• Legal database
Legal database

Re Australian Broadcasting Corporation and Federal Commissioner of Taxation

Members:
PM Roach SM

Tribunal:
Administrative Appeals Tribunal

Decision date: 19 February 1988.

P.M. Roach (Senior Member)

The issue in this reference relates to the provisions of the Bank Account Debits Tax Administration Act 1982 (``the Administration Act''). It arises from circumstances which might have prompted A.P. Herbert to add to his series Uncommon Law and Misleading Cases. He might have written wittily on the problem: to what extent should funds from the public purse which have been entrusted to this Tribunal, to the respondent and to the applicant, be expended in determining to what extent (if any) moneys from the public purse entrusted to the applicant should be paid to the respondent to be restored to the public purse from which they came.

2. The possibility arises because the issue for determination is whether the Australian Broadcasting Corporation (``the ABC'') - an institution funded from public moneys - should pay bank account debits tax (``the debits tax''). That question has engaged the resources of both parties, of their solicitors and counsel and the personnel of this Tribunal. That was all at the expense of the public: a circumstance which in my view is of considerable significance (cf. post).

3. But the fact that that dispute exists at all is, so far as the applicant and respondent are concerned, a dispute which arises for an understandable reason. The Commissioner, upon his reading of the Administration Act, judged that he had a statutory obligation to collect the debits tax from the Australian Broadcasting Commission and, later, from the same entity under the name of the Australian Broadcasting Corporation. On the other hand, on a reading of the same legislation, the applicant has concluded that it should not be obliged to expend moneys transferred to it by the authority of Parliament other than for the purposes for which it has been made responsible.

4. The Parliament enacted the Bank Account Debits Tax Act 1982 (``the Tax Act'') No. 141 of 1982 - assented to 31 December 1982. It was to come into operation on the day on which it received the Royal Assent (sec. 2). By that Act it was provided:

``4. Tax is imposed in respect of -

  • (a) each taxable debit made on or after a date to be fixed by Proclamation to a taxable account;
  • (b) each eligible debit made on or after that date to an exempt account; and
  • (c)...

5. The amount of tax in respect of a taxable debit or eligible debit is the amount set out in column 2 of the Schedule opposite to the reference in column 1 of the Schedule to the range of amounts within which the amount of that debit is included.

ATC 2022

SCHEDULE 

      Column 1                                                    Column 2
      Range of amounts
      of taxable debits or eligible debits                   Amount of tax

      Less than $100.00 ...............................           10 cents
      Not less than $100.00 but less than $500.00 .....           25 cents
      Not less than $500.00 but less than $5000.00 ....           50 cents
      $5000.00 or more ................................              $1.00''

5. To provide for ``the collection of a tax in respect of certain debits made to accounts kept with banks'', the Parliament enacted the Bank Account Debits Tax Administration Act 1982 No. 142 of 1982 (assented to 31 December 1982). That Act made provision by sec. 3 for the definition of a number of terms. Some of the relevant definitions were as follows:

``In this Act, unless the contrary intention appears -

...

`eligible debit' means a debit (other than an excluded debit or an exempt debit) made to an account;

`excluded debit' means a debit -

  • (a) made to an account kept with a bank in the name of -
    • ...
    • (vii) any of the following:
      • ...
      • (B) an authority of the Commonwealth or of a State or Territory;
      • (C)...

      other than such a Department, authority, corporation or body the sole or principal function of which is to carry on an activity in the nature of a business (whether or not for profit), not being a debit made in relation to a transaction or transactions entered into by or on behalf of the Department, authority, corporation or body in connection with the carrying on of an activity in the nature of a business (whether or not for profit); or

  • ...

`exempt account' means an account kept in Australia in respect of which a certificate of exemption is in force;

`exempt debit', in relation to an account, means a debit -

  • (a) that is made solely for the purpose of reversing a credit previously made to the account;
  • (b) that is made in accordance with sub-section 10(3); or
  • (c) that is included in a kind or class of debits that are prescribed for the purposes of this paragraph;

`taxable account' means an account (other than an exempt account) kept in Australia;

`taxable debit' means a debit (other than an exempt debit) made to an account.''

Section 11 provided for certificates of exemption as follows:

``(1) Where an account holder in respect of an account kept in Australia applies to the Commissioner in accordance with this section for the issue of a certificate of exemption in relation to the account -

  • (a) if the Commissioner is satisfied that all debits made, or to be made, to the account are, or are likely to be, either excluded debits or exempt debits - he shall issue a certificate of exemption in relation to the account; or
  • (b) if the Commissioner is not so satisfied - he shall refuse the application and shall cause notice in

    ATC 2023

    writing of his decision in relation to the application to be served, by post or otherwise, on the person who made the application.

(2) A certificate of exemption comes into force on a day specified in the certificate as the day of commencement of the certificate (which may be a day before the day on which the certificate is issued) and remains in force until the expiration of the day specified in the certificate as the day of expiry of the certificate or, if no day is specified as the day of expiry of the certificate, until the certificate ceased to be in force by virtue of sub-section (5).''

The same section also provided for revocation as follows:

``(3) Where the Commissioner -

  • (a) is notified by the account holder, or either or any of the account holders, of an exempt account that an eligible debit has been, or is to be, made to the account; or
  • (b) becomes satisfied that an eligible debit has been, or is to be, made to an exempt account,

he may, in his discretion, by writing signed by him, revoke the certificate.''

6. In April 1983 the Australian Broadcasting Commission, a statutory authority constituted under the provisions of the Broadcasting and Television Act 1942 applied to the Commissioner for certificates of exemption to operate from the commencement of the Administration Act.

7. In making the applications, the applicant had claimed exemption because, under the provisions of the Broadcasting and Television Act 1942, the Commission, as it then was named, was exempt from the tax in that sec. 72 provided:

``The income, property and operations of the Commission shall not be subject to any rates, taxes or charges, under any law of the Commonwealth, or under any law of a State to which the Commonwealth is not subject.''

8. On 1 June 1983 the Commissioner refused the applications. On 4 July 1983 the ABC presented a single document objecting to the particular decisions ``in order to prevent multiple lodging of objections'' with regard to ABC bank accounts. In due course the Commissioner, on 21 November 1983, advised the ABC that its objections were to be disallowed and that the ABC could request independent review of those decisions by written requests to that office to be made within 60 days (as defined), with each request to be accompanied by a fee of $2.

9. As the refusal of the applications by the respondent constituted a ``prescribed decision'' within the meaning of sec. 20 of the Administration Act, the applicant was entitled to seek such a review of each of the Commissioner's decisions (sec. 23(1)). Accordingly, on 22 November 1983 the applicant requested the Commissioner to refer his decisions to a Board of Review for review (sec. 23(1)(a)).

10. In the lead-up to that request for reference correspondence passed between the Director of Finance for the ABC and the offices of the Commissioner in Canberra as to the fees to be paid. The ABC initially tendered only one fee of $2, but in due course the view expressed by a Senior Assistant Commissioner prevailed and a further $26 was paid. Had the ABC made the same requests today it would have been required to advance fees of $3,360: $240 for each of the 14 applications. Had it been allowed to raise the same issues by Writ of Summons of the Federal Court of Australia, the fee would only be $240 paid once.

11. Before the Commissioner performed his statutory duty to comply with the requests for reference there were several material developments:

  • (a) by force of the Australian Broadcasting Act 1983 (No. 6 of 1983 - ``the Corporation Act'') the Australian Broadcasting Commission was continued in existence under the name ``Australian Broadcasting Corporation'';
  • (b) by that legislation all the rights and powers previously vested in the Commission were preserved to the Corporation;
  • (c) by an Act No. 110 of 1983 (assented to 8 December 1983) and another Act No. 102 of 1984 (assented to 10 October 1984) the Administration Act was amended to modify its operation in material respects; and

    ATC 2024

  • (d) by the Taxation Boards of Review (Transfer of Jurisdiction) Act No. 48 of 1986 the Taxation Boards of Review were abolished and their jurisdiction transferred to this Tribunal.

12. When the Corporation Act was enacted it was expressly provided that:

``71(1) The Commission is not subject to taxation under any law of the Commonwealth, or of a State or of a Territory.''

Thereby the tax exempt status previously conferred by sec. 73 of the former Act was preserved.

However, one of the amendments effected by the 1984 amendments to the Administration Act with effect from 22 August 1984 provided:

``4(3) A law, or a provision of law, passed before the commencement of this sub-section that purports to exempt a person from liability to pay tax imposed by the Bank Account Debits Tax Act 1982 or to pay taxes that include that tax does not exempt that person from liability to pay that tax.''

Accordingly, in relation to the period post 22 August 1984, the issue to be determined has to be resolved by reference to the terms of the debits tax legislation rather than reference to any tax exempt status of the Corporation.

13. Another amendment to the Administration Act was of particular significance. It proceeded by way of inserting words in the definition of ``excluded debit'' so that the definition was amended by the insertion of the words (hereafter italicised), and in consequence to read:

``In this Act, unless the contrary intention appears -

...

`excluded debit' means a debit -

  • (a) made to an account kept with a bank in the name of -
    • (i)-(vii)...
      • (A)...
      • (B) an authority of the Commonwealth...;
      • (C)...

other than such a Department, authority, corporation or body the sole or principal function of which is to carry on an activity in the nature of a business (whether or not for profit), not being a debit made in relation to a transaction or transactions entered into by or on behalf of the Department, authority, corporation or body in connection with the carrying on of an activity (other than an activity that forms a minor or insignificant part of the functions of the Department, authority, corporation or body) in the nature of a business (whether or not for profit)...''

14. On 12 November 1986 the Commissioner wrote to the two bankers concerned in the accounts in question stating:

``You are hereby advised that it has been decided that bank account debits tax was not imposable in these accounts held in the name of the Australian Broadcasting Commission [sic] in respect of debits arising during the period 1 April 1983 to 21 August 1984.

In the circumstances, any tax charged by the bank on the debits specified above should be refunded to the account holder. The bank in turn may claim the amount refunded as a credit in its monthly bank account debits tax return.

It is pointed out that the tax is correctly payable on accounts held by the Australian Broadcasting Corporation as from 22 August 1984.''

15. On the same day the Commissioner wrote to the applicant to the same effect, but adding:

``As advised in a letter addressed to your Principal Legal Officer from the Commissioner of Taxation, it has been decided that the Australian Broadcasting Commission and its successor [sic], the Australian Broadcasting Corporation, did not have a liability for bank accounts debits tax up to 21 August 1984 because of the operation of section 71 of the Australian Broadcasting Corporation Act 1983 and section 72 of the Broadcasting and Television Act 1942.

ATC 2025

However, an amendment to section 8 of the Bank Account Debits Tax Administration Act ensures that, from 22 August 1984, although a government body has a provision in its enabling legislation such as the abovementioned sections 71 and 72, which exempt it from Commonwealth taxes, it still has a liability for bank account debits tax unless the specific tests for exemption of government bodies in paragraph (a)(vii) of the `excluded debit' definition in sub-section 3(1) of the Bank Account Debits Tax Administration Act are satisfied.

It was previously decided that the Corporation is engaged as its sole or principal function in an activity in the nature of a business. That decision still stands and accordingly the Corporation does not satisfy the first test for exemption in paragraph (a)(vii) and therefore has a liability for the tax from 22 August 1984.

As neither the Commission nor the Corporation had a liability for bank account debits tax up to 21 August 1984, any tax paid in respect of debits made to your accounts to that date will be refunded. The Reserve Bank of Australia and the Commonwealth Banking Corporation are being advised to credit the abovementioned bank accounts with the tax so debited.

Action will now be put in course to have your request referred to the Administrative Appeals Tribunal.''

16. Thereby the Commissioner acknowledged his original decisions to be in error, but only with effect to 22 August 1984. The applications referred to were duly forwarded to the Tribunal and in due course came forward for determination.

Jurisdiction

17. At the outset I raised questions touching the jurisdiction of the Tribunal in relation to certain aspects of the issues before me. I did so because the Commissioner had now acknowledged his original decision to have been incorrect. It also seemed that it would be idle for the Tribunal to now merely confirm that the Commissioner had been incorrect in 1983, particularly having regard to the legislative changes relevant to both the applicant and the debits tax in the years following. That would be particularly so if, as a consequence, it appeared that a certificate of exemption had been in force since 1983 and remained unrevoked.

18. It was agreed that those problems should be overcome on the basis that, if the Commissioner succeeds on the matters now in dispute, the order of the Tribunal will be to confirm that a certificate of exemption should have been in force from the commencement of the Administration Act until 21 August 1984; and that, if the applicant succeeds in accordance with its submissions, the order will be that the applicant was and is entitled to a certificate of exemption.

The applicant

19. By force of sec. 4 of the Australian Broadcasting Corporation Act 1983 (``the Corporation Act'') the Corporation is one and the same as the Commission, but under the name of the Australian Broadcasting Corporation rather than the name Australian Broadcasting Commission.

20. Section 6 of the Corporation Act provides that:

``(1) The functions of the Corporation are -

  • (a) to provide within Australia innovative and comprehensive broadcasting and television services of a high standard as part of the Australian broadcasting and television system consisting of national, commercial and public sectors and, without limiting the generality of the foregoing, to provide -
    • (i) broadcasting programs and television programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community; and
    • (ii) broadcasting programs and television programs of an educational nature;

(2)...

(3) The functions of the Corporation under sub-section (1) and the duties imposed on the Corporation under sub-section (2) constitute the Charter of the Corporation.

(4)...''

21. In amplification of those obligations special provision was made in relation to a number of particular subjects as follows:

ATC 2026

``27(1) The Corporation shall develop and maintain an independent service for the broadcasting and televising of news and information by the Corporation pursuant to this section.

(2) The Corporation shall broadcast and televise daily from all national broadcasting stations and national television stations regular sessions of news and information relating to current events within and outside Australia.

(3)-(4)...

28 For the purposes of the performance of its functions, the Corporation may -

  • (a) establish, maintain and utilize, in such manner as the Board thinks desirable, orchestras, bands and other groups of musicians for the performance of music of high quality; and
  • (b) make arrangements for the holding of, or organize or subsidize, any public concert or other public entertainment.

30 The Corporation may, if the Board thinks fit, submit to the Australian Broadcasting Tribunal, for classification by that Tribunal, television programs for children intended for public reception during hours specified by the Tribunal as hours for the presentation of such programs.

31(1) The Corporation shall not broadcast or televise advertisements.

(2)...''

22. I find that the Charter so mentioned is also apt to describe the functions of the applicant when constituted as the Commission and that nothing material to this reference turns upon the use of fresh terms to define the objectives of the ABC.

23. To qualify for the exemption certificates it seeks, the ABC must establish, in relation to each of the accounts for which it seeks an exemption certificate, that the provisions of sec. 11(1) of the Administration Act are satisfied. In particular, that requires close consideration of the definition of ``excluded debit'' provided for in sec. 3(1). The fact that the Corporation is ``an authority of the Commonwealth'' is not disputed, but that alone is not sufficient to entitle it to the exemption certificate it seeks. It must also satisfy two further tests: one directed to the nature of the applicant; and the other directed to the nature of the debits to be made.

The nature of the authority

24. The argument is centred around the question as to whether the activities of the ABC are ``in the nature of a business''. As to that, it is common ground that the fact that overall the Corporation does not overall conduct its activities with a view to profit, does not mean that its activities are not ``in the nature of a business''. That is so because the definition of ``excluded debit'' expressly excludes accounts kept in the name of authorities

``the sole or principal function of which is to carry on an activity in the nature of a business (whether or not for profit)...''

Furthermore, sec. 3(4) expressly provides:

``For the purposes of this Act, if a Department, authority, corporation or body referred to in sub-paragraph (a)(vii) of the definition of `excluded debit' in sub-section (1) supplies goods (other than excepted goods) or provides services (other than excepted services) to the public for payment, the supply of those goods or the provision of those services by the Department, authority, corporation or body shall be deemed to constitute the carrying on of an activity in the nature of a business by the Department, authority, corporation or body.''

25. It has been argued for the Commissioner that what the ABC does in the fields of radio and television has all the characteristics of other organisations in those fields. In the field of television, the ABC produces, and on occasion markets, programs for use in Australia and overseas. It competes with its rivals for the right to film and televise functions and events. It often competes in the same market place for viewers and commonly seeks to increase its viewing audience at the expense of its rivals. It provides a range of programs which can be likened to those provided by other stations although it would claim that they sometimes have distinct characteristics. On the other hand, it does not compete in the market place for revenues. That is a matter of no little significance.

26. In considering the legislation, it is helpful to consider observations made by the Minister assisting the Treasurer when he

ATC 2027

introduced the 1984 Bill to the House of Representatives. In his Second Reading Speech to the House he said (inter alia):

``The Bill also liberalises the exemption currently provided to certain government bodies. Under the present law, government bodies are eligible for exemption from the tax, except in relation to bank account debits resulting from transactions connected with a business undertaking or if their sole or principal function is to carry on a business. This policy of taxing all business activities of government bodies ensures equality of tax treatment with any private sector competitors but has meant that local councils that carry on business activities such as operating swimming pools, child care centres and caravan parks are subject to the tax in respect of those activities even where they represent an insignificant part of a council's functions and are not commercial in a real sense. Because transactions relating to such business activities are generally conducted through the council's main operating bank account, that account is not eligible for the issue of a certificate of exemption. Instead, the council is initially required to pay tax on all debits to the account and subsequently claim a refund from the Commissioner of Taxation of the tax paid on the non-business debits.

The Government believes that the administrative burden in these small particular situations is disproportionate to the very small amount of revenue involved. Accordingly, the Bill will extend the scope of the exemption provided to government bodies that do not primarily carry on business undertakings so that such a government body will be eligible for exemption not only in respect of its non-business activities but also in respect of any business activity that form a minor or insignificant part of its functions. This will mean, for example, that a local council will no longer be subject to the tax in respect of business activities such as operating a swimming pool where, viewed overall, that activity represents a minor part of the council's functions. On the other hand, a council that carries on, for example, a substantial electricity supply undertaking will not be eligible for exemption in respect of debits relating to that activity. The change to the exemption arrangements for government bodies will also operate in relation to debits made on or after the first day of the month following the month in which the amending Act receives the royal assent.''

(The emphasis is mine.)

27. That being so, it is appropriate to observe that the ABC does not compete with its rivals for their principal source of revenue: advertising fees. It is prohibited from doing so (sec. 31, ante). It may be true to say of its commercial rivals that an increase in viewing audience tends to lead to increased advertising opportunities and thereby increased revenues but the ABC stands in a markedly different situation. For the ABC its only major source of revenue is so much from the public purse as may be granted to it by the Parliament.

28. Accordingly, it stands in contrast to such public authorities as the Commonwealth Bank; Australian Airlines; and Qantas. Those public authorities do compete directly with their rivals in gaining public support, which support directly leads to increased revenues. Accordingly, it can be seen that to not subject such institutions to the debits tax would be to give them a fiscal benefit and commercial advantage over their competitors.

29. A further consequence of significance is that, even with public authorities of the Commonwealth, such as Australia Post and Telecom, and other public authorities such as marketing authorities for the States which have a monopoly or near-monopoly on the provision of certain goods, commodities or services, subjecting them to the debits tax has the effect of ensuring that the burden of the tax will fall upon those who use such services, and do so largely in proportion to the use of those services. In contrast, the financial burden of the debits tax, if it is recoverable from the ABC, falls upon the total tax-paying community. To the extent to which debits tax is payable, some of the moneys advanced to the ABC from the public purse will be returned to the public purse from which they came. That being so, so long as either the public purse bears the cost to the ABC of the tax or the ABC is exempt from the tax, there is no effect upon competitors.

30. In the preceding paragraphs I have spoken of the role of the ABC in the field of television. I make the same findings in relation to the field of radio.

ATC 2028

31. Other findings need to be made in relation to two other significant fields of ABC activity: its orchestras and its bookshops. The ABC maintains symphony orchestras in the six capital cities and a training orchestra. The orchestras participate in the television and radio programs of the ABC and also present orchestral concerts and recitals. In the 12 months to 30 June 1986, 652 concerts and recitals were presented, of which 232 were non-revenue earning (191 for schools and 41 for the general public). Each orchestra received a measure of financial assistance from state funds and also from local government funds in the capital cities and some major regional centres. In the year ended 30 June 1986, concert revenues were $6,810,000 (including subsidies of $1,417,000) but the ``cost of concerts presented'' amounted to not less than $20,209,000. It is not contended before me that the ABC is entitled to any certificate of exemption in relation to any orchestra account.

32. Another head of ABC activity is that of ABC bookshops. The bookshops are to be found throughout the nation and, although given over to promoting ABC-related publications and materials, they do none the less compete directly with other retail traders. It is not contended before me that the ABC is entitled to any certificate of exemption in relation to any bookshop account.

``Sole or principal function''

33. In determining the first question as to whether the ABC is such an authority as is referred to in the definition of ``excluded debits'', one has to have regard to the functions of the ABC. As it has more than one function, the question to be determined is whether the ``principal function of (the ABC) is to carry on an activity in the nature of a business (whether or not for profit)''. In my view, upon the evidence before me, the ``principal function'' of the ABC is to act as a publicly funded institution which, in the national interest, is to act independently of government (so far as it may) and provide television and radio services to the entire Australian community. In support of that function, I am satisfied that it does undertake some activities in the nature of a business. The operation of the bookshops provides perhaps the simplest example but, whether the business activities be selling tapes of the Boyer Lectures or the making of, and sale of some rights to, a multi-million dollar television mini-series, such ``business'' activities are neither the ``sole'' nor the ``principal function'' of the ABC.

The nature of the debits

34. I have found that, in so far as the ABC is an authority of the Commonwealth which does not have as its sole or principal function the carrying on of an activity in the nature of a business, the way is open for a certificate of exemption to be granted to the ABC in relation to each bank account it conducts. Whether it will be entitled to such certificates depends upon a further test as to the nature of the debits to be made. The debits to be made in such accounts shall only be ``excluded debits'' if they can be characterised as:

``not being a debit made in relation to a transaction or transactions entered into by or on behalf of the... authority... in connection with the carrying on of an activity in the nature of a business (whether or not for profit).''

35. In considering that question, it is appropriate to recognise that the bank accounts to which the applications relate fall into distinct groups.

Reserve Bank of Australia 

     Account No.               Account Title                Transactions
      21007-9               Head Office No. 1 Account     approx. 650 p.a.
      21008-7               Head Office No. 2 Account     approx. 42,000 p.a.
      21009-5               Staff Salaries                approx. 34,000 p.a.
      21006-7               Artists                       approx. 25,000 p.a.

As might be expected, the Head Office No. 1 Account is the initial repository of all public moneys and is the account from which those moneys and funds from other sources are distributed to fund the operations of other accounts. Head Office No. 2 Account has been

ATC 2029

the principal source of funds to pay the suppliers of the Corporation; of non-salary payments to staff; and of staff salaries paid by means of electronic funds transfer to the bank accounts of employees. The Staff Salaries and Artists' Fees accounts are used to pay other staff salaries and fees due to artists and other ``talent'' engaged under contract participating in ABC-produced programs.

36. I am satisfied that those accounts have not been used ``in connection with the carrying on of an activity in the nature of a business''. I am so satisfied notwithstanding that there have been occasions on which funds which, within the ABC, have been originally sourced in the Head Office No. 1 Account, have been used to cover shortfalls in business operations of divisions of the ABC such as the Marketing Division.

37. Account No. 85-0097 with the Commonwealth Trading Bank is used to receive moneys due to the Corporation from organisations such as Bankcard, Mastercard and Visa. Cheques are drawn on some 12 occasions in each year to effect the transfer of those moneys to Head Office No. 1 Account. In so far as the moneys received and disbursed arise out of the commercial trading activities of the Corporation I cannot say that the cheques so drawn were not by way of ``a debit made in relation to a transaction or transactions entered into by or on behalf of the authority in connection with the carrying on of an activity in the nature of a business''. That being so, I am not persuaded that the Corporation is entitled to the certificate of exemption which it seeks.

38. The third class of accounts in question comprises accounts with the Commonwealth Trading Bank, identified and described as follows: 

     Account No.                  Account Title

      85-0089                  Location Account No. 1
      85-0126                  Location Account No. 2
      85-0134                  Location Account No. 3
      85-0142                  Location Account No. 4
      85-0150                  Location Account No. 5
      85-0169                  Location Account No. 6
      85-0177                  Location Account No. 7
      85-0185                  Location Account No. 8
      85-0193                  Location Account No. 9

I am satisfied that these particular accounts have been used on a project-by-project basis and that to date the debits made to those accounts have not been made ``in connection with the carrying on of an activity in the nature of a business (whether or not for profit)''. However, I also recognise that it may be that at some time in the future the particular projects for which particular accounts will come to be used will be such that they will involve ``the carrying on of an activity in the nature of a business''. I propose to order that the decision disallowing the claims for certificates of exemption in relation to these accounts should be varied and that the certificates should issue. However, I will recommend that the certificates should issue only with effect to 1 April 1988. If the recommendation is implemented by the Commissioner, it will be necessary for the ABC from time to time to forward for the Commissioner's consideration details of its proposed use of an account before embarking on that use. That will provide an opportunity for the ABC to review whether it will claim exemption in relation to that proposed use. The need to do so will assist the ABC in minimising the risk of inadvertently using any account for unauthorised purposes. Should it misuse such an account it will be liable to significant penalties. It will also ensure that the Commissioner is provided with an opportunity, when any change in use is proposed, to assess whether the proposed change will be material. The selection of a future date some weeks distant will provide the Corporation with an opportunity to immediately seek an extension of the exemption certificate in relation to any account which happens to be in current use.

Generally

39. In these reasons I have dealt with only the bank accounts put in issue before me. The materials before me suggest that there were many others. It seems that since the Corporation requested a review of the Commissioner's determination on these particular accounts, the Corporation has come to open many other bank accounts. Although those other accounts are not directly the subject of any consideration in these reasons for decision, one hopes that the parties will be able to apply the principles expressed in these reasons and resolve matters without any further expenditure of substantial funds at the expense of the public: the public whose interests both parties - and this Tribunal - exist to serve.

ATC 2030

The Tribunal decides that:

A. with regard to Accounts Nos. 21007-9, 21008-7, 21009-5 and 21006-7 held with the Reserve Bank of Australia that the decisions under review be varied and that the certificates of exemption be granted;

B. with regard to Account No. 85-0097 held with the Commonwealth Trading Bank that the decision under review be affirmed;

C. with regard to Accounts Nos. 85-0089, 85-0126, 85-0134, 85-0142, 85-0150, 85-0169, 85-0177, 85-0185 and 85-0193 held with the Commonwealth Trading Bank that the decisions under review be varied and that the certificates of exemption be granted with the recommendation that such certificates be issued effective only to 1 April 1988.


Back to top

This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.