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Case W64

Members:
JR Gibson SM

Tribunal:
Administrative Appeals Tribunal

Decision date: 26 June 1989.

J.R. Gibson (Senior Member)

In its return of income for the year ended 30 June 1984 the applicant company claimed deductions, inter alia, of $17,434 for depreciation and $15,691 for investment allowance in respect of security roller shutter doors. The claims were not allowed by the Commissioner of Taxation in assessing the applicant to income tax and the applicant's objection to the assessment was disallowed. The applicant seeks review by the Tribunal of the decision to disallow the objection.

At the hearing copies of the return, notice of assessment, adjustment sheet, objection, notice of disallowance, request for review and statement of reasons for disallowance of the objection were admitted into evidence. Also in evidence are plans and photographs of the building containing the roller doors, a copy of the lease of the land and copies of correspondence relating to the payment for the erection of the building and rent. The group accountant for the group of transport companies of which the applicant is a member, who will be referred to as Mr Gregory, gave affidavit evidence and oral evidence was given by the property manager of the group, who will be referred to as Mr Black, and the secretary of the applicant, who will be referred to as Mr Williams.

The applicant carries on the business of a transport operator in northern Australia. The business has two divisions, one of which deals with goods freighted by road between Brisbane and a large town in North Queensland and the other of which handles road freight.

Before it erected a terminal building to deal with rail freight at the town, the applicant had erected a gantry crane on land owned by the rail authority, which then ran a spur line to the gantry, so that the applicant could load and unload rail freight. For the storage of goods received or to be forwarded by rail the applicant had used a warehouse building in the town owned by an agent which distributed goods for it.

In April 1983 plans were drawn up for a building, described as a warehouse, to be erected for the applicant on land owned by the railway authority and near the gantry. The building was erected between about September 1983 and May 1984 and, save for a retention allowance of $15,825, was paid for by the applicant by May 1984. On the basis of the affidavit evidence of Mr Gregory, which was not challenged, it is clear that the applicant

ATC 583

commenced to use the building for the purposes of its business in early May 1984.

There is no evidence as to the existence of any contemporaneous lease or agreement in writing relating to the original occupation by the applicant of the land on which the building was erected but it is reasonably clear that the occupation of the land and the execution of the building thereon was with the consent of the owner of the land, the railway authority. On 10 May 1988 a formal lease of the land to the applicant was executed and it provided for a lease from 1 April 1987 to 31 March 2011. However, in 1988, in response to an invoice from the lessor, the applicant paid rent at an annual rate for the period from 1 April 1984 to 31 March 1987 for what was described in the invoice as a lease, together with rent for the period from 1 April 1987 to 30 March 1988 at the higher annual rate fixed by the lease of 10 May 1988.

It was provided, inter alia, in cl. 5.9 of the schedule to the lease that at its expiration or sooner determination ``any buildings, structures, alterations, additions, fixtures, fittings or other improvements'' made on the land by the lessee should become the property of the lessor.

The building erected for the applicant was of steel and rectangular in shape, about 60 metres long and 30 metres wide. One of the longer sides adjoins and is parallel to a public road and the other adjoins and runs parallel to the rail spur line. The interior of the building is mainly open space but contains at each end on the road side a partitioned or walled-off office area, one for the use of the applicant and the other for the use of one of its principal clients, a company engaged in the distribution of liquor, which will be referred to as Easter Limited. Between those offices on the road side of the building is an open area over which there is canopy under which vehicles can shelter when loading or unloading goods at all or any of the five doors on the side of the building, which are fitted with motorised roller shutter doors. On the rail side, a canopy extends from the building towards the rail line and there are nine motorised roller shutter doors. On each of the shorter sides there are three such doors. The doors vary in height from 4.5 metres to 6 metres and in width from 5.6 metres to 6.8 metres. Excluding the outer walls of the office areas, the sides of the building consist almost entirely of the doorways and doors.

Mr Black gave evidence that the motorised roller shutter doors are of steel and are especially strengthened for use in areas subject to cyclones. Before installation they are rolled up and they are installed by fitting the ends of the spindles to the pillars of the building by the means of four bolts at each end; the leaves of the doors may then be unrolled down within guide rails attached to the pillars. They can be removed for repair or replacement by being rolled up and by the removal of the bolts holding the spindles and, according to size, could be placed in other terminals of the group. By reason of their special design for tropical areas it is unlikely that the doors, the subject of these proceedings, would be used in terminals other than those in tropical areas. Mr Black thought it probable that the doors originally installed in the building were still there at the time he gave his evidence.

Mr Black took part in the planning of the terminal building. He said that the group had a large number of terminals throughout Australia with some variations in design according to area, location and the size of the business in the area; there were also variations in design according to whether the terminals were to be used for freight by air, by sea, by road or rail. In planning the terminal for the applicant there had been taken into account the size of the applicant's business and its anticipated growth, the type of freight handled, the type of vehicles used, and the methods of transporting freight from the rail line into the terminal and then out of it. Mr Black said that most of the freight came in containers which were lifted off the rail carriages on to a dolly which was then pulled by tractor into the terminal building. When unloaded, the freight would be sorted into the runs for delivery. There were 10 delivery runs from the terminal and the freight could be placed on 10 vehicles, two of which could take delivery at each of the five doors on the street side of the building.

The three doors on each of the shorter sides of the building, Mr Black said, would allow for the free movement in and out of the building of vehicles required to be loaded with very large loads. It was an advantage to have doors on all sides of the buildings to improve ventilation.

Mr Black also gave evidence that in planning the terminal building regard was had to the

ATC 584

necessity to provide an office for the applicant and one for Easter Limited, and also for an area to be set aside in the terminal in which the goods of Easter Limited which came into it could be stored for periods of up to two or three weeks. The vehicles which entered the terminal were all under the control of the applicant and the doors were operated by employees of the applicant.

In cross-examination Mr Black agreed that the goods in the terminal were more secure by reason of the doors fitted to the building than they would have been in an open shed.

In his affidavit annexing copies of documents with a view to establishing the fact that the terminal building was used by the applicant prior to 30 June 1984, Mr Gregory referred, inter alia, to an annexure which was a copy of an inter-office memorandum dated 25 June 1984 emanating from the applicant's branch manager. The memorandum refers to the building having been broken into and the following are extracts:

``At the moment an entry into our office is an entry into the warehouse. The wire fence between [Easter] and ourselves is effective only to a thief incapable of using a pair of pliers...

With a multiplicity of carriers calling at [Easter] there would be no problem for anybody to case the place...

[Easter] are still undecided on an alarm system...''

The claim for depreciation

The claim for depreciation on the roller shutter doors is made pursuant to sec. 54(1) of the Income Tax Assessment Act 1936 which, as in force at the relevant time and so far as relevant, provided:

``54(1) Depreciation during the year of income of any property, being plant or articles owned by a taxpayer and used by him during that year for the purpose of producing assessable income, and of any property being plant or articles owned by the taxpayer which has been installed ready for use for that purpose and is during that year held in reserve by him shall, subject to this Act, be an allowable deduction.

(2) In this section, `plant' includes -

(a) animals used as beasts of burden or working beasts in a business other than a business of primary production, and machinery, implements, utensils and rolling stock;

(b) fences, dams and other structural improvements on land which is used for the purposes of agricultural or pastoral pursuits, structural improvements (not including an improvement that is an access road as defined by section 124E) completed after the year of income that ended on 30 June 1963 on land that is used for the purposes of forest operations and structural improvements completed after 30 June 1958 which are used wholly and exclusively for the purposes of pearling operations and are situated at or in the vicinity of a port or harbour from which those operations are conducted, other than -

  • (i) structural improvements used for domestic or residential purposes except where the improvements are provided for the accommodation of employees, tenants or sharefarmers engaged in or in connexion with those pursuits or operations, as the case may be; or
  • (ii) structural improvements, bores, wells or pipes expenditure on which has been allowed, or has been allowable, as a deduction under paragraph 75(1)(g), (ga), (gb), (h), (i), (j) or (l), or section 76, from the assessable income, of any year of income, of the taxpayer or of any other person; and...''

Section 56 of the Act deals with the calculation of depreciation and subsec. (1A) of that section provided:

``(1A) Where the unit of property is dealt with by the taxpayer in the prescribed manner during part only of the year of income, the depreciation allowable to the taxpayer in accordance with sub-section (1) in respect of the property in relation to the year of income shall be reduced by so much of the amount of the depreciation applicable in accordance with sub-section (1) as bears to that amount the same proportion as the number of days during the year of income during which the property was not dealt

ATC 585

with by the taxpayer in the prescribed manner bears to the number of days in the year of income.''

It was an issue at the hearing of the application whether during the year of income the roller shutter doors in respect of which depreciation was claimed were, as required by sec. 54(1), owned by the applicant during the year of income ended 30 June 1984.

For the applicant it was submitted that the building, having been erected on the land with the consent of the owner, remained the property of the applicant; that, if the building were to be regarded as a fixture and as having been annexed to the land, the doors were not fixtures but were chattels; and that, if the doors were to be regarded as fixtures, then were the tenants' fixtures. For the respondent it was submitted that, there being no evidence as to the existence of a lease of the land to the applicant operating during the year ended 30 June 1984, the building and the doors which formed part of it had been annexed to the land by virtue of the common law doctrine of annexation; that, even if the doors had been chattels, they had become fixtures and so had ceased to be owned by the applicant.

As counsel for the respondent submitted, there was no evidence that a written lease or agreement for a lease of the land upon which the terminal was built existed during the year ended 30 June 1984. But notwithstanding the lack of contemporaneous documents, it is, in my opinion, to be deduced from the provisions of cl. 5.9 of the schedule to the lease of 10 May 1988 that there had been an earlier agreement between the lessor and lessee that the buildings erected on the land should be the property of the applicant. I think that there is also some support for that deduction in the provisions of cl. 10 of the lease providing for increased rental if the applicant should remove its gantry crane from land leased to it. The Tribunal therefore finds that the building erected in the year ended 30 June 1984 and the doors in that building were owned by the applicant. On the affidavit evidence of Mr Gregory, which was not contested, and the oral evidence of Mr Black, the Tribunal is satisfied that the building and the doors were being used by the applicant from early May 1984.

The remaining question in relation to depreciation is whether the roller shutter doors were ``plant or articles'' used by the applicant during the year of income for producing assessable income within the meaning of sec. 54.

In
Quarries Limited v. F.C. of T. (1961) 106 C.L.R. 310 Taylor J. considered the meaning of the expressions ``plant'' and ``articles'' in sec. 54 and, after referring to a number of English authorities dealing with the expression ``plant'', said (at p. 315) that they demonstrated the impossibility of any precise rule. Taylor J. also said:

``Here we are concerned with the expression `plant' or `articles' and the section requires that they must have been used for the purpose of producing assessable income. The composite expression must, I think, be taken to have a somewhat wider connotation than `plant' when used by itself and there can be no reason for supposing that such a result was not intended.''

In
Wangaratta Woollen Mills Limited v. F.C. of T. 69 ATC 4095; (1969) 119 C.L.R. 1 McTiernan J. held that except for external walls which served only to provide protection against the elements, the whole of a dyehouse used by a taxpayer in its business of dyeing and spinning worsted yarn was in the nature of a tool which was an essential part in the efficient and economic operation of the business, and much more than a convenient setting for the operations, and so was ``plant or articles'' used for the purposes of earning assessable income within the meaning of sec. 54(1).

The meaning of the expression ``plant or articles'' in sec. 54(1) was considered also by Kitto J. in Imperial Chemical Industries of
Australia and New Zealand Limited v. F.C. of T. 70 ATC 4024; (1970) 120 C.L.R. 396. In that case, Kitto J. held that special acoustic ceiling panels and electric wiring and fittings installed in an office building were not ``plant or articles'' used for the purposes of producing assessable income within the meaning of sec. 54. In the course of his reasons for judgment the learned Judge said (at ATC p. 4025; C.L.R. p. 398):

``Obviously the ceilings and every part of them, the removable panels no less than the supporting framework, are fixtures and form part of the buildings. The mode of affixation is slight but adequate, and its purpose is to provide the building with ceilings as

ATC 586

essential parts of the structure. The purpose, in other words, is to make the building a complete building. The ceilings are there for the sake of the building not the building for the sake of the ceilings. In my opinion, while they are in position they are plainly not `articles'. The appellant's main contention concerning them is that they are `plant'. But they are no more than parts of the shelter, so to speak, in which the appellant chooses to carry on its activities. They play no part in those activities. Their sound-absorbing qualities do, no doubt, make working in the building more comfortable, and consequently, I presume, more efficient, and to that extent they are better ceilings than sound-reflecting ceilings would be. But every part of a building makes some contribution to the comfort and efficiency of those who work in it. To take it notionally to bits and describe as `plant' any bit that has a function which is useful in connection with the business carried on there seems to me indefensible. The truth is that the ceilings with which we are concerned do nothing for the appellant's business that they would not do for the business of any other occupier. They are in like case with the walls, floors, windows and doors, not to mention the roof; that is to say, they are useful for anyone who wants to work in the building, and more useful than less well-thought-out units of the same kind would be, but still only part of a general setting for work, not part of the apparatus of any income-producing process. In my opinion they are not `plant'.''

In
Yarmouth v. France (1887) 19 Q.B.D. 647 one of the questions for the Court was whether a horse owned by the plantiff's employer, a wharfinger, which had injured the plaintiff was ``plant'' used in the business of the employer within the meaning of a statute providing for compensation for injured employees. It was held that the horse was ``plant'' and Lindley L.J. said (at p. 658):

``There is no definition of plant in the Act: but, in its ordinary sense, it includes whatever apparatus is used by a business man for carrying on his business, - not his stock-in-trade which he buys or makes for sale: but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business.''

In
I.R. Commrs v. Barclay, Curle & Co. Ltd. (1969) 1 W.L.R. 675 it was held by a majority of the House of Lords that a dry dock built by a company for use in its trade of shipbuilding, ship repairing and marine engineers was ``plant for the purposes of the trade'' of the company within sec. 279 of the English Income Tax Act 1952, so that the expenditure on the dry dock entitled the company to an allowance. All of their Lordships agreed that the words ``plant'' and ``structure'' in the Act were not mutually exclusive and those in the majority found assistance from the distinction drawn in
J. Lyons & Co. Ltd. v. Attorney-General (1944) Ch. 281 and
Jarrold v. John Good & Sons Ltd. (1963) 1 W.L.R. 214 between that with which the trade is being carried on and that which is the setting in which the trade is carried on.

The decision of Kitto J. in Imperial Chemical Industries of Australia and New Zealand Ltd. v. F.C. of T. (supra) was affirmed by the Full Court of the High Court in
F.C. of T. v. I.C.I. Australia Ltd. 72 ATC 4213; (1971-1972) 127 C.L.R. 529. Barwick C.J. (with whose reasons McTiernan J. agreed) and Gibbs J. distinguished the case from the Wangaratta Mills' case where ``the items had a close connexion, indeed a function, with the process of manufacture'' (Barwick C.J. at ATC p. 4220; C.L.R. p. 569). Gibbs J. said (at ATC p. 4231; C.L.R. p. 586):

``In the present case the installations in question were no more than parts of the buildings where I.C.I. carried on some of its activities. The buildings of which they formed a part were office buildings which could not in themselves be regarded as `in the nature of a tool of the taxpayer company's trade' and were in no way comparable to the dyehouse the subject of the decision in Wangaratta Woollen Mills Ltd. v. F.C. of T. or the dry dock considered in Inland Revenue Commissioners v. Barclay, Curle & Co. Ltd.''

In
Macquarie Worsteds Pty. Ltd. v. F.C. of T. 74 ATC 4121 Mahoney J. held that a false ceiling installed in a factory to promote higher efficiency in the operation of machines was not ``plant or articles'' for the purposes of sec. 62AA of the Income Tax Assessment Act 1936. After reviewing authorities, including those referred to above, Mahoney J. said (at p. 4125):

ATC 587

``To be plant, a thing of the kind here in question must be more than mere setting for the taxpayer's operations; but if it is, the question still remains whether its relationship to the operations is such that it should be held to be within the meaning of the term.

Nor do I think that, as Mr Gleeson at one stage in his able argument appeared to suggest, it is sufficient to find that the thing performs some `function' in the relevant operations of the taxpayer. In the Imperial Chemical Industries case 70 ATC 4024 at p. 4025, the wiring, circuits, and trunking clearly performed a function in enabling the taxpayer's operations to be carried on, but this was not, of itself, sufficient for them to be held to be plant. `The functional test' requires that there first be asked `what function', and that function may be an active or a passive function: I.R. Commrs v. Barclay, Curle & Co. Ltd. (1969) 1 W.L.R. 675 at p. 691F, per Lord Donovan.

Where the question has been whether buildings, structures or the like, or parts of them, constitute plant, the process of decision appears generally to have been, not of deriving the decision merely by deduction from a verbal formula or test, but of deciding whether the function performed by the thing is so related to the taxpayer's operations or special that it warrants it being held to be plant. There does not appear to have been evolved any formula of words to describe the relationship exhaustively.''

Counsel for the applicant submitted that on the evidence the terminal building and the doors were designed specifically to meet the requirements of the applicant's business at the site; there was a special relationship between the doors and the applicant's business in which they played a dynamic function; having regard to the ease with which the doors could be installed and removed they were chattels and could more readily be regarded as plant, but, even if not chattels, should be regarded as plant because of their special relationship with the applicant's operations. The doors were not part of the building but a dynamic attachment to it.

For the respondent it was submitted that the building was not uniquely or peculiarly adapted to transferring freight from a railway carriage to a truck and could be used for any storage, warehousing or transhipment operations. Although designed for the applicant, the building did not have any unique factors. It was the setting in which the applicant's business was carried on and the doors were part of it.

The terminal building was, of course, intended to and did play a part in the business operations of the applicant. But, in my view, it was not essential to that business and would have been capable of being put to use in other businesses of many kinds. The applicant did not claim depreciation in respect of the building itself and, in my view, it could not have been considered to have been plant within the meaning of sec. 54. The roller shutter doors, when installed, completed the building which had been designed. The doors, when opened, allow goods to be brought into the building, unpacked and taken out of it, and, when closed, contribute to the security of the goods against thieves and adverse weather conditions. They perform these functions because they are truly parts of the building. They, like the roof, contribute to the applicant's activities but, I think, are more properly to be described as part of the setting for those activities than as performing a function which is special or very closely related to the activities. Accordingly, the Tribunal finds that the roller shutter doors were not ``plant or articles'' within the meaning of sec. 54 of the Income Tax Assessment Act 1936.

Investment allowance

The applicant claimed to be entitled to investment allowance in respect of the cost of the roller shutter doors pursuant to the provisions of Subdiv. B of Pt III of the Income Tax Assessment Act 1936.

Section 82AA, so far as relevant, provided:

``82AA(1) Subject to the following provisions of this Subdivision, this Subdivision applies in relation to a unit of eligible property acquired or constructed by the taxpayer that is -

  • (a) in the case of any taxpayer, for use by the taxpayer wholly and exclusively -
    • (i) in Australia; and
    • (ii) for the purpose of producing assessable income otherwise than by -

      ATC 588

      • (A) the leasing of the eligible property;
      • (B) the letting of the eligible property on hire under a hire-purchase agreement; or
      • (C) the granting to other persons of rights to use the eligible property; or
  • (b) in the case of a taxpayer being a leasing company, for use wholly and exclusively -
    • (i) in Australia; and
    • (ii) for the purpose of producing assessable income, by another person to whom the taxpayer has, on or after 1 January 1976, leased the eligible property under a long-term lease agreement that was entered into by the taxpayer and the other person at arm's length.''

``Eligible property'' was defined in sec. 82AQ as meaning ``plant or articles'' within the meaning of sec. 54 and as including certain earth tanks.

Section 82AB, so far as relevant, provided:

``82AB(1) Subject to this Subdivision, where -

  • (a) on or after 1 January 1976, a taxpayer has incurred expenditure of a capital nature (in this section referred to as `eligible expenditure') in respect of the acquisition or construction by him of a new unit of sub-section 82AA(1) property;
  • (b) the eligible expenditure exceeded $500;
  • (c) the eligible expenditure was incurred -
    • (i) in respect of a unit of property acquired by the taxpayer under a contract entered into on or after 1 January 1976 and before 1 July 1985; or
    • (ii) in respect of a unit of property that was constructed by the taxpayer and the construction of which commenced on or after 1 January 1976 and before 1 July 1985; and
  • (d) the unit of property was first used or installed ready for use before 1 July 1987,

there shall be allowed as a deduction from the taxpayer's assessable income of the first year of income during which that unit was either used for the purpose of producing assessable income, or installed ready for use for that purpose, an amount (in this section referred to as the `relevant amount') ascertained in accordance with the following provisions of this section.''

Section 82AE provided that Subdiv. B did not apply in relation to structural improvements other than certain plumbing, fittings and fixtures and certain specified improvements on land used for primary production.

Section 82AG, so far as relevant, provided:

``82AG(1) This Subdivision does not apply, and shall be deemed never to have applied, in relation to sub-section 82AA(1) property acquired or constructed by a taxpayer, not being property that, in the case of a taxpayer being a leasing company, the taxpayer has leased to another person, if, before the expiration of 12 months after the property was first used, or installed ready for use, by the taxpayer -

  • (a) the taxpayer disposed of the property or the property was lost or destroyed;
  • (b) the taxpayer leased the property, let the property on hire under a hire-purchase agreement or otherwise granted a right to another person to use the property; or
  • (c) the taxpayer used the property outside Australia or for a purpose other than the purpose of producing assessable income.

(2) Where -

  • (a) a deduction has been allowed, or would but for this sub-section be allowable, under this Subdivision from the assessable income of a taxpayer of a year of income in relation to sub-section 82AA(1) property acquired or constructed by the taxpayer, not being property that, in the case of a taxpayer being a leasing company, the taxpayer has leased to another person; and

    ATC 589

  • (b) before the expiration of 12 months after the property was first used, or installed ready for use, by the taxpayer, the taxpayer disposed of a part of his interest in the property,

so much of the deduction as the Commissioner considers appropriate shall be deemed not to have been, or not to be, allowable, as the case may be.;''

It follows from the Tribunal's conclusion that the roller shutter doors were not ``plant or articles'' within sec. 54(1) that they cannot be eligible property for the purposes of sec. 82AA and 82AB and, accordingly, that the applicant was not entitled to investment allowance in respect of the cost of their acquisition. Accordingly, the decision of the Tribunal must be that the objection decision under review be affirmed.

Nevertheless, it seems desirable that the Tribunal should express some views on the submissions made as to whether, if the doors were ``plant or articles'' within the meaning of sec. 54(1) and therefore ``eligible property'' for the purpose of investment allowance, the investment allowance would nevertheless be precluded by the operation of the provisions of sec. 82AA(1)(a)(ii)(C), 82AE and 82AG(1)(b) of the Income Tax Assessment Act.

For the respondent it was submitted that by making part of the terminal building available for the storage of goods of Easter Limited the applicant had granted Easter Limited a right to use the building and the roller shutter doors which formed part of it; by being stored in the building the goods of Easter Limited had the benefit of the shelter and security provided by the building and the benefit of the doors, which when open allowed circulation of air, and when closed could keep out bad weather; therefore, it was submitted, Easter Limited had been granted a right to use the roller shutter doors and the applicant was precluded from entitlement to investment allowance by sec. 82A(1)(a)(ii)(C) and 82AG(1)(b).

Counsel for the applicant submitted that Easter Limited did not have the use of the roller shutter doors because it did not have control over their operational function. He referred to the following observations by Ryan J. in
Kirby v. F.C. of T. 87 ATC 4503 at p. 4515:

``The `use' of an item of plant or equipment, on which the statutory scheme outlined above is erected, is an elusive concept. As Gibbs C.J. pointed out in
Tourapark Pty. Ltd. v. F.C. of T. 82 ATC 4105 at p. 4107; (1982) 149 C.L.R. 176 at p. 181, a person may be said to use property for his own purposes by making it available for use by others. In my view, whether another person has the use of, or has a right to use, certain property turns on the aptness of the ordinary meaning of `use' to describe the relation which exists as a matter of fact between that person and the property. The application of this test may throw up fine distinctions. For example, a passenger who engages a taxi cab to take him from one place to another would probably not be said to have `the use of', or to have been granted a `right to use' the cab in the sense in which those words are respectively used, in sec. 82AG(4) and 82AA(1)(a). On the other hand, a customer who hires a vehicle from a car rental establishment could readily be said to have `the use of' that car, or to have been granted a `right to use' it, during the period of hire. The fact that a vehicle or piece of mechanical equipment is provided to a hirer with the services of a driver or operator does not necessarily make it inapt to say that the hirer has `the use' of the vehicle or equipment whilst it is on hire to him.''

In Tourapark Pty. Ltd. v. F.C. of T. 82 ATC 4105; (1982) 149 C.L.R. 176 the High Court held that sec. 82AA(1)(a)(ii)(C) and 82AG(1)(b) had the effect that a taxpayer was not entitled to an investment allowance on property unless he kept both the property and the exclusive right to use it and used it only for the purpose of producing assessable income. In his reasons for judgment, at ATC p. 4111; C.L.R. p. 188, Aickin J. said of sec. 82AA(1)(a)(ii)(C):

``It seems to me that the purpose of sub-sub-para. (C) is to operate as a `drag net' provision to pick up any other right to use which might be devised or which might arise in the conduct of some particular kind of business.''

There can be no doubt on the evidence that Easter Limited was benefited by the roller shutter doors but, in my opinion, it would not be accurate to say that Easter Limited (and any other customers of the applicant whose goods were in the terminal) had a right to use them

ATC 590

and so, if the doors were ``eligible property'', the applicant would not have been disentitled to an investment allowance by reason of sec. 82AA(1)(a)(ii)(C) or 82AG(1)(b).

As to sec. 82AE, it seems to me that the roller shutter doors, although part of a structural improvement, are not themselves structural improvements and therefore if, contrary to my view, they were ``plant or articles'' within sec. 54 and so ``eligible property'' for the purposes of Subdiv. B, they were not excluded from deduction by sec. 82AE.

But, for the reasons already given, the decision of the Tribunal will be that the objection decision under review be affirmed.


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