Case V36

Members: CJ Bannon QC

BJ McMahon SM
GR Taylor M

Tribunal:
Administrative Appeals Tribunal

Decision date: 5 February 1988.

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B.J. McMahon (Senior Member)

The applicant is a privately owned company which carries on the business of a painting contractor in a provincial area of New South Wales. In the relevant period (the year ended 30 June 1979) its net trading profit exceeded $500,000. At any one time it employed between 20 and 120 people, depending on the volume of the work on hand. The only directors of the company were two people, who will be referred to as the husband and the wife. Apart from some trusts for their children, they were also the only shareholders. The company occupied premises on the ground floor of a building in a provincial town. Above these premises was a flat occupied by the husband, the wife and their children.

2. Evidence was given that in the early part of 1979, the husband became concerned about the extent of tax to be paid by the company and sought advice on the subject from his accountant. In an affidavit tendered in evidence as Exhibit B, the husband said:

``Some time in the early part of 1979 I had a conversation with [the accountant] in which I said words of or to the effect: -

• `[name of accountant] I think I have made a fair bit of money in the

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  company. Is there anything we can do about the tax on it?'.

He replied with words of or to the effect: -

• `Yes, there is an arrangement you could use. Your company will need to buy something from you or your wife which has never been used in business'.

I said words of or to the effect: -

• `My wife has an old second fridge at home. Would that do?'.

[The accountant] then said words of or to the effect: -

• `Yes, that would do. The arrangement works like this. The company buys the fridge from your wife for say $100,000, then leases it to one of my companies and then later sells the fridge, say to you, for $100 or so and claims the tax deduction for the loss on the sale of the fridge'.''

3. The husband expressed surprise that this would work but said in his affidavit that he felt that he needed to take advantage of any tax minimisation arrangement which was available because he needed the money to expand his business. A feature of this arrangement, which I will later describe in detail, is that at no time was there any pretence that it was other than a tax minimisation arrangement.

4. Pursuant to the advice which the accountant gave and with his help in preparation of documents, the plan was put into effect. The second refrigerator in the upstairs flat (which the wife later valued at the time at $30) was sold to the company for $100,000. An invoice from the wife to the company was prepared and delivered. At the same time, the refrigerator was physically moved from the flat to the company's premises. Part of the arrangement was that the purchase price would be lent back by the wife to the company. For this purpose a loan agreement was prepared reciting an agreement to lend and containing a covenant to repay the loan to the wife free of interest at the expiration of 32 years from the date of the agreement.

5. Pursuant to the terms of the sale and loan, a bill of exchange was prepared. It was a bill drawn by the wife on the company for $100,000 and accepted by the company. This was considered to be in payment of the purchase price of the refrigerator. The bill was then endorsed by the wife in favour of the company. This was intended to represent the loan of the purchase price by the wife to the company. The bill was dated 23 April 1979, as were the invoice and loan agreement.

6. The next legal step was that by a document dated the following day, 24 April 1979, the company leased the refrigerator to another company associated with the accountant. The terms of the lease are quite short. The four clauses are as follows:

``(1) The lessor hereby leases plant and equipment described in the schedule hereto for the consideration of $10 p.a. the first payment being due on 25 June 1979.

(2) The lessee shall keep the plant and equipment in good working order and condition, bearing in mind its present condition, ordinary wear and tear excepted.

(3) The lessee shall insure the plant and equipment.

(4) The lease is to be for a period of three years as from the date of this agreement.''

7. The schedule then went on to describe the household refrigerator by reference to its type and serial number.

8. On 3 June 1979 a certificate of insurance was issued for this refrigerator by an agent for a well-known underwriting company, describing the insured as the company and the accountant's company as another interested party. The sum insured was $300 - an amount in excess of the value placed upon the plant by the wife, but considerably less than the amount the company paid for it. The rental of $10 due on 25 June 1979 was received on the following day. Evidence of payment and receipt was produced on the hearing.

9. The refrigerator remained physically in the company's premises. Evidence was given that it was used by employees for storage of their lunches and drinks. When the company moved from the premises in 1981, the refrigerator was left there. At no time did the accountant's company as lessee take possession of the refrigerator, although evidence was given that it could have been stored in the garage of the accountant's mother. In the affidavit to which I have referred, the husband swore that the accountant said to him words of or to the effect:

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``Well we leased the fridge but frankly we haven't got anywhere to put it at the moment. You keep it on the company's premises until we've got somewhere to put it. In the meantime, I'll arrange insurance on it.''

10. On the same day that the first instalment of annual rental was due, 25 June 1979, the company entered into a sale agreement with the husband under which the refrigerator was sold to him for $100. Payment of this amount was received by the company from the husband on the following day, the same day upon which the first annual rental payment was received from the accountant's company.

11. There was no evidence of events subsequent to 30 June 1979. The applicant, no doubt, would say that in any event they would be irrelevant to the questions to be determined. We know that the refrigerator left the possession of the company (and presumably the putative possession of the accountant's company) prior to the expiry of the three-year lease. We do not know whether any further rental instalments reserved under the lease were ever paid. We know from other documents tendered in evidence that the debt of $100,000 said to be due from the company to the wife continued to be shown as a debt in the company's books, subject to a balancing item against other moneys owing by the wife to the company. Evidence was given by the wife that no demand had been made for repayment of the loan, or of any part of it, since it was said to have been made on 23 April 1979.

12. The applicant claimed a deduction for income tax purposes amounting to the difference between the cost price of the refrigerator ($100,000) and the sale price ($100). In doing so it relied upon sec. 54(1), 59(1) and 62(1) of the Income Tax Assessment Act (``the Act''). At the time they were in the following terms:

``54(1) Depreciation during the year of income of any property, being plant or articles owned by a taxpayer and used by him during that year for the purpose of producing assessable income, and of any property being plant or articles owned by the taxpayer which has been installed ready for use for that purpose and is during that year held in reserve by him shall, subject to this Act, be an allowable deduction.

59(1) Where any property of a taxpayer, in respect of which depreciation has been allowed or is allowable under this or the previous Act, is disposed of, lost or destroyed at any time in the year of income the depreciated value of the property at that time, less the amount of any consideration receivable in respect of the disposal, loss or destruction, shall be an allowable deduction.

62(1) In this Division, `depreciated value' of any unit of property at any time means the cost of the unit to the person who owns or owned the property at that time less the total amount of depreciation (if any) allowed or allowable in respect of that unit in assessments of the income of that person, for any period prior to that time, under this Act or any previous law of the Commonwealth.''

13. Since the events in question, the relevant sections have been amended, apparently with the intention of dealing specifically with situations similar to those I have described. Section 54 has been amended to provide for depreciation pro rata for the period during which the property is used during a year of income. Consequently depreciation for a full year cannot be claimed under present legislation if the property is used only for a short period. Section 62 was amended by Act No. 149 of 1979 to change the basis of depreciated value from cost to actual value where the parties were not at arm's length. The applicant's claim however must be decided in terms of the relevant sections as they stood during the period of the events in question namely from 23 April to 26 June 1979. The claims were disallowed on objection. This application is brought to review the objection decision.

14. The first question that must be addressed is whether the documents, the conduct of the parties and the whole arrangement amounted to a sham. The classical statement of the nature of a sham is to be found in
Snook v. London and West Riding Investments Limited (1967) 2 Q.B. 786 at p. 802 . Lord Justice Diplock said:

``As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a `sham' it is, I think, necessary to consider what, if any, legal concept is involved in the use of

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this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the `sham' which are intended by them to give third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co. v. Maclure and Stoneleigh Finance Ltd. v. Phillips ), that for acts or documents to be a `sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.''

15. The respondent argued that a ``sham'' existed on four grounds. Firstly, it was said that the bill of exchange and its simultaneous endorsement did not represent a real transaction. There was, however, evidence (which I have no reason to reject) that had the bill been presented to the company's bank at the stage of acceptance, the company would have had sufficient funds or accommodation to meet it. However, the wife agreed in evidence that she certainly did not have funds to back her endorsement and would not have been able to advance the sum of $100,000 in cash to the company. Nevertheless, there seems to be clear authority that a transaction evidenced by an exchange of cheques, or by the endorsement of a bill of exchange, does not of itself amount to a sham or invalidated transaction. In
Perpetual Trustee Co. Limited v. Barnett (1969) 90 W.N. (Pt 1) 637 at p. 650 Helsham J. said:

``But no authority has been cited to me which would dispose me to hold that an exchange of cheques in pursuance of a real and legally permissible transaction can be attacked on the basis that each party knows and intends that the cheques shall cancel each other out so far as the bank is concerned, or that this procedure is adopted in the knowledge that neither party has funds aliunde to meet them.''

16. It might be argued that in the present circumstances, a real and legally permissible transaction was not carried out. The fact is that a debt was raised in the company's books for inadequate consideration. In exchange for a refrigerator worth $30, the company found its shareholders' funds diminished by $100,000. Had it gone into liquidation within six months, this transaction undoubtedly would have been set aside as a preference. Had the wife sought to capitalise her loan account, the subsequent issue of shares could have been set aside, at the instance of any party with standing, on the basis of an issue of shares at a discount. Subject to any indemnity contained in any of the relevant trust deeds, there might also have been involved a breach of trust in that the equity interests of the children in the company, prima facie, would have been diminished by the events in question. Nevertheless, in my view, these can be no more than speculations raising the possibility of an avoidable situation. They do not amount, on the evidence, to such illegalities as to render void any exchange of negotiable instruments giving effect to the transaction, nor do they, in themselves, render the transaction a sham.

17. The second ground upon which the respondent relied in arguing for the existence of a sham turned upon the loan agreement. It was submitted that the wife would probably never call up the loan. Indeed she had no legal right to do so until the year 2011. In my view, even if this were a relevant consideration, there is not sufficient evidence to justify that speculation. The respondent, after all, does bear the onus if a sham is alleged (
Metropolitan Discounts and Investments Co. Ltd. v. Bowra Radio and Electrical Co. Ltd. (1944) 18 A.L.J. 88 at p. 90 ).

18. I consider that the respondent is on stronger ground when he argued, as his third basis for a sham, that the evidence disclosed that there was no intention that the lease should run for three years, nor indeed was there any evidence that there should be a lease at all. Apart from the document, there does not appear to be any evidence of actual bailment of the goods to the accountant's company. There is however evidence that the accountant's company paid the rent reserved and that there was a conversation in which the accountant asked the husband to arrange for his company to continue to keep physical possession of the refrigerator on behalf of the accountant's company and that the husband accepted this obligation. Thin though it is, the evidence is

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not sufficient in my view to extinguish the lease as a sham, bearing in mind the onus cast upon the respondent. In any event, the applicant would argue that the arrangement does not depend upon the lease. It was devised merely as a method of producing assessable income for the lessor from the use of the plant. The applicant would argue, as an alternative, that the refrigerator was used in the course of producing assessable income because it was used as an employees' amenity in industrial premises.

19. The fourth ground depended upon some views expressed by Windeyer J. in
Albion Hotel Pty. Ltd. v. F.C. of T. 115 C.L.R. 78 at p. 92 . Relying on some obiter dicta of his Honour, it was submitted that the evidence disclosed no intention on the part of the parties that the company should buy the refrigerator in the sense that it came under any legal liability to pay for it, nor did the evidence disclose any intention that the company should borrow or repay the loan. In my view, Albion Hotel Pty. Ltd. is a case that turns particularly on its own facts. There were many discrepancies in the accounts, records, proceedings, and conduct of the parties to the arrangement in that case which are not to be found in the present instance. The judgment of his Honour is principally an analysis of the result of those inconsistencies, having regard to his understanding of the concept of sham, which is not explored in the same way. His Honour observed that entries in books of account should evidence real transactions and that the making of entries did not in itself make such transactions. With this observation, one cannot but respectfully agree. There are however in the present circumstances no inconsistencies (with the possible exception of failure on the part of the accountant's company to take possession of the refrigerator) between what the entries purport to record and the legal effects intended by all the parties. The difficulty of establishing that all parties did not intend that the documents executed should take effect in accordance with their respective provisions was referred to by Beaumont J. in
Tupicoff v. F.C. of T. 84 ATC 4851 where he said at p. 4860:

``Indeed, since the supposed fiscal and other advantages could only accrue to the taxpayer within a given legal framework, it was essential, from the taxpayer's standpoint, that the transactions take effect in accordance with their terms.''

20. If there is proper attention to ``housekeeping'' and detail, the Commissioner must always have difficulty in establishing a sham in ``scheme'' cases.

21. Positive evidence was given by all witnesses before us that each of them had the requisite intention, and the documents and the conduct of the parties are consistent with that evidence. Accordingly, I see no basis for disregarding the whole arrangement as a sham. Stronger evidence than that put before us would be required before one could justify ignoring written agreements and other documents consistent with them, on the basis that they were mere ``shams''.

22. As the events in question occurred prior to 27 May 1981, it then becomes necessary to consider whether sec. 260(1) of the Act has effect. That section is in the following terms:

``260(1) Every contract, agreement, or arrangement made or entered into, orally or in writing, whether before or after the commencement of this Act, shall so far as it has or purports to have the purpose or effect of in any way, directly or indirectly -

• (a) altering the incidence of any income tax;
• (b) relieving any person from liability to pay any income tax or make any return;
• (c) defeating, evading, or avoiding any duty or liability imposed on any person by this Act; or
• (d) preventing the operation of this Act in any respect,

be absolutely void, as against the Commissioner, or in regard to any proceeding under this Act, but without prejudice to such validity as it may have in any other respect or for any other purpose.''

23. The ambit of the section has of course been considered by the High Court and Privy Council on numerous occasions. In F.C. of T. v. Gulland 85 ATC 4765, Deane J. (dissenting) referred to the ``element of tension'' between the two mainstreams of interpretation to which the courts have resorted, in order to place some acceptable parameters upon what would otherwise be extremely wide language. The first stream may be referred to as the

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``predication'' test, which was articulated by the Privy Council in
Newton v. F.C. of T. (1958) 98 C.L.R. 1 at p.8 :

``In order to bring the arrangement within the section you must be able to predicate - by looking at the overt acts by which it was implemented - that it was implemented in that particular way so as to avoid tax. If you cannot so predicate, but have to acknowledge that the transactions are capable of explanation by reference to ordinary business or family dealing, without necessarily being labelled as a means to avoid tax, then the arrangement does not come within the section.''

24. The second mainstream of interpretation may be referred to as the ``choice'' test. It grew from observations made in
Keighery Pty. Ltd. v. F.C. of T. (1956-1957) 100 C.L.R. 66 where the High Court synthesized the two approaches. This approach has apparently been preferred in many subsequent cases. For example, in
F.C. of T. v. Casuarina Pty. Ltd. 71 ATC 4068 Walsh J. observed at p. 4078:

``The very purpose of policy of Div. 7 is to present the choice to a company between incurring the liability it provides and taking measures to enlarge the number capable of controlling its affairs. To choose the latter course cannot be to defeat, evade or avoid a liability imposed on any person by the Act or to prevent the operation of the Act.''

at p. 4079 he continued:

``To hold that sec. 260 applies in this case would be to give it an operation, not to effectuate an intention appearing from the Act to impose a liability, but to defeat an intention appearing from the Act to impose alternative liabilities according as the persons interested in a company elect to have or not to have a certain state of facts existing on the last day of a year of income.''

25. In Gulland (supra) Dean J. concluded, from an analysis of the relevant cases, that since Casuarina the courts have made it plain that the predication test is incapable of being applied at all to a case coming within the choice principle. In such a case, he said, the test is simply irrelevant. That being so, as the scope of the choice principle came to be subsequently expanded, the area of operation of the predication test and of sec. 260 itself was correspondingly reduced.

26. The choice principle may be said to have reached its apogee in the three cases of
Mullens & Ors v. F.C. of T. 76 ATC 4288 ,
Slutzkin v. F.C. of T. 77 ATC 4076 and Cridland v. F.C. of T. 77 ATC 4538. All were decided after the time when the High Court became the final appellate court in matters involving the application or interpretation of the Act. They have developed the choice principle from one referring to a choice of factual alternatives - whether to take one course or another - to one referring to a choice of legal form. The emphasis in each case has been upon legal form and the disregard of substance.

27. In Cridland, Mason J. said at p. 4542:

``The decision in the Mullens' case and the passages from the judgments to which I have referred show that the principle which underlies the Keighery case is... not confined to cases in which the Act offers two alternative bases of taxation; it proceeds on the footing that the taxpayer is entitled to create a situation by entry into a transaction which will attract tax consequences for which the Act makes specific provision and that the validity of the transaction is not affected by sec. 260 merely because the tax consequences which it attracts are advantageous to the taxpayer and he enters into the transaction deliberately with a view to gaining that advantage.''

28. This very restricted operation of the section now seems to be the settled construction. The decision in Newton appears to be capable of explanation only on the basis of a particular finding of fact. In Gulland, Gibbs C.J. (who wrote the leading judgment and who has been a consistent supporter of the primacy of the choice principle) did not resile from its operation in that case. He held that the argument that by the arrangements under consideration the taxpayers did no more than adopt a course which was available to them under the Act of creating trusts, the income of which would be taxed in accordance with the provisions of Div. 6 of Pt III of the Act, must fail. This was because it was, in his view, simply not right to say that the Act allowed the taxpayer the opportunity to have his own income from personal exertion taxed as though it were income derived by a trust and held for

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the benefit of a number of beneficiaries. The decision does nothing to erode the transcendence of the choice principle. The choice simply did not exist.

29. Furthermore, the enactment of express anti-avoidance provisions to which I have referred earlier, limits the operation of sec. 260 even further. It is not permissible to use sec. 260 for the purpose of interpreting general provisions so as to bring about results effected by later specific amendments. In
Patcorp Investments Ltd. & Ors v. F.C. of T. 76 ATC 4225 at p. 4232 Gibbs J. (as he then was) observed:

``The presence of sec. 260 makes it impossible to place upon other provisions of the Act a qualification which they do not express, for the purpose of inhibiting tax avoidance. In other words, it is not permissible to make an implication which does what sec. 260 fails to do in preventing the avoidance of tax. If it is suggested that a taxpayer has engaged in a device to secure a fiscal advantage, and the relevant provisions of the Act do not expressly deal with the matter, the case depends entirely on sec. 260. These considerations are sufficient to distinguish the two decisions of their Lordships. Moreover, the Parliament, by enacting sec. 46A of the Act (which was not in force at the time material to this case), has legislated in an attempt to overcome what it regarded as the undesirable effects of the decision in Investment & Merchant Finance Corporation v. F.C. of T ., and that is a further reason why we should not reconsider the authority of that case.''

30. The above views on sec. 260 have been recognised and followed by this Tribunal, most recently in Case U117,
87 ATC 700 , where the presiding member was Davies J. At p. 704 the Tribunal said:

``We are therefore of the view that sec. 260 of the Act has no application to the present case. If the provisions of sec. 54, 59 and 59AA of the Act are satisfied, then those sections provide a deduction in the circumstances which have eventuated. Section 260 does not override such express and detailed provisions of the Act and no antecedent transaction or situation was altered. That the applicant may deliberately have taken advantage of the provisions of the Act is of no consequence.''

31. I am of a similar view in the present circumstances. If the applicant can demonstrate that it is entitled to a deduction under the terms of the sections which I have quoted, then there is nothing in the evidence, having regard to the received or settled interpretation of sec. 260, that would in any way strike out any of the ingredients of the arrangement so as to nullify its effect against the respondent. The fact that the purchase price was unreal, that the purchase of a domestic refrigerator was inappropriate for the applicant's business, that all concerned knew that the refrigerator was to be retained for a short time, and that the purchase and sale were a contrived scheme do not, as I read the authorities, bring the section into effect, whether or not the statutory purpose was a purpose that could be demonstrated by the objective facts.

32. It remains then to consider whether the applicant has in fact satisfied the literal requirements of the three sections and in particular sec. 54. I see no reason firstly why a second hand domestic refrigerator may not be regarded as ``plant or articles'' when it is located in industrial premises and is used as an employees' amenity, having regard to the observations of Taylor J. in
Quarries Limited v. F.C. of T. (1961) 106 C.L.R. 310 at p. 316 . Secondly in the light of evidence of the invoice, the bill of exchange and the physical delivery, I am prepared to accept that the refrigerator was owned by the applicant at the relevant time. There is an argument that if property is leased to another in order to produce income, it may not be plant within the meaning of the section. The argument would be that the function of the item is to produce a private service and not to play a part in an industrial or commercial process. I do not find it necessary to pursue this distinction because the applicant's case is based upon the alternative ways of producing assessable income either by way of lease rentals or by way of being used in the general business of the applicant.

33. In my view, however, the applicant fails to come within the literal terms of sec. 54(1) because it has not shown that the property was used ``for the purpose'' of producing assessable income. In my view, the evidence clearly shows that it was used for the purpose of gaining a taxation advantage. The fact that a

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minuscule amount of income or employee benefit can be demonstrated is not, in my view, sufficient to displace that purpose. In
F.C. of T. v. Faichney 72 ATC 4245 at p. 4251 Mason J. (dealing with a very minor aspect of the case) canvassed the possibility that use within the meaning of this section could be so slight that it should be disregarded.

34. This Tribunal and its predecessors, the various Boards of Review, have certainly adopted that approach. The retired architect in Case N50,
81 ATC 245 , for example, could demonstrate hardly any income earning activity associated with the plant upon which he claimed depreciation and accordingly was unsuccessful. The hobby farm cases, illustrated by Case D69,
72 ATC 409 and Case D76,
72 ATC 448 , are other examples of minimal use.

35. An examination of purpose is a common enough exercise under the Act. If a deduction is claimed under the second limb of sec. 51 it is an essential prerequisite. In the various depreciation sections relating to specific types of property, reference is often made to purpose, for example the reference to improvements on land which is used for the purpose of agricultural or pastoral pursuits or for the purposes of forest operations or for the purpose of pearling operations. Certain deductions are allowed in respect of buildings that are used for the purpose of traveller accommodation. On the farm, the question of purpose is examined in even greater detail. Special rates of depreciation are fixed by the Act for property used for the purpose of storage of grain, hay or fodder (sec. 57AE), property used for the purpose of storage of petroleum fuel (sec. 57AJ), property used in connection with basic iron and steel production (sec. 57AK) and property used for the purpose of transporting petroleum (sec. 58).

36. Whilst I am prepared to accept that the relevant purpose need not be the whole and exclusive purpose, it seems to me that the structure of the Act is such that it cannot concern itself in depreciation claims where the relevant purpose is so slight as to be insignificant. Despite many amendments over the years, the primary requirement of sec. 54 is still that the property be used for the purpose of producing assessable income. This positive requirement of production may be contrasted with the more passive requirement of ``gaining'' to be found in sec. 51. In other words, it is not enough that some incidental income comes about through the existence of the property. Depreciation is conceived in the context of the property itself being the principal generator of the income, usually in a commercial or industrial process. It is intended to represent a loss through wear and tear in this process that cannot otherwise be quantified as an outgoing. The purpose or raison d'etre of the property must be to engage in this process and produce this income.

37. Here the applicant must demonstrate that the second-hand domestic refrigerator was primarily used for the purpose of producing assessable income. In the context of a net trading income exceeding $500,000 the sum of $10 which the applicant received must be regarded as insignificant. Similarly, the minimal role played by the refrigerator in its use by employees must be regarded as merely incidental, when one has regard to the surrounding circumstances. No company would expend $100,000 on a piece of property for the purpose of gaining an income of $10 per year from that property. Nor would any company expend such money on a refrigerator for the purpose of providing somewhere for its employees to keep their drinks. As in
F.C. of T. v. John 87 ATC 4713 , the transaction was not repeated, and so far as appears, it was a unique activity distinctly outside the mainstream of the applicant's business.

38. Incidentally, it also appears to have been outside the mainstream of the lessee's business. Evidence was given that the accountant's company was a licensed money lender and second-hand dealer. To the extent that purpose of the lessee is relevant, it may be observed that there can be no other purpose than to assist the company to obtain a taxation advantage.

39. The purpose of the applicant in using the property was not for producing assessable income. If any income were generated by the circumstances, it was quite incidental, casual or fortuitous. The significant and recognised purpose was to gain a taxation advantage. No attempt was made to hide this in the evidence. Indeed it would have been impossible to do so. The circumstances and amounts concerned are so unreal as to leave one with no other inference than that the gaining of this advantage was far and away the dominant purpose (indeed, in my view, the only purpose) of the whole arrangement and consequently of the use

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of the property. On this basis the applicant's claim must fail. I would affirm the objection decision under review.

40. Several other objection decisions were before us relating to different circumstances in different years of income. Although the applications were not withdrawn, no evidence was offered and the matters raised in the various objections were not argued. In order to finalise the matters and in view of the onus which the applicant bears, I would also affirm the objection decisions under review in those subsequent applications.