BRIAN REILLY FREIGHTERS (NSW) PTY LTD v FC of T
Judges:Hill J
Court:
Federal Court
Hill J
Brian Reilly Freighters (NSW) Pty Limited (``the applicant'') appeals from the decision of the Administrative Appeals Tribunal (``the Tribunal'') constituted by a Deputy President (Mr McMahon), affirming upon review the objection decision of the Federal Commissioner of Taxation to disallow objections lodged by the applicant against assessments for the years of income ended 30 June 1986 to 30 June 1991 inclusive. The Tribunal's reasons are to be found reported at Case 10/96,
96 ATC 192. At issue is the deductibility in each year of amounts described in the profit and loss account of the applicant as ``interest''.
The basic facts as found by the Tribunal may be summarised as follows. Mr Hirst was the major shareholder and controlling mind of a group of companies concerned with the collection, processing and recycling of waste paper. In or around the middle of 1985 Mr Hirst sought to find and purchase suitable premises for use by one of his companies, Paper Shredders Pty Ltd (``Paper Shredders''), for its business purposes. He located a suitable property in Annandale, which was owned and occupied by the applicant, then a wholly owned subsidiary of Johnston's Transport Holdings Co Pty Limited (``JTH''). For reasons not relevant, JTH was not prepared to enter into a transaction pursuant to which the applicant sold to Mr Hirst the Annandale land. The only arrangement open was that Mr Hirst purchase from JTH the issued share capital of the applicant for the sum of $600,000. It was this arrangement which Mr Hirst entered into on 6 September 1985.
Mr Hirst sought and obtained advice from an accountant, Mr Paul Dowd, at or around the time of entering into the contract to purchase the shares as to the possibility of rationalising his corporate structure. Mr Dowd, in conjunction with Mr Hirst's solicitor, suggested
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transferring the existing business of Paper Shredders to the applicant. However, shortly after Mr Hirst entered into the agreement to purchase the shares, the then Federal Treasurer, Mr Keating, announced, as and from 19 September 1985, the introduction of capital gains tax. This announcement, coupled with the fact that legislation to give effect to the announcement only became available later, had the result that the merger proposal was, at least for the time being, scrapped.Associated with the purchase of the shares were these transactions directed at assisting Mr Hirst to finance the acquisition. All necessary corporation law approvals were obtained to the assistance these transactions required of the applicant in the purchase of its shares.
First, JTH repaid an amount of $270,000 which had previously been lent to it by the applicant. The applicant in turn lent the same amount, interest free, to Mr Hirst. On completion, Mr Hirst used this amount to satisfy in part (to the extent of the $270,000) his liability to meet the purchase price.
Secondly, JTH lent to Mr Hirst the sum of $295,000 at an initial rate of 14.5% per annum for the first year, variable in subsequent years. The repayment of this advance was secured by a mortgage over the Annandale property given in favour of JTH. This sum of $295,000 was also used by Mr Hirst in part payment of the purchase price.
The third transaction involved a loan by an independent solicitor to a trustee company of Mr Hirst's family trust in the sum of $40,000. Interest was payable on this loan. The funds so borrowed were then on-lent by the trustee to Mr Hirst who, in turn, used them to pay the balance of the moneys owing to JTH and incidental expenses.
Mr Dowd perceived that, without the merger of the Paper Shredders business into the applicant, there was a taxation problem for Mr Hirst or the companies associated with him. Mr Dowd's own view (it is not clear whether he communicated it to Mr Hirst, and there is no finding that he did) was that Mr Hirst, as the purchaser of the shares, was the person who would be looking to get a tax deduction for the interest payable on the debt relevant to the purchase of the shares. He considered the possibility of Mr Hirst being paid a salary, but dismissed this as involving payroll tax and group tax problems, as well as possibly an increase in workers' compensation premiums. He said in his evidence that he had a discussion with Mr Hirst about the possibility of Mr Hirst receiving a fringe benefit. The substance of this conversation is not given by Mr Dowd whose evidence stops at that point.
Mr Dowd was not thereafter privy to anything that happened. He said that all of the accounting and tax compliance work after that time was done by someone other than himself. It is for this reason that the learned Deputy President found Mr Dowd's evidence insufficient to prove an agreement between Mr Hirst and the applicant for the provision to Mr Hirst by the applicant of a fringe benefit and the terms of such an agreement.
The contract to purchase the shares in the applicant was completed and the various loan transactions, to which reference has been made, finalised on 3 April 1986. Shortly after that date, Paper Shredders entered into a lease of the Annandale property at a commercial rent.
Thereafter, the applicant paid to JTH the interest which Mr Hirst was obliged to pay on the loan of $295,000 which JTH had made to him. Likewise, the applicant paid to the firm of solicitors who had advanced the sum of $40,000 the interest applicable on that loan. In the profit and loss account of the applicant for the years ended 30 June 1986 and 30 June 1987, these payments are recorded as ``interest''. There is no suggestion in the accounts that these payments of ``interest'' constituted loans made by the applicant to Mr Hirst. (The period between 3 April 1986 and 16 April 1987, in which these payments were made, is referred to hereafter as ``the first period''.)
On 16 April 1987 the applicant and Paper Shredders obtained a commercial bill facility from the Australia and New Zealand Banking Group Limited (``the ANZ Bank'') in the sum of $300,000 secured by a mortgage over the Annandale property. The proceeds of that facility were then advanced to Mr Hirst and applied by him in repayment of the loan of $295,000 from JTH. Notwithstanding the joint liability of the applicant and Paper Shredders under the bill facility, the reasons for decision treat the facility as being solely the responsibility of the applicant. No point was taken about this before me and indeed it is the situation most favourable to the applicant. In consequence, the losses incurred under the bill facility were incurred by the applicant. No point
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is taken in the present case that losses under a bill facility are, in contradistinction to interest, on capital account: cfFC of T v Energy Resources of Australia Limited 96 ATC 4536 at 4539 where the matter is left open in the joint judgment of Dawson, Toohey, Gaudron, McHugh and Kirby JJ.
Thus from 16 April 1987 until 16 January 1989 (``the second period'') the applicant incurred losses on the bill facility and continued to pay interest on the solicitors' loan of $40,000. The profit and loss accounts in respect of the second period again disclose the losses or payment, as the case may be, as being ``interest''. There is no relevant entry in the balance sheet.
Finally, on 16 January 1989 the applicant borrowed $500,000 from the Advance Bank Australia Limited, the payment of which was secured by a mortgage over the Annandale property. The proceeds of this loan were used by the applicant to repay the ANZ Bank facility. In addition, the applicant repaid the solicitors' loan. Nothing turns presently on the fact that there was a surplus between the amount borrowed and the amounts used in the way described. Thus, from 16 January 1989 until 30 June 1991 (``the third period'') the applicant paid interest upon the Advance Bank loan. The interest so paid appeared in the profit and loss accounts of the applicant relevant to the third period as ``interest''. No entry reflecting the amounts paid is to be found in the balance sheet of the applicant.
It was the applicant's case that it was entitled to deduct the amounts claimed as ``interest'' referred to in its profit and loss accounts in the relevant periods under s 51(1) of the Income Tax Assessment Act 1936 (Cth) (``the Act''). The applicant also relied upon s 67 of the Act. It is not clear from the reasons of the Tribunal whether the argument concerning s 67 related to specific costs of borrowing paid by the applicant in respect of the various loan transactions to which reference had been made, or related only to the ``interest''. Nothing, however, turns upon this.
The Tribunal rejected any claim under s 67 on the ground that no part of the money borrowed was used by the applicant for the purpose of producing its assessable income. Section 67 of the Act provides relevantly:
``(1) Subject to this section, so much of the expenditure incurred by the taxpayer in borrowing money used by him for the purpose of producing assessable income as bears to the whole of that expenditure the same proportion as the part of the period for which the money was borrowed that is in the year of income bears to the whole of that period shall be an allowable deduction.''
The wording of the section makes it abundantly clear that for s 67 to be applicable the money borrowed must be used by the taxpayer (not some other party) to produce assessable income. Although s 67 does not identify specifically that the assessable income must be that of the taxpayer, that is clearly implicit.
In no sense at all can it be said that the applicant used any of the moneys which were borrowed to produce assessable income in any of the three periods. The only activity the applicant carried out in the whole of the periods in question was the leasing of the Annandale property to Paper Shredders. Although no doubt it is correct to say that the Paper Shredders lease would not have been entered into but for Mr Hirst purchasing the shares in the applicant from JTH, it does not follow from that fact that the money to finance that purchase was used by the applicant in gaining the rental income from Paper Shredders. It is thus not relevant to consider an issue, not debated before me, whether a bill facility would constitute a borrowing of money for the purposes of s 67(1) of the Act.
The substantial argument of the applicant before the Tribunal (and before me) was that in relation to the first period and continuing through the second period, so far as it concerned the payments made by the applicant to satisfy Mr Hirst's liability for interest, the applicant had incurred the amounts expended by it on behalf of Mr Hirst in meeting his interest obligations because Mr Hirst had not drawn a salary from the applicant for services provided by Mr Hirst to the applicant. It was put that Mr Hirst had made a ``salary sacrifice'' or ``remuneration package'' arrangement so that payment of the interest on his behalf was deductible as constituting a benefit conferred upon Mr Hirst as a working director. In stating the submissions that way I have stated it as recorded by the Tribunal in its reasons.
In relation to the second and third periods in respect of the ANZ and Advance Bank interest, the applicant's claim was said also to be based
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upon the second limb of s 51(1), that is to say the submission was that the interest or bill discount loss were losses or outgoings:``... necessarily incurred in carrying on a business [of the applicant] for the purpose of gaining or producing such (ie assessable) income.''
The Tribunal in its reasons saw no reason to distinguish the loan from the solicitor via the trustee company, on the one hand, and the borrowing by Mr Hirst from JTH, on the other. It is not suggested that any distinction should be made, and accordingly, like the Tribunal, I will hereafter refer only to the loan from JTH to Mr Hirst without dealing separately with the solicitors' loan.
The Tribunal rejected the submissions made to it by the applicant. The claim that the payments in question were deductible as constituting some form of ``salary sacrifice'' arrangement or ``fringe benefit'' was ultimately rejected on the basis that the applicant had not discharged the onus cast upon it. The alternative submission, based on the second limb of s 51(1), was rejected on the basis that the borrowed funds were all laid out to enable Mr Hirst to purchase the shares of the applicant and not in the course of the applicant's business activity. Cases relied upon by counsel for the applicant, and in particular
EA Marr & Sons (Sales) Limited v FC of T 82 ATC 4654;
FC of T v Reed 88 ATC 5014; and
McLennan v FC of T 90 ATC 4047 were all distinguished from the facts before the Tribunal.
It is important at this stage to recall that an appeal to this Court from the Tribunal, as a result of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (``the AAT Act''), is an appeal restricted to a question of law. I have elsewhere emphasised the difficulty inherent in the distinction between a question of law and a question of fact: cf
FC of T v JD Roberts; FC of T v Smith 92 ATC 4380 at 4384; (1992) 37 FCR 246 at 251-252.
The decision of the Full Court of this Court in
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-288 provides some assistance in elucidating the categories of cases where a question of law will arise. The fifth of the five propositions stated in that case is in the following terms:
``The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law:
Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ).''
It is the use of the word ``generally'' which demonstrates the difficulty of applying this fifth proposition in all circumstances. Some examples of the difficulty are discussed in the judgment in Pozzolanic in the passage which thereafter follows at 287-288. The difficulty in the present context is demonstrated by the decision of the Full Court of this Court in
FC of T v Brixius 87 ATC 4963; (1987) 16 FCR 359 where, the Tribunal having found that rent paid for a home study was not deductible in full, it was held that there was no question of law where the submission was that, on the facts, the Tribunal had reached the wrong conclusion. The Full Court said (at ATC 4968; FCR 365):
``The difficulty which confronts the Commissioner [the Commissioner had appealed] is that, once having identified the correct principles of law (a matter which was not challenged) the question for determination by the Tribunal is, in a matter of this nature, essentially a question of fact, or of fact and degree.
As a matter of law the question for determination on the first limb of sec 51(1) is whether the outgoing has the necessary relation to the gaining of assessable income, that is, has it the essential character of an outgoing incurred in gaining such income? The Tribunal correctly identified this principle and the Commissioner did not contend to the contrary. Its task was then to apply the law to the facts as found. The application of sec 51(1) in this manner is in the varied circumstances of each case very much a matter of fact and degree....''
However, as I pointed out in Roberts, it does not follow that no question of law arises in an appeal where the applicability of s 51(1) of the Act to primary facts not in dispute is raised. I said (at ATC 4384; FCR 252):
``It is well established that a question of law will be involved in any case where, the facts not being in dispute, the only question is
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whether the case necessarily falls within or outside the statute.''
For this reason, with leave and by consent of the Commissioner, the applicant amended its appeal so as to raise, as the relevant question of law, the question whether necessarily s 51(1) on the facts as found required the conclusion that a deduction should be allowed to the applicant for the ``interest'' in dispute.
Other questions of law said to arise, and which will be discussed hereafter, were:
1. Whether, in not accepting the evidence of Mr Hirst as to the so-called salary sacrifice arrangement, the Tribunal failed to give procedural fairness to the applicant.
2. Whether in its reasons the Tribunal took into account propositions of law which were incorrect or facts which were irrelevant in a way which affected its decision.
3. Whether the Tribunal failed to take into account one or more facts which were relevant and, in the result, erred in law.
At the heart of the submissions for the applicant, and particularly relevant to the last three alleged errors of law, is the question whether the Tribunal in some way erred in finding that the applicant had not satisfied the burden of proof in respect of the salary sacrifice arrangements, sometimes also referred to in the submissions as ``the fringe benefits arrangement''.
It is necessary, in considering this submission, to refer to the evidence (in addition to the evidence of Mr Dowd to which reference has already been made) which was before the Tribunal on this matter.
In a statement sworn to by Mr Hirst he said:
``15. Funds advanced to me by BRF [the applicant] in order that I could acquire the issued shares in the company, as detailed later on in this statement, were provided on an interest free basis in recognition for the services I rendered to the company and which had a direct effect in generating income for both BRF and other entities in the group. These benefits were provided to me in lieu of a cash salary.''
The statement, which on its face refers to ``advances'' by the applicant and not the payments made by the applicant on behalf of Mr Hirst called ``interest'', also fails to detail in any way what the services were which Mr Hirst did in fact render to the company. Inferentially, those services would seem to be acting as director and negotiating the lease between Paper Shredders and the applicant. Parenthetically, it must be said that the benefits to Mr Hirst would have been grossly disproportionate to the services if the payments had truly been consideration for the services.
Mr Hirst was not cross-examined directly on para. 15 of his statement. Certainly it was not put to him specifically that what he there said was incorrect. In cross-examination, however, he accepted that there was no record of any arrangements entered into between him and any of his companies concerning his remuneration, for the reason that he was ``paying himself'' so that there was no need for such a record.
There is a somewhat garbled passage relied upon by the applicant in the following terms:
``So when you acquired that company [another company in the group], it commenced to pay your salary, is that correct?...
I think so, I am not quite sure. I think it was - again based on my advisers [sic] advice I think I took - because I was running the whole group, I think I took some of my salary from one and some from another and some was allowed against interest paid and whatever, or in lieu of....''
Mr Hirst also agreed that the applicant had not at any relevant time lodged a fringe benefit return.
The Tribunal referred to para. 15, remarking that it had been drafted at a time when the applicant's case was being put on the basis that the loan of $295,000 made by JTH to Mr Hirst had been made by the applicant to Mr Hirst. The Tribunal concluded that para. 15, so far as it talked of funds advanced by Mr Hirst to the applicant to acquire the shares in the applicant, was ``plainly wrong''. I would not necessarily have gone so far, in the sense that there was indeed a loan from the applicant to Mr Hirst made to enable him to acquire the shares in JTH, and the subsequent advances of the moneys obtained from the ANZ Banking Group and the Advance Bank, although not advanced to enable the shares in the applicant to be purchased were, at least, advanced to enable the debt for that purchase to be refinanced.
The Tribunal dealt with the matter in the following way, in its reasons (para. 24):
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``In cross-examination, all the proprietor could say was that he had not been paid a salary by the applicant. There was no minute of any meeting of directors to which he could point to substantiate the agreement now alleged. Whilst it is understandable in proprietary companies that not all matters affecting the business of a company are necessarily recorded in minutes of meetings of directors, one would at the very least expect such an arrangement to be reflected in the company's accounts. There is no indication that this was done. Furthermore, of course, no fringe benefits tax return was lodged at any time by the applicant company. Apart from the ex post facto allegations made in Exhibit D there was no reference to any alleged fringe benefits arrangement until formal objections were lodged in September 1993. There was no indication in the applicant's return of income that such an arrangement was in existence at the time of the first period. There is in fact no contemporaneous evidence which I am prepared to accept that such an arrangement existed between the applicant and the proprietor. I am not prepared to accept that the applicant has discharged its onus on the unsubstantiated allegations of the proprietor.''
It is this passage which is said to give rise to the various issues of law claimed to arise.
First, it is said, that the Tribunal has misdirected itself because there is no need for an arrangement of the kind alleged by Mr Hirst to be reflected in the applicant's accounts. Secondly, it is said, there would not have been any obligation on the part of the applicant to lodge a fringe benefits tax return and, to the extent that the Tribunal had found that there would have been such an obligation, the Tribunal erred. Thirdly it is said, in answer to the suggestion of recent invention, that there was in fact evidence before the Tribunal referring to a ``fringe benefits tax'' arrangement earlier than the lodging of the formal objection in September 1993. This consisted of a letter dated 20 November 1992 which, while not formally tendered in evidence, was apparently, in the course of argument, read to the Tribunal by counsel for the applicant. Finally it is said, that because Mr Hirst was not challenged in cross-examination on para. 15 of his statement, that accordingly that paragraph was accepted by the Commissioner and the Commissioner could not thereafter seek to have the Tribunal (and presumably the Tribunal could not itself) draw an inference contrary to what Mr Hirst had there said.
In my view, none of these matters, alone or together, would justify the Court setting aside the Tribunal's decision. Nothing in para. 15 would enable the Tribunal to form the conclusion that there was some arrangement between Mr Hirst and the applicant, pursuant to which the payments of ``interest'' were made in circumstances that those payments would constitute a benefit granted to Mr Hirst in consideration of services performed by him so as to constitute to the applicant an allowable deduction. If any such arrangement existed, it was open to Mr Hirst to give evidence about it. He did not do so. Whether the accounts of a company should show the existence of a benefit, clearly depends upon the facts. The question whether a benefit is liable to fringe benefits tax so as to attract the obligation of lodging a return would likewise depend upon the facts. No doubt it may be said in general terms that if the benefit to an employee be an allowable deduction to the employee, no fringe benefits tax will be payable. But whether such was the case was hardly capable of being determined on the facts before the Tribunal.
The reliance upon the so-called rule in
Brown v Dunn [1894] 6 R 67 (HL) at 70-71 was likewise misconceived. No doubt there will be cases where failure to put a particular matter to a witness will result in a situation where an inference otherwise available may not safely be drawn. No doubt, if the Tribunal reaches a conclusion adverse to a witness where the conclusion sought to be drawn was not put to the witness, an error of law could result, in that there has been a failure to give procedural fairness. Such a case arose in
Jagelman v FC of T 96 ATC 4055, see particularly at 4060.
The present, however, is merely a case where Mr Hirst's statement, even if accepted by the Tribunal, would not suffice to prove the kind of arrangement which would be necessary to bring about the conclusion that the various payments were allowable as deductions to the applicant in the various years of income as being benefits to Mr Hirst in respect of employment or services rendered by him. On the evidence, no conclusion was open to the Tribunal but that the applicant had not satisfied the burden of proof
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imposed upon it of showing the assessment was in this regard excessive.In my view, no error of law which might affect the result of the case is demonstrated by the Tribunal's reasons in para. 24.
The Tribunal's rejection of the second basis upon which the applicant's case was put, namely that the amounts in question involved an application of the second limb of s 51(1) likewise involves no error of law on the part of the Tribunal.
None of the cases relied upon by counsel for the applicant required the conclusion that any amount was deductible in any of the three periods in question. Each of them is a decision on its own facts and none of the facts of those cases was in any way similar to the facts in the present case.
There is no dispute between the parties as to the relevant principles of law. Those principles are to be found in my judgment in Roberts commencing at ATC 4386; FCR 254, in a judgment with which Jenkinson J agreed. O'Loughlin J, who reached a different conclusion in the result, did not dissent from the discussion of principle.
It is unnecessary to repeat that statement of principle. Suffice it to say that for a taxpayer to succeed in a claim for deduction of a loss or outgoing under the second limb of s 51(1), the taxpayer must show a connection between the loss or outgoing on the one hand, and the business activities directed towards assessable income on the other. In the present case, although it seems that the applicant had under its previous ownership carried on a transport business, from the time it came under the ownership of Mr Hirst, the applicant's only business was the ownership and leasing of the Annandale property. There is no apparent connection between the leasing of the Annandale property to Paper Shredders on the one hand and the payments of interest made by the applicant on the other, save that Mr Hirst was able to ensure that the payments were made because he had acquired the shareholding in the applicant with the aid of funds with which the ``interest payments'' were in some way associated.
It was suggested that the Tribunal had erred in law by failing to make a finding of fact as to the applicant's purpose in incurring the liability to pay interest. It can certainly be accepted that where the connection between an outgoing on the one hand and the assessable income on the other is not readily apparent, resort may be had in determining deductibility to the purpose for which the applicant borrowed the funds:
Fletcher & Ors v FC of T 91 ATC 4950 at 4958; (1991) 173 CLR 1 at 18-19. But it does not follow as a matter of law that failure to find purpose constitutes an error of law.
It may be conceded that, where a particular fact is relevant and necessary to the determination of an issue between parties, the failure of the Tribunal to find the existence or non-existence of that fact will generally involve a question of law. Cases where a failure to find a material fact have been said to involve a breach of s 43(2B) of the AAT Act and thus an error of law justifying the setting aside of the Tribunal's decision and remission to the Tribunal for reconsideration, include among others:
East Finchley Pty Ltd v FC of T 89 ATC 5280;
FC of T v Studdert 91 ATC 5006;
Dornan v Riordan (1990) 24 FCR 564;
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84;
Stasos v Tax Agents' Board of New South Wales 90 ATC 4950; and see also
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145;
Opitz v Repatriation Commission (1991) 29 FCR 50; and
Brackenreg v Comcare Australia (1995) 56 FCR 335. It is unnecessary to consider the impact, if any, upon these cases of the contrary view taken by Brennan J (as his Honour then was) in a dissenting judgment in
Repatriation Commission v O'Brien (1985) 155 CLR 422 at 445-446.
In a case where a taxpayer bears the onus of showing that an assessment is excessive, that onus extends to requiring a taxpayer in a case where purpose may be relevant to the deductibility of a loss or outgoing under s 51(1), to give evidence of the relevant purpose. Not every case where s 51(1) is raised will necessitate a finding of purpose:
Crawford v FC of T 93 ATC 5234. Even if the finding of an income producing purpose would be relevant or determinative, if the Tribunal were unable to make a finding as to purpose the Tribunal would not have made an error in law. All this would mean is that the taxpayer would have failed to show that the assessment was excessive.
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However, the present is not a case where the Tribunal made no finding as to purpose. It found that the moneys borrowed by the applicant (and the consequential interest payments) were borrowed for the purpose of the acquisition by Mr Hirst of the shares in the applicant or refinancing that acquisition.
In summary, all that the applicant proved before the Tribunal was that Mr Hirst, as the sole ultimate shareholder of the group, was able to ensure that outgoings, for which he was liable, were met by the applicant, or moneys were borrowed by the applicant at interest to refinance Mr Hirst's borrowings to purchase the applicant's shares. It was Mr Hirst's ownership and control of the applicant which provided the explanation for the payments which the applicant made. But although that explanation is apparent enough, it does not permit a conclusion to be reached that the applicant is entitled to an allowable deduction for the payments made by it. The payments lacked the necessary connection with the applicant's income producing activities or its business.
The Tribunal made no error of law. Its conclusion was the only conclusion available on the facts. The appeal must be dismissed with costs.
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent's costs of the application.
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