Beaumont J

Federal Court

Judgment date: Judgment handed down 5 May 1992

Beaumont J


In its income taxation returns for the years ended 30 June 1977, 1978, 1979 and 1983, the applicant described as ``capital profits on sale of hiring assets'' the following amounts: 1977 - $81,985; 1978 - $142,608; 1979 - $219,489; 1983 - $140,065. By amended assessments issued in 1984, the Commissioner included these amounts in the applicant's assessable income pursuant to s. 25(1) of the Income Tax Assessment Act 1936 (``the Act'') or, alternatively, s. 26(a) or s. 26AAA of the Act. The applicant objected to the assessments and the matter has now been referred to the Court for decision.

The general history of the applicant's business activities

The applicant commenced carrying on, in Victoria, the business of hiring out forklift trucks (``forklifts'') to its customers in 1967. Shortly before this, in 1965, a related corporation, Hyteco Pty. Limited (``Hyteco''), having acquired from Hyster Australia Pty. Limited (``Hyster'') the right to distribute Hyster forklifts in Victoria, had commenced to carry on the business, in Victoria, of selling forklifts. From March 1973 to November 1985, the applicant was a wholly-owned subsidiary off Ateco Holdings Limited (``Ateco''), a listed public company. The applicant carried on its business until September 1985, when the business was sold to Brambles Holdings Limited. From 1982 until September 1985, the applicant's business was carried on under the name of ``Ateco Rentalift''. Prior to this, the applicant had used the business name of ``Hyteco Rentalift''.

In March 1973, Hyteco (N.S.W.) Pty. Limited (``Hyteco (NSW)''), another related corporation, acquired from Lawrence Tootill Pty. Limited (``Tootill'') the right to distribute Hyster forklifts in New South Wales and in the Australian Capital Territory and then commenced to carry on that business. At the same time the applicant acquired from Lawrence Tootill (Hire) Pty. Limited (``Tootill (Hire)''), a related corporation of Tootill, its fleet of forklifts which were available for hire. Some of the forklifts were purchased outright; but, in the majority of cases, the forklifts had been leased from a financier, and the applicant acquired the lessee's interest under the lease. From March 1973, until September 1985, the applicant carried on in New South Wales and in the Australian Capital Territory the business of hiring out forklifts to its customers.

(Since there is a dispute between the parties as to many of the secondary facts, the above description is not intended to be a finding of any contentious matters. In particular, this description should not be treated as a finding that the applicant's only business was that of hiring the forklifts. An important part of the Commissioner's case is that the applicant also carried on the business of selling forklifts.)

The primary facts

The nature of the applicant's activities in the period now in question (1977 to 1983) was described in the affidavit of evidence of Donald Jacobs, a former employee of the applicant. From 1 September 1976 to 31 March 1984, he was the applicant's Rental Manager for New

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South Wales; from April 1984 until November 1985, he was General Manager of the applicant's New South Wales Division. Mr. Jacobs also gave oral evidence when cross- examined on his affidavit. He was an honest and reliable witness. Mr. Jacobs gave evidence of the primary facts, which, in its essentials, I accept.

I make the following findings with respect to the primary facts from the evidence of Mr. Jacobs, supplemented, where appropriate, by documents in evidence and facts admitted by the Commissioner in the course of the proceedings:

(1) The applicant obtained its forklifts, usually those made by Hyster, from the following sources: (a) as a result of the Tootill transaction in 1973; (b) from Hyteco (for use in Victoria); (c) from Hyteco (NSW), for use in New South Wales and the Australian Capital Territory.

(2)(a) With respect to the Tootill forklifts, as has been said, although some were purchased outright by the applicant, in most cases, the applicant took over an existing lease from a financier.

(b) There was tendered in evidence, by way of illustration, the file of the applicant in respect of several forklifts acquired from Tootill. The file, entitled ``RT [Rental Truck] 86'' showed, inter alia, the following:

  • (i) On 10 September 1970, Tootill raised an invoice showing a sale of a Hyster Model H.80C forklift (``the 80C forklift'') to the Bank of New South Wales (``the Bank'') for a price of $10,275, including sales tax, payable in cash on delivery. A statement appeared on the invoice that the vehicle was for leasing to Lawrence Tootill (Leasing) Pty. Limited (``Tootill (Leasing)''). It is common ground that this vehicle was used by Tootill and, later, by the applicant for hiring out.
  • (ii) On 17 September 1970, an acknowledgment in writing, addressed to the Bank, was executed by Tootill (Leasing) as follows: in consideration of the Bank agreeing to lease, inter alia, the 80C forklift the subject of the above invoice, Tootill Leasing acknowledged that, prior to execution of the lease of the vehicle, it had sold the goods to the Bank.
  • (iii) The written lease between the Bank and Tootill (Leasing), dated 18 September 1970 provided relevantly as follows:
    • (A) A term of 60 months (five years) at a monthly rental of $193.21;
    • (B) Determination of the lease by the effluxion of time was relevantly dealt with by cl. 22 in these terms:
      • "22. (a) Unless within thirty (30) days prior to the expiration of this Lease the Bank has agreed in writing to an extension of the term hereof, the Lessee shall at his own expense return the goods to the Bank at such expiration.
      • (b) Unless otherwise agreed in writing, any extension hereof shall be at the rental and upon the terms, including the residual value, contained herein and such extension shall continue until determined by either party giving one month's written notice to the other expiring at any time.
      • (c) Upon the expiration of this Lease or any extension thereof, the following provisions shall have effect:
        • (i) if the Lessee does not within a period of fourteen (14) days thereafter return the goods to the Bank, the Lessee shall pay to the Bank the residual value of the goods contained in the First Schedule or any substituted residual value agreed upon;
        • (ii) if the goods are returned to the Bank within such period and within three months thereafter the Bank sells them, the Lessee shall pay to the Bank such residual value less the net proceeds of sale, which shall for the purpose of this paragraph mean the gross proceeds of sale actually received by the Bank within such period of three months after deducting all costs and expenses of and incident to such sale including the costs incurred by the Bank in taking possession, storing, moving, repairing, registering and insuring such goods. If such costs and

          ATC 4219

          expenses exceed the gross proceeds of sale actually received as aforesaid, then the Lessee in addition will reimburse the Bank to the extent of such excess;
        • (iii) if the goods are returned to the Bank within such period and have not been sold within three months thereafter notwithstanding that they have been submitted for sale by public auction without reserve, then their value shall be deemed to be nil and the lessee shall pay to the Bank the full amount of the residual value and in addition will reimburse the Bank for all moneys expended by it which if the goods had been sold would under the preceding paragraph (ii) have been deductible from the gross proceeds of sale;
      • ..."
    • (C) The residual value was stated to be $2,055.00.
  • (iv) The applicant's stocktaking records in the period between 1973 and 1982 indicate that in this period, the 80C forklift was hired out to several of the applicant's customers, including, in the latter part of this time, a hiring which extended over some years.
  • (v) Depreciation for taxation purposes was claimed by the applicant in respect of the 80C forklift. As has been said, it is common ground that it was used in hiring activities. The applicant's depreciation schedule for the year ended 30 June 1982 showed, in respect of the 80C forklift, an ``original cost'' of $2,055 (i.e. an indication that the applicant acquired the vehicle from the Bank at its residual value, presumably in about September 1975). Its opening written down value in the 1982 depreciation schedule was $258. It was shown as disposed of in February 1982 for $8,700.
  • (vi) An invoice from Hyteco (NSW) to Bomaderry Auto Wreckers dated 10 February 1982 evidenced a sale of the used 80C forklift for a price of $8,700. In the invoice, it was stated that it was ``sold in used condition with all faults if any''.

(3) In addition to the Tootill vehicles, forklifts were obtained by the applicant from Hyteco and used in its hiring business in Victoria. The applicant also procured forklifts from Hyteco (NSW) that were used for hire in New South Wales and in the Australian Capital Territory. Some of these vehicles were purchased outright by the applicant, if liquid funds were then available. Others were acquired from Hyteco or Hyteco (NSW) by a financier and leased to the applicant, usually for a term of five years. At the expiration of the lease, the applicant would either purchase the forklift from the financier at its residual value or enter into a further leasing arrangement. Until 1981, hire purchase arrangements were, on some occasions, entered into by the applicant with a financier.

(4)(a) In hiring forklifts to its customers, the applicant entered into long-term arrangements (i.e. a period of two years or more) on some occasions and casual or short-term arrangements on others.

(b) The applicant's policy was to make new, or, occasionally as new, forklifts available for long-term hiring. For this purpose, the applicant would usually quote its customer a rental based on the cost to the applicant of acquiring or leasing the forklift, preparation and delivery charges, estimated repair and maintenance charges and a profit component to show a return on funds invested of between 20% and 30%.

(c) For casual or short-term hire, the applicant employed second-hand or used forklifts.

(d) The applicant did not generally hold forklifts in stock to await a hiring arrangement. Usually, Hyteco (NSW) had forklifts in stock, available for sale.

(e) At the expiration of a long-term hiring, the applicant would decide whether the forklift (a) should be available for re-hire long-term (if in good condition); (b) should be available for hire on a casual, short-term basis; or (c) was unsuitable for further hiring and should be disposed of.

(5) In the applicant's experience, the average useful hiring life of a forklift was in the range of five to eight years, although examples of a hiring life of up to 15 years could be given. If the applicant decided to dispose of a forklift, arrangements would be made for its sale through the used equipment division of Hyteco (NSW).

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The inferences to be drawn from the primary facts

In my opinion, these primary facts, and the evidence taken as a whole, justify the inference or conclusion that the business of the applicant was that of hiring out forklifts. Although other members of the Ateco group were engaged in selling forklifts, the applicant was not engaged in that activity as its business. The applicant maintained and utilised what it described as its ``hire fleet'' of forklifts. This fleet constituted fixed assets of the applicant. They were not its trading stock. The applicant's forklifts were available for hire, not sale. When, as a general rule, the applicant decided finally to dispose of a vehicle, this was the disposition of a fixed asset. It was not a dealing with an item which merely circulated in the applicant's business.

On behalf of the Commissioner, reliance is placed on evidence that, on a few occasions, the applicant negotiated for the sale of its forklifts. In my opinion, these dealings were exceptional transactions. They happened in special circumstances and do not provide a reliable guide to the character of the business carried on by the applicant.

In my view, in analysing the character of the applicant's business, it is important to bear in mind that the lease agreements entered into by the applicant with its financiers were, in truth, a ``financing device'' (per Hutley J.A. in
Austin & Anor v United Dominions Corporation Ltd. [1984] 2 NSWLR 612 at 614; see also C. Turner,
"Chattel Leasing and the Credit Acts - The Resurrection of form over substance?" (1992) 66 ALJ 116 at 116-117). For the applicant the leasing arrangement was only a means to an end. It was not an end in itself. It was a method of financing the acquisition of vehicles for use in the applicant's business of hiring them out to its customers. The residual value provision should, for this reason, be seen in its proper context. As Priestley J.A. said in Austin's case (at 623-624):

``Rogers J also pointed out that the residual value in the lease agreements must be taken to have been calculated on the footing that the total rent had been received. By this remark I take him to have been referring to the commercial practice of lessors of chattels whereby their rental charges and residual values are so calculated that if a leasing agreement runs its full course and on its conclusion the lessee buys the chattel from the lessor (there having been no pre- existing obligation upon the lessor to sell if requested) the lessor will have been reimbursed by the receipt of the rental instalments and the residual value for the capital laid out on the chattel and commercial rates of interest on that sum for the period of the lease, in a way analogous to that in which it is finally reimbursed at the conclusion of a hire purchase agreement which has run its normal course by the receipt throughout that agreement of instalments only, without any residual payment. Thus, in a leasing transaction of this kind the residual value will be a balancing figure which, when added to the rental instalments, will produce a figure equal to a return of the lessor's capital plus the desired return of interest over the period for the outlay of its capital. It will thus bear no necessary relation to the market value of the chattel at the end of the lease, although presumably the lessor would tend to calculate it at a lower figure than market value (difficult though this might be to predict in regard to some types of chattel) to ensure that if the lessee did not indicate any wish to buy it at the end of the term it could then be sold without detriment to the lessor's original calculations. In some cases this approach would require the rental payments to be at a higher rate than what would be the market rate for the rental of goods which were simply expected to be returned to the owner at the end of the lease.''

The Commissioner's amended assessments

The amounts now assessed by the Commissioner as assessable income, being ``net profit on sale of hiring assets'', were calculated by the Commissioner in the manner appearing in the schedules annexed to these reasons [at pp 4,224].

As has been said, the Commissioner contends that these amounts, or parts of them, were assessable income by virtue of s. 25(1) of the Act, or s. 26(a), or s. 26AAA.

(It should be noted that the amounts assessed, totalling $584,147, represented the proceeds of sales of forklifts received by the applicant less: (a) in the case of a used forklift purchased from Tootill, the cost of that vehicle; (b) in all other cases, the residual value stated in respect of the forklift, being the amount paid by the applicant

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in order that it might acquire the lessor's interest in the vehicle; instalments of rent paid by the applicant to the lessor have not been taken into account.

It should further be noted that on no occasion did the applicant receive, by way of the proceeds of sale of a used vehicle, an amount that was greater than the original cost of acquiring the vehicle as a new forklift.

It should also be noted that the applicant made the following pre-tax profits from the hiring of its forklift trucks:-

    1974        $231,959.00
    1975        $166,212.00
    1976        $ 54,728.00
    1977        $148,144.00
    1978        $ 68,679.00
    1979        $219,004.00
    1980        $283,261.00
    1981        $114,605.00
    1982        $ 40,809.00

Did s. 25(1) apply?

On behalf of the Commissioner, reliance is placed upon the well-known reasoning of the Full High Court in
FC of T v The Myer Emporium Limited 87 ATC 4363 at 4366-4367; (1987) 163 CLR 199 at 209-211 and of Gibbs J. and of Jacobs J. in
London Australia Investment Company Limited v FC of T 77 ATC 4398 at 4403, 4409-4410; (1976-1977) 138 CLR 106 at 116, 128. Further, it is submitted, on his behalf, that the decisions of the Full Federal Court in
Memorex Pty. Ltd. v FC of T 87 ATC 5034; (1987) 77 ALR 299 and in
FC of T v GKN Kwikform Services Pty Limited 91 ATC 4336 are in point here.

In Memorex, the applicant was a distributor of computer equipment. As a general rule, it sold its equipment outright, either to its customer or to a financier who provided finance to the customer. However, from time to time, the applicant also leased equipment to customers. At the end of the term of the lease, the goods would be re-leased or sold at a profit over and above their original cost to the applicant. Leasing of goods did not form a major part of the applicant's business. Nevertheless, the sale of goods which had been leased was held to be of sufficient magnitude and of sufficient regularity to be regarded as an ordinary part of the applicant's business.

It was held that the profits made on the sales were assessable income.

Davies and Einfeld JJ. said (at ATC 5042-5043; ALR 308-309):

``... it is well settled that, if goods are traded in the course of a business of trading in such goods, the trade in particular goods may be on revenue account whether or not the goods were or were not traded in with an expectation of profit...

The principles we have enunciated above are in substance those which were applied by the Administrative Appeals Tribunal. The Tribunal concluded that the profit derived on the sale of the computer equipment was derived in the ordinary course of its business activity. The Tribunal held that the profit was not a profit arising on the mere realisation of capital but arose from dealing in the computer equipment to the best advantage of the applicant's business.


In our opinion, no ground has been shown for disturbing the Tribunal's findings on these matters or the conclusion that the subject profits were assessable income of the applicant.''

Pincus J. said (at ATC 5047-5048; ALR 315):

``... no doubt a possible view of the matter is to treat the leasing activities as a distinct enterprise, but the more reasonable view of the matter, being that accepted below, is that sales of leased equipment were during the years in question an integral part of the appellant's business as a supplier of computer equipment. The leasing part of the business was not separate in a physical or accounting sense from the rest of the appellant's business. Counsel for the appellant contended that there was one important matter distinguishing the assets leased from those initially acquired for sale, namely that each and every item was, at the time of purchase from the parent, earmarked as one intended for leasing or for sale. There was, however, no specific finding in favour of the appellant on that point, and an examination of the evidence relating to it makes one doubt that any such finding would have been open. That was so because it was not shown that none of the items leased to customers was taken from stock, rather than being specifically imported

ATC 4222

against an order. At all material times, equipment of substantial value was held in stock.''

In the present case, however, the relevant business of the applicant was that of hiring out forklifts to its customers. Likewise, the facts in GKN are very different from the circumstances of this case.

In my opinion, s. 25(1) had no application here. The sales were of fixed assets generally held for the long term. Their realisation did not, in my view, produce income in accordance with the ordinary usages and concepts of mankind. I cannot accept, as was submitted on behalf of the Commissioner, that the applicant was trading in vehicles. That was the business of Hyteco and Hyteco (NSW) (see
GP International Pipecoaters Pty Ltd v FC of T 90 ATC 4413 at 4420; (1989-1990) 170 CLR 124 at 138-139).

Expert accounting evidence was given, in which opinions were expressed with respect to the appropriate accounting treatment of transactions of the kind entered into by the applicant. In my opinion, this evidence does not assist in the resolution of the present matter which does not raise any accounting issues (cf.
FC of T v Cyclone Scaffolding Pty. Ltd. 87 ATC 5083; (1987) 18 FCR 183).

Did s. 26(a) apply?

By s. 26(a), the assessable income of a taxpayer included profit arising from the sale by the taxpayer of any property acquired by him for the purpose of profit-making by sale, or from the carrying on or carrying out of any profit-making undertaking or scheme. In the light of the decision of the High Court in
A.L. Hamblin Equipment Pty. Ltd. v FC of T 74 ATC 4310; (1974) 131 CLR 570, the first limb of s. 26(a) was not pressed by the Commissioner before me. But can it be said that the proceeds of sale realised by the applicant in the above circumstances constitute profits arising from the carrying on or carrying out of a profit-making undertaking or scheme?

In my opinion, they were not. As has been said, the forklifts, which were usually sold many years after their original acquisition, at a time when they had gone beyond their useful lives as part of the applicant's hire fleet, were disposed of for prices which were less than their original acquisition cost. Viewed in that context, there was not present here any relevant profit-making undertaking or scheme.

Did s. 26AAA apply?

By s. 26AAA(2) of the Act, the assessable income of a taxpayer includes any profit arising from property purchased and sold within 12 months. By s. 26AAA(5)(b) the provisions of s. 26AAA(2) do not apply if s. 54 applied in relation to the property and, as a result of the sale, s. 59 applies in relation to the property.

On behalf of the Commissioner, it is submitted that the applicant has not discharged the usual statutory onus of establishing that the forklifts in question would ordinarily have been used for hiring.

It is true that the business records of the applicant in respect of the period in question are no longer complete. The applicant has, in my view, satisfactorily explained their absence in the evidence of Kenneth Stephen Scarra, the applicant's company secretary. In his affidavit, Mr. Scarra said:

``5. I have access to such of the records of the Applicant and Hyteco (NSW) for the period February 1973 to 30 June 1983 as still exist.

6. On 2 September 1985 the Applicant sold to Brambles Holdings Limited the Applicant's forklift truck hire business and its plant and equipment.

7. In late December 1985 the business records of the New South Wales division of the Applicant were moved from its then premises at Thornleigh to premises that it then commenced to occupy at Marayong.

8. Between March and May 1986 the business records of the Victorian division of the Applicant were moved from Victoria to the premises that it then commenced to occupy at Marayong.

9. I have been informed by employees of Ateco and verily believe that during the moves referred to in the above paragraphs, a substantial proportion of the records of the Applicant were lost.

10. After the Applicant's business records had been moved to Marayong such records were left out in the weather with inadequate protection. I have been informed by employees of Ateco and verily believe that a substantial proportion of the documents that

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were not lost in the move were damaged or destroyed by rain.

11. I have searched the records of the Applicant, but due to the matters set out above, I have been unable to find any complete files relating to the forklift trucks referred to in the Schedules 4A, 5A and 6A to the Affidavit of Mr. Vella. I verily believe that such documents no longer exist.

12. I have however unearthed files for forklift trucks used by the Applicant in its hiring business during the years in question although sold outside the tax years involved in these proceedings. From enquiries made by me I believe these files to be relevantly in the same form as files relating to trucks sold in the years in question. Now exhibited to me and marked `KSS1', `KSS2', `KSS3' and `KSS4' are four files relating to forklift trucks used by the Applicant in its hiring business during the period 1973 to 1982.''

As has been noted, the subject assessments were amended in 1984 and extended back to 1977. It appears that the delay in bringing these proceedings to a final hearing arose out of a desire to await the outcome of the Full Court decisions in Cyclone, Memorex and GKN.

The schedules annexed to these reasons relied on by the Commissioner [are not reproduced] were prepared by Trevor John Vella, a chartered accountant in private practice, primarily from information contained in the applicant's income tax returns.

As I followed it, the argument put on behalf of the Commissioner relies very much on the absence of documentation of the transactions now in question. It is true, of course, that by s. 190(b) of the Act, the burden of proving that the amended assessments were excessive lies upon the applicant. But I have already found that, in the period with which we are now concerned, the applicant's fleet of forklifts were part of its fixed assets and thus depreciable. As has been said, a few special instances of sales, apparently out of the ordinary course of the applicant's business, were given. But they were exceptional. Taking the material in evidence as a whole, it is legitimate, I think, to infer that the applicant's forklifts be treated as a unit, that is, as a fleet available for hire and thus depreciable. In this connection, it should be noted that references in the applicant's business records to ``casual sales'' should be treated as a reference to rental transactions of a casual or short-term kind. As Mr. Jacobs explained in his evidence, he regarded himself as ``selling'' rental, that is, soliciting customers who would hire the applicant's vehicles. That is to say, ``casual sales'' did not refer to sales of the forklifts.

Orders proposed

I propose to order that the decisions of the Commissioner upon the objections under review be set aside and that there be substituted decisions allowing the objections. The Commissioner must pay the applicant's costs.

CCH Note: Schedules not reproduced.

ATC 4224

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