Brambles Holdings Limited v. Federal Commissioner of Taxation.

Judges: Barwick CJ
Gibbs J
Mason J

Jacobs J
Murphy J

Court:
Full High Court

Judgment date: Judgment handed down 2 November 1977.

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Jacobs J.: Brambles Holdings Limited (``Brambles'') by 1967 had developed into what was described by Mr. Holcroft, its chief executive, as a ``logistics business service organisation''. It carried out long distance freight forwarding, heavy haulage and materials handling and it also provided on hire, fully manned and maintained, a wide range of earthmoving plant, cranes and machinery of like kind, primarily to the steel industry and the road construction industry.

In 1967 the managing director of Harris

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Holding Limited approached Brambles to see whether it would be interested in the exploitation of timber reserves in the Eden area in New South Wales. Brambles examined the proposal but went no farther.

In 1968 Brambles through its Project Development Division renewed its interest in the idea of entering the field of timber logging especially for export. It had in mind the financial advantage which might accrue to it from Commonwealth export incentive schemes, particularly rebate of pay-roll tax under the Pay-roll Tax Assessment Act 1941 (Cth.).

At that time Harris-Daishowa (Aust.) Pty. Limited (``HDA'') was proposing to erect a timber chipping mill at Twofold Bay near Eden and to supply it with logs from State forests under licences from the Forestry Commission of New South Wales. A ship loading facility was intended to be built and the product - wood chips - exported to Japan for the paper making industry.

HDA in January 1968 was granted a licence by the Forestry Commission of New South Wales to obtain and remove timber from specified State areas during the twenty years from 1st January 1970 onwards.

HFA was a joint venture between Harris Holdings Limited and a Japanese company, Daishowa. Harris Holdings Limited had a 51% interest in HDA and the other 49% interest was owned by the Japanese company.

At first Brambles contemplated an operation in competition with HDA but Harris Holdings Limited approached Brambles at the end of November 1968 with the object of obtaining sufficient capital for the timber operation either by a takeover by Brambles or an injection of capital. It needed to find about half a million dollars as its share of the joint project.

By April 1969 the Project Development Division of Brambles had prepared a report for the Board of Directors on the feasibility and desirability of Brambles possibly taking over Harris Holdings Limited and thus becoming the sole partner with Daishowa in the project. The advantages by way of pay-roll tax rebate were already being actively canvassed. The upshot was that Brambles acquired a 24 ½ % interest in Harris Holdings Limited, the remaining interest being taken by Dillingham and Australian Paper Manufacturers.

By about mid-1969 it was envisaged that Brambles would play an active role in the Eden project of HDA and one of the advantages was recognised to be in rebates of pay-roll tax.

About the middle of 1969 HDA called tenders for the extraction and delivery of pulpwood from the area of its licences. In September 1969 HDA wrote to Cocks Heffernan Pty. Limited confirming that a contract was to be issued to the latter under certain terms and conditions as a principal contractor for felling, hauling, snigging, debarking, and splitting of eucalypt wood for the mill at Eden. In the letter of September 1969 HDA stated:

``Because the Company is presently examining some aspects of the Contract which may produce a beneficial financial result, the formal signing of the Contract must be deferred until a decision is taken in this regard. To achieve this financial advantage, it may be necessary to introduce Brambles Holdings as the Principal in this Contract, a circumstance which we will confirm with you as soon as possible.''

Concurrently with the calling for tenders and acceptance of Cocks Heffernan Pty. Limited as the successful tenderer for the operation to which I have referred, discussions and negotiations went on between Brambles and HDA whereby Brambles would be interposed as Head Contractor for the said operations with Cocks Heffernan Pty. Limited as a sub-contractor to Brambles. An admitted purpose or motive of these negotiations was in order to enable Brambles to qualify for pay-roll tax rebates, and it is convenient at this stage to explain in what way Brambles might so qualify.

Brambles being a considerable employer of labour was liable to pay large sums in pay-roll tax. Division 2 of Pt. III of the Pay-roll Tax Assessment Act 1941 (Cth.) provided for rebate of pay-roll tax by reference to exports. The rebate was available under Div. 2 not only to an actual producer for export but in certain circumstances to suppliers to a producer for export of components for prescribed goods. It is sufficient to say that the wood chip products were prescribed goods and that the person who supplied the timber to the chip mill would be a supplier of components.

Section 16S of the Act provided that export certificates might be issued in accordance with that section and that every export certificate

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should specify the rebate value within the limits provided by the section. HDA was a producer for export but had little or no opportunity of utilising the rebate under Div. 2. In those circumstances, as a producer for export, it was entitled to issue export certificates specifying a rebate value to the supplier of components. There was provision to ensure that the total rebate value stated in all export certificates issued by a producer for export did not exceed the total rebates calculated in accordance with the Act in respect of the goods exported by the producer. Section 16S(3) provided a formula for calculation of the limit of the amount of rebate which could be stated in the export certificate or certificates. The selection of the supplier or suppliers of components who should receive an export certificate lay within the choice of the producer for export with the limitation that in a case where the producer for export acquired from a supplier of components certain goods and the total of the considerations therefor was less than one-tenth of the total of the considerations for which he had during the rebate year acquired goods of the same kind from suppliers of components the rebate value stated in the export certificate could not exceed an amount calculated in accordance with the formula contained in sec. 16S(3)(b). Subject to this provision the choice lay with the producer for export, and there was no necessary relationship between the value of the goods supplied by the supplier of components and the rebate value stated in an export certificate. The account which I have given is in no way comprehensive of all the situations dealt with in Div. 2. I refer only to the situations relevant to the present matter.

In the second half of 1969 HDA reached agreement with Brambles to grant to Brambles a sub-licence of the forest areas and for the sale by Brambles and purchase by HDA of the timber products from the said areas. These agreements were executed by Brambles on 12th February 1970 but were not executed by HDA prior to December 1971. However, the parties acted in accordance with the agreements during the whole of the year ending 30th June 1971, which is the relevant rebate year. By the terms of the sub-licence agreement, HDA in consideration of royalties to be paid by Brambles agreed to give Brambles ``full and exclusive permission and authority to enter into and upon the Licensed Areas'' during the term stated and ``to obtain and remove therefrom during such period timber and other products suitable for pulpwood''. The sale agreement recited Brambles' rights under the sub-licence agreement, and by cl. 1(a) Brambles bound itself while ever it had the right to obtain and remove pulpwood from the areas, to sell to HDA all the pulpwood got and removed and to deliver the same to HDA at HDA's mill.

By cl. 4(a) Brambles was entitled to employ one or more contractors to fell trees, etc., provided that the tender of any such contractor was approved by HDA.

By cl. 4(b) Brambles was at liberty to tender for such work by and through a subsidiary, and by cl. 4(c) HDA could require Brambles to establish a cost control unit.

The price payable by HDA was specified as a sum calculated as the cost per ton of pulpwood delivered at HDA's mill. The costs to be taken into account (cl. 1(f)) were to be:

• (i) the royalty payable by Brambles to HDA;
• (ii) the amount paid by Brambles to any contractor;
• (iii) the costs of Brambles site administration;
• (iv) the sum of 15c per ton as Brambles profit.

It was also provided by cl. 1(i) that while ever HDA issued to Brambles export certificates in accordance with its obligations in that regard as set forth in cl. 2(f) [ semble (e)] Brambles would allow Harris-Daishowa a discount of twenty-six cents (26c) per ton off the price per ton of pulpwood determined as aforesaid for each ton of pulpwood sold to it under the agreement.

Clause 2(e) provided that HDA would

``issue to Brambles in priority to and to the exclusion of any other company and any person or firm and at all times to the fullest extent it may thereunder lawfully do in respect of and according to the value of the Pulpwood purchased by it hereunder Export Certificates under and in accordance with the provisions of the Pay-roll Tax Assessment Act 1941 as amended and in force from time to time.''

HDA produced for export wood chips with

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a value of export sales in the relevant rebate year, the year ended 30th June 1971, of $1,678,116. The increase in its export sales for that year was the same sum. This appears from a determination made by the respondent Commissioner in respect of that rebate year. HDA was therefore entitled to issue export certificates to a total pay-roll tax rebate value of $103,336.35 in respect of the rebate year. It issued a certificate in that sum to Brambles in its capacity as supplier of the logged timber, and Brambles duly claimed a rebate of the pay-roll tax payable by it.

The respondent Commissioner refused to allow the rebate upon at least two grounds. The first ground was that HDA did not acquire the pulpwood from Brambles because the pulpwood had never vested in Brambles. This claim was based upon a submission that the sub-licence was not effective to prevent any felled timber immediately becoming the property of the head licensee, HDA. The Board of Review came to a different conclusion from the Commissioner on this ground. It held that the property in the timber had vested in Brambles. It reached this conclusion by a somewhat complex route but as the conclusion has not been canvassed on this appeal there is no need to express any opinion on the reasoning of the Board of Review. The licence was not a mere personal licence although there were limitations on its transferability. It was in the nature of a profit a prendre and was a right of property. It was a right which was capable of sub-licensing or sub-letting and on a sub-licence or a sub-letting the title to timber felled under the sub-licence would be in the sub-licensee. Thus Brambles was a supplier of components to HDA.

Secondly, the respondent Commissioner determined under sec. 16T that he was satisfied that arrangements had been made between Brambles and HDA with a view to their affairs being so arranged or conducted that Div. 2 of Pt. III of the Act would have effect more favourably in relation to Brambles that would otherwise have been the case. He assessed the rebate entitlement of Brambles at nil.

Section 16T(1) of the Act provides:

``Where the Commissioner is satisfied that arrangements have been made between any persons with a view to the affairs of those persons being so arranged or conducted that this Division... would have effect more favourably in relation to one of those persons than would otherwise have been the case, the amount of any increase in export sales, or of any rebate entitlement, of that person shall not exceed the amount that would, in the opinion of the Commissioner, have been the amount of that increase in export sales or of that rebate entitlement if those arrangements had not been made.''

On this second ground of the Commissioner's decision the Board of Review received much evidence relating to the circumstances in which Brambles and HDA entered into the agreements. The majority of the Board of Review came to the same conclusion as the Commissioner. They were satisfied that the sub-licence and the sales agreement between HDA and Brambles were arrangements that had been made with a view to the affairs of HDA and Brambles being so arranged and conducted that Div. 2 of Pt. III of the Act would have an effect more favourable in relation to Brambles than would otherwise have been the case. They further found that the whole of the rebate entitlement exceeded the amount that would have been the amount of the rebate entitlement if the arrangements had not been made. The third member of the Board of Review reached a contrary conclusion and would have allowed the taxpayer's claim to rebate.

There can be no doubt upon the findings of fact, and indeed it was hardly disputed, that the primary motive of Brambles in entering into the agreements was in order to obtain the export certificates and the pay-roll tax rebates. It is also clear, in so far as it may be relevant, that Brambles would not have entered into the agreements if if had not been for the expectation that it would have obtained the export certificates.

However, it is also clear that no member of the Board of Review regarded the transactions as sham transactions. It was not suggested on the hearing of this appeal that the agreements were shams. They took effect according to their terms and both HDA and Brambles operated under them. As Head Supplier, Brambles engaged not only Cocks Heffernan Pty. Limited but other logging contractors. Brambles paid them in terms of their contracts with it. It established a logging company, Pulpwood Forest Services Pty. Ltd., in which it

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owned 75% of the issued capital and which received almost a quarter of the total payments made by Brambles to its contractors in this particular rebate year. It employed a forester as well as an accountant. Brambles was duly paid by HDA for the pulpwood delivered to its chip plant.

Section 16T is full of difficulty. It has that in common with sec. 260 of the Income Tax Assessment Act 1936 (Cth.). The source of the difficulty in each case is that to give the words of the respective sections the widest construction open to them would have results which it cannot be supposed that the legislature intended. Section 260 on its widest construction would make void as against the Commissioner any expenditure which led to an allowable deduction from assessable income or to rebate of tax, because any such expenditure has the effect of relieving the taxpayer of liability to pay income tax on the amount of the deductible expenditure or the rebate. So the section has been construed in a particular way which does not lead to absurdities. It would appear that something of the same needs to be done in respect of sec. 16T. To that extent there is an analogous situation. But I do not think that it is of assistance to attempt to transpose or apply the concepts which have been developed in respect of sec. 260 to the problems which arise under sec. 16T. The contexts are entirely different. Any similarity of concept or method of construction will be no more than fortuitous.

The difficulty with sec. 16T is that if its language were given the widest meaning which the words might possibly bear, one could hardly conceive of any agreement for the supply of components to a producer for export which would not come within it where the parties have bargained with the value of export certificates and of pay-roll tax rebates in mind. The supplier says ``I will supply components at such and such a price if I receive an export certificate from you for a minimum of so much; otherwise the price is double''. If this is an ``arrangement'' under sec. 16T then the obvious purpose of Div. 2 - export incentive - is destroyed. The object is to encourage such a supplier to supply to a producer for export and to supply at a price which will assist in making the exported produce competitive on world markets. The rebate of pay-roll tax is the fiscal contribution to making his price as low as he can make it. It would be absurd if a common attempt to obtain the advantage of that fiscal contribution resulted in its loss.

So sec. 16T has to be construed in a way which will avoid this absurdity. Section 16T(1) does not mean that if the purpose (in the sense of motive) of persons in making an arrangement for the conduct of their affairs (in the sense in the present case of making an agreement for the supply of components) is to obtain for one of them the favourable effect of Div. 2 which would not have existed if the agreement had not been made in the first place, then sec. 16T(1) may necessarily be invoked by the Commissioner.

On behalf of the appellant it has been submitted that sec. 16T does not apply to any initial arrangements between persons, in this case the supplier of components and the producer for export, but only to rearrangements, to alterations of existing arrangements. I do not think that such a broad limitation can be implied but the argument suggests the limitation which is to be found in the language of the section. The language of sec. 16T presupposes that there are ``affairs'', not necessarily pre-existing the impugned arrangements, but nevertheless affairs which would have been conducted or arranged in another manner if it were not for the favourable operation of Div. 2 on the manner of conducting or arranging their affairs which was adopted. The words ``would otherwise have been the case'' presuppose that there is or would be another way for the persons to arrange or conduct their affairs. The ``other way'' must mean not ``any other way'' but ``the other way in which such affairs would usually be conducted or arranged''. Since the whole context is a business or commercial one, this must mean ``the usual way in which such business or commercial affairs would be arranged or conducted''. Therefore it may correctly be said that the affairs of the persons must follow a usual or ordinary business or commercial course. Thus what come within sec. 16T(1) are arrangements of a kind which the persons in the ordinary course of their commercial affairs would not have made if it had not been for the more favourable effect which the Division would have in relation to one of them by the arrangement and conduct of their affairs under the arrangements in fact made. Then if the persons making the arrangements had the requisite intention at the time, the conditions of sec. 16T(1) will be

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satisfied. The test of commercial reality and of the person's intention are so closely inter-related that the answer to the one will almost certainly provide the answer to the other. If persons did not have the requisite intention at the time of making the arrangements, the arrangements must be otherwise commercially explicable and the application of sec. 16T will not arise. But it does not follow that, because the persons have the intention at the time of making the arrangements, even in the forefront of their minds, the arrangements necessarily fall within the subsection. The arrangements must only be commercially explicable as being made with a view to the more favourable effect. Then it can be said that the obtaining of the more favourable effect was the common purpose or intention of the persons making the arrangements. The purpose or intention or motive of one of those persons is not the test. Nor is the common motive of all the persons making the arrangements. The motive is only important for the light which it may possibly throw upon the question whether the arrangements are otherwise commercially explicable.

Although the majority and the minority in the Board of Review applied the test whether the arrangements between the parties were commercially realistic and were explicable other than as arrangements falling within sec. 16T(1), they differed upon the aspects of the arrangements which might properly be taken into account in applying this test. The majority regarded as very relevant (1) the terms of the consideration payable to Brambles which only made commercial sense in the light of the provisions of Div. 2, and (2) the view which they formed that Brambles could have provided essentially the same services as it did under the arrangements by an arrangement which would provide no opportunity of attracting to it the advantages of pay-roll tax rebates.

On the other hand Mr. O'Neill who was in the minority not only discounted the significance of the common motive of ensuring that one of the parties obtained the advantages of pay-roll tax rebates but also discounted the weight of the circumstance that the consideration was arranged in a way which was only commercially explicable by a recognition of that motive. He was not concerned with the question whether Brambles might have provided essentially the same services in a way which did not attract the favourable operation of Div. 2. He looked at the services provided by Brambles and in effect posed the question whether the agreement for such services by way of a head supply agreement was of a kind which persons were likely to make in an ordinary commercial course. He found that it was.

What has particularly concerned me is whether the real difference between the majority and the minority of the Board of Review is no more than a different inference from the facts, both inferences being open. Where the subject matter is the satisfaction or the opinion of the Board of Review (on appeal from the Commissioner) and where two conclusions are open in law, this Court will not interfere except in order to ensure that the conclusion was reached upon correct principles of law. But it is a question of law not only whether the Board of Review correctly construed the statute in posing the issue to be determined but also whether the Board took the correct factors into account in determining that issue.

I have concluded that the majority of the Board erred in law in that they reached their conclusions by giving weight to the fact that the consideration between Brambles and HDA was not commercially explicable except by reference to the advantages which would accrue to Brambles under Div. 2 and by giving weight to possible alternative agreements which might have been made between the parties for the supply of services by Brambles; and in that they did not apply their minds distinctly to the question whether the agreements whereby Brambles became ``Head Supplier'' were, apart from the terms of the consideration, of a kind which might be made in the usual course of commerce. I have already explained why it is not correct to place emphasis on the terms of the consideration; the scheme of Div. 2 contemplates that the export incentive of a pay-roll tax concession could be shared between supplier of components and producer for export and within certain limits could be bargained about and agreed between the parties as they thought fit. In the bargaining the guiding factor will be the value or lack of value to each of the parties respectively of the possible Div. 2 concessions. It would be wrong to find an agreement commercially unrealistic or inexplicable upon the ground that such bargaining took place and resulted in a price for components which

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was only explicable in the light of the operation of Div. 2.

Next, it is not to the point that the services provided by Brambles might have been provided in another manner whereby it would not obtain in its favour an advantageous operation of Div. 2. The question is whether in all the circumstances of the case the suggested alternative arrangement would (not might) have been made between Brambles and HDA if it had not been for Div. 2. It needs to be stressed that the agreements were not shams. They really and effectively operated.

In my opinion there was no adequate foundation for a conclusion that the ``Head Supplier'' agreement was in its terms apart from the consideration commercially unrealistic and inexplicable. Forestry services were required and supplied. Likewise accounting services. There was no evidence that in the circumstances a contract simply for the supply of such services was so obviously the usual commercial arrangement that the alternative form of arrangement, a head supply agreement, a head supply agreement, was commercially unreal.

On behalf of the Commissioner it has been submitted that the majority of the Board of Review found as a fact that the sole purpose of the agreements was in order that Brambles might have the favourable effect of Div. 2. Alternatively, it was submitted that this was a predominant purpose. But so to put the matter uses ``purpose'' in the sense of motive and is erroneous.

Mr. O'Neill was in my opinion correct to have regard to the wide context of the ``affairs'' between Brambles and HDA and not to concentrate attention only on the sub-licence and sales agreements. It was necessary to identify the ``affairs'' of Brambles and HDA and then to determine whether there was another manner in which in a commercial context those affairs would have been arranged or conducted if it were not for the more favourable operation of Div. 2 in relation to one of the persons which resulted from the manner in which under the impugned arrangements the affairs were arranged and conducted. The affairs of Brambles and HDA extended beyond the mere interposition of Brambles as ``head supplier''. The examination of their affairs in a commercial context should not be unduly constrained by concepts of separate corporate personalities. In a commercial sense Brambles was a joint venturer with Daishowa and Dillingham and Australian Paper Manufacturers through HDA in the wood chip export undertaking. It was also a substantial supplier of logs to the venture through Pulp Wood Forest Services Pty. Ltd. And it directly provided the services to which I have already referred. In this context it cannot be said that the arrangements which were made and which required an active and direct participation by Brambles in the conduct of the enterprise lacked commercial reality. I would therefore allow the appeal.