Case U25
Members:PM Roach SM
Tribunal:
Administrative Appeals Tribunal
P.M. Roach (Senior Member)
The applicant is a salaried officer of a finance company. Over a period of some years he supplemented his income by working as a process server and repossession agent for his employer and for other organisations. In the year of income ended 30 June 1984 his salary slightly exceeded $20,000; and his gross business income was $3,365 and his net business income was either $475 (as per his return of income) or $1,371 (as assessed by the Commissioner). In that business he was not discharging the responsibilities of a servant towards his master but acting as an independent contractor. The applicant is a methodical man who at all times kept detailed records relating to his expenses in earning that additional income. On any view the most substantial expense was in relation to the use of his motor vehicle. He kept his travel records on a job-by-job basis.
2. In about June 1984 he was told by an accountant that, provided he had not travelled more than 10,000 kilometres for income-earning purposes, he could claim income tax deductions on a cents-per-kilometre basis. He realised that if so he would get the benefit of deductions substantially in excess of his expectations. Surprised that that should be so, he called at the enquiry counter of the Australian Tax Office in his capital city and there asked whether he could claim on a cents-per-kilometre basis if he travelled less than 10,000 kilometres. He understood the answer to indicate that he could. He then checked the publication of the Australian Tax Office entitled, "The 1984 - Forms A and B - Instructions" ("the Booklet") and there on p. 35 under a bold title "DEDUCTIONS RELATING TO OTHER ALLOWANCES, BENEFITS, AND OTHER EXPENDITURE INCURRED IN EARNING INCOME" - he read:
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"Provided it is not of a capital, private or domestic nature, expenditure actually incurred for the purpose of earning your income may be claimed:
- (a) at Item 27 where the expenditure is incurred against an allowance (for example travelling, entertainment, tool, clothing, etc., allowance included at Item 6); or
- (b) at Item 28 where no allowance is received for the expenditure incurred.
Claims made at these items must be supported by a statement which sets out fully how, in the terms of your employment, you were required to incur expenditure of the kind claimed and which indicates whether or not you hold receipts for the amounts claimed. If receipts are not held, you should explain how you arrived at the amounts claimed.
Depending on your occupation and/or the conditions of your employment, examples of the types of expenditure which may be allowable as deductions are:
- ...
- (d) Travelling or motor vehicle expenses. (NOTE: The cost of travelling from your home to your normal place of employment and return is an expense of a private nature and is not allowable as a deduction. However, the cost of travelling directly from one place of employment to another place of employment is an allowable deduction.) If you are claiming travelling or motor vehicle expenses you must also show:
- (i) the circumstances under which it was necessary for you to incur the expenditure claimed in the course of your employment;
- (ii) make, model and engine cubic capacity of the vehicle;
- (iii) actual kilometres travelled (1) for employment purposes, (2) between home and usual place of employment, and (3) for other private purposes;
- (iv) details of expenses claimed. Except for repairs, expenses incurred in respect of a motor vehicle used for both employment and private purposes must be apportioned between employment and private use. Only that part appropriate to employment use is an allowable deduction. The same rule applies to expenses for repairs to such a vehicle, incurred after 18 April 1984. Expenses for repairs incurred on or before that date are allowable in full. The maximum amount on which depreciation is allowable for motor cars and station wagons (including four-wheel-drive vehicles) first used during the year ended 30 June 1984 is $23,357.00.
- NOTE: Where a travelling or motor vehicle allowance is not paid by your employer and total kilometres travelled for employment purposes did not exceed 10,000 for the year, you can either provide details of expenses claimed or make your claim at a set rate per kilometre based on the engine capacity of your vehicle. The rates are 18.8 cents for engines up to 1500cc (or 750cc for rotary engines); 21.5 cents for 1501cc to 2000cc (751cc to 1000cc for rotary engines); 25.8 cents for 2001cc to 4000cc (1001cc to 2000cc for rotary engines); 27.1 cents for over 4000cc (over 2000cc for rotary engines).
- (e)...
- NOTE: It is advisable to keep a diary of travelling, motor vehicle and entertainment expenses to enable you to prepare your claim correctly."
Having read the foregoing the applicant understood the passage to confirm the advice he had previously received.
3. Thus thrice assured he presented his return using Form B, detailing his claim as follows:
- Item B18 Total business kilometres 9,428 at 21.5c per km (1600cc motor) $2,027.02
4. Against the background of those circumstances the applicant was somewhat surprised to receive a letter from the Commissioner requesting detailed information as to his claim. He replied and in doing so said "I would add, however, that I called the Australian Taxation Office to clarify if I could in fact claim business mileage at the rate 21.5
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cents, which I have done, so I can't understand the reason for the query".5. The questions posed by the Commissioner and the answers provided by the applicant were as follows:
"With reference to motor vehicle expenses claimed in your return of income for the year ended 30 June 1984 you are requested to state:
- (a) Q. The total mileage for the year divided into: (i) mileage for business; (ii) mileage for private running. The nature and purpose of trips etc. claimed under business mileage should be indicated. N.B. - Travel between home and place of business is considered to be of a private nature.
- A. Total mileage for the year was 25,547 with business mileage amounting to 9,428 kilometres. The purpose of the trips was to earn the income, my business being that of a Commercial Agent and Process Server, which necessitates calling on people at varying addresses. Calls are usually made two to three nights per week and two to three days per week during the day. No travel between home and place of business has been included with travel being calculated from the G.P.O.
- (b) Q. Whether mileages supplied are based on, and can be substantiated by, records kept by you, or are estimates. If estimates, state the basis thereof.
- A. Mileage supplied is not based on estimates but is recorded on a job by job basis.
- (c) Q. The respective amounts attributable to: (i) petrol and oil; (ii) repairs; (iii) insurance and registration; and (iv) other running expenses (please detail).
- A.
- (i) $1,163.89
- (ii) $396.00
- (iii) $298.26
- (iv) $29.00 representing licence costs R.A.C.T. membership.
- (d) Q. Whether the motor vehicle expenses claimed (petrol and oil, repairs, etc.) represent actual expenditure, or are estimated. If actual expenditure, indicate the type of records kept. If estimated, state the basis of estimate.
- A. The expenses claimed are actual, not estimated. Records kept for petrol is [sic] simply a note in my diary, but repairs, insurance, registration, etc. are paid by account.
- (e) Q. Type of vehicle (i.e. make, and whether a car, utility, or station wagon etc.).
- A. The vehicle is a Mitsubishi L300 Express Van.
- (f) Q. Date of purchase and purchase price of vehicle(s).
- A. 20th of October, 1981 - $7,823.52.
- (g) Q. If sold during the year, date of sale of vehicle and sale price or trade-in allowance.
- A. Not applicable."
6. On 20 December 1984, before delivering his answer to the office of the Commissioner, the applicant made a telephone call to the enquiry section of the Australian Taxation Office and again, according to his understanding, received confirmation that the claim he had originally made was in order. None the less on 8 March 1985 the Commissioner issued a notice of assessment which was accompanied by an adjustment sheet and an "Explanatory Advice" memorandum. They disclosed that "motor vehicle expenses" had been disallowed to the extent of $938 and the reason for that adjustment given by the explanatory advice was: "In the absence of accurate details [sic] motor vehicle expenses have been allowed to the extent of 37% of actual costs. Opening value of the vehicle was calculated as $4,700.00 for depreciation purposes."
7. The applicant objected referring to the information given by counter staff and the booklet. In due course he received an amended assessment reducing taxable income by $42 "to reflect actual cost of motor vehicle related to business usage" but otherwise disallowing his objection. The notice of the determination on the objection was attended by a letter of explanation which said (inter alia):
"Full consideration has now been given to your objection against your assessment for the year ended 30 June 1984.
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Whereover [sic] possible deduction claims should be based on the actual expenditure incurred for assessment purposes. Obviously this is not always practical and in such circumstances alternative methods of calculation are used.
Motor vehicle expenses are one such instance where it is not always practical to use the actual costs. Therefore in cases where the total kilometres travelled for business purposes is less than 10,000 kilometres a cents per kilometre basis is used. If the mileage is greater than this actual expenditure figures must be provided however, if the total kilometres travelled are less than 10,000 kilometres and the actual costs are provided, the deduction claimed and subsequent assessment must be based on the actual expenditure.
Your claim for motor vehicle expenses has therefore been amended to allow the following based on actual expenditure incurred.
$ Petrol and oil 1,164.00 Repairs 396.00 Insurance and registration 298.00 Other expenses 29.00 Depreciation 1,177.00 --------- $3,064.00 --------- Allowable business proportion 9,428/25,547 kms X 3064 = $1,131 Amount Previously Allowed = 2027 - 938 = $1,089 Additional Amount Allowable = $42"
8. Being dissatisfied with the decision, the applicant requested that his objection be referred for review. In doing so he said (inter alia):
"In conclusion I reiterate that I was advised by the Taxation Department and your instruction book which also states that business mileage under 10,000 kilometres can be claimed at a rate per kilometre and it is therefore unfair if some taxpayers can claim on this basis, which is more favourable than the basis on which my mileage has been allowed."
9. In due course the objection was referred for review and, after a telephone preliminary conference, came before this Tribunal for hearing. However, before the hearing officers of the Commissioner conferred with the applicant. They presented him with extracts from "Assessing Handbooks" and a copy of a report of the decision in Case P74 (cf. post). The extract provided from Vol. 1 of the Australian Taxation Office Assessing Handbook (Non-Business) embraced para. 1.7.47 to 1.7.51 (inclusive). The first two paragraphs were of general application relating to travelling expenses. The remaining paragraphs related only to motor vehicle expenses and stated (inter alia):
"1.7.49 Where an allowance is not paid, but a taxpayer establishes that motor vehicle is required to be used in the course of deriving assessable income, and the taxpayer supplies details of the actual expenditure incurred by him, the allowable deduction is to be calculated accordingly. The rate per kilometre basis (sec 1.7.50) will have no application.
...
Initially in considering claims of this nature, the assessor should examine firstly the question of legality of the claim and secondly, the question of quantum. Note, that where a claim fails to qualify [sic] the test of legality, the test for quantum does not arise.
...
1.7.50 Claims based on cents/kilometre. Where an allowance is not paid by the taxpayer's employer, the taxpayer may either claim on the basis of actual expenditure (see 1.7.49) or at a set rate per kilometre based on the engine capacity of his vehicle.
Where the taxpayer has based his claim on a distance not exceeding 10,000 kilometres, the application of the cents per kilometre method is acceptable. Claims based on a distance exceeding 10,000 kilometres should be decided in the light of the particular facts in each case and should be based on actual expenditure and the proportion of business mileage to total mileage.
Where it has been decided that the cents per kilometre method is appropriate the rates provided by State motoring organisations
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are not to be used as they include in their calculation elements that are not acceptable such as `opportunity costs of finance'. The allowable deductions to be calculated by reference to the rates specified in Public Service Board Determination 51 of 1984..."
Paragraph 1.7.51 set forth directions as to how assessors are to act if the rate per kilometre claimed exceeds that appropriate to the stated engine capacity and as to the adjustment of the claimed rate to the minimum rate if engine capacity has not been stated and it is not practicable to obtain the information prior to assessment.
10. The second extract provided was from Vol. 2 of an Australian Taxation Office Assessing Handbook (Business) and embraced para. 2.5.29 to 2.5.36 under the heading of "Motor Vehicle Expenses". Those extracts stated (inter alia):
"2.5.29 Where a taxpayer establishes that he is required to incur expenditure in using his motor vehicle in the production of assessable income and supplies details of the actual expenditure incurred by him the allowable deduction is to be calculated in accordance with that information. In this case the rate per kilometre basis will have no application.
2.5.30 Where the taxpayer claims a deduction on a rate per kilometre basis the allowable deduction is to be calculated for the purposes of Regulation 90 of the Australian Public Service Regulations.
2.5.31 Where the claim is based on a distance travelled under 10,000 kilometres the claim can be accepted without query.
(2.5.32-34 deal with the adjustment of rate per kilometre claims where the rate claim is excessive or the engine capacity of the vehicle has not been stated.)
2.5.34 In all cases where claims based on a rate per kilometre basis are reduced to Regulation 90 rates, the taxpayer is to be advised with his Notice of Assessment of the basis of the deduction allowed and informed that greater deductions will be allowed only where details are provided of actual expenditure incurred which would justify the allowance of some further amount. Where a taxpayer elects to provide details of actual expenditure incurred claims in future years must also be made on the basis of actual expenditure incurred.
2.5.35 Where claims made on a rate per kilometre supply details of actual costs incurred during the year."
11. Against the background of all those experiences the applicant comes before the Tribunal and requests that the action of the Commissioner in disallowing his objection be overruled on the basis that the Commissioner's directions and rulings as to how the Act is to be applied throughout the country should also be applied to him.
12. In addressing the questions raised by the applicant I am not prepared to adopt his account of either conversation with the enquiry section as indicating the Commissioner's view of the law which he has been entrusted to enforce and which he is responsible to enforce consistently throughout the community. No detailed account of the conversations was presented and it was not suggested that the applicant was capable of giving a detailed and accurate account of them. The practicalities of the matter are that the staff of the Commissioner appointed to assist the general public with their income tax enquiries must at times feel that they are expected to have encyclopaedic knowledge of all aspects of taxation law. I think it unreasonable to expect that any person has that degree of knowledge.
13. The instruction booklet stands on a different footing. I observe that it does not accurately state the law. For example, the statement that:
"the cost of travelling from your home to your normal place of employment and return is an expense of a private nature and is not allowable as a deduction"
is not invariably true. Nor is it reasonable for persons well informed in taxation matters to expect such a publication to be in all respects accurate. In my view it is impossible for such a brief text to accurately and exhaustively express all relevant principles of taxation law. I have no doubt that the booklet is and has been over many years a very useful guide for many persons, but it is unfortunate that it is not presented with some prominently displayed disclaimer in the way of a "Hedley-Byrne Clause" advising readers that it is presented
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only as a guide of general application; that generalisations will not be accurate in relation to some taxpayers even though accurate for many; that the Commissioner does not have responsibility for advising taxpayers as to how to protect their interests; that the Commissioner is not normally bound by statements he makes in such publications or by expressions of opinion by his officers; and that, if in doubt, taxpayers should seek their own advice before making their own judgments.14. Having said that the fact remains that in a widely disseminated document the Commissioner has advised the community that claims for travelling expenses could be presented at the option of taxpayers on either a cost or a cents-per-kilometre basis provided that the distance travelled in relation to which a claim is made did not exceed 10,000 kilometres per annum. In the course of the hearing the point was made that a careful reading of the text would have indicated to the applicant that the passage from the booklet only stated that that option was available to employees. As a comment on the text that is so, but the Act does not provide for two standards: one for employees and the other for the self-employed. It might also be said that careful reading of the text would have indicated that the document only says that "claims" may be made on a cents-per-kilometre basis; not that claims so made will be allowed. However, I doubt that the Commissioner would deny that the text was intended to convey the impression that if such a claim was made within the guidelines stated, it would be allowed.
15. I turn to a consideration of the extracts from the Assessor's Handbooks and observe that there is no evidence at all that either extract was relied on at the time of assessment or at the time of the determination of the objection. However, it is to be noted that the cents-per-kilometre standard up to 10,000 kilometres is proposed as appropriate in relation to both employees and the self-employed; that the taxpayer is recognised as the person having the right to elect which standard will apply; that the only bases for query proposed are where the distance claimed for exceeds 10,000 kilometres, or the engine size is not specified, or the rate per kilometre is excessive having regard to disclosed engine size, or the claim appears to be "extravagant". As the claim was for less than 10,000 kilometres, the engine size was specified and the appropriate rate per kilometre claimed, any query to be raised in accordance with those extracts would have had to be on the basis of the claim being "extravagant". That it seems could only refer to the possibility of the claim being based upon overstatements as to mileage travelled, or as to size of motor, or as to the rate per kilometre appropriate to the size of motor, or as to mathematical error in applying the formula. The queries actually raised not only sought confirmation of distance and motor size but in fact went far beyond that and made enquiries relevant to establishing actual costs notwithstanding the statements which had been made as to the acceptability of a cents-per-kilometre basis. That that is what happened was confirmed by the statements in the letter attending notice of the decision upon the objection. Further, it then seems that the provision of details as to costs in response to the Commissioner's queries came to be treated as if the taxpayer had elected to be assessed on a "cost basis" rather than by "cents-per-kilometre" (cf. the letter at time of disallowance; the Handbooks - Non-Business (1.7.49) and Business (2.5.29)).
16. I have come to the conclusion that if the applicant had been assessed in accordance with the substance of the published statements issued in the name of the Commissioner, he would have been allowed the deduction as claimed and I am at a loss to understand why this taxpayer was not assessed in accordance with those norms. This is not a case of an isolated error in the course of assessment or in advising as to entitlements or as to liability - cf. a decision of the Tribunal of 30 October 1986: B.498/1984 [reported as Case T85,
86 ATC 1118]. Rather it seems that the applicant is being denied the benefit of well considered and widely published standards in relation to assessment - cf. a decision this day: NT.85/128-129, NT.85/137 [reported as Case U29,
87 ATC 229]. That is a matter for concern because it is unjust to this taxpayer relative to others. Injustice may arise from the enactment by the Parliament of unwise and unfair laws. It may arise because of erroneous judgments by courts and tribunals or because procedural limitations prevent them from judging fairly. It may also arise because of inconsistency in the administration and enforcement of just laws.
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17. The question which then arises is whether the Tribunal can and should achieve the result contended by the applicant, either by applying the norms so proclaimed or otherwise.
18. The Income Tax Assessment Act sets the criteria for the levying of taxation. It requires that "from the returns and from any other information in his possession, or from any one or more of these sources, the Commissioner shall make an assessment of the amount of the taxable income of any taxpayer, and of the tax payable thereon" (sec. 166). "In calculating the taxable income of a taxpayer, the total assessable income derived by him during the year of income shall be taken as a basis, and from it there shall be deducted all allowable deductions" (sec. 48). "All losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing such income, shall be allowable deductions except to the extent to which they are losses or outgoings of capital, or of a capital, private or domestic nature, or are incurred in relation to the gaining or production of exempt income" (sec. 51). The latter section introduces the concept of apportionment where a particular item of loss or outgoing is in part attributable to the gaining of assessable income and in part to some other end or activity and that principle is recognised as also being of application in relation to expenses such as depreciation. That principle has to be applied to the present case because the expenses incurred by the applicant in the operation of his motor vehicle served not only the income-earning ends of his business activities but also his private and recreational purposes.
19. The leading authority as to apportionment in the application of sec. 51(1) of the Income Tax Assessment Act ("the Act") is the joint decision of the Full Bench of the High Court of Australia in
Ronpibon Tin N.L. and Tongkah Compound N.L. v. F.C. of T. (1949) 78 C.L.R. 47.
20. Having said that charges which could not be dissected should be apportioned, the Court went on to say (at p. 59):
"The question what expenditure is incurred in gaining or producing assessable income, is reduced to a question of fact when once the legal standard or criterion is ascertained and understood. This is particularly true when the problem is to apportion outgoings which have a double aspect, outgoings that are in part attributable to the gaining of assessable income and in part to some other end or activity... [T]here are at least two kinds of items of expenditure that require apportionment. One kind consists in undivided items of expenditure in respect of things or services of which distinct and severable parts are devoted to gaining or producing assessable income and distinct and severable parts to some other cause. In such cases it may be possible to divide the expenditure in accordance with the applications which have been made of the things or services. The other kind of apportionable items consists in those involving a single outlay or charge which serves both objects indifferently. Of this directors' fees may be an example. With the latter kind there must be some fair and reasonable assessment of the extent of the relation of the outlay to assessable income. It is an indiscriminate sum apportionable, but hardly capable of arithmetical or rateable division because it is common to both objects.
In such a case the result must depend in an even greater degree upon a finding by the tribunal of fact."
And at p. 60:
"The Court must make an apportionment which the facts of the particular case may seem to make just... The question of fact is therefore to make a fair appointment (sic) to each object of the companies' actual expenditure where items are not in themselves referable to one object or the other. But this must be done as a matter of fact and therefore not by this Full Court."
21. In consequence in each case the formal order of the Full Court (so far as material) was that:
"The learned Judge should decide as a matter of fact what part or proportion (of the amounts to be apportioned) is fairly and properly attributable to gaining the assessable income."
22. The principles so expressed do not always require that there be a mathematical exercise (such as apportionment based upon the
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relativities between distances travelled on business and private purposes). Such a course is not the only way of determining what is "fairly and properly attributable to gaining the assessable income", although it may happen to be the most appropriate means of making a determination. Sometimes as in Ronpibon (ante) a mathematical approach is not convenient.23. Although no further reference to the cases appears in the Commonwealth Law Reports, the report (1949) 8 A.T.D. 431 records that the cases were disposed of by his Honour the Chief Justice at Melbourne on 8 June 1949. The minute book of the High Court for that day records that Mr Ashkanasy K.C. with Spicer K.C. appeared for the taxpayers and Mr McInerney appeared for the Commissioner and records:
"11.05 a.m. Mr Ashkanasy K.C. informs the Court that the parties have agreed on the figures in each case. He hands his Honour typewritten statements. He asks for a deduction of 600 pounds in Ronpibon and 800 pounds in Tongkah.
11.25 a.m. Mr McInerney replies. He suggests 60 pounds in Ronpibon and 70 pounds in Tongkah.
11.48 a.m. Mr McInerney concludes.
11.48 a.m. Mr Ashkanasy K.C. replies.
11.58 a.m. Mr Ashkanasy K.C. concludes.
11.58 a.m. His Honour delivers oral reasons for judgment.
12.05 p.m. Order: Remit assessments to Commissioner with a direction that they be amended by allowing 400 pounds as a deduction in the case of Ronpibon and 500 pounds in the case of Tongkah Compounds. Commissioner to pay costs of appeal including costs of case stated. Liberty to apply.
12.10 p.m. Court adjourned sine die."
24. Although no transcript or other detailed record of proceedings that day is available it is none the less clear that the matter was determined by his Honour the Chief Justice, as a matter of fact, and by an exercise of judgment, no doubt founded in his Honour's long professional and judicial experience, and being a judgment promptly made after having the benefit of brief argument rather than evidence. So it was that in the case of Ronpibon, of the £650 expended in management and director's fees the taxpayer argued for a finding of £600 to be allowed as a deduction; the Commissioner argued for an allowance of £60 only, and his Honour determined upon a figure of £400. In the case of Tongkah the figures were £890; £800; £70; and £500 respectively.
25. Walsh J., took a similar course in
Smith v. F.C. of T. 72 ATC 4111. In that case his Honour had to apportion amounts expended on fares overseas and in travelling while overseas. His Honour said (at p. 4121):
"The evidence does not make is possible to determine by any precise calculation what was the extent to which the outgoings were so incurred. But I think the evidence enables me to make an estimate of the amount which may be reasonaby allowed. I estimate the amount of the allowable deduction at $829 made up of $404 being half the overseas fares and $425 being about one-third of the $1,274 said to have been expended in the African countries after the sporting event had been held."
On the other hand in Case T40,
86 ATC 334 which concerned the amount of expenditure to be allowed to an Army Reserve officer whose earnings from his service were taxable as to half and exempt just to half and where the Commissioner had allowed only half of the expenses although the taxpayer had claimed the whole I said at p. 336:
"An arithmetical or ratable division is not necessary and, in the case of an item such as director's fees may be quite inappropriate. However, in the circumstances of this case where the expenditure serves neither purpose to the exclusion of the other and where the related income is assessable and exempt in equal parts I am satisfied that no apportionment is more appropriate than the apportionment adopted by the Commissioner."
26. In my view it can be appropriate to use a cents-per-kilometre basis for calculating the mileage expenses allowable as deductions, and perhaps and the best indication that it is an appropriate basis in this case is that the Commissioner has said that it is appropriate and acceptable. If the kilometres travelled are few and the vehicle is a relatively late model the
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difference between a cents-per-kilometre basis (as used by the Commissioner) and an apportionment based on actual costs may be relatively small and insignificant. But that could not be said to be so in the circumstances of this case or any similar case. As the applicant realised from the outset (cf. para. 2 of these reasons) use of the cents-per-kilometre rates proposed for use by the Commissioner where travel did not exceed 10,000 kilometres would be likely to confer tax deductions well in excess of those available on a cost basis. (cf. Case P74,82 ATC 354.) That being so it appears that the norms proclaimed by the Commissioner allowed as a matter of policy that claims in many cases will be accepted - although not for this applicant - in amounts substantially in excess of amounts allowable by virtue of the provisions of the Act.
27. For the sake of completeness I note that this is not a situation in which the applicant could rely on any contention that the Commissioner should be estopped because he has led the taxpayer into error - the expenses claimed were incurred before he became aware of the Commissioner's rulings and practices. Even if it were not so, the Commissioner stands in a special position:
"No conduct on the part of the Commissioner could operate as an estoppel against the operation of the Act."
(per Kitto J.,
F.C. of T. v. Wade (1951) 84 C.L.R. 105 at p. 117.)
28. In the circumstances I cannot but uphold the determination of the Commissioner upon the objection notwithstanding that by doing so I am holding that this taxpayer is to be denied advantage which the Commissioner confers upon others.
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