CASE 50/93
Members:IR Thompson DP
DL Elsum M
BH Pascoe M
Tribunal:
Administrative Appeals Tribunal
IR Thompson (Deputy President), DL Elsum and BH Pascoe (Members)
On 30 November 1989 the respondent issued assessments of the applicant's liability to pay sales tax under the Sales Tax Assessment Act (No. 1) 1930 (``the No. 1 Act'') and the Sales Tax Assessment Act (No. 6) 1930 (``the No. 6 Act'') in respect of goods sold by the applicant during the period from 1 December 1984 to 31 August 1989. On 24 January 1990 he issued assessments of sales tax payable under those Acts in respect of goods sold by the applicant during the period from 1 August 1989 to 30 November 1989. The applicant objected to those assessments. On 23 April 1992 the respondent gave its decision on the objection. Insofar as the objection related to the assessments made on 24 January 1990, he allowed it in full. Insofar as it related to the assessments made on 30 November 1989, he allowed it in part only. The applicant then applied to the Administrative Appeals Tribunal for review of the objection decision. There were two applications, both in identical terms, which the Tribunal registry understood related respectively to the parts of the objection decision which dealt with each of the pairs of assessments. It appears that the second application was made in error as at the commencement of the hearing Mr de Wijn informed the Tribunal that the part of the objection decision relating to the assessments made on 24 January 1990 was entirely satisfactory to the applicant and was not challenged. Mr Nettle agreed that it was not in issue. We have, therefore, dismissed the second application.
2. At the hearing of the application the applicant was represented by Mr J. de Wijn, of Counsel; the respondent was represented by Mr G. Nettle, of Her Majesty's Counsel, and Ms A. Richards, of Counsel. In addition to the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (``the T documents''), the Tribunal received in evidence a considerable number of documents relating to the sale of the goods in respect of which the sales tax was assessed. Some of those documents were from the applicant's own files. Others were from the records maintained by two of the three retailers to whom the goods were sold. Oral evidence was given by Mr J. D. Cameron, the applicant's Sales Director, and by Mr P.J. Rigg, an employee of a firm of chartered accountants, both of whom were called by Mr de Wijn, and by Mr C.P. Cox, the Managing Director of a company which is a specialist consultant in trade promotions to the Australian manufacturing industry, who was called by Mr Nettle.
3. The applicant is an Australian company which bears the name of a company whose brand name is known internationally. It imports some of the brand-name goods from overseas; it manufactures others in Australia. It sells goods of both kinds in Australia to, inter alia, major retailers. Sales tax is payable in respect of goods of the first kind under the No. 6 Act and in respect of goods of the second kind under the No. 1 Act. The sales with which we are concerned in these proceedings were made to three major retailers. We shall refer to them respectively as Big Store Ltd. (``Big Store''), Supermarket Ltd. (``Supermarket'') and Grocery Chain Ltd. (``Grocery Chain''). Counsel informed the Tribunal that the only sales which remained in issue were those which occurred between 1 December 1984 and 30 November 1987.
4. Among the documents tendered in evidence were copies of the trading terms negotiated by the applicant with Big Store, Supermarket and Grocery Chain. Although they related to parts only of the period of the sales with which we are concerned in these proceedings, evidence was given that, so far as is relevant in these proceedings, similar trading terms applied throughout the whole of that period. The trading terms were those under which the applicant was to sell its goods to each of the retailers respectively. In each case the terms provided for rebates to be allowed to the
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retailer. Each rebate was in the form of a percentage of the applicant's normal wholesale price (``the list price''). Each rebate was stated to be given for a particular reason. For instance, a rebate was given in recognition of the service provided by the retailer performing a central warehousing and distribution function. Some of the rebates related to promotional support.5. Section 21 of the No. 1 Act and section 7 of the No. 6 Act required at all relevant times that the applicant furnish the respondent with a return of goods sold during each month. The return had to be made within 21 days of the end of the month. Section 24 of the No. 1 Act and section 9 of the No. 6 Act required that sales tax payable in respect of those goods be paid within 21 days of the end of the month.
6. From 1984 until November 1987 the applicant calculated its sales tax liability each month on the basis that the rebates which related to promotional support were not to be deducted from its list price in calculating the sale value of the goods. It paid sales tax each month accordingly. However, in December 1987, when it furnished its return of the goods which it had sold in November 1987, it sought to reduce the sales tax payable in respect of those goods by $712,597.51. It contended that it had overpaid that amount during the previous three years; that was the amount by which the sales tax would have been reduced if the rebates which related to promotional support had been deducted from the list price of the goods for the purpose of calculating their sale value.
7. The respondent did not allow the deduction. However, thereafter in its monthly returns the applicant apparently calculated its sales tax liability for each month on the basis that the sale value of the goods sold did not include the amounts of the promotional support rebates. That, we understand, accorded with the practice which had been adopted for some time by some other wholesalers; it was based on an interpretation of a sales tax ruling, No. ST2039, issued in 1983. That ruling related to various types of rebates which the respondent would accept as reducing sale value. From December 1987 until January 1990 the doubt as to the interpretation of the ruling remained. Negotiations took place between the applicant and Australian Taxation Office staff about the refund of $712,597.51 claimed by the applicant in December 1987 and about the sale value of the goods it had sold since then. On 25 January 1990 a new, fuller sales tax ruling, No. ST2458, was issued. The effect of that ruling was to make clear that the respondent did not accept that certain promotional support rebates reduced the sale value.
8. Although the applicant was seeking a refund of the $712,597.51 already paid between 1984 and November 1987, because of the dispute about the sale value of the goods sold from December 1987 onwards the applicant and the Australian Taxation Office officers agreed not to deal with it under the provisions of the No. 1 and No. 6 Acts which provided for refunds but to have the respondent issue assessments in respect of the whole period from 1984 to 1989. Provision for the making of assessments is contained in section 25 of the No. 1 Act and section 10 of the No. 6 Act. Liability to pay sales tax, unlike income tax, arises without any need for an assessment to be made. No evidence was placed before the Tribunal of any assessments of the applicant's sales tax liability made before those which were the subject of the objection decision in these proceedings. The assessments were made pursuant to sub-section (2A) of sections 25 and 10 respectively, presumably on the ground that the respondent was not satisfied with the applicant's returns from December 1987 onwards.
9. The first pair of assessments totalled $873,125, the second pair $79,960.71. The first pair related both to the period up to November 1987, when the promotional support rebates were not deducted in calculating the sale value, and to the period between December 1987 and August 1989, when apparently they were deducted. Before the assessments were issued, however, the respondent had ``allowed'' part of the $712,597.51 which the applicant claimed had been overpaid in the first of those periods. The reference to ``allowing'' that part is, we are satisfied, to be understood as meaning that the respondent accepted that, to the extent of the allowance, there had been an overpayment and allowed the applicant to set it off against sales tax payable in respect of goods sold during the month prior to that in which the ``allowance'' was made. Effectively, the amount ``allowed'' was refunded. When the applicant objected to the assessments, the respondent allowed the objection to the first assessment to the extent that it related to sales tax for the period from December 1987 to August 1989.
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10. The promotional support rebates were given to the retailers in accordance with the agreed terms of trade. The terms varied from retailer to retailer but in each case there was more than one type of promotional support rebate; in one case they were referred to as co- operative advertising rebates. The ``allowance'' of part of the $712,597.51 refund sought by the applicant was given in respect of promotional support rebates of all but one type. The first pair of assessments related only to rebates of that one remaining type; they were not assessments of the amount of all the sales tax which the applicant had been liable to pay during the period to which they related. The second pair of assessments, which was in respect of a period in 1989 when the applicant apparently calculated the sale value of its goods by deducting all the promotional support rebates from the list price, did not, of course, relate to any part of the refund claimed.
11. The amounts of the deductions in respect of promotional support for which the trading terms provided differed from retailer to retailer. The precise percentage of each rebate allowed to each retailer is a matter of considerable commercial sensitivity. At the request of the applicant and representatives of the retailers we made orders pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the disclosure of the information presented to the Tribunal about them. It is not necessary for us to specify the precise percentages of the several rebates allowed to the various retailers. All that needs to be recorded is the description of the nature of each of the rebates and the circumstances in which it was to be paid.
12. In the case of Big Store they were all described as ``promotional support fund'' rebates. It was stated in the terms of trade that support funds for the promotion of the applicant's product would be provided as to the first rebate by cheque payable to Big Store on a monthly basis for agreed promotional activity, as to the second rebate upon receipt of a claim for satisfactory promotional support, and as to the third rebate by payment in the form of case allowances and deferred payments. The terms of trade of Supermarket showed the method of payment of the first rebate as ``minimum as negotiated'' and that of the second as ``paid by cheque monthly to States''. The terms of trade of Grocery Chain provided for ``support funds for the promotion of'' the applicant's products to be paid as to the first rebate on receipt of the claim for mutually agreed promotional activity and as to the second rebate in the form of ``case allowances, discounts off invoice, etc.''.
13. The rebates with which the first pair of assessments were concerned, insofar as they dealt with tax payable between 1984 and November 1987, were rebates of the second type of promotional support rebate for which the Big Store terms of trade provided and of the first type of promotional support rebate for which the Supermarket and Grocery Chain terms of trade provided. However, in his closing address Mr Nettle submitted that the Tribunal should find that rebates of the first type of the Big Store promotional support rebates and, apparently, of the second type of the Supermarket promotional support rebates were not to be deducted in calculating the sale value and should make its decision accordingly, increasing the amount of the sales tax liability stated in the objection decision. It is not clear to us why he did not make the same submission in respect of the rebates of the third type of the Big Store promotional support rebates and the second type of the Grocery Chain promotional support rebates.
14. Some of the evidence given by the witnesses was of a general nature relating to promotional support rebates given to major retailers. Where the evidence went into the detail of the rebates given by the applicant to Big Store, Supermarket and Grocery Chain, it was usually particularized by reference to the rebates allowed to Big Store. However, it was our understanding that, except in respect of the percentages, that evidence was intended to be broadly applicable to the rebates given to the other two retailers. Mr Cameron drew a distinction between rebates given in recognition of the trading support offered by each retailer to the applicant and what he said were known as promotional support rebates or co-operative advertising rebates. In a written statement which was tendered in evidence he set out thirteen different types of promotional support. All of them related to the display or advertisement of the applicant's goods in a variety of ways by the retailers.
15. Mr Cameron gave evidence that the amounts which the applicant paid to the retailers for promotional support exceeded the amounts which it was obliged to pay by the
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terms of trade agreements. He gave an account of the manner in which the applicant and the retailers negotiated with one another for the provision of promotional support by the retailers; the negotiations resulted in binding agreements for the provision of specific display or advertising for an agreed price. He said that each retailer had a fixed charge for each type of display or advertisement. The charge was an amount which did not vary according to the value of the goods in respect of which the promotional support was provided. In any year the amount paid to a retailer for promotional support might be double, or more than double, the amount payable by way of promotional support rebates under the terms of trade agreement.16. Mr Cameron said that the promotional support rebates of the first type allowable to Big Store under the terms of trade was paid, as provided for in the terms of trade, at the beginning of each month; it was paid regardless of what, if any, promotional support would be provided during that month. However, before the promotional support rebate of the second type payable to Big Store was paid, the applicant had its sales staff check whether the promotional support for which it had contracted with the retailer for the retailer to provide had actually been provided during that month to a value not less than the amount of the rebate. When the amount payable for specific promotional support provided in accordance with the contract for its provision came to be paid, the amounts already paid by way of promotional support rebates of, we understood, all types were taken into account and deducted from the amount which would otherwise have been payable. The applicant did not contend that the amount of the balance which was paid was to be taken into account in calculating sale value. Clearly it was not.
17. By virtue of section 17(1) of the No. 1 Act sales tax is levied on the sale value of goods manufactured in Australia by the taxpayer and sold by him. By virtue of section 3 of the No. 6 Act sales tax is imposed upon the sale value of goods imported into Australia by the taxpayer and sold by him. Section 18(1) of the No. 1 Act provided at all relevant times that for the purposes of that Act the sale value of goods sold by wholesale was ``the amount for which the goods were sold''. The No. 6 Act contained a similar provision in section 4. Both Acts contained provisions for regarding, in specified circumstances, some other amount as the sale value of goods sold but none of those provisions is relevant in these proceedings.
18. In
Commonwealth Quarries (Footscray) Proprietary Limited v FC of T (1938) 59 CLR 111 the High Court of Australia held that on the facts of that case the amount for which the goods had been sold was the amount which was agreed to be paid for them at the point at which the taxpayer-vendor agreed to deliver them. The cost of delivery was not deductible from that amount as the contract was for the sale of the goods to be delivered at the agreed price.
19.
EMI (Australia) Ltd. v FC of T 71 ATC 4112 was a case in the High Court of Australia where the taxpayer sold gramophone records to a purchaser for a price which did not include any amount in respect of copyright, artists, and pressing fee royalties. The taxpayer paid those amounts directly to the persons entitled to receive them and was periodically reimbursed by the purchaser for that expenditure. Windeyer J. held that the sale value of the goods sold was the sum of the amount paid to the taxpayer by the purchaser under the sale contract and the amount paid by the purchaser to the taxpayer to reimburse it for the royalty payments which it had made. He noted that, before the taxpayer could lawfully sell the records, it had to pay the royalties. Consequently, he said at page 4418, the payments made to the taxpayer by the purchaser to reimburse the taxpayer for payments it had made to enable the lawful reproduction of the records for sale ought to be taken into account as part of ``the amount for which those goods are sold''. His Honour continued:-
``... The word `amount' of itself connotes a sum total to which items amount up. I hesitate to use here either of the words `consideration' or `price', because recently there has been some new academic analysis of the juristic concepts they express. It is enough to say that, as used in the Assessment Act, `the amount' for which a thing is sold means I consider the sum total of all moneys that the buyer promises, expressly or tacitly, to pay to, or for, the seller in order that he, the buyer, may get a good title to goods that he has agreed to buy. In
Commonwealth Quarries (Footscray) Pty. Ltd. v. F.C. of T. (1938) 59 C.L.R. 111 Dixon and McTiernan JJ. said (at p. 121)
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that the words `the amount for which those goods are sold' appeared `necessarily to mean the contract price'. It may be that in some agreements for sale the buyer agrees to meet some incidental charges that are not in a strict sense part of the contract price. But the judgments in the case to which I have referred support, I think, my view of the content of the word `amount' in this case.''
20. In
Queensland Independent Wholesalers Ltd v. FC of T 91 ATC 4492; (1991) 29 FCR 312 the Full Court of the Federal Court dealt with a case in which a taxpayer sold goods wholesale to small retailers. Under a scheme in which a number of the retailers had agreed to participate it bought in bulk and thereby procured volume discounts which it passed on in the form of rebates to the retailers who were participants in the scheme. Some of the rebates were deferred, that is to say allowed some time after the sale had been completed and the price paid. The Court observed that, although ordinarily the words ``the amount for which the goods are sold'' would be the sale price of the goods, those words could not be confined to the contract price. It referred to the EMI case in support of that proposition. However, as the rebates had possibly been given voluntarily rather than contractually, for the sale value to be reduced the rebate had to effect a reduction in the sale price as a matter of commercial reality and not be directed to some other end. On the facts the Court found that half of the rebate, which was credited to the customer's accounts, did not effect a reduction in the sale price because it was not a mere rebate against the price but was directed to ensuring an additional capital injection into the parent company of the taxpayer, in case it might be needed.
21. In Case Z29
92 ATC 267 the Tribunal was concerned with the payment made by retailers to the taxpayer for five-year replacement/repair cover in respect of specific electrical appliances which the taxpayer sold to the retailers. Acceptance of and payment for the cover was optional. The Tribunal held that the retailers acquired the cover under a contract separate and distinct from the sale contract, as it was not an essential characteristic of the sale of the appliance to which the cover related. Consequently, the amount paid for the cover was not part of the amount for which the goods were sold and therefore not part of the sale value.
22. That goods may have a value for a statutory purpose which is derived from, but not necessarily the same as, the sale price of the goods is a familiar concept. In some statutes there is express provision for the matters which are to be taken into account in adjusting the amount of the sale price in order to ascertain the value of the goods for the purpose of the statute. Division 2 of Part VIII of the Customs Act 1901 contains very detailed provisions of that nature in two sections which extend over 16½ pages of the Government Printer's text of that Act. The No. 1 and No. 6 Acts contain no such detailed provision, only that made in section 18(1) of the No. 1 Act and section 4 of the No. 6 Act to which we have referred in paragraph 17 above. However, we are satisfied that the authorities to which we have referred require that the sale value of goods for the purposes of those Acts is to be ascertained by starting with the amount of the sale price and then adjusting it to take account of other matters which either increase or decrease the value actually received by the taxpayer on his selling the goods to the retailer. Such value may be obtained wholly in the form of money paid in cash, partly in that form and partly by the receipt of money's worth in the form of goods or services received by the taxpayer from the purchaser or wholly in the form of such money's worth. It need only be valuable consideration. (See section 3(4) of the No. 1 Act and paragraph (f) of the inclusive meaning of ``sale of goods by wholesale'' in section 3(1) of that Act.) If a rebate is given by the taxpayer and he receives from the purchaser in return for giving it quantifiable money's worth in the form of goods or services, that rebate, unlike a rebate given without any quantifiable money's worth being received from the purchaser in return for it, e.g. a volume purchasing rebate, does not reduce the value actually received by the taxpayer for the goods.
23. Of course, it is not unknown for commercial contracts to disguise the true nature of payments or rebates; the fact that a rebate is stated to be given in return for a particular service does not necessarily mean that that is why it is given. It is necessary to examine the facts of each case and to ascertain the commercial realities in order to characterize the purpose of any payment or rebate. That is clear from the decision of Windeyer J. in the EMI
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case. However, if the rebates from the list price which were given by the applicant to the three retailers in respect of promotional support were given in return for services actually performed by the retailers in return for them, we are satisfied that those rebates ought not to be taken into account in ascertaining the sale value of the goods sold by the applicant to those retailers.24. Evidence was given at the hearing that the three retailers have a dominant position in the particular field of commerce in which the applicant's goods are sold by retail to the public. There was evidence that a person wishing to sell goods to any of those retailers would be unable to do so if he were unwilling to agree to terms of trade which included provision for his allowing a rebate in return for the retailer providing promotional support. However, Mr Cameron gave evidence that the applicant regarded such promotional support as important for the marketing of its goods. He described the range of promotional support provided. It included display of the applicant's goods in a manner intended to draw them to the attention of customers e.g. by special shelf ticketing and by display in dump bins, at gondola ends or in free-standing display baskets. It included also actual advertising by the retailer. The fact that the amounts which were paid or payable as rebates were deducted from the total of the costs of specific items of promotional support indicates the contractual nexus between the rebates and the provision of services. As the applicant contracted with the retailers for more promotional support to be provided than had to be paid for under the terms of trade and then had its staff check that it was in fact provided, it is clear that the applicant regarded the promotional support provided by the retailers as having considerable value for the applicant. We have come to the conclusion, therefore, that, even though the applicant would not have been able to sell its goods to any of the three retailers if it had not accepted their terms of trade, there was nothing fictitious in the description of the promotional support rebates as such. The applicant received quantifiable money's worth, indeed quantified money's worth, from the retailers in the form of promotional support for the marketing of its goods.
25. Accordingly, the amounts of the rebates given as a percentage of the list price of the goods sold in respect of promotional support were given in payment for the services of the retailers in providing that promotional support. They were given in return for services of real value. They did not reduce the value of the goods to the applicant; it remained the same value as it would have been if the rebates had not been given and the promotional support not received. The amounts paid are, therefore, not to be taken into account as reducing the sale value of the goods, as contended for by the applicant. Accordingly, the application for review must be dismissed.
26. It is unnecessary, therefore, for us to consider the suggestion made by the applicant that the sales tax which the objection decision found was payable should have been remitted pursuant to section 12D(1) of the Sales Tax Procedure Act 1934 (``the Procedure Act''). That section empowers the respondent to remit an amount of tax which should have been paid but was not paid where the reason for the non- payment was reliance on a ruling given by the respondent which was subsequently found to be incorrect and was altered. That is not the situation in the present case. The applicant did not fail to pay sales tax to the extent required by the No. 1 and No. 6 Acts. What it did was to pay more than it now believes it should have done. Section 12D does not authorize the refund of tax which has been paid. Provision for refund of tax that has been overpaid is made in section 26 of the No. 1 Act and in similar terms by section 11 of the No. 6 Act. The applicant claimed a refund within three years of making the overpayment, as required by section 12C of the Procedure Act. However, both section 26 of the No. 1 Act and section 11 of the No. 6 Act provide for overpaid tax to be refunded only where the respondent is satisfied that it has not been passed on by the taxpayer to another person or that, if it has been passed on, it has been refunded to that other person. That is a matter about which the applicant would have had to satisfy the respondent before any refund could have been made.
27. We have referred above to the fact that it was only in Mr Nettle's closing address that he raised for the first time the question whether the Tribunal should direct the respondent to make a new assessment deciding, in effect, that the applicant was liable to pay the amount of the sales tax paid between 1984 and November 1987 in respect of rebates of the first type of the Big Store promotional rebates and of the second
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type of the Supermarket promotional rebates, which amount the respondent has subsequently agreed was overpaid and which he has ``allowed'', as we have described above. That was the amount of tax which the applicant paid because, in calculating the sale value of the goods it sold during that period, it did not deduct from the list price the promotional support rebates of the first type referred to in the Big Store terms of trade and of the second type referred to in the Supermarket terms of trade. Mr Nettle submitted that they were paid in return for precisely the same services provided by the retailers as were the rebates which were the subject of the objection decision. We are satisfied that they were paid in return for promotional support provided by the retailers and that, for the reasons which we have stated above in respect of the promotional support rebates which were the subject of the objection decision, the amount of those rebates should not have been deducted from the price of the goods in calculating the sale value.28. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (``the AAT Act'') gives the Tribunal the same powers when reviewing a decision as were possessed by the person who made the decision under review. Section 40(6) of the No. 1 Act, which is effectively incorporated into the No. 6 Act by section 12 of that Act, provides that the Commissioner, when dealing with an objection, must either allow the objection, wholly or in part, or disallow it. The power does not extend to amending the assessment in any way other than by allowing it in part. The power to make a further assessment which imposes liability additional to that imposed by the assessment to which objection has been taken is to be found not in section 40(6) but in section 25 of the No. 1 Act and section 10 of the No. 6 Act. The Administrative Appeals Tribunal, therefore, does not have power to amend the assessment to which the objection was taken or to make a new assessment.
29. However, section 43(1) of the AAT Act empowers the Tribunal to set aside a decision and to remit the matter which is the subject of the review to the decision-maker for reconsideration in accordance with directions given, or recommendations made, by the Tribunal. In
Stevenson v FC of T 91 ATC 4476 Jenkinson J. held, in a case relating to review by the Tribunal of an objection decision in respect of an assessment made under the Income Tax Assessment Act 1936 (``the ITA Act''), that the Tribunal could remit the matter to the respondent with a direction that he amend the assessment. The Commissioner had power to do that because it was expressly provided by section 170 of the ITA Act. The consideration of an objection by the Commissioner extended to the possible exercise of the power to amend the assessment the subject of the objection.
30. Mr de Wijn submitted that the decision in Stevenson had effectively been overruled by the decision of the Full Federal Court in
Australia and New Zealand Savings Bank Limited v FC of T 93 ATC 4370. Dicta of Hill J. at page 4395 point in that direction and his judgment was adopted fully by Heerey J. However, a different view was taken by Davies J. at page 4373. The view expressed by Hill J. might be considered to be inconsistent with a passage in the judgment of Brennan J. in
FC of T v Dalco 90 ATC 4088 at 4091; (1990) 90 ALR 341 at 344 on which Davies J. relied. However, it is not necessary for us to decide whether or not Stevenson has been overruled. In our view, the decision in Stevenson does not extend to the case where, in order to give effect to the Tribunal's findings, an entirely new assessment would need to be made.
31. We would add that, even if we had been satisfied that the Tribunal had power to make such a decision, we should have found that in the present case that power ought not to be exercised. The amount of tax to which any such decision in this case would relate was paid in the period between 1984 and November 1987; it was, in effect, refunded to the applicant before the assessments which were the subject of the objection decision were made. To require that it be paid again now would, we consider, be totally unreasonable. The assessments did not relate to either the applicant's total liability to pay sales tax or the amount of that liability which had been the subject of the refund. The applicant had good reason, therefore, to regard that question as finalized; no doubt it adapted its business affairs accordingly. There is every indication that the respondent intended that that should be so.
32. The Tribunal has a duty to make the correct or preferable decision (
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) in respect of all matters which have to be decided in proceedings before it. It cannot
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shirk that duty because the proper application of the law to the facts it finds produces a result which it considers unfair or unreasonable. However, we are satisfied that, even if the Tribunal had power to make a decision in respect of the amount of tax which was paid but refunded, the correct or preferable decision would be that it should not direct that an assessment be issued imposing liability on the applicant to pay that tax again.33. Section 12B of the Procedure Act authorizes the respondent to remit tax which has not been paid at the expiration of three years from the close of the month in which the goods were sold to which the tax relates, unless he has required its payment prior to the expiration of that period or payment of the tax was avoided by fraud or evasion. The respondent did not require payment within the period of three years and payment was not avoided by fraud or evasion. Although the tax was paid initially, it has been refunded and must now be regarded as not having been paid. It is now nearly six years since the close of the last month of the period during which the goods were sold. In view of the manner in which the respondent has dealt with the matter to date, it would not be reasonable for him now to do otherwise than to exercise his powers under section 12B and remit the tax. In those circumstances it would be quite inappropriate for the Tribunal to direct him to issue an assessment having the effect of making the applicant liable to pay it again. It would not be the correct or preferable decision and the Tribunal would certainly have no duty to make it.
34. Accordingly, we have simply affirmed the objection decision under review (Ref No VT92/103).
Order of dismissal (Ref No VT92/104): Whereas the applicant has informed the Tribunal that the objection decision under review, insofar as it relates to the assessments made on 24 January 1990, is satisfactory to the applicant and is not contested, the Tribunal dismisses the application.
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