Doyle CJ

Supreme Court of South Australia


Judgment date: 1 March 2002

Doyle CJ

This appeal challenges assessments made by the Commissioner of State Taxation in exercise of powers under the Taxation Administration Act 1996 (SA). The Commissioner made an assessment of the liability of the appellants to pay payroll tax on wages under the Pay-roll Tax Act 1971 (SA) (``the PTA'').

2. The issue on appeal turns on a number of statutory definitions found in the PTA. The

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issue is whether amounts credited by the trustee of a superannuation fund to the accounts of members of the Fund are, in the circumstances, wages for the purposes of the PTA, and so taxable under the PTA as wages paid or payable by the appellants.


3. The facts are set out in a ``Statement of Agreed Facts'' and an ``Additional Statement of Agreed Facts.'' In some respects these documents are not as detailed or as specific as I would have wished. However, there appears to be no dispute about the facts, and I think what follows is an adequate statement of the facts for the purpose of deciding the case.

4. The appellants are employers. Their employees are eligible to join the ``Hills Industries Limited Staff Superannuation Fund'' (``the Fund'').

5. The assets of the Fund are vested in a company (``the trustee''). The trustee holds the assets on trusts contained in a trust Deed which has been varied from time to time over the years. It is convenient to refer to the Deed as ``the Rules''.

6. It is common ground that the Fund is a superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1999 (Cth). Accordingly, the fund is ``an indefinitely continuing fund'': see s 10(1) and the definition of ``superannuation fund''.

7. For relevant purposes the Fund is a defined benefits fund. The Rules provide for the payment of benefits to members determined by reference to the number of years' service a member has with an employer and the member's average salary, calculated according to a formula in the Rules. The member's entitlement does not depend upon the amount of contributions made to the Fund by the member or by the employer, or upon the investment performance of the Fund.

8. Although the Rules require a member to contribute to the Fund, and provide for the employer to make contributions to the Fund (strictly, to the trustee to be dealt with according to the Rules), the employers bear the ``investment risk''. That is, if the assets of the Fund are insufficient in any year to meet anticipated member entitlements, the employers will be required by the trustee to contribute such amount ``as the trustee considers necessary (having obtained appropriate advice) to maintain the level of benefits payable from the Fund...'': r 4.1(a)(ii).

9. On the other hand, at the start of a given period the assets of the Fund might exceed the value of any existing member entitlements and the value of entitlements expected to accrue to members in the future. This might arise for a number of reasons. The amount of contributions required from the employer might have been overestimated in earlier years. The investment performance of the Fund might have been better than anticipated. Members might have left without earning entitlements, at a greater rate than expected. Whatever the reason, in the event of the assets of the Fund exceeding the value of existing entitlements and anticipated benefits, the trustee would not usually require the employer to make a contribution under r 4.1(a)(ii) for the period in question. In relation to the members whose accounts are relevant to this case, there was no other obligation on either of the appellants to make regular or other contributions to the Fund. Accordingly, in the situation postulated the appellants would have what might be called a ``contribution holiday''.

10. Under the Rules, each member is required to make regular contributions at a rate specified in a Schedule to the Rules: r 4.2(a)(i). Members can also make voluntary contributions: r 4.2(a)(ii). While each type of contribution is relevant to this case, as far as I can tell nothing turns on the difference between a required and a voluntary contribution, and hereafter I will deal with the case as if only one type of contribution is in issue.

11. The trustee is required to keep an account in respect of each member, ``for the purpose of calculating the benefits payable from the Fund'': r 7.1. An account is to be kept in respect of each member called ``a Member Account''. Contributions made by the member under r 4.2(a)(i) are to be credited to the account.

12. The appellants have entered into an arrangement with certain employees called a ``salary sacrifice arrangement''. The agreed facts were not particularly informative about the nature of this arrangement. It is one under which the appellants contributed to the Fund the amount that certain members otherwise would have been required to contribute under r 4.2(a)(i).

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13. The possibility of such an arrangement is contemplated by the Rules. Rule 1.1 contains the following definition:

```Member's Deemed Contribution' means, in relation to a member for whom the employer has agreed to make additional contributions sufficient to meet the contributions that the member would otherwise have paid in accordance with clause 4.2, an amount equal to the contributions the member should have made to the fund but for that agreement.''

By r 7.1(a)(ii) the trustee must credit to a member's account:

``Contributions made by the employer which are Member's Deemed Contributions which relate to the member's contributions which would otherwise have been made under clause 4.2(a)(i)...''

14. It was common ground that a payment by an appellant to the trustee of a Member's Deemed Contribution is a payment of wages and taxable under the PTA. I will come to the definitions later.

15. The trustee received an actuarial valuation of the fund dated April 1998, relating to the fund as at 1 July 1997. It is required to obtain such a valuation at least every three years: r 16.4. The valuation included a valuation of the assets of the Fund, a valuation of vested benefits and a valuation of the liability for accrued benefits, which I take to be a valuation of the present value of benefits arising from membership of the Fund to the valuation date. That is, I understand this valuation to be a valuation of the amounts payable, actually or contingently, as at the date of the valuation. In simple terms the effect of the valuation is that the assets of the Fund exceeded the amount estimated as required to meet existing and anticipated entitlements.

16. Accordingly, for the years in question, the years ending 30 June 1998, 30 June 1999 and 30 June 2000, the appellants were not required by the trustee to make any contribution to the Fund under r 4.1(a)(ii).

17. In respect of the Member's Deemed Contributions, the trustee nevertheless credited each relevant Member's Account with the amount of those contributions. In doing this the trustee acted in accordance with the recommendation of the actuary. Because I do not have a full understanding of the salary sacrifice arrangement, the precise basis upon which this occurred is not clear to me. However, it was not suggested that this was a breach of the Rules, and the appeal proceeded on the basis that it was appropriate conduct by the trustee. The amount credited by the trustee to the respective Member Accounts over the three years in question was $813,602.78.

18. The valuation by the actuary states that the Fund is in surplus to a specified amount, having regard to the value of the assets and the valuation of ``past service liabilities'' and ``future service liabilities''. The valuation states that while the trustee should credit Member's Deemed Contributions, this process would cease once the surplus is exhausted.

19. The crediting of the Member Accounts may affect the amount or value of the member benefits which are recorded in Notes to the Financial Statements of the Fund. These financial statements were not included in the agreed facts, but were provided to me at my request. However, the crediting of the Member Accounts has no impact on the Statement of Net Assets of the Fund. To put it simply, the crediting of the Member Accounts has no effect on the gross or net value of the Fund.

20. The agreed facts, no doubt reflecting the actuarial valuation, spoke of the amounts credited to the Member Accounts as being credited ``from the Fund's surplus'': par 21.2. In the same paragraph it is stated that ``once the surplus is exhausted'' the relevant employer would have to resume deducting these contributions from the member's payments. Again, I queried this. While it is true that the trustee might later require the appellants to resume contributing the member's deemed contributions, my understanding is that it is not accurate to speak of these amounts as being deducted from members' remuneration packages, having regard to the nature of the salary sacrifice arrangement. Neither party seemed to regard this aspect of the matter as raising a relevant issue, and so I leave it at that.

21. The main point to be made is that although the trustee credited the relevant amount to the Member Accounts, these amounts were not debited by the trustee to any other account relating to the Fund. In particular, the trustee does not keep or record any ``surplus account'' or like account. As I said, no amount was debited by the trustee to any other account

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in respect of the amounts credited by the trustee to the Member Accounts.

22. Throughout the argument on both sides it appeared to be accepted that a contribution by an employer as a Member's Deemed Contribution fell under r 4.1(a)(ii), and so need not be made, in the sense of a contribution that increases the assets of the Fund, if the trustee considered that was not necessary to maintain the level of benefits payable. Both parties proceeded, as I mentioned earlier, on the basis that the trustee acted properly in crediting the relevant amounts to the Member Accounts, even though no payment was made to the Fund by either appellant.

23. Finally, I record that by r 9.14 no member of the Fund acquires any beneficial or other interest in any asset of the Fund while the assets remain subject to the provisions of the Rules.

24. The significance of the Member Accounts appears from r 5.1. By that Rule, if a member ceases employment with one of the appellants in circumstances under which the member has no entitlement to a benefit under any other Rule, the member receives the amount standing to the credit of the Member Account and an additional amount relating to the number of years of membership of the Fund.


25. There are provisions in the PTA which have the effect of treating the conduct of the trustee, in crediting the accounts, as if it were the conduct of one of the appellants: s 4B. It was common ground that if the crediting of the accounts would have been a taxable payment if made by one of the appellants, it was properly assessed as taxable by the Commissioner. Accordingly, I need say no more about the fact that the crediting of the accounts was an act of the trustee.

26. The central provision of the PTA for these purposes appears to be s 8(1), which provides that subject to one of its subsections ``all wages are liable to payroll tax under this Act.''

27. In s 3(1) the PTA contains a wide- reaching definition of ``wages'', but it was common ground that the amounts credited to the member accounts were not wages for the purpose of this definition.

28. Section 3(2) provides: ``Wages include a superannuation benefit.'' A ``superannuation benefit'' is defined in s 3(1) as follows:

``(a) -

  • (i) a payment of money by an employer on behalf of an employee to, or the setting apart of money by an employer on behalf of an employee as, a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
  • (ii) a payment by an employer of a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; or
  • (iii) a payment of money by an employer on behalf of an employee to, or the setting apart of money by an employer on behalf of an employee as, any other form of superannuation, provident or retirement fund or scheme;


Once again, it was common ground that if the amounts credited to the Member Accounts were taxable as wages, they must be shown to fall within sub-par (a)(i) of this definition.

The assessment

29. The Commissioner's assessment asserts that the relevant amounts are taxable, but appears to rely mainly on s 4B(2), the effect of which is to overcome the fact that the relevant payment is made by the trustee and not by one of the appellants. The assessment does not appear to grapple with the issue of the application of the definition of ``superannuation benefit.'' The same may be said of the decision by the Minister dismissing the appellants' objections to the assessment.

Submissions on appeal

30. As I have already said, sub-par (a)(i) of the definition of ``superannuation benefit'' is to be read on the basis that the act of the trustee in crediting the Member Accounts is the act of the relevant employer-appellant.

31. The appellants submit that the crediting of the Member Accounts with the amounts of the Members' Deemed Contributions, and the resulting increase in the balance of the Member Accounts, is not a payment of money to a superannuation fund or the setting apart of

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money as a superannuation fund. The appellants fasten on the fact that the crediting of the Member Accounts is not as a result of, and does not reflect, an increase in or augmentation of the assets of the Fund. The crediting of the Member Accounts was, in the circumstances, merely the recording of an increased contingent entitlement reflecting a decision by the trustee in accordance with the Rules of the Fund to record that entitlement without requiring either appellant to make a contribution which would augment or increase the fund. The appellants submit that the fund referred to in sub-par (a)(i) of the definition of ``superannuation benefit'' is the Fund, meaning the assets held by the trustee on the trusts contained in the Rules. The appellants submit that the Member Accounts are not, either individually or collectively, ``a superannuation fund'' for the purpose of sub- par (a)(i). In short, the appellants submit that no money was actually paid to the Fund or set aside as (in the sense of supplementing or augmenting) the Fund, because the assets of the Fund did not increase as a result of the crediting of the Member Accounts. Accordingly, the appellants submit that the requirements of sub- par (a)(i) are not satisfied.

32. The Commissioner submits that the crediting of the Member Accounts is to be treated as the act of the employer-appellant, and as I have noted that is not disputed. The Commissioner next submits that the crediting of the Member Accounts gives rise to enforceable obligations as against the trustee, and increases a member's ``future minimum entitlement against the trustee.'' As will appear, with some qualifications I accept that submission. The submission rests on the circumstance that under r 5.1 a member will receive the amount standing to the credit of the Member Account upon ceasing employment if the member has no other entitlement. This submission appears to be correct, subject to the operation of the provisions of the Rules dealing with forfeiture: see r 11. On this basis the Commissioner submits that an act which increases the amount standing to the credit of a Member Account is an increase in a member's minimum enforceable benefit, and so is an act which amounts to a payment of money to a superannuation fund or the setting apart of money as a superannuation fund.

Discussion of submissions

33. I agree that the crediting of amounts to a Member Account can amount to a payment of money or a setting apart of money for relevant purposes. Whether it does or not will depend on the circumstances in which an amount is credited to an account, and the effect of that act. There are several cases that illustrate this point.

34. In
Winchombe Carson Ltd v Commissioner of Taxation (NSW) (1935) 5 ATD 69 the company and certain of its employees executed a Deed containing a scheme to provide retiring allowances for employees. The scheme was carried out by the company opening an account in its books in the name of each employee. The company credited to this account the amount of each employee's contribution pursuant to the scheme, which amount was retained from the employee's salary. From time to time the company also credited each account with an amount equal to the contribution required under the scheme by the employer, and the company also from time to time added interest on the amount credited. The amount credited by the employer as its contribution and for interest, were written off to the company's profit and loss account by a series of book entries.

35. In certain circumstances the employee became entitled to receive the amount standing to his credit in the account in his name. In other circumstances the employee would be entitled to a return of his contributions with interest, any balance in the account reverting to the employer.

36. Without going into all the details of the case, the issue was whether, when the company credited amounts to each account as its contribution, and credited amounts of interest, the amount so credited was an amount ``set apart or paid by the taxpayer in the year of income as or to a fund'' to provide pensions and other benefits for employees, and so a deductible amount for income tax purposes. A Judge of the Supreme Court of New South Wales held that it was. First of all, the relevant legislation did not require that there be a trustee in whom is vested a specific fund. Having disposed of that difficulty, the Judge said (at 74):

``I think that in ordinary business parlance it is not only usual but proper to describe what was done by the company year by year as

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the setting apart of money as or to a benefit fund.''

The Judge does not expand on his reasoning.

37. In the later case of
FC of T v The Northern Timber and Hardware Company Proprietary Limited (1960) 12 ATD 257; (1960) 103 CLR 650 a similar statutory provision was in issue. Again the question was whether an employer was entitled to a deduction for income tax purposes under a provision which allowed such a deduction if an employer, for the purpose of providing benefits for employees, ``sets apart or pays in the year of income a sum as or to a fund from which such benefits.'' would be provided. In this case, in brief, the employer had made provision in its books of account for its prospective liabilities to employees in respect of long service leave. It claimed a deduction in respect of the amounts so provided. The entitlement of an employee to long service leave was regulated by legislation, and by that legislation there was a qualified entitlement after ten years' employment and an absolute entitlement after twenty years' employment. The Court said that when long service leave was actually paid, it would be deductible. The Court rejected the claim that a provision for what might have to be paid in the future was deductible. The Court said (at ATD 259; CLR 657) that putting aside funds to meet a prospective liability was not to do anything for the employees. What was done was no more than a ``book entry.'' Their Honours concluded (at ATD 259; CLR 657):

``... What the taxpayer did here had no legal effect whatever. The employer gave nothing and the employees gained nothing. There may in some cases be a question whether what an employer has done amounts to setting aside a sum as or to a fund, but such a question will only arise when the employer has done something that is binding and confers some benefit upon employees.''

38. A similar issue arose in
Deputy Commissioner of Taxation (NSW) v P Iori & Sons Pty Limited 87 ATC 4775; (1987) 82 ALR 442. In that case an income tax deduction was again in issue. The issue was whether the company came within a provision which allowed a deduction if a taxpayer, for the purpose of making provision for superannuation benefits for employees, ``sets apart or pays in the year of income an amount or amounts as or to a fund or funds from which the benefits are to be provided...'' In brief, by Deed the company established a superannuation fund for the benefit of employees. The trustees were the directors of the company. In each of four years contributions were shown in book entries as being made by the company to the fund but then at the same time being lent back. No interest was charged on the loans until the fourth year in question. The book entries were made by the company accountant after the end of each financial year. The company accounts, including those entries, had been adopted by the directors and shareholders.

39. The Full Federal Court held that the company was not entitled to a deduction. The members of the Court accepted that there could be a payment or setting aside although there had not been an actual transfer of money or other property. Having regard to the informal way in which transactions occurred, Fox J was not satisfied that an agreement in the relevant sense should be implied: at ATC 4780; ALR 448. There was also the difficulty that the trustees of the trust were acting in breach of their trust in apparently lending the moneys back to the company on an unsecured basis. There was no prior obligation by the company to make the contributions to the fund, and so there was difficulty in identifying mutual liabilities which could be treated as settled by the book entries. He said (at ATC 4781; ALR 449):

``... Plainly, under the deed, property of some description was to become vested in the trustees. The book entries did not bring about any such situation. The trustees did not exercise any power of investment; they simply let the taxpayer retain the property, unidentified and unappropriated, to which the entries could be regarded as relating. That the entries could in due course possibly have created rights in equity, or for that matter, at law, is not directly relevant.''

Beaumont J agreed in the result. As he pointed out, there had to be more than an agreement to contribute, there had to be an amount set apart or paid: at ATC 4787; ALR 457. He was not satisfied that any agreement that might be implied as between the trustees and the company gave rise to a notional payment which met the requirements of the statute and of the deed. There was no valid agreement for payment and lending back as between the company and the trustees, because any such agreement would have been a breach

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of trust. An intention to make a contribution to the fund was not enough. As to the argument based on the expression ``setting apart'', again his answer was that there was nothing binding on the company, because the transactions were in breach of trust: at ATC 4789; ALR 460. Lockhart J agreed with the reasons of both members of the Court.

40. The final decision to which I was referred is
Lend Lease Corporation Ltd v FC of T 90 ATC 4401; (1990) 95 ALR 427. This case involved the provision in question in the last mentioned case. In that case the company decided to benefit its staff with the gift of an allotment of shares to the staff superannuation funds. The shares were allotted to a custodian trustee, a company which held the assets of the fund on behalf of the trustees of the superannuation fund in question. The company did not follow what was apparently the usual practice of providing to the trustees or to the custodian trustee a cheque for the amount payable for the shares, the trustees or the custodian then providing to the company a cheque for a like amount. The transaction was implemented by a ledger entry in the company's books apparently having equivalent effect to a cash contribution to the superannuation fund and a reciprocal share purchase of the shares by the custodian. Nor was there ever a recorded agreement between the taxpayer and the trustees or the custodian trustee company, the shares were simply allotted and accepted. It is important to bear in mind, I consider, that it was not the act of allotment of the shares that was relied upon as the deducible contribution, even though that act may have benefited the employees. The question was whether the book entries amounted to a payment of an amount or the setting apart of an amount.

41. Hill J held that there was no payment. No agreement could be inferred that in lieu of payment by cash or cheque the amount of contribution would be treated as if paid and lent back: at ATC 4406; ALR 434. The trustees had not considered or voted on the matter. Nor was there a set-off arising from mutual liabilities. There was merely a liability on one hand (to pay for the shares allotted) and a voluntary payment on the other. Hill J separately considered whether there was a setting apart of an amount. His Honour said, and I respectfully agree (at ATC 4407; ALR 435-436):

``When the section refers to an amount being set apart as a fund, it appears to envisage a case where the act of `setting apart' either creates an existing fund or supplements an existing fund. In the case where the contributor/employer is also the trustee of the fund the act of setting apart will ordinarily have the consequence that the amount has become subjected to the trusts of a fund. But there may be envisaged a case where the fund may have been established without trustees at all but where the benefits funded may be the subject of covenant rather than subjected to trusts.''

He rejected this aspect of the employer's submission also. He said (at ATC 4409; ALR 437):

``... But the book entries, not amounting to a payment, had no effect in law and could not have benefited the employees, particularly where the transaction was not one resolved upon by the respective trustees.''

He also said that the provision made by the taxpayer in its accounts was not ``a setting aside'', bearing in mind that the trustees of the fund had not authorised the investment in the shares nor had they agreed that any liability that they might have to indemnify the custodian could be ``extinguished by a three-way arrangement'' between the trustees, the custodian and the employer. His conclusion was that there was ``no more than the mere making of a book entry'': at ATC 4409; ALR 438.

42. Having considered these decisions, I conclude that the first part of the Commissioner's submission succeeds. The crediting of Members' Deemed Contributions to Member Accounts by the trustee is to be treated as the act of the relevant appellant. In the relevant sense that act was binding on the employer, and conferred a contingent benefit. In this respect I do not wholly accept the submissions for the Commissioner. I do not agree that the entries gave rise to an enforceable right against the trustee, or an enforceable benefit. But the entries do record an amount to which an employee may become entitled under the Rules. It is going too far to say that the employer was bound by the entry in the sense that the decision was irreversible. There are provisions in the Rules under which deductions may be made from a member's benefit, and under which a member's benefit may be forfeited: see, for example, r 10 and r 11. But

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subject to provisions like that, I consider that the amounts credited can be treated as irreversible increases in the amount to which, in certain events, the relevant member will become entitled. I mention here that I do not consider that r 7.3(c), which entitles the trustee to debit a Member Account with the consent of the employer, would be read as authorising the trustee simply to reverse a decision to credit an amount.

43. In short, I consider that difficulties of the kind identified in the last three cases do not arise here. On the basis of the submissions put to me, what was done was done regularly and properly.

44. But the question remains of whether the act of crediting each account was a payment of money to a superannuation fund or a setting apart of money as a superannuation fund. As I observed earlier, the assets of the Fund held by the trustee were not increased by the crediting of these amounts. It is clear that the Fund referred to in the Rules comprises all of the assets of the Fund. Prima facie, one would expect that a payment of money to the Fund, or a setting apart of money (as an augmentation of) the Fund would increase the Fund, in the sense of resulting in an increase in the assets of the Fund. This has not occurred.

45. The case is somewhat different from Winchombe Carson. There the Judge must have regarded the accounts maintained by the company as funds for relevant purposes, or collectively as the fund for relevant purposes. When each account was credited the fund or funds were augmented. That was not a case in which the employer or anyone else had identified or set aside or credited an overall amount as available for the payment of benefits, and then allocated part of that overall amount to individual employees.

46. The difficulty which the Commissioner's argument faces is that if the fund for the purposes of sub-par (a)(i) is the Fund, it is difficult to see how the act of the trustee in crediting Member Accounts amounted to a payment to the Fund or a setting apart of money as (part of) the Fund.

47. Of course I recognise that such assets comprising the Fund as exceed the amount allocated to Member Accounts might ultimately revert to the appellants. In that sense that excess amount might be regarded as the appellants' property, the value of which is diminished by the act of the trustee in crediting amounts to Member Accounts. In part the submission for the Commissioner appeared to be that there was a setting aside of money as a superannuation fund, because a surplus in the fund which might ultimately revert to the appellants had now been allocated to members. But, in my opinion, this submission also confronts some difficulties. First of all, the only part of the Fund which might revert to the appellants is the ultimate excess after all benefits have been paid, not the excess over the sum of the amounts credited to Member Accounts. The relationship between the balance in the Member Accounts and the amounts which might ultimately revert to the appellants is far from being a direct one. Secondly, whether any amount would ever revert to the appellants would depend upon a number of matters, not least of which include the requirement to comply with s 117 of the Superannuation Industry (Supervision) Act 1993 (Cth). I consider that the better analysis is that all of the assets of the Fund are, at a given moment, subjected to the trusts found in the Rules, and that any balance in the fund in excess of existing and anticipated entitlements at a given time cannot for relevant purposes be regarded as an asset of the employer the value of which is diminished by an amount credited to Member Accounts in the present circumstances.

48. I return to the question posed above.

49. My conclusion is that there has been no payment of money to a superannuation fund or no setting apart of money as a superannuation fund. In summary, I so conclude on the basis that the relevant fund is the Fund, and for sub- par (a)(i) to be satisfied, there would have to be an increase in the assets of the Fund. I have no difficulty in concluding that what occurred was, in the relevant sense, binding on the employer- appellants. But the statutory provision must be read as a whole and in my opinion is to be read as operating, in the relevant circumstances, on the Fund as a whole.

50. I do not consider that there is anything incongruous in this result. If moneys are paid by an employer to the Fund, or relevantly set apart as part of the Fund, in a transaction that results in an increase in the Fund, there will be a taxable payment of wages. So, relevant amounts coming to the Fund in the past as employer contributions or as Members' Deemed Contributions have been taxable. While the decision by the trustee meant that the

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employer-appellants were relieved from making contributions that would have been taxable, the amounts credited to the Member Accounts were credited from a fund the value of which was the result of the use made of taxable and non- taxable contributions to the fund.

51. For all those reasons I conclude that the Commissioner erred, that the appeal should be allowed and that the assessment or assessments should be revoked.

52. The implementation of this decision may require the making of a varied or replacement assessment. I will give the parties an opportunity to consider the form of order which should be made to reflect the decision which I have reached.

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