Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: discussed
The applicant lodged notices of objection against the ATO assessments and the penalty imposed. As indicated earlier in this judgment, on 27 September 2002 the respondent disallowed the applicant's objections. TRIBUNAL DECISION 5 In the Tribunal, the submissions of the applicant and the subsequent findings were as follows: 1. The applicant contended that the activities of the applicant in relation to the land were in the nature of a profit-making venture. However the learned Senior Member was not persuaded by that characterisation of the applicant's business activity (Reasons for Decision para 34), and was of the view that the land was a capital asset, with the result that the loss on its sale was a capital loss (para 35). 2. The applicant contended that company losses could be carried forward, on the basis that the "continuity of ownership" test in s 80A ITAA 1936 had been satisfied, and during the relevant period the beneficial ownership of shares in the applicant remained with Mr Paul Doumany; or that the "same business" test in s 80E ITAA 1936 had been satisfied. The Senior Member observed that, given his findings concerning the characterisation of the applicant's business activity and the resultant loss, it was strictly unnecessary for him to reach a decision on either of these issues. In any event however, the Senior Member was satisfied that: &#8226; while the legal ownership of the shares in the applicant may have remained with Mr Doumany, at the time the loss on the sale of the land was incurred the beneficial ownership of shares in the applicant rested in Mr Iwasaki, having been transferred to Mr Iwasaki on or before 20 December 1991. Accordingly the applicant failed on the "continuity of ownership" test in s 80A (para 40 ); and &#8226; there had been a significant break in the business activities of the applicant between November 1992 and 1996, and the applicant therefore failed on the "same business" test in s 80E (para 45 ). 3 . The Tribunal noted that the applicant bore the onus of proving the objection decisions should have been made differently: s 14ZZK(b) Taxation Administration Act 1953 (Cth) ("TA Act") (para 27). Although the Senior Member was not prepared to draw an adverse inference from the failure of Mr Doumany to give evidence in accordance with the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (para 28), he noted that the failure of Mr Doumany to give evidence meant that it was more difficult for the applicant to show that the Commissioner's decision was wrong (para 29). 4. The applicant contended that a penalty of 75% was inappropriate because it acted with the advice of senior counsel. However the Senior Member was satisfied that the penalty of 75% under s 226J ITAA 1936 was appropriate (para 50). QUESTIONS OF LAW RAISED ON APPEAL 6 The questions of law raised on appeal in this case were as follows: a. are the losses incurred by the applicant allowable as deductions under s 51(1) ITAA 1936? b. if yes to a., in the relevant years of income: i did s 80A ITAA 1936 apply to deny the applicant deductions?; or ii did s 80E ITAA 1936 apply to allow the applicant deductions? c. if the applicant was wrong in claiming deductions, were penalties correctly imposed under s 226J ITAA 1936? d. did the Tribunal err in instructing itself as to the applicant's onus of proof and as to its role in reviewing the objection decision? e. did the Tribunal err in not providing reasons for its rejection of the preponderance of the evidence as to the beneficial ownership of the shares? f. did the Tribunal err in finding that the applicant was not carrying on the same business in the relevant years within s 80E? g. could a reasonable tribunal have made, on the material before it, the findings made? h. does the Tribunal's apparent error of fact namely that Mr Doumany was prosecuted in the criminal courts for causing the applicant to claim the deductions show that the Tribunal failed to give due consideration to the material before it, or give rise to a reasonable apprehension of wrongful bias against the applicant? 7 I shall address each of these questions in turn. a. ARE THE LOSSES INCURRED BY THE APPLICANT ALLOWABLE AS DEDUCTIONS UNDER SECTION 51(1) ITAA 1936? 8 As the relevant loss occurred in the 1993 year of income both applicant and respondent accepted that the relevant statutory provision was s 51(1) ITAA 1936. 9 The applicant submitted that: &#8226; the Tribunal applied the wrong test of deductibility to the facts as found &#8226; the Tribunal did not refer to the relevant test of when a profit from sale of a capital asset as opposed to the proceeds of sale of a revenue asset was on revenue account, which it submitted was whether the asset was acquired with a purpose or intention of profit-making by sale . This, the applicant submitted, was the relevant inquiry, not whether the land was trading stock or whether the gross proceeds were on revenue account &#8226; the Tribunal failed to direct itself as to the proper test of whether land is acquired as part of a profit-making undertaking, being whether one of the purposes of its acquisition, rather than the purpose, was profit-making by sale. &#8226; the test was not whether the applicant was in the business of property development, with the land being trading stock: Moana Sand Pty Ltd v Federal Commissioner of Taxation (1988) 88 ATC 4897. In particular, the applicant submitted that in Moana Sand 88 ATC 4897, the profit made by the taxpayer was held to be income because one of the taypayer's purposes was profit-making by subdivision and sale, even though the subdivision was not in fact carried out and the taxpayer had to sell the land en globo due to a compulsory acquisition. The applicant also cited in support of its case Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 and Westfield Ltd v Federal Commissioner of Taxation (1991) 28 FCR 333. 10 In response, the Commissioner submitted that: &#8226; the necessary requirement of deductibility under s 51(1) is that the loss is "incidental and relevant" to the income-earning operations of the taxpayer &#8226; the ultimate question must remain whether the loss incurred had the necessary connection with the applicant's gaining or producing assessable income, or the carrying on of its business &#8226; the question of whether the taxpayer carries on a business is a question of fact &#8226; citing Gibbs J in Commissioner of Taxation v Williams [1972] HCA 31 ; (1972) 127 CLR 226 at 249, proceeds resulting from the mere realisation of a capital asset are not income, even though the realisation is carried out in an enterprising way so as to secure the best price. However, a distinction needs to be drawn between mere realisation of an asset, and development and improvement of land to such a marked degree that it is impossible to say that it is mere realisation of an asset, as was the case in Federal Commissioner of Taxation v Whitford's Beach Pty Ltd [1982] HCA 8 ; (1982) 150 CLR 355 &#8226; the test propounded by the applicant was referable to the former s 26(a) ITAA 1936 and was of no application in this case. The land in question was purchased subsequent to the introduction of the capital gains tax provisions in September 1985 and s 26(a), the more recent s 25A and s 52 have no application to the transaction &#8226; profits brought to tax under statutory income provisions are not to be equated with net gains which may well fall within the ordinary concept of income &#8226; in this case the Tribunal found that the applicant did not acquire the land for the purpose of subdivision, development and sale, and the steps taken towards further development of the property were so limited that the whole undertaking could not be said to be comparable to the situation in Whitford's Beach [1982] HCA 8 ; 150 CLR 355 (Reasons for Decision para 32). Section 51(1) ITAA 1936 11 This section has been interpreted many times, and at the highest judicial level in Australia. At the relevant time it read as follows: All losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing such income, shall be allowable deductions except to the extent to which they are losses or outgoings of capital, or of a capital, private or domestic nature, or are incurred in relation to the gaining or production of exempt income. 12 In the context of the section it is clear that: &#8226; the expression "incurred in gaining or producing the assessable income" requires that the occasion of the loss or outgoing should be found in whatever is productive of the assessable income, or if none be produced, would be expected to produce assessable income: Ronpibon Tin NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47 at 57 &#8226; the reference to losses and outgoings "necessarily incurred in carrying on a business for the purpose of gaining or producing such income" adds little to the operation of the leading words "losses or outgoings to the extent to which they are incurred in gaining or producing assessable income": Ronpibon Tin 78 CLR at 56 &#8226; losses and outgoings of capital are clearly excluded from the operation of the section even if they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing such income. 13 In the case before the Senior Member, a key issue in dispute was whether the loss in this case should be characterised as capital or income. If the loss was a capital loss, it would not be an allowable deduction within the meaning of s 51(1). Capital vs income 14 In a regulatory environment where taxation legislation is as extensive as it is complex, the issue in question before the Senior Member was one of deceptive simplicity. Were the losses claimed by the applicant to be characterised as capital or revenue/income? Despite the plethora of cases over the years considering the distinction between income and capital (to paraphrase Wilson J in Whitford's Beach 150 CLR at 393 the battle lines drawn by the parties in this case have a familiar ring) the outcome of each case will invariably depend on the facts of that case. Before turning to the decision of Senior Member McCabe, it is useful to summarise general legal principles relevant to this question. Definitions 15 Despite extensive legislative intervention over the years to identify forms of "income" and "capital" for the purposes of Commonwealth taxation legislation, neither term is legislatively defined. It is clear that, because of the traditional characterisation of receipts and expenditure as either income or capital, the term "income" has not extended to all forms of gain; nor has loss in revenue terms included all forms of loss (for an interesting discussion of this issue see the article by Professor Jeff Waincymer "If at first you don't succeed... reconceptualising the income concept in the tax arena" (1994) 19 MULR 977). However as observed by Jordan CJ in Scott v Commissioner of Taxation (1935) 35 SR (NSW) 215 at 219 in relation to "income": The word "income" is not a term of art, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income, must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to be applied for arriving at the taxable amount of such receipts... 16 A consequence of taxation reform has been that the traditional distinction between gains characterised as either income or capital has blurred over time, with obvious examples being the introduction of concepts of "statutory income" in the ITAA 1936 and Income Tax Assessment Act 1997 (Cth), and the treatment of profits made in respect of disposal of assets acquired after 19 September 1985 following the introduction of the capital gains tax regime in Australia. However, notwithstanding what has been termed the almost arbitrary nature of the distinction (note for example comments of Greene MR in Inland Revenue Commissioners v British Salmson Aero Engines Ltd [1938] 2 KB 482 at 498) the continued existence of that distinction means that the task of identifying transactions as related to either income or capital becomes a live issue in many cases. 17 This matter is one such case. As I have already noted, the applicant originally characterised the loss from the sale of the relevant land as capital, but subsequently, and now before the Court, claims that the loss was revenue according to ordinary principles. There was no issue in contention that the loss was deductible according to statutory concepts of revenue. 18 The traditional delineation between income and capital, so far as referable to outgoings, was described by Dixon J in Sun Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 72 ; (1939) 61 CLR 337 at 359, 363 as follows: The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure or organization set up or established for the earning of profit and the process by which such an organisation operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss...There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment. (These principles have been considered and applied many times by Australian courts: see for example Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 at 645-646; Williams [1972] HCA 31 ; 127 CLR 226, Whitford's Beach [1982] HCA 8 ; 150 CLR 355, United Energy Ltd v Commissioner of Taxation (1997) 78 FCR 169 per Sundberg and Merkel JJ at 191-192; Lamont v Commissioner of Taxation [2005] FCA 513 ; Macquarie Finance Limited v Commissioner of Taxation [2005] FCAFC 205 at [105-106] , and Commissioner of Taxation v Citylink Melbourne Ltd [2006] HCA 35 per Crennan J (Gleeson CJ and Gummow, Callinan and Heydon JJ agreeing) at [147-154] and per Kirby J at [20-25].) 19 I shall return to this principle later in this judgment. Capital or revenue and real property 20 Real property is commonly regarded as a capital asset. Generally speaking, unless a sale of real property is made in the operation of a business the resulting profit will not be income according to the ordinary concepts and usages of mankind. The courts have historically addressed the issue of whether a gain made by a taxpayer, in relation to the sale of what would otherwise be a capital asset, was capital or income, in terms of whether the taxpayer was merely realising the asset (in which case the gain is characterised as a capital gain), or whether the gain was made in the operation of business in carrying out a scheme of profit-making (in which case the gain is characterised as income or revenue): see for example California Copper Syndicate v Harris (1904) 5 TC 159 at 165-166, Commissioner of Taxes v Melbourne Trust Limited [1914] AC 1001 at 1009, Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22 ; (1928) 41 CLR 148 at 151, and Whitford's Beach 150 CLR per Gibbs CJ at 367-368, Mason J at 372, Wilson J at 400. 48 In its Notice of Appeal, the applicant linked this question of law with paras 27-30 and para 35 of the Reasons for Decision of the Tribunal. In these paragraphs, in the context of considering whether the loss the applicant sought to carry forward was more appropriately characterised as a capital or income loss, Senior Member McCabe said as follows: 27. Section 14ZZK(b) says the taxpayer has the burden of proving the objection decisions should have been made differently. The Commissioner's decision effectively creates a presumption the applicant must rebut if he or she is to succeed in an appeal: see, for example, McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284 at 314-315 per Jacobs J. That may be a difficult task where the taxpayer does not call any witnesses to explain a paper trail that does not speak for itself, or which is consistent with the Commissioner's view or even ambiguous. 28. The Commissioner has asked me to draw adverse inferences against the taxpayer in light of the fact the applicant has not called Mr D to give evidence. Mr D was in the best position to explain the transactions into which the applicant entered. His evidence would probably have been of assistance to the Tribunal. Mr Hack, for the Commissioner, says the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 should apply. That rule permits me to draw an adverse inference from the failure to call the witness in appropriate circumstances. One of the circumstances in which I may not draw an adverse inference is where there is a reasonable excuse for the failure to call the witness. I think there is a reasonable excuse in this case. That excuse can be gleaned from the submissions made in relation to the application for a suppression order: see A Taxpayer and Commissioner of Taxation [2004] AATA 398. Mr D has apparently declined to answer questions on the basis he might expose himself to a criminal prosecution. There is little point in calling a witness in those circumstances. 29. While I decline to draw an adverse inference from Mr D's failure to appear, that failure inevitably makes it harder for the applicant to show the Commissioner's decision was wrong. 30. The starting point of the analysis is the well-established rule that the proceeds from the 'mere realisation' of a capital asset will not give rise to income according to ordinary concepts and any loss incurred on the disposal of the asset will not lead to a loss that can be offset against other income of the taxpayer: see Federal Commissioner of Taxation v NF Williams (1972) 72 ATC 4188 per Gibb J at 4195. If the asset was more like trading stock that was bought and sold (or bought, developed, sub-divided and sold) as part of a business of developing and dealing in land, the law might treat the proceeds of the sale as income : see, for example, Whitfords Beach Pty Ltd v Federal Commissioner of Taxation (1982) 82 ATC 4031. ... 35. I have already observed the applicant would have difficulty establishing the Commissioner's objection decisions were wrong the task required of the applicant by s 14ZZK of the TAA in circumstances where the taxpayer did not call any witnesses and relied instead on inferences drawn from the evidence. I do not think the applicant has discharged that burden. The applicant has not persuaded me the land was anything other than a capital asset. The proceeds of the sale of the land should therefore be regarded as the proceeds of a mere realisation of a capital asset. The loss on that sale was a capital loss. The objection decisions under review ought to be affirmed in that respect. 49 On consideration of the grounds of appeal, the applicant's submissions, and Reasons for Decision of the Tribunal highlighted by the applicant, two issues emerge, namely: a. whether the Tribunal incorrectly applied the onus of proof borne by the applicant; and b. whether the Tribunal improperly applied the rule in Jones v Dunkel [1959] HCA 8 ; 101 CLR 298. 55 In relation to the second issue concerning the rule in Jones v Dunkel [1959] HCA 8 ; 101 CLR 298, the applicant contends as a ground of appeal that the Tribunal erred in law by correctly ruling that the rule in Jones v Dunkel [1959] HCA 8 ; 101 CLR 298 did not apply, but then in fact applying that rule. The key aspect of this well-known rule for present purposes is that the unexplained failure by a party to call evidence or witnesses may, not must, in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case (see Heydon JD, Cross on Evidence (7th Australian ed, Butterworths, 2004) at p 39. 56 Although the applicant also referred to paras 35, 39, 40, 41 and 49 of the Tribunal's Reasons for Decision in connection with this question of law, this contention is particularly relevant to paras 28 and 35 where the Tribunal: &#8226; noted the rule, but observed that it should not apply it because the applicant had a reasonable excuse for the failure to call the witness (para 28); and &#8226; said that the applicant had not discharged its burden of proof (para 35). 57 Paragraphs 39, 40, and 41 relate to carrying forward losses and continuity of beneficial ownership (and hence are relevant to question e), whereas para 49 refers to the penalty imposed on the applicant (which I have already considered) and the alleged prosecution of Mr Doumany which I will discuss later in this judgment. 58 In para 28, the Tribunal made it clear that the task of the applicant in discharging its burden of proof was made more difficult because it did not call Mr Doumany as a witness. However the Senior Member also made it clear that he made his decision based upon the evidence that was before him, and provided reasons to this effect. I am not persuaded that that the Tribunal in fact applied the rule in Jones v Dunkel [1959] HCA 8 ; 101 CLR 298, either unconsciously (as submitted by the applicant) or otherwise. Given the history of this matter, and Mr Doumany's involvement in the affairs of the applicant and all relevant transactions the subject of this application, it is obvious that his evidence would have been important in these proceedings. In light of this, contrary to the submissions of the applicant, there were very good reasons for the Tribunal to take the view that the failure of the applicant to call Mr Doumany as a witness made the applicant's task of discharging its burden of proof more difficult in these proceedings. However this does not mean that the Tribunal drew inferences adverse to the applicant from its failure to call Mr Doumany as a witness. Further, the examination by the Tribunal of whether the loss should be characterised as income or capital, including consideration of the facts as presented to the Tribunal, suggests that the Tribunal did in fact give careful consideration to such evidence as was before it. 59 Accordingly the answer to question d raised on appeal is "No". 60 I have a number of observations concerning questions e and f. Does question e raise a question of law?