Haggarty & Ors v. Federal Commissioner of Taxation

Judges:
Wilcox J

Court:
Federal Court

Judgment date: Judgment handed down 9 May 1989.

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Wilcox J.

Appeals have been brought to the Court on behalf of four taxpayers, John Haggarty, Irene Ada Haggarty, Sandra Joan Haggarty and John Peter Joseph Haggarty, against decisions of the Administrative Appeals Tribunal made in connection with its review of their objections to assessments to tax under the Income Tax Assessment Act 1936 [reported as Case V127,
88 ATC 795]. In each case the relevant assessments relate to the taxation year ended 30 June 1984. In each case the issue for determination by the Tribunal was whether certain sums, admittedly received by each of the applicants from a purported superannuation fund, constituted assessable income.

The four applicants are two married couples, John Peter Joseph Haggarty being the son of John Haggarty and Irene Ada Haggarty. At all relevant times each applicant was a director of J. Haggarty & Company Pty. Limited, a company which carried on business, until about 1 July 1983, as scrap metal merchants. In June 1980 the directors caused to be executed on behalf of the company a deed, bearing the date 2 June 1980, which was appropriate to the establishment of a staff superannuation fund to

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ATC 4487

be known as The Haggarty Superannuation Fund. The other parties to the deed were Mr John Haggarty and Mr J.P.J. Haggarty, they being appointed as trustees of the fund. The deed provided that the members of the fund ``shall consist of those Employees of the Company who are, at the Company's absolute unfettered discretion, invited by the Company to join and participate in the fund and who within a period of sixty (60) days thereafter apply in writing so to do and such application is consented to by the Company''.

The deed contemplated that the assets of the fund would include such contributions as might be made to it from time to time by the company for the credit of individual members, together with interest and profits, and such member contributions, made by deduction from the wages, salaries, fees and emoluments of members, as might be made. The amount of any member's contribution was to be agreed between the member and the company. Clause 13 of the deed dealt with the payment of benefits:

``Subject to this Deed the Trustee shall out of the Fund pay such retiring allowances and other benefits to Members or dependants of Members as shall be payable in pursuance of these presents. Such allowances or other benefits may be paid by way of lump sum payment or periodical payments including payment of a pension or annuity at the absolute unfettered discretion of the Trustee.''

This subject was elaborated upon in cl. 17 and 18:

``17. As and when any Member shall, after reaching the retiring age of sixty-five (65) years in the case of a male member or sixty (60) years in the case of a female member or other retiring age as the Company and the Member may agree upon, retire from the service of the Company, the Trustee may in its absolute unfettered discretion:

• (a) pay to such Member the whole or any part of the amount standing to the credit of the Member in the Fund's books; and/or
• (b) determine to pay to the Member so much of the said amount not paid to the Member under (a) above by way of periodical payments of such amounts and at such times as the Trustee shall in its absolute unfettered discretion think fit, in which case the Trustee shall pay the same to the Member in the manner provided in such determination...

18. Upon a Member ceasing to be employed by the Company for any reason other than those set out in Clause 17 hereof, the Trustee may at its absolute unfettered discretion pay to the Member all or any part of the amount standing to the credit of such Member in the Fund's books at the time of the Member's early retirement or dismissal and such amount may be paid by way of lump sum or by way of periodical payments including payment of a pension or annuity at the absolute unfettered discretion of the Trustee...''

Clause 23 of the deed set out various circumstances under which a member's entitlement to benefits would cease. Those circumstances included the member, in the opinion of the company based on reasonable grounds, having committed ``any fraud, dishonesty, defalcation or gross, wilful or serious misconduct in relation to the Company or its affairs''.

By letter dated 4 June 1980 the company invited each of the four applicants and six other employees to be members of the fund. The invitation was made upon the basis that members would not be asked to contribute to the fund. All those people elected to join the fund. By 30 June 1982 three other employees had also become members of the fund.

During each of the financial years ended 30 June 1980, 1981, 1982 and 1983 the company made contributions to the fund. No contributions were made by members. In May 1981 the respondent, the Commissioner of Taxation, requisitioned the company regarding its claim for a deduction of $45,131 in respect of superannuation contributions made in the year ended 30 June 1980. That requisition was answered by the company. Thereafter the respondent accepted the fund as a fund falling within the terms of sec. 23F of the Income Tax Assessment Act.

In addition to the contributions received by the fund from the company, as employer, the fund was paid interest on moneys loaned by it to the company. That income was not treated as

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ATC 4488

exempt from tax because the fund failed to comply with sec. 121C of the Act.

The payments made by the company were substantial, relative to its earnings. In his reasons for decision, Mr K.L. Beddoe (Senior Member), who constituted the Tribunal for the purpose of the appeals, set out details in relation to each of the four years and commented [at ATC p. 805]: ``It is apparent that except in the year ended 30 June 1983, which was the last year the company carried on business, the fund has been the repository for almost all of the company's profits derived before payment of contributions and interest to the fund''.

The findings of the Tribunal include a table setting out the various individual interests in the fund as at 30 June 1980, 1981, 1982 and 1983. According to that table each of the applicants held a substantial interest as at each date. In the first three of those four years various employees also held interests. Three employees held an interest in each year; six employees upon one or two of those dates. But although employees came and went, and all left the fund before 30 June 1983, Mr Beddoe stated that the evidence before him, ``while not conclusive, indicates that it is most unlikely that any member of the fund other than the applicants ever received any payment from the fund''.

By an agreement dated 1 July 1983 the company contracted to sell its business to John Haggarty & Co. Pty. Ltd., a company controlled by Mr J.P.J. Haggarty. Possession of the business was given as from that day, although the purchase price was to be paid by instalments over a lengthy period.

According to the cash journal of the fund, a sum of $60,000 was received from the company on 26 June 1984, apparently by way of repayment of the loan made by the fund to the company. On 29 June 1984 the fund drew three cheques: one cheque, for $14,500, paid to Mr John Haggarty and Mrs I.A. Haggarty and two cheques, for $29,060 and $10,000 respectively, paid to Mr J.P.J. Haggarty and Mrs S.J. Haggarty. Also in June 1984, certain Australian Savings Bonds held by the fund were transferred to Mr John Haggarty and Mrs I.A. Haggarty. Mr Beddoe found that the net assets of the fund, excluding certain life policies which were transferred to a new fund established in connection with the purchaser company, were equally divided between Mr John Haggarty and Mrs I.A. Haggarty on the one hand and Mr J.P.J. Haggarty and Mrs S.J. Haggarty on the other.

On 7 March 1985 Mr R. Barnett, a superannuation consultant and actuary, wrote a letter to the tax agent of the fund in which he advised that the benefits payable to each of the applicants, assessed as at 30 June 1984, were as follows: Mr John Haggarty and Mrs I.A. Haggarty $28,787 each, Mr J.P.J. Haggarty $14,790 and Mrs S.J. Haggarty $7,206.

Following receipt of this advice two documents, each being dated 20 June 1984, came into existence. The first of these documents was a minute of a meeting of the trustees of the fund which was said to have occurred on that day. This minute relevantly provided:

``The Chairman advised that the company had ceased business on account of the business being assumed by a new company, John Haggarty and Co. Pty. Ltd.

It was decided that the following retirement benefits would be payable following advice obtained from a meeting with an actuary. It was understood that these payments were within the provisions of the trust deed governing the fund and would be acceptable as reasonable benefits by the Taxation Office.

         Name              Amount
           $
      J. Haggarty           28,787
      I. Haggarty           28,787
      J.P. Haggarty         14,790
      S.J. Haggarty          7,206
                          ---------
                           $79,570
                          ---------
          

It was noted that there was a residual amount remaining in the fund after the payment of these benefits, represented by cash and the Sentry Life policies. The amount of cash was required to meet the taxation liability in respect of the year ended 30th June 1983.

It was RESOLVED that this amount would be retained by the trustees to meet this liability.

It was noted that there was a further amount, remaining in the fund after this, represented by the Sentry Life Policies.

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ATC 4489

The actuary suggested that these life policies would not have a surrender value equal to the premiums paid and that it could be worthwhile maintaining these policies in order to maintain a real investment in return.

Since the superannuation fund did not require any further moneys to meet its obligations it was decided to waive the collection of interest on the loan to the employer. If this money was received the fund would then return the balance to the employer so that the transactions would, in effect, be cancelled. The taxation position would similarly be that the payments would be offsetting.

Since John Haggarty and Company Pty. Ltd. had set up a superannuation fund it was advised that the new employer would not be contributing to this fund. It was resolved to treat all members as ceasing employment with the Company in terms of the Deed.

The two other members of the fund, Messrs Ziebarth and Muller, would be assuming employment under the new firm. It was therefore considered appropriate to transfer these policies to the trustees of the new fund. The actuary would be instructed to arrange this with Sentry Life.''

The second document was a letter addressed to the trustees of the fund by Mr John Haggarty and Mrs I.A. Haggarty. This letter said:

``We hereby authorise you to pay part of our superannuation benefits to the credit of our son and daughter-in-law, Mr and Mrs J.P.J. Haggarty, as repayment of moneys which we owe them.

This is not an assignment of our benefits, but we would ask that the moneys be dispersed in this manner. The amount which we wish to have paid to Mr and Mrs Haggarty is $17,604.

In order to save bank charges we trust that you will be able to obtain advice that this can be arranged.''

The addition of the sums of $14,790 and $7,206, referred to in Mr Barnett's advice and in the minute dated 20 June 1984, and of the sum of $17,604 referred to in this letter comes to $39,600; the amount actually paid to Mr J.P.J. Haggarty and Mrs S.J. Haggarty on 29 June 1984. That sum in turn, represents almost exactly one half of the total amount paid out that day, by cheque or by savings bonds.

In his reasons for decision, Mr Beddoe commented on these documents, marked exhibits 21 and 22 in the proceedings before him [at ATC p. 802]:

``I am satisfied that the entries in the cash book dated 29 June 1984 evidence the true position. That is that the trustees decided to divide the net assets of the fund between themselves and their respective wives without regard to the rights of other members of the fund, the trust deed, the respondent's guidelines or anything else. To put it bluntly they decided to relieve the fund of its net assets for their own benefit. Exhibits 21 and 22 represent an attempt to undo the past when the need to prepare the fund's income tax return brought the matter to the attention of the trustees' professional advisers. That the trustees thought they could take the course of action evidenced by the cash book is confirmed by the attitude taken in relation to the setting up of the fund and the attitude of the trustees to the members of the fund other than the applicants.''

The income tax return lodged by the company in respect of the year ended 30 June 1983 disclosed directors' fees paid to each of Mr John Haggarty and Mrs I.A. Haggarty and salaries paid to each of Mr J.P.J. Haggarty and Mrs S.J. Haggarty. In the following year directors' fees were again paid to Mr John Haggarty and Mrs I.A. Haggarty, but no salaries were paid to the other applicants. From this circumstance Mr Beddoe inferred that Mr J.P.J. Haggarty and Mrs S.J. Haggarty terminated their employment with the company on or about 1 July 1983. This finding is expressly accepted by the applicants for the purpose of this proceeding.

In his income tax return for the year ended 30 June 1984 Mr John Haggarty failed to include any amount by way of a payment from the company out of the fund. He was assessed on the income which he did disclose, but subsequently an amended assessment was issued by the respondent in which he assessed tax upon the basis of the income as returned together with a further sum of $28,787 received from the fund, this being the amount calculated as payable by Mr Barnett.

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ATC 4490

A similar course of events occurred in connection with the other applicants. The income returned by Mrs I.A. Haggarty was increased, in a notice of amended assessment, by $28,787. The income returned by Mr J.P.J. Haggarty and Mrs S.J. Haggarty was increased by the sums of $14,790 and $7,206 respectively. As Mr Beddoe commented in his reasons, it is apparent that the amounts which the respondent assessed in the amended assessment were not the amounts actually paid to the applicants on 29 June 1984.

In his reasons for decision Mr Beddoe dealt at some length with the position of other members of the fund. It is unnecessary to refer to the findings on that matter. Nor is it necessary to set out all of the comments relating to exhibits 21 and 22. It is enough to record the finding that ``the cash journal evidences the real transaction. The documents dated 20 June 1984 represent an attempt to create different `facts' long after the event. The Tribunal finds that the trustees agreed to distribute the net assets of the fund (except the Sentry Life policies) to the applicants and that this was given effect on or about 29 June 1984 as evidenced by the cash journal.''

Mr Beddoe commenced his consideration of the matters argued before him by discussing, at para. 66 to 77 of his reasons, whether, at the date of the subject payments, 29 June 1984, the fund was still a superannuation fund within the meaning of Subdiv. AA of Div. 2 of the Act. After noting certain breaches of the requirements of the trust deed in connection with an employee member, indentified by him as ``B'', and the failure of the trustees to comply with the terms of the deed concerning sale of the business, Mr Beddoe concluded [pp. 808-809]:

``77. The respondent accepted that the fund was a fund to which sec. 23F applied provided the fund was administered in accordance with the requirements of that section... That seems to have been the case at least until the question of payment of benefits to B arose. Even if the trustees acted in breach of trust over the non-payment of benefits due to B there is no sound basis for saying that the fund was not a superannuation fund until some date proximate to 29 June 1984 when the payments were made to the applicants. Unlike the situation found in
Scott v. F.C. of T. (1966) 40 A.L.J.R. 265, this fund was administered as a superannuation fund. It was established as such a fund and the consequence is that it must be accepted as being a superannuation fund within the terms of sec. 27A, being a fund to which sec. 23F has applied. It is not open on the evidence to come to any other conclusion. However the plundering of the fund by the trustees on 29 June 1984 meant that it was no longer being administered in accordance with sec. 23F and it therefore ceased to be a superannuation fund for all purposes on or before that date. The brazen fraud on other members which this action represented makes it clear that the fund had ceased to be a superannuation fund.''

Although the applicants failed in the submissions which they put to the Tribunal, Mr Beddoe did not simply dismiss their applications for review. He held that the various amended assessments should be further amended so as to reflect the actual amounts received on 29 June 1984, rather than the amounts referred to in the minute dated 20 June 1984. Accordingly, he set aside the four amended assessments and remitted the matters to the respondent for reassessment in accordance with the amounts actually received.

In this Court, counsel for the applicants does not challenge the correctness of Mr Beddoe's conclusion that the fund ceased to be a superannuation fund, for the purposes of the Act, on or about 29 June 1984. He says that this conclusion is immaterial; that, regardless of whether or not the fund was still being administered in accordance with the Act at the date of the subject payments, the payments made to his clients on 29 June 1984 were not assessable income. He says that the Tribunal erred in failing to regard the payments as capital receipts and in treating the payments as being caught by sec. 26(e) of the Income Tax Assessment Act.

Section 26(e) of the Income Tax Assessment Act, as it stood in the year ended 30 June 1984, was as follows:

``26. The assessable income of a taxpayer shall include -

• ...
• (e) the value to the taxpayer of all allowances, gratuities, compensations,

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  ATC 4491

  benefits, bonuses and premiums allowed, given or granted to him in respect of, or for or in relation directly or indirectly to, any employment of or services rendered by him, whether so allowed, given or granted in money, goods, land, meals, sustenance, the use of premises or quarters or otherwise, not being -
  • (i) an eligible termination payment within the meaning of Subdivision AA;
  • (ii) an amount to which section 26AC or 26AD applies; or
  • (iii) an amount that, under any provision of this Act, is deemed to be a dividend paid to the recipient;

  ...''

In connection with this paragraph the applicants make two contentions: that the moneys paid to them were not paid ``in respect of, or for or in relation directly or indirectly to, any employment of or services rendered by'' them to the company; and that, in any event, the payments each constituted eligible termination payments within the meaning of Subdiv. AA of the Act.

As to the first contention, counsel says that it is necessary to divorce the question of eligibility for payment from that of the receipt of payment. The proper approach, according to counsel, is to ignore the question of how the applicants each became members of the fund and to concentrate attention upon the fact that they received the relevant payments because they were members. The Tribunal ruled against that contention, Mr Beddoe expressing the matter in this way [at p. 811]:

``The amounts were allowances given or granted to the applicants directly or indirectly in relation to the services rendered by them to the Company. They received the payments because of their membership of the fund and that membership depended upon them being employees of the Company. The necessary nexus between the payments and services rendered to the company is established.''

I see no error of law in the approach taken by the Tribunal on this aspect of the case. The matter put in issue by the applicants' submission is whether these payments were related directly or indirectly to their employment by the company. In
F.C. of T. v. Dixon (1952) 86 C.L.R. 540 at pp. 553-554, Dixon C.J. and Williams J. explained the operation of the words ``directly or indirectly'':

``It is hardly necessary to say that the words `directly or indirectly' extend the operation of the words `in relation... to'. In spite of their adverbial form they mean that a direct relation or an indirect relation to the employment or services shall suffice. A direct relation may be regarded as one where the employment is the proximate cause of the payment, an indirect relation as one where the employment is a cause less proximate, or, indeed, only one contributory cause. It may be conceded also that the proviso has an effect upon the construction of par. (e) of s. 26, but the effect is only to show that the allowance may be in consequence of a retirement from or termination of the office, not to show that a mere historical connection, as it may be called, is sufficient. We are not prepared to give s. 26(e) a construction which makes it unnecessary that the allowance, gratuity, compensation, benefit, bonus or premium shall in any sense be a recompense or consequence of the continued or consequence existence of the relation of employer and employee or a reward for services rendered given either during the employment or at or in consequence of its termination.''

Given that employment by the company was a condition precedent to membership of the fund, and so to the entitlement to receive payments out of the fund, it seems to me to be undeniable that such employment was a cause, although a ``less proximate'' cause, of the receipt of the subject payments.

In Dixon the Chief Justice and Williams J. held that the subject payments were not caught by sec. 26(e). None the less their exposition of the paragraph has been adopted by a majority of the High Court of Australia in
Smith v. F.C. of T. 87 ATC 4883; (1987) 61 A.L.J.R. 539. In the latter case, after quoting the passage set out above, Brennan J. went on to point out that sec. 26(e) seeks a causal relationship between the receipt and the activity. That activity may be the rendering of services, it may be employment. As to the latter possibility, that which is relevant to the present case, his

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ATC 4492

Honour commented at ATC p. 4888; A.L.J.R. p. 542:

``Employment is more than the activity for which an employee is remunerated; employment comprehends all aspects of the relationship of employer and employee in the particular case save those aspects which are merely personal. If a distinction is to be drawn between the income-producing activity which is an aspect of employment and the entirety which constitutes employment, sec. 26(e) looks to the relationship between the entirety and the payment of the allowance.''

Toohey J., with whom Wilson J. agreed, also quoted the passage from Dixon which I have set out. His Honour commented, at ATC p. 4893; A.L.J.R. p. 546, that what can be derived from this passage ``is the notion that for sec. 26(e) to operate the allowance or benefit must in some sense be a recompense or consequence of the continued or contemporaneous existence of the relation of employer and employee''. [In this comment Toohey J. made no reference to benefits consequential upon retirement but I do not understand his Honour to deny that such a benefit might fall within sec. 26(e). Dixon C.J. and Williams J. expressly recognised that possibility. Although the form of sec. 26(e) has changed from time to time, it has always included a proviso or exception referring to retirement benefits. I think that the summary made by Toohey J., in the comment I have quoted, must be regarded as a summary for the purposes of that case, in which the appellant's employment continued throughout the period during which payments were being made.] His Honour then went on to refer to the width of the phrase ``in respect of'' and to note the connection between the appellant's employment and the sum he received. He said, at ATC p. 4894; A.L.J.R. p. 547:

``There was an evident connection between the appellant's employment and the sum he received. And in a very real sense the payment was a consequence of the existing relation of employer and employee. It was only as an employee that the appellant qualified for the benefits payable under the scheme.''

It seems to me that the decision made by the Tribunal is consistent with this approach. The payments made to each of the applicants were consequences of their relationship with the company as directors or as employees. As was the case in Smith, it was only by virtue of their status as employees (or directors) that the applicants qualified to receive the benefits which were paid to them.

The second aspect of the argument in connection with sec. 26(e) is the question whether each payment fell within the definition of ``eligible termination payments'' within the definition of that term adopted for the purposes of Subdiv. AA. That definition, as it stood in 1984, included the following types of payment made in relation to a taxpayer:

``(a) any payment made in respect of the taxpayer in consequence of the termination of any employment of the taxpayer, other than a payment -

• (i) to which paragraph (b) applies;
• (ii) of an annuity, or supplement, to which section 27H applies;
• (iii) from a fund in relation to which section 121DA applies, or has applied, in relation to the year of income commencing on 1 July 1984 or any subsequent year of income;
• (iv) of an amount to which section 26AC or 26AD applies; or
• (v) of an amount that, under any provision of this Act, is deemed to be a dividend paid to the taxpayer;

(b) any payment made from a superannuation fund in respect of the taxpayer by reason that the taxpayer is or was a member of the fund, not being a payment that is -

• (i) income of the taxpayer; or
• (ii) a benefit to which sub-section 26AF(1) applies,

reduced by any amount that has been or will be included in the assessable income of the taxpayer under sub-section 26AF(2) in respect of the transfer by the taxpayer of a right to receive the payment or any part of the payment;

...''

The applicants contend that the various payments received by them each fall within either para. (a) or (b), depending upon the

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ATC 4493

question whether or not the fund was a ``superannuation fund'' at the date of the payments; so that the payments were excluded from the application of sec. 26(e) of the Act by the operation of subpara. (i) of that paragraph. It seems to me that, having regard to the unchallenged finding of the Tribunal that the fund was not a ``superannuation fund'' at the relevant date, attention must be concentrated upon para. (a) of the definition. As to this, counsel for the respondent does not dispute the non-application in these cases of the exceptions contained in subpara. (i), (ii) and (iii) of para. (a) of the definition; but he contends that the matter is concluded against the application by the Tribunal's finding that the payments were not made ``in consequence of'' the termination of the applicants' employments with the company. That finding was expressed as follows [at p. 811]:

``Furthermore the payments were not occasioned by the termination of employment of the applicants. While it appears that [Mr J.P.J. Haggarty and Mrs S.J. Haggarty] did terminate their employment with the company in July 1983, I am satisfied on the balance of probabilities that the payments were made to the applicants in their capacities as shareholders or son and daughter-in-law of shareholders and not in their capacity as employees who had retired from employment. The other former employees who were members of the fund received no such payment. It was not therefore the fact of retirement from employment which determined that the payments be made. Furthermore [Mr John Haggarty and Mrs I.A. Haggarty] did not retire but continued as directors of the company. I am therefore satisfied that sec. 27A has no operation in these matters.''

At first glance it might be thought that the finding set out in this passage sits uneasily with the finding, earlier quoted, to the effect that the applicants received the moneys because of their membership of the fund. But I do not think that there is any inconsistency between the two findings. The earlier finding deals with the question, relevant for the purposes of sec. 26(e), whether the applicants' employment was a ``less proximate'', or contributory, cause of the payments. Mr Beddoe held that it was, because eligibility for the payment depended upon membership of the fund and membership, in turn, depended upon the applicants' employment by the company. In the passage last quoted Mr Beddoe was dealing with a different question, the immediate cause of the payment. In order to constitute an ``eligible termination payment'' a payment has to be made ``in consequence of the termination'' of the employment. There must be a direct causal relationship between the termination and the employment. The mere former existence of an employer-employee relationship is not enough.

Counsel for the applicants makes it clear that his clients do not accept the Tribunal's finding in the passage which I have quoted regarding the capacities in which the payments were made to them. In particular he draws attention to the finding of the Tribunal that Mr J.P.J. Haggarty and Mrs S.J. Haggarty had retired from the employment of the company in July 1983 and suggests that, under those circumstances, the Tribunal ought to have held that the payments made to them, totalling $39,600, were made in consequence of the termination of their employment. But, as counsel accepts, the findings on this matter made by the Tribunal were findings of fact. Although, particularly in the case of Mr J.P.J. Haggarty and Mrs S.J. Haggarty, some facts tended towards the opposite conclusion, there were facts before the Tribunal capable of supporting the finding which was made. There being no suggestion that, in reaching its findings, the Tribunal erred in law, those findings are not open to review in this Court. Their effect is to require the rejection of the argument that the various payments fall within para. (a) of the definition of ``eligible termination payment'', with the consequence that the payments are assessable income within sec. 26(e) of the Act.

In stating that conclusion I do not overlook the fact that counsel for the applicants submits that the payments were payments of a capital nature. This proposition is resisted by counsel for the respondent who submits that the payments should properly be regarded as income, within ordinary concepts. Indeed, counsel for the respondent contends that the Tribunal erred in failing to so find and submits that, if the applicants' argument regarding sec. 26(e) should be successful, the matter ought to be remitted to the Tribunal for determination of that question. Upon the view I

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ATC 4494

take, of course, there is no need for this to be done. It seems to me to be apparent that, if a payment falls within sec. 26(e) of the Act, it is irrelevant to determine whether that payment would, or would not, constitute income according to ordinary concepts. Were the position otherwise, sec. 26(e) would be unnecessary. The relevant receipts would already have been caught by sec. 25. See also the comments upon this matter made in Smith by Brennan J. at ATC pp. 4887-4888; A.L.J.R. p. 542 and by Toohey J. at ATC pp. 4894-4895; A.L.J.R. p. 547.

The applicants have failed to demonstrate that the decisions made by the Tribunal were erroneous in point of law. The applications should be dismissed, with costs.