I. Legislative, Appeals and Prosecutions Aspects

The Commissioner's Discretion

22.2. A number of submissions have been received by the Committee which relate to certain powers which the Act vests in the Commissioner by some such language as enables him to make an assessment where he is ‘of the opinion’ or ‘is satisfied’ that a certain state of affairs exists. These may be conveniently referred to as the Commissioner's ‘discretionary powers’.

22.3. The tenor of these submissions is that, whenever possible, the use of a discretion in the Commissioner should be removed and liability to tax should be determined upon clearly defined criteria; that a Court should be able, in the same way as a Board of Review, to review the exercise by the Commissioner of a discretionary power, and that, where the Commissioner exercises his discretion, at the request of the taxpayer he should within some stipulated time furnish a statement containing his reasons for the exercise of the discretion.

22.4. Submissions have also been received to the effect that a system of advance bulletins should be set up indicating the matters which the Commissioner would take into account in the exercise of his discretion. These and a number of related matters are discussed below and certain recommendations made.

22.5. It must be at once conceded that the ideal for all fiscal laws should be certainty so that the taxpayer can discern from them the precise limits of his liability. An examination of the legislation of many countries—Australia is by no means unique in this regard—reveals that in many respects this goal has not been achieved. The failure to achieve simplicity and precision in every aspect of a taxation statute is readily understandable. Tax is levied over the whole community and upon all manner of persons and bodies. The fundamental basis of its imposition is the ability of each to pay, a difficult objective to achieve in view of the infinite variety of circumstances which attends even those with comparable grades of income. When the sources of income which range so widely have to be taken into account, the problems confronting attempts to achieve certainty in a law, which must at one and the same time have a general application and also as far as possible aim at equality of burden for each taxpayer according to his particular situation, are compounded. This will be recognised by anyone who attempts to reduce a taxation concept into statutory terms.

22.6. As all would readily agree, individual legislative treatment is an impossibility. The only practical means, on the one hand, of coping with the cases of hardship and of providing an equitable result for the inevitable departure from the norm so that the Revenue should not obtain more than in all fairness it is entitled to and, on the other, of ensuring that at the same time the taxpayer should not, at the expense of his fellow

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taxpayers, escape payment of his just liabilities, in many instances is by the exercise of a discretionary judgment to reach the solution called for by the particular circumstances of the case. The possession of a discretion by the Commissioner does not mean that he is completely at large in its exercise. It is not his private opinion that he is to express. He must act according to law and reason and to the justice of the case and not arbitrarily or capriciously or upon inadmissible or irrelevant grounds.

22.7. Another obstacle to simplicity and certainty in taxation legislation is the ingenuity and complexity of schemes which are evolved for the purpose of tax avoidance. By the use of documents and the adoption of procedures to which the Courts are impelled to give an operation according to their legal effect, it has become a not too difficult matter for some who have access to highly skilled advice to avoid a situation which the statute intended should be either taxable or taxable upon a higher scale. Some reference to this has been made in Chapter 11 (paragraphs 11.5–11.6) in dealing with the subject of income-splitting. The vesting in the Commissioner of powers of discretion, opinion, satisfaction and determination in this field is regarded by the Committee as a more satisfactory alternative to both the Revenue and the taxpayer than lengthy and complex provisions which can themselves be infected with the vice of uncertainty. It should not be overlooked that a power of this kind enables the Commissioner to give just recognition to transactions which bear the stamp of a genuine ordering of affairs and to separate them from those of an artificial nature designed to shelter their real purpose of tax avoidance. As both types of transaction frequently follow so closely the same path, the task of framing a definition which will include one without excluding the other usually presents insuperable obstacles for the draftsman.

22.8. It is admitted that in view of the number of cases arising the Commissioner's discretions must be exercised on his behalf by his officers who have delegated powers. But the Committee is informed that there are procedures established within the Department to ensure that, so far as possible, like treatment in the exercise of discretions is given to all taxpayers.

22.9. Whenever the law gives a discretion to the Commissioner, it should at the same time indicate the principle to which the Commissioner is to give effect in the exercise of the discretion: if the principle is not otherwise evident, it should be possible to infer it from any guidelines included in the section giving the discretion.

22.10. Accordingly, whilst the Committee has a definite preference for certainty in a fiscal statute it is not a sound practical measure to remove from the Commisioner's jurisdiction all the discretionary powers which he possesses under the Act. Where it is appropriate so to do, it would be an advantage for guidelines to be inserted in the Act to indicate the matters to which regard should be paid in the exercise of a discretion. But, as it is not possible to formulate guidelines to cover all the possible circumstances of every case, in the interests of the taxpayer as well as the Revenue, they should not be framed in the Act as the only relevant matters which the Commissioner should reasonably be entitled to take into account in the just exercise of the particular discretion vested in him. The proper exercise of a discretion necessarily involves a latitude of choice according to the particular circumstances of each individual case.

22.11. It has been submitted that whenever the Commissioner forms an opinion, makes a determinaton or exercises any like power, he should supply the taxpayer with the reasons or grounds upon which he has based it. As desirable as this might appear in theory, it would throw an enormous burden on to the administration and cause delay in the issue of assessments. Comparatively few of the Commissioner's actions of this nature are made the subject of challenge and, when an objection is made to an

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assessment, the Commissioner's reasons are placed before a Board of Review (see later) which in turn makes its own determination in reviewing the reasons of the Commissioner in light of the facts and the arguments of the taxpayer.

22.12. The Committee recommends that greater use be made of the procedure of the issue by the Commissioner of Public Information Bulletins setting forth the general guidelines which the Taxation Office usually takes into account in the exercise of powers of this nature in their different settings in the Act; but it should be made clear that such Bulletins are published for general information only. Because there will always be the exceptional case and because the facts of one case will rarely be on all fours with another, Public Information Bulletins should not be treated as evidentiary material before a Court or Board of Review.

22.13. The protection which the taxpayer has against any error made by the Commissioner in the exercise of these discretionary powers is the review and appellate provisions in the Act. Where the taxpayer is dissatisfied with a decision of the Commissioner disallowing, either in whole or in part, his objection to an assessment he may, within sixty days after service of the Commissioner's decision upon him, request the Commissioner to refer the decision to a Board of Review for review. If the request is accompanied by a fee of two dollars, the Commissioner is obliged, subject to his right to obtain further information from the taxpayer, to act in accordance with the request.

Amendment of an Assessment

22.14. Section 170 of the Act contains a general power for the amendment of assessments by the Commissioner. The limits imposed by the section have no application where the Act makes provision for the amendment of assessments in specific cases (see section 170A). Aside from the cases of fraud or evasion, or where there has not been a full and true disclosure of all the material facts necessary for the assessment, no amendment may be made either to increase or reduce the liability of the taxpayer except to correct an error in calculation or a mistake of fact. No such amendment may be made after the expiration of three years from the date when the tax became due and payable under the assessment, except where the taxpayer has applied for the amendment of his assessment within that period and has supplied to the Commissioner within that period all the information needed by the Commissioner for the purpose of deciding the application. Subsection (9) of section 170 provides that, where an assessment includes an estimated amount of income from an operation or series of operations extending over more than one or parts of more than one year and where owing to that fact the profit or loss was not ascertainable at the end of the relevant year of income, at any time within three years after ascertaining the total profit or loss actually derived the Commissioner may amend the assessment to ensure its completeness and accuracy.

22.15. It has been submitted that a taxpayer who makes application for amendment of his assessment in these cases should have the right to lodge an objection if the Commissioner fails to accede to his application. The Committee is of the opinion that, where the taxpayer requests amendment of an assessment under section 170 (9)and supplies all the information necessary for amendment within some specified time, he should have the same rights of objection and appeal as are available in respect of an assessment. The right of objection should be allowed against a refusal by the Commissioner to amend, which should be notified, or against the amendment so made, even if it reduces the tax payable. The Committee does not recommend that this right of objection and appeal should be extended to amendments of assessment under

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other sub-clauses of section 170. To do so would seriously impair administration of the Act and virtually give unlimited opportunity to dispute an assessment any time in the period of three years after its due date for payment.

Objections to an Assessment

22.16. The Committee has received a number of submissions bearing upon the question of objections to an assessment and the nature of these will be apparent from the discussion which follows and in which it may be useful to bear in mind the following statistics which give the number of objections lodged with the Commissioner in recent years:

1969-70  1970-71  1971-72  1972-73  1973-74 
37,169  36,623  48,381  58,793  54,401 

22.17. The time-limit for a taxpayer to lodge an objection to any income tax assessment with which he is dissatisfied—within sixty days after service of the notice of assessment—would seem to be reasonable in practically all cases. The Committee recommends that this time-limit should apply in relation to assessments issued under all taxation statutes. Submissions to the Committee, however, have raised the question that there should be some means by which further time may be granted for lodgement of an objection where unusual circumstances arise. It is of interest to note that in the income tax legislation of the United Kingdom, Canada and New Zealand there are provisions enabling the granting of a further period for lodgement of an objection beyond the initial statutory period.

22.18. Provision should be made in the Australian taxation statutes enabling the Commissioner to grant further time if he is satisfied that there was a reasonable excuse for not lodging the objection in time. Where the Commissioner is not prepared to grant a request for further time, the request should be referred to a Board of Review for decision. There should be similar powers to grant extended time in relation to the lodgment of requests for reference to a Board of Review and appeals to a Court, but in these latter cases the power to extend should be vested in the Board or the Court as the case may be.

22.19. Whilst the Commissioner is bound to serve the taxpayer with written notice of his decision upon the objection, no time-limit is imposed within which he must do so. There are practical difficulties in setting a time-limit upon the Commissioner's decision. It is by no means unusual for the grounds of the objection to make it necessary for him to call for further information from the taxpayer. Moreover, grounds of objection are frequently lengthy and complex and raise important questions of law. Next should be borne in mind the large volume of individual objections to be dealt with, and lastly it should be recalled that in the exercise of his office the Commissioner stands between the requirements of the Revenue and just treatment for the taxpayer and this position imposes upon him a double duty of care. In light of these considerations the Committee believes that it is better not to impose a time-limit upon the Commissioner. It is not to be supposed that, where real hardship can be shown by the taxpayer, his representations for a speedy decision upon his objection would not be heeded. In the last resort it seems that under section 75 (v) of the Constitution the taxpayer could obtain from the High Court an order to compel the Commissioner to give his decision upon an objection.

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22.20. The Act provides that upon a reference to a Board of Review or an appeal to the Court a taxpayer is limited to the grounds stated in his objection. It is not within the jurisdiction of a Board or Court to permit the taxpayer to add any new ground of objection even though the Commissioner may be willing to consent to that being done. There is no corresponding restriction placed upon the Commissioner as to the grounds upon which he can support an assessment except that where there are two sections of the Act, each giving power to make an assessment, an assessment made under one of those sections cannot be made effective under the other. The contents of an assessment with which the dissatisfied taxpayer is bound to object ‘fully and in detail’ may make it difficult for the taxpayer to understand the basis of his purported liability to tax and the Commissioner is not bound to supply him with an adjustment sheet. It is pointed out later that a taxpayer may not be able to gather from the document supplied to him under Regulation 35 (2) the basis of assessment or the reasons for the Commissioner's decision but, even if at that stage he could do so, it would then be too late to amend his grounds of objection.

22.21. This state of affairs is highly unsatisfactory and unfair to the taxpayer. Conceded that there should not be any unlimited right of amendment, it is eminently reasonable that a taxpayer should be able to contest his case upon any ground open to him when he is placed in a position for the first time to understand the contentions which he has to meet. The Committee refers to its later recommendation in paragraph 22.25 to the effect that the Board, in the exercise of its discretion, should have power to require the Commissioner to supply the taxpayer with further particulars of the computation of the assessment and of the reasons for the decision disallowing the objection and is of the opinion that the Board should in such a case fix reasonable time after the supply of those particulars for the taxpayer to amend his grounds of objection where the particulars revealed that the original grounds were not sufficiently widely expressed. The same situation should apply where in the first instance the taxpayer appealed to a Supreme Court against the Commissioner's decision upon his objection. The Commissioner should have a corresponding right to give his decision upon the amended grounds. It could be safely left to the discretion of the Board of Review or the Court to determine the procedure which in the particular circumstances would be just to both parties.

Powers and Procedures of a Board of Review

22.22. The powers of a Board of Review are not judicial and its functions are to review all decisions of the Commissioner as are referred to it. For this purpose the Board is in the same position as the Commissioner and, in making its own decision, can substitute its own opinion or determination for that of the Commissioner. A Board of Review is an administrative body and is not bound, as is a Court, by the rules of evidence and it has no power to award costs against an unsuccessful party. It is bound to give its decision in writing either confirming, reducing, increasing or varying the assessment and, at the request of either the Commissioner or the taxpayer, must state its findings of fact and the legal reasons for its decision.

22.23. Regulation 35 of the Income Tax Regulations requires the Commissioner when referring a decision to the Board of Review, to furnish both the Board and the taxpayer with, amongst other material, the Commissioner's reasons for disallowing the taxpayer's claim. It has been held that this regulation does not empower the Board to order the Commissioner to supply the taxpayer with particulars as to how the assessment is made up or the steps in the reasoning by which the ultimate conclusion of the Commissioner was reached.

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22.24. Nevertheless, whilst not a Court, a Board of Review is a quasi-judicial body and natural justice requires, especially as the taxpayer bears the onus of displacing the decision of the Commissioner, that the taxpayer should have a sufficient knowledge of the basis of that decision to enable him to go about his task with factual material and legal argument relevant to the question which the Board is called upon to decide. The taxpayer is bound to state ‘fully and in detail the grounds on which he relies’ in his objection and the Committee sees no good reason why he should not be fairly apprised of the basis of the assessment to which he has objected and the reasons for the disallowance of his objection. While normally this information is readily available from the Commissioner, if the position is reached where a taxpayer is challenging the decision of the Commissioner before a Board of Review and considers he has not received an adequate explanation, there should be some remedy for him.

22.25. If the taxpayer was genuinely unable to gather from the document supplied by the Commissioner pursuant to Regulation 35 (1) (c) and (2) sufficient information for that purpose, he would come before the Board under a considerable handicap in the presentation of his case and the hearing would be either unduly prolonged or adjourned and further expense would in consequence be incurred. Clarification of these matters in the course of the hearing before the Board would in many instances be unsatisfactory and not a viable substitute for an adjournment. The Act should be amended to give the Board power exercisable at its discretion to require the Commissioner to supply the appropriate particulars to the Board and the taxpayer in cases where it was of the opinion that it was reasonable for the taxpayer to be provided with further particulars of the computation of the assessment and of the reasoning by which the Commissioner's decision was reached. Any application by the taxpayer for the exercise of the Board's powers on his behalf should be made within a specified reasonable time after the receipt by the taxpayer of the documents referred to in Regulation 35 (2), and the Commissioner should be notified of the application and have the right to be represented thereat. The Board's power in this connection could be exercised by any one member. The availability of a procedure of this kind would increase public confidence in the review and avoid the possibility of lengthy delays and adjournments.

22.26. An identical procedure should be followed where the taxpayer appealed directly to a Supreme Court from the Commissioner's decision upon his objection.

22.27. Any procedure which speeds litigation and reduces costs is highly desirable. Although not bound by the strict rules of evidence, the Board of Review quite properly follows those rules where the importance of the proof of certain facts is apparent. But, whilst the purpose of a reference to a Board of Review has been described in the High Court as providing ‘a less formal method of investigating facts at a hearing, and opportunity of exercising discretion and the like by a more detached administrative process’, parties before the Board tend at times to regard a hearing before the Board as one in which the whole of the evidence to be adduced must be presented and proved as if in a formal trial. The result often is that a great deal of time is taken up with the proof of facts which are or ought to be common ground between the Commissioner and taxpayer and which could readily have been admitted in advance of the hearing, thus saving time and expense in the calling of witnesses and production of documents. If, after the receipt by the taxpayer of the document referred to in Regulation 35 (2) and its possible further particularisation (referred to above), the parties were to come together before a single member of the Board in a short, preliminary hearing akin to what is known as ‘pre-trial’ procedure, all or many of the facts could be admitted and reduced to writing and such facts as remained in dispute could

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be brought within such a small compass that much of the fact-finding work of the Board would be eliminated. A further consequence would in all probability be that the questions of law would be narrowed. The saving of time, work and expense would result in the rate of progression of the cases before Boards of Review being accelerated. In the Committee's view the Board should be invested with a power to invoke a procedure of this nature to be exercised at its discretion.

22.28. Section 181 of the Act provides in effect that a person who is or has been a member of a Board of Review shall not be under any liability for any non-feasance or misfeasance in connection with his duties. The words ‘non-feasance’ and ‘misfeasance’ have technical legal meanings. It has been stated on high authority that ‘there is no such distinct wrongful act known to the law as misfeasance’; and what constitutes a misfeasance or non-feasance is a matter of not infrequent disputation.note The Committee is of the opinion that the immunity to be afforded to members of the Board of Review in connection with their duties should be the same as that afforded by section 72 of the Insurance Act 1973 to members of the Insurance Tribunal, namely, the immunity of a Justice of the High Court. The Committee also considers that a barrister, solicitor or other person appearing before a Board of Review should have the same protection and immunity as a barrister in proceedings in the High Court (cf. section 85 (2) of the Insurance Act 1973).

22.29. Section 194 of the Act provides that two members of a Board of Review shall form a quorum, the decision of the majority shall prevail, but that the Chairman shall have a deliberative but not a casting vote. Provision is made in section 180 for the appointment by the Governor-General of a member as Chairman in cases where the Chairman cannot be present. The Committee recommends that where two members form a quorum in the absence of the Chairman, the member appointed as Chairman should have a casting as well as a deliberative vote in order to prevent the possibility of a deadlock.

22.30. Section 196 (2) of the Act empowers the Board of Review to refer a question of law arising before the Board to a Court. But this power may be exercised by the Board only at the request of the Commissioner or the taxpayer. Bearing in mind the experience of the Board, the Committee believes that the power to refer a question of law to a Court should be exercisable by the Board at its discretion. There will be cases in which the state of the law in relation to a question arising before the Board is, in the opinion of the Board, in such doubt that both time and expense will be saved by a judicial decision before embarking upon a lengthy hearing of factual and legal argument before the Board itself. In a case where the Board does so refer a question of law to a Court, the Commissioner should bear the costs on the same basis as is outlined later in paragraph 22.42.

22.31. Some of the powers of a Board of Review are contained in the Act but others appear in the Income Tax Regulations. It would be more convenient and satisfactory in all respects for taxpayers and their advisers if all such powers were collected together in one place, the Act being the appropriate place for them. It is intended to propose certain amendments to the regulations in question, but the Committee must be understood as recommending that the amended regulatons, if adopted, should be incorporated in the Act.

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22.32. Regulation 39 (2) in effect enables a Board of Review to require persons to furnish information to the Board, to attend and give evidence before the Board and to produce to the Board books, documents and papers in his custody in relation to cases where the Board is of the opinion that the exercise of these requirements is necessary for the determination of matters arising before the Board. Regulation 39 (2A) provides that a person shall not without just cause or excuse fail to comply with any such requirement. Regulation 39 (3) enables the reimbursement of such a person's expenses to be made in certain circumstances. The weakness of these powers appears to be that there is no sanction provided to ensure compliance with them, and it has been ascertained that in some instances the Board's requirement is ignored with impunity. Powers such as these are essential for a proper determination of matters referred to the Board in the interests of both the Commissioner and the taxpayer. A failure on the part of a person to comply with any such requirement of the Board without just cause or excuse should be an offence against the Act and punishable by a fine of such an amount as to act as a satisfactory deterrent against non-compliance.

22.33. Whilst a Board of Review, being an administrative tribunal, is not bound by the rules of evidence, Regulation 39 provides that it shall ‘take evidence’ and may require a person to attend and ‘give evidence’. However, there is no provision as to the mode by which such oral evidence is taken or given other than the requirement of an oath or affirmation and the general statement in Regulation 38 (1) that reviews by a Board shall be conducted as the Chairman from time to time directs. It should be enacted that a witness giving oral evidence before the Board may, subject to the Chairman's directions, be examined, cross-examined and re-examined in accordance with the established procedure in the Courts. It should be expressly provided that a Board of Review should not be bound by the formal rules of evidence. A witness appearing before a Board of Review should have the same protection and be subject to the same liabilities in any civil or criminal proceedings in the High Court (cf. section 84 (3) of the Insurance Act 1973).

22.34. With these recommendations in relation to Boards of Review, the Committee also recommends that the provisions of Division 1 of Part V—Constitution of Boards of Review—in the Income Tax Assessment Act and such other provisions of Part V as relate to the practice and procedure of the Boards be transferred to the Taxation Administration Act. At the present time the Boards deal with matters arising in relation to taxes other than income tax, including estate duty and sales tax, and it is more appropriate that the constitution of the Boards and their practice and procedure be provided for in the Taxation Administration Act. This latter Act, of course, covers among other things the appointment and tenure of the Commissioner of Taxation and Second Commissioners of Taxation and provides for the constitution and procedures of Valuation Boards.

Appellate Powers and Procedures

22.35. Either the Commissioner or the taxpayer may appeal to the Supreme Court of a State from any decision of a Board of Review which involves a question of law and the Board shall, at the request of the Commissioner or the taxpayer, refer a question of law arising before a Board to a Supreme Court. The appeal or reference shall be heard by a single Judge of that Court and from his decision either party may appeal to the High Court. A question of law may arise on the facts as found by the Board of Review which facts are not themselves challenged by the appellant or may arise in the finding of the facts themselves where, on the evidentiary material before

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the Board, that finding could not be properly made or where the Board has committed some other error of law in arriving at that finding. The jurisdiction of the Court to entertain an appeal does not depend upon the Court's view that the Board has made an error of law which has affected its decision. Once it appears that some question of law has been involved, the whole decision of the Board and not merely the question of law is open for review on the appeal. The Court will give due weight to the Board's finding of fact, but is not bound by them and will arrive at its own conclusions on the questions of fact which have to be decided. If necessary the Court will hear evidence additional to that which was given before the Board. The essential question for the Court is whether the decision of the Board was correct. If the taxpayer who was dissatisfied with the Commissioner's decision was to by-pass the Board of Review and have his objection treated as an appeal to a Supreme Court, that Court would have the duty both of finding the relevant facts and also of ruling as a matter of law on the questions to which those facts gave rise. Where the Board, in exercising the same functions as the Commissioner, has exercised a discretion, the Court will not invalidate what the Board has done in this connection unless some error of law can be seen to have affected its determination.

22.36. If a taxpayer exercises his option to ensure that his case goes in the first instance to a Board of Review, it is reasonable that he should be bound by a finding of fact by the Board which is arrived at without breach of legal principles. If, on appeal to a Court by the taxpayer, the question of fact was enabled to be re-opened at the request of the taxpayer, there would be no good reason to deny the same right to the Commissioner. If the taxpayer wishes to have the Court determine the facts, he has the right to choose that tribunal to try his case in the first instance. To have two determinations of the same factual issues where no error of law can be discerned in the first instance is only a multiplication of time and expense.

22.37. The Committee would not propose that a Court should have the same general power to exercise discretions as is given to Boards of Review. But there is one situation where it considers that a Court should have power.

22.38. At the present time a Court can examine the validity of the exercise of the Commissioner's discretion to see whether it has been infected by legal error as, for instance, whether it has been exercised on irrelevant or inadmissible grounds and, if so, the Court can set it aside. But under the existing legislation, if the discretion has been validly exercised in point of law, the correctness of its exercise is unexaminable. It cannot substitute its opinion in this regard for that of the Commissioner or that of a Board of Review, although the Court may have before it the identical relevant material as the Commissioner or the Board of Review and be in some cases in the same position to exercise the power. Courts are constantly called upon to exercise discretions of widely differing kinds under both statutory powers and inherent powers. At present, if the case in which the Court finds legal error in the exercise of the discretion is an appeal direct to the Court from the Commissioner, the case is remitted to the Commissioner for further consideration; if it is an appeal from a Board of Review, it is remitted to the Board for the same purpose. Here lie the seeds of further litigation which in some instances will lead to unnecessary expense. The Committee sees no reason why a Court, in a case where it finds legal error in the exercise of a discretion by the Commissioner or by a Board of Review, should not be in the same position as the Commissioner and a Board of Review in regard to the exercise of a discretionary power where it is satisfied that it has the whole of the facts and other relevant considerations before it. In such a case, where the discretion to be exercised is one capable

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of determination by an objective test or standard, the Court should be entitled to exercise the discretion if it sees fit to do so where the Commissioner and the taxpayer, or their representatives, consent.

22.39. What is said in the preceding paragraph covers a main area of present difference in jurisdiction between a Board of Review and a Court which a taxpayer would take into account in deciding whether to take his case to a Board or to a Court. However, the Committee has noted that, once a taxpayer has applied to the Commissioner for a reference to a Board or for an appeal to a Court, his choice of tribunal is unalterable. This position could be made more flexible without disadvantage to the Commissioner and with advantage to a taxpayer in some cases. Accordingly, the Committee recommends that provision be made to enable a taxpayer to change the tribunal which he has chosen at the time he lodges an application for review or appeal. Any such request for a change of tribunal would need to be lodged before the Commissioner has referred the case to a Board or forwarded the objection to a Court.

Costs of Objections, Reviews and Appeals

22.40. Submissions have been received by the Committee in relation to the recovery of the costs incurred by taxpayers in formulating their objections to assessments and in appealing against the Commissioner's decisions which disallow the objections. Annually a great many objections to assessments are lodged with the Commissioner (see paragraph 22.16 above). Many of these are without substance and are withdrawn by the objecting taxpayer, some after reference to a Board of Review; some are wholly and some partly disallowed by the Board, and some are wholly allowed by the Board. In some cases either the taxpayer or the Commissioner appeals to a Court in respect of a Board's decision. Frequently, even in those cases in which the taxpayer is successful, the form of the objection goes far beyond the requirements of challenging the particular decision to which objection is taken. In many cases the objection takes what is a standard or substantially standard form. In short, to arrive at some reasonable basis for the taxpayer's costs in formulating his objection presents formidable difficulties and in practice the expense of doing so would more often than not exceed what would be a reasonable sum for the objection itself. The Committee does not recommend that the costs of an objection, even if successful, should be met by the Commissioner.

22.41. Bound up with the question of the costs of the objection is the other question whether the taxpayer who is successful before a Board of Review should be reimbursed for his costs and expenses of the hearing before the Board. In considering the answer to that question, these matters should be kept in mind. Firstly, the reference to the Board is one made at the taxpayer's option. Secondly, the reference to the Board puts him at no risk of costs being awarded against him if he is unsuccessful. Thirdly, the taxpayer, confident of success, can always take his case directly to a Court where the winning of his case will result in his costs being paid. The Board of Review is an administrative body and, having regard to the matters referred to, the Committee does not think that costs should be awarded either against the Commissioner or against the taxpayer in respect of its proceedings. The fees and travelling expenses of persons who are required to attend and give evidence pursuant to Regulation 39 (2) of the Income Tax Regulations are entitled to be reimbursed on a scale fixed by regulations—where requested to attend at the behest of the taxpayer, by the taxpayer, and in any other case by the Commonwealth.

22.42. It has been suggested that the Commissioner should abide by the decision of the Board of Review or that, if he wishes to appeal, he should pay the costs of the taxpayer whatever the result of the appeal in the Courts. This raises a somewhat different

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problem. The Commissioner may decide to appeal because he considers that a point of law of general importance is involved or that there is a substantial amount of tax at stake. Appeals to a Court—and the case may go further on appeal from the Supreme Court to the High Court—are usually expensive. In 1967 the Commonwealth Treasurer issued a statement in the following terms:

‘Although it will still be necessary to consider each case on its merits, it has been decided that, when the Commissioner appeals against a decision of the Board of Review, the Commonwealth will, as a general rule, be prepared to bear its own costs and the reasonable costs of the taxpayer in connection with the appeal, irrespective of the outcome. The Treasurer said he would not be prepared to enter into any arrangement regarding costs in cases where the taxpayer was seeking some benefit which the legislature clearly had not intended to grant. Apart from these exceptional cases, however, taxpayers who seek rulings from a Board of Review will have a reasonable assurance that they will not thereby become exposed, against their will, to the cost of litigation in the courts.’

In the Committee's view the Courts should have a wide discretion with regard to the costs on appeals to them from a Board of Review by the Commissioner; but, unless there is some feature of the case which in the opinion of the Court warrants a different order, the costs of such an appeal from a Board of Review should be borne by the Commissioner in any event.

Interest upon Pre-paid Tax Liabilities

22.43. A number of submissions have been made to the Committee to the effect that in certain circumstances payments made on account of taxation liabilities should bear a rate of interest for the benefit of the taxpayer. Some of these relate to a payment of tax in accordance with a notice of assessment notwithstanding that the assessment is objected to, or notwithstanding that, where the objection has been disallowed by the Commissioner, his decision has been referred to a Board of Review or is the subject of an appeal to the Court. By virtue of section 201, the fact that the assessment is objected to and that the Commissioner's decision disallowing the objection has been referred to a Board of Review or is the subject of an appeal to the Court does not relieve the taxpayer from his liability to pay the tax, which may be recovered from him by Court process unless the Court in which such action is taken grants a stay of proceedings, a course which would rarely be taken by the Court. It is not unusual in practice for the Commissioner not to take any recovery action in these circumstances where the taxpayer pays to the Commissioner a proportion of the tax levied, usually 50 per cent. If the taxpayer is ultimately successful in having the assessment set aside in whole or in part, it is this sum, or so much thereof as is refundable to the taxpayer, that is claimed should be repaid with interest.

22.44. Where a taxpayer has paid to the Revenue an amount in full or partial discharge of his purported taxation liability and his objection is upheld by the Commissioner, a Board of Review or a Court, there is justice in the claim that interest should be paid on the amount refundable to the taxpayer. In this case the Crown has enforced from him payment of a sum which has been shown to be taken from him without any justification under the Act which was relied upon for the exaction. Where the Crown rightfully resumes property and delays payments therefor, interest is generally payable upon the debt and, where property is taken from the citizen without sanction, the case for the payment of interest appears to the Committee to be unanswerable. The rate of interest should be specified as a realistic one in keeping with current economic conditions.

  ― 392 ―

Taxation Prosecution Procedures and Penalties

22.45. The Committee has received submissions relating to penalties and prosecutions dealt with in Part VII of the Act. Section 243 provides (inter alia) in effect that any allegation of fact (averment) contained in the process initiating a taxation prosecution shall be prima facie evidence of the matter averred. The purpose of the section is to enable the prosecution to sheet home its case without calling evidence to prove the facts necessary to sustain the charge made against the defendant. The section has no application where the intent of a defendant has to be proved or where the proceedings are for an indictable offence or an offence directly punishable by imprisonment. Section 221G is, for example, one of a number of sections in Division 2 of Part VI of the Act relating to collection of income tax by instalments and requires an employer, other than a group employer, to keep a tax deduction sheet and imposes a series of obligations in regard thereto. The penalty for failure to comply with certain of these obligations is fine or imprisonment. In many instances defendants charged with breaches of section 221G and other sections in Division 2 do not appear to answer the charge but, as the prosecution cannot rely upon the averments, the time of the Court is taken up in proving all the ingredients to sustain the charge.

22.46. It has been put to the Committee that the penalty of imprisonment should be deleted from these sections to permit charges under these sections to be proved by means of the averments. In these cases the penalty of imprisonment is rarely imposed and the Committee would favour its deletion.

22.47. It has also been submitted that section 243 should be altogether repealed and that the onus of proof in prosecutions under the Act should follow the general law. The type of provision found in section 243 is by no means unique and can be found in other fiscal and criminal legislation. It does not alter the fact that the prosecutor is left with the onus, both initial and final, of establishing the ingredients of the offence beyond reasonable doubt. Where the criminal intent of a defendant is an ingredient of the offence charged, this must be proved in the ordinary way. The Committee sees no good reason why section 243 should be repealed. It also sees no good reason why service of summonses for offences against the Act should not be effected by registered post.

22.48. The Court should be empowered in its discretion to extend the time for payment of pecuniary penalties which have been imposed. By virtue of section 247 (2) the Court, when an offender is convicted and ordered to pay a penalty, may order that the offender be given a specified time for its payment or allow it to be paid by specified instalments. Failure to pay the penalty or an instalment within the time specified will result in the imprisonment of the offender and, in all probability, any chance of recovering the penalty or the balance of it unpaid will be lost. No account is taken of some unexpected difficulty or hardship occurring to an offender who may be prepared to meet his liability rather than suffer imprisonment. Power in the Court to grant an extension of time would be in the interests of the Revenue as well as the taxpayer.

22.49. A submission received with reference to section 226 raises the question of penalty in a different fashion. For the failure to furnish, where required by statute or by the Commissioner, a return or any relevant information or for the omission from a return of any assessable income or for the inclusion therein of an excessive deduction for expenditure, the taxpayer becomes liable to pay an amount of additional tax calculated as prescribed by the section. The Commissioner is empowered for reasons which he thinks sufficient to remit the additional tax or any part thereof. It has been

  ― 393 ―
urged upon the Committee that section 226, which admittedly imposes heavy penalties in the shape of additional tax for breaches of its provisions, should be amended to distinguish between an accidental and deliberate breach of the section and the penalty for its infringement should only be determined by a magistrate. Section 226 is fundamental to the basis of the collection of income tax and it is essential that there should be a powerful deterrent standing in the way of non-compliance with the provisions of the Act and that the Revenue should be protected against procrastination and carelessness.

22.50. That is not to say, however, that every breach of the section should be visited with the totality of the penalty which the section prescribes. Returns are not always easy to compile and mistakes may occur even when care has been used to avoid them. It is not to be supposed that the Commissioner would not give full recognition to the likelihood of excusable, accidental error and by his power of remission he is enabled to make due allowance for it. If the taxpayer, however, is dissatisfied with the decision of the Commissioner relating to the remission of additional tax imposed by section 226, he is entitled to take the matter before the Board of Review which, by virtue of section 193 (2), has a limited power of reviewing that decision. In the Committee's view, no amendment of sections 226 or 193 (2) is called for along the lines suggested.

22.51. Representations have also been received by the Committee in relation to section 226 (4) which precludes the imposition of additional tax under the section where a prosecution is instituted in respect of the same subject-matter. Where a prosecution for failure to furnish a return is instituted under section 223, the penalty is not less than four dollars or more than $200; and it has been put to the Committee that many persons who have failed to lodge a return for a substantial income deliberately court prosecution knowing that the maximum fine of $200 under section 223 will be less than the additional tax which would be imposed by the Commissioner for late lodgment of the return without prosecution action being instituted. It is understood that additional tax imposed by the Commissioner for late lodgement of a return is normally based on what is in effect an interest charge of 10 per cent per annum of the tax payable for the period the return is late. It has been submitted to the Committee that it is anomalous that a taxpayer by courting prosecution can limit the penalty to $200 in these types of cases.

22.52. While the Committee elsewhere in this Report recommends revision of all of the penalties specified in the Act, this is not necessarily the complete answer to the submissions. Several proposals might be considered. One would be to repeal subsection (4) of section 226 and thus enable both the additional tax and the Court-imposed penalty to be exacted in appropriate cases. Subsection (3) of section 226 dealing with the Commissioner's power to remit additional tax could be expanded to include a direction that, in considering remission, the Commissioner is to take into account any penalty imposed by a Court. Another proposal would be to provide in section 223, which deals with prosecutions for failure to furnish returns or information, for a penalty of stipulated minimum and maximum amounts and, in addition, to give the Court power to order the person to pay to the Commissioner a sum not exceeding the maximum additional tax which could be imposed by the Commissioner under section 226 (1) of the Act. This latter is the pattern of the present legislation in relation to prosecutions and additional tax in cases of false returns, wilfully understating income and fraudulent avoidance of tax in sections 227, 230 and 231 respectively. The additional tax for failure to furnish a return is at present the greater of two dollars and an amount equal to the tax assessable on the return. To overcome cases where a return

  ― 394 ―
has not been furnished at the date of a Court hearing, a Court could order the taxpayer to pay to the Commissioner a specified proportion of the tax eventually found to be assessable or, of course, the whole amount thereof.

22.53. The Committee recommends the second of the two proposals outlined in the preceding paragraph: that the penalty specified in section 223 for failure to furnish a return or information be of the same nature as the penalty in the sections dealing with prosecutions for false returns and understating income.

22.54. Section 246 provides that no minimum penalty imposed by the Act should be liable to any reduction under any power of mitigation which otherwise is possessed by the Court. It has been submitted that the Court should have such a power. The Committee is not of that opinion. The real question would be whether the minimum penalty set by the Act for some particular offence is too harsh and that is another matter altogether. The Committee thinks that there ought to be a general review of the penalties which the Act imposes.

Hardship Relief

22.55. It has been proposed to the Committee that a tribunal should be established to consider cases of hardship under the Act. By virtue of section 265 such a tribunal already exists in the form of a Board consisting of the Commissioner, the Secretary to the Treasury and the Comptroller-General of Customs or such substitutes as the Minister may appoint for any of them. The practice is that substitutes are appointed to constitute the Board of Relief. Where the amount of the liability does not exceed $200, the powers of the Board of Relief may be exercised by the Commissioner; where the relief claimed is less than $2,000 in an amount of tax, the Board of Relief may refer the application to a member of a Board of Review; and where the relief claimed is not less than $2,000 in an amount of tax, the Board of Relief is bound to refer the application to a member of a Board of Review. In lieu of referring the application to a member of a Board of Review, the Board of Relief may refer the application to the Chairman of a Valuation Board constituted under the Taxation Administration Act 1953 before whom the same procedure for examining the application for relief is to be followed. It will be convenient in what follows below to discuss the matter in terms of a reference to a member of a Board of Review. Provision is made in the section for the attendance of the applicant or his representative before the member of the Board of Review who may permit the applicant to be assisted by other persons. The section contemplates that a careful and recorded examination, upon oath if necessary, shall take place before the member of the Board of Review, who must submit a report to the Board of Relief, together with the record of the examination, drawing attention to any facts which have a particular bearing on the application for relief.

22.56. The section does not, however, provide, at any rate in terms, that the member of the Board of Review shall make any recommendation as to the form or amount of relief which in his opinion ought to be granted; nor does it ensure that the Board of Relief must act upon the report of the member of the Board of Review. It is clear from the construction which Courts have placed on sections similarly worded to section 265 that, although it is shown to the satisfaction of the Board of Relief from the report and the examination of the applicant before a member of a Board of Review that the hardship of the applicant which the section contemplates does in fact exist, the Board of Relief is not bound to grant any relief to the applicant, as its power to grant or to decline to grant relief is purely discretionary. The Board of Relief is not obliged to state its reasons, so that it would be virtually impossible for an unsuccessful applicant

  ― 395 ―
to discover the basis of the refusal of his application. Accordingly, it would not be possible for him even to ascertain whether the discretion for which no limits are imposed in the statute was nevertheless exercised on grounds which were irrelevant to the purposes for which it was granted. From the decision of the Board of Relief there is no appeal.

22.57. The number of cases of hardship annually dealt with and the total amount of relief granted fluctuate. In the five tax years from 1969–70 to 1973–74 the average annual number of income tax cases dealt with was 427 and the average annual total amount of relief granted was $423,263.

22.58. In the Committee's opinion the procedure for dealing with cases of hardship in section 265 should be altered. Where the amount of the liability in question does not exceed $500, the powers of the Board of Relief should be exercised by the Commissioner. Where the amount in question does not exceed $2,000, the Board of Relief should in its discretion refer the application to a single member of a Board of Review. Where the amount in question exceeds $2,000, the Board of Relief should on its discretion refer the application to a Board of Review and ought to be bound to do so if so requested by the applicant. The Board of Review is entrusted under the review provisions of the Act (see Division 2 of Part V) with functions of great importance and deals with questions involving tax liabilities which can be very considerable in amount. Judging alone by the number of cases referred to them, it is apparent that the Board of Review has the confidence of the majority of taxpayers in the disputes between themselves and the Revenue. It is obvious that Parliament reposes the same confidence in the work performed by it. The system of review as conducted by a Board of Review in a difficult field works very well. Where an application is referred by the Board of Relief either to a member of the Board of Review or to the Board of Review itself, section 265 should provide that the single member or the Board of Review, as the case may be, be required to make a recommendation which should be implemented by the Commissioner. The Committee wishes to make it abundantly clear that there is not the slightest suggestion that applications for relief have not been dealt with fairly and upon their merits by the Board of Relief under its present constitution; but it believes that the treatment of hardship applications in this way would remove from the minds of taxpayers any feelings of bias which otherwise might be present when, as is the present position, a release of a tax liability rests solely with the representatives of government departments.

22.59. The scope of the hardship covered by section 265 is that

  • ‘(a) a taxpayer has suffered such a loss or is in such circumstances; or
  • (b) owing to the death of a person, who, if he had lived, would have been liable to pay tax, the dependants of that person are in such circumstances,

that the exaction of the full amount of the tax will entail serious hardship.’

In the exercise of the discretion the whole or part of the tax liability may be released. The coverage of the hardship to be taken into consideration is very wide. The Committee does not favour the suggestion that guidelines be incorporated in the section for the exercise of the discretion: the circumstances in which hardship may be met with could vary in so many different ways that it would be a practical impossibility to enumerate them and a partial listing would only tend to place a restrictive construction on a discretion which ought to be capable of dealing with any genuine situation that may arise. But power should also be given to extend the time for payment for such of the tax as may not be released.

  ― 396 ―

22.60. A particular aspect of hardship relief raised in submissions to the Committee deals with Australian tax on income from overseas where remittance of that income cannot be obtained because of exchange control operating in the country of origin of the income. Some cases of dividends are particularly in point.

22.61. In some instances the provisions relating to relief from hardship are appropriate, but the vast majority of these cases can be satisfactorily dealt with by the Commissioner under his powers to grant extensions of time for payment and to waive completely, or collect additional tax for late payment, as is appropriate to the circumstances of each case.

Public Interest in Taxation Legislation

22.62. It has also been submitted to the Committee that foreshadowed amendments to the Act and regulations should be given public circulation so that they may be discussed by members of the interested professions, commercial organisations, trade unions and other persons. This could be done in the form of the publication of a draft Bill or a Green Paper, as is the common and successful practice in the United Kingdom. Where the proposed introduction of a new tax is decided upon by the Government, protection against advantage being taken of the intended enactment is achieved by making a public announcement, simultaneously with the publication of the draft Bill or Green Paper, that the tax, when the appropriate legislation is passed by Parliament, will take effect from a specified day. In that way the stigma of retrospectivity of taxation would be avoided. The Committee is of the opinion that these procedures should be followed and that informed discussion of any new fiscal laws will be of considerable assistance in the framing of the legislation. The experience of this Committee suggests that publicity of the kind referred to will not lead to only a mindless opposition to taxation proposals.

Independent Standing Committee

22.63. It has been submitted to the Committee that an independent standing committee should be constituted whose duties, in liaison with the Treasury and the Taxation Office, would be to keep under constant review the working of the Act, to examine and report upon any amendments to the Act either suggested by members of the public or conceived by one or other of the government departments or made advisable by reason of decisions given by the Courts. The standing committee would be in a position to give assistance in the preparation of draft Bills or Green Papers and to examine any proposals forthcoming as the result of the publicity given thereto. The Committee believes that the opening up of changes in taxation legislation to general public discussion will not only prove of great benefit in framing the statutes which impose the taxes but also educate all categories of the public in the reasons for their introduction. By means of education and open debate, upon their enactment the laws will meet with a more ready and general acceptance and understanding on the part of all those called upon to comply with them, in place of the hostility which is often displayed on those occasions. Abundant proof of this is recently to be seen in the United Kingdom. The knowledge of the existence of an independent standing committee, which would always be in a position to receive the views of persons and bodies outside the area of government and to discuss them with their authors, would tend strongly to instil confidence in the public and allay the criticism that those who pay the taxes are never heard.