Case: Hepples v Commissioner of Taxation [1992] HCA 3 ; (1991-1992) 173 CLR 492
Outcome: cited
These are not the only principles of statutory construction which are at large in this case. The GST Act is a taxing statute. Giving full measure to the reminders offered in Project Blue Sky v ABA , it remains the case, in my opinion, that the subjection of a person to tax by Parliament requires clarity of language, not inexactitude or indirect references. Especially that is so where the asserted subjection of a particular person to tax is counter intuitive to what one might expect having regard to the prevailing general law position and the otherwise usual incidence of the tax in question. I conceive that the following passage from the judgment of Deane J in Hepples v Commissioner of Taxation [1992] HCA 3 ; (1991-1992) 173 CLR 492 at 510-511 is indicative of the contemporary approach to take to the construction of a taxing statute: There has been a marked, and justifiable, tendency in recent times for the courts to construe taxation provisions as being directed to the substance as well as the form of transactions to an extent which previously would have been thought to be inconsistent with statements of high authority in cases such as Partington v. The Attorney-General (1869) LR 4 HL 100, at p 122, and Inland Revenue Commissioners v. The Duke of Westminster [1936] AC 1 , at pp 20, 24-25, 28, 31. Nonetheless, at least in cases where tax avoidance is not involved and where the substance of relevant transactions is not concealed by artificialities of form, the basic 'principles of statutory construction' of taxing provisions remain those identified and explained by Rich and Dixon JJ. in their joint judgment in Anderson v. Commissioner of Taxes (Vict.) [1937] HCA 24 ; (1937) 57 CLR 233 , at p 243. It is appropriate to repeat what their Honours there said: In Brunton v. Commissioner of Stamp Duties ((1913) AC 747 , at p 760), Lord Parker of Waddington, speaking for the Privy Council, says: "The intention to impose a tax or duty, or to increase a tax or duty already imposed, must be shown by clear and unambiguous language and cannot be inferred from ambiguous words." This rule he again emphasized in Attorney-General v. Milne ([1914] AC 765 , at p 781), where he said, in the House of Lords: "The Finance Act is a taxing statute, and if the Crown claims a duty thereunder it must show that such duty is imposed by clear and unambiguous words." In Ormond Investment Co. v. Betts ([1928] AC 143 , at p 151), Lord Buckmaster, although differing from the majority of their Lordships and holding that in the particular case the Crown had satisfied the burden lying upon it, described the rule as a "cardinal principle ... a principle well known to the common law that has not been and ought not to be weakened - namely, that the imposition of a tax must be in plain terms." He added: "The subject ought not to be involved in these liabilities by an elaborate process of hair-splitting arguments." Lord Atkinson, who agreed in the decision of the House, expressed the rule as follows (at p 162): "It is well established that one is bound, in construing Revenue Acts, to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by an Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of the statute must be adhered to, and that so-called equitable constructions of them are not permissible". 28 Before proceeding to a more detailed consideration of the provisions of the GST Act it is instructive to consider some aspects of the general position of liquidators. 29 When a corporation is being wound up in insolvency, the liquidator's duty is to take into his custody or under his control all of the property to which the corporation is or appears to be entitled: s 474(1) of the Corporations Act . Control of the corporation concerned is removed from the hands of its director or directors and vested in the liquidator for the purposes of the winding up of the corporation in insolvency in accordance with the provisions of the Corporations Act : s 471A(1) of the Corporations Act .