Case R1

Judges: MB Hogan Ch

P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 22 December 1983.

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Dr. P. Gerber (Member)

The facts of this case have already been set out with a wealth of detail. I shall not repeat them. Regrettably, this Board has been unable to reach a consensus, a fact no doubt due to the different weight attached by my colleagues to the decision in
Ferguson v. F.C. of T. 79 ATC 4261 . For myself, I find Ferguson to be a decision depending on its own peculiar facts, deciding no more than that primary production has its own critical mass. Whatever this critical mass may be, this taxpayer falls far, far short of it. At best, he was a farmer in pectore; and that is not enough. It was conceded that when the property was acquired, the taxpayer had no fixed intention of commencing farming (``we bought the property because we wanted something. We just were not interested in 26 perches, which we had in Toowoomba. We wanted a property which was in my family, like. To get back to it and be my own boss.''). It is, of course, axiomatic to observe that every business has to begin and that even isolated activities may constitute such a beginning. However, doing a soil test and kicking over a bit of dirt in ``preparation'' of putting in a dozen trial plants in the following year does not involve ``primary production'' even in the language of Professor Wittgenstein. As Dr. Beck pointed out during the hearing: ``He could plant 12 seeds before breakfast with a spade''.

2. In the result, I have concluded that a man is not engaged in the business of primary production ``of whom no more can be said than that he intends to engage (therein)'' per Barwick C.J.;
Southern Estates Pty. Ltd. v. F.C. of T. (1967) 14 A.T.D. 543 at p. 546; (1967) 117 C.L.R. 481 at p. 488 , and that this proposition applies alike to sec. 75(1) as to sec. 51. All this taxpayer did was to travel hopefully, one day to arrive. I find he did not ``arrive'' in the 1980 tax year.

3. I would uphold the Commissioner's decision on the objection.