KAP Motors Pty Ltd v Commissioner of Taxation
Document type: Decision Impact Statement
Venue: Federal Court of Australia (NSD 2070 of 2006)
Judgment date: 28 February 2008
Date published: 9 September 2011
Decision outcome: Adverse.

Summary of decision:
Outlines the Tax Office's response to this case which concerned the entitlement to a refund for GST that was overpaid because of a mistaken belief concerning the GST treatment of holdback payments that motor vehicle dealers receive from distributors.

Overview of facts:
The taxpayers carried on the business of retail dealers in new motor vehicles. They entered into dealership agreements with various motor vehicle manufacturers/distributors and also entered into agreements with finance companies, commonly referred to as 'floor plan arrangements' to finance the acquisition of new motor vehicles from those motor vehicle distributors. | Under the floor plan arrangements, the taxpayers acquired possession of, and subsequently title to, motor vehicles for sale to retail customers in the following way: • They would order a motor vehicle from a motor vehicle distributor on behalf of a finance company. • The motor vehicle distributor would sell the motor vehicle to the finance company and would issue an invoice in relation to the sale of the motor vehicle to the finance company. • The finance company would bail the motor vehicle to the taxpayers and the motor vehicle distributor would deliver the motor vehicle to the taxpayers for display and sale. • They would negotiate the sale of the motor vehicle to the ultimate retail customer. Immediately prior to sale to the customer, the taxpayers would purchase the motor vehicle from the finance company. Until that time, the motor vehicle would remain the property of the finance company. • The finance company would issue an invoice in relation to the sale of the motor vehicle to the taxpayers. | • They would order a motor vehicle from a motor vehicle distributor on behalf of a finance company. • The motor vehicle distributor would sell the motor vehicle to the finance company and would issue an invoice in relation to the sale of the motor vehicle to the finance company. • The finance company would bail the motor vehicle to the taxpayers and the motor vehicle distributor would deliver the motor vehicle to the taxpayers for display and sale. • They would negotiate the sale of the motor vehicle to the ultimate retail customer. Immediately prior to sale to the customer, the taxpayers would purchase the motor vehicle from the finance company. Until that time, the motor vehicle would remain the property of the finance company. • The finance company would issue an invoice in relation to the sale of the motor vehicle to the taxpayers. | The taxpayers also had an arrangement with each motor vehicle distributor pursuant to which the distributor would, upon the sale of each new motor vehicle, pay a rebate to the taxpayers, commonly known in the industry as a holdback payment. The arrangement in relation to the payment of holdback payments did not form part of the dealership agreements between motor vehicle distributors and the taxpayers. | The holdback payment was paid directly to the taxpayers by the motor vehicle distributor and did not form part of the consideration paid by the taxpayers to the finance company. The payment was generally not referred to in the invoice issued by the distributor to the finance company, nor did it change the consideration paid by the finance company to the distributor. Finally the holdback payment did not alter the consideration paid by the taxpayers to the finance company, in respect of the purchase of the motor vehicle under the separate floor plan arrangement. | During the relevant tax periods from 1 July 2000 the taxpayers received the holdback payments from the motor vehicle distributors. From 1 July 2000 until February 2004 and April 2005 they remitted to the Commissioner GST referable to those holdback payments. | The Commissioner issued Goods and Service Tax Determination GSTD 2005/4 which stated that such holdback payments were not made for or in respect of any supply. | Subsequently, the taxpayers made a request to amend their BAS to receive a refund or credit in respect of the overpaid GST relating to those holdback payments and when the Commissioner refused to pay the refund the taxpayer made an application to the Federal Court under s 39B of the Judiciary Act 1903 seeking a writ of mandamus against the Commissioner to make the refund. | The proceeding then came before the Court by parties having agreed to proceed on a set of agreed facts with the court being asked to answer two questions, which then basically became the two issues before the court. | Issues decided by the court | 1. Does s105-65 of Schedule 1 to the TAA 1953, on its proper constructions, operate to preclude the entitlement of the taxpayers to a refund of GST paid by them after 1 July 2000 to the Commissioner in respect of holdback payments received by them? | His Honour held that in its terms s105-65 is limited to circumstances where there is a supply that is not a taxable supply. It does not in its terms extend to some transaction that does not involve a supply within the meaning of the GST Act. His Honour observed that there may be circumstances in which a taxpayer who obtains a refund from the Commissioner will derive a windfall gain, if the provision is construed literally. However, that is not a reason for construing the words of the provision as meaning something that they do not say because the explanatory memorandum says that the purpose of the provision is to preclude a windfall in connection with a supply. | Justice Emmett refused to give the section an expansive construction on the basis that there is no justification present in the case for the court to depart from the defined meaning given to a term, which in this case is the word 'supply' in s105-65. | 2. Is the entitlement of the taxpayers to a refund of GST paid by them after 1 July 2000 in respect of holdback payments precluded by the general law in the absence of their refunding or undertaking to the Court to refund a corresponding amount to the persons from whom they received the holdback payments (including the GST component) in respect of which GST was paid? | His Honour took the view that the existence of a constructive trust could not be raised by the Commissioner as a defence to a common law action for money had and received. His Honour said that such an action is not defeated simply because the claimant has recouped the outgoings from others and that it was difficult to understand why, as between the taxpayers on the one hand and the Commissioner on the other hand, the failure to pass on refunded GST to the relevant distributors should constitute conduct that would disentitle the taxpayers from recovering from the Commissioner moneys that should never have been paid to the Commissioner. In that regard, his Honour observed that the concept of impoverishment as a co-relative of enrichment is foreign to Australian law. Even if there was any equity in favour of the distributors attaching to the fruits of any judgment that the taxpayers might recover against the Commissioner, that circumstance was irrelevant to this proceeding.

Issues decided:
1. Does s105-65 of Schedule 1 to the TAA 1953, on its proper constructions, operate to preclude the entitlement of the taxpayers to a refund of GST paid by them after 1 July 2000 to the Commissioner in respect of holdback payments received by them? His Honour held that in its terms s105-65 is limited to circumstances where there is a supply that is not a taxable supply. It does not in its terms extend to some transaction that does not involve a supply within the meaning of the GST Act. His Honour observed that there may be circumstances in which a taxpayer who obtains a refund from the Commissioner will derive a windfall gain, if the provision is construed literally. However, that is not a reason for construing the words of the provision as meaning something that they do not say because the explanatory memorandum says that the purpose of the provision is to preclude a windfall in connection with a supply. Justice Emmett refused to give the section an expansive construction on the basis that there is no justification present in the case for the court to depart from the defined meaning given to a term, which in this case is the word 'supply' in s105-65. 2. Is the entitlement of the taxpayers to a refund of GST paid by them after 1 July 2000 in respect of holdback payments precluded by the general law in the absence of their refunding or undertaking to the Court to refund a corresponding amount to the persons from whom they received the holdback payments (including the GST component) in respect of which GST was paid? His Honour took the view that the existence of a constructive trust could not be raised by the Commissioner as a defence to a common law action for money had and received. His Honour said that such an action is not defeated simply because the claimant has recouped the outgoings from others and that it was difficult to understand why, as between the taxpayers on the one hand and the Commissioner on the other hand, the failure to pass on refunded GST to the relevant distributors should constitute conduct that would disentitle the taxpayers from recovering from the Commissioner moneys that should never have been paid to the Commissioner. In that regard, his Honour observed that the concept of impoverishment as a co-relative of enrichment is foreign to Australian law. Even if there was any equity in favour of the distributors attaching to the fruits of any judgment that the taxpayers might recover against the Commissioner, that circumstance was irrelevant to this proceeding.

ATO view of decision:
The Commissioner contended that given the history of similar provisions in the previous sales tax regime and in the context in which the section appears in the Act, s105-65(1) of Schedule 1 to the TAA should be given a purposive construction such that the word 'supply' included a purported supply or a putative supply and that it referred non-technically to any transaction ("something which is not a supply") that was incorrectly treated as a taxable supply. Such an interpretation, it was argued, would give effect to Parliament's intention to ensure that business taxpayer's who incorrectly charged GST to their customers did not receive a windfall gain. | The Commissioner accepts his Honour's construction that section 105-65 of Schedule 1 to the TAA does not apply where it is ultimately found that there is no supply at all. The interpretation is open on the plain literal meaning of the words. | The Commissioner further contended that the claim by the taxpayers for a refund of overpaid GST could be resisted because any such refund would be impressed with a constructive trust in favour of the distributors who had made the holdback payments to which the refund related. | While his Honour agreed that the taxpayers may have become a constructive trustee of the amount received from the distributors, his Honour took the view that the existence of a constructive trust could not be raised by the Commissioner as a defence to a common law action for money had and received. | The Commissioner accepts his Honour's view on this issue. | The Commissioner is not appealing the Court's decision

Administrative treatment:
Section 105-55 of Schedule 1 to the TAA provides that you are not entitled to a refund or credit unless you notify the Commissioner that you are entitled to the refund or credit within four years after the end of the tax period. | Section 105-65 was amended effective as of 1 July 2008. To be eligible to claim a refund under the pre- amended section 105-65 a notification was required to be provided to the Commissioner prior to 30 June 2008. | Income Tax | Subject to the relevant time limits imposed by section 170 of the Income Tax Assessment Act 1936 , a taxpayer should amend their relevant prior year income tax returns to include the entirety of their holdback receipts as assessable income in each income year in which the receipts were originally derived. There are no additional income tax consequences arising from the refund by the Commissioner to the taxpayer of GST incorrectly paid in relation to a holdback receipt. | Implications on current Public Rulings & Determinations | The Tax Office has not currently identified any implications for current public rulings or determinations.

Legislative references: Taxation Administration Act 1953 (Cth) Schedule 1, 105-65 Schedule 1, Division 284 A New Tax System (Goods and Services Tax) Act 1999 (Cth) 9-5 9-10 11-5 Income Tax Assessment Act 1997 17-5 Income Tax Assessment Act 1936 170
Case references: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 (1997) 187 CLR 384 (1997) 141 ALR 618 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 (1994) 182 CLR 51 (1994) 94 ATC 4960 29 ATR 173 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 (1981) 147 CLR 297 (1981) 81 ATC 4292 11 ATR 949 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 (1984) 156 CLR 41 (1984) 55 ALR 417 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68 (2001) 208 CLR 516 (2001) 48 ATR 442 R v PLV [2001] NSWCCA 282 (2001) 51 NSWLR 736
Subject references: GST restriction on refunds section 105-65 of Schedule 1 to the Taxation Administration Act 1953 (TAA 1953) application of the section to transactions where the consideration received is not for or in respect of a supply you made. Restitution whether a common law action for money had and received can be defended on the basis that the claimant may be a constructive trustee of the funds for a third party whether constructive trust relevant to the enforcement of common law action.