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High Court of Australia |
SHELL CO. OF AUSTRALIA LTD. v. FEDERAL COMMISSIONER OF TAXATION [1949] HCA 29; (1949) 78 CLR
439
Income Tax (Cth.)
High Court of Australia
Latham C.J.(1), Rich(2), Dixon(3), McTiernan(4) and Webb(5) JJ.
CATCHWORDS
Income Tax (Cth.) - Assessment - Stage at &which process of assessment concluded - Company - Further tax on undistributed profits - Deduction of taxes paid or payable - Taxes payable in Australia and United Kingdom on same income - Relief against double taxation - "Rebate" - Income Tax Assessment Act 1936- 1944 (No. 27 of 1936 - No. 28 of 1944), s. 159, Part IIIA., ss. 170, 172.
HEARING
Melbourne, 1949, May 31; June 1, 2;DECISION
August 4.2. The company paid income tax (ordinary tax, super tax and further tax) in Australia in respect of the income of the year ending 31st December 1943. The taxable income was A2,380,011 pounds. It also paid income tax on part of this income in the United Kingdom. A rebate of tax amounting to E354,616 pounds was allowed in the United Kingdom and a rebate of A199,700 pounds was allowed in Australia. (at p448)
3. The commissioner then treated the rebate of 199,700 pounds as having reduced the amount of income tax payable by the company which could be deducted for the purpose of ascertaining the undistributed income upon which the company was assessable to further tax. He re-assessed the company to further tax, increasing the amount of tax by 8,700 pounds. The commissioner also amended the assessment of war-time (company) tax. He again treated the rebate of 199,700 pounds as reducing the amount of income tax payable by the company, and therefore as increasing the taxable profit of the company, with the result that the war-time (company) tax was increased by 112,698 pounds. The company has objected to the amended assessment to war-time (company) tax - but that objection is not before this Court in these proceedings. The subject matter of this appeal is the assessment to further tax under the Income Tax Assessment Act, the question being whether the commissioner was entitled to regard the rebate of 199,700 pounds as reducing the amount of tax paid or payable for the purposes of assessment of further tax. (at p448)
4. The case stated shows that in respect of the relevant year, namely, the year ending 31st December 1943, the company was assessed under the Income Tax Assessment Act 1936-1944 to ordinary income tax and super tax in an amount of 832,084 pounds. (at p448)
5. In respect of the taxable profit of the company during the same period the company was assessed to war-time (company) tax in a sum of 169,128 pounds. For the purpose of ascertaining the taxable profit of the company the amount of ordinary income tax was deducted from the taxable profit of the company: see War-time (Company) Tax Assessment Act 1940-1944, s. 3 - "'taxable profit' means the amount remaining after deducting from the taxable income of the accounting period as assessed under the Income Tax Assessment Act - (a) the income tax payable in respect of that taxable income; (b) . . ." (at p448)
6. "Income tax" is defined in the same section as meaning the income tax imposed as such by any Act, but as not any tax assessed under Part IIIA. of the Income Tax Assessment Act. (at p448)
7. The company was also taxed in respect of the same income on portion of its taxable income which had not been distributed in dividends: Income Tax Assessment Act 1936-1944, s. 160B. in Part IIIA. Section 160C. provides that for the purpose of the further tax imposed on that portion of the taxable income of a company which has not been distributed as dividends, that portion shall be ascertained by deducting from the taxable income (1) all taxes which are paid in the year of income - (a) under Commonwealth Income Tax Acts; (b) under the War-time (Company) Tax Assessment Act; (c) under State or Territorial laws; and (d) in any country out of Australia in respect of income taxable in Australia - "less any refund received in the year of income of any tax to which this paragraph refers." Section 160C. (5) allows a company to elect between deduction of income tax "paid" in the year of income (in accordance with the provision already quoted from s. 160C. (1)) and deduction of income tax "payable" under the Commonwealth Acts mentioned in s. 160C. (1). The appellant company elected for deduction of taxes payable in lieu of deduction of taxes paid. Further tax payable under Part IIIA. of the Act was assessed after allowing deduction of taxes payable and dividends distributed. The taxes deducted were income tax and super tax 832,084 pounds, war-time (company) tax 169,128 pounds, together with State taxes (less refunds) and United Kingdom income tax (less refunds) (s. 160C. (1) (i)), a total of 1,070,240 pounds. The taxable income as assessed was 2,380,011 pounds. The excess over the taxes deducted was 1,309,771 pounds. An amount of 1,000,000 pounds had been distributed as dividends and the balance of 309,771 pounds was assessed to further tax at 2s. in the pound - the tax amounting to 30,977 pounds. The company was liable to pay United Kingdom income tax upon part of its income (E1,418,467 pounds = A1,773,084 pounds) derived during the accounting period and the amount of tax at the rate of 10s. in the pound was E709,233 pounds. The portion of the income common to Australia and the United Kingdom in respect of which this tax was charged was E1,418,467 pounds. (at p449)
8. The United Kingdom Finance Act 1920, s. 27, contains the English provisions for relief from double taxation. In accordance with those provisions the tax on the amount of E709,233 pounds was reduced by half, leaving a net amount of E354,616 pounds payable as tax in the United Kingdom. That amount was duly paid. (at p449)
9. The company then applied for the rebate to which it was entitled under Commonwealth law. The Income Tax Assessment Act 1936-1944, s. 159 (1), is the provision which is applicable in this case, the taxpayer having paid tax under the law of the United Kingdom, but not under the law of a State, on income derived from sources in Australia, and the "Commonwealth rate" being greater than half of the British rate. The British rate was, as already stated, 10s. in the pound. The Commonwealth rate was greater than 5s. (half of 10s.). The "Commonwealth rate" (s. 159 (3)) means the rate "ascertained by dividing the total amount of income tax paid or payable for the year by the taxpayer (after the deduction of all rebates other than the rebate granted under this section) by the amount of the total taxable income in respect of which the tax paid or payable under this Act has been charged for that year. . . ." Thus in order to ascertain the "Commonwealth rate" the amount of income tax and super tax paid in Australia (A832,084 pounds), together with the tax under Part IIIA. of the Act on undistributed income of the company (A30,977 pounds), amounting in all to A863,060 pounds, was divided by the amount of the total taxable income of the company, namely A2,380,011 pounds. The result of this calculation was that the "Commonwealth rate" was 87.0309d.; half the United Kingdom rate was 60d.; the difference between these rates was 27.0309d. The amount which had been taxed in both Australia and the United Kingdom was E1,418,467 pounds, equivalent to A1,773,084 pounds. The result of applying the "Commonwealth rate" to this sum was to produce a rebate of A199,700 pounds. This amount was in part applied to meeting tax liabilities of the company and the balance was paid to the company. The company contends that the whole matter of tax in relation to the year of income tax, that is ordinary income tax, super tax, further tax and war-time (company) tax, was ended at this point. (at p450)
10. The commissioner, however, treated the rebate of 199,700 pounds as reducing the amount of income tax payable by the company. It was treated by the commissioner as reducing the amount of ordinary income tax, and was not distributed over the several heads of tax proportionately. The result of so treating the rebate was to reduce the deduction allowable under the War-time (Company) Tax Act (see definition (already quoted) of "taxable income," s. 3) and therefore to increase the amount of "taxable profit," and therefore to increase the amount of tax. The amount of increase in war-time (company) tax brought about in this manner was, as already stated, 112,698 pounds. (at p450)
11. The commissioner also re-assessed the company to further tax under Part IIIA. of the Income Tax Assessment Act. Under s. 160C. (1) and (5) it was proper, in order to ascertain the amount of undistributed income, to deduct the taxes payable in the year of income. The commissioner contends that the taxes payable were the amount of tax (832,084 pounds) less the rebate of 199,700 pounds, that is 632,383 pounds. The war-time (company) tax had been increased by re-assessment by 112,698 pounds. The net result as reached by the commissioner was to increase the amount of undistributed profits by 87,002 pounds, the difference between 199,700 pounds and 112,698 pounds. The result was that the amount of further tax was increased by 8,700 pounds. The appeal is against the amended assessment in which this increase has been made. (at p450)
12. Section 160c. (1) (i) provides that taxes deductible for the purpose of ascertaining profits which have not been distributed are certain taxes "less any refund received in the year of income of any tax to which this paragraph refers". The commissioner contends that a rebate allowed under s. 159 is a "refund," with the result that the amount of taxes "payable" under the Income Tax Assessment Act is therefore reduced for the purposes of s. 160C. (1) (i). The result which is thus reached is that income tax and super tax are taken for the purpose of the amended assessment to further tax at 632,383 pounds, although the assessment to these taxes remains at an amount of 832,084 pounds - a tax which the company has paid. Also for the purpose of determining the Commonwealth rate in order to calculate the rebate under s. 159 the sum of 832,084 pounds has been taken as representing those taxes. But for the purposes of wartime (company) tax the taxes deductible from the taxable profits of the company have been decreased by the amount of the rebate - 199,700 pounds. The result is that the company has received a rebate of 199,700 pounds, but, by reason of this rebate, the war-time (company) tax has been increased by 112,698 pounds, and further tax by 8,700 pounds, that is, in all, by 121,398 pounds. Thus the assessments which were the basis of the calculation of the rebate have been amended by reason of the rebate itself. If those assessments are taken to be correct as they now stand in their amended form, the total amount of income tax upon which the "Commonwealth rate" for the purpose of ascertaining the amount of rebate has been calculated was wrongly stated. The figure should have been 632,383 pounds, instead of 832,084 pounds, for ordinary and super tax, and it should have been 39,677 pounds instead of 30,977 pounds for further tax. Therefore, if the amended assessments are correct, the rebate should be recalculated. If this were done the whole process would begin again - a different amount as "refund" would be used in determining the amount of further tax payable under Part IIIA. of the Act, and both further tax and war-time (company) tax would be re-assessed. Once again the basis of the calculation of rebate would be wrong and a new calculation would have to be made. This process would never end. No satisfactory argument has been presented which shows that the commissioner's view does not bring about this consequence and such a result is so extraordinary that an interpretation which brings it about should not be accepted unless no other view of the relevant legislative provisions is reasonably open. (at p451)
13. In my opinion the difficulty disappears if the "rebate" under s. 159 is not regarded as a "refund" under s. 160C. (1) (i). The rebate provisions assume that the "total amount of income tax paid or payable for the year by the taxpayer" (s. 159 (3) (a)) has been ascertained. An amendment of assessment duly made will alter that amount. But that amount cannot be altered except by an amendment of the assessment. The calculation and allowance of a rebate under s. 159 does not involve any amendment of any assessment. The rebate is made upon the basis that the taxpayer is liable to pay ascertained amounts of tax in the United Kingdom and in Australia. To allow a rebate calculated upon that basis to bring about an alteration of the amount of tax paid or payable would destroy the basis of the rebate calculation and would, as already stated, commit the commissioner and the taxpayer to an infinite series of calculations. (at p452)
14. Section 172 provides that - "Where by reason of any amendment the taxpayer's liability is reduced, the Commissioner shall refund any tax over-paid." (at p452)
15. This section shows the nature of a refund. It is a repayment to the taxpayer of tax which he should not have paid. Such a repayment is a refund which is properly used to reduce the amount of taxes which can be deducted under s. 160C. (1) (i), but such a repayment is quite different from a rebate under s. 159. The "refund" is made because of a discovered absence of assumed liability; the "rebate" under s. 159 is allowed because of the presence of actual liability. Thus the rebate does not represent the refund of money not properly claimable as tax; it is an allowance made by the Treasury in accordance with the Act for the reason that the taxpayer had become liable to pay double tax. "Concessional rebates" allowable under s. 160 are quite different in character. Section 160 (1) provides that a taxpayer shall be entitled to a rebate in his assessment of tax of certain amounts. These rebates therefore reduce the amount of tax which is assessed and reduce the amount of tax "payable" - see s. 166. But no change is made in any assessment by the allowance of a rebate under s. 159: R. v. Federal Commissioner of Taxation; Ex parte Sir Kelso King (1). (at p452)
16. It was contended for the commissioner that the provisions of the Act properly interpreted did not bring about the result that there could be no end to the calculation and recalculation of rebates and to re-assessments. It was said that the argument that this was the case did not give adequate weight to the provision in s. 159 (3) (a) that the Commonwealth rate meant the rate ascertained by dividing the total amount of income tax paid or payable "(after the deduction of all rebates other than the rebate granted under this section) by the amount of the total taxable income." It was argued for the commissioner that the words in brackets meant that the rebate granted under the section, though not deductible in the calculation of the "Commonwealth rate," could be deducted, but once only, for the purposes of calculating further tax, with a consequential result in relation to war-time (company) tax. I was unable to appreciate this argument. The words in brackets are limited in their application to the calculation of the "Commonwealth rate," and have no relation to the process of assessment of tax under any of the provisions of the Act. My brother Dixon has dealt with this argument for the commissioner analytically and elaborately in his reasons for judgment and has given several answers to the contention. I cannot usefully add anything on this point to what he has so conclusively said. (at p453)
17. The questions submitted in the case are as follows: - "1. In the assessment of the Appellant for further tax under Part IIIA. of the said Act in respect of its income for the year ended 31st December 1943, was the Appellant entitled under Section 160C. (5) to a deduction, as 'income tax payable under this Act' of the amount of 832,083 pounds 11s., being the amount of income tax and super-tax assessed as stated in paragraph 4 hereof? 2. In the circumstances set out in this Case, was the Commissioner entitled under the provisions of the Income Tax Assessment Act 1936-1944, in making the last-mentioned assessment of further tax payable by the Appellant in respect of its income for the year ended 31st December 1943, to take into account the rebate of 199,700 pounds 5s. under section 159 referred to in paragraph 19 hereof, and thereby increase the further tax payable by 8,700 pounds 6s.? 3. If No both to Question 1 and to Question 2, but the Commissioner was entitled to take any rebate or part of any rebate allowed under Section 159 into account in assessing the further tax under Part IIIA. of the said Act payable by the Appellant in respect of its income for the year ended 31st December 1943, how should the amount of such rebate or part of rebate be calculated and taken into account?" (at p453)
18. In my opinion the questions should be answered as follows: - (1) Yes; (2) No; (3) Unnecessary to answer. (at p453)
RICH J. I cannot usefully add to what has been said on the question of the rebate, the subject of the case stated. (at p453)
2. In my opinion the sum of 199,700 pounds 5s. should not be taken into account under s. 159 of the Income Tax Assessment Act 1936-1944. (at p453)
3. And I answer questions (1) Yes; (2) No; (3) Not answered. Costs - costs in the appeal. (at p454)
DIXON J. This case concerns the inter-relation of the further tax upon a public company's undistributed income with the provision relieving against double taxation which for the future has been superseded by Part IIIB. of the Income Tax Assessment Act 1936-1948. What we are called upon to decide is at bottom the question in what order of priority s. 159 and s. 160C. of the Act of 1936-1944 are to be applied in ascertaining the final state of the account between a company and the Commissioner of Taxation in respect of taxation upon the company's profits or income. Section 159 provides for a rebate of tax to a taxpayer part of whose income has been taxed under the law of the United Kingdom and under the law of the Commonwealth. The relief from double taxation afforded by the rebate is based upon the assumption that the taxes to be borne by the taxpayer on the income under the Income Tax Assessment Act are ascertained and are paid or are due or payable. On this basis a rebate is calculated, which, when added to relief granted in the United Kingdom pursuant to a reciprocal arrangement between the governments of the two countries, should result in the final burden of the taxpayer being limited to the total amount of the taxes of the country whose imposition is the higher. (at p454)
2. Section 160c. relates to the calculation of that portion of the taxable income of a company which has not been distributed in dividends for purposes of the so-called further tax imposed on the undistributed income of public companies. For this purpose the undistributed income is ascertained according to the principle that from the taxable income of the company there should be deducted the dividends paid thereout, certain losses and the taxation borne by the income. (at p454)
3. The commissioner claims that to give effect to the policy of this provision as well as to the language in which it is expressed it is necessary to take into account the rebate given by s. 159 and to treat it as reducing the amount of the deductible taxes before you can find the undistributed income. On the other side the taxpayer says you must fix finally the amount of the further tax upon the undistributed income and, to that end, the undistributed income itself, before you can know what ought to be the rebate. Stated in another way it is the contention of the commissioner that only the net amount required for taxation should be deducted in ascertaining the distributable fund in the hands of the company taxed as undistributed profit; it is the taxpayer's contention that the rebate is an adjustment made after its total ultimate liability in two countries for the relevant taxes has been determined for the purpose of relieving it of the consequence of double taxation and that the rebate cannot be an integer in determining what is its total tax liability. (at p455)
4. The taxes which are deductible from a company's taxable income for the purpose of arriving at its undistributed income liable to further tax include ordinary income tax, super tax and war-time (company) tax of the Commonwealth and also the taxes upon the income payable abroad, though not, of course, the further tax itself. But into the calculation of the amount of the rebate the further tax enters, while the war-time (company) tax does not. Section 160C. in dealing with further tax gives the taxpayer a choice as to the deduction of ordinary income tax and super tax and war-time (company) tax. The choice is between on the one hand deducting from the taxable income of the accounting period those taxes which he pays during the accounting period and on the other hand deducting the taxes payable in respect of the income of the accounting period. The choice does not extend to taxes abroad, or when there was State income tax, to State taxes. In those cases the taxpayer must deduct what he pays during the accounting period, and of course, taxation he pays during an accounting period can only have been assessed in respect of the income of past years. (at p455)
5. In the present case the taxpayer company elected in favour of deducting the Federal taxes that were payable in respect of the income of the accounting period instead of the Federal taxes that were paid during that period. (at p455)
6. The taxpayer is a company incorporated in the United Kingdom, where
presumably its residence is to be found. At all events the
income it derived
from Australia was included in the income as assessed to United Kingdom income
tax for the year ended 5th April
1945. The assessment appears to have been
based on the accounting period of twelve months ending 31st December 1943,
which is that
with which the case before us is concerned. Included in the
assessment was an amount of income amounting to Stg. 1,418,467 pounds
which
was included in the Australian assessment. Upon this amount United Kingdom tax
was levied at the rate of 10s. in the pound,
but pursuant to the Finance Act
1920 (10 & 11 Geo. V. c. 18) as amended by the Finance Act 1927 (17 & 18 Geo.
V. c. 10) Schedule
5 II., relief was granted of half the tax or at the rate of
5s. in the pound. As a result the United Kingdom tax borne was 354,616
pounds
15s. In Australia, before the rebate granted under s. 159 was brought into
account, assessments of the same income had been
made, and amended, which
fixed upon the taxpayer the following liabilities for tax: -
Ordinary income tax . . . . A713,334 poundsThese formed the Federal taxes payable in respect of the income of the accounting period to be deducted from the taxable income in ascertaining the portion of the income of the taxpayer that had not been distributed in dividends: see s. 160C. (5). To the figure of 1,001,212 pounds it was necessary to add a sum of 18,206 pounds for State taxation paid during the accounting period and a sum of A50,822 pounds representing an amount paid within that period for United Kingdom tax: see s. 160C. (1). These additions brought the total to be deducted on account of taxes payable or paid to 1,070,240 pounds. In dividends 1,000,000 pounds had been distributed. The difference between the total of these two sums and the taxable income, 2,380,011 pounds, was 309,771 pounds and this amount formed the portion of the taxable income of the company which had not been distributed as dividends for the purposes of s. 160B., which provides for the levy of the further tax. The rate of further tax was 2s. in the pound. An assessment was made accordingly upon the taxpayer company for further tax in an amount of 30,977 pounds. (at p456)
Super tax . . . . . . . . . 118,750
War-time (company) tax . . 169,128
-----------.
Total . . . . . . . A1,001,212 pounds
-----------.
7. Armed with these figures the commissioner turned to the claim for a rebate
under s. 159. The purpose of insuring that between
the two countries the
taxpayer shall be exposed to an ultimate burden no greater than the total
amount of taxation of the country
making the higher imposition is effected by
each country relinquishing to the taxpayer such a rebate or measure of relief
that when
the two are combined they will equal the total amount of taxation of
the country making the lower imposition. On the Australian side,
when as in
the present case the Commonwealth rate is not greater than the British rate,
the rebate granted by the Commonwealth is
obtained by applying to the income
doubly taxed a rate which represents the excess of the Commonwealth rate over
half the British
rate. "Commonwealth rate" is an expression with a defined
meaning. It means the rate ascertained by dividing the total amount of
the
income tax paid or payable by the taxpayer (after the deduction of all rebates
other than the rebate granted by s. 159) by the
amount of the total taxable
income in respect of which the tax paid or payable under the Income Tax
Assessment Act has been charged
for that year: s. 159 (3) (a). It will be
noticed, and it is a point of no small importance, that the further tax
forms
part of the
income tax making up the total amount of income tax paid or
payable for the year by the taxpayer. In this case
the figures making
up the
total tax are: -
Income tax . . . . . . . . . . 713,334 pounds
Super Tax . . . . . . . . . . . 118,750
Further Tax on undistributed
income . . . . . . . . . . 30,977
863,061 pounds (at p457)
8. The taxable income is 2,380,011 pounds. Accordingly, in terms of the
definition the Commonwealth rate is 863,061
_______________in the pound or 87.0309 pence. As the British rate is 10s. in the pound the excess of the Commonwealth rate over half the British rate is 27.0309 pence. The amount doubly taxed, as already stated, is Stg. 1,418,467 pounds, which is A1,773,084 pounds. Applying the rate of 27.0369d. to this figure, a rebate is produced of 199,701 pounds. The taxpayer company claims that here the matter ends. It is the final item in the account for the year between the commissioner and the company where it should be placed to the company's credit. But this was not the commissioner's view. He at once treated the grant of the rebate of 199,701 pounds by way of relief against double taxation as a reason for re-opening the assessment to further tax. He amended the assessment, under s. 170, notwithstanding that where there has been a full and true disclosure of all the material facts no amendment increasing the liability of the taxpayer in any particular can be made except to correct an error in calculation or a mistake of fact. It is hard to see any such error or mistake, but no objection has been taken by the taxpayer on that score. The amendment made consisted in reducing by 199,701 pounds the amount of the deductions previously made from the taxable income on account of ordinary income tax (713,334 pounds) and super tax (118,750 pounds) which amounted together to 832,084 pounds. The reduction brought the amount of these deductions down to 632,383 pounds. But, as will be recalled, there was also a deduction of war-time (company) tax amounting to 169,128 pounds. Now under the War-time (Company) Tax Act 1940-1944 (s. 3, definition of "income tax" and "taxable profit" par. (a) and s. 18) in the assessment of war-time (company) tax there is to be a deduction on account of ordinary income tax but not on account of super tax or further tax. Super tax, however, may form a rebate from the tax: s. 18. The commissioner in like manner recalculated the war-time (company) tax by bringing into account the rebate of 199,701 pounds to diminish the deduction of income tax. By doing so he increased the war-time (company) tax by 112,698 pounds. This figure he brought into the assessment of further tax on undistributed income that he was amending. He necessarily brought it in as an increase in the amount deductible on account of war-time (company) tax and added it to the former amount of 169,128 pounds, making the total deduction for that tax 281,826 pounds. The revised total deductions on account of Federal taxes (ordinary income tax, super tax and war-time (company) tax) thus became 914,209 pounds instead of 1,001,212 pounds, a diminution of the deduction by 87,003 pounds. At a rate of 2s. in the pound this meant an increase in further tax of 8,700 pounds 6s. (at p458)
2,380,011 pounds
9. Now the basis upon which the 199,701 pounds was taken into account as decreasing the deduction of ordinary and super tax was that it was a repayment, refund or recoupment, or a reduction, of these taxes. Yet if this was so at all, it was as much a repayment, refund, recoupment or reduction of the third of the three taxes taken into account in ascertaining the rebate, namely, the further tax itself. Why should the whole amount be thrown against ordinary income tax and super tax? If it is correct that the rebate is not a relief in gross because of double taxation but a definite repayment in reduction of the specific Federal taxes taken into account it must operate as a reduction of each and every pound of the taxes taken into account in calculating the rebate. In the same way, in recalculating the war-time (company) tax, what warrant was there for treating the whole 199,701 pounds as a reduction of ordinary income tax, as apparently was done? If the reasoning were accepted which gives the rebate such a character, surely it involves the consequence that a proportionate part of the rebate is attributable to the super tax and another proportionate part to the further tax. (at p458)
10. In the assessment in the United Kingdom of the income taxable in that jurisdiction, a deduction was made of the Australian wartime (company) tax at the sterling equivalent of A169,128 pounds. If that figure is to stand increased by 112,698 pounds in the Australian assessment to war-time (company) tax, namely, to 281,826 pounds, by reason of the commissioner taking the rebate of 199,701 pounds in to account, then it would seem that British tax should be re-assessed, that is if the law of the United Kingdom allows of the process. It is evident that such a re-assessment would lead to a reconsideration of the assessment of further tax and, if carried far enough, might require a reconsideration of the rebate not only because of the increase in further tax but because of the alteration of the amount of income doubly taxed. These consequences, however, of the re-assessment of war-time (company) tax and of further tax by taking the rebate into account need be mentioned only as illustrations of the impracticability of the adoption of such a course. (at p459)
11. There is a number of considerations which show that the calculation of the further tax must precede the calculation of the rebate and that the application of s. 159 is necessarily the final step. Section 160C. must be applied in priority and its operation must end before s. 159 can be used to ascertain the rebate. In the first place, the definition of "Commonwealth rate" in s. 159 (3) (a) is essential to the ascertainment of the rebate. Until all the factors upon which that definition depends are available the rebate cannot be determined. One factor is the total amount of income tax paid or payable for the year by the taxpayer. That factor cannot be obtained until, not only the ordinary tax and the super tax, but in the case of a public company the further tax on undistributed income, is ascertained. If the commissioner were right when the further tax was assessed there would be a preliminary ascertainment of the Commonwealth rate of tax, and the rebate might then be provisionally calculated. No sooner would the rebate have been granted than it would be necessary to re-assess the further tax. As soon as the further tax was re-assessed it would be necessary to recalculate the rebate in order to take the new amount of further tax into the calculation of the rebate. The consequent increase in the rebate would result in a second re-assessment of the further tax. So a never ending reciprocation would be set up between the operation of s. 159 (3) (a) and (5) and s. 160C. (5), a circulus inextricabilis. This is of course a reductio ad absurdum and should be enough to establish the priority in application of s. 160C. (at p459)
12. An attempt, however, was made to answer the argument by the use of the bracketed words in s. 159 (3) (a): viz. "(after the deduction of all rebates other than the rebate granted under this section)." It was said that once a rebate calculated under s. 159 had been deducted for the purpose of s. 160C. from the Federal taxes considered as deductions from taxable income under s. 160c. (1) or (5) so that the resulting undistributed income was increased and the tax thereon correspondingly increased, it would offend against the words "other than the rebate granted under this section" if the increased amount of further tax were used to recalculate the rebate. This argument appears to me simply to be a confusion. Nothing is deducted on the supposed second invocation or application of s. 159 (3) (a). More further tax is added - that is all. It is true that the increase in the further tax is the result of the decrease of a deduction under s. 160C. It is true that the decrease is caused by deducting from the deduction previously allowed from the taxable income under s. 160C. the rebate which under sub-s. (1) of s. 159 is calculated by means of sub-s. (3) (a). But that is nothing like a deduction of rebate from the tax paid or payable as a factor in the calculation directed by s. 159 (3) (a). In the next place it is proper to compare s. 27 of the Finance Act 1920 with s. 159. The comparison makes it plain that the two legislatures were making provisions which were intended to operate after the full liability of the taxpayer in respect of the income common to both fields of taxation had been completely ascertained. At that point the legislation would apply and in effect relieve the taxpayer of the lower of the two liabilities, by the combined effect of rebates from both jurisdictions. It is at variance with the policy of the enactments for the very grant of the rebate itself to set the wheels of assessment revolving again. In the third place s. 159 (6) fixes the point from which time begins to run limiting the period for claiming the rebate and fixes it as the date upon which the tax in respect of which the rebate is sought became due and payable. That indicates that the rebate is the result of taxes finally imposed. The period limited is six years. Yet under s. 160C. (1) (iii.) the period for distributing the dividend is at most nine months after the close of the year of income, that is apart from any extension allowed because of the war. That is still another indication that rebates under s. 159 have nothing to do with s. 160C. Some years might well elapse before a rebate could be calculated and granted. In the fourth place the rebate under s. 159 is not specifically related to any of the taxes involved. It is not a rebate in an assessment. There are many rebates to be made in a taxpayer's assessment because they are concerned with his liability to tax. See for example ss. 160, 160AA., 160AB., 160ABA., 160AE., 160AG., 160AH., and notice how s. 159 is excluded by s. 160AF.: see too s. 160AD. (a). The rebate under s. 159 is of an entirely different kind and is granted by way of relief because of the liability to several Commonwealth taxes and the British tax. It is intended as an equalization of what would otherwise be their combined effect. If the view were taken that the rebate related to Federal taxes specifically the difficulty, already mentioned, would arise of knowing how the rebate is to be apportioned among the several Federal taxes. These considerations appear to me to be strong to show that the operation of s. 159 was intended to be ultimate and therefore postponed to the operation of s. 160C. in assessing further tax on undistributed income. But the strenth of the argument to the contrary is to be found in the language of s. 160C. (1) and (5). Section 160C. (1) (i) which represents the original form of the provision, authorizes the deduction of those taxes only which are "paid in the year of income" and it provides that the amount of the taxes so paid allowed as a deduction shall be less any refund received in the year of income of any tax to which the paragraph refers. This no doubt reflects a policy of allowing only the net amount of the tax by which the company's funds are depleted. The decision of the majority of this Court in D. & W. Murray Ltd. v. Federal Commissioner of Taxation (1) and the view that prevailed in an equally divided Court in W. & A. McArthur Ltd. v. Federal Commissioner of Taxation (2) are relied upon to show that a payment recouped is no payment. Section 160C. (5), which gives the election availed of by the taxpayer company in the present case, came in by an amendment of 1942 (No. 50). There the expression is "payable under this Act . . . in respect of the income." It is said, and no doubt with much truth, that sub-s. (5) did not mean to alter the description of things to be deducted beyond substituting at the election of the taxpayer taxes attributable to the income earned in, for taxes collected during, the accounting period. If a tax could not be considered paid when, though payment had been made, a rebate had afterwards been granted under s. 159, neither could a tax remain payable after such a rebate had been granted. (at p461)
13. In further support of the conclusion that a rebate under s. 159 destroyed payment and payability alike in the case of taxes taken into account in calculating the rebate, the supposed policy of s. 160C. was vouched. That policy was said to be to leave no net revenue of a company out of further tax unless it was disbursed in dividends or taxes or applied to recoup losses. As a broad statement it may be so. But in my opinion the argument from policy is answered by the consideration that it is a policy concerned with arriving at the taxation which gives rise to the rebate, that is to say, to whatever extent the same taxable fund is taxed in the United Kingdom. It is anterior to the rebate. The argument from the use of the words "paid" and "refund" is of a different kind. It is one to which great weight must be given. For it has recourse to the first duty of a court of construction, namely, to stick to the text and to give effect to the intention the words express. The argument, however, leaves out of account two very important factors. The first is that, however literal and narrow, and however inflexible a meaning may be given to the word "paid," however large a meaning may be given to the word "refund," nevertheless the rebate granted by s. 159 is of such a character as not readily to respond to the test which would result. In R. v. Federal Commissioner of Taxation; Ex parte Sir Kelso King (1) the Court examined the corresponding previous provision and decided that the particular rebate fell completely outside the process of assessment to tax. It was considered that the rebate by way of relief from double taxation presupposed the complete ascertainment of the taxpayer's liability to tax. (at p462)
14. Though this decision goes no further than putting the rebate as something subsequent to and therefore outside the ascertainment of tax, it suggests the real nature of the rebate. The rebate is of course anomalous in its character because it arises from an attempt to compensate for the consequences of the exercise of a dual jurisdiction to tax the same fund. The association of the rebate with the Federal tax depends rather on causation than upon any question affecting liability. There is no factor in the calculation or ascertainment of Australian tax that gives rise to it. It is not connected with one Federal tax on income rather than another. When the rebate is applied to discharge the Federal tax outstanding, a payment is then affected. The amount of the assessment would not show a reduction, it would show a payment of tax. These are considerations which at least create a preliminary difficulty in saying that the grant of a rebate under s. 159 makes it no longer possible either to say that a tax already paid has not been refunded or to say that a tax unpaid is still payable, if the tax has entered into the calculation of the Federal rate. (at p462)
15. But there is a second answer to the argument. That answer is that the problem is not confined to the meaning of s. 160C. Sections 159 and 160C. must be reconciled. Plainly s. 159 presupposes that before it is invoked such provisions as s. 160C. have been exhausted. Almost as plainly when s. 160C. employs the words "paid," "refund" and "payable," it does not contemplate s. 159. These are general words directed respectively to the discharge of a liability to pay, to the refund of tax overcharged and to the existence of a liability. The considerations which point to the conclusion that the intention that s. 159 should be postponed in the order of the application of the provisions and s. 160C. should be applied in priority appear to be so much stronger than the intention to be found in the expressions referred to as to make it reasonably certain that they are inapplicable to a rebate under s. 159. For these reasons I think that the rebate of 199,701 pounds ought not to have been brought into account for the purpose of re-assessing the further tax under s. 160C. (5). (at p463)
16. In my opinion the questions in the case stated should be answered: - (1) Yes; (2) No; (3) Does not arise. (at p463)
17. The costs of the case stated should be costs in the appeal. (at p463)
McTIERNAN J. I agree with the answers given by the Chief Justice and Dixon J. and with their reasons. (at p463)
WEBB J. We are concerned only with the re-assessment of the further tax. (at p463)
2. The rebate is based on the Commonwealth rate of tax which in turn is based on the further tax among others. There is no provision for any re-assessment of the rebate, so the further and other taxes on which the rebate is granted must be assessed finally before the rebate. (at p463)
3. The exception of the rebate made by the words in brackets in s. 159 (3) (a) may be only a recognition of the fact that the rebate is still to be ascertained; but in any event it does not in my opinion warrant the conclusion that Parliament intended that the rebate should be a payment creating a further liability to pay the very tax to relieve against which the rebate was granted. (at p463)
4. If the commissioner apportioned the rebate and in re-assessing the further tax made no deduction of that part of the rebate apportioned to the further tax, the re-assessment would still be unauthorized, as the rebate is against the taxes in gross. The commissioner needs statutory authority to apportion; it is not to be implied because the Act does not expressly forbid apportionment. (at p463)
5. The questions in the case should be answered as the Chief Justice proposes. (at p463)
ORDER
Questions in case answered - (1) Yes. (2) No. (3) Unnecessary to answer. Costs of case to be costs in the appeal. Case remitted to Latham C.J.
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