Case: Davis v Deputy Federal Commissioner of Taxation 2000 ATC 4201
Outcome: referred to
Section 5 of the STEC Act stipulates by subsection (1) that '[s]ome exemption Items require the exemption goods to be used in a particular way or by a particular person' , and in the Table thereafter set out in that section headed Use requirements for Schedule 1 , there appears ( inter alia ) under the column heading Use requirement that the ground for quoting must be the 'intended use by the quoter [maintained] during the whole of the statutory period' . The Commissioner pointed out uncontroversially that the operation of the statutory period in the subject circumstances was required by that Table to start at the time when the goods are first applied to a person's own use in Australia (the latter expression reflecting what I have earlier identified as the statutory abbreviation AOU ), and to end 2 years after the time of that first application to the person's own use. However the Commissioner contended controversially that '[i]t is to be inferred from the objective character of the relevant goods that it was [Lindsay's] intention at the time of purchase [thereof] to use the goods as part of or in conjunction with the road vehicles it used in its business of freight transport', being an intention 'borne out by the actual subsequent use made of the goods'. I was referred in that regard to the opinion expressed by Hill J in Davis v Deputy Federal Commissioner of Taxation 2000 ATC 4201 to the effect that the best evidence of purpose will ordinarily be found in the use to which the goods are in fact put by the taxpayer, a principle the applicability whereof was common ground. However that assertion of the Commissioner as to Lindsay's intention understated Lindsay's reasons for purchasing the relevant goods, namely the critical objective of maintaining the temperature, and thereby the condition, of perishable goods in transit. 31 It is appropriate at this point of recording the respective principal submissions of the parties to revert to the threshold theme of the Commissioner's case in relation to the definition contained in s 3(2) of the STEC Act of a general-purpose road vehicle, and the qualified exclusion by subsection (3) of each of Items 2 and 18 of a general-purpose road vehicle , subject to exceptions not here material. The Commissioner's contention was that the words road vehicle are '... alone... sufficiently wide to connote any type of vehicle which travels on the road provided it is used for the transport of persons or goods'. As will be seen, however, more is required to render that broad contention wholly supportable by the provisions of Schedule 1 falling for consideration in the present context . The expression 'any type of vehicle' is too imprecise as such in the context of the complexity of the STEC Act and Schedule 1 thereto. 32 The Commissioner drew further attention nevertheless to the following non-inclusive definition of parts further appearing in s 3(2) of the STEC Act: 'parts, in relation to road vehicles, includes: (a) bodies for those road vehicles (including insulated bodies, tank-bodies, and other bodies designed for the transport or delivery of goods or other property of particular kinds); (b) underbody hoists, and other equipment or apparatus of a kind ordinarily fitted to road vehicles for use in connection with the transport or delivery of goods or other property by those road vehicles.' The Commissioner emphasised in particular the words 'insulated bodies' and 'apparatus of a kind fitted to road vehicles for use in connection with the transport or delivery of goods... by those road vehicles', asserting that the same would cover the refrigeration unit. Whether however the definition extended to the rigid body or the reefer was not seemingly the subject of specific submission by the Commissioner.