [103] - [104] said: "[103] The second question is whether Mr Sleight could challenge the determination on the basis that the exercise of discretion by Mr D'Cunha miscarried in that he had failed in making the determination to take into account matters personal to Mr Sleight, for example, the fact that his taxable income after allowance of deductions claimed was quite small. [104] The answer to the submission lies, as his Honour noted in the provisions of ss 175 and 177 of the Act. Section 177(1) provides that production of a notice of assessment or copy, even in proceedings in this Court challenging an assessment brought under Pt IVC of the Taxation Administration Act will be conclusive evidence 'of the due making of the assessment'. The subsection allows there to be an issue on the appeal relating to the assessment whether the assessment is excessive. Section 175 ensures that the validity of an assessment is not to be affected by reason that any provision of the Act is not complied with." 50 After referring to passages from the reasons of the High Court in George and from the reasons of Mason CJ in Richard Walter, Hill J at [107] said: "[107] In other words, it is not open to a taxpayer to challenge an assessment under Pt IVA by showing some error in the making of that determination." 51 In conclusion, at [110], his Honour said: "[110] The question whether the Commissioner's discretion as to whether there was a scheme to which Pt IVA applied miscarried is thus not an issue in an appeal. Rather the issue will be, relevant to the present appeal, whether, the determination having been made, there was a scheme to which the provisions of Pt IVA applied and if so, whether there was a tax benefit obtained in connection with that scheme. These will be matters of fact and the burden will lie on the taxpayer to show that objectively there was no scheme in connection with which the taxpayer obtained a tax benefit. If the taxpayer satisfies that burden he or she will have shown the assessment was excessive. That will not be shown by the taxpayer demonstrating that the person who made the determination in some way erred in making it so that the discretion conferred upon the Commissioner miscarried." (Emphasis added) Like his Honour below, we read the word "discretion" in the first sentence of this extract as a mistake for "decision" or "position". Part IVA does not provide the Commissioner with a discretion as to whether or not there is a scheme to which Part IVA applies. 52 Hely J agreed (at [247]) with his Honour's reasons and, on this aspect, so did Carr J (at [242]). 53 All but finally, there is the decision of a single judge of this Court (Gyles J) in Syngenta. Unlike Peabody, CPH Property and Sleight, Syngenta was not concerned with Part IVA but, like this case, with Div 13. Gyles J discussed the taxpayer's motion for discovery and particulars in circumstances substantially identical to those of the present case. To quote from his Honour below (at [147] and [148]): "[147] Gyles J considered that an appeal to the Court assumed the existence of a valid assessment, and raised only the question whether the amount of it was excessive. This, in turn, his Honour said, involved only one issue: whether or not the actual consideration was an arm's length consideration as defined in s 136AA (see [8] above). His Honour remarked that this is an objective question, and that the Commissioner's opinion concerning it is not probative evidence in respect of it. I respectfully agree (cf Gummow J's treatment of the first separate question in Jackson). [148] It follows from his Honour's judgment that it is not open to a taxpayer to establish excessiveness by attacking purported par (d) and subs (4) determinations on judicial review grounds." 54 Finally, we were referred by Ms Gordon, Senior Counsel for the Commissioner, to the very recent observation of a Full Court of this Court in Cumins v Commissioner of Taxation 2007 ATC 4303 at [41] where the Court said: "…that there is no over-arching or final discretion to be exercised independently under s 177F." 55 The applicants made the following submissions in relation to these authorities and other authorities which they touch: (1) This Court should not approve the decision of Gyles J in Syngenta. The submission continued: "There, his Honour found that 'the excessiveness or not of the assessments in the present case involves one issue … whether or not the consideration was "arm's length consideration"' and that this was 'an objective question'. His Honour was mistaken in taking this view of the only relevant issue. The question whether or not the consideration was 'arm's length consideration' is not a purely objective question in a case where the Commissioner has made a determination under sub-sec (4) of 136AD. Nor does establishing the 'arm's length consideration' necessarily resolve the issue of excessiveness. Even where consideration is less than arm's length, there remains the question whether or not the discretion conferred by para (d) of each of sub-secs (1), (2) and (3) of sec 136AD that the relevant sub-section should apply, has been properly exercised." (2) The decision in Sleight, to the extent that it dealt with the reviewability of determinations under s 177F should be overruled by this Court or restricted to its own facts. Alternatively, the statutory architecture of Part IVA is so different from Div 13, the decision in Sleight should be distinguished by reference to the difference. (3) While the passage from CPH Property at [46] above does say that the exercise of the discretion does not depend on the Commissioner's opinion as to the existence of a tax benefit, according to the applicants' Senior Counsel: "It doesn't say that there was no other content in the discretion and … nothing to which my learned friend has taken your Honours would suggest that there is no other content in the discretion". (4) What Hill J said in Sleight extracted at [49] - [51] above is inconsistent with what was said by Gummow J in Jacksonat 470.3, namely: "The Commissioner's determinations under s 177F(1) and (2) will lack the authority of the Act if the Commissioner did not address himself to the questions which the sub-sections formulate, if his conclusions were affected by some mistake of law, if he took some extraneous reason into consideration or excluded from consideration some factor which would affect his determination: Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360 per Dixon J." (5) It is also inconsistent with what was said by Mason CJ in Richard Walter at 178.5: "It is evident from the provisions that the Commissioner's power to make determinations under s 177F(1) and (2) is conditioned upon the fact that a tax benefit has been obtained, or would have been obtained but for the section, in connection with a scheme to which Pt IVA applies. Although the power to make a determination is conditioned in this way, the making of the determination forms part of the process of assessment and goes to the ascertainment of the substantive liability of the taxpayer to tax. This conclusion is material to the application of s 177(1) to be discussed later." (Emphasis in original) This was repeated at 184.2, where the Chief Justice said: "For the reasons stated earlier, the making of a determination by the Commissioner under s 177F of the Act is a determination going to substantive liability and, in conformity with the interpretation of s 177(1) adopted in George, McAndrew, F J Bloemen and Dalco, is put in issue by an appeal which challenges the assessment on the ground that it is excessive." Finally, at 187 - 188, the Chief Justice said: "In such an appeal, it is for the taxpayer to show that the assessment is excessive. In that context, the existence of an inadmissible purpose on the part of the Commissioner plays no part. The central element of the legislative regime is the making of an assessment by the Commissioner which ascertains the taxpayer's liability to tax and the reference to the Tribunal or the appeal to the Federal Court, in which the taxpayer is entitled to dispute his or her substantive liability to tax. In such an appeal, the taxpayer is at liberty to challenge the exercise of any relevant discretion by the Commissioner. Thus, on appeal, the court will set aside the assessment if any relevant exercise of discretion by the Commissioner is affected by error of law, if he has taken an extraneous factor into account or if he has failed to consider a material factor [citing Avon Downs at 360]." 56 Our responses to those submissions, not necessarily in the same order, are as follows: (1) What was said by Gummow J, as a judge of this Court, in Jackson at 470.3, has been overtaken by events, notably Peabody, in particular at 382, Hill J in CPH Property at 53F and Hill J in Sleight at [103] - [110], with whom Carr and Hely JJ agreed. It should not be followed. (2) With respect to other alleged inconsistencies between what was said by Hill J in Sleight in the passages extracted in [49] - [51] above and the observations of Mason CJ in Richard Walter extracted at (5) of [55] above, his Honour below made the following observations (at [129]): "Unguided by later authority, one might be excused for thinking that the effect of both passages from the judgment of Mason CJ is that it is open to a taxpayer on an appeal to this Court under Pt IVC of the TAA to challenge a determination under s 177F, and, I suggest it would follow, under s 136AD, on judicial review grounds. The reason is that the taxable income and tax are as high as they are only because the discretion to make a determination was exercised, and it is open to the taxpayer to show the excessiveness of the assessment by bringing down the determination. As will be seen, however, in the case to be discussed next, both the primary Judge and a Full Court of this Court understood Mason CJ differently." A little later, after referring to Sleight and, in particular to the passages from the judgment of Hill J extracted in [49] - [51] above, his Honour below said (at [142]): "With respect … their Honours [in Sleight] appear to have found the result to be more clearly dictated by the authorities, and, in particular, by Richard Walter, than I have found it to be. It is not clear to me why the passage from the judgment of Mason CJ in Richard Walter at 184 (set out in [128] above) establishes that in an appeal it is not open to the taxpayer to challenge the making of a determination on judicial review grounds. Moreover, there is no reference to the passage from the judgment of Mason CJ at 187-8 (also set out at [128] above) (the primary Judge, RD Nicholson J, did refer to that passage, but did not discuss it)." (Emphasis in original) At [144] his Honour concluded: "Sleight should be regarded as establishing that the legislature has revealed an intention that even in an appeal under Pt IVC of the TAA, the Commissioner's reasoning that led him to make the determination is shielded by s 177(1) from attack on judicial review grounds as part of the 'due making' of the assessment. Of course, the fact itself of the making of the determination goes to the substantive liability to tax: if a determination was not even purportedly made, or if a determination purportedly made was not authorised by the ITAA because the statutorily prescribed conditions of the enlivening of the power were not satisfied … the assessment will be shown to be excessive." We substantially agree with those observations of his Honour below, but would add the following: (i) Unlike his Honour (at [128]), we do not read what Mason CJ said at 187 - 188 of Richard Walter (see (5) of [55] above) as referring specifically to the susceptibility of a determination under s 177F to attack in an appeal to this Court against an objection decision. As we read it, and the surrounding context, the Chief Justice is referring to appeals generally, not those against assessments made in reliance on Part IVA and anterior determinations under s 177F. His references to "the exercise of any relevant discretion" and "any relevant exercise of discretion" support our reading of the extract. So read, and accepting that the exercise of a discretion where it is an element or criterion for liability to tax is examinable, the passage in question is not inconsistent. (ii) The passages from the Chief Justice's reasons at 178 and 184 of Richard Walter,extracted in (5) of [55] above, refer to the s 177F determination as going to substantive liability. That it undoubtedly does; as his Honour below said at [144] in the passage quoted above: "… the fact itself of the making of the determination goes to the substantive liability to tax". If no determination is made, the assessment to give purported effect to it will be shown to be excessive. But neither these passages nor the passage at 187 - 188 considered in (i) are, in our view, inconsistent with what Hill J said in Sleight at [107], namely: "… it is not open to a taxpayer to challenge an assessment under Part IVA by showing some error in the making of that determination". (3) In response to the applicants' submission that this Court should overrule Sleight, or restrict it to its facts or, in alternative, distinguish it on the basis that the statutory architecture of Part IVA is so different from Div 13 that difference warrants it being so distinguished: (i) We, like his Honour below (at [143]), agree "… that that passage in Peabody [extracted at [45] above] does favour the view that the only basis on which a determination by the Commissioner under s 177F … could be challenged, even in an appeal, is the non-fulfilment of the statutorily specified conditions precedent to the enlivening of the discretion …". (ii) While the language of Part IVA is undoubtedly different from Div 13, in our opinion the relevant statutory architecture of Part IVA, for the reasons already given at [27] to [37] above, is not different from that of Div 13. We agree with the observation of his Honour below (at [141]): "While Sleight related to a determination under s 177F(1), and the present case relates to determinations under s 136AD, there is no material difference in the statutory architecture that would render the Full Court's decision in Sleight inapplicable to the circumstances of the present case." (4) The applicants' submissions that nothing that was said by Hill J in CPH Property suggested that there was no other content in the discretion in s 177F (that is, other than the statutory pre-conditions to enliven its exercise) can be answered by saying that nothing was said by his Honour to suggest there was any further content. In our view, the decision in CPH Property contains, within itself, a complete answer to the applicants' arguments in the present case, linking as it does the decision of the High Court in Peabodyand the Full Court in Sleight. (5) Finally, for all of the foregoing reasons, we decline the applicants' invitation to not approve the decision of Gyles J in Syngenta insofar as it held that it is not open to a taxpayer to establish that an assessment is excessive by attacking determinations made under para (d) of subs 136AD(1) or (2) and subs 136AD(4) on judicial review grounds.

LEAVE TO APPEAL 57 Since the decision below was an interlocutory one, leave to appeal is necessary: Federal Court of Australia Act 1976 (Cth) s 24(1A). Usually in this Court leave questions have been determined on the sufficient doubt/substantial injustice criteria: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. However, as Décor itself makes clear, the Court retains an unfettered discretion conferred in unqualified terms. The present case raised important questions of tax law administration for the first time at an appellate level in relation to Div 13 of Part III of the ITAA. In reality, the argument, which extended over two days, was no different than that which would have occurred on a substantive appeal. In the circumstances we think leave to appeal should be granted but the appeal should be dismissed with costs, including reserved costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicants: Mr JW Durack SC with Ms RL Seiden and Mr JH Momsen

Solicitor for the Applicants: Becwell Legal Services Pty Ltd

Counsel for the Respondent: Ms MM Gordon SC with Mr SHP Steward

Solicitor for the Respondent: Australian Government Solicitor