Perpetual Trustee Company (Canberra) Limited, Terence Mark Snow, Richard G Kemp and John Tilley v Robert Lewis As Delegate of the Commissioner of the Australian Capital Territory Revenue [1994] ACTSC 111 (3 November 1994)

SUPREME COURT OF THE ACT

PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED, TERENCE MARK SNOW, RICHARD G
KEMP and JOHN TILLEY v. ROBERT LEWIS as delegate for THE COMMISSIONER FOR THE
AUSTRALIAN CAPITAL TERRITORY REVENUE
No. SCA76 of 1994
Number of pages - 11
Administrative Law - Statutory Interpretation
[1994] ACTSC 294; (1994) 94 ATC 4766
(1994) 123 ALR 17
(1994) 30 ATR 474

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Administrative law - judicial review - Administrative Decisions (Judicial Review) Act 1989 (ACT) - liability for stamp duty on deed appointing new trustee - validity of notice issued under sub-s.18(2) Taxation (Administration) Act - whether notice must identify person whose liability for duty is being inquired into - it must.

Statutory interpretation - Acts Interpretation Act 1967 (ACT) - delegation of powers and functions of Commissioner under sub-s.9(1) of the Taxation (Administration) Act - whether delegation of power "to request information" includes delegation of power to require person to attend - it does not.

Administrative law - whether improper for Commissioner to issue notice under sub-s.9(1) of Taxation (Administration) Act in order to obtain further material relevant to a decision subject to review by the Administrative Appeals Tribunal Act - it is not.

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Taxation (Administration) Act 1987, sub-s.18(2)
Stamp Duties and Taxes Act 1987, para.(f) of schedule 1, s.17

The Commissioner of Taxation of the Commonwealth of Australia and Others v.

The Australia and New Zealand Banking Group Limited; Smorgon and Others v. The Commissioner of Taxation of the Commonwealth of Australia and Others [1977] HCA 57; (1979) 143 CLR 499
O'Reilly v. Commissioner of State Bank of Victoria (1982) ATC 4,671 at 4,674

Saunders v. Federal Commissioner of Taxation (1988) 2 ATC 4,349
Commercial Bureau (Aust.) Pty Ltd v. Allen; Ex parte Federal Commissioner of

Taxation [1984] FCA 62; (1984) 1 FCR 202
Mobil Oil Australia Proprietary Limited v. The Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 502
Industrial Equity Ltd. and Another v. Deputy Commissioner of Taxation (NSW) and Others (1989) 90 ALR 603

HEARING

CANBERRA, 7 October 1994
3:11:1994

Counsel for the Applicants: Mr. T.F. Bathurst, QC
with Mr. J. Sexton

Solicitors for the Applicants: Mallesons Stephen Jaques

Counsel for the Respondent: Mr M.R. Bayliss

Solicitors for the Respondent: ACT Government Solicitor

ORDER

The Court Declares that the decision of the respondent to issue notices dated 22 August 1994 and addressed to each of the respondents Terence Mark Snow, Richard G. Kemp and John Tilley requiring him to furnish to the respondent certain information and requiring him to attend before the respondent to answer questions for the purpose of inquiring into or ascertaining the liability of a person under a tax law pursuant to sub-s.18(2) of the Taxation (Administration) Act 1987 is invalid.

The Court Orders that the said notices be set aside.

DECISION

MILES CJ This is an application for judicial review pursuant to sub-s.5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) of decisions made by the respondent to issue certain notices pursuant to sub-s.18(2) of the Taxation (Administration) Act 1987. The notices were issued on 22 August 1994. Two notices were addressed to each of the three second named applicants. In each case one of the notices required the recipient to furnish in writing by 12 noon on 29 August 1994 certain information set out in a schedule to the notice. In each case the other notice required the recipient to attend before the respondent on 2 September 1994 to answer questions.

2. The relevant part of the first notice addressed to Mr. Terence Mark Snow, one of the applicants, was in the following terms:

"Take notice that pursuant to subsection 18(2) of the Taxation
(Administration) Act 1987 (the "Act") for the purpose of inquiring into
or ascertaining the liability of a person under a tax law, I, Robert
Lewis, delegate of the Commissioner for Australian Capital Territory
Revenue, hereby require TERRENCE MARK SNOW of 6 Vancouver Street, Red
Hill, ACT 2603 to furnish to me in writing at the 2nd Floor, FAI
Insurances Building, 197-207 London Circuit, Canberra City ACT 2601, by
12 noon on 29 August 1994 the information set out in the attached
schedule."

3. The relevant part of the second notice addressed to Mr. Snow was in the following terms:

"Take notice that pursuant to subsection 18(2) of the Taxation
(Administration) Act 1987 (the "Act") for the purpose of inquiring into
or ascertaining the liability of a person under a tax law, I, Robert
Lewis, delegate of the Commissioner for Australian Capital Territory
Revenue, hereby require TERRENCE MARK SNOW of 6 Vancouver Street, Red
Hill, ACT 2603 to attend before Robert Lewis at the 1st Floor, FAI
Insurances Building, 197-207 London Circuit, Canberra City ACT 2601, at
11.30 a.m. on 2 September 1994 to answer questions for the purposes of
inquiring into or ascertaining the liability of a person under a tax
law."

4. Notices in similar terms were addressed to each of the other two of the second named applicants.

5. The applicants contend that the notices are invalid on the following grounds:

"(1) That the respondent did not have jurisdiction to make the decisions
to issue the Notices as the Notices are not issued for a purpose
permitted by s.18(2) Taxation (Administration) Act 1987.
(2) The decisions were not authorised by s.18(2) Taxation
(Administration) Act 1987.
(3) The making of the decisions was an improper exercise of the power
conferred by s.18(2) Taxation (Administration) Act 1987 under which they
were purported to be made."

6. There is a history leading up to the issue of the notices. It is set out in the statement of reasons given by the respondent pursuant to a direction of the Deputy Registrar of this Court and may be summarised as follows.

7. Before 14 June 1989 Capital Property Corporation Pty Ltd (Capital Property Corporation) was the registered proprietor of the leasehold of Block 19, Section 23, Division of City. That leasehold interest was "at least part" of the property of a unit trust known as the T and G Trust. Capital Property Corporation was the sole trustee of the T and G Trust and also the sole beneficial owner of all units in that trust. The T and G Trust was "subject to a discretionary trust" known as the Empire Trust. Capital Property Corporation was also the sole trustee of the Empire Trust. Among the persons entitled as beneficiary in the Empire Trust was one of the applicants, Mr. Terence Mark Snow.

8. On 14 June 1989 Capital Property Corporation, as both trustee and beneficiary of the T and G trust, executed a deed of appointment appointing the first named applicant, Perpetual Trustee Company (Canberra) Limited (Perpetual Trustee) as the trustee of the T and G Trust in place of Capital Property Corporation.

9. Following a request dated 14 June 1989 under s.138A of the Real Property Act 1925 (ACT), the appointment of Perpetual Trustee as trustee in place of Capital Property Corporation was registered in the office of the Registrar of Titles. The documents lodged for this purpose by the solicitors for Perpetual Trustee, Messrs Mallesons Stephen Jaques, were treated by the Commissioner for Australian Capital Territory Revenue (the Commissioner) as falling within the exemption provided by para.(f) of schedule 1 to the Stamp Duties and Taxes Act 1987 (the Stamp Duties Act) and therefore as exempt from stamp duty pursuant to s.18 of the Stamp Duties Act.

10. By deed executed 31 August 1989, following a request from Capital Property Corporation dated the previous day, Perpetual Trustee declared that it held the unexpired residue of the leasehold estate of Block 19, Section 23, Division of City "in its capacity as the trustee of the Capital Property Trust". The nature of the Capital Property Trust and the identity of the beneficiaries of that Trust do not appear from the respondent's reasons for decision and are not disclosed otherwise in the evidence before me.

11. Subsequently, the Commissioner "discovered that the Capital Property Trust purchased the beneficial interest in Block 19, Section 23, Division of City for a total sum of $49.5 million". The Commissioner then formed the view that stamp duty was payable on the deed of appointment of 14 January 1989 and that Perpetual Trustee was liable as the transferee for the payment of such stamp duty. The Commissioner issued against Perpetual Trustee an assessment for stamp duty for $2,721,765, and penalties (after remission) of $3,130,029.75, with a total liability of $5,851,794.75.

12. Perpetual Trustee objected to the assessment. The objection was disallowed on 18 December 1992. Perpetual Trustee appealed to the Administrative Appeals Tribunal of the Australian Capital Territory (the AAT). The AAT upheld the substantive decision of the Commissioner on the nature of the deed of appointment, but varied the assessment to a nominal amount upon the basis that the deed operated as an agreement for transfer of the legal interest in the leasehold only and not of the beneficial interest.

13. The Commissioner appealed to this Court. Higgins J remitted the matter back to the AAT to enable further evidence to be taken there on the question whether there had been a tax avoidance scheme under para.(f) of schedule 1 to the Stamp Duties Act.

14. On appeal from the decision of Higgins J, the Federal Court held that the deed of appointment, according to its terms, was not "a transfer or an agreement for a transfer, of an estate in fee simple". However, in the majority view of the Federal Court it was considered that the circumstances, even if fully disclosed, might show that the deed of appointment was part of a wider transaction in which the deed was intended as the instrument by which the parties gave effect to a joint intention that the leasehold would be transferred to Perpetual Trustee Co. as trustee for the Capital Property Trust. The matter was therefore remitted to the AAT to be heard and decided again, with or without evidence, but with a direction by the Federal Court that if the evidence before the AAT remains the same, the deed of appointment is not a dutiable instrument.

15. Since the remission to the AAT, the Commissioner has caused summonses to be issued out of the AAT against a number of persons and companies. As a result of the issue of the summonses, the Commissioner has obtained access to a number of documents. In the light of the information thus gained, the Commissioner has reached the conclusion that prior to 14 June 1989, certain properties, formerly the property of the T and G Trust, were transferred out of the T and G Trust and that Perpetual Trustee obtained legal advice on the stamp duties implications of these transactions before they were carried out.

16. The respondent, who issued the notices as delegate of the Commissioner, in his reasons for decision dated 21 September 1994, refers to the inquiry into these matters as being "of a type which would ordinarily be undertaken either prior to the issue of an assessment or prior to the resolution of an objection". However, the documents which have been produced through the AAT processes have resulted in a limited amount of relevant information only. Therefore, according to the respondent, he made the decision to issue the notices addressed to Messrs Tilley and Snow to attend to answer questions in the expectation that the answers will assist him to determine whether evidence exists which leads to the conclusion that the instrument purporting to be a deed of appointment was in truth an agreement for the transfer of a lease and therefore liable to duty under s.17 of the Stamp Duties Act. The respondent says that if the Commissioner comes to the view that the evidence, augmented by the answers to the questions, does not lead to this conclusion, he will agree to AAT setting aside the decision to issue the notices, but that "if such evidence is available, a different position will be adopted". The respondent also foreshadows possible argument before the AAT as to the rate of penalties in the light of evidence disclosed as a result of the notices.

17. Finally, the respondent furnishes as a reason for the decision to issue the notices the possibility that the notices may bring to light information as to the liability for stamp duty on documents executed in connection with the deed of appointment. The respondent seeks therefore to inquire by means of the notices "into the liability of any transferee of such transfers".

18. I understand that the question whether professional privilege applies to the notices has been raised in the AAT, but except to the extent that it is referred to later in this judgment, it was not a question which I was asked to determine.

19. The first ground of challenge to the notices is that they are not issued for a purpose authorised by sub-s.18(2) of the Taxation (Administration) Act. That sub-section is as follows:

"18.(2) If the Commissioner reasonably believes that a person is able to
give information or produce documents that may be used for the purpose
of assessing, amending an assessment of, enquiring into or ascertaining
the liability of that person or another person under a tax law, the
Commissioner may, by instrument served on the first-mentioned person,
require the person:
(a) to give any such information to the Commissioner within the time and
in the manner specified in the instrument;
(b) to attend before the Commissioner or another person specified in the
instrument at a specified time and place (being a time and place that
are reasonable in the circumstances, and there to answer questions for
that purpose; or
(c) to produce any such document to the Commissioner or another person
specified in the instrument, in accordance with the instrument."

20. The submission is that the notice must identify the person whose liability under a tax law is being inquired into or ascertained. The notices in question do not contain any such identification. Indeed, counsel for the respondent, as I understood him, submitted that the identification of such a person might properly be the very matter which the Commissioner seeks to have revealed by the process of serving notices to give information or to attend to answer questions. Hence, so it was submitted for the respondent, sub-s.18(2) should not be interpreted to require that identification of the person be contained within the terms of the notice.

21. Counsel for the applicants relies on the decision of the High Court in The Commissioner of Taxation of the Commonwealth of Australia and Others v. The Australia and New Zealand Banking Group Limited; Smorgon and Others v. The Commissioner of Taxation of the Commonwealth of Australia and Others [1977] HCA 57; (1979) 143 CLR 499 (Smorgon's case) and in particular the judgment of Gibbs ACJ. The statutory provision in that case was sub-s.264(1) of the Income Tax Assessment Act 1936 (Cth). It provides as follows:

"The Commissioner may by notice in writing require any person, whether a
taxpayer or not, including any officer employed in or in connexion with
any department of a Government or by any public authority - (a) to
furnish him with such information as he may require; and (b) to attend
and give evidence before him or before any officer authorized by him in
that behalf concerning his or any other person's income or assessment,
and may require him to produce all books, documents and other papers
whatever in his custody or under his control relating thereto."

22. It was held that the only documents that the Commissioner may require to be produced in accordance with the sub-section are those which relate to the income or assessment of income of some person named or indicated in the notice. Gibbs ACJ said at 525:

"To be valid a notice to produce documents under s.264(1)(b) must of
necessity identify with sufficient clarity the documents which are
required to be produced. However the notice must in my opinion go
further: it must show the person to whom it is addressed that any
document which he is required to produce is one whose production the
Commissioner is entitled to require. Where a notice is addressed to a
taxpayer who is required to produce documents which relate to his own
income or assessment, the very description of the documents (for
example, "your books of account") may be enough to show that the notice
is within the power conferred by the section. Where however the notice
is addressed to one person, requiring him to produce the documents of
another, the notice must show that those documents relate to the income
or assessment of a particular person, who must be identified. The power
is confined to giving a requirement of a particular kind - a requirement
to produce documents relating to the income or assessment of some person
- and a notice requiring the production of documents not so related is
beyond the scope of the power. Similar reasoning was applied, correctly
in my opinion, by Burt CJ in Snow v. Keating (W.A.) (1978) 19 ALR 373
where the notice required a taxpayer to give evidence but did not
specify the person concerning whose income or assessment the evidence
was sought."

23. It may be observed that, under sub-s.46(1) of the Taxation (Administration) Act, it is an offence punishable by a fine not exceeding $2,000 to contravene a requirement of a tax law to give a return, written particulars or other information to the Commissioner or another person to the extent that the person required is capable of doing so. Under sub-s.46(2) it is an offence for a person, who, when attending before the Commissioner or another person in accordance with a tax law, to contravene a requirement of a tax law to answer a question or to produce a book, paper, record or other document to the extent that the person is capable of doing so. The offence under sub-s.46(2) is also punishable by a fine not exceeding $2,000.

24. Section 19 of the Taxation (Administration) Act provides that a person is not excused from giving information, answering a question or producing a document in compliance with "an instrument" served under s.18 on the ground of self incrimination. The section further provides that any information, answer or document obtained under sub-s.(1) or obtained as a direct or indirect consequence of that information, answer or document is not admissible in evidence against the person in criminal proceedings other than proceedings for a tax offence.

25. Assuming that a requirement to furnish information or to answer questions in compliance with a notice given under sub-s.18(2) of the Taxation (Administration) Act is a requirement under a tax law, it would appear that a person who fails to comply with the requirement of a valid notice is guilty of a criminal offence. As the validity of the notice is a matter on which criminal liability depends, the terms of such a notice must be drafted with care and construed with due regard to the statutory provisions by virtue of which the notice is issued.

26. Whilst the wording of sub-s.18(2) of the Taxation (Administration) Act is not identical with that under consideration in Smorgon's case, it seems to me that the principles as enunciated by Gibbs ACJ can be no different in substance. At the very least, the recipient of the notice needs to be put in a position where an enlightened decision can be made on whether non-compliance with the notice will expose the recipient to criminal liability. As Gibbs ACJ observed at 523:

"If a bank were charged with a contravention of s.224 the burden would
lie on the prosecution to establish that the documents which were not
produced were of the kind mentioned in s.264(1)(b). If that were proved,
the bank would escape conviction if it proved that it had just cause or
excuse for its refusal or neglect, and it would no doubt have just cause
or excuse if it had an honest belief (or at least an honest and
reasonable belief) that the documents were not of that kind."

27. In my view, the omission to identify the person whose liability under a tax law is being inquired into or ascertained deprives the recipient of the opportunity to make a decision whether the information sought or the question asked is relevant to the purpose of the notice. The recipient would not be able to know whether non-compliance with the notice is or is not criminal conduct punishable under the Act. In my view, a valid notice under sub-s.18(2) of the Taxation (Administration) Act must identify the person whose liability under a tax law is being inquired into or ascertained. None of the notices in the present case do so and they are all, in my view, invalid for that reason. The Commissioner and his delegate, the respondent, were therefore in error in making a decision to issue the notices.

28. It was also suggested in argument that failure to identify the person whose liability is being investigated or ascertained would prevent the matter of legal professional privilege of that person being raised in opposition to furnishing information or answering questions. In order to decide this issue it would be necessary for me to rule on whether legal professional privilege is available to excuse a person from compliance with a notice under sub-s.18(2) of the Taxation (Administration) Act. I do not think that these are appropriate proceedings in which to make a ruling of that nature. The precise question has not been argued before me. In any event, as legal professional privilege is available only to a person whose privilege is affected, it may be necessary in this context only for the notice to specify whether the person to whom the notice is directed is the person whose liability is being investigated or ascertained or whether the subject of the investigation is some person other than the recipient. If the notice makes clear that it is some other person who is being investigated, the recipient would not be entitled to object to compliance with the notice on the ground of legal professional privilege.

29. The second submission on behalf of the applicant relates to the powers delegated by the Commissioner to the respondent. The power of the Commissioner to delegate powers and functions is contained in sub-s.9(1) of the Taxation (Administration) Act which provides that "the Commissioner may, by writing signed by him or her, delegate any of his or her powers or functions".

30. On 26 August 1993 an instrument of delegation was signed by the Commissioner. It revokes previous delegations. The relevant provisions otherwise are as follows:

"I further delegate to the persons performing the duties of an office
specified in columns 3 and 4 of the accompanying schedule my powers in
column 2 under the Acts specified in column 1.

The relevant parts of the schedule are as follows:

"Column 1 Column 2 Column 3 Column 4
Act Power Classification Position No.
Taxation ..... ..... .....
(Administration) Request further SO Grade C 2866"
Act 1987 information (S18)

31. On 20 May 1994 the respondent was appointed to position No. 2866 until 30 June 1995.

32. The applicants submit that the instrument of delegation fails to delegate the power under para.18(2)(b) of the Taxation (Administration) Act to require the attendance of a person to answer questions. Counsel for the respondent submitted that the instrument should be read as conferring the whole of the powers granted under s.18. It was submitted for the respondent that sub-s.12(3) of the Interpretation Act 1967 (ACT) provides inter alia that a heading to a section of an Act does not form part of the Act, that s.18 of the Taxation (Administration) Act bears the heading "Further Information", that the instrument of delegation contains the words "request further information" immediately above the reference to "s.18" and that as the heading is not part of s.18, the words "request further information" should not be regarded as part of the instrument of delegation. There is no merit in this submission. It does not follow any chain of logical reasoning. No judicial authority is cited in support. There is no warrant for extending the provision of the Interpretation Act which requires the words in a heading to a section in an Act to be in effect excised from the Act to words which appear in an instrument which is not part of an Act.

33. The power to issue notices like those issued pursuant to sub-s.18(2) of the Taxation (Administration) Act is a power "whose exercise will be likely adversely to affect rights of the individuals": O'Reilly v. Commissioner of State Bank of Victoria (1982) ATC 4,671 at 4,674 per Gibbs CJ. Therefore an instrument which delegates such a power or part of it should not be construed loosely. In my view, the instrument of delegation which delegates the power to "request" further information under s.18 cannot be construed as a delegation by the Commissioner to the respondent of the power under sub-s.18(2) of the Taxation (Administration) Act to require a person to attend to answer questions.

34. For those reasons the three notices addressed to the recipients requiring them to attend to answer questions are invalid on this further ground.

35. The final submission for the applicant is that the decision to give the notices was an improper exercise of the powers conferred by sub-s.82 of the Taxation (Administration) Act, having regard to the previous history of the matter and the pending proceedings in the AAT. It was submitted that the Commissioner was misusing the opportunity given by the remitter by the Federal Court to the AAT, in that he was seeking not to make an assessment or further assessment but to defend or bolster the existing assessment.

36. Why this is an improper purpose or why it invalidates the decision to give the notices is not immediately clear: Reliance was placed on Saunders v. Federal Commissioner of Taxation (1988) 2 ATC 4,349, a decision of Northrop J sitting in the Federal Court of Australia. That was a case in which a taxpayer who had been committed for trial on charges of tax evasion had requested the review of various tax assessments which review was pending before the Commonwealth AAT. Tax officers sought to inspect and copy certain of his business records pursuant to authority conferred by s.263 of the Income Tax Assessment Act 1936 (Cth). The taxpayer challenged the power of the Commissioner and his officers to do so and sought an injunction to prevent the Commissioner inter alia from improperly using a coercive power to obtain material which would not otherwise be available to him using the ordinary processes of the AAT.

37. Northrop J observed that the Commissioner was not empowered to engage in conduct amounting to contempt of court in the sense of improperly interfering with judicial proceedings in a court, and referred to Commercial Bureau (Aust.) Pty Ltd v. Allen; Ex parte Federal Commissioner of Taxation [1984] FCA 62; (1984) 1 FCR 202. Northrop J went on to emphasise that the function of the AAT (Commonwealth) is to review a decision on its merits and not to determine the correctness in law of that decision, and that in doing so the AAT substitutes itself for the primary decision maker, with all the discretions and powers of the primary decision maker, with all the material that was before the primary decision maker, and any additional material placed before it, and acting in accordance with the requirements of natural justice. Northrop J concluded at 4,356:

"Therefore it is, in my view, inappropriate to regard the Commissioner
as having gained an unfair advantage as a result of his use of sec.263
powers. The Tribunal is in the shoes of the Commissioner and may use any
material put before it in reaching its decision. The applicant would be
entitled to be informed of material so obtained. Therefore, it is quite
permissible for the Commissioner to obtain material pursuant to its
sec.263 powers for the purpose of placing such material before the
Tribunal, if indeed this was a purpose of obtaining the information. In
so doing, he is not in contempt of the Tribunal."

38. With respect to his Honour, I think that these words apply to the AAT of the ACT and to the circumstances of the present case. Davies J emphasised when remitting the matter to the AAT that it is a matter for the AAT whether it should receive further evidence or not for the purpose of exercising the powers and discretions conferred upon the Commissioner as primary decision maker in order to determine what decision should be made under the enactment. As was put in relation to a Board of Review, by Kitto J in Mobil Oil Australia Proprietary Limited v. The Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 502:

"..... its function is merely to do over again (within the limits of the
taxpayer's objection) what the Commissioner did in making the assessment
- not to give a decision affecting the taxpayer's legal situation, but
to work out, as a step in administration, what it considers that
situation to be. The Board is 'in the same position as the Commissioner
himself' ....."

39. In Smorgon's case (CLR at 536) Mason J (as he then was) touched on the relationship between the power of the Commissioner of Taxation to make inquiries and an issue that arises between the Commissioner and the taxpayer in the context of legal proceedings:

"The strong reasons which inhibit the use of curial processes for the
purposes of a "fishing expedition" have no application to the
administrative process of assessing a taxpayer to income tax. It is the
function of the Commissioner to ascertain the taxpayer's taxable income.
To ascertain this he may need to make wide-ranging inquiries, and to
make them long before any issue of fact arises between him and the
taxpayer. Such an issue will in general, if not always, only arise after
the process of assessment has been completed. It is to the process of
investigation before assessment that s.264 is principally, if not
exclusively, directed."

40. In this passage his Honour appears to leave open the possibility that the Commissioner's powers to investigate are not terminated by the process of assessment. Further, in the context of an administrative decision, being an assessment of tax which becomes the decision of the AAT in the review process, that decision, as already indicated, is to be made by the AAT standing in the shoes of the decision maker, exercising all the power and discretion available to the decision maker before the decision was made.

41. In Industrial Equity Ltd. and Another v. Deputy Commissioner of Taxation (NSW) and Others (1989) 90 ALR 603, a full court of the Federal Court of Australia held that the process of assessment under the Income Tax Assessment Act 1936 does not end with the issue of a notice of assessment. It is an ongoing activity in relation to which the Commissioner is entitled and sometimes obliged to use the statutory inquisitional and coercive powers in order to carry out the statutory duties, including the review and assessments and the consideration of whether to issue amended assessments. In my view, a similar approach is appropriate to questions involving assessments of duty under the Stamp Duties Act and the use of powers under the Taxation (Administration) Act.

42. In the light of the above I see no impropriety in the respondent seeking to ascertain whether there is further material which is relevant to the decision to be made by the AAT as it has been remitted to the AAT, nor do I see any impropriety in the Commissioner using the process of notices under sub-s.18(2) of the Taxation (Administration) Act for this purpose. That the scope of the notices in question, or some of them, is such that material is sought which on the face of it is relevant not to the question whether duty is leviable on the notice of appointment of trustee, but to possible liability for duty in respect of other instruments does not appear to me to be to the point. In any event, it is relevant for the Commissioner to inquire whether the notice of appointment is made in connection with a tax avoidance scheme, because if it is there is no exemption from liability for duty. In my view, there is no impropriety or invalidity in notices given under sub-s.18(2) of the Taxation (Administration) Act for the purpose of seeking information or requiring attendance to answer questions relevant to that wider issue of tax avoidance. I would not set aside the notices or otherwise grant relief to the applicant on this ground.

43. However, as I have already indicated, it is my view that the notices are invalid in that they do not identify the person or persons whose liability to pay duty is being investigated or ascertained.

44. I propose to make a declaration and an order in the terms set out in the application filed in court on 26 August 1994 slightly expanded to read as follows:

1. Declare that the decision of the respondent to issue notices dated 22
August 1994 and addressed to each of the respondents Terence Mark Snow,
Richard G. Kemp and John Tilley requiring him to furnish to the
respondent certain information and requiring him to attend before the
respondent to answer questions for the purpose of inquiring into or
ascertaining the liability of a person under a tax law pursuant to
sub-s.18(2) of the Taxation (Administration) Act 1987 is invalid.
2. Order that the said notices be set aside.

45. However, if the parties wish to be heard, I would consider giving leave to bring in short minutes of order. Further, unless the parties wish to be heard, I propose to order that the respondent pay the costs of each of the applicants.