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FEDERAL COURT OF AUSTRALIA

SAUNDERS v FEDERAL COMMISSIONER OF TAXATION

JENKINSON J

16 December 1987 - Adelaide

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Jenkinson J    The motion is in an appeal against the respondent's decision disallowing the applicant's objection against the assessment. The respondent furnished particulars of the assessment which included the assertion that notice of an assessment of undistributed profits tax in relation to a company, H W Holdings Pty Ltd, concerning which the promoters recoupment tax assessment had been raised, had been served "in accordance with the provisions of s 15(7)" of the Taxation (Unpaid Company Tax) Assessment Act 1982 (the 1982 Assessment Act). Section 15(7) of the 1982 Assessment Act is concerned only with service of what are in s 15 called notional assessments, which are authorised by ss 15(3)and 15(4) to be made in certain circumstances defined in s 15, of ordinary company tax or undistributed profits tax that would be payable by a company in relation to a year of income if the company had not ceased to exist. Section 15 is a provision supplementary to the scheme of taxation which has been described in MacCormick v FCT (1984) 158 CLR 622; 15 ATR 437.

   Section 15(3) authorises the making of an amended assessment after the company has ceased to exist. There is nothing in the material before me to suggest that it was that section upon which the respondent relied. Section 15(4) provides:

   

"(4) Where- (a)

 

the company ceased to exist before an assessment was made of the ordinary company tax or undistributed profits tax payable by the company in relation to a year of income (in this section also referred to as the 'relevant year of income'), being the year of income in which the last sale time or last purchase time in relation to the scheme occurred or a preceding year of income; and

 (b)  the Commissioner is of the opinion that, if the company had not ceased to exist and an assessment had been made of the ordinary company tax or undistributed profits tax, as the case may be, payable by the company in relation to the relevant year of income-

 (i)  ordinary company tax or undistributed profits tax, as the case may be, would have become due and payable by the company in relation to the relevant year of income; and

 (ii)  if that ordinary company tax or undistributed profits tax, as the case may be, had remained unpaid, recoupment tax would have become payable by a person or persons in relation to the ordinary company tax or undistributed profits tax, as the case may be, payable by the company in relation to the relevant year of income,

 

the Commissioner may make an assessment (in this section also referred to as the 'notional assessment') of the ordinary company tax (in this section also referred to as the 'notional ordinary company tax') or undistributed profits tax (in this section also referred to as the 'notional undistributed profits tax'), as the case may be, that would be payable by the company in relation to the relevant year of income if the company had not ceased to exist."

   Paragraph 4 of the applicant's request for particulars is in these terms: "In so far as the respondent relies upon s 15 of the Act state:

 (a)  Each act, fact, matter, thing and circumstance (including the dates thereof) upon which the respondent relies to support the contention that the company ceased to exist;

 (b)  What, if any, opinion was formed by the respondent under paragraph 15(4)(b) of the Act including the date thereof;

 (c)  Each act, fact, matter, thing and circumstance upon which the respondent relied to form his opinion (if any) that if the company had not ceased to exist and an assessment had been made of the undistributed profits tax payable by the company in relation to the year of income ending 30 June 1978, undistributed profits tax would have become due and payable by the company in relation to that year of income."

   The respondent's statement in written response to that request was: "The respondent objects to provide the particulars sought on the ground that they are not relevant and are unnecessary to the determination of the issues in the appeal."

   The applicant moves for an order that the respondent furnish the particulars requested in para 4, which I have quoted.

   If, as in their submissions counsel for the parties assumed to be the case, the company in relation to which the promoters recoupment tax assessment was made, namely H W Holdings Pty Ltd, ceased to exist before the assessment was made of the undistributed profits tax upon which the promoters taxable amount has been taken to exist, then the particulars sought, at least in s 4(b), cannot be described as "not relevant", as in the respondent's statement of objections which I have quoted they are described. The existence of a promoter's taxable amount depends on there having been due and payable by that company at a particular time an amount of undistributed profits tax in relation to a particular year of income in respect of which an assessment has been made: see ss 7(1)(d), (f) of the 1982 Assessment Act. A notional assessment under s 15(4), which for the purposes of the 1982 Assessment Act is required by s 15(11) to be treated as if it were an assessment made under the Income Tax Assessment Act 1936 of ordinary company tax or undistributed profits tax, as the case may be, payable by the company, may be made only if the condition specified in para (a) of s 15(4) is satisfied. The particulars sought in s 4(b) of the applicant's request are of circumstances which by that paragraph are constituted a condition of the power to make a notional assessment. If one of the conditions were not fulfilled, the purported notional assessment would not in my opinion satisfy the requirement specified in s 7(1)(d) and it would follow that no promoters taxable amount would have existed upon which to found the liability to promoters recoupment tax. The grounds of the applicant's notice of objection against the assessment of promoter's recoupment tax raise the contention that conditions specified in paras (a)and (b) of s 15(4) were not satisfied. On this question of relevance I respectfully adopt what Beaumont J observed in Cripps and Jones Holdings Pty Ltd v FCT (1987) 18 ATR 673 at 682:

   Read literally, s 15(4)(b) requires the formation by the Commissioner of the opinion previously mentioned before a "notional" assessment may be made. There is no reason to depart from the ordinary meaning of the words used in this provision. It follows that the power to issue a "notional" assessment in the present case was dependent upon the formation of the requisite opinion by the Commissioner. Since that question was not addressed by the Commissioner, it further follows that the antecedent conditions to the making of the assessments were not satisfied. Accordingly, the assessments were bad unless saved by some other statutory provision: see Giris (1968) 119 CLR 365 at 374, 379, 381-2, 384 and 388-9; 1 ATR 3 at 7, 11, 13, 15, 17, W J & F Barnes Pty Ltd v FCT (1957) 6 AITR 386 at 394, 400; 96 CLR 294 at 304, 311.

   I should add, in this connection, that it was also submitted on behalf of the Commissioner that the formation of the requisite opinion was "legally irrelevant". It was said that the fact that the target company had disappeared was beside the point - the non-existence of the company could not alter the fact that it was liable for ordinary company tax and Div 7 tax. So much may be accepted, but it is still not open to the Commissioner to ignore the statutory requirements of s 15(4)(b) that he must form the stated opinion before he can issue a special "notional" assessment which may bind third parties. It is hardly necessary to say that the Commissioner has no power to dispense with this requirement."

   Beaumont J was dealing with a case in which the taxpayer questioned not the existence of the circumstances specified in s 15(4)(a) of the 1982 Assessment Act , but the existence of circumstances specified in s 15(4)(b) .

   The submissions of Mrs Moshinsky of counsel for the respondent were directed to demonstrating, not the irrelevance, but the inutility of providing particulars of the kind sought by para 4 of the applicant's request. The production, at the hearing of the appeal, of a document under the hand of the respondent purporting to be a copy of the notice of the notional assessment which the respondent had made would afford, according to Mrs Moshinsky's submission, conclusive evidence of the due making of that assessment and conclusive evidence that the amount and all the particulars of the assessment are correct. Such a document was given that conclusive evidentiary effect, it was submitted, by s 177(1) of the Income Tax Assessment Act 1936, which provides:

   

"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 on appeal against the assessment) that the amount and all the particulars of the assessment are correct."

   If s 177(1) were to have on the hearing of this appeal the effect which Mrs Moshinsky's submission attributes to it, that would not in my opinion have for a consequence that particulars of the kind sought by the applicant would be irrelevant to the issues in the appeal, as those issues might be stated at any time before the document was received in evidence. The consequence would be that the conclusive evidentiary evidence of a document of the description contained in s 177(1) would, after that document had been received in evidence, make other evidence on any of those issues pointless and, according to Cross on Evidence 3rd Aust edn p 209, inadmissible. Cf Wigmore on Evidence 3rd edn vol IX para 2492. But, strictly, it cannot be certainly known until the document is tendered in evidence on the hearing of the appeal that tender of any such a document will be made by the respondent. And it cannot, strictly, be certainly known until the close of the evidence that the judge will accept the document as being what it is tendered as being.

   It is a question whether s 177(1) of the Income Tax Assessment Act 1936 has any operation in respect of an assessment of the kind which is authorised by s 15(4) and is therein called a "notional assessment".

   Mr Judd of counsel for the applicant submitted that tender on the hearing of the appeal of a document purporting to be the notice, or a copy of the notice, of the notional assessment in respect of H W Holdings Pty Ltd would not afford any evidence of the due making of that assessment or of the correctness of the amount or particulars of that assessment because s 177(1) comprehends by the words "a notice of assessment" therein only such a document as has been served upon the person liable to pay the tax assessed. Read in the context which Pt IV of the Income Tax Assessment Act 1936 supplies, s 177(1) is to be construed as referring only to notices of assessment of the kind which s 174(1) contemplates, according to the submission. Section 174(1) provides:

   

"As soon as conveniently may be after any assessment is made, the Commissioner shall serve notice thereof in writing by post or otherwise upon the person liable to pay the tax."

   Service of notional assessments is directed by s 15 to be made on persons identified by characteristics related to recoupment tax liability. Support for the submission was found in reasoning of Bryson J in Re Beavis Construction Pty Ltd (In liq); (DCT) (NSW) v Hutchins (1987) 19 ATR 172. Upon an appeal to the Supreme Court of New South Wales against a liquidator's rejection of the Deputy Commissioner's proof of debt copies of notices of assessment of income tax payable by the company in liquidation were received in evidence. The evidence did not persuade Bryson J that any of the notices had been served on the company otherwise than in the mode indicated by s 18 of the 1982 Assessment Act, that is to say by delivering them to persons identified by characteristics other than a connection, at the time of delivery, with the company. Nor did the evidence persuade him that service of any of the notices had been effected in accordance with the provisions of ss 18(1)or (4)or (5)or (9), each of which identifies persons service on whom in the circumstances specified in the sub section is declared to constitute service on the company. Nor was evidence adduced, as his Honour found, that circumstances had existed which would have authorised service in accordance with any of those provisions. In the course of dealing with several submissions on behalf of the Deputy Commissioner and with what his Honour found to be unsatisfactory evidence, Bryson J at (ATR) 172 at 178 made observations on which Mr Judd sought to rely:

   The plaintiff's counsel referred me to the Taxation (Unpaid Company Tax) Act 1982, particularly s 18. It is necessary to notice the provisions of s 18 in order to understand some passages in the evidence, which show that measures have been taken with respect to recovery or attempted recovery of recoupment tax against persons other than the company. It would of course be observed from the terms of s 18 that when s 18 is complied with the company does not receive notice of the assessment, and if actual notice of the assessment is received by the company as a result of action under s 18 that is no more than an accidental consequence of the delivery of the notice to somebody else. However, the present case is not concerned with any alleged liability for recoupment tax and the alleged liability of the company does not depend on the legislation of 1982.

   [The judge continued at (ATR) 180:]

   In view of provisions found in s 18 of the Taxation (Unpaid Company Tax) Assessment Act 1982 it would be rational for the Commissioner to serve copies of notices of assessment on persons other than a company taxpayer and to omit to serve such notices on the company itself, in the course of some attempted compliance with one of the provisions of s 18. There is not evidence before me which establishes that there has been compliance with any of those provisions, but references here and there in the evidence to recoupment tax suggest that the Commissioner may have been proceeding in a way in which deliberate omission of service of notices on the company itself could possibly have been his chosen course. The Commissioner does not before me establish or attempt to establish that, notices having been given to other persons under some provision of s 18, there is no need to give notice to the company itself. For example, dealing with subs (1), the Commissioner's evidence did not identify a person by whom vendor's recoupment tax is likely to become payable or establish any relevant opinion formed by the Commissioner. If the Commissioner had done so the question might have arisen whether the section has the effect of binding not only the persons to whom notice is given but also the company itself to the assessment without the company's having had any opportunity in fact to object, and in that case whether its operation to that effect was valid. At one point, the Commissioner's counsel seemed to claim some benefit from s 18(5), but as there is no basis in the evidence for findings establishing that that subsection applies, for example, proof of the non-application of subs (1) or of the opinion referred to in subs (5), I am left to understand that that is not ultimately the Commissioner's case. [The judge continued at (ATR) 181-2:]

   The plaintiff's sole course has been to tender and rely on the notices of assessment, relying only on s 177(1) of the Income Tax Assessment Act.

   Section 177(1) refers to "a notice of assessment" and to a purported "copy of a notice of assessment" and its internal language shows as must otherwise be very plain that the notice of assessment referred to is a different thing to an assessment. It also must be plain that in the language of the subsection, a notice of assessment is conceived of as a piece of paper, a well established use of the word "notice" but at least originally a figurative use of that word; it is quite plain that notice in another literal sense of knowledge of an assessment is not what is referred to. Section 177(1) follows closely on s 174 which creates a duty on the Commissioner to serve notice of an assessment as soon as conveniently may be after any assessment is made. It is necessary to ask what circumstances must exist in relation to a piece of paper if it is to be "a notice of assessment" referred to in s 177(1)? The references in the subsection both to a notice of assessment which may be produced in evidence, and also to a copy of it appear to have regard to commonplace principles of the law of evidence with respect to documents, under which the original of a document is ordinarily required to be tendered or its absence explained, which being explained the copy may be tendered; the contemplation is plain in subs (1) that the notice itself is a different thing to a copy and that the notice itself may be produced and tendered in evidence. A document containing particulars of an assessment made within one of the meanings attributed to that word in s 6, or specifying matters required to be specified by s 174(2) is not in my opinion a notice of assessment unless the process of service of notice upon the person liable to pay the tax, referred to in s 174(1) has been carried out in relation to it. A document is not a notice unless it is notified to or served on someone, and it seems to me that it is not possible to adopt any view of the meaning of "a notice of assessment" in s 177(1) which is divorced from a process such as s 174 requires of bringing the notice to the notice or knowledge of somebody or serving it on somebody. In my opinion a document purporting to be a notice of assessment which has not been served upon the person liable to pay the tax in the manner in which the Commissioner is directed to serve it in s 174(1) is not a notice of assessment within the meaning of those words in s 177(1), and the conclusive results for which that subsection provides are a consequence of the fact that the document is a notice of assessment in this sense. Mere production of a piece of paper does not establish that it has been so served, and hence does not establish that it is a notice of assessment with those conclusive consequences; and subss (3)and (4) of s 177 do not do that work. In my view the finding which I have made with respect their not having been served disqualifies the documents in evidence from being notices of assessment within the meaning of s 177(1).

   The documents are no more than they otherwise would be notices of assessment because they have been brought to the notice of persons other than the taxpayer, the company in these proceedings. Service of the document on the persons said to be vendor shareholders is simply irrelevant. A document does not become a notice by being served on some extraneous person, nor is the process assisted or affected by the fact that service on or delivery to that extraneous person was authorised or required by some other legislation; the dealings with the notices or copies of the notices under the Taxation (Unpaid Company Tax) Act 1982 do not in my opinion affect the question whether the document is a notice of assessment within the meaning of the Income Tax Assessment Act 1936, a question which is answered with the assistance only of the provisions of that Act relating to such notices.

   Shortly before judgment was given in the Beavis case judgment was given in Hutchins v FCT (1987) 18 ATR 987; 87 ATC 4582. I adhere to the opinion expressed in that case, at (ATR) 989-90; (ATC) 4587-8; that service in accordance with the provisions of s 18(1) is "service of the notice of assessment" within the meaning of that phrase in s 185(1) of the Income Tax Assessment Act 1936: "The submission that service of the notice of assessment in compliance with the provisions of s 18(1) does not constitute such a service as s 185 contemplates cannot in my opinion be accepted. It is contradicted by the legislative assertion in s 18(1) that 'the notice shall, notwithstanding s 174 of the Assessment Act, be served on the company by being served on' the person or persons indicated in s 18(1)(c) or s 18(1)(d). That is, I think, both a direction as to what shall be done by way of service of the notice of assessment in the events specified in s 18(1)(a)and 18(1)(b) and a declaration of the effect, for the purposes of assessment of income tax under the Income Tax Assessment Act 1936 as well as for the purposes of the assessment of recoupment tax under the 1982 Assessment Act, of compliance with the direction, namely the effecting of service of that notice on the company."

   Section 15 of the 1982 Assessment Act presents quite different questions from those which s 18 of that Act raised. Section 18 identifies persons, other than the company assessed, upon whom service of a notice of assessment is to be served in certain circumstances. And in two cases (those to which subss 18(1)and 18(4) relate) express provision is made that "the notice shall, notwithstanding s 174 of (the Income Tax Assessment Act 1936), be served on the company by being served on" the persons other than the company who are respectively identified. But s 15 provides for a process of ascertainment by the Commissioner of an amount which cannot be the measure of any debt or liability of the company to which the process relates. The company has ceased to exist before the process ordained by the section is undertaken, and the amount assessed can have relevance only to the existence and measurement of the liability of persons other than the company. Notwithstanding those circumstances, s 15 makes provision for a notice of the result of the process of ascertaining what would, if the company had not ceased to exist, have been its income tax liability, and for service of that notice, and for conferment on particular persons of rights, in relation to a "notional assessment", of the kind which the company would have enjoyed under Div 2 of Pt V of the Income Tax Assessment Act 1936 in relation to an actual assessment of its income tax liability if it had not ceased to exist. Sections 15(6), (7), (8), (9), (10), (11), (12)and (13) provide:

   "15(6) Where all of the recoupment tax referred to in subsection (3)or (4) is promoters recoupment tax, the Commissioner shall serve notice of the notional assessment referred to in that subsection on the person, or one of the persons, as the case may be, referred to in paragraph (3)(c) or sub paragraph (4)(b)(ii), as the case may be.

   "(7) Where subsection (6) does not apply in relation to the notional assessment, the following provisions have effect:

 (a)  the Commissioner shall serve notice of the notional assessment on-

 (i)  where paragraph (3)(c) or subparagraph (4)(b)(ii), as the case may be, applies in relation to only one person in relation to recoupment tax that is vendors recoupment tax - that person; and

 (ii)  in any other case - any of the persons referred to in paragraph 3(c) or sub paragraph (4)(b)(ii), as the case may be, in relation to recoupment tax that is vendors recoupment tax; and

 (b)  where notice of the notional assessment is served in accordance with subparagraph (a)(ii) - the Commissioner shall serve a copy of the notice of the notional assessment on each person (other than the person on whom the notice of the notional assessment was served) who is included in the representative class in relation to the vendors recoupment tax referred to in sub paragraph (a)(ii).

   "(8) Where notice of the notional assessment and a copy or copies of that notice are served on persons under sub section (7), the Commissioner shall notify each of the persons of the identity of each of the other persons.

   "(9) Where notice of the notional assessment is served under subsection (6)or (7)-

 (a)  if the notice was served under subs (6) or sub paragraph (7)(a)(i) - the person on whom the notice was served; and

 (b)  if the notice was served under sub paragraph (7)(a)(ii) - one person who-

 (i)  is inclined in the representative class in relation to the recoupment tax referred to in paragraph (3)(c)or (4)(b), as the case may be, that is vendors recoupment tax; and

 (ii)  is nominated, by notice signed by more than one-half of the persons included in that class and lodged with the Commissioner,

   has the same rights under Division 2 of Part V of the Assessment Act in respect of the notional assessment as the company would have had if it had continued to exist and the notional assessment were an assessment of ordinary company tax or undistributed profits tax, as the case may be, payable by the company in relation to the relevant year of income and, for the purpose of the exercise of those rights by the person, the provisions of that Division apply in relation to notional assessment in like manner as those provisions apply in relation to an assessment under the Assessment Act.

   "(10) For the purposes of this section, the following persons constitute the representative class in relation to vendors recoupment tax:

 (a)  each person, not being a company, whose whereabouts is known to the Commissioner and in relation to whom the vendors recoupment tax is recoupment tax on a primary taxable amount;

 (b)  each company (including a company in the capacity of trustee) that, in the opinion of the Commissioner, is carrying on business and in relation to which the vendors recoupment tax is recoupment tax on a primary taxable amount; and

 (c)  the other persons referred to in sub paragraph (7)(a)(ii) or, if those persons exceed 5 in number, 5 of those persons selected by the Commissioner as appropriate representatives of those persons.

   "(11) For the purposes of this Act-

 (a)  the notional assessment shall be treated as if it were an assessment made under the Assessment Act of ordinary company tax or undistributed profits tax, as the case may be, payable by the company in relation to the relevant year of income; and

 (b)  the notional company tax that, at a particular time, is applicable in accordance with sub section (12) in relation to the company in relation to the relevant year of income by virtue of the notional assessment shall be treated as if it were an amount of ordinary company tax or undistributed profits tax, as the case may be, that has become due and payable by the company in relation to the relevant year of income and remains unpaid at that time.

   "(12) For the purpose of ascertaining the notional company tax that is applicable, at a particular time, in relation to the company in relation to the relevant year of income by virtue of the notional assessment, the provisions of the Assessment Act apply in relation to the notional assessment and the notional ordinary company tax or notional undistributed profits tax, as the case may be, to which the notional assessment relates as if-

 (a)  the notional assessment were an assessment of the ordinary company tax or undistributed profits tax, as the case may be, payable by the company in relation to the relevant year of income; and

 (b)  the notional ordinary company tax or notional undistributed profits tax, as the case may be, were ordinary company tax or undistributed profits tax, as the case may be.

   

"(13) Without limiting the generality of sub section (12), sections 170and 207 of the Assessment Act apply for the purpose of determining the notional company tax that is applicable, at a particular time, in relation to the company by virtue of the notional assessment."

   Sections 4(1)and (2) of the 1982 Assessment Act provide:

   "4(1) Unless the contrary intention appears in this Act, sections 6and 7A, Part II, section 21, Parts IV and V, Division 1 of Part VI, and Parts VII and VIII of the Assessment Act, and regulations made under that Act, apply for the purposes of the assessment and collection of recoupment tax, and the collection of late payment tax, in like manner, mutatis mutandis, as those provisions apply for the purposes of the assessment and collection of income tax under the Assessment Act.

   

"(2) A reference in this Act to a provision of the Assessment Act shall, unless the contrary intention appears, be read as a reference to that provision in its application, in accordance with sub section (1), for the purposes of this Act."

   Section 177 of the Income Tax Assessment Act 1936 falls within Pt IV of that Act.

   Mr Judd submitted that such a contrary intention as s 4(1) contemplates was manifested in ss 15(11), (12)and (13). Those subsections provided for such application as the legislature intended of the Income Tax Assessment Act 1936 in relation to a notional assessment, it was submitted, and thereby excluded the operation of s 4(1) in relation to that special creation of s 15.

   If the submission were accepted, yet in my opinion s 15(12)(a) would attract the application of s 177 of the Income Tax Assessment Act 1936 to a notice of the notional assessment as if that notice were a notice of an assessment of the undistributed profits tax payable by the company in relation to the relevant year of income. The scheme of the unpaid company tax legislation accords with that construction of s 15(12). Sections 15and 18 alike contemplate, as do ss 5(1)(f)and 7(1)(e), a resolution of any question concerning the income tax liability of what has been judicially described as "the target company" by recourse to the procedures for review ordained by Div 2 of Pt V of the Income Tax Assessment Act 1936, by the company (except in a case where it has ceased to exist) or by a person on whom the right of recourse is conferred by s 15or 18. It is not contemplated that resolution of such a question should be undertaken in the course of review under Div 2 of Pt V of a recoupment tax assessment, in my opinion. It is consonant with that legislative scheme that s 177 should apply to a notional assessment and should be available to facilitate proof, in a proceeding such as this appeal, of the matters specified in paras 7(1)(d)and (f) of the 1982 Assessment Act. Section 177 not only facilitates proof, it precludes litigation in more than one proceeding of the same question of the liability of the target company to income tax; and that accords well, in my opinion, with the legislative scheme disclosed by the 1982 Assessment Act.

   Mr Judd submitted also that, if no such an opinion as s 15(4)(b) postulates were held by the respondent, the purported notional assessment was no assessment at all, and s 177(1) was left with nothing upon which it might operate. Therefore, the submission concluded, particulars concerning the existence of the opinion should be ordered.

   The reasons for judgment in F J Bloemen Pty Ltd v FCT (1981) 147 CLR 360; 11 ATR 914 and in Re DCT (WA); Ex Parte Briggs (1986) 17 ATR 1031; 69 ALR 185 establish, in my opinion, on the one hand that a mere failure on the part of the respondent, by reason of some error, to fulfil the condition specified in s 15(4)(b) could not be proved in contradiction of the conclusive evidence afforded on the hearing of this appeal by production of "a notice in proper form of an assessment" (147 CLR at 378; 11 ATR at 924) purportedly made in pursuance of s 15(4), but, on the other hand, that production of such a notice would not preclude proof, on the hearing of the appeal, that the issue of the original notice had not been preceded by any attempt to do what s 15(4) authorises the respondent to do.

   I do not apprehend that the applicant intends by any of the particulars of objection against the assessment to contend that the respondent had not attempted to do what s 15(4) authorises him to do, per Gibbs J in Bailey v FCT (1977) 136 CLR 214 at 219; 7 ATR 251 at 254:

   Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds. These considerations are no less important in revenue cases than in other cases.

   If a notice of the notional assessment in question in this appeal has come into existence and if that notice or another document of a description contained in s 177(1) is to be tendered in evidence on the hearing of the appeal, it may be that none of the purposes which Gibbs J has stated that particulars are intended to serve would be served by requiring the respondent to furnish particulars of the kind now sought. On the other hand, if the applicant is undertaking to establish, in relation to the respondent's assertion that he has made a notional assessment, facts which the reception into evidence of such a document will not preclude him from proving, it may be that some order for particulars ought to be made. Counsel for the parties did not, as I apprehend, regard the hearing of the motion as having irrevocably concluded when I reserved my decision. As I understood them, they had intended to advance submissions of general application to a motion of the kind now under consideration in an appeal involving a notional assessment which is alleged to have been made without satisfaction of the conditions specified in s 15(4), and to reserve the right to be further heard on the motion after I had stated my conclusions upon those submissions. Discovery has been had by the applicant, as I infer from the circumstance that it was ordered to be given by the respondent before the end of October 1987. Unless discovery was unjustifiably limited under the influence of the mistaken conception of relevance disclosed by the statement of the respondent's objection to furnishing particulars which I have quoted, the applicant should now be in a position to state precisely what issues he desires to raise in relation to the notional assessment, and in a position to demonstrate some evidentiary basis for raising those issues. The respondent should be in a position to produce on the hearing of this motion a document of a description contained in s 177(1) in relation to the notional assessment he asserts that he has made, so that inspection may be made of the document to determine whether it appears to be "a notice in proper form of an assessment" or a copy thereof.

   I will hear counsel for the parties further before determining the motion.