Aktiebolaget Volvo v. Federal Commissioner of Taxation.Judges:
Supreme Court of Victoria
Jenkinson J.: Appeals pursuant to sec. years of income from 1st July 1973 until 30th 187(1)(b) of the Income Tax Assessment Act June 1976. The three appeals were heard 1936 in respect of assessments for the three together.
The assessment in respect of the year ended 30th June 1974 subjected to tax two sums paid to the appellant by Volvo Australia Pty. Ltd. (Volvo Australia). The assessment specified the aggregate of those two sums as $1,924,000, but the parties to the appeal were agreed that the correct aggregate amount was $1,898,821 and the issue between them was as to whether any part of that latter sum was taxable.
Volvo Australia was incorporated in New South Wales in July 1970 and has since then carried on in Australia a business of importing into this country products of the appellant's manufacturer and selling those products and products assembled in Australia out of parts manufactured by the appellant and imported into this country by the Australian company. The products are motor vehicles and parts thereof and other goods for use in connection with motor vehicles and vessels. The appellant manufactures the products in Sweden and sells them for use in many countries. The appellant is a ``non-resident'' within the meaning of that expression in the Income Tax Assessment Act 1936.
These two companies made an agreement in writing in the following terms:
- THIS AGREEMENT is made and executed the 14th day of December One thousand nine hundred and seventy-two at Gothenburg Sweden Between AKTIEBOLAGET VOLVO of Gothenburg (hereinafter called ``the Parent'') of the one part and VOLVO AUSTRALIA PROPRIETARY LIMITED of Moorebank in the State of New South Wales Commonwealth of Australia (hereinafter called ``the Subsidiary'') of the other part WHEREAS:
- (A) The Parent is the principal manufacturer of the Volvo product and directly or indirectly controls manufacture and distribution thereof in all parts of the world where such products are sold in new condition.
- (B) The business of the Subsidiary had its origin in the Commonwealth of Australia in the business of an Australian company which and Subsidiaries of which dealt not only in Volvo cars trucks earth-moving equipment marine engines and other products (which Volvo cars trucks earth-moving equipment marine engines and other products are hereinafter referred to as ``Volvo Products'') but in like products of different manufacture, which Australian company holds a substantial part of the issued capital of the Subsidiary.
- (C) As a result of rearrangement of the distribution network for Volvo Products throughout Australia and as a result of greatly-increased projected Australian sales thereof the Subsidiary embarked upon a plan for gradual withdrawal from dealing in like products of other manufacture than Volvo.
- (D) The assembly of Volvo products has been commenced in the said Commonwealth using in such assembly packs of component parts supplied to the Subsidiary by the Parent and other parts some whereof are of Australian manufacture.
- (E) The future plans of the Subsidiary involve further withdrawal from dealing in products of other than Volvo manufacture and increasing involvement in the assembly of Volvo products for distribution throughout the Australian market.
- (F) In order to secure for itself an expanding volume of business whilst implementing the aforesaid withdrawal and thereafter the Subsidiary requested the Parent to refrain from supplying the aforesaid packs or other components of the Volvo products and any person or corporation in Australia other than the Subsidiary and the Parent has so refrained unless with the consent of Volvo Australia P/L.
- (G) The Subsidiary has now requested the Parent to give an enforceable undertaking in writing so to refrain, and for the consideration and upon and subject to the terms and conditions hereinafter appearing the Parent has agreed to give such undertaking.
Now THIS AGREEMENT WITNESSETH as follows:
- 1. For the period from the date of this Agreement until this Agreement is terminated as hereinafter provided the Parent undertakes with the Subsidiary:
- (a) not to despatch or deliver to any person or corporation carrying on business in the Commonwealth of Australia other than the Subsidiary any packs or other containers containing component parts of Volvo products;
- (b) not to despatch or deliver to any such person or corporation other than the Subsidiary Volvo product;
- (c) to use its best endeavours to ensure that no person or corporation to whom or which such component parts or products are delivered or despatched outside the Commonwealth of Australia causes or permits such component parts or products to be transmitted to Australia in new condition;
- (d) save with the consent of the Subsidiary not to allow any other person or corporation in the Commonwealth of Australia to use the word ``Volvo'' in any way in relation to the sale of new products.
- 2. In consideration of the covenants herein contained and the continued performance and observance thereof by the Parent company the Subsidiary agrees to pay to the Parent an annual fee. The said fee shall be payable in Swedish currency at the Skandinaviska Enskilda Banken at Gothenburg in Sweden and (subject to this Agreement) shall be payable on the 15th day of January in each year. The first of such payments shall be made on the 15th day of January 1974.
- (1) Each annual payment shall be a sum equal to four per cent (4%) of the value of sales of Volvo Products expected to be made by the Subsidiary during the calendar year preceding the year in which such payment falls due.
- (2) For the purposes of this clause the ``value of sales of Volvo Products expected to be made'' during any calendar year shall be the gross value of such sales as appearing on a budget of the Subsidiary as agreed with the Parent hereunder.
- 4. The Subsidiary shall not later than 30th November in each year submit to the Parent a budget containing a forecast of its expected sales (in quantity and value) of Volvo Products in the ensuing calendar year. If the Parent is satisfied with such budget it shall notify the Subsidiary that it agrees thereto.
- 5. This Agreement shall continue in force until determined in any one of the following ways:
- (a) By the Parent if the Subsidiary is prevented by legislation or regulations from paying the abovementioned fee to the Parent and such prevention continues for six months or longer.
- (b) By the Parent in the event that the workmanship involved in the assembly of Volvo products in the Commonwealth of Australia by the Subsidiary falls significantly below the Parent's requirements and such default continues for three months or more after advice thereof by the Parent to the Subsidiary.
- (c) By the Parent in the event that sales of new Volvo Products within the Commonwealth of Australia in any calendar year fall significantly short of the figures contained in a budget agreed hereunder.
- (d) By either party in the event that the Parent fails to agree to a budget submitted by the Subsidiary.
- 6. Termination under the provisions of any of the paragraphs of cl. 5 hereof shall be effected by the party entitled to terminate by its serving not less than Sixty days notice in writing of intention to terminate upon the other party and his Agreement shall cease to be of any further force or effect upon the expiration of such notice.
- 7. This Agreement shall be governed by and interpreted in accordance with the laws in force in Sweden from time to time.
IN WITNESS whereof these presents have been executed the day and year first hereinbefore written.
[Seal affixed here.]
Evidence was adduced on the appellant's behalf that the payment of $1,898,821 was made in performance of that agreement. Other evidence elicited by cross-examination was agreed by counsel for each party to have demonstrated that the prices at which a wholly owned subsidiary of Volvo Australia was
ATC 4319expected to sell Volvo products bought from Volvo Australia, in lieu of the prices at which that subsidiary was expected to buy the products, were included in the computation of ``the value of sales of Volvo Products expected to be made by'' Volvo Australia, upon which the payments made to the appellant in performance of the agreement in the year of income ended 30th June 1974 was calculated. It was submitted on behalf of the Commissioner that this circumstance justified the conclusion that the payment made to the appellant, or part of it, was not made in performance of the agreement. I reject that submission. It is in my opinion a tenable construction of the agreement that the expression cl. 3(1) thereof, ``the value of sales of Volvo Products expected to be made by the Subsidiary'' (i.e. Volvo Australia), comprehends the gross sale price expected to be received by a wholly owned subsidiary of Volvo Australia on sale to a stranger of a ``Volvo Product'' bought by the subsidiary from Volvo Australia as trading stock. I infer that this was the construction which the appellant and Volvo Australia adopted. Performance of the agreement on the basis of such a construction does not in my opinion justify a conclusion that any part of the payment of $1,898,821 was made otherwise than in performance of the agreement.
The evidence established also that there were included in the computation of the value of sales of Volvo products for the purposes of cl. 3 of the agreement, certainly in respect of the year of income ended 30th June 1974 and perhaps in respect of the other two years, sums of money referable to the anticipated sales of second-hand cars not of the appellant's manufacture. Reliance was placed by counsel for the Commissioner on this circumstance also as supporting the submission to which I have already referred. I infer that those sums were included in the computation by reason of inadvertence or other mistake on the part of those responsible for calculating amounts due under the agreement. The evidence provides no means of quantifying those sums, although it justifies an inference, which I draw, that the aggregate of them was a small fraction of the total value of sales expected to be made. An error of that kind does not in my opinion justify a conclusion that any part of a payment, made to the appellant in the mistaken belief that the whole of the sum paid was due under the agreement, was made otherwise than in performance of the agreement.
Mr. Ormiston Q.C., who appeared with Mr. Myers for the Commissioner, submitted that in so far as the payments were made in performance of the agreement they were royalties, either in contemplation of the general law or because they were within the definition of ``royalty'' which was inserted in sec. 6(1) of the Income Tax Assessment Act 1936 by Act No. 4 of 1968. But Mr. Ormiston conceded that I was bound by the decision of the High Court in
F.C. of T. v. Sherritt Gordon Mines Ltd. 77 ATC 4365; (1977) 17 A.L.R. 607 to reject the latter basis of the submission, for the appellant was not at any material time managed or controlled in the United Kingdom.
Although he did not accept the observations of Mason J. (in whose reasons for judgment Gibbs J. agreed) in the
Sherritt Gordon Mines case (77 ATC at 4371-73; 17 A.L.R. at 615-617)as a generally applicable exposition of the essential characteristics of a royalty, Mr. Ormiston sought to accommodate his submission that the payments aggregating $1,898,821 were royalties to the statement by Mason J. that ``it is of the essence of a royalty that the payments should be made in consideration of the grant of a right, that they should be made in respect of a particular exercise of the right and therefore should be calculated in the manner stated'', that is ``that the payments... should be calculated either in respect of the quantity or value taken or the occasions upon which the right is exercised.'' The rights suggested, in consideration of the grant of which these payments were in Mr. Ormiston's submission made, were the right to the goodwill which the appellant had in this country, particularly the goodwill inherent in the word ``Volvo'' and associated symbols, and the rights which interdiction of competition in the exploitation of a licence to sell Volvo products in Australia would confer and which, being ancillary to the licence, were in Mr. Ormiston's submission of a like nature to those which a licence to exploit a patent, a trademark or copyright confers.
Until December 1973 sixty per centum of the issued capital of Volvo Australia was owned by the appellant and forty per centum was owned by Swedish Motor Importers Pty. Ltd., an Australian company not otherwise connected with the appellant. In December
ATC 43201973 the appellant acquired the shares in Volvo Australia of the other company.
There was no evidence of any agreement between the appellant and Volvo Australia under or in consequence of which Volvo Australia had ever acquired a right to use the name ``Volvo'' or symbols associated with Volvo products. The name and the symbols are of course found on some, and perhaps all, of the products; and the name is part of the name of Volvo Australia. It might be inferred that since its incorporation Volvo Australia had been exploiting, with the appellant's consent, the goodwill inherent in the name in relation to the appellant's products. There is in my opinion nothing in the agreement which confers rights in goodwill. The covenants in cl. 1 of the agreement may have rendered more valuable whatever of the goodwill Volvo Australia had or might acquire, and in that sense those covenants provided ``a benefit accruing to the goodwill'' by ``adding to it'', to use the language of Kitto J in
Berry v. F.C. of T. (1953) 89 C.L.R. 653 at 659. But the reasoning in that case, which distinguishes between a payment in consideration for goodwill and a consideration in connection with goodwill, in my opinion supports the conclusions that in this case no right in goodwill was granted in the agreement and that the payments prescribed by the agreement were not made in consideration of the grant of any such a right.
``The definition of royalty is widely expressed in the passages cited from the majority judgments, more widely than the decision of the case required, but it may be that it has received an interpretation even wider than their Honours contemplated. Little assistance is to be obtained from the history of the word. For, as Lord Selborne L.C. said in
Attorney-General of Ontario v. Mercer (1883) 8 App. Cas. 767, 'in its primary and natural sense `royalties' is merely the English translation or equivalent of `regalitates', `jura regalia', `jura regia'.' To say that the uses of the word are now figurative and represent analogies to the revenues which some jura regalia were seen to yield to the Crown does not help much to ascertain the scope of present usage. It may be noted, however, that the modern applications of the term seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken. It is not fanciful to trace the extension of the word by analogy from the kind of payments which some of the jura regia enabled the Crown to obtain. We are not concerned with that application of the word which relates to payments to a patentee owner of a copyright or even of a secret process in respect of articles produced or sold, or books printed or sold or works performed or exhibited under his licence. What matters here is the parallel though distinct development of the meaning of the word which seems to arise from payments made to the Crown in respect of metals and the like won or taken from the soil. Similar payments to the owners of mines are regarded as royalties and by an extension not difficult to follow payments made in respect of the taking under the agreement or licence of the owner of land of anything which may be considered part of or naturally attached to the soil such as coal, stone, sand, shells, oil and standing timber came to be spoken of as royalties. Warren and piscary and such rights are not heard of amongst us but conceivably there may be things made the subject of royalty which belong to ownership of land that cannot be considered actually to be part of the soil. In the case of monopolies and the like the essential idea seems to be payment for each thing produced or sold or each performance or exhibition in pursuance of the licence. In the same way in the case of things taken from the land the essential notion seems to be that the payment is made in respect of the taking of something which otherwise might be considered to belong to the owner of the land in virtue of his ownership. In other words it is inherent in the conception expressed by the word that the payments should be made in respect of the particular exercise of the right to take the substance and therefore should be calculated either in respect of the quantity or value taken or the occasions upon which the right is exercised.''
Notwithstanding the disclaimer by the High Court of concern with ``that application of the word which relates to payment to a patentee owner of a copyright or even of a secret process in respect of articles produced or sold, or books printed or sold or works performed or exhibited under his licence'', Mr. Ormiston sought to draw support from the later reference in the passage quoted to ``monopolies and the like'' for his submission that the word ``royalty'' should be held to comprehend payments for the rights which he said the agreement conferred on Volvo Australia by precluding competition in this country in the exploitation of the licence which Volvo Australia had to sell Volvo products. The licence postulated in the development of this argument was conceded to derive not from the express terms of the agreement, but from an unidentified source which ought to be inferred from the evidence. The covenants of the agreement in substance operate, it was submitted, to confer rights analogous to those which are ancillary to the monopoly rights in industrial property to which the High Court referred in Stanton's case.
But the agreement does not in my opinion confer a right of the kind suggested, either in terms or by its substantial effect. The remedies which the agreement affords Volvo Australia for competition in its trade in Volvo products are only against the appellant, not against others who engage in selling the products in Australia, so that the analogy is imperfect which Mr. Ormiston sought to draw between the substantial effect of the agreement and the substantial effect of patent and copyright licences. Further, the right of Volvo Australia to sell the products, in respect of the exercise of which right it might be said that the payments to be made under the agreement are calculated, is not conferred by the agreement and the payments cannot be said to be made in consideration of the grant of such a right. In my opinion the submissions for the Commissioner cannot satisfy the requirements of the reasoning of Mason J. in the Sherritt Gordon Mines case and must for that reason be rejected.
Even if so much of the argument for the Commissioner as I have so far considered were acceptable, the question yet would remain whether payments in performance of the agreement are within the meaning of the word ``royalty'' in the Income Tax Assessment Act. In support of the submission on behalf of the Commissioner that they are, reliance was placed on what were said to be the conceptual similarities between a payment quantified by reference to sales in a business of which the goodwill has been transferred to the payer, or from competition with which the payer has been granted immunity, and a payment quantified by reference to sales of a commodity in respect of which patent or copyright or secret process rights have been conferred on the payer. But although Mason J. found it sufficient to dispose of the submissions on behalf of the Commissioner in the Sherritt Gordon Mines case by reference to conceptual limitations of the word ``royalty'' which he derived from the reasoning in decisions of the High Court, there may in my opinion also be limitations imposed by general or commercial usage of the word. The tension and interaction between the two limitations are recognised in the passage from Stanton's case which I have quoted, and in the reasons for judgment of Jacobs J. in the Sherritt Gordon Mines case.
In this case the parties to the agreement did not choose to use the word ``royalty'', so that the significance which Latham C.J. thought in McCauley's case that the taxpayer's use of the word might have in relation to sec. 26(f) of the Act need not be considered: sec 69 C.L.R. at 241-242. (Consideration of sec. 26(f) would lead in turn to a consideration of sec. 6C of the Act and of sec. 5 and 8 of the Income Tax Laws Amendment (Royalties) Act 1976: see Sherritt Gordon Mines case 77 ATC 4365 at 4369-70; (1977) 17 A.L.R. 607 at 613.). Mason J. pointed out in that case (77 ATC at 4372; 17 A.L.R. at 616-617) that the use of the word by particular litigants in description of a variety of payments has not been allowed to influence judicial description of the character of the payments. General or commercial usage of the word may in my opinion be allowed an influence on judicial application of it if the usage clearly indicates an application of the word to a particular class of transaction. I do not find any support in contemporary usage for Mr. Ormiston's submissions. No evidence was adduced, nor example provided by counsel, of usage of the word outside the law reports. Although the word ``royalty'' may nowadays be found in a variety of applications in commercial and legal documents, the variety suggests, not an extension of application to any particular class of payment, but an undiscriminating penchant for words
ATC 4322which savour of the robe. Usage of that kind cannot afford any assistance to a court, but may explain the comments to which Mason J. referred at the end of his judgment in the Sherritt Gordon Mines case. The connotations of the word ``royalty'' do not, as I think, facilitate its application to payments of the kind here in question: payments prescribed in wholesale trade in manufactured goods.
The payments were said on behalf of the Commissioner to be, if not royalties, ``the gross income derived directly or indirectly from all sources in Australia'', and therefore assessable income within sec. 25(1) of the Income Tax Assessment Act 1936. If it be assumed that the payments were income of the appellant, the question is whether their source was in Australia.
The appellant had not since 1965 carried on business in Australia. (For all that appears in evidence, the appellant has never carried on business here.) Those who bought from the appellant goods to be used or re-sold in this country dealt with officers and servants of the appellant in Sweden where the appellant's principal place of business was situated. The agreement was executed in Sweden. The payments were made, in compliance with cl. 2 of the agreement, at Gothenburg in Sweden.
While conceding that the restraints on its activities promised in the agreement by the appellant would be exercised outside Australia. Mr. Ormiston submitted that the activities of the appellant and of others which observance of the covenants in cl. 1 of the agreement would inhibit were activities which would take place in this country. He further submitted that the covenants had the effect, and were made for the purpose, of assuring to the appellant's wholly owned subsidiary, Volvo Australia, the benefit of the goodwill in this country which was the property of the appellant. The income which was the consideration for that assurance and protection of property, which the reasoning in
R.J. Reuter Co. Ltd. v. Mulhens (1954)Ch. 50 would accord an Australian locality, must in Mr. Ormiston's submission be allowed an Australian source.
In support of these submissions emphasis was placed on the circumstance that the ascertainment of the source of income for the purposes of sec. 25(1) involves the determination of a question of fact. As to that, the observations of Rich J. in
Tariff Reinsurances Ltd. v. Commr. of Taxes (Vict.) (1938) 59 C.L.R. 194 at 208 are pertinent:
``We are frequently told, on the authority of judgments of this court, that such a question is 'a hard, practical matter of fact.' This means, I suppose, that every case must be decided on its own circumstances, and that screens, pretexts, devices and other unrealities, however fair may be the legal appearance which on first sight they bear, are not to stand in the way of the court charged with the duty of deciding these questions. But it does not mean that the question is one for a jury or that it is one for economists set free to disregard every legal relation and penetrate into the recesses of the causation of financial results, nor does it mean that the court is to treat contracts, agreements and other acts, matters and things existing in the law as having no significance.''
The relevant facts, in my opinion, are as follows. The income was derived as the consideration for the appellant's covenants to refrain from certain of the trading activities in which it might have engaged in carrying on its business of manufacturing and selling its products and the consideration for the appellant's covenant to ``use its best endeavours to ensure that no person or corporation to whom or which such component parts or products are delivered or despatched outside the Commonwealth of Australia causes or permits such component parts or products to be transmitted to Australia in new condition.'' The evidence provided no justification for thinking that in or before the years of income under consideration, or at or before the time when the agreement was made, the appellant was carrying on, or had it in mind to carry on, any part of that business in this country, or for thinking that the performance of any of the covenants would involve any act or any abstention from action by an officer or a servant of the appellant in Australia. The agreement under which the income was payable and in which the covenants were contained was made in Sweden and the income was payable in Sweden. If they be the relevant facts, no source of the income in Australia is disclosed. That they are the relevant facts is in my opinion shown by the reasoning in
Studebaker Corporation of Australia Ltd. v. Commissioner of Taxation (N.S.W.) (1921) 29 C.L.R. 225;
F.C. of T. v. United Aircraft Corporation (1943) 68 C.L.R. 525.
ATC 4323Automatic Ticket Issuers Ltd. v. F.C. of T. (1933) 50 C.L.R. 268; Tariff Reinsurance Ltd. v. Commr. of Taxes (Vict.), supra; and
The argument for the Commissioner that an Australian source is to be found for the payments because they relate to an Australian goodwill was attacked in several ways by Mr. Hulme, Q.C., who appeared with Dr. Spry for the appellant. But even if the agreement were to be characterised as an assurance to Volvo Australia of goodwill conceived as a species of Australian personal property, the source of the income derived under the agreement would yet be found to be where the agreement was made and where the appellant carried on the business of which the making of the agreement was an incident. The activities of the appellant by which the income was derived, like the activities by which its Australian as well as its other goodwill were built up, were carried on outside Australia. (See
Commr. of Taxes v. British Australian Wool Realization Association Ltd. (1935) A.C. 224 at 253-255;
Commr. of Taxation v. (Cam & Sons Ltd. (1936) 36 S.R. (N.S.W.) 544;
Malavan Shipping Co. Ltd. v. F.C. of T. (1946) 71 C.L.R. 156 at 160.)
No other justification was suggested for the assessment in respect of the year of income ended 30th June 1974, nor do I perceive one. The appeal in respect of that year must be allowed.
The same considerations lead to the same conclusion in respect of the appeal against the assessment for the year ended 30th June 1975. By an agreement in writing dated 20 September 1974 and made in Sweden at about that time the mode of calculation of the annual fee prescribed by the principal agreement was varied, but the conclusions I have stated in respect of the principal agreement are not affected by that circumstance.
Section 4 of the Income Tax Laws Amendment (Royalties) Act 1976 substituted, for the definition of ``royalty'' which Act No. 4 of 1968 had inserted in sec. 6(1) of the Income Tax Assessment Act 1936, another definition in these terms:
```royalty' or `royalties' includes any payment, whether periodical or not, and however described or computed, to the extent to which it is paid as consideration for
- (a) the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trademark, or other like property or right;
- (b) the use of, or the right to use, any industrial, commercial or scientific equipment;
- (c) the supply of scientific, technical, industrial or commercial knowledge or information;
- (d) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such property or right as is mentioned in paragraph (a), any such equipment as is mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c); or
- (e) the use of, or the right to use
- (i) motion picture films;
- (ii) films or video tapes for use in connexion with television; or
- (iii) tapes for use in connexion with radio broadcasting;''
Although the Income Tax Laws Amendment (Royalties) Act 1976 came into operation on 6th December 1976, sec.8 of that Act provided:
``The amendments made by this Act apply, and shall be deemed to have applied, to income derived on or after 1 July 1968 other than income in respect of which an assessment was made before 5 July 1976.''
The assessment in respect of the year ended 30th June 1976, unlike the other two assessments, was not made before 5 July 1976. It was submitted on behalf of the Commissioner that the sum assessed in respect of that year, $5,925,000, fell within the definition of the word ``royalty'' which was inserted by the Act of 1976 (No. 143 of 1976).
The sum assessed was not paid to the appellant during the year of income ended 30 June 1976: it had during that year been credited as due and payable in the books of account of Volvo Australia and was therefore regarded by the Commissioner in making the assessment as having been derived by the appellant in that year. Mr. Ormiston made a submission that derivation of income which
ATC 4324when paid, would answer a description contained in the definition of ``royalty'' inserted by Act No. 143 of 1976 was a ``payment'' within the meaning of that word in the definition. But he frankly confessed himself unable to advance an argument in support of that submission, and I am unable to accept it. If the submission had been accepted, yet I would reject, for reasons already stated, the further submission for the Commissioner that the sum of $5,925,000 was to any extent "paid as consideration for -
- (a) the use of, or the right to use any copyright, patent,... trademark, or other like property or right;"
In each appeal there will be an order that the appeal be allowed and that the assessment be set aside.
In the circumstances of this case is it suggested by counsel for either party that any other order should be made? I have it in mind that it is not uncommon in these cases to remit the matter to the Commissioner, but it seems to me that in this case there is nothing further to be done once the assessment is set aside. Am I wrong about that?
Mr. BURNSIDE: I think that is right, your Honour.
HIS HONOUR: In each appeal the order will be that the appeal is allowed and the assessment set aside.
MR. GIBSON: If your Honour pleases, I appear for the appellant and I ask for an order for costs in each appeal.
HIS HONOUR: Yes. Did you wish to say anything against that?
MR. BURNSIDE: I would like to say something, your Honour, but I don't think I can say anything that would be useful or persuasive.
HIS HONOUR: Yes, In each appeal there will be an order that the appellant's costs of the appeal be taxed and paid by the respondent.