CASE 33/93

Members:
HE Hallowes SM

Tribunal:
Administrative Appeals Tribunal

Decision date: 9 August 1993

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HE Hallowes (Senior Member)

This is an application to the Tribunal by the applicant taxpayer (``the taxpayer''), pursuant to sub- section 29(7) of the Administrative Appeals Tribunal Act 1975, to extend the time for the making of an application for review of a decision of the respondent. The Tribunal had before it a chronology prepared by the taxpayer and a calculation of the taxation payable by the taxpayer with respect to certain termination payments made to him in March 1988. The taxpayer and his agent gave oral evidence to the Tribunal and the parties lodged written submissions after the close of the oral evidence.

2. Income taxation returns for the financial year ended 30 June 1988 were prepared by the taxpayer's agent (``the agent'') and lodged with the respondent in week 25 of the financial year ended 30 June 1989. A notice of assessment (``the assessment'') was issued on 19 May 1989.

3. By letter dated 14 October 1991 the agent, acting on behalf of the taxpayer, objected to the assessment and, pursuant to sub-section 188(1) of the Income Tax Assessment Act 1936 (``the Act''), requested that the objection be treated as having been duly lodged. Sub-section 185(1) of the Act provided that a taxpayer dissatisfied with an assessment may, within 60 days after service of the notice of assessment, lodge an objection stating fully and in detail the grounds on which he relied. Sub-section 188(3) provided that the taxpayer state fully and in detail the circumstances concerning, and the reasons for, the failure by the taxpayer to lodge the objection within time. The agent advised:

``For the purposes of section 188(3), the reason why an objection was not lodged within the time prescribed by section 185(1) was that within the prescribed time the taxpayer was unaware of the decision of the Full Court of the High Court of Australia in Hepples v Commissioner of Taxation (`Hepples case') which was delivered on 3 October 1991. At the time of lodgement of his 1988 income tax return, the taxpayer was aware that the Explanatory Memorandum circulated by the then Federal Treasurer when introducing the Capital Gains Tax legislation stated that the purpose of section 160M(7) was to apply to payments received in consideration for granting restrictive covenants. The taxpayer was also aware that the Commissioner of Taxation would apply Part IIIA of the Act in accordance with the Explanatory Memorandum.

The decision in Hepples case held that sections 160M(6) and 160M(7) did not apply to payments received for restrictive covenants and consequently the scope of these sections did not at law extend to a payment of the kind received by the above taxpayer.''

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The agent contended that the taxpayer's circumstances were on ``all fours'' with the facts in
Hepples v FC of T 91 ATC 4808 and concluded:

``Alternatively, and without prejudice to the foregoing, in the event that the Commissioner refuses to accept that this Objection has been duly lodged, the taxpayer requests that the assessment be amended in accordance with section 170(4) of the Act...''

4. By letter dated 14 February 1992 pursuant to sub-section 188A(2) of the Act, the respondent advised the agent that he had made a decision to refuse to treat the objection as having been duly lodged. The respondent stated:

``In this case it was considered an objection lodged over 26 months after the 60 day time limit had expired should not be treated as duly lodged, especially as to the only reason stated for the late objection was `that within the prescribed time the taxpayer was unaware of the decision of the Full Court of the High Court of Australia in Hepples v Commissioner of Taxation...'.

Accordingly, pursuant to the provisions of subsection 188A(2) of the Act, it is hereby advised your application pursuant to subsection 188(1) of the Act has been refused.''

The agent was further advised that the request that the assessment be amended in accordance with sub-section 170(4) of the Act was to be considered and that the agent would be advised of the outcome as soon as practicable. The agent was informed that the taxpayer had 28 days under section 29 of the Administrative Appeals Tribunal Act 1975 within which to make an application to the Tribunal for review of the decision.

5. In a letter from the agent to the Appeals and Reviews Section of the Australian Taxation Office dated 25 May 1992 the agent requested a decision in the matter under sub-section 170(4) of the Act and referred to ``at least'' two occasions on which the agent had sought information on the matter. There was further correspondence between the parties before 14 December 1992 when the respondent advised the taxpayer that it was not considered that the taxpayer's case was on all fours with Hepples' case and that the request for an amendment by the taxpayer to his assessment was refused.

6. On 18 January 1993 the taxpayer lodged with the Tribunal an application for review of the decision of the respondent dated 14 February 1992. The taxpayer's objection to his assessment was therefore lodged more than 26 months beyond the 60 day time period within which to lodge an objection and the taxpayer's application to the Tribunal was lodged 10 months beyond the 28 day time period within which to lodge an application with the Tribunal. The taxpayer sought to extend the time within which to make an application to the Tribunal to 18 January 1993.

7. Part V of the Act, ``OBJECTIONS AND APPEALS'', was repealed by the Taxation Laws Amendment Act 1991. As was pointed out by Deputy President Forgie in the Tribunal's Decision No. 8580 decided on 11 March 1993:

``Sections 185 and 188A, together with the other provisions of Part V, were repealed by the combined operation of section 113 and Schedule 4 of the Taxation Laws Amendment Act 1991 (`the 1991 Amendment Act') and were effectively replaced by Part IVC, `Taxation Objections, Reviews and Appeals' in the Taxation Administration Act 1953 (`the TA Act'). Part IVC was inserted by section 112 of the 1991 Amendment Act. By virtue of the operation of section 114 of that same Act, the amendments effected by sections 112 and 113 applied

`... in relation to objections where the assessments, determinations, notices or decisions to which the objections related were notified, or were first notified, as the case may be, after the commencement of this section.'

The day fixed by Proclamation pursuant to sub-section 2(1) of the 1991 Amendment Act as the commencement of section 114, and hence of the amendments effected by sections 112 and 113, was 1 March, 1992.''

The Tribunal decided:

``In view of the date of commencement of the amendments effected by the 1991 Amendment Act, I consider that the application should be considered in the light of section 188 before its repeal.''

As the notification of the taxpayer's assessment in this application occurred before 1 March

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1992, in considering the application, the Tribunal will refer to the legislation which applied before 1 March 1992. The parties did not submit otherwise. In any event the first relevant period remains a period of 60 days within which to lodge an objection and the second period within which to lodge an application with the Tribunal remains 28 days.

8. During the course of the hearing the respondent's representative made a preliminary submission that, because the taxpayer had failed to give an acceptable explanation for the delay in lodging an application for review the Tribunal should not exercise its discretion to extend the time for such application. It was, he said, a necessary pre-condition for the exercise of the Tribunal's discretions that an acceptable explanation for the delay be put to the Tribunal.

9. The representative of the respondent referred the Tribunal to the decision of Mrs Dwyer, Senior Member, in
Re CSIRO and Barbara (1987) 11 ALD 447 at page 450 where Mrs Dwyer said:

``(7) This principle looks not only for an acceptable reason for the delay in seeking the extension of time but also to whether the grant of the extension is fair and equitable in the circumstances. Those two matters are the most significant on the facts before me and hence require further consideration. I propose to consider the concept of the extension being fair and equitable in the circumstances first because as Wilcox J said it is a pre-condition to the exercise of the discretion that the court or tribunal is satisfied that there is a reason why it is fair and equitable to the applicant that an extension should be granted. Only once this pre-condition is satisfied does the court or tribunal look to the other factors to consider whether on the balance of fairness the extension should be granted notwithstanding possible prejudice to the respondent or other policy considerations.''

Mrs Dwyer was referring to the decision of Wilcox J in
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305 where His Honour said at pages 310 and 311, in reference to section 11 of the Administrative Decisions (Judicial Review) Act 1977, which provides for an extension of time within which to lodge applications:

``Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The `prescribed period' of 28 days is not to be ignored (
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (
Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre- condition to the exercise of discretion in his favour that the applicant for extension show an `acceptable explanation of the delay' and that it is `fair and equitable in the circumstances' to extend time (
Duff v Freijah (1982) 43 ALR 479 at 485;
Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).''

10. In
Younger v Repatriation Commission (VG 263 of 1992), decided on 10 August 1992, Olney J provided an abbreviated summary of the principles expressed in Hunter Valley and went on to say:

``... It is however, inappropriate to regard the several principles as being discrete issues which can be determined separately... The applicant has in my opinion failed to show an acceptable explanation for the delay in seeking an extension of time within which to institute an appeal. But that is not necessarily decisive of this application. Other relevant factors must be weighed in the balance to ensure that the Court's discretion is exercised in a manner which is both fair and equitable in the circumstances of the particular case.''

The Tribunal has also considered the decision in
Maric v Comcare (SG 51 of 1992), decided on 12 February 1992, where at page 4 O'Loughlin J said in considering grounds of appeal that:

``... [It] was argued that the Tribunal erred in law by holding that the application was doomed because of the failure on the part of the applicant to offer an acceptable explanation for the delay.''

His Honour went on to say:

``But, as is the case with s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), (`the Judicial Review Act'),

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the section does not set out any criteria by reference to which the Tribunal's discretion to extend time for an application for review is to be exercised. Thus, as Northrop J. pointed out in
Duff v Freijah [1982] 62 FLR 280 at 285 (a case dealing with an application for an extension of time under the Judicial Review Act), the discretion is unfettered but must be exercised judicially having regard to the relevant facts.''

As was pointed out by Mrs Dwyer and O'Loughlin J, Wilcox J in Hunter Valley did not merely refer to the question of an acceptable explanation of delay, but also as to whether it was fair and equitable in the circumstances to extend time. O'Loughlin J said, in Maric v Comcare, at page 9:

``Thus the precondition for the exercise of the discretion is not limited to the question of delay but extends to aspects of fairness and equity.''

The respondent's written submission referred to the importance of the explanation of the delay in the exercise of the Tribunal's discretion, rather than suggesting that it was a condition precedent. In any event, I have decided that I should consider all matters put before me relevant to the exercise of my discretion and not determine the matter solely upon the ground of whether or not there was an acceptable explanation of delay.

11. The taxpayer gave evidence that he signed an agreement with his employer on 13 August 1987 which included clauses with respect to termination benefits. At that time he had no intention of terminating his employment. In consideration of the taxpayer entering into a restrictive covenant the agreement provided for a payment on termination. The taxpayer entered into the restrictive covenant on 16 December 1987. The taxpayer received advice from his agent, which he accepted, that the consideration would be treated as a capital gain for taxation purposes by the respondent.

12. The taxpayer retired from his employment in March 1988 and was paid the sum pursuant to the restrictive covenant. The taxpayer then calculated the sum he would receive from his employer after payment of taxation. The taxpayer subsequently instructed his agent to complete his income taxation return for the financial year ended 30 June 1988. The taxpayer received a Notice of Assessment and at that time he paid the respondent the amount in the assessment and he did not lodge an objection to the assessment.

13. On reading a report of Hepples' case in a newspaper the taxpayer rang his agent. They agreed that the taxpayer's circumstances were the same as the taxpayer in Hepples' case and his agent advised him to now object to the assessment in light of the High Court's decision. He gave instructions to his agent to lodge an objection. Sometime in February 1992 the taxpayer was advised by his agent by telephone that ``they had refused it but that the whole thing would just proceed...''. He asked his agent when he would receive his refund as he believed that his assessment would be amended under sub-section 170(4) of the Act. The taxpayer told the Tribunal that he understood the matter had been referred to the respondent's officers in Canberra. He did not seriously consider making an application to the Tribunal at that time as he ``... didn't see any real point in it because the respondent had said that they were going to give him a reply to his request to amend the assessment within a reasonable time''. Some discussion did take place between the taxpayer and his agent with respect to the interest which may be payable to him on the taxation already paid to the respondent, if the objection against the assessment was successful. The taxpayer understood that he was unlikely to be paid interest because of ``reasons of time''. He did not consider applying to the Tribunal as a process was continuing which would give him the result he wanted.

14. The taxpayer's agent told the Tribunal that the taxpayer had sought advice as to his liability for income tax as a consequence of any payments he may receive as the result of entering into a restrictive covenant. Considering the explanatory memorandum to the Income Tax Assessment Amendment (Capital Gains) Bill 1986 with respect to sub-sections 160M(6) and (7), the agent understood that sub-section 160M(7) was intended to catch payments arising as a result of restrictive covenants. On the taxpayer's instructions he included the payment ultimately received as a result of the restrictive covenant as assessable income in the taxpayer's income tax return and categorised it as a capital gain. It was not until the decision was handed down by the High Court in Hepples' case that his view changed. Having

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had discussions with the taxpayer the letter dated 14 October 1991 was sent to the respondent by the agent (paragraph 3 above). On receiving the letter from the respondent dated 14 February 1992 (paragraph 4 above) the agent had a telephone conversation with the taxpayer. A decision was made ``to let the matter be pursued under section 170''. The agent did not anticipate that the matter would go on for so long and he also anticipated that the taxpayer would succeed and therefore, in his opinion, any other action was premature. Following communication with the respondent the letter dated 14 December 1992 was then received.

15. The Tribunal finds that both the taxpayer and his agent were of the opinion that the assessment would be amended under sub- section 170(4) of the Act and that therefore there was no need to lodge an application with the Tribunal within 28 days after receiving the respondent's letter dated 14 February 1992.

16. It is the taxpayer's contention that an acceptable explanation of the delay has been provided by the taxpayer in that, in his opinion, (a) the facts of the matter are similar to the facts in Hepples' case and (b) another course of action was taken, that is, the taxpayer relied on the respondent's advice that with respect to the other course of action under sub-section 170(4), the taxpayer would be advised ``as soon as practicable'' (letter 14 February 1992). The Tribunal was referred to
Winter v DFC of T 87 ATC 4065; (1987) 18 ATR 307 where Burchett J said at ATC page 4068; ATR page 310:

``In those circumstances, it can fairly be said that there was some reason for the applicant to defer incurring substantial legal costs pending determination of all the objections... Furthermore, the objections must have made it clear to the decision-maker that the matter was not finally concluded...''

17. The respondent contended that there was no factor beyond the control of the taxpayer which led to the delay and that therefore no acceptable explanation had been provided to the Tribunal; the taxpayer had rested on his rights and there was no merit in the objection and it would be contrary to the public interest to extend time.

18. In this application the taxpayer did not alert the respondent, in the first instance, that the matter was not finally concluded because the taxpayer himself considered that it was concluded. He paid his tax. It was not until he became aware of Hepples' case that he changed his mind and lodged his objection and request for amendment, then some 29 months after the assessment. It may only have cost the taxpayer a lodgement fee to the Tribunal rather than substantial legal costs, on 14 February 1992 or within the 28 days thereafter to protect his rights, in the second instance, when the respondent refused on 14 February 1992 to treat the objection as having been duly lodged. The taxpayer's only objection had been considered and the respondent had advised him of his rights. In Winter's case there was a number of objections to be decided and I am therefore satisfied that Winter's case is not directly relevant to this application. It should also be noted that the decision to rely on the request under sub-section 170(4) and not to apply to the Tribunal for review was a deliberate choice made with the aid of professional advice.

19. Had the taxpayer lodged an objection to his notice of assessment within 60 days of receiving the assessment in May 1989 there would, at that time have been no relevant decision by way of precedent, Hepples' case not being heard by the Full Federal Court until 27 February 1990, upon a case stated by the then President of the Tribunal, and handed down on 28 June 1990. Hepples was the first case before the Federal Court raising the construction of the Act with respect to capital gains and the interpretation of sub-sections 160M(6) and (7). Had the taxpayer lodged an objection to his assessment within 60 days of 19 May 1989 and contested the meaning of those provisions he may have stood in the shoes of Mr Hepples. The Tribunal must decide whether or not the taxpayer should now have the chance to find out, if following Hepples' case, he should have paid tax on the amount he received from his former employer for entering into a restrictive covenant.

20. The respondent in the letter to the taxpayer dated 14 December 1992, expressed the opinion that Hepples' case:

``[I]s not considered to be determinative of the taxability of restrictive covenants generally.''

went on to say:

``It appears that if the Hepples case had been a full hearing rather than a stated case the assessment would have been upheld... A further complication is that facts which were

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not included in the stated case became crucial to the ultimate decision, with some judges making different inferences from others. One of the most important facts missing was whether entering into a restrictive covenant was in relation to or had an effect on the goodwill of the employer. In the vast majority of restrictive covenant cases it is expected that a sufficient connection exists and would be capable of being established.''

The respondent advised the taxpayer that it was not considered that his case was on all fours with Hepples' case, that there was a pre- existing asset and that therefore sub-section 160M(7) of the Act would apply to him. On the other hand, Mason CJ in Hepples' case said that:

``The provisions of s. 160M(5), (6) and (7) of the Income Tax Assessment Act 1936 (Cth) (`the Act') and provisions to which they are related are extraordinarily complex. They must be obscure, if not bewildering, both to the taxpayer who seeks to determine his or her liability to capital gains tax by reference to them and to the lawyer who is called upon to interpret them.''

21. The Chief Justice (page 4810) agreed with Brennan J that the asset referred to in paragraph 160M(7)(a) is an asset which exists when the Act or transaction in relation to it takes place or the event affecting it occurs. Brennan J said at page 4813:

``In the present case, the appellant did not own any asset, being any form of incorporeal property, of which he disposed by entering into the deed. The covenant not to divulge or use Special Processes or Trade Secrets and the covenant to assign any patent protection for an invention made as a result of using a Special Process did not dispose of any asset or part of an asset theretofore owned by the appellant. Nor did the restrictive covenant against competition with Hunter Douglas. In one sense it may be said that that covenant operated on the appellant's right to trade but such a right, like a right to work, is not a form of property.''

Brennan J went on to say at page 4815:

``Thus, by the deed entered into by the appellant and Hunter Douglas, the appellant conferred on Hunter Douglas the benefit of his covenant to continue to be bound by cll. 2, 3, 4 and 5 of his Employment Agreement and that benefit, becoming part of the goodwill of the business of Hunter Douglas, was assignable by it as a proprietary right. By his entry into the deed, the appellant vested in Hunter Douglas an asset that had no previous existence.''

and further at page 4816:

``Whereas sub-s. (6) operates only when the asset to which it relates has no existence prior to the act of disposal, sub-s. (7) operates only when there is an asset in existence prior to the act of disposal, being the asset referred to in para. (a).''

Brennan J held that Hepples' case fell within subsection 160M(6) of the Act and not sub- section (7) and that the amount should have been included in Mr Hepples' assessable income. However, because of the views of the majority, Brennan J agreed with a course of action proposed by the Chief Justice which was to allow Hepples' appeal.

22. This is not the first application to the Tribunal with respect to a restrictive covenant payment. In Case Y58,
91 ATC 497 Mrs Balmford, senior member (as she then was) considered an application to extend time for approximately four years, the applicants not having objected to assessments of 4 May 1987 because of written undertakings between the parties which they then believed had resolved the taxation issue in the case. The effect of Hepples' case on those applicants was in doubt, it having been handed down after the hearing but prior to the handing down of the decision. Mrs Balmford considered that it was not appropriate or desirable to consider the merits of the matters as they were not ``so obvious, either way'' to take them into account. The need for finality in disputes (
Lucic v Nolan (1982) 45 ALR 411 at 416) was however considered relevant by Mrs Balmford as were issues of fairness between the applicants and other persons in like positions (
Wedesweiller & Ors v Cole & Ors (1982) 47 ALR 528 at pages 534 to 535). Similarly, those are factors which I consider relevant to the exercise of my discretion in this application.

23. In Case Y58 the taxpayers sought to lodge objections to the assessment due to retrospective changes to the relevant legislation. Mrs Balmford said at page 502:

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``The enactment of retrospective legislation gives rise to many difficulties and injustices. In this case, it has prompted the applicants to seek, after the expiration of four years, to reopen a matter which was settled by carefully considered agreements, initiated by the applicants, involving other parties besides the applicants and the respondent, and in which parties all had skilled advice available to them. I do not think that it is in the public interest that an extension of time be granted to allow the reopening, after such a lapse of time, of agreements of that kind.''

In this case the fact that there had been a carefully considered settlement led Mrs Balmford to refuse to grant an extension of time, but, in addition to the factors referred to above her comments are instructive for cases where it is sought to extend time in order to reopen an apparently settled matter. If legislation has been amended, it is generally presumed that there may be no going back to seek advantages retrospectively. Here, however, legislation has not been amended but rather, the legislation has been interpreted by a court. Is there merit in this application such that the taxpayer should be entitled to have his circumstances reviewed in light of the interpretation now given by the High Court to sub-section 160M(6) and (7) of the Act? On the other hand, would extending time in this application unsettle the rights of others, the applicant having rested on his rights and not chosen himself to challenge the respondent's interpretation of the Act.

24. In deciding whether or not to extend time I am satisfied that I should take into account both the delay by the taxpayer in lodging his objection to his assessment and the merits of the substantive issue between the parties. The taxpayer did not lodge an application with the Tribunal within the 28 day period after the respondent refused to treat the objection as having been duly lodged. For a second time he chose not to avail himself of rights granted to him by the Act. The merits of the taxpayer's argument that his circumstances would now be found, following Hepples' case, to be such that his original assessment was incorrect are not such as to persuade me that it is fair and reasonable in the circumstances that he should now have that opportunity, not having availed himself of the opportunity within time. There is merit in his contentions but that factor must be weighed in the balance with the other principles relevant to the exercise of the Tribunal's discretion. I am satisfied that it would now unsettle other people, not just those taxpayers who may consider that their circumstances may have been similar to Mr Hepples, but also those taxpayers where a fresh interpretation of legislation may call into question earlier decision-making.

25. The delay in lodging the objection to the assessment has been explained in terms of the fact that Hepples' case did not exist until October 1991. Hepples' case was therefore not the cause of the initial delay, for at that time, the taxpayer did not perceive any delay. The Tribunal therefore finds that Hepples' case was not the cause of any delay between July 1989 and October 1991. The taxpayer did not alert the respondent to the fact that the matter was not finally concluded because the taxpayer himself considered that it was concluded until he read Hepples' case and lodged his objection on 14 October 1991 some 29 months after paying his tax as assessed. Whether or not the taxpayer's circumstances are on all fours with Hepples' case is now an issue between the parties. However, the taxpayer had an opportunity to dispute his assessment and to challenge the respondent's interpretation of sub-sections 160M(6) and (7) when he first received his assessment. He chose not to do so.

26. A taxpayer should, within the time allowed, decide whether or not to challenge the prevailing interpretation of legislation if that interpretation goes against him. The Tribunal is not deciding whether the merit of the taxpayer's case is such that there should be leave to appeal. The issue is whether a statutory time limit should be extended. There have been two periods of delay in this application. The question before the Tribunal is the delay in lodging the application with the Tribunal. I am satisfied that it is not in the public interest to extend time taking into account the length of the overall delay and my finding that the taxpayer did not alert the respondent to the possibility he would challenge the respondent's interpretation of section 160M if the respondent did not amend his assessment under sub-section 170(4) of the Act. In coming to this decision I find that no prejudice to the respondent has been demonstrated, apart from the need for finality with respect to carrying out the respondent's duties under the Act. I also note

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the amendments to sub-sections 160M(6) and (7) by the Taxation Laws Amendment Act (No. 4) 1992 and the taxpayer's contention that the ``floodgates'' would not open were the Tribunal to extend time. It is the principle of further interpretation and its effect on finality in decision-making, rather than consideration of the number of cases which may arise should time be extended in this instance, which I have considered important in exercising my discretion.

27. The advice to the taxpayer, by letter dated 14 February 1992, of his entitlement to apply to the Tribunal for review of the decision, should have alerted the taxpayer to the respondent's position that, unless the taxpayer exercised his right of review, the matter of the objection was concluded regardless of any action he may take under sub-section 170(4). It should also have alerted the taxpayer to the possibility that the request for amendment under sub-section 170(4) might also be fruitless and that he should act to preserve his right of application to the Tribunal. In Winter's case (above) it was conceded that there was ``a duplication of assessments such that portions of the same income had been attributed to more than one taxpayer''. The applicant's response to the three assessments was to lodge objections by the required dates. Burchett J said at page 4068 that the objections must have made it clear to the decision-maker that the matter was not finally concluded. That comment should be placed in the context of the facts of that case. Objections were lodged with the respondent with respect to three assessments and almost a year passed before decisions were made rejecting the objections. Applications were then made to the Administrative Appeals Tribunal for review of those decisions. It was only at this stage that applications were made to the Federal Court under the Administrative Appeals (Judicial Review) Act 1977 for review of the original assessments, by that time, well beyond the period within which to make such applications. It was also in this context that Burchett J. said that there was a reason for the applicant to defer further legal costs pending the outcome of all of the objections. It is a very different case that is presently before the Tribunal in which there was no objection made for a period of 29 months after the assessment and, after the respondent refused to treat the late objection as having been duly lodged, there was no application for review made to the Tribunal for another 10 months.

28. There was an issue of some importance to the taxpayer which he sought to reopen, although in one aspect it may have less public importance since the amendment to sub- sections 160M(6) and (7) of 1992. Considering the circumstances of this case and fairness and equity between the parties, the failure by the taxpayer to challenge the respondent's interpretation of section 160M within time and his failure to protect his rights by lodging an application with the Tribunal, satisfy me that the taxpayer should not have the opportunity to now seek another assessment even if that would enable the respondent to raise those matters he considers he did not have an opportunity to raise in Hepples' case. The applicant has rested on his rights.

29. I have been concerned by the delay of the respondent in making a decision under sub- section 170(4) of the Act but, after considering the advice in the letter to the taxpayer dated 14 February 1992, and the lack of action by the taxpayer in not lodging an application with this Tribunal until 18 January 1993, I am not persuaded that the respondent should be taken to have been aware that the taxpayer was contesting the decision. Having considered the merits of the substantive issue between the parties I am not persuaded that the applicant has necessarily suffered a financial loss as put by his agent, although I am not expressing any concluded view as to the merits.

30. The Tribunal therefore decides not to extend the time within which to lodge this application.