Piper v. Federal Commissioner of Taxation.
Judges:Mahoney J
Court:
Supreme Court of New South Wales
Mahoney J.: In December 1967 and January 1968 Mr. and Mrs. Piper purchased premises Nos. 7 and 10 Richmond Avenue, Dee Why. On 28 August 1968, they contracted to sell these premises at a substantial overall surplus. The Commissioner of Taxation assessed Mr. and Mrs. Piper to tax upon this surplus as a profit within sec. 26(a) of the Income Tax Assessment Act, 1936, as amended.
The assessments were referred to a Taxation Board of Review and on 2 December 1973, the Board of Review affirmed the assessments.
On 11 January 1974, a notice of appeal to this Court was lodged.
There is no question in the present proceeding as to the quantum of the assessments; the only question which has been argued before me is whether any portion of the surplus on such sale should have been included in the assessable income of Mr. and Mrs. Piper.
Although the Commissioner made his assessments by reference to a deemed partnership which he took to exist between Mr. and Mrs. Piper and by reference to their respective shares of that partnership income, that is the surplus on sale of the premises in question, the matter has been conducted before me upon the basis that there is no difference as to the manner in which the respective appeals of Mr. and Mrs. Piper should be dealt with. Their appeals have been heard together and the evidence in each appeal has been treated as evidence to both of them.
The taxpayers have claimed that the premises were purchased not for any profit-making purpose but for the purpose of erecting on each of them a residential flat building. They state that it was their intention or, at the lowest, their dominant intention that the land and such buildings would be retained indefinitely by them for the purpose of deriving a rental income from the buildings. Both Mr. and Mrs. Piper have given evidence before me and they have each placed before me affidavit evidence in support of their contentions.
In a case such as the present, where the essential question is the dominant intention with which an asset was acquired, the statements of the taxpayer must be given due weight. A taxpayer has, in such a case, both the advantage and disadvantage that such an intention is, in essence, a subjective matter. He has the advantage that normally he alone is able to say what was his dominant intention and that normally there is no person able to give a direct contradiction to what he says; that against which his evidence as to his intention is to be weighed is normally collateral matter from which his intention may be derived only indirectly and by way of inference.
Correspondingly, the taxpayer has the disadvantage that there is sometimes the tendency in the course of a case to discount positive statements by a taxpayer as to his intention at the relevant time, over heavily against the objective facts and to regard things which were said and done by him, then or subsequently, as being of a self-serving nature.
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It is important, in my opinion, that the correct approach be adopted to evidence of this kind. Evidence given by the taxpayer in this regard is, as has been said, to be scrutinised with care and to be weighed against the objective facts and the inferences to be drawn from his activities generally. Such evidence must ``be considered most closely and received with the greatest caution'':
Pascoe v. F.C. of T. 30 A.L.J.R. 402 at p. 403 per Fullagar J. See also
Eisner v. F.C. of T. 71 ATC 4022 at p. 4024; 45 A.L.J.R. 110 at p. 112 per Walsh J. I am conscious, in the present case, as in argument it was suggested I should be, of the possibility that statements and actions of the taxpayer relied on by him in evidence may be of a self-serving kind but I am conscious also that, in a case where the facts are equivocal or are consistent with different intentions having been held, statements by the taxpayer as to what was his purpose may be the only evidence which he can bring forward to support his case, and his case is not to be unduly discounted because the evidence is of this kind.
In the present case, where the issues of fact, on ultimate analysis, are, in my opinion, finely balanced, I accept that it is important, as Mr. Patterson on behalf of the taxpayer submitted, that evidence of this kind not be given less than proper weight.
Bearing these factors in mind, I come now to consider the evidence which has been adduced in order to establish what was the dominant purpose of the taxpayers at the relevant time. This evidence was, in outline, as follows -
Mr. Piper is the Senior Health and Building Inspector of the Council of the Shire of Warringah. He is a man who has had experience over a number of years as a council employee and he holds a qualification as a plumber. In November 1967 he and his wife had given consideration to the investment of a substantial sum, which they would have seen to be of the order of $25,000 or more, to be derived by them from the sub-division and sale of certain land then owned by them. In November 1967 Mr. Piper communicated with a real estate agent who had advertised for sale premises situated at No. 7 Richmond Avenue, Dee Why. As a result of discussions with this estate agent, Mr. Piper formed the view that it was likely he and his wife could purchase advantageously those premises and premises known as No. 10 Richmond Avenue, Dee Why. (I shall refer to the respective premises as ``No. 7'' and ``No. 10'').
On 22 November 1967, Mr. Piper discussed with Mr. Drane, the manager of the branch of the Bank of New South Wales at Forestville, the provision of finance to enable him to purchase these premises.
On 1 December 1967, Mr. Piper signed a form of application for a development consent under the Town Planning legislation then in force in the Warringah Shire in relation to No. 10. The area in which No. 10 was situated was such that residential flat buildings (and I assume buildings of this character in which the various flats or strata could be owned by individual persons) could be erected conformably with the Council's views as to the requirements of town planning. However, Mr. Piper had some apprehension that the Council might change the zoning of this area and cause it to revert to a single dwelling area. In these circumstances Mr. Piper signed the development application in respect of No. 10.
Attached to the development application was a sketch plan purporting to set forth the building proposed to be erected on the land. It is confessed by Mr. Piper that he had no intention of erecting such a building on the land and that the plan was provided, in substance, for the purpose only of completing the form. The form of proposed user referred to in the application was ``home units or flats'' and the plan referred to the building as being in respect of ``12 home units''.
Consent was given to this development application by the Town Planner of the Council who, it was stated, had delegated authority from the Council to give such consent. The matter was never dealt with by the Council itself and, as I understand Mr. Piper's evidence, there was no procedure whereby consents applied for or granted to Council officers in this way were brought to the attention of the Council or appropriately
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recorded. The consent in fact was given as a matter of urgency on 4 December 1967.On 18 December 1967, Mr. and Mrs. Piper entered into a contract to purchase No. 10 for $12,000.
On 3 January 1968, Mr. Piper signed a development application in respect of No. 7. The evidence, insofar as I accept it, establishes that the circumstances in relation to that application were, in general, similar to those in respect of the application concerning No. 10 and consent was given to that application on 5 January 1968.
On 8 January 1968, Mr. and Mrs. Piper contracted to buy No. 7 for $12,500.
On 4 January 1968, Mr. Piper had discussed again with Mr. Drane the provision of finance in respect of the purchase of these two properties. It does not appear that, in fact, in order to effect the purchase, bank finance was ultimately sought.
After purchase of the premises, Mr. Piper with the assistance of his son demolished the derelict building upon No. 7 and, with the assistance of a surveyor, levels were established and work done upon the site of No. 7 with a view, Mr. Piper has stated, to the commencement of the erection of a block of residential flats upon that land.
There was erected on No. 10 a cottage and that cottage was let under a lease registered or otherwise within sec. 5A of the Landlord and Tenant (Amendment) Act, 1948, as amended. The tenant remained in occupation of those premises at all relevant times.
On 30 May 1968, Mr. Piper discussed with Mr. Drane the ``erection of four flats and seven town houses'' on No. 7. He stated at that time that he proposed to sub-contract the building of these premises and he requested $70,000 at 7¼ percent per annum interest against the security of No. 10 and another area of land owned by him in Drew Place. He gave information concerning the proposals to Mr. Drane, but in rather general terms, and it was then decided by Mr. Piper and Mr. Drane that further discussion would take place before a formal proposition was made to the bank.
On 11 June 1968, a conversation took place between Mr. Piper and Mr. Drane; the substance of that conversation has been in contest between the parties and I shall refer to it subsequently.
On that day an application was made to the bank for finance in respect of a proposal concerning No. 7. What was proposed by Mr. Piper is substantially in contest. A written application was made by Mr. Drane to his senior officers in respect of the matter and that application is Ex. 1. It relates, in substance, to a proposal contemplating, or primarily contemplating, the erection on No. 7 of a residential multi-unit building, in which strata lots would be created and sold. It was proposed that a loan of $62,000 be given by the bank to be repaid in full in 12 months, ``from sale of units and/or outside finance''.
On 17 June 1968, Mr. Drane was informed by his senior officers that this application had been refused and it is common ground that on 18 June 1968, there was a telephone conversation between Mr. Piper and Mr. Drane in which the former was informed that his proposition had been declined.
At this time or perhaps shortly after, Mr. Piper took steps ostensibly for the purpose of securing finance from other persons in respect of the premises. (In Ex. G are copies of letters relating to this matter.) Mr. Piper obtained from an estate agent a statement of the net return which might be expected to be obtained from the rental of premises on No. 7. (Ex. G, fol. 14.) On 10 July and thereafter Mr. Piper wrote letters to possible lenders seeking finance in the sum of $50,000 for a ``long-term'' loan for the erection of eleven flats upon No. 7; letters were written to the Grand United Order of Oddfellows, the Bank of New South Wales at its Forestville Branch and the Commonwealth Bank of Australia at its Brookvale Branch (fols. 22, 23 and 24). No such finance was obtained.
On 10 August 1968, Mr. and Mrs. Piper advertised No. 10 for sale in a local paper for the sum of $20,000. Mr. Piper has said that they were then approached by an estate agent who offered to purchase both No. 7 and No. 10. Contracts for sale of both properties were
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exchanged on 28 August 1968, the sale prices being respectively $23,200 and $20,800.Subsequently in May 1969, Mr. and Mrs. Piper selected a block of flats at Glebe as suitable for their purposes. They contracted to purchase the flats for $71,250, obtained a loan from the Manchester Unity Independent Order of Oddfellows in the sum of $35,000 at 8 percent per annum over a period of 15 years and they still own this block of flats.
The taxpayers have pointed to a number of matters which, they sulmit, support their contention that their doninant purpose in purchasing Nos. 7 and 10 was the erection on them of blocks of flats for rental purposes. I shall consider the more important of these matters.
First, they refer to what has been called a ``feasibility study'', that is a statement of the outgoings and income in respect of premises which might be erected on No. 7 (see Ex. B.). It is, in substance, submitted that this document establishes that at the relevant time Mr. Piper was giving earnest consideration to the net rental return from a residential flat building which might be erected on No. 7; that therefore it should be inferred that his dominant purpose in relation to No. 7 was the erection of a rent-producing building; and that therefore the assessments were incorrectly made.
A document of this nature in a sense a self-serving document qua the taxpayer. No objection was made to its tender in evidence and it is not necessary for me to consider its admissibility by reference to the matters referred to by Walsh J. in Eisner F.C. of T. 71 ATC 4022; 45 A.L.J.R. 12; see also Corke v. Corke and Cook (1958) p. 93. However, having regard to the nature of the document and its origin, it is in my opinion proper that it be carefully scruinised in determining what (if any) inferences should be drawn from it. No particular attention was given in the course of the hearing to the precise terms of the document. It is a sheet of paper headed ``Finance Plan 2'' and dated 21 March 1968, presumably relating to municipal and other out-goings in respect of this and other land. A calculation is made under the heading ``1967 Tax'' and, it would appear, the only matter substantially relevant to the present issue is that on and following the line ``say, total income from 10 units = $10,000''. There then appears ``Total income from No. 10 = $1,040'' (presumably referring to income from the existing building on No. 10); and there is then a calculation by reference to ``interest on borrowing money'', ``increased miscellaneous rates'' and ``land tax''.
There has been no attempt to examine these details to show that they relate and relate only to the development of No. 7 as a rent yielding investment. Whether the sum, $10,000, referred to as income was income in the nature of net rent or income from the sale of ``units'' in the course of a profit making scheme does not, in my opinion, appear. In the circumstances, I shall treat the evidence as relevant, but I do not regard it as being of substantial weight in favour of the taxpayers.
Second, the taxpayers have placed reliance upon what has been described as a ``rental survey'' (Ex. D). This contains details of information said to have been collected by Mr. Piper in respect of rents of premises in the general area of the land in question. Again, no substantial examination of the details of the document was undertaken to indicate that it arose from proposals for rental in respect of a building to be erected on No. 7 rather than from, for example, a general interest in rental values in the area prompted by a proposal for the ultimate purchase of a block of flats.
Third, reliance was placed by the taxpayer upon the work done upon No. 7 said to be preparatory to its development as a rent producing investment. It is not in contest that Mr. Piper himself undertook the demolition of the structure then upon the land. The precise nature and dimensions of the structure do not appear in evidence but I infer that some physical work done by Mr. Piper and his son was involved. It has been argued that the taxpayers would not have undertaken this work, or have undertaken it in this way, had it been proposed that the land be sold with the benefit of the development approvals; it was argued that the doing of this work is strongly corroborative of an intention that a building
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be erected in the manner referred to by Mr. Piper, that is, by Mr. Piper sub-contracting part of the work and doing part of it himself.There is, in my opinion, some substance in this portion of the taxpayers' submissions. If the plan of the taxpayers had been, as was suggested by the Commissioner at one stage in cross-examination, merely to increase the value of the land by obtaining development approvals, and then reselling, it seems unlikely that physical effort of this kind would have been expended by Mr. Piper personally. If Mr. Piper had in mind to construct home units and to sell them at a profit, then, of course, the doing of work in this way would have been quite consistent with such a proposal. This matter is something to be considered in support of the taxpayers' case but is by no means conclusive.
Fourth, reference was made to the fact that, after refusal of the application for bank finance which had been made on 11 June 1968, Mr. Piper applied to several bodies for ``long term'' finance, and in that connection wrote the letters to which I have referred. These documents are also, in a sense, of a self-serving nature. If inferences are to be drawn from these applications in favour of the taxpayers, the weight of such inferences must be determined in the light of the fact that Mr. Piper had, as I infer, by that time, the assistance of advice from a neighbour having some skill in relation to taxation matters. Having regard to the surrounding circumstances, including the time which elapsed between the making of the applications and the offering of the premises for sale, I have significant doubts as to whether such applications were made with the hope of actually obtaining finance of the kind suggested rather than for the purpose of establishing the non-taxability of the ultimate surplus on sale of the premises.
Mr. Patterson, counsel for the taxpayers, has carefully reviewed all of the evidence in their favour, and has submitted that the statement of intention by Mr. and Mrs. Piper is corroborated by the evidence generally and should be accepted.
Mr. Jeffrey, Q.C., counsel for the Commissioner, has urged a number of matters against the taxpayers' case. He has submitted that the taxpayers' evidence as to their purpose in purchasing the land ought not to be accepted: first, because the purpose was one which they could not have carried out; second, because their actions at the relevant time indicate that they had no real intention of carrying it out; third, because the way in which they approached the transaction generaly suggests a collateral purpose inconsistent with their stated purpose; fourth, because the proposals made to the bank make it improbable that their purpose was as stated by them; and fifth, because Mr. Piper is not a witness upon whose evidence reliance could be placed.
First: I accept that at the time of purchase of the land the taxpayers had no real idea of what the buildings which they refer to would cost. I do not think that Mr. Piper had had any substantial experience in respect of the erection of such buildings, or that he had any substantial knowledge of the way in which they could be erected by sub-contracting the work to others.
It is clear that after having paid for the land, Mr. and Mrs. Piper would have had available from the sale of the other land sub-divided by them only a relatively small amount, probably of the order of $3,000. They owned a house of substantial value and had some money in shares or other investments, but having regard to the fact that, on any proper estimate, each building which was said to be proposed to be built would have cost at least $70,000, I agree that it is unlikely that they could financially have procured the erection of them.
Whether Mr. Piper would have been able to carry out the building of flats upon No. 7 by sub-contracting the whole or the substantial part of the work is a matter upon which I have significant doubts. Mr. Drane, in the application for finance (Ex. 1), thought he was ``inexperienced in multi storied buildings but he should be quite capable of supervising the work''. However, this aspect of the matter was not dealt with in any detail in the evidence and I do not make any inference against the taxpayers in relation to it.
Second: Before purchasing the land, Mr. Piper was aware that, if flats were to be built
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as he suggested, it would be necessary for the taxpayers to obtain ``long term'' finance at an interest rate of approximately eight per cent per annum. Such finance was not then available to them and I am satisfied that no inquiries had been made to ascertain whether it could be obtained. Although approaches were made to their bank at the time of the purchase of the land, they did not make any enquiry as to the availability of such finance or, indeed, any finance for the building of flats.I am satisfied that, when the land was purchased and thereafter, at least until the interview with Mr. Drane in May 1968, the taxpayers did not make any significant attempt to determine what the cost of the suggested flats would be. At the time of purchase of the premises, I do not think that any such estimate had been made in respect of either No. 7 or No. 10 or that any plan had been drawn showing even the general nature of any such flat buildings. I am satisfied that the plans submitted with the respective development applications were not seen by Mr. Piper as showing buildings actually proposed to be erected. No other plans were ever prepared.
I accept that, apart from the demolition work on No. 7, no other substantial steps were taken towards the carrying out of the proposal for erection of flats. Reference was made, in the bank application to a consulting engineer in relation to the ``structural engineering work'' but no other evidence appears in this regard.
In general, the taxpayers' actions are not suggestive of an intention to build flats in the manner suggested by them.
Third: Mr. Jeffrey cross-examined at length upon the circumstances in which the development applications were made and their relationship to the purchase of the land. He suggested that they indicated that the purpose of Mr. Piper was to carry out a transaction of the kind which actually resulted, viz. to acquire land, obtain development approval, (thereby it was suggested increasing the value of the land) and, after connection of sewerage, sell the land with the benefit of the development approval to a person interested in erecting and selling home units in strata lots.
I have referred to the manner in which the development approvals were obtained. The circumstances surrounding the purchase and sale of the land, unexplained, might well lead to the inference which Mr. Jeffrey suggested, and I was not convinced by the denials given by Mr. Piper in cross-examination. However, Mr. Piper stated that the obtaining of the development approvals did not substantially increase the value of the land, and no evidence was called on behalf of the Commissioner upon this point. In the circumstances, whilst the facts relevant to the obtaining of the development consent will require consideration in relation to Mr. Piper's general credibility as a witness. I do not think that the evidence warrants any firm conclusion upon this aspect.
Fourth: A good deal of the argument turned upon the content of the conversation which Mr. Piper had with Mr. Drane on 11 June 1968. The content of this conversation was of considerable importance. In the application for finance prepared by Mr. Drane on 11 June 1968, (with the assistance of his staff) there is set forth a proposal in substance for a loan to Mr. Piper of $62,000 to erect ``a home unit block'' on No. 7, the loan to be repaid ``in full in 12 months from sale of Units and/or outside finance''. (Ex. 1).
In the portion of the application headed ``Manager's Remarks'', the following appears -
``He hopes to sell all the units (Strata Type) for a total of $120/130000. He would then build a second block of flats at No. 10 Richmond Avenue, Dee Why, which he would keep as a rental income for himself. If the proposed town houses and units do not sell readily, he will undertake to sell No. 10 Richmond Avenue, and supply proceeds, say, $15,000, to reduction of debt, and refinance residue of approx $45000. He would then be content to hold the block of units on No. 7 Richmond Avenue as a source of income for himself.''
If this was a proposal which Mr. Piper requested Mr. Drane to forward to the head office of the bank, it is inconsistent with the case which the taxpayers have sought to make out as to their intentions concerning
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the land. Mr. Piper has said in evidence that he did not request Mr. Drane to put forward that proposition and has said that he did not say that he hoped to sell the units for the amount stated. His explanation of the proposal is that Mr. Drane, in an endeavour to assist Mr. Piper to obtain the finance, in substance suggested or took upon himself to make, this formulation of the proposal. Mr. Piper appears to suggest that, at most, he acquiesced in such a proposal.In support of this view, Mr. Patterson, on behalf of the taxpayers, has submitted that no reference to any proposals for sale appears in the diary entries prepared by Mr. Drane at the relevant time, that Mr. Drane has agreed that he would have endeavoured to include all relevant matters in the diary entries and that therefore on 11 June 1968, Mr. Piper did not make to Mr. Drane the kind of proposition set forth in the loan application.
Mr. Drane gave evidence before me and I observed carefully his demeanour in the witness-box He was frank in his attitude that he had no independent recollection of the events of 11 June 1968; the evidence which he could give was limited to what appeared in the documents. I take from his evidence if it be relevant that he was of the view that he would not have stated that Mr. Piper hoped to sell the units for the amount stated if Mr. Piper had not expressed that view; and, in my opinion, he would not have set forth the other details of the proposal had this not been the proposal which Mr. Piper put to him.
Having regard to the evidence given orally before me by both gentlemen upon this aspect I accept Mr. Drane as a truthful and accurate witness. The conclusion I have formed is that the proposal embodied in Ex. 1 was the one which Mr. Piper put to Mr. Drane on 11 June 1968.
The proposal, as put forward in Ex. 1, is one which would suggest to Mr. Drane's superior officers that the taxpayers desired to erect the building on No. 7 primarily in order to sell it, in Strata units, at a profit, and that they would retain it as a rental investment only if the structures did not sell readily. If Mr. Piper's evidence as to the proposal which he put to Mr. Drane were correct, the proposal as put forward in Ex. 1 was not what he proposed, and to the knowledge of Mr. Drane he did not in fact propose to do what was suggested by Ex. 1.
I do not accept that Mr. Drane in this way misstated to his superior officers the proposal made to him by Mr. Piper. No substantial reason was suggested why Mr. Drane should so act, other than that he may have been enthusiastic to help Mr. Piper, as a client of the bank of some years standing. No particular relationship, of friendship or otherwise, was established as likely to move Mr. Drane to act in this way, and I do not accept that the suggested enthusiasm extended as far as was suggested.
I, therefore, accept that, on 11 June 1968, the taxpayers were seeking finance for the purpose of erecting a building on No. 7, which they intended to sell, in strata lots, for such profits as they could obtain.
It does not follow, as a matter of necessity from this finding that this was their intention when they acquired No. 7, or that they had a similar intention in relation to No. 10. Indeed, in relation to No. 10, the proposal as set forth in Ex. 1 suggests that, at that time, their purpose in relation to No. 10 was either to build on it flats for rental or to sell it to help finance the operations to be carried on on No. 7.
However, my findings as to events of 11 June 1968, do involve that I do not accept Mr. Piper as an accurate witness as to what then took place; and, in all the circumstances I am prepared to infer that the purpose of exploitation for profit as present on 11 June 1968, was the purpose of the taxpayers when the land was acquired.
Fifth: if Mr. Piper's evidence as to the proposal and the events of 11 June 1968, be not accepted, this must in my view cast substantial doubt upon his credibility generally.
There are other aspects of Mr. Piper's evidence which bring his credibility into question. The circumstances of the signature of the applications for the development approval, to which I have referred, fall into this category. Mr. Piper in his evidence,
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when referred to the fact that the applications had been signed by him and that he was not at the relevant time the owner of the land, said, ``I was unaware it was necessary to be the owner at the time. The owner does not have to get a building permit and I was unaware that for a town planning permit you should have the owner's consent...''. He was asked again whether having regard to his experience as a building inspector for 13 years and more he did not know that for a development application the consent of the owner was required. He said, ``That is quite correct. I could not see the need for it. It was not necessary on a building application. Why should it be necessary on a consent application?''However, subsequently, when referred to the terms of the actual application, he admitted that before he signed it he would have known that there was on the application the words ``If the applicant is not the owner of the property, the consent of the owner, in writing, must be attached to this application''. He conceded that ``Technically I was wrong'' in signing the document as he did.
The conclusion I draw from the evidence is that Mr. Piper was anxious to obtain the development consents without the respective owners being aware that the consents had been applied for or obtained. I infer that he was of the view that if the owners knew the consents had been obtained, it might lead to a demand for an increased price. I conclude that when he signed each application, he was aware that the owner's consent was necessary and that he made the applications in his own name knowing that he was not the owner and that this was irregular. The fact that he so acted is of itself significant, but it is at least equally significant that he gave evidence concerning the matter in the manner that he did.
Having regard to all of the evidence, I am of the view that evidence given by Mr. Piper should be accepted as accurate only in so far as it is significantly corroborated by other independent and acceptable evidence.
I have taken into account the evidence given by Mrs. Piper, both affidavit and oral. The terms of her affidavit do not provide, in my opinion, any substantial circumstantial corroboration of Mr. Piper's evidence. The affidavit is in the main, in general terms and, apart from a general statement as to their purpose (par. 10), provides at the best only equivocal support for Mr. Piper's evidence. In her oral evidence, she was not asked to deal in detail with any matter of importance in assessing the evidence given by her husband. In general, I do not find in her evidence such corroboration of the taxpayers' case as would, in my opinion, warrant its acceptance.
Having regard to the evidence as a whole, I am not satisfied that the dominant purpose of the taxpayers in relation to the premises was that which they have contended for. Insofar as it is necessary to make a further finding upon the matter, the probabilities are, in my opinion, that when the premises were acquired by them, it was their dominant purpose to turn them to account so as to make a profit from them in whatever might in due course appear to be the best manner of so doing.
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