Sarich v. Federal Commissioner of Taxation.

Judges:
Lavan SPJ

Court:
Supreme Court of Western Australia

Judgment date: Judgment handed down 21 November 1978.

Lavan S.P.J.: On the 24th July 1974 the Commissioner of Taxation issued to Lubomir George Sarich (``the appellant'') an assessment of income tax for the year ended the 30th June 1972. On the 20th September 1974 the appellant gave notice of his objection against the assessment.

The Commissioner having disallowed the objection, the decision was referred to Taxation Board of Review No. 2 for review. On the 28th October 1977 the Board upheld the assessment and from its decision this appeal is brought.

A transcript of the verbal evidence presented and the various documents exhibited during the hearing of the reference were by agreement submitted as an accurate record of the proceedings before the Board and, with the testimony of one witness called by the appellant, constituted the evidence upon which the appeal was argued.

Such evidence disclosed that in the middle of 1964 the appellant, who at the time was a vehicle salesman, accepted the invitation of one Pavlinovich, a real estate agent, to join a syndicate (hereinafter ``the syndicate'') with the object of acquiring land for subdivision and resale at a profit. There were nine members of the syndicate but of them Pavlinovich alone had any previous experience of land development and the others were content to leave the management of the affairs of the syndicate in his hands while they pursued their normal occupations and made such financial contributions as were from time to time required.

Pavlinovich was successful in acquiring on behalf of the syndicate thirty acres of land in Swan View. The land had previously been subdivided into five acre lots and although situated in a rural area, was zoned for urban development. It was purchased from different vendors and as each lot was acquired it was transferred into the names of different groups of members of the syndicate. This informal arrangement continued until 30th August 1965 when the members executed a Deed which was designed to record the terms and their relationship and to establish Pavlinovich as Manager of the syndicate.

The document after reciting that the lots held by the various members on behalf of the syndicate (details of which appeared in the schedules to the document) had been purchased from moneys contributed by the parties in equal 1/9th shares proceeded:

``It is the intention of the parties hereto to subdivide and develop the said lands and to sell the same from time to time to the best advantage and also to acquire further lands from time to time with a view to the subdivision and development thereof.''

The operative provisions of the Deed which followed (insofar as they are relative to this appeal) are in the following terms:

``(1) The parties hereto are partners in the business of land developers and subdividers as from the 1st day of June 1964 and such partnership shall continue until the same shall be terminated as herein provided.

(2) The name of the partnership (which is hereinafter called `the syndicate') is Swan View Syndicate.

...

(5) The parties hereto irrevocably appoint Florida Estate Agency... (in which business the Manager is a partner) as sole agent of the syndicate for buying and selling land on behalf of the syndicate with full power on behalf of the syndicate to make plans of subdivision of any land owned by the syndicate and to apply for and obtain all consents and approvals necessary or requisite for the purposes of such subdivisions.

ATC 4649

(6) The capital of the syndicate consists of the lands described in the schedules hereto and such sums of money as the members shall from time to time in equal shares contribute for capital purposes.

(7) The capital and profits of the syndicate belong to the members in equal shares and they shall bear and contribute to the losses, if any, in equal shares.

(8) The respective registered proprietors of the land described in the schedules hereto hereby covenant and agree with the other members of the syndicate that they will from time to time and at all times deal with the said lands consistently with the provisions of this indenture and not otherwise.

...

(11)(a) A member (called `the vendor') wishing to sell the whole or any part of his share and interest in the syndicate shall give notice in writing (called `the notice of sale') to the manager.

(b) The manager shall immediately upon receiving the notice of sale, offer the share and interest of the vendor to the members in proportion to their existing holdings at a price to be determined as hereinafter provided.

...

(d) The price at which the share and interest of the vendor is to be offered to the remaining members shall be determined by the mutual agreement of all the members of the syndicate other than the vendor, provided always that the price so determined shall be deemed to be a fair market price if it is not less than seventy percentum of the market value of the share.

(12) The syndicate shall be dissolved when so agreed by all the members.''

On the day following the execution of the agreement the members of the syndicate completed the purchase of an interest in additional land. On the 31st August 1965 they entered into a contract with one Scott, for the purchase of twenty acres (hereinafter referred to as ``the Scott land'') which while contiguous with the thirty acres originally acquired actually divided it. In making this purchase they were joined by the parents of Pavlinovich, each of whom acquired a 1/8th interest, while each of the syndicate members acquired a 1/12th interest in the land. It is of interest that it was a term of the contract with Scott that:

``The purchasers are buying the said property with a view to subdividing the same for resale and the vendor agrees from time to time and at all reasonable times at the cost and expense in all things of the purchasers, to sign, execute and do, all such documents, deeds, acts and things as may be necessary, requisite and convenient in order that a plan or diagram of subdivision to be prepared by the purchasers may be submitted to and approved by the Town Planning Board and in order that all other necessary consents and approvals of such subdivision shall be obtained as expeditiously as may be.''

In due course transfers of the Scott land to the purchasers were registered as to their respective interests: otherwise no document was executed so as to indicate any particular relationship between the registered proprietors in respect thereof, but thereafter the syndicate for all purposes treated the total area of fifty acres as one lot and in 1966 an application was made to the Town Planning Board for approval of its subdivision.

In addition to the foregoing, the syndicate embarked on other transactions. A few months prior to the acquisition of the Scott land, the syndicate had purchased an area of three acres in the vicinity of the Swan View land which was disposed of at a profit of $7,400 after the larger area had been acquired. During 1966 it became a member of the Southern Sands Syndicate which had acquired a substantial area of subdivisional land at Cockburn. From this, sand was sold in commercial quantities but subsequently the land was subdivided and sold. Although in the accounting of the syndicate a small sum was written off to cover the cost of this investment, a significant profit was ultimately taken to account. In February 1967 two small lots in Redcliffe were purchased, but within a year resold to Pavlinovich at a profit of approximately $1,000.

ATC 4650

In order to finance its various transactions, it had been necessary for the syndicate to resort to a leasing institution for financial assistance, thereby committing its members to substantial periodical payments. It was hoped, and based on the experience of other developers in the locality, confidently expected that favourable consideration would be given to the application so that the land could be subdivided and sold without delay. As it transpired, although in November 1968 preliminary assents was given to the proposal by the Board, such approval was subject to compliance with a number of conditions including the requirement that all lots in the subdivision should be connected to a deep sewerage system to be provided at the cost of the developers to the satisfaction of the various authorities. The amount involved in meeting this requirement was beyond the financial resources of the members of the syndicate, some of whom were already finding difficulty in meeting their financial commitments. The situation was only temporarily alleviated in 1968 when a land development company acquired an option to purchase fifty of the subdivided lots and paid to the syndicate a preliminary deposit of approximately $75,000. It was, however, a requirement of the option that the subdivision should be unconditionally approved within a specified time. Discussions were therefore opened with the various authorities with a view to negotiating a less expensive alternative to deep sewerage, but progress was slow and it was not until August 1971 that final approval was given to the subdivision on the basis that the sewerage works would be carried out by the local authority, on an undertaking by the syndicate that a specified amount per acre would be contributed towards the cost.

The situation of the syndicate was complicated still further when in 1969 four of its members gave notice of their intention to quit the syndicate. This involved the remaining five members, including the appellant, in acquiring in equal shares their respective interests. The transactions were the subject of written agreements. In the first instance by an agreement dated the 12th February 1969, each of two of the retiring members agreed to sell his 1/9th ``interest in the said syndicate'' for the sum of $22,500. A third member by agreement dated the 13th February 1969, agreed to sell ``his interest in the said syndicate'' for the sum of $22,500, while in the fourth instance the member agreed to sell ``all that the vendor's right title and interest in the aforesaid syndicate'' for the sum of $28,000. All of the purchases were made on extended terms involving the payment by the continuing members of substantial interest on the various outstanding balances and in each instance the purchaser agreed to assume ``all the liabilities of the vendor in respect of the syndicate, its activities and property owned by the syndicate''.

The difficulties of the syndicate became compounded when the development company which had the option to purchase became concerned at the failure of the vendors to obtain unconditional approval to the subdivision and demanded the repayment of its deposit. However, the agreement was renegotiated on the basis that the development company would acquire the whole of the area of fifty acres as one undivided lot for the sum of $236,000. The finalisation of this transaction marked the end of the operation of the syndicate.

At all relevant times the books of account of the syndicate were supervised by a firm of chartered accountants, which in respect of the years ended the 30th June 1970 and 1971 and the period between the 1st July 1971 and the 31st March 1972, prepared statements of account from which the income tax returns of the syndicate were prepared.

In such accounts and consequently in the income tax returns of the syndicate, the following adjusted losses were claimed: 

      For the year ended 30th June
      1970...........................    $ 3,991.00
      For the year ended 30th June
      1970...........................    $ 9,840.00
      For the period 1st August 1971
      to 31st March 1972.............    $19,339.00

However, in calculating the net income in respect of each such year, the Commissioner disallowed the following amounts: 

      For the year ending 30th June
      1970, being the amount of
      interest claimed to have been
      paid or due to retiring
      members............................


         $2,482.00
      For the year ending 30th June
      1971 and being the amount of
      interest claimed to have been
      members............................  $1,770.00

      For the period 1st July 1971
      to 31st March 1972, and
      being

      (a) amounts claimed to have
      been paid or due to retiring
      members

      19th March 1969  $57,146.00
      30th June 1969.  $24,594.00

      (b) interest paid
      or due to retiring
      members in 1972  $  560.00

      (c) capitalised
      legal expenses.. $3,477.00           $85,777.00
                       ---------

The above adjustments were reflected in the appellant's claims for deductions in respect of his proportion of syndicate losses for the respective years of tax: 

      in 1970 by reducing the amount of his
      claim by....................................  $   301

      in 1971 by reducing the amounts of his
      claim by....................................  $ 1,614

      in 1972 by converting his claim of $3,868
      to an item of taxable income amounting
      to..........................................  $13,287

Objections to the assessments for each of the three years having been disallowed, the decision of the Commissioner was in each case at the request of the appellant referred to the Taxation Board of Review which in respect of the assessment for the year ending the 30th June 1970 allowed the objection in full. The effect of this decision was, as the Board found,

``to create a loss of the kind contemplated by sec. 80(2) in the amount of $74.00. Ordinarily this would have been added to the loss sustained by the taxpayer in respect of the year ended the 30th June 1971 and been available as a deduction against assessable income of the year ended the 30th June 1972, but the objection against the assessment of that year did not advert to the matter of unrecouped losses arising in respect of the year ended the 30th June 1970 and the Board cannot therefore make any order in respect of this amount of $74.00.''

No appeal was brought against this latter finding of the Board of Review.

The Commissioner's reasons for disallowing the appellant's objection insofar as it related to the year ending 30th June 1972 were stated as follows:

``(1) The taxpayer was associated with others in a partnership (known as Swan View Land Development Co. previously known as Swan View Syndicate) within the meaning of sec. 61.

(2) In calculating the net income of the partnership no deduction is allowable in respect of amounts paid or due to retired members of the former partnership by members of the new partnership or for expenses incurred in respect of those amounts.

(3) Accordingly the taxpayers individual interest in the net income of the partnership for the year ended the 30th June 1972 was $13,287 and this amount was correctly included in the taxpayer's assessable income.''

The Board upheld the Commissioner's reasons for disallowing the objection and this appeal from the decision of the Board is made to this Court on the grounds that:

Preliminary to a consideration of the appeal is an objection taken on behalf of the Commissioner that grounds of appeal 2(a) and 4(b), to the effect that the syndicate had been concerned with a sec. 26(a) scheme which had been abandoned thereby rendering any subsequent income non taxable, had not be included in the original grounds of objection and consequently were not available to be argued on the appeal. This issue was raised before the Board of Review, but by reason of the decision of the Board adverse to the taxpayer on grounds which did not require consideration of the objection, the matter was not then decided. The Commissioner did not, however, abandon the objection and seeks that its validity should be adjudicated by this Court.

Section 190(a) of the Act provides that:

``Upon every reference to the Board of Review or appeal to a Court the taxpayer shall be limited to the grounds stated in his objection.''

Section 185 requires that an objection must be in writing and must state ``fully and in detail the grounds'' on which the taxpayer relies.

In
Molloy v. Commr. of Land Tax (1938) 59 C.L.R. 608, it was pointed out that:

``Section 190(a) is a positive statutory provision that upon an appeal the taxpayer is limited to the grounds set out in the notice of objection. This was regarded as an imperative direction to the Court, not a provision merely for the benefit of the Commissioner which he is in a position to waive. The provision is made for the purpose of protecting public revenue and the Court is bound to give effect to it.''

Although in a number of cases and in particular in
Archer Bros. Pty. Ltd. v. F.C. of T. (1953) 10 A.T.D. 192 and
A.L. Campbell & Co. Pty. Ltd. v. F.C. of T. (1951) 82 C.L.R. 452, it was pointed out that lack of precision in the drafting of grounds of objection was not fatal to their consideration, the authorities are clear that no contention may be advanced before a Court or a Board unless it is one which the tribunal finds is within the stated ground of objection so drawn that the Commission might reasonably be expected to have gathered from the written objection the sense of the attack on the assessment: see also
H.R. Lancey Shipping Co. Pty. Ltd. v. F.C. of T. (1951) 9 A.T.D. 267 per Williams J. at pp. 272-3 and
F.C. of T. v. Western Suburbs Cinemas Ltd. (1952) 86 C.L.R. 102 per Kitto J. at pp. 106-7.

Counsel for the appellant submits, however, that when regard is had to the grounds of objection as originally drawn, it is obvious that the taxpayer was relying on the proposition that the syndicate operation fell clearly within the scope of sec. 26(a) of the Act. He argues that once the substance of the objection is identified, every aspect of its operation properly falls to be considered within the stated ground - even to the extent of considering the claim not previously propounded that the sec. 26(a) scheme had been abandoned. He argues that if the Court is of the opinion that notwithstanding a defect in the grounds of appeal the basis of the Commissioner's assessment is defective the Court should follow the course adopted in
Mercantile Credits Ltd. v. F.C. of. T. 71 ATC 4015 (1971) 123 C.L.R. 476 and vary the assessment.

ATC 4653

In my opinion the appellant's submission in this regard can not be sustained. It is in my view one thing to claim that the operation of the syndicate falls within the scope of sec. 26(a) but quite another thing to claim that such a scheme was abandoned prior to completion with a resultant tax advantage to the syndicate. I do not consider that the Commissioner on the objection as drawn, could reasonably have been expected to anticipate the nature of the objection which the appellant would now advance. While the Courts have on occasions appeared to depart from the strict letter of sec. 190(a), such departures have been countenanced only in such instances where the ground objected to challenged the basis of calculation and not where an entirely new ground was introduced. While the objections raised by the taxpayer clearly established a claim that the syndicate was operating under a sec. 26(a) scheme, in no manner was any ground introduced to suggest that the syndicate had in fact abandoned the project. Although in the result nothing turns upon my opinion in this regard, I consider that the objections taken by the Commissioner is well founded and that the taxpayer's appeal is limited to those grounds other than those claiming the abandonment of the scheme.

This Court is not bound by the findings of the Board of Review on questions of law or fact, and it becomes necessary therefore to assess the validity of the objections on a reconsideration of the evidence.

Within the ambit of what I regard as the valid grounds of appeal, the substantial argument advanced on behalf of the appellant depends for its success upon the proposition reflected in the first two grounds that contrary to what was decided by both the Commissioner and the Board of Review, the operation of the syndicate was not a partnership business but a single profit making undertaking or scheme within the second limb of sec. 26(a) of the Act, its object being the acquisition of a specific area of land for subdivision and resale at a profit, using for the purpose, in addition to the subscriptions of its members and borrowed funds, the profits gained from outside investments. The importance of this distinction lies in the fact that whereas in the case of a partnership business, by virtue of sec. 51, all losses and outgoings to the extent to which they are incurred in carrying on a business for the purpose of gaining or producing such income are allowable deductions to be set off against the gross income of the partnership business, in respect of sec. 26(a) scheme losses and outgoings are not deductible as incurred but are carried forward and at the end of the scheme set off against any profit which may have been gained. The appellant does not seek to assert that his share in the nett proceeds of the sale of the syndicate land is not liable to be assessed for taxation: what is said is that in assessing such nett proceeds there were deductions related to the cost of the acquisition of the interests of the outgoing members together with interest thereon and legal expenses incidental thereto which were wrongly disallowed.

Fundamental to the resolution of this issue is the determination of the nature of the business relationship between the parties, it being the appellant's submission that the Board of Review was in error in concluding that the members of the syndicate were carrying on business in partnership and that it should have found that the members were carrying on or carrying out an isolated profit making undertaking or scheme.

Section 6 of the Act defines a partnership as ``an association of persons carrying on business as partners or in receipt of income jointly but does not include a company''. The substance of this definition as Higgins and Fletcher point out in The Law of Partnership is:

``That the partnership relation is basically contractual so that its existence within the statutory definition depends in each particular case upon what the parties must have been taken to have intended as evidenced not only by the terms of their express agreement but by their conduct towards one another during the course of the business. Not one factor of itself is conclusive but all the facts and relevant circumstances of the relationship between the parties must be considered.''

This concept is reflected in the provisions of the Partnership Act of Western Australia, sec. 7 of which enacts:

``(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.

ATC 4654

(ii) In deciding whether the partnership does or does not exist in any particular case, the Court shall have regard to the true contract and intention of the partners as appearing from the whole facts of the case.''

Section 8 of the Partnership Act specifies a number of examples of business relations between persons which standing in isolation without any other characteristics of partnership do not raise a presumption of a partnership relationship. Such examples point up the essential characteristics of ``carrying on business income with a view of profit'' and of the element of actual or contemplated continuity.

Courts have generally inclined to construe the words ``carrying on a business in common with a view of profit'' in a way that reasonable men engaged in business would best understand them. In the submission of the appellant the evidence supports the conclusion that the business arrangement between the members of the syndicate was not that of a partnership at all but of a syndicate formed for a specific isolated purpose.

That the terms ``partnership'' and ``syndicate'' are not necessarily descriptive of entirely different concepts, is however well recognised. In
Collins v. Lock (1879) 5 V.L.R. 13, it was explained that there is no partnership if there is only one venture with no intention of embarking on a series of similar transactions. In
Williams v. Robinson (1891) 12 N.S.W.L.R. 34 Owen J. considered that the term ``syndicate'' had acquired a definite meaning - ``a combination of men working together for a common object''. He pointed out however that according to the circumstances there may be no distinction between a syndicate and a partnership, that the nature of the relationship depended upon what the arrangement between the parties really was.

In deciding whether the enterprise upon which the appellant and his colleagues embarked was a mere syndicate operating in an isolated venture - a venture such as would satisfy the second limb of sec. 26(a), or whether it was an ongoing enterprise designed to accommodate an indefinite number of operations, even though its main preoccupation was with the attempted subdivision of the Swan View land, regard must be had both to the spoken and the written word on the subject.

It is apparent that initially the agreement between the parties was reached in a comparatively casual manner. It was made at a time when, according to the evidence speculation in outer suburban land was common and no doubt the members of the syndicate, few of whom were of any great financial substance or had had much previous experience, were attracted by the prospect of making a quick profit.

According to the evidence of the appellant, which was supported by that of another member of the syndicate, one Pervan, when in 1964 the syndicate was formed the sole intention of its members was to acquire the area of thirty acres of land bounded on three sides by Myles, Blanchard and Morrison Roads, Swan View to subdivide and sell it at a profit and to divide the proceeds equally between the members. The purchase of the Scott land had been made at the suggestion of Pavlinovich, not as a separate transaction but in order to improve the original site as a subdivisional prospect. The investments in the Southern Sands Syndicate and in the purchase and resale of the other two lots were not made as a part of an operation of buying and selling land, but were dealings forced upon the syndicate by lack of resources. At no time was it the intention of the members of the syndicate to carry on a continuing business. Although meetings of the members were held whenever necessary, the day to day management of the affairs of the syndicate was left in the hands of Pavlinovich and the preparation of the deed intended to define the business relationship although commissioned by the members was actually prepared on instructions given by him. Insofar as the document purported to evidence the existence of a partnership it did not reflect the intention of the members.

I find this difficult to accept. The deed was drawn by the solicitors to the syndicate and it is reasonable to assume that it reflected faithfully the intentions of the members, all of whom were signatories. When regard is had to its terms it is apparent not only that it does not reflect the evidence of the appellant and his witness but actually contradicts it. In spite of the use of the term ``syndicate''

ATC 4655

throughout, the conclusion to be drawn both from the recitals and the operative provisions of the deed not only that the members regarded themselves as partners, but that they intended to operate as such. Their operations both prior and subsequent to the execution of the deed, in my opinion, leaves no doubt as to their relationship. That there were changes from time to time in the composition of the syndicate does not appear to me to weaken the conclusion that the appellant was at all times carrying on business ``in partnership'' with the other members of the syndicate. If further evidence is sought of the existence of a partnership it is to be found in the manner in which the members were described and treated in the annual accounts of the syndicate. It follows that the proceeds of the sale of its various interests of the syndicate represented the proceeds of a business carried on by the members and as such gross income assessable in terms of sec. 25. It is the fact - as the Board of Review noted - that the gross receipts were so treated in the amended accounts of the syndicate for the period between 1st July 1971 and 31st March 1972.

Such a finding obviates the necessity of considering the grounds of appeal insofar as they relate to a sec. 26(a) scheme situation. It raises the question, however, of whether, the proceeds of the sale of the thirty acres of land originally acquired and the interests of the partnership in the Scott land being assessable income, the cost of acquiring and holding the interests of the retired partners and the legal expenses and stamp duties involved in their acquisition are deductible by reason of sec. 51.

In terms of that section:

``(1) All losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing such income, shall be allowable deductions except to the extent to which they are losses or outgoings of capital or of a capital... nature....

(2) Expenditure incurred or deemed to have been incurred in the purchase of stock used by the taxpayer as trading stock shall be deemed not to be an outgoing of capital or of a capital nature.''

In the context of sec. 51 the appellant submits that if for the purpose of assessing the gross income of the syndicate the proceeds of the sale of the syndicate land can be regarded as the sale of trading stock, the interests of the retired partners in the land should be similarly regarded so that the amounts outlaid in acquiring such interests can be regarded as ``expenditure incurred in the purchase of stock used by the taxpayer as trading stock'' and hence deductible when assessing the net income.

That land may be trading stock for the purposes of the Act is now firmly established - see
F.C. of T. v. St. Hubert's Island Pty. Ltd. (in liquidation) 78 ATC 4104 (1978) 52 A.L.J.R. 367. In the subject case it is necessary to enquire into the nature of the interests of the retired partners in the partnership assets, for unless it can be demonstrated that what was sold and purchased was trading stock the respective sums paid were clearly not deductible.

According to sec. 32 of the Partnership Act:

``Where land has become partnership property, it shall unless the contrary intention appears to be treated as between the partners... as personal and not real estate.''

If regard is had to the deeds by virtue of which the various interests were acquired, it will be seen - as previously pointed out - that although what was sold is variously described, it was not the vendors' undivided interests in the land the property of the syndicate that was sold, but the vendors' respective interests in the partnership. In
Canny Gabriel Castle Jackson Advertising Pty. Ltd. & anor. v. Volume Sales (Finance) Pty. Ltd. (1974) 48 A.L.J.R. 217, McTiernan, Menzies and Mason JJ. in the course of a joint judgment, stated the nature of the interests in the following terms:

``The partner's share in the partnership is not a title to specific property but a right to his proportion of the surplus after realisation of assets and the payment of debts and liabilities.''

This statement is reflected in sec. 33 of the Partnership Act that:

ATC 4656

``The share of a partner in the partnership property at any time is the proportion of the then existing partnership assets to which he would be entitled if the whole were realised and converted into money and after all the then existing debts and liabilities of the firm had been discharged.''

On the criteria thus expressed, I am of the opinion that what the retiring partners sold was not an interest in land but an equitable interest in the partnership assets, so that what the continuing partners purchased was not trading stock, the cost of which was deductible under sec. 51(2).

On such a finding can it be said that the various sums outlayed in the purchase of the respective interests of the retired members of the partnership were outgoings incurred in gaining or producing assessable income so as to render these deductible pursuant to sec. 51(1)? I do not consider that they can be so regarded. In my opinion the various payments fall within the exceptions expressed in the section in the sense that they constitute outgoings of a capital nature and thus non-deductible. It appears to me to follow that the legal expenses and stamp duties related to the acquisition of such interests are likewise outside the scope of the section and also non-deductible.

In my opinion the appeal should be dismissed.

 

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