CASE 7/98

J Block SM

Administrative Appeals Tribunal

Decision date: 9 April 1998

J Block (Senior Member) (a) On 28 March 1996 the Respondent issued an amended assessment (``the relevant assessment'') in respect of the year ended 30 June 1991 (``the relevant year''). In accordance with the relevant assessment (referred to in the Transcript as the ``first relevant assessment''), the Applicant was assessed for taxation in respect of an amount of $1 million referable to a Unit in Mermaid Beach, Queensland (``the Unit''); the relevant amendment also imposed certain additional taxation.

(b) It may be noted, as a preliminary matter, that in consequence of an audit of the Applicant, a further amended assessment was issued in respect of the relevant year, together with amended assessments in respect of other tax years, and that objections have been lodged in respect of the amended assessments referred to in this subclause (b); however they are not before the Tribunal which is concerned only with the relevant assessment, which, as set out previously, relates specifically to the Unit. It was agreed by the parties that the Tribunal is, and should be concerned, only with the relevant assessment, notwithstanding that there have been other taxation developments referable, inter alia, to the relevant year.

2. (a) In respect of the relevant assessment, the Applicant did not lodge an objection within the time period referred to in section 14ZW of the Taxation Administration Act; the applicable time period in respect of the relevant year was 60 days.

(b) Subsequently, and by request dated 1st July 1997, the Applicant sought an extension of time within which to lodge an objection; that request was accompanied by an objection of the same date, and referred to in the application for review as ``the proposed objection'' against the relevant assessment.

(c) The Respondent, by decision dated 1st August 1997, refused to grant an extension of time; it is that extension of time refusal decision which is the objection decision, and in respect of which an application for review dated 2nd August 1997 was made on behalf of the Applicant.

3. The Applicant was represented by Mr Michael Christie of Counsel, instructed by Blake Dawson Waldron and the Respondent was represented by Mr Ian Marriott, an officer of the Respondent. The Tribunal had before it the T documents lodged pursuant to the Administrative Appeals Tribunal Act, and in addition a number of exhibits as follows:

  • • Exhibit A1 is the application dated 1st July 1997 made under section 14ZW(2) of the Taxation Administration Act, together with the notice of objection attached, described in clause 1(b) of T1-2 as the ``proposed objection''.
  • • Exhibit A2 is a letter by a firm of leading chartered accountants (the ``Accountants'') acting for the Applicant addressed to the Respondent dated 11th July 1996.
  • • Exhibit A3 is a letter by the Accountants to the Respondent dated 28th January 1997.
  • • Exhibit A4 is a letter by the Respondent to the Accountants dated 10th March 1997.
  • • Exhibit A5 is a copy of a letter dated 8th July 1997, addressed to the Respondent by another professional firm, which specialises in bankruptcy matters, engaged by the Applicant.
  • • Exhibit R1 is an Application for Deferment of Legal Recovery Action, dated 29th April 1996 addressed by the Applicant to the Respondent.
  • • Exhibit R2 is a batch of correspondence between a certain development corporation (``the Development Corporation'') in

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    Queensland and the Applicant and which relates to the Unit; that batch of correspondence consists of:
    • (A) a fax by the Development Corporation to the Applicant dated 12th July 1990;
    • (B) a fax by R, a director of the Development Corporation, to the Applicant dated 22nd June 1990;
    • (C) a memorandum dated 22nd June 1990 by the Development Corporation, addressed to M, who was the Queensland solicitor involved in the transfer of the Unit; it would seem that M acted for both parties (ie both transferor and transferee, the Applicant) in respect of the transfer to the Applicant of the Unit;
    • (D) a letter by M to the Development Corporation dated 10th July 1990;
    • (E) a letter by the Applicant to M (referred to in that letter as ``my solicitor'') dated 12th July 1990;
    • (F) a letter by the Applicant to the Development Corporation dated 12th July 1990.

In referring to Exhibit R2, its separate components will be separately referred to by the letters appearing against each of them in the description of Exhibit R2.

4. The Tribunal was also furnished with statements submitted on behalf of the Applicant by the Applicant, R (the director of the Development Corporation previously referred to) and H (a partner in the Accountants) and, on behalf of the Respondent, by CA, a special investigation manager in the eastern region of the Respondent. Oral evidence was given by all of these persons other than R. The statement by H was prepared for the purpose of bankruptcy proceedings in the Federal Court, but was accepted as his statement for the purposes of these proceedings.

5. (a) Although the oral evidence before the Tribunal took up the whole of a hearing day, the relevant facts and issues are not, on analysis, complex.

(b) The Applicant ceased to be involved in active politics at or about the time of the 1990 General Election. Prior to that time, and in the 1980s, he held high political office.

(c) In respect of his taxation affairs, the Applicant received the benefit of the assistance and advice of the Accountants. It is relevant to note that the Accountants are one of the best known, and largest accounting firms in Australia. The Applicant said during the course of his evidence that the Accountants gave him bad advice, and that he has since received other and different advice, the nature of which was not, however, disclosed. This aspect will be referred to again later in these reasons.

(d) Clause 6 deals with certain of the correspondence and exhibits; in all cases the relevant documents have been edited to preserve anonymity. Edits are indicated by square brackets.

(e) ``TS'' references followed by a page number refers to the relevant pages in the Transcript.

6. It is convenient in the first instance to deal with the circumstances in which the Unit was acquired by the Applicant from the Development Corporation. In this context:

(a) The Applicant has contended (and apparently still contends) that it was acquired as a gift, unconnected with any services rendered by him to the Development Corporation, although he has also contended (as to which see later in these Reasons) that it was ``attributable to partnership real estate activities'' in respect of a partnership between the Applicant and C. It is to be noted that the acknowledged value of the Unit, inclusive of certain connected services, was $1 million, a substantial amount then and now.

(b) Annexure A to the Applicant's statement is a fax by the Development Corporation to the Applicant and dated 12th July 1990; the first and fourth paragraphs of that fax read as follows:

``I advise that in order to settle the above Unit we require certain undertakings from you in relation to signing of transfer documents and distribution of commission payable to you pursuant to the sale by [M Pty Ltd] of [K Estate] which amounts to $1,000,000.

The undertaking directed towards [Development Corporation] is to authorise RDC to distribute commission to which you are otherwise entitled towards the purchase of the [Unit].''

(c) The fax by the Applicant to the Development Corporation dated 12th July 1990 reads as follows:

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``Commission Sale of [K Estate]

I refer to the sale of the [K Estate] in northern New South Wales to [N Pty Ltd] for an amount of $21,000,000 in respect of which [M Pty Ltd] owes me $1,000,000 for commission payable for introduction of the purchasers.

I hereby authorise [Development Corporation] to distribute the $1,000,000 towards the following:

  • In respect of purchase of [Unit]$925,000 In respect of furniture allowance$30,000 In respect of acquisition costs$40,000 In respect of other costs$5,000 Total$1,000,000

In addition to the above [Development Corporation] is to cover the costs of remarbling the bathrooms to an amount of $30,000.''

As Mr Marriott contended, during the course of his closing submission, it is odd, that in respect of a Unit alleged to be a gift, the Applicant should have been able to obtain additional allowances and improvements.

(d) The Applicant, in paragraph 13 of his statement, said:

``On or about 12 July 1990, I received a facsimile from [E] who was at that time working for [R] and [Development Corporation]. Exhibited to me and marked with the letter `A' is a true copy of that facsimile. That facsimile had a number of attachments in the form of letters which I was requested to sign and return as a matter of urgency in order to facilitate the transfer. I did not prepare the attachments and had not seen them prior to receipt of the facsimile. I did not pay particular attention to the attachments, but signed them and, to the best of my recollection, returned them to [ R] by facsimile. I did not particularly focus upon the word `commission' appearing in the facsimiles. I understood from a previous conversation with [R] that he would claim a portion of the cost of the Unit from his partners and that the execution of these letters would facilitate this process. The execution by me of the attachment to exhibit `A' certainly did not change my understanding that:

  • (a) there was never an understanding or arrangement that I would be paid a commission in respect of the sale of the Property; and
  • (b) the transfer to me of the Unit was simply a gratuitous act by [R] in appreciation of the introduction.''

(e) Exhibit R2(B) contains the following statements:

``You will note from this report, which is quite comprehensive and carried out by the most conservative and most used valuers on the Gold Coast, that [Unit] is valued, for mortgage purposes, at $925,000.00.

We would point out, however, that the additional expenses to be added to the acquisition by you, such as:

  • • a furniture allowance of $30,000;
  • • legal costs of approximately $40,000;
  • • and re-marbelling of the bathrooms of approximately $30,000;
  • • takes the value of the [Unit] to well over $1,000,000.''

This exhibit also is, as Mr Marriott contended, odd in the context of a pure gift. This exhibit is in the view of the Tribunal apposite in the context of a transfer in lieu of commission, containing as it does elements of justification and valuation. Any such statements would have been inappropriate in the context of a pure and unsolicited gift.

(f) Exhibit R2(C) states under the head of consideration ``paid in lieu of commission on sale of [K Estate] to [N Limited]''.

(g) Exhibit R2(D) is (as set out previously) a letter by M to the Development Corporation; the second and third paragraphs read as follows:

``We note your advice that your Company is transferring the above Lot to [the Applicant] in consideration of [the Applicant] waiving any right to commission on the sale of property situated at [K Estate] to [N Ltd]. In your memorandum to us of 22nd June, 1990, you state the purchase price of the [Unit] as $1 million. We assume therefore that the commission which [the Applicant] is foregoing is equal to that sum and we have therefore inserted that sum in the Transfer as the consideration for the Transaction.

We confirm your advice that you do not wish to have a Contract of Sale executed by [ the Applicant] which notes the terms of the transaction in particular that [the Applicant] accepts the property in lieu of commission.

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In our opinion it would be best for your Company and [the Applicant] to execute a Contract to in particular, from your Company's point of view, record the fact that [the Applicant] has waived his entitlement to commission and those terms which would normally appear in the Contract which are intended to protect your Company including terms which make the purchaser liable to pay stamp duty on the transaction, appoint your company as the attorney for the purchaser on the Body Corporate for 12 months, adjustments for rates, taxes and other outgoings and limiting your company's liability for defects in the building. Furthermore, because your Company is still the original proprietor of the building the purchaser should be given a statement under Section 49 of the Building Units and Group Titles Act so as to ensure that the purchaser can be held to the transaction if that is necessary.''

In his closing submission Mr Christie contended that correspondence between M and the Development Corporation should not be given much weight in that it was correspondence between third parties. However Exhibit R2(E) indicates that M was acting as the Applicant's solicitor, even if he was also acting for the transferor of the Unit. The second paragraph commences ``I hereby authorise M to sign as my solicitor...''.

(h) In paragraph 5 of Exhibit R1, and in answer to the question ``how did your tax debt arise?'', the Applicant's answer reads ``arose as a result of an audit and a misunderstanding of the taxpayer regarding the deemed personal exertion nature of the income included''.

(i) At a later stage, the Applicant shifted to a different tack entirely. The second paragraph on page 2 of a letter by the Accountants to the Respondent dated 19th January 1996 (T5-57 and T5-58) reads as follows:

``In support of the above detailed request for leniency, it is noted that genuine confusion existed in the mind of [the Applicant] regarding the acquisition of the Unit, given that it was the belief of [the Applicant] that such acquisition was attributable to partnership real estate activities which were conducted in conjunction with [Mr C], and given that such [Unit] was utilised as security for partnership finance facilities.''

This contention as to the acquisition of the Unit by a partnership, had been raised earlier, and in particular at the meeting on 9 October 1995, referred to hereafter in these Reasons.

7. I turn next to consider certain of the T Documents:

(a) T5-60 is a letter by the Respondent to H dated 19 December 1995 the first and second paragraphs of which read as follows:

``During an interview in this office on 9 October 1995, your client agreed with a decision to include the value of his unit at Mermaid Beach in 1991 personal assessable income. He was invited to make a submission in respect of any deductions he wished to claim against that income and any factors which he believed were related to the imposition of additional tax. Subsequent to the above meeting it was arranged with you that any submission be lodged by 11 December 1995 at the latest. It was agreed that this date allowed more than ample time for preparation.

As no submission has been received to date, it is proposed to proceed with the amendment to your client's 1991 assessment without any further delay.''

(b) The letter by the Accountants dated 19 January 1996 referred to in clause 6(i) acknowledges the inclusion of the value of the Unit as assessable income of the Applicant for the relevant year. I have previously quoted the second paragraph on page 2; the second and third paragraphs on pages 1 and 2 read as follows:

``In addition to the foregoing, it is advised that as part of the update procedure associated with the above detailed outstanding income tax returns that a review has been undertaken to ascertain any income tax deductions available to the taxpayer, [the Applicant] relating to the [Unit], the value of such Unit of property to be included in the amended 1991 personal assessable income of same. In this regard, it is now confirmed that it has been concluded that no apparent income tax deductions can be claimed with respect to this [Unit], in view of the nature of usage of same during the designated period.

Accordingly, bearing in mind the foregoing, it is respectfully requested that in accordance with discussions and a meeting

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held at the Parramatta Taxation Office during October 1995, such meeting attended by [the Applicant], [C] and the professional representatives of [the Applicant], together with representatives of the Australian Taxation Office, that an amended income tax assessment be issued to [the Applicant] for the year ended 30 June 1991 and that agreed leniency be availed with respect to the imposition of penalties and with respect to the timing of the payment of the primary tax necessarily attributable to the amended income tax assessment.''

(c) The reference in T5-58 to ``agreed leniency'' requires further consideration. Following the meeting on 9th October 1995 and as appears from paragraph 1 of T5-60, the Applicant was given until 11th December 1995 (a period of approximately two months) within which to file a submission as to additional tax. No such submission was made within that period; however, on 19th January 1996, the Accountants raised, by way of submission for leniency, the reference to ``genuine confusion'' in the Applicant's mind, on the basis that the acquisition was related to partnership real estate activities conducted in conjunction with C. That statement cannot, in the light of the correspondence describing it as Applicant's commission, be correct or acceptable. As appears from C's statement, that claim had been raised in the meeting on 9th October 1995, but the Applicant, when shown certain documents, accepted that the Unit belonged to him and not to the partnership.

8. I do not think that it is necessary for me to refer specifically to file notes forming part of the T Documents. It is clear though that there was no submission made by the Applicant as to penalties, other than the belated claim (referred to in the preceding clause 7) as to alleged confusion on the part of the Applicant.

9. I turn now, in clauses 10, 11 and 12 to deal more particularly with the oral evidence of the Applicant, C and H respectively.

10. In respect of the Applicant's evidence:

(a) An audit revealed that, in respect of the Unit, certain deductions had been claimed by a party or parties from whom the Unit was acquired. See in this context TS23 as follows:

``MR CHRISTIE: What do you mean by the words `a misunderstanding of the taxpayer'? - I've always understood that unit to be a gift given to me by [R] in return for a very casual introduction to some Japanese people who bought a property I thought at the time off him. It was only much later that I discovered in fact he had partners in that property and as a result of an audit, as Mr Block referred to earlier, an audit was done of one of these people and it was discovered that they had claimed as a tax deduction their proportion of the cost of this unit. When the tax officers came to me one day in my office in 1994 and said that as a result of this audit they were claiming that this unit was assessable income, I was very much taken aback. I think my public record, even on speeches in the parliament, have indicated that I'm very much against tax evasion. And I was quite prepared, if they were prepared to say to me: `This is not a gift, this is assessable income', I threw my hands up and said: `Well, I don't want to be a cheat if that's the case.'

MR BLOCK: But [Applicant], let me ask you this for a moment. The whole basis of this case is it not is that you now want to contend that it is not taxable income? Right? You want your day in court to contend that a million dollar unit is not taxable income, that it is just a gift? - Yes.

Did you receive many gifts of a million dollars? - No. It's the only one ever.

Did it not strike you as rather a large gift? We are talking about 1991 now are we not? - These people made $16 million profit on this property. I at no stage acted as a commission agent, at no stage intended to receive anything, never entered my head that anything would come around as a result. It came right out of the blue.''

(b) TS29 sets out:

``MR BLOCK: Please? - Well, I had been informed by [D] and that is I guess also in the letter which was sent to me to which I responded with a fax, and this is when I first found out that [R] had partners in the property which had been sold. Then in order for [R] to glean from those people - those other two partners - their share of this gift he had apparently purported to them as a commission, and I guess that was reasonable for him to do. But at no stage was there ever an agreement between [R] and me about this being a commission. But I guess they might

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not have been too happy about a gift, and I presume that's the reason -

But [Applicant], you were a ranking senior [ politician] and you handled your tax affairs so you tell me fairly and honestly. You write a fax to them and you say: `Yes, it is commission.' Why? - Because I was asked to so he could get his share of that gift from his partners.

But if you thought it was a gift you would not describe it as a commission would you? - In my own mind I've never thought it was -''

(c) and at TS35:

``- In any case I accepted their advice that to pay the tax and get it out of the way was the way to go. Subsequently the Tax Commissioner, as is his right I guess, went back over previous years and disputed tax returns that had been done for me by [the Accountants] on their advice and they decided that claims that were given at the time shouldn't have been allowed. As a result we've got this whole raft of things, and at that stage I sought other advice. The advice I got from someone else, who is an eminent tax adviser, was that [the Accountants] had acted very foolishly and they should have put objection in to the unit in the first place.''

(d) The evidence by the Applicant as to the fact that the Unit was a gift cannot be accepted. Specifically in this context:

  • (1) That the Unit was in respect of or in lieu of commission, and not a gift, is abundantly clear from the correspondence referred to earlier in these Reasons, including correspondence between the Applicant and Development Corporation and also correspondence involving M. There was no suggestion that M, in referring to the Unit as commission or in lieu of commission, were acting without authority.
  • (2) The Applicant gave evidence that he sometimes, when in high political office, signed letters prepared by others, and which he might not have carefully read. But the correspondence referred to in subclause (1) occurred after he had left political office; in any event, and even assuming that such a claim could be made in respect of correspondence signed by the Applicant himself (which is doubtful), it could not be made (and was not in fact made) in respect of the correspondence involving M. TS29 suggests, albeit briefly and obliquely, that the Applicant was prepared to characterise the alleged gift as commission to enable R and others to claim deductions. The Applicant did not, however, press or persevere with any such suggestion; see in this context his evidence at TS29 and 30, as follows:
    • ``MR BLOCK: That does not have any unfortunate connotation [Applicant]. You were a person who appeared in the press and you had a senior position. You were a senior politician. That cannot be doubted. [R] writes you a fax on 12 July saying: `This is a commission this $1 million' and you write back and say: `Yes, and this is how I want you to deal with it' Now, if you thought it was a gift, why did you not write back and say: `[R], what nonsense, commission. This was a gift to me'? - Well, I regret in retrospect that I didn't because in essence I've always believed it to be a gift. If this is what the Taxation rests their case upon I think it's negated by the statement from [ R] that between us it was always considered a gift. I don't even know the other people.
    • [Applicant], what I am getting at is this...? I know. You think it was very foolish to sign the letter?
    • [Applicant] far be it from me to be talking to someone of your eminence in that fashion, but it is a letter which is not correct, putting it at its kindest? - That's true. I wouldn't resile from that. But it was signed as a matter of convenience for him to obtain his share.
    • But why would you - his share of what? - He owned the unit that was given to me, but the profit had been shared by himself and two other partners. And I had no idea at the time that he had partners in this property at all.
    • So in order for him - so what you are saying is that in order for him to give you a gift he has to reflect it as something other than a gift and you have to go along with that. Is that accurate or fair? - Well, in retrospect I guess that's fair but I mean I didn't see myself as part of a conspiracy at the time.''

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  • (3) The Applicant said that, acting on the advice of the Accountants he agreed to pay tax in respect of the Unit, and indeed the Tribunal finds that in fact he had no option but to do so. The Applicant said that that advice was bad but he did not particularise why it was bad. It is relevant to note that the Applicant in criticising the advice of the Accountants did not similarly criticise his legal advice.
  • (4) At a much later stage, and as set out previously in these Reasons, the Applicant took an entirely different line, namely that the Unit was derived in consequence of partnership activities with C. That contention is altogether at odds with the contention that it was a gift and cannot be accepted.
  • (5) The reason why the Applicant now seeks to object to the relevant assessment is almost certainly that set out at TS19 as follows:
    • ``MR CHRISTIE: The second sentence in particular, Sir where you refer to my objections does that include a reference to the objection the subject of these proceedings? - Yes.
    • And on what basis do you say that `unless my objections are successful I will be made bankrupt'? - Well unless my objections are successful I am made bankrupt. Quite obviously I cannot earn the income that I earn now because I would not be available to be director of companies, I would lose my respect in the community which enables me to speak on various subjects and to generally sell myself as a person of principle.''
  • (6) The Tribunal finds, on the evidence before it, that the Unit was unquestionably commission or in lieu of commission and all of the Applicant's statements to the contrary were not correct.

11. In respect of the evidence of CA (which was accepted by the Tribunal):

(a) TS57 indicates:

``MR CHRISTIE: The purpose of that meeting was so that some negotiations could take place between the taxpayer and the Australian Tax Office, is that correct? - Well the purpose of the meeting, [the Applicant] initiated the meeting to see whether he could come in and try and settle his tax problem. From our viewpoint, we had not had an opportunity to interview [the Applicant]. We had for quite some months, been awaiting a submission that had been promised to us by [the Applicant] and by his accountancy representatives, [the Accountants] on the basis why he believed that the unit that he received from [R], why that represented partnership income and not personal service income to him. How despite a repeated number of requests to [the Accountants] for that submission and we were hoping at that stage we might be able to handle the whole matter by a submission, we got to a stage where we had to write back to [the Accountants] and say well we are now going to start third party inquiries which we had held off because of [the Applicant's] status and sensitive nature. We hoped that we may have been able to settle the matter without making third party inquiries. Once -

When you say settle the matter, you mean wrapping up the question of penalties, interests, liability, everything? - No. Settling the substantive issue that the commission was personal exertion income to [the Applicant] and not to the partnership as he claimed in his first interview with our officer and auditors from Queensland when the matter was initially raised. That is what I mean when I say settle. The substantive issue as to the fact that it was personal income to [the Applicant] and not partnership income.

I think you have told Mr Senior Member that the question of penalties was discussed at this meeting? - It was discussed to the point that I invited [the Applicant] to make a submission to the office and that was the only discussion we had on penalties. There was absolutely no discussion on the size or the amount or anything like that.''

(b) CA's evidence indicates that after H, C (and also H's associate N) had left the meeting on 9 October 1995, the Applicant and his solicitor S, a partner in Blake Dawson Waldron, were invited to furnish a submission as to penalties. However, no such submission was received within the time period of approximately 2 months allowed for this purpose.

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12. In respect of the evidence of H which was, in the view of the Tribunal, truthful:

(a) TS68 sets out:

``MR BLOCK: [H], I have just got a few questions for you if I may. I just want to take this in the all day language as I understand it. By the way nothing I say is to be construed as critical in any way of anything you have done or any advice that you gave. On 9 October 1995 what appears to have happened is that there was a meeting. At a certain point in time you and N left the meeting. At that meeting [the Applicant] accepted that this unit was income? - Yes.

Did you advise him that you thought it was income? - I thought it was income, yes.

I hasten to say that I agree with you. Now what happened was this. Apparently, so the evidence has gone, you and [N] leave the meeting and on the question of penalties an invitation as extended to [S] and [the Applicant] to make submissions. Subsequently a period from 9 October until 11 December was allowed for the submission of representations. Do you know about that period? - Yes.

Were representations on penalties submitted during that period? - [the Applicant], we were in constant communications with the ATO during that period and it really did extend on to communications both by phone and meetings -

[H], when the tax office says that they did not receive any submission on penalties, are they right or are they wrong? - Between that period, they could be right.''

(b) and at TS69:

``- Yes Mr Block and the reason that is - we did have that discussed and agreed to but there are also other assessments on foot that were about to come and we believed that all this was going to be considered and we were told it was going to be considered in total.

MR BLOCK: With the benefit of hindsight would you think perhaps it would have been better to lodge the assessment - lodge the objection? - Certainly.

You were hoping to achieve an overall settlement. Did you really feel that lodging an objection would disturb your chances of reaching a settlement with the tax office? - At that particular time, yes we did.

That was the opinion of you all [S] -? - [ the Applicant] and myself.

So in effect you decided -? - and [N] too I must -

We must never forget [N]. So all of you took the view and we are now in - you have what has been referred to here as the first amended assessment. You get it, it contains the penalty. The penalty is understandably enough something of a shock to [the Applicant] but you decide that because you were in the middle of discussions on a hope of achieving an overall settlement -? - That is right.

It would be better not to antagonise the tax office? - Yes, we believe that a commercial settlement could be put in place for the total amount owing on all the assessments through to the 1996 year I think it was.''

(c) and at TS70:

``MR BLOCK: What we have here is a case of non-disclosure of what has eventually been agreed to be income in the year ending 1991. There are conflicting statements before us. One says that this is a gift. Another says it is partnership income? - I think it would also be noted that [the Accountants] did not know of the Unit at the time of the preparation of the return.''

``The last question, I know I said that a moment ago. I confess to you [H] knowing your firm as I do, I do not understand why in relation to clause 8, I do not understand why you did not advise your client and I know that the solicitor [S] who is a ranking partner in Blake Dawson Waldron, why you did not, having received this assessment of a substantial penalty, why you did not advise your client at least to preserve his rights by lodging an objection? - Because we were firmly aware - we were aware of the following assessments and we firmly believed that a commercial settlement would be made on the whole.

No doubt it crossed your mind that it was possible that a commercial settlement might not be achieved and if so then what? - I think at this stage that [S], [the Applicant]

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and myself felt that we were pursuing a positive position with the ATO.''

It may be noted in this context that H said that the Accountants did not know of the Unit at the time when the return was prepared. However, clause 16 of the Applicant's statement contains a statement that the decision not to include the Unit ``was taken upon advice from my accountant at the time, [O] of the Accountants''. O was not called to give evidence to support this statement; if H (and N, also of the Accountants) acted for the Applicant in succession to O, one might have expected that O's files would have been available to H. However, the Applicant's failure to call O on this important aspect was not put to him in cross-examination, and it would be unfair to him to place any emphasis on this aspect.

(d) It is clear to the Tribunal that:

  • (1) the Applicant accepted that the value of the Unit was assessable income and taxable as such; any advice given to him in this regard by the Accountants was correct;
  • (2) notwithstanding the fact that a period between October and December 1995 was allowed in respect of a submission on penalties, no such submission was in fact furnished;
  • (3) a conscious decision was made by the Applicant, in consultation with H and S (and also H's associate, N) that the Applicant would not object to the relevant assessment. It must be noted in this context that the Applicant cannot by any stretch of the imagination be treated as an uninformed or unrepresented person. Not only is he himself educated, but he was receiving advice from a major firm of solicitors and an equally major firm of accountants. Mr Christie in his closing submission criticised, in strong terms, the advice given by H both in relation to the inclusion of the value of the Unit in assessable income and also in respect of the decision not to object to the relevant assessment. H was, of course, a witness called by the Applicant, and as the Transcript indicates, it was never put to him by either Mr Christie or Mr Marriott that his advice was incorrect or bad, and certainly not such that it could be described as negligent. The Applicant did not criticise the advice of his solicitors, either in similar terms, or at all, even though S, a senior partner, was a party to the decision not to contest the relevant evidence. Mr Christie said in his closing, that S who is not a tax partner, relied on the advice of H, but there was no evidence to suggest that S's role was passive only, or that he did not agree with the decision in question;
  • (4) as to whether the decision (and it was a conscious and informed decision) not to object to the relevant assessment was wise, is not to the point. H in his evidence said that with the benefit of hindsight it would have been wiser to object, but the operative words in this context are those referring to ``hindsight''. That was the decision made at the time, clearly in the hope and belief that it would assist in the conclusion of an overall settlement with the Respondent. That no settlement was arrived at in the period which followed appears from the T Documents. The Applicant made various suggestions and proposals; the Respondent had doubts, amongst other things, as to the ability of the Applicant to meet the suggested undertakings. But one aspect is clear. The Applicant sought to object to the relevant assessment pursuant to the proposed objection only after his attempts to achieve an overall settlement had failed. The proposed objection seeks to contest the case on its merits, notwithstanding a clear decision previously not to do so.

13. Although R furnished a statement, Mr Marriott did not require his attendance. Accordingly R's evidence must be dealt with only in accordance with his statement. In respect of his statement, which is relevant at least as much for what it does not say, as it is for what it does say:

(a) Clause 12 sets out in categoric terms that there is no reference to commission in Annexures A and B. The reference to Annexure C (and see clauses 16 and 17 of R's statement) is not so noted, although that Annexure does contain specific references to commission. Annexure C to R's statement corresponds with Exhibits R2(A), R2(E) and R2(F). Exhibit R2(F) in turn is the fax referred to in clause 2(c). Such an omission is surprising in the extreme given that there was evidence before the Tribunal that these Exhibits were prepared by or at the instance of the Development Corporation.

(b) The omission of any attempt on the part of R to deal in his statement with clear and

ATC 149

specific references to commission (notwith- standing his annexation of Annexure C) must cast considerable doubt on the truth of his statement.

(c) R did not in his statement make mention of the fact that tax deductions were claimed in respect of the Unit. Mr Christie contended that there was in fact no evidence before the Tribunal as to what precise deductions were claimed in respect of the transferor and in relation to the Unit, and this is correct. However, the Applicant himself gave evidence (referred to earlier in these Reasons) as to such deductions. While, as Mr Christie contended, there is no necessary symmetry in tax law between deductions and income, there is in practical terms often a correlation and a deduction under section 51 of the Income Tax Assessment Act will often arise in the context of an income derivation. If indeed deductions were claimed on the basis that the transfer of the Unit arose in the production of income, it is difficult to envisage those deductions in the context of a pure and unsolicited gift, especially when the relevant correspondence refers specifically on a number of occasions to commission. As to whether deductions would have been available if the Unit had been a pure gift is not a matter on which the Tribunal need speculate. But in fact the Development Corporation itself categorised it as commission and not as a gift.

(d) Nor, and this is also noteworthy, does R's statement seek to explain why in the context of a pure gift the Development Corporation should have been adding to or giving allowances in respect of the Unit, or why indeed it should have sought to justify the value assigned to it.

14. Paragraph 4 of the Applicant's application for an extension (Exhibit A1) states that he would have objected to the relevant assessment had he been aware of impending further adjustments. The T Documents make it clear that this statement cannot be accepted. This is a point made by the Respondent directly at T1-7. Equally the statement that the relevant assessment was, so the Applicant believed, to be the only amended for the relevant year, is contradicted by the T Documents; see in this context T1-7 and T1-8 and the fact that the statement cannot be accepted is demonstrated even more strongly by clause 19(c) of the Applicant's own statement, which reads as follows:

``(c) there were other matters relating to other tax returns that were being reviewed by the ATO...''

15. I turn now to deal with aspects of applicable case law noting in this context that Mr Christie furnished me with an outline (entitled ``Applicant's Outline of Submissions'' and referred to as the ``Outline''), which was helpful, so much so that extracts from it are quoted in these Reasons.

(a) In
Assimakopoulos v FC of T 98 ATC 2037 I reproduced part of a paper because in my view it contained a good summary of relevant general principles and case authorities. It is not necessary for me to again set out the same summary; however, it is desirable to set out the non-exhaustive guiding principles derived from the decision of Wilcox J in
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 as follows [ATC 2043]:

``(a) Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so... Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (
Lucic v. Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for an extension show an `acceptable explanation of the delay' and that it is `fair and equitable in the circumstances' to extend time (Duff at 485; Chapman v. Reilly (unreported) Neaves J, 9 December 1982, at 7). (Emphasis added by the Tribunal)

(b)... A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision- maker aware that he contests the finality of the decision...: Per Fisher J in Doyle v. Chief of [General] Staff (1982) 42 ALR 283 at 287 and a case where the decision-maker was allowed to believe that the matter was finally concluded.

(c) Any prejudice to the respondent including any prejudice in defending proceedings occasioned by the delay is a material factor militating against the grant of an extension; see
Doyle v Chief of General Staff (1982) 42 ALR 283.

(d) However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context public

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considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas at 19) is likely to prove fatal to the application.

(e) The merits of the substantive application are properly to be taken into account in considering whether an extension should be granted (Lucic at 417, Chapman at 6).

(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller at 534-535).''

(b) The Tribunal accepts that later case law has established that although an explanation as to the delay is a relevant factor, it is no longer a precondition. See in the context clauses 6 and 7 of the Outline which are reproduced in these Reasons, as follows:

``6. In Kym Hyun Tai v Bolkus (1996) 42 ALD 249 at 251, Hill J stated:

`It has become customary in applications for extension of time for reference to be made to the judgment of Wilcox J. In Hunter Valley Developments Pty Limited v Cohen (1984) 2 FCR 344 in which his Honour (at FCR 348-50) distilled the principles which his Honour gleaned from the relevant authorities at the time ``to guide, not in any exhausting way, the exercise of the Court's discretion''. The danger that the distillation of matters relevant to discretion might harden into a statement of binding principle was not lost on his Honour. Sometimes, however, his Honour's warning appears to have escaped the attention of those seeking to rely upon what his Honour said.'

7. This is no longer a pre-condition for the granting of leave. In
Kym Hyun Tai v Bolkus (1996) 42 ALD 249 at 252, Hill J said in relation to this requirement:

`The comment of his Honour [Wilcox J] in respect of the first guideline, that it is a precondition of the exercise of discretion that the applicant show an acceptable explanation of the delay might, if seen as a statement of law, require some modification having regard to the decision of the Full Court in Comcare v A'Hearn (1993) 119 ALR 85 at 88.'''

(c) In Case 18/94,
94 ATC 204, Senior Member Fayle (who referred to the principles set out in Hunter Valley) enumerated the relevant criteria in somewhat different language at page 206, as follows:

  • ``(i) prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;
  • (ii) it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;
  • (iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
  • (iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
  • (v) the merits of the substantial application are relevant; and
  • (vi) fairness of granting the extension of time as between the Applicant and other persons in a like position is relevant...''

16. I propose to deal with the issues in accordance with the Hunter Valley principles, using for this purpose the same paragraph lettering:

(a) and (b) of the Hunter Valley principles:

(1) As set out previously in these Reasons, Mr Christie was strongly critical of the advice of H, although there was no similar criticism of the (concurring) advice of S. The Tribunal does not accept that there is evidence before it as to the fact that H's advice (or for that matter that of N and S) was in any way bad. It must be remembered that that advice was given against the relevant background and history. The Applicant's affairs were the subject of an audit investigation, not by any means confined to the relevant year or the Unit. As set out in the Applicant's statement there was in fact a wider framework. H accepted that with the benefit of hindsight, it would have been wiser to object, but there was nothing before the Tribunal to suggest that the advice was wrong in the context of the time at which it was given.

(2) Mr Christie sought to characterise the advice of the Accountants as analogous with the solicitors' delay in
Comcare v A'Hearn (1993)119 ALR 85

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, or the mistake of the Accountants in respect of allowable deductions, in
Lighthouse Philatelics Pty Limited v FC of T 91 ATC 4942; (1991) 32 FCR 148. I set out clauses 15, 16 and 17 of the Outline in this context in full as follows:

``15. In Comcare v A'Hearn (1993) 119 ALR 85 at 87, the Full Court considered a delay of some 17 months after the expiry of the time permitted. The Full Court said:

`The Tribunal found positively that the delay on the part of the solicitors was inexcusable and yet, after observing that there was an absence of any evidence, said: ``Additionally, there was a total absence of `any acceptable explanation for the delay'.'' It emphasised this approach in the second last paragraph of its reason, where it said:

``These proceedings were issued some 17 months after the expiry of the time permitted and then by a firm of solicitors instructed by the applicant well recognised and prominent in personal injuries litigation. No acceptable explanation whatsoever was provided either by the applicant or the solicitors for the delay.''

We consider too, that the following paragraph of the Tribunal's reasons is especially revealing of its approach:

``On the one hand, `delays by a solicitor are visited upon the client...' and on the other `although the delay of his lawyers is relevant... [t]here is ample evidence of the applicant's total failure to take any steps...'.''

A consistent thread thus revealed in the reasoning is that the Tribunal considered the delay by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitor's part that the Tribunal found, it was able to say that there was ``no acceptable explanation whatsoever'' for the delay. This approach cannot stand in the light of modern authority such as Jess v Scott (1986) 12 FCR 187; see also Lighthouse Philatelics Pty Limited v The Commissioner of Taxation (1991) 32 FCR 148 at 156.'

16. In Lighthouse Philatelics Pty Limited v Federal Commissioner of Taxation (1991) 32 FCR 148, the Full Court (Lockhart, Burchett and Hill JJ) considered the discretion of the Tribunal to allow a taxpayer to rely on grounds not stated in an objection to an assessment. The question arose as to whether the Tribunal had erred in refusing to allowing an amendment of the grounds of objection. The Full Court stated (at 156):

`To refuse to allow the amendment of the grounds of objection on the basis that the failure to claim deductions otherwise properly allowable was a mistake of the taxpayer's accountant would involve an error of law. See Jess v Scott (1986) 12 FCR 187 at 194.'

(See also Case 27/97, 97 ATC 317.)

17. In the present case, the taxpayer adopted a course of action on the basis of the advice of his accountant. That advice, in particular the advice not to lodge an objection, was deficient. In those circumstances, there is an explanation, and a reasonable one, for the delay.''

(3) The Tribunal does not accept that the advice of the Accountants criticised by Mr Christie can be so characterised or that the analogy is fair. While the precise reason why the advice was given and taken (and I refer in this context to the advice in October 1995 pursuant to which the value of the Unit was included in assessable income, and the later advice not to object to the relevant assessment) the Tribunal has no reason to consider that that advice was bad, or negligent, or in any other manner improper.

(4) Mr Christie referred to what he termed ``changes in the goal-posts''. The Tribunal does not accept that the Respondent at any time committed itself to any particular course of action as regards additional tax. The meeting in October 1995 was aptly characterised as being in two phases. During the first phase the Applicant, H, N, S and C were present, and during that phase the Applicant accepted that the value of the Unit should be included in his income; C's presence was explicable, so I am told, although C himself did not give evidence, on the basis of an attempt to have the Unit treated as assessable income of a partnership between the Applicant and C.

ATC 152

H and C then left the meeting; the Applicant and S were then (and in the second phase) invited to furnish a submission on additional tax.

The allegation as to partnership income was raised again in T5-57, a letter by H to the Respondent, in the context of a request for ``agreed leniency''. The Tribunal accepts that the Respondent did not then or later conclude any agreement with the Applicant as to leniency. See also in this context T5-54.

(5) By letter dated 27 March 1996 (T5-54) the Respondent advised the Applicant both as to the impending issue of the relevant assessment, and as to the imposition of additional tax. In that letter (T5-53) the Respondent reminded H (in the penultimate paragraph) that the taxpayer had a right of appeal against the ``amended assessment, including any additional tax imposed''.

(6) Nevertheless, after a meeting involving advice from H, N and S the Applicant decided not to object. Thereafter negotiations towards an overall settlement over a lengthy period failed and the Applicant sought, after 13 months delay, to object.

(7) The Applicant unquestionably rested on his rights in that firstly in respect of the relevant assessment he agreed in October 1995 to the inclusion of the value of the Unit in his assessable income. This occurred again in March 1996 when he decided not to object to the relevant assessment. Mr Marriott, after some hesitation, concluded that this is so also in relation to the additional tax, even though the amount involved had not been the subject of debate. But the Tribunal considers that the conscious decision in March 1996 must be so categorised.

(8) There is indeed before the Tribunal an explanation of the delay; the Applicant took the view that, in the light of his negotiations with the Respondent, an objection should not be made. The Applicant decided to object, but only after his overall settlement negotiations failed. It was at that stage, and at that stage only, that the Applicant sought to object; that his prime motivation is the possibility or even probability of bankruptcy appears from the Outline, clause 25 of which reads as follows:

``25. The critical feature of this case is that the Applicant will face bankruptcy if an extension of time is not granted. This immediately distinguishes it from cases relied upon by the Respondent. (See Case 36/94 (1994) 94 ATC 32 (claim for deduction); John Pope Electrical Pty Limited v Commissioner of ACT Revenue (1992) ATC 2069 (payroll tax assessment). The present case is also distinguishable, in this critical respect, from Lighthouse Philatelics Pty Limited v FC of T 91 ATC 4942 (deduction of $46,569). One of the consequences of bankruptcy would be that the taxpayer would be precluded from pursuing his statutory rights to appeal in relation to this and other assessments: see McCallum v F.C.T. (1997) 145 ALR 446.''

(c) of Hunter Valley

The Tribunal accepts that this factor is not relevant. The fact that the Respondent might, if the Applicant's application for an extension of time were granted, be involved in further effort is not an aspect which is to the point.

(d) and (f) of Hunter Valley

(1) Clause 24 of the Outline reads as follows:

``The hypothetical person in a `like position' would be a person who:

  • (i) failed to lodge an objection within time as a result of poor professional advice; and
  • (ii) faces bankruptcy if the application for extension of time is not granted.

The Tribunal is entitled to infer that such circumstances are extremely rare. The Respondent has not adduced any evidence of how such persons (if they exist) are normally dealt with by the A.T.O. or the Tribunal. There can be no suggestion that consideration of fairness between the Applicant and third parties in a like position provides a reason against granting an extension of time.''

(2) The Tribunal cannot accept that the position in respect of this factor is so circumscribed. The reference to ``other people'' in this context must of necessity relate to other persons who have decided not to object to assessments, and that class of such persons may indeed be quite large. There is no basis upon which the Tribunal should limit the class to persons who relied on bad advice, and in consequence face bankruptcy.

ATC 153

(e) of Hunter Valley

(1) It is clear then that the merits will generally (if not invariably) be an important consideration. The cases referred to in Assimakopoulos tend to indicate that where the merits favour the Applicant the Tribunal will generally incline to the grant of an application for time. The Tribunal accepts that section 14ZX of the Taxation Administration Act should be applied remedially and beneficially.

(2) Clause 21 of the Outline reads as follows:

  • ``21. In assessing the merits of the substantial application - ie the underlying issue - the Tribunal must have recourse to the applicable legal principles and to the evidence adduced on behalf of the taxpayer. The Tribunal is not, however, entitled to assess the merits of the taxpayer's case by taking into account any unfavourable view that may have reached as to the credibility of such evidence. In Windshuttle v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992 at 4999, von Doussa J said:
    • `The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [the predecessor of s 14ZX Taxation Administration Act], the applicant's case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends.... On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings.... [W]here the issue is whether leave should be given to extend time it is inappropriate for the Tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See
      Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130,
      Repatriation Commission v Tuite (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.' '' (emphasis added by the Tribunal)

(3) The Tribunal accepts, in line with the decision in Windshuttle, that it is not generally appropriate in a matter such as this to attempt an in-depth analysis of the facts and evidence and moreover that the Applicant has an arguable case will generally suffice. However, the Tribunal considers that (for the reasons set out below) this objection falls squarely within the last quoted sentence from the judgment of von Doussa J in Windshuttle referred to in the preceding subclause. In particular, the evidence before the Tribunal in this matter is such that the Tribunal cannot conclude that there is any merit in the Applicant's substantive case. The ``obvious and easily demonstrated flaw'' in the Applicant's case is simply that the evidence can lead to but one conclusion, namely that the Unit was received in respect of commission.

(4) The Tribunal accepts that bankruptcy may be a most serious and indeed calamitous event so far as the Applicant is concerned. But it cannot possibly be correct for the Tribunal to grant an extension to the Applicant to enable him to stave off this consequence. The Tribunal considers that the explanation for the delay which has emerged from the hearing is such that it should (having regard to other relevant factors) lead the Tribunal to a conclusion that it is not proper to grant an extension of time.

(5) The Tribunal was referred by Mr Christie to the decision of Windeyer J in
Scott v FC of T (1966) 14 ATD 286 at 293; (1966) 117 CLR 514 at 526, and in particular to the passage at ATD 293; CLR 526 as follows:

``... Whether or not a particular receipt is income depends upon its quality in the hands of the recipient. It does not depend upon whether it was a payment or provision that the payer or provider was lawfully obliged to make.... Whether or not a gratuitous payment is income in the hands of

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the recipient is thus a question of mixed law and fact. The motives of the donor do not determine the answer. They are, however, a relevant circumstance. It is apposite to quote here a passage from the judgment of Kitto J. in
The Squatting Investment Co. Ltd. v. Federal Commissioner of Taxation (1953) 86 C.L.R. 570 at pp. 627-8; 10 A.T.D. 126 at p. 146. His Honour said: `It is a commonplace that a gift may or may not possess an income character in the hands of the recipient. The question whether a receipt comes in as income must always depend for its answer upon a consideration of the whole of the circumstances; and even in respect of a true gift it is necessary to inquire how and why it came about that the gift was made'. An unsolicited gift does not, in my opinion, become part of the income of the recipient merely because generosity was inspired by goodwill and the goodwill can be traced to gratitude engendered by some service rendered.''

[Emphasis added]

(6) In this matter, the Applicant cannot be believed when he characterises the Unit as a gift. The exhibits and documentary evidence before the Tribunal point overwhelmingly to the fact that the Unit was received in lieu of commission. The Development Corporation's valuation together with the additional allowances and improvements, and in particular the specific references to commission must have the effect that it cannot be regarded as anything else. Scott's case is clearly distinguishable on its facts. In that case there was an amount characterised by the donor as a gift, and the question was as to its correct characterisation in the hands of the donee. It was relevant also in Scott's case that the gift was made by the donor in addition to payment for professional services. In this case, the donor characterised the Unit as commission.

It was contended on behalf of the Applicant that some of the documents were signed by him in a form prepared for his signature. This may perhaps be connected with his evidence that while in high political office he signed documents prepared by his subordinates; however, the relevant documents were prepared after he left politics. The allegation of ``gift'' is contradicted not only by the written evidence before the Tribunal, but also by the Applicant's own conduct at a later stage when he sought to contend that the Unit consisted of partnership income (of himself and C); (see again by way of example Exhibit R1).

(7) The Applicant received a Unit of substantial value in the relevant year after an audit, and in October 1995 he agreed that the value of the Unit was assessable income. He later contended that the advice on which he relied was bad but he did not specify why it was bad.

(8) The Applicant, in the opinion of the Tribunal, has no arguable case on the merits. The Applicant's evidence as to gift or alternatively partnership income in the face of the written documentation, cannot be accepted. There was no evidence, and there were no submissions before the Tribunal, as to the amount of additional tax. In the circumstances and having regard in particular to the failure of the Applicant to return the value of the Unit, the amount of the additional tax imposed may or may not have been reasonable. However, it is relevant that the Applicant, an educated man receiving professional advice from top legal and accounting firms, decided not to contest it.

17. The Tribunal finds on the evidence that there are no merits, prima facie or otherwise in the substantial application. This being so it would be unfair to the Respondent to grant an extension of time, in particular so as to enable the Applicant to stave off bankruptcy proceedings.

18. Mr Marriott drew the attention of the Tribunal to the fact that certain aspects of the Statement of Facts or Contentions filed on behalf of the Applicant did not accord with the evidence presented on his behalf. While Mr Marriott's submissions in this regard were correct, the Tribunal is prepared to accept that such a statement is in effect a pleading, and that the evidence in the case may on occasion differ to an extent from it. It is not necessary to consider this aspect further, since the Applicant in the opinion of the Tribunal has no arguable case in respect of the substantive application.

19. In all the circumstances the Tribunal does not feel that it would be proper to grant an extension of time in this matter, and the objection decision is accordingly affirmed.

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