Case K25

Judges:
HP Stevens Ch
RE O'Neill M
CF Fairleigh QC

Court:
No. 1 Board of Review

Judgment date: 31 May 1978.

H.P. Stevens (Chairman): The question at issue in these references arises out of an investigation of the taxpayer's affairs which was carried out basically on an assets and liabilities basis, i.e., a comparison of the change in net assets as at one 30 June from the preceding 30 June with adjustments to take into account private living expenses, capital amounts, etc. As a result it was, inter alia, determined that, for the years ended 30 June 1967 to 1972 inclusive, there were accretions which had not been returned as income of $14,301, $24,787, $17,126, $25,111, $43,659 and $27,587 for each of the respective years. These amounts were included by the Commissioner as ``income from betting activities'' and, the case being argued by both parties on the basis that this was a correct description, the precise question for determination is whether the taxpayer's betting activities constitute the carrying on of a business so that the proceeds thereof have been correctly treated as constituting assessable income.

2. If a business is being conducted it is the gross income therefrom that is assessable with deductions allowable for appropriate items. In the present case the Board is only concerned with net figures since allowable items (if there is a business) have already been taken into account in the net asset comparisons. The Board was not informed as to the extent of

ATC 245

such items in any year although specific reference was made to certain items in relation to the 1972 year, e.g., computer rental and other charges, office rent, telephone and wages for office staff. Figures were available, however, in respect of only the computer $20,737 and telephone $500 or $600. The importance of these figures is, inter alia, in that in order to achieve a final net result of $27,587 for 1972 after they had been taken into account, the earlier gross result must have been a minimum of $48,824. When office rent, wages and the like are considered the gross result would have been not less than $50,000.

3. The issue in this case is basically one of fact
Helton v. F.C. of T. (1959) 12 A.T.D. 82 would suggest purely a question of fact) in that its resolution depends to a large extent upon a proper appreciation of the taxpayer's methods of operation and the volume and extent of those operations. Accordingly the evidence before the Board must be such as to establish with reasonable certainty what those methods were and the volume, etc., of the resulting transactions. Unless this is done how can a Board be satisfied that a taxpayer has discharged the onus placed on him by sec. 190 of establishing that a business had not been carried on? On this questions of onus 1 refer generally to the comments of Board No. 2 set out in Case K15,
78 ATC 143 relating to assessments raised on an assets betterment basis. The comments of Taylor J. in Helton's case (supra) are also of interest in that he indicated what the appellant had to establish and the he was not prepared to accept the assumption upon which the Board of Review was prepared to dispose of the matter.

4. I recognize that in
Martin v. F.C. of T. (1952-1953) 90 C.L.R. 470 at p. 479 the Full High Court said that: -

``The onus, if the case is one in which onus assumes any importance, is on the appellant to satisfy the Court that the extent to which he indulged in betting and racing and breeding racehorses was not so considerable and systematic and organized that it could be said to exceed the activities of a keen follower of the turf and amount to the carrying on of a business. But no question of onus appears to us really to arise. It is simply a question of the right conclusion to draw from the whole of the evidence,''

but, in that case, since, as was pointed out in their reasons at p. 477: -

``During the whole of the three years the taxpayer employed a registered tax agent, W.E. Michel, to keep his books of account and prepare his income tax returns. He gave Michel particulars of his wins and losses from betting from time to time from his betting-books, and Michel entered these particulars in the taxpayer's books of account,''

full and complete details were available, the comments re onus are perfectly understandable. However, they cannot, in my view, be taken as meaning that, when less than full details are given, onus has no part to play and that the question involved has to be decided solely in relation to whatever details happen to be produced in evidence in respect of system, volume, etc. If this were not the situation then a favourable result could possibly be obtained by withholding information (which is normally peculiarly within the taxpayer's knowledge) from a tribunal.

5. Because I hold the above views this case has troubled me considerably. As will be seen the evidence clearly does not cover the totality of the taxpayer's operations for any year of income (let alone all years of income) and initially I doubted whether there was sufficient to establish either the volume and extent of those operations or his methods of operation. I have been able to resolve the first aspect in favour of the taxpayer and its manner of resolution can be firstly dealt with. In the course of this my problem with the second aspect will become clearer.

6. The evidence before the Board (except where stated otherwise I accept the details given by Mr. Fairleigh) gave it some particulars covering a whole year of income only in respect of the 1972 year but even for this year these were obviously far from complete. The only specific details given as to betting transactions and their results for this year showed: - 

        



Source                   Period       Betting      Total      Total       Net

                                       Days       Invest    Dividends   Result

                                                            Received

                                                     $         $           $

Exhibit F -  weekly

statements from ATL

re Commission A/c   1/7/71-25/12/71*    21       116,620     132,870    P16,250



Exhibit 8 - ATL

Commission A/c       1/1/72-30/6/72     31       156,120     152,420    L 3,700

                                        --       -------     -------    -------

                                        52       272,740     295,290    P12,550

                                        --



Exhibit 1 - summary

of one TAB

Telephone A/c       31/8/71-30/6/72    177        26,182      25,104    L 1,078

                                                  -------     ------    -------

Total specific details                           298,922     320,394    P11,472

                                                 -------     -------    -------

* details for 5 meetings during this period missing

The ATL Commission A/c was used by taxpayer solely for betting on interstate races whilst on Sydney racecourses. Exhibits F and 8 show that, except for meetings held on public holidays and one Wednesday meeting, taxpayer used this account only at Saturday meetings despite his attendance at all mid-week meetings. The TAB Telephone A/c was used more extensively (177 betting days cf. 52 days) and for much smaller wagers and would not appear to have been confined to any particular form of betting.

7. As a result the only specific evidence before the Board showed (gross) net winnings of only $11,472 whereas, as per para. 2, (gross) net winnings for that year must have been at least $50,000. Exhibit G, a ``rough summary of winnings and losses'' relating to the commission account, showed net winnings of $19,094 ($22,236 profit first six months $3,142 loss second six months) indicating the probable profitability of the missing five meetings. However, even if $19,094 is accepted in lieu of $12,550 the resulting figure of $18,016 ($19,094-$1,078) is still far short of $50,000. As only rough estimates of average wagers (but not results) were given in relation to dogs, trots and other horse race betting it follows that details of what seems to have been a large portion of the taxpayer's 1972 transactions were not disclosed to the Board. In respect of other years no specific details were given except to the extent that Exhibits l and F covered part of 1971 year.

8. Concern in relation to the lack of detail was expressed at the hearing by both myself and Mr. Fairleigh. I initially said: -

``Can we be satisfied that all the information in regard to the punting activities has been placed before the Board. That is the point I am really making. It is not for the Board to be speculating about any other sources of income; it is for the Board to make a decision on the evidence that is produced before it. But I was concerned to be satisfied in my own mind that all details as to the actual punting activities have been placed before the Board.''

later commented: -

``I am not satisfied that there is not a lot of the volume and quantum in that year (1972) that we do not know anything about. We know nothing whatsoever about the volume and quantum as distinct from the ultimate result of the betting in any of the earlier years.''

and finally said: -

``When I raised it initially I was not necessarily suggesting that there was another unknown source, I was raising the issue that obviously there perhaps was an entirely different system in respect of this other betting because he seemed to be so successful (in it) and about which the Board has not been told anything.''

Mr. Fairleigh supported these comments saying at various times ``it is so hard to grasp that he can be so unlucky with the known figures'' (a reference to $156,120 - para. 6 - producing a loss of $3,700) ``and so lucky with the unknown figures'' and ``it would suggest to

ATC 247

me that there is a lot more to this case that we have not heard''.

9. Frankly I find it difficult to accept that the taxpayer would not have kept some form of record in relation to his transactions other than just in respect of the two accounts referred to in para. 6 - at least in respect of the 1972 year.

10. Counsel for both parties did not appear to be troubled by the lack of full detail and conducted their respective cases on the basis that the amounts assessed were the result of betting activities and that the details put forward in relation to the 1972 year were (in effect) representative of what had taken place in all years before the Board. Initially it was not appreciated that the details produced revealed a large gap but, even after this was pointed out, counsel for the Commissioner still proceeded on the same basis. Thus, in address he stated the taxpayer's ``pattern of activity was consistent throughout the entire six tax years''. It follows that he was happy to argue the case on the basis that what was shown to have occurred in 1972 represented what had happened in each of the five preceding years and that the same pattern existed in the unknown 1972 transactions as in the known transactions.

11. Digressing, it is noteworthy that the case was argued not only on the above basis but apparently also on the basis that there would be no reference to what had happened after 30 June 1972. Thus, although the Board is aware that the taxpayer was still betting at times subsequent to October 1973 when assessments were first disputed (in cross-examination the taxpayer said he ceased using the computer for dog betting in early 1976), that is about all the Board knows. Assumably full records would have been kept since October 1973 and it could be that these would show whether the unknown 1972 transactions were of the same pattern or not.

12. Although a Board must decide a case on the basis of the evidence, or lack of evidence, before it, parties cannot, by conducting their cases on a certain basis, constrain a Board to do the same. Of course, if it is shown, having regard to the overall evidence, that there is no reason to doubt the validity of the basis adopted (or the overall evidence is consistent with that basis) no problem arises. Thus I would see no difficulty in accepting the 1972 transactions as being representative of earlier years if full details for 1972 had been produced or if it could be accepted that the revealed transactions were representative of the volume and extent of transactions in all years and that the missing 1972 details are of the same type as those revealed.

13. As foreshadowed - para. 5 - I do not now see the lack of full detail as being critical insofar as the volume and extent aspect is concerned. On the basis of projections of some known details ($156,210 and $26,182 para. 6) and an estimate of amounts for other types of wagers, counsel for the Commissioner suggested an investment rate of $460,000 to $500,000 per annum and that these amounts represented ``the lowest common denominator - the lowest common factor, common to all years''. Counsel for the taxpayer did not in address attempt to put a figure on total investment per annum but, in reply, agreed with a comment by Mr. Fairleigh that ``no matter what you do you cannot get it below $200,000 for the six months to 30 June 1972''. He also said that ``if the quantum of this betting, no matter, what particular form [of] betting it took, was so large that its quantum of itself was the relevant matter, or the determining matter, we would have to concede that the quantum was such that it could only be described as major'' - presumably major in all years. The available evidence supports the submissions and concession and it is not, in my view, essential to know what higher figure should be substituted. On this basis I have accepted that there is sufficient evidence insofar as volume and extent is concerned.

14. Turning now to the second aspect troubling me, i.e., the taxpayer's methods of operation, I am unable to accept that it is possible to take the same attitude to the missing 1972 details on this count as for the volume and extent aspect. The reason is that the evidence before the Board, whilst it does not enable me to say that the missing details are of a different character (one cannot speculate), it does not, on the other hand, allow me to find that, on the balance of probabilities, they are necessarily of the same type as those revealed.

15. Added to the above is the fact that I found the evidence in relation to the known activities unconvincing - not necessarily because what the taxpayer said was inherently untruthful but due to his ``reluctance'' to give full answers to questions. On occasions his

ATC 248

answers were vague whilst, on others, the questions asked were never answered and this point can be illustrated by the following series of questions and answers: -

``I take it you are not interested in just winning, only in winning when you can get the odds you want? - Well, there is nothing worse than getting 5 to 1 about a thing you should have got 10 to 1.

Even if you win $1,000? - It is very depressing to just not get good odds.

It is simply (that, or because you are betting to a system or method whereby you are aiming at certain odds? - I would say, starting, say $1,000, you get 5 to 1 instead of 10 to 1, you should get a $600 collect.

A couple of times you have referred to the fact you were not so much interested in fluctuations between bookies odds and the tote odds, as between their odds and what you regarded as being what the odds should be. How did you work out what you thought the odds should be? - For instance tomorrow Luskin Star is running, there's 2's on. He should be running at 6 to 4 against, as far as I am concerned. That is a sort of half intuitive, half not liking red hot favourites who have won a few races in a row, half a lot of things. It is a gradual assessment but not a painstaking assessment. You just think, `2's on - I would not back it in a fit'.

Luskin Star might be a special horse but you are doing this for every horse every race? - A bet has to add up to 110%, you could say the horse is 10 to 1 against - when you take Luskin Star at, say, 6 to 4 - those horses could be 5's or something shorter, therefore they could be good bets. If one is in the other is out. They all add up to 110%.

This is something you do in respect of every horse in every race? - Not every horse. There are a lot of horses you are not too certain about. If you back this thing you know some people - perhaps it is only the trainer or the owner - think it is a better thing.

I rather gathered the impression it does not take much time for you off the course to look at form. You go to the course, you have a few beers in between. There is plenty of time between races before thinking about the next race. You do not seem to spend any time at all in making any judgments? - I read the Luskin Star one at lunchtime.

But I am speaking of a typical race day? - That is right.

You are saying it does not take you any time at all, you do not have to sit down and make any effort at all to form these judgments? - Especially bad horse, you soon get very tired of them if they come second and come second and still are starting at short odds because they are a popular horse.

We have seen you put a number of bets on different horses in the same race. That means, I think, you have made an assessment and a judgment in respect of each of those horses? - Those bets are not all at the same time, by the way. They would be during the period I bet, and...

I think you have said that period was in the 5 to 10 minutes beforehand? - It is not necessarily all at the same time. I do not go to window nine and say `Each way number 8, each way number 10'. I might go to the window and take each way 6, and come back later if there have been fluctuations and back number 10.''

16. In relation to the time taken to make judgments (referred to in the above questions) the taxpayer had earlier been asked in chief: -

``Did you spend any time or what amount of time if any before going to the races? - No. I just removed the Telegraph form guide to go to the races or the Herald,''

Whilst in cross-examination he had previously said: -

``When you say you selected your horses on a great deal of factors, you did not study form guides a great deal to establish what was your choice did you? - No. I didn't do much work on it off course.''

Overall I find the taxpayer's evidence on this aspect not only unconvincing but also unacceptable.

17. I also find it difficult to accept the reasons given for the taxpayer's stated preference to bet on the tote as compared with bookmakers. Reference was made to the bookmakers taking 10% but as it was conceded the tote takes 17% (query 13%) this reason is hardly logical. In re-examination the taxpayer was asked certain questions, viz.: -

ATC 249

``What considerations led you to prefer tote betting rather than with the bookmaker? - There are lots of considerations. I do not like betting with bookmakers. The fact that if you start winning from them, you just get knocked back. They just knock you down whereas a tote cannot knock you down. If you walk up with $100 to put on a tote, they cannot say they will only take half of that.

Have you had experience with betting with bookmakers where what you say has happened? - Yes, they cut you in half all the time.

Has that any relationship as to whether you have been successful with them or not? - Yes, they become quite personal. They know you.

That is one matter. Are there others you wish to add? - No, it is just that there are some funny people with bookmakers. If you get big they get to know you and you get mixed up with that sort of punting fraternity that is a bit dicey.''

However, since there was admitted betting with bookmakers - in cross-examination he said ``I did not like making large bets with a bookmaker. I stopped myself making a bet over $5,000 with a bookie'' (a figure rather different to the $100 referred to above) - of which no details have been given, I cannot accept that the reasons given in re-examination represent the truth of the matter. A further reference to losing bookmakers' tickets is understandable except that, for most of the period involved (i.e., before operating on credit accounts with tote), he would have held tickets of another type just as susceptible of being lost, whilst his operations in the period in which he possessed a credit account were not limited to that account or accounts.

18. Mention is also made of the costly computer and the renting of an office of three rooms with two telephones in each room (two lines six telephones). In reply counsel said ``I suppose indicative also of this same sort of thing with the computer is rather inexplicable in a way why someone would have two phones and extensions, and yet he did not really need them.'' I agree it is rather inexplicable, if not completely inexplicable.

19. It follows that, in my opinion, the taxpayer has not discharged the onus of demonstrating that his methods of operation are not such as to constitute his betting activities a business the results of which are correctly assessable in terms of the Income Tax Assessment Act .

20. Although I have found against the taxpayer for the above reasons and it is, therefore, strictly unnecessary to consider the matter further, I propose to set out what my decision would have been if I had been able to accept without reservation the basis on which counsel conducted their respective cases (para. 10).

21. Counsel for the taxpayer submitted that a business was not being conducted and relied upon certain features as supporting that submission. These features were that: -

He submitted that the ``basic proposition which comes from the cases'' was ``that mere magnitude of the bets is not itself indicative of business; mere shrewdness or systematic attitude to betting is not of itself indicative of a business, and perhaps more importantly, to conclude that there is a business, one must find a sort of organization in which the betting can be seen to be embedded and to be part of in order to conclude that what is done is the proceeds of a business''.

ATC 250

22. After it was indicated by counsel that ``there must be a grey line. One must accept there must be a line somewhere'' the following exchange took place: -

``Where do you get into a situation with someone who is not a bookmaker, who is just betting? Do you never get to the situation that he can ever be carrying on a business if that is all he does?

Yes. We would submit that a man who does not have other associations with the turf - we would put all that on one side that the simple better, on the authority of Graham v. Green as approved, to refer to the approval in Martin's case , just does not become taxable because he is not carrying on a business because his activity is not susceptible of being a business. There is no case, no decision of a court, which, as far as we are aware, has ever held that the mere punter is taxable or carrying on a business, because when one looks at the cases that have gone to the courts, where they have been held taxable, there has always been another association with the turf.

In Prince's case , for instance, and I will only give the Board the references to it...

I can accept it where someone who owns horses and is using his own horses so that his betting becomes part of his overall business of being a horse owner and racer. I can accept that. That is why I limited my questions solely to a person such as (taxpayer).

Yes.

Could he ever be said to be carrying on a business?

We would submit no, Mr. Chairman, and as you rightly point out the other cases, it is not because the betting is a business, it is because it is part of the other business - the race training or the bookmaking or what have you.''

23. For the Commissioner the 13 questions referred to by Mr. Fairleigh in his reasons (para. 74) were posed and it was submitted that the evidence established that the taxpayer -

Counsel said his final item (s) was ``one of the keys to this case. It is perhaps in the somewhat facetious remark I may have made at the commencement of my submissions, that this case will be reported with a headnote which will commence with the line that reads: The taxpayer carried on business as a professional gambler, or professional punter. There is no other way to describe it, because he took it upon himself to rely upon that form of income to meet his regular commitments. He would have a say - or he had enough capital - he could live off capital - but he took on debts which were of ten year duration without any capacity to pay them, other than the proceeds of his gambling business''.

24. In relation to his 13 questions, the final one of which was ``Have the taxpayer's betting activities constituted a systematic or organised business effort?'', counsel said ``one cannot just take one question and seek to attempt to decide the case by reference to that question in isolation. It is a matter of impression. These are questions which, in my respectful submission, would trouble the minds of the Board members in determining what overall impression should be formed and the Board will, in my respectful submission, accept this submission that the taxpayer has throughout the whole of the period been carrying on a business of betting.''

25. The 19 points referred to in para. 23 can be said to have been established (one could quibble about whether spending some period with acquaintances met at races constitutes ``social activities'') whilst I would have no hesitation in finding that the taxpayer determined to try (and did successfully as it transpired) to make betting activities the predominant, if not sole, source of his livelihood. However, are these sufficient to constitute such activities a business? Unaided by authority I would say Yes clearly and undoubtedly in respect of all years of income. When regard is had to the authorities the answer becomes less certain.

26. My colleague Mr. Fairleigh has referred to the authorities (para. 63-73 of his reasons) and I need do no more than say they are more in favour of the basic proposition of the taxpayer's counsel (para. 21 above) than the proposition of counsel for the Commissioner outlined at the conclusion of para. 23 above. However I do not think they establish conclusively that in no circumstances can a person, such as the taxpayer, be held to be carrying on a business.

27. In Martin's case (supra) , where 602 bets over a period of three years were made, it was said these did not ``add up to more than about one bet on each race and therefore not to point to more than a normal propensity of racegoers who bet as a pastime'' (at p. 479), and, in
Shepherd's case , 75 ATC 4244 , there is no suggestion that the volume and extent of her betting exceeded that of Martin. When one comes to the present case the evidence shows that the taxpayer for one form of betting alone, i.e., on the ATL Commission A/c, in six months made bets on 848 horses at 31 meetings (para. 47 Mr. Fairleigh's reasons) whilst it is clear, from para. 52 of those reasons, that it was his practice to bet on more than one horse per race and to often have more than one bet per horse. The ATL records show win and place bets on the same horse separately as is illustrated by the following extract in respect of one race at a Brisbane meeting: - 

                            Dollars                                    Win

         Race No.           Invested           Horse No.              Place



           B5                 100                 7                    P

            5                 100                19                    W

            5                 100                19                    P

            5                  10                16                    W

            5                  50                16                    P

            5                 100                14                    W

            5                 100                14                    P

            5                 220                 2                    W

            5                 100                 2                    P

            5                 100                10                    W

            5                 100                10                    P

            5                 100                10                    W

            5                 100                10                    P

            5                  50                12                    W

            5                  50                12                    P

            5                 100                14                    W

            5                 100                14                    P

            5                 400                 2                    P

On this basis an examination of Exhibit 8 shows that there were 1,296 bets on 848 horses for the second six months of the year ended 30 June 1972 whilst Exhibit F indicates a total of 978 bets on 589 horses for the first period of that year (for which details of five meetings are missing). Overall these exhibits establish a total of 2,274 bets on 1,437 horses. If admitted on course bets with bookmakers were known the figures for this form of betting would be even higher and this, of course, relates to betting on interstate meetings only and for one year only.

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28. Having regard to the entirely different factual positions - the present case is unique in relation to the decided cases referred to by Mr. Fairleigh - it is my opinion that none of the cases - each making it clear it is a decision on its own particular facts (75 ATC at p. 4251) - requires me to find that the taxpayer was not carrying on a business in each year of income. A case not referred to by Mr. Fairleigh -
Duggan v. Commr. of I.R. (N.Z.) 73 ATC 6001 - would give support to a positive finding.

29. The authorities also indicate that there may be a business if operations are organized in a manner similar to a bookmaker - unfortunately it is not specified how both sides of the ``coin'' can operate in an analogous fashion - and this requires some consideration. As I understand it a bookmaker conducts his operations with a view to profit by ensuring (or attempting to) that his ``book'' is ``balanced''. If there is continued support for, say, one horse he lowers its odds and raises the odds of others to encourage support for them (or discourage support for the first horse) whilst he also ``lays off'' if he has not been able to attract sufficient support for the other horses to balance his book. By these means he seeks to ensure he will not be ``caught'' and his operations yield a profit. As Evatt J. said in
Trautwein's case (1936) 56 C.L.R. 196 at p. 204 (when referring to Graham v. Green ) ``the bookmaker calculated the odds over a period of time and so arranged his book so that, if possible, the aggregate transactions would show a profit''. Obviously a punter cannot have a balanced book in the same way as a bookmaker but can he calculate the odds and arrange his bets so that, as far as possible, his aggregate transactions over a period of time will show a profit? I think he can and that the present taxpayer has done just that.

30. In this regard the key, in my opinion, is to be found in the large volume of his betting transactions and the taxpayer's insistence on being in a position to note the fluctuating odds being offered and to his practice of placing his bets in the last five to ten minutes before a race. If the betting trends in respect of selected horses are followed closely then instead of receiving say 5 to 1 (which he might regard as the horse's true odds) he may obtain odds of 10 to 1 and he then needs to put on only half the stake he would otherwise require for a specified return. Also he can, by this means, spread a given total stake over a number of horses in the same race thereby increasing the possibility of an overall gain (whether this represents hedging as referred to by Evatt J. in
Jones' case (1932) 2 A.T.D. 16 I am uncertain). The evidence shows it was the taxpayer's practice to bet on more than one horse in a race and that he was not interested in betting on a horse simply because he thought it would win - what he wanted was odds which gave him a differential over and above what he thought the ``true'' odds should be (see para. 15).

31. If I am right in thinking such a ``system'' is properly to be described as analogous to that of a bookmaker then that is another reason for holding that a business was being conducted in all years.

32. Finally on this aspect I should say that, in any event, I would agree with the conclusion of Mr. Fairleigh that a business was being carried on commencing during the year ended 30 June 1971. On this point reference could also be made to
Langford v. F.C. of T. (1954) 92 C.L.R. 517 at p. 523 .

33. For the above reasons I would uphold the Commissioner's decisions on the objections and confirm the assessments for the years ended 30 June 1967 to 1972 inclusive.

 

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