PEPSICO AUSTRALIA PTY LTD v FC of T
Judges:Hill J
Court:
Federal Court
Hill J
The applicant in these proceedings, Pepsico Australia Pty Ltd, claims to be entitled to a refund of sales tax. Its claim was disallowed, the disallowance objected to and ultimately the respondent, the Commissioner of Taxation (``the Commissioner''), disallowed the objection. The applicant now appeals to the
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Court against the Commissioner's objection decision not to allow the refund.The dispute between the parties involves various matters of fact and law. At the request of the parties, I ordered the following question to be tried separately from any other question which might arise in the proceedings:
``Has the applicant satisfied the requirements of column 3 of Credit Ground CR7 in Table 3, Schedule 1, to the Sales Tax Assessment Act 1992 in relation to its application for a credit of sales tax borne by the Applicant in respect of the following goods:
Hobart D340 Dough-Mixer, the subject of invoice number 608958 from Polytek to the Applicant dated 26 February 1993.''
A resolution of this question, which involves a matter of construction, is at the heart of the dispute between the parties.
The factual background in which the dispute arises can be quite simply stated. The applicant is ``a registered person'' for sales tax purposes. It operates a number of Pizza Hut restaurants. It bakes pizzas and sells them to customers by retail. The pizzas have a dough base. The dough is mixed using an apparatus known as a ``Hobart Dough-mixer''. The mixer is approximately 120 cm high and contains a motor which operates a mixing arm to which a dough-mixer hook is attached. A large metallic mixing bowl is located on arms attached to the mixer to enable the dough-mixer hook to mix dough ingredients placed in the mixing bowl. The dough-mixer with which the present case is concerned was purchased by the applicant from Polytek Food Equipment Pty Ltd on or about 26 February 1993 for the sum of $10,760.25, including sales tax shown on the invoice to be $1,514.25. Liability for sales tax on the dough- mixer, payable by the vendor but borne by the applicant, arose at the time of the retail sale to the applicant. It is common ground that no exemption was available to the applicant in respect of its purchase of the dough-mixer.
The applicant claims, however, to be entitled to a credit under credit ground 7 in Table 3 to Schedule 1 of the Sales Tax Assessment Act 1992 (Cth) (``the Assessment Act''). That ground is summarised in the relevant table as being applicable to the ``avoiding `indirect taxing' of exempt outputs (where inputs have borne tax)''. The details of the ground as set out in the table are as follows:
``Claimant is the taxpayer for an assessable dealing with goods ( `the output goods' ) that is not taxable (for any reason except section 29). Claimant has borne tax on other goods ( `the input goods' ) that have a sufficient link (as defined by section 52) with the output goods. The input goods are not covered by exemption Item 27(3).''
If the credit ground is available the applicant is entitled to a credit of the tax borne by it to the extent that it has not been passed on. The following matters are agreed between the parties. First, it is agreed that the applicant is, for the purposes of credit ground 7, ``the taxpayer for an assessable dealing with goods''. The relevant ``assessable dealing'' is constituted by the sales which the applicant makes of pizzas, which sales fall within AD2a in Table 1 of Schedule 1 to the Assessment Act. It is accepted that the assessable dealings which the applicant has in respect of the pizzas are not taxable and that s 29 has no application. It is also accepted that the applicant has borne tax on the mixer, that being ``the input goods'' for the purposes of the credit ground. The parties are also in agreement that the mixer does not fall within exemption Item 27(3).
The only issue between the parties is, therefore, whether there is a ``sufficient link'', as defined by s 52, between the mixer and the pizzas.
Section 52 of the Assessment Act is relevantly in the following terms:
``For the purposes of credit grounds... CR7... the input goods have a sufficient link with the output goods in the following cases:
- (a)...
- (b) the input goods have been used in connection with the output goods in the carrying out of an activity that would have been covered by an exemption [R] Item if the person carrying out the activity had been registered at all relevant times.
- (c)...''
Again, the parties are in agreement that the dough-mixer has been used in connection with the pizzas in the carrying on by the applicant of its business of making pizzas and that that business is properly to be described as an activity of manufacture, having regard to the
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definition of ``manufacture'' in s 5 of the Assessment Act which includes as ``manufacture'':``(c) applying a treatment to foodstuffs as a process in preparing them for human consumption.''
The applicant claims that its pizza making activity would have been covered by exemption Item 18(1) of the Sales Tax (Exemptions and Classifications) Act 1992 (``the Exemptions and Classifications Act'') (that being an [R] item) if the applicant had been registered at all relevant times. It might be noted, as has already been stated, that the applicant was in fact registered at all relevant times.
Item 18(1) of the Exemptions and Classifications Act is headed ``Manufacture- related activities'' [R]. Relevantly, it is in the following terms:
``(1) Goods for use by a person ( `the exemption user' ) mainly in carrying out one or more of the following activities:
- (a) a manufacture-related activity carried out by the exemption user in the course of a business:
...
(3) This Item does not cover:
- (a) generally-excluded property (as defined by section 12).''
Section 12(3) of the Exemptions and Classifications Act defines ``generally excluded property'' as, inter alia, ``property'' if:
``(a) it is for use mainly for or in connection with the preparation or preservation of food or drink for human consumption, if the preparation or preservation takes in:
- (i) a retail or catering establishment;''
The parties are likewise in agreement that the dough-mixer falls within this definition of generally excluded property.
The applicant's argument is beguilingly simple. It says that s 52(b) of the Assessment Act requires there to be consideration of the activity covered by Item 18(1). That activity is, it says, the manufacture-related activity of the applicant in making pizzas. It says that the fact that the dough-mixer is generally excluded property and so, by force of Item 18(3) not covered by Item 18, is irrelevant. It says to consider the type of goods with which Item 18 is concerned is to ignore the legislative direction in s 52 of the Assessment Act to have regard to the activity, which activity would have been covered by the exemption [R] item if the applicant had at all relevant times been registered. So, the applicant says the fact that the item excludes certain goods does not affect the fact that the activities of manufacture are covered. In support of its construction it refers to the heading of Item 18 which refers to manufacture-related activities. It seeks to draw a distinction between activities the subject of an item and goods the subject of an item. It points out that some items in the Exemptions and Classifications Act (for example Item 115 of Schedule 1) are clearly concerned with goods. In that case the relevant goods are works of art. Other items place greater emphasis on activities. It is said that Item 18 is such an item.
The applicant seeks, in a subsidiary argument, to call in aid an amendment made in 1993 to the credit ground 7, adding the words: ``The input goods are not covered by exemption Item 27(3).'' Item 27(3) is concerned with containers, including containers for takeaway beverages or foodstuffs. The argument put is that prior to the 1993 amendment, such items would have come within credit ground 7 because s 52(b) combined with either exemption Item 18 or exemption Item 28 would have applied to them. So, the situation prior to 1993 was that, while exemption Item 27(3) would not have applied to an initial purchase of containers for takeaway beverages or foodstuffs, a credit would have been available under credit ground 7 for the sales tax borne on these containers. It is said that the government felt it necessary to negate this situation by amending credit ground 7 to exclude goods covered by exemption Item 27(3). No such amendment has been made in respect of cases such as the present which the applicant submits fall within exemption Item 18(1). I must say that I gain little assistance from an amendment made subsequent to the insertion of a section in construing the section as originally enacted.
It may well be the case that the issue can be reduced, as the applicant's submission suggests, to a very narrow one, namely, the meaning of the words ``activity that would have been covered by an exemption [R] item''. However, it is helpful before considering specifically this question of construction to set the issue between the parties into the context of the legislation. It is perhaps self-evident that no question of construction can be resolved
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without reference to the context in which the question arises:CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 634,
Cooper Brookes (Wollongong) Pty Ltd v FC of T 81 ATC 4292 at 4305-4306; (1981) 147 CLR 297 at 320-321,
Saraswati v R (1991) 172 CLR 1 at 22.
The starting point for determining whether sales tax is payable is s 16(1) of the Assessment Act. That section tells us that ``Table 1 sets out all the assessable dealings that can be subject to sales tax''. For present purposes what is relevant is that it is dealings which are subject to sales tax, not goods. That is, perhaps, not surprising for the tax is a transactional tax: cf
Attorney-General of New South Wales v The Collection of Customs for New South Wales (1908) 5 CLR 818. Table 1 sets out descriptions of various types of dealings allocating to them a number. Because the tax, as initially imposed by legislation enacted in 1930 as amended from time to time (collectively referred to hereafter as ``the 1930 legislation'') and now by legislation enacted in 1992, is essentially a wholesale sales tax payable by reference to the price arrived at in a wholesale sale, the first assessable dealing listed as AD1a is that of the sale by wholesale by a person who manufactured the goods in the course of any business. The categories of assessable dealings extend, however, beyond goods manufactured in Australia to imported goods and beyond sales which are wholesale sales to retail sales and application of the goods to the use of a manufacturer, importer or wholesaler of the goods.
The fact that a dealing is an assessable dealing, listed in Table 1, does not necessarily mean that sales tax will be payable, for the tax is payable only on ``taxable dealings'' as defined in s 5(1). A dealing will become a taxable dealing to which a relevant sales tax rate will be applied if it is an assessable dealing to which no exemption applies under Division 2 of Part 3 of the Assessment Act. Relevantly, s 24 of the Assessment Act (to be found in Division 2 of Part 3) provides:
``An assessable dealing is not taxable if:
- (a) the goods are covered by an exemption Item that is in force at the time of the dealing; and
- (b) all the requirements of that Item have been met at or before the time of the dealing.''
Thus s 24 contemplates that what discriminates a non-taxable dealing from a taxable dealing will be the question whether the goods are ``covered by'' an exemption item. The language used tends to suggest that exemption thus depends upon some characteristic of the goods, rather than the dealing which those goods undergo. However, given the emphasis on ``dealing'' in s 16(1) and the definition of ``taxable dealing'', the true position is that while exemption items have the consequence of exempting dealings, the dealings exempted will usually be dealings in particular kinds of goods.
The reference in s 24 to an ``exemption item'' is a reference to an item or sub-item in Schedule 1 to the Exemptions and Classifications Act.
As an aid to drafting, certain goods are defined in the Exemptions and Classifications Act as ``generally-excluded property''. These are goods which are excluded from the operation of numerous exemption items and, to save excessive duplication of language, their exclusion is effected by the use of the defined term rather than in each exemption item listing the particular goods.
It may be noted here that prior to the 1992 legislation, pizza manufacturers could set up a wholesale entity to sell pizzas to their associate retail operation on the same premises. The wholesale entity could thus obtain exemption from sales tax of the equipment used to make the pizzas. One of the changes made by the 1992 Exemptions and Classifications Act was to ensure that business inputs for pizza making at premises where retail sales are made would be taxable: Explanatory Memorandum to the Sales Tax (Exemptions and Classifications Bill 1992 at p 7 and par 5.34 at pp 71-72. That intention is reflected in the inclusion of ``generally-excluded property'' of goods for use for or in connection with the preparation of food in retail or catering establishments or premises occupied in connection with a retail or catering establishment.
A cogent criticism of wholesale sales taxes generally, and the 1930 sales tax legislation in particular, was that in the 1930 legislation inadequate account was taken and, in general, is still taken of the position of so-called ``business inputs''. Where dealings are exempted from tax (and such exemption will presumably only have been granted because some policy reason suggested that it was in the public interest that
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the dealings were exempted) the exemption is in part negated if goods used in, or in connection with, the manufacturing process are themselves taxed. So too, where dealings in goods, ie the manufacturer's output, are taxable, failure to exempt goods used in, or in connection with, the manufacturing process will bring about an element of double taxation. Thus in the 1980s and early 1990s there was a call for amendment of the law to exempt all business inputs from taxation. That call emphasised the need, in the case of goods for export, to make Australian goods internationally competitive by ensuring all business inputs were freed from tax. It also led to political agitation for the enactment of a value added tax along the lines of the European model to replace the wholesale sales tax.The occasion of a rewrite of the sales tax law in an attempt to simplify (or as it was later said, to streamline sales tax) provided an opportunity for the government to attempt to deal more comprehensively than was the case in the 1930 sales tax legislation with the problem of business inputs (cf ``aids to manufacture'' in the 1930 sales tax legislation). The term ``business inputs'' was not, as such, used in the 1992 legislation, although it is to be found in the Explanatory Memorandum which accompanied it. That document, when it speaks of ``business inputs'' refers to:
``goods (including raw materials and equipment) for which exemption is available under exemptions for business or industry contained in Chapter 1 of Schedule 1 to the Exemptions and Classifications Act.''
The basic approach adopted in the 1992 legislation to deal with business inputs was to encourage those eligible to register to obtain registration and to quote their registration number when acquiring business inputs and thus acquire the business inputs free of sales tax. Thus, business inputs identified in the Exemptions and Classifications Act were itemised as exempt, but the exemption was only to be available to registered persons. To give effect to this legislative policy, some of the items in Schedule 1 to the Exemptions and Classifications Act appear with the symbol [R] after them. These are the business input items. The symbol [R] is explained in s 9 of the Exemptions and Classifications Act which provides that goods will not be covered by an exemption item marked [R] unless the exemption user is a registered person at the time specified in the table in s 5.
Under the 1930 sales tax legislation, it was an offence to carry on a business of manufacturing of wholesaling without being registered: s 18 of the Sales Tax Assessment Act (No. 1) 1930. The legislation proceeded upon the basis not merely that a person qualified or entitled to be registered would register, but that such a person would quote a registration number at all times when the regulations required quotation and would not quote in circumstances where the regulations did not: see ss 12(1) and 12(2) of the Sales Tax Assessment Act (No. 1) 1930.
The present legislation does not proceed on the same basis. A person may choose whether or not to be registered. Likewise, a person who is registered may choose whether or not to quote his or her registration number. The linking of the exemption items marked with the symbol [R] to registration provides, however, an incentive to register.
It was the underlying policy of the 1930 sales tax legislation, and continues to be the policy of the 1992 legislation, that sales tax was and is payable once, and once only, where possible on the last wholesale sale and always on a wholesale value of the goods:
Brayson Motors Pty Ltd (in liquidation) v FC of T 85 ATC 4125 at 4127-4128; (1984-1985) 156 CLR 651 at 657-658. In part, that policy is given effect to in the 1992 rewrite by a system of credits. So, if goods have borne tax in a prior transaction and are brought to tax in a later transaction, a credit will be given for the earlier tax paid. The circumstances where credits are available are listed in the credit grounds to be found in Table 3 to Schedule 1 to the Assessment Act. The policy to be found in those grounds extends beyond that just expressed and, inter alia, provides a mechanism for freeing business inputs from sales tax.
Three of the credit grounds are concerned with business inputs. These are credit grounds CR6, CR7 and CR12. They deal, respectively, with the case where the business output is taxable (CR6); where the business output is not taxable (CR7), and where the output goods are exported while still assessable goods (CR12). Each of these grounds is predicated upon the existence of a ``sufficient link'' as defined in s 52. Each is likewise predicated upon the input
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goods having been acquired in a taxable transaction.The theory behind these credit items is clear. Ordinarily, a manufacturer will be a registered person and will thus be able to acquire business inputs falling within an item labelled [R], free of tax. However, registration is not compulsory. An unregistered person acquiring goods falling within an exemption item labelled [R] will not be entitled to any exemption. The availability of a credit ground thus provides a mechanism where an unregistered person obtaining input goods in circumstances where, if registered, that person would have been entitled to obtain the goods free of tax, may obtain a credit and thus be put in the same position as if registered. That explains, I think, the reference in s 52(b) to the hypothesis of the exemption item being available to the applicant for a credit if that person had been registered at all relevant times. Whether s 52 as a matter of construction is confined to the case of an applicant who was unregistered is an issue raised by the Commissioner, although not an issue addressed directly by the applicant's submissions.
Thus we come to s 52. It is concerned with three cases where credit will be available. The first is the case where the input goods have become an integral part of the output goods. The third is the case where something which formed part of the input goods at the time of the tax-bearing dealing with the input goods has become part of the output goods. Neither of these two examples refers back to an exemption item; nor need they. Each is predicated upon the applicant for credit having done something with the input goods to transform them into an integral part of the output goods, ie each appears to be predicated upon there being a process of manufacture wherein the input goods are subsumed into the output goods. The second case, that described in par (b), requires only that the use of the input goods be in connection with the output goods, so long as that use is in the carrying on of the relevant activity. I turn now to the competing submissions.
The primary submission of the Commissioner is that the sufficient link required by s 52(b) is not to be found in the present case because the dough-mixer does not satisfy all the requirements under Item 18.
The submission commences with an analysis of the meaning of the word ``covered''. It is said that it means ``falls within''. That may be accepted. Thus when Item 18(3) says that certain goods are not ``covered'', it obviously seeks to convey the thought that those goods fall outside the item, rather than within it. Resort to the Explanatory Memorandum confirms this ordinary usage of the word. At par 4.19 p 47, it is said:
```Goods covered by' will be a standard expression to indicate goods which fall within the terms of an Item or subitem.''
It is the next step in the primary submission which can not be accepted. The Commissioner says that the sufficient link is not to be found because the dough-mixer is not covered by, ie falls outside, Item 18, by force of Item 18(3)(a) operating to exclude ``generally-excluded property'' which it is agreed the dough-mixer is.
The simple answer is that made by the applicant. Section 52(b) of the Assessment Act does not in terms require that the goods in question fall within the [R] item. It requires that the activity be covered by, that is to say, fall within the item. A submission which places emphasis on the goods , and not the activity , must fail. The section speaks of activity and not goods . If more is needed than the wording of s 52, additional support for the applicant's submission may be found in the heading to Item 18: ``Manufacture-related activities''. Despite a submission to the contrary, I do not think that s 11 of the Exemptions and Classifications Act provides any assistance on this branch of the argument. That section commences with the following words:
``Any subitem in Chapter 1 that refers to eligible raw materials and parts in relation to specified activities is to be read as referring to the following goods:...''
But that is not the end of the matter.
The question remains what meaning is to be given to the expression ``activity that would have been covered by an exemption [R] item if the person carrying out the activity had been registered at all times.'' There are two issues. The first is the meaning of ``activity''; the second, the significance of registration. I think that when the legislature used the word ``activity'' it intended to refer not merely to ``a manufacture-related activity'' or ``ancillary activity'' as the case may be, but, rather, to the activity with goods which activity is covered by the item. Put in another way, the activity
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relevant in the present case is a manufacture- related activity in connection with goods which are covered by the item. It is only if s 52 is given such an interpretation that it does not produce a result which is capricious. Clearly the Court will prefer that interpretation which produces a sensible result to that which produces a result which is absurd or capricious: cf Cooper Brookes (supra).When the legislature incorporated by reference the [R] item, it imported into s 52 the context of those items. Had the legislature repeated some of the words in the [R] item then no doubt the language would stand on its own ``liberated'' from the context. However, that is not what was done: cf
FC of T v Sherritt Gordon Mines Limited 77 ATC 4365 at 4370; (1976-1977) 137 CLR 612 at 623.
If s 52 is not confined to unregistered persons, a matter yet to be explored, then the result of adopting the construction advanced by the applicant would be that a registered person would obtain an exemption for tax on items not excluded by Item 18(3) but would be unable to obtain an exemption when acquiring any of the items excluded from Item 18 by Item 18(3). However, the registered person would, after paying the tax on the business input, be able to obtain a credit for the tax payable on the goods excluded from exemption. The absurdity of this result is made more manifest when one considers the terms of s 82(1) and in particular s 82(1)(f) of the Assessment Act. Section 82 sets out the circumstances under which a registered person may quote a certificate. Of the nine circumstances listed, six are concerned with the case where the person quoting a certificate intends to sell the relevant goods. Paragraph (1)(f) is the case where the quoter intends to use the goods so as to satisfy an exemption item; the remaining two cases have no relevant application. Thus, specifically, a registered person is not permitted to quote a registration number and so obtain goods tax free, if those goods are outside the provisions of Item 18. However, on the applicant's argument, that person is entitled to obtain a credit simultaneously with purchase under s 52.
Counsel for the Commissioner points as well to a further oddity if the applicant's construction is to be adopted. Item 34 (a non-[ R] item) has the effect of exempting goods for use by an approved R & D body carrying out certain defined activities. Various items are excluded from this exemption, including ``generally-excluded property'' (Item 34(3)(a)). Such a body could thus obtain goods for its use in its research and development tax free, although it could not obtain ``generally excluded goods'' tax free. Item 33 is in similar terms, but is not restricted to R & D bodies. On the applicant's interpretation, while no exemption would be available to an R & D body, or for that matter any one else under Item 34 for ``generally-excluded property'', a credit would be available for the same property under Item 33, when presumably that item was not intended to be available to R & D bodies whose credit entitlement is specifically provided for in Item 34.
There is a danger in pursuing anomalies said to arise from a particular interpretation of the legislation. Nevertheless, enough has been said to demonstrate that the applicant's interpretation, even if s 52(b) is not limited to unregistered persons, does appear to bring about absurdity.
If on the other hand s 52(b) is restricted to persons who are unregistered, then one would expect there to be a correspondence between the exemption available to the registered person derived directly through the application of the [ R] item and the credit available to the unregistered person through the reference to the [ R] item in s 52(b). There is no policy reason for a lack of uniformity in the treatment of unregistered and registered persons and indeed every reason to expect that the intention of the legislature was that there should be uniformity in the application of the [R] exemption items and the credit items in respect of which s 52(b) has application. After all, why should an unregistered person be treated better than a registered person. That result is so absurd as to be rejected. Thus, I think s 52(b) should be given the construction I have suggested, namely that it refers to activities of the kind covered by Item 18; such activities excluding activities with goods not covered by the item because they are excluded by Item 18(3).
Although it is not necessary for me to decide, I think there is much to be said for the view that s 52 is limited in its application to persons who are unregistered persons. This may be implied from the wording of s 52. The hypothesis advanced when applying s 52 is registration of the applicant at all relevant times. In other words, the section proceeds on the basis that the
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person seeking the credit is not registered, but hypothesises for the purpose of the credit grounds that the person is registered at all relevant times. Once this is seen, the exemption items and s 52 produce a coherent result. A registered person who acquires input goods for use in his or her business is entitled to quote a registration number and thereby obtain an exemption for goods which fulfil the criterion for exemption in any of the [R] items. Because ``generally-excluded property'' falls outside all [ R] exemption items, a registered person will not be entitled to a credit when that person acquires ``generally-excluded property''. An unregistered person is not entitled to purchase business inputs because the [R] items are restricted to registered persons. Instead, unregistered persons are entitled to a credit for their original acquisition will have borne tax. The terms of that credit are coextensive with the exemption available to registered persons on acquisition. In particular, they do not extend to ``generally-excluded property''.It may be said against what is said above that it leaves lamenting the registered person who omits to quote his or her registration number at the time of purchasing business inputs when that course was available. If s 52(b) is construed as applying to both registered and unregistered persons alike, a registered person who omits to quote a certificate at the time of purchase still remains able to obtain a credit, and thus ensure that his or her business inputs are acquired tax free. That, however, is a matter for another day.
The view I have suggested is confirmed by reference to the Explanatory Memorandum. In par 5.5 on p 57 the Explanatory Memorandum says:
``5.5 Business inputs exemptions marked [ R] : A number of exemption Items for goods for use in business or industry will be marked [R]. These Items will be referred to as [R] Items . These Items will operate so that only registered persons can quote to acquire goods covered by the Items tax-free. Unregistered persons will not be able to quote exemption declarations to obtain goods covered by these Items tax-free. Unregistered persons will be required to acquire goods covered by the Items tax-paid, and may be entitled to claim a credit (see paragraph 5.17).''
Paragraph 5.17 (at p 61) then says:
``5.17 An unregistered exemption user will have to purchase business inputs covered by [ R] Items at tax-inclusive prices. They may then be entitled to a credit, for the tax borne on the inputs, at the time of subsequent assessable dealings with the outputs.''
Even if s 52 applies to registered and unregistered persons alike, it does so in a way that treats the credit ground and the exemption items as congruent. In particular, neither extend to generally excluded property. I am thus of the view that the separate question should be answered, No. I would order the applicant to pay the Commissioner's costs of the proceedings so far as they relate to the question raised for decision.
THE COURT ORDERS THAT:
1. Question separately reserved for trial, namely:
``Has the applicant satisfied the requirements of column 3 of Credit Ground CR7 in Table 3, Schedule 1, to the Sales Tax Assessment Act 1992 in relation to its application for a credit of sales tax borne by the Applicant in respect of the following goods:
Hobart D340 Dough-Mixer, the subject of invoice number 608958 from Polytek to the Applicant dated 26 February 1993.''
be answered NO.
2. The applicant pay the respondent's costs of the separate question reserved for trial.
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