AVCO Financial Services Ltd. v. Federal Commissioner of Taxation.
Judges:Kearney J
Court:
Supreme Court of New South Wales
Kearney J.: These proceedings comprise appeals pursuant to the Income Tax Assessment Act 1936, as amended (``the Act''), from disallowances of the taxpayer's objections to assessments of income tax for the taxpayer's income years ending 30 November 1972, 1973, 1974, 1975, 1976 and 1977. The six appeals have been heard together and the evidence in each has been treated as evidence in the others. The facts are undisputed.
Due to fluctuations in the foreign exchange rate of the Australian dollar the taxpayer made, during the relevant periods, foreign exchange gains and losses as follows:
1972 Gain realised $175,084
1973 Gain realised $1,579,020
1974 Gain realised $298,501
1975 Gain realised $400,705 } Net gain
Loss realised $157,677 } $243,038
1976 Gain realised $96,708 } Net loss
Loss realised $223,120 } $126,412
1977 Loss realised $2,799,903
These gains and losses were realised upon repayment of foreign currency borrowings by the taxpayer.
By his assessments the Commissioner included in the assessable income of the taxpayer the gains in the years 1972 to 1976 inclusive, and disallowed any deduction for the losses in the years 1975, 1976 and 1977. By its objections the taxpayer claimed that the gains were not taxable income and the losses were deductible from its taxable income.
On the appeal the taxpayer has contended that both gains and losses were on revenue account, the gains being assessable income under sec. 25(1) of the Act, and the losses being deductible under sec. 51(1). For his part the Commissioner now submits that both gains and losses are of a capital nature, and thus not assessable in the case of gains or deductible in the case of losses.
It is common ground that the only provisions of the Act which are relevant are sec. 25 and 51 which are in the following terms respectively:
``25(1) The assessable income of a taxpayer shall include -
- (a) where the taxpayer is a resident -
- the gross income derived directly or indirectly from all sources whether in or out of Australia; and
- (b)...
which is not exempt income.''
ATC 4562
``51(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, private or domestic nature, or are incurred in relation to the gaining or production of exempt income.''
The taxpayer was incorporated on 6 November 1964 in the A.C.T. It is a financier. It is a wholly owned subsidiary of AVCO Financial Services Inc., one of the largest consumer finance companies in the United States. The taxpayer has been and is engaged only in the provision of consumer credit in the form of personal loans, hire purchase retail instalment and similar transactions. It has never engaged in any other area of finance such as property finance or commercial leasing. The taxpayer lends moneys in small amounts to large numbers of customers from a large number of outlets. It has not lent to any subsidiary, or indeed to any company. Since its inception the taxpayer's business has steadily increased. Thus in 1972 it made loans to approximately 84,000 customers, the average account size being $518, the business being carried on from sixty-two branch offices and the volume of funds lent being $39,000,000, and the number of consumer loans made being 66,440. In the year 1977 it made loans to approximately 142,000 customers, the average size of the account being approximately $1100, the number of branch offices was 129, the volume of funds lent was $116,627,000, and the number of consumer loans made being 126,356.
The taxpayer's funds, whether in the form of capital investment by its parent or in the form of borrowings from unrelated lenders, have been and are invested exclusively in consumer credit receivables, i.e. personal loans, hire purchase transactions and consumer mortgages, save for an investment in furniture and equipment representing only some one per cent of total assets, and for the expenditure in 1974 of $369,000 for purchase of shares in Atlantic General Insurance Co. Ltd., an insurance company incorporated and carrying on business in Bermuda.
The capital structure of the taxpayer during the relevant periods appears from the following tables:
1972 1973 1974
$A $A $A
Preference (redeemable) 3,500,000 5,900,000 5,900,000
Common 1,150,000 1,150,000 4,237,000
Retained earnings 2,841,049 7,862,066 6,287,848
Share Premium Reserve - - 15,935,000
Capital Redemption Reserve - - -
---------- ----------- -----------
Total Stockholders' Equity 7,491,049 14,912,066 32,359,848
----------- ------------ -----------
In 1975 the preference shares were redeemed and ordinary shares converted to stock.
1975 1976 1977
$A $A $A
Capital stock 4,330,000 4,330,000 4,330,000
Preference (redeemable) - - -
Common - - -
Retained earnings 9,420,824 13,426,135 22,059,450
Share Premium Reserve 16,400,000 16,400,000 16,400,000
Capital Redemption Reserve 5,342,000 5,342,000 5,342,000
---------- ---------- ----------
Total Shareholders' Equity 35,492,824 39,498,135 48,131,450
---------- ---------- ----------
ATC 4563
In its early years the taxpayer raised most of its funds by loans from United States sources. The taxpayer is now better known amongst institutional lenders in Australia and partly because of this and partly because the taxpayer has adopted a policy of matching Australian dollar liabilities against Australian dollar assets in order to minimise the effects of foreign exchange fluctuations, the taxpayer has been deliberately converting its United States dollar borrowings into Australian dollar borrowings from Australian institutional lenders. Otherwise the taxpayer's borrowing activity and course of business has remained substantially unchanged throughout its history.
The following table indicates this movement in terms of indebtedness year by year of Australian dollar indebtedness as against United States dollar indebtedness.
30/11/72 30/11/73 30/11/74 30/11/75 30/11/76 30/11/77
(In thousands of Australian dollars)
Australian Dollar
Debt $10,472 $41,199 $45,066 $60,130 $ 72,350 $111,231
U.S. Dollar Debt $22,916 $16,577 $17,833 $34,524 $ 38,797 $ 16,852
------- ------- ------- ------- -------- --------
Total Debt $33,388 $57,776 $62,899 $83,654 $111,147 $128,083
------- ------- ------- ------- -------- --------
The increases in United States dollar indebtedness shown in the table in the years 1975 and 1976 resulted from the fact that it was not possible to finance the taxpayer's planned increase in lending activities solely with Australian dollar borrowings. It therefore became necessary to borrow additional U.S. dollar funds which were at the time obtainable at lower rates of interest than the comparable rates offered for the lending of similar funds in the Australian money markets.
However, the taxpayer's policy was pursued strongly after November 1976, following the devaluation at that time of the Australian dollar. An added inducement was that in January 1977, the Reserve Bank of Australia introduced the ``variable deposit requirement''. This meant that overseas borrowings were not allowed unless they carried a term of two years or more and in addition 25% of the funds borrowed had to be placed on deposit with the Reserve Bank. This had the effect of increasing by ⅓ the cost of overseas money.
This movement is further indicated in the following table of loans outstanding in U.S. dollar and Australian dollar currencies respectively.
1972 1973 1974 1975 1976 1977
Number of $US
loans outstanding 20 15 12 21 19 8
Number of $A loans
outstanding 7 25 31 47 62 106
---- ---- ---- ---- ---- ----
27 40 43 68 81 114
---- ---- ---- ---- ---- ----
The rise in 1975 of U.S. dollar loans as shown in this table resulted from the fact previously mentioned that during 1975 funds in the Australian money market were in very short supply thus necessitating an increase in U.S. loans to finance the consumer receivables increase.
The taxpayer's U.S. dollar debt as at 30 November 1978 was reduced to $US4 million.
The taxpayer was funded in its formative years not only by the investment of share capital by its parent but also by commercial paper loans from its parent which were capitalised by share issues made in or about 1967. The parent company has not since advanced any loan funds to the taxpayer. Thereafter and during the years now in question the taxpayer has raised funds by means of commercial paper loans and term loans. The commercial paper borrowing is in
ATC 4564
the U.S. money market in the form of promissory notes for a short-term approximating either 90 or 180 days. The promissory notes are then held in portfolio by the U.S. lenders or alternatively can be discounted in the money market. Generally, the face value of the note is paid to the Company which in turn agrees to pay interest during the term of the note. Sometimes, there are no written agreements setting out the terms of the Commercial Paper transaction other than the promissory note itself.The term loans have been effected by agreements which in some cases established the required facility with rights to draw down on short notice and in other cases created fully drawn advances. The majority of these loans have been longer term loans, some by way of the establishment of a facility with rights to draw down on short notice and others being fully drawn advances. Term loans have been for periods ranging from 1 year to 5 years, the average duration being 2 ½ years.
With respect to the commercial paper loans, the loans after being drawn down have been in most instances subsequently ``rolled over'' either with or without additional draw down being finally repaid by an advance from another lender or by cash payment by the taxpayer, or by a combination of both. Again, in most instances the rolling over has occurred several times, frequently on five or six occasions. Such roll over has occurred usually at three-monthly, and sometimes at six-monthly intervals, the period being dictated of course by the dates upon which successive promissory notes fell due for payment.
The evidence discloses that the taxpayer has effected many hundreds of transactions involving these features, while term loans have been few in number. In some instances commercial paper loans have been drawn down and subsequently repaid by cash or an advance by another lender or by a combination of both, without having been rolled over. On one occasion, a commercial paper loan after having been drawn down and rolled over, was finally consolidated into a term loan which has not yet been repaid.
In the cases involving a roll over the obligation under a particular agreement which is due to mature is extended on like terms without necessitating formal repayment and redrawing of funds. The taxpayer in such case draws a cheque in favour of the lender for the amount of accrued interest at date of maturity, and receives the original promissory note duly cancelled in exchange for a new promissory note for the amount then outstanding, whether it be the original loan debt or that amount together with an additional advance from the original lender.
The taxpayer has not treated any foreign exchange discrepancy at the point of time of roll over as constituting a realisation of any exchange gain or loss. Such realisation has occurred on final discharge of the debt owing to the lender, whether by a cash payment by the taxpayer or by a repayment through an advance by another lender, or by a combination of both.
Not only has the taxpayer, as already mentioned, applied the proceeds of its borrowing transactions in its ordinary business, but the term loan agreements in particular have usually contained a condition or undertaking that the proceeds be used in this manner.
The taxpayer has endeavoured, in relation to its borrowings, to raise funds in sufficient quantities to enable it to carry on its growing business of lending small amounts to consumers and also to enable it to meet maturing repayments of its borrowings. Thus, in the majority of instances of overseas borrowings the moneys raised have not been transmitted to the taxpayer in Australia, but have remained in its bank in the United States for perhaps one or two days to be applied then in meeting there a maturing loan obligation. This procedure has also been followed on the rolling over of such loans.
The taxpayer took particular action to gear its borrowing programme so as to accommodate both the requirement of funds for lending, on by it to its consumer customers, and the requirement for funds to be available to meet accruing obligations for repayment of earlier loans both in Australia and overseas.
This action to match its requirements with the making of borrowing arrangements was taken by the taxpayer in order to maximise
ATC 4565
profits without incurring any unnecessary liability for interest on maturing borrowings.This action included the creation of a Committee of executives which was called the ``Treasury Department''. The function of the Treasury Department was to arrange for the raising of funds in sufficient volume, and at the appropriate times, to meet the two abovementioned requirements, and also to determine policy questions, such as whether borrowing should be on short-term or long-term, and how the borrowing programme generally should be structured. This department performed its functions by keeping track of maturing debts and interest obligations occurring on a variety of dates. This was a complex task as there was usually at any given time a substantial amount of commercial paper issued by the taxpayer in the money market. Additionally, the growth of the taxpayer's lending business in Australia required the regular making of forward estimates of anticipated needs for borrowed funds to service such lending activities. The result was that these needs of the taxpayer involved constant projections and monitoring on at least a weekly basis.
During the years in question the amounts borrowed in commercial paper loans, apart from several involving $2 million or more ranged from approximately $100,000 to $1 million. The amounts of the term loans were usually of the order of $2 million or $3 million but some were for larger amounts.
As at 30 November 1976, the total short-term loan indebtedness of the taxpayer (repayable in less than 12 months from balance date) was $55,946,000 and its total long-term loan indebtedness was $A55,201,000. As at 30 November 1977, its total short-term loan indebtedness was $A36,058,000 and its long-term loan indebtedness was $92,025,000.
It might here be mentioned that none of the funds raised by overseas borrowings were applied in any form of investment.
The taxpayer owns all the shares in an insurance company, Hallmark Life Insurance Co. Ltd., which in turn owns all the shares in Hallmark General Insurance Co. Ltd. Although the taxpayer has made short-term borrowings from these insurance companies, none of the general funds of the taxpayer has been invested in or advanced to either of these insurance companies. The taxpayer acquired its shares in Hallmark Life Insurance Co. Ltd. from the taxpayer's parent company, the purchase price being paid by the issue of shares in the taxpayer at a premium to the parent company in 1974. These insurance companies operate independently of the taxpayer which merely acts as agent for them in writing insurance business and in return receives a commission.
In light of the decisions of the High Court in
International Nickel Australia Ltd. v. F.C. of T. (77 ATC 4383; (1977) 137 C.L.R. 347) and
Commercial and General Acceptance Ltd. v. F.C. of T. (77 ATC 4375; (1977) 137 C.L.R. 373) the only issue between parties in this case is whether or not the subject gains and losses are to be regarded as being on revenue account or on capital account.
The basic submission for the taxpayer is that it was engaged in the business of making small loans to a large number of persons and of borrowing in Australian and foreign currencies to raise moneys to enable it to earn profits. Thus, it is submitted that the Court should conclude that the aspect of the taxpayer's business involving the borrowing and repayment of moneys in the manner disclosed by the evidence is part of the taxpayer's ordinary business operations, so that gains and losses resulting from it are assessable under sec. 25 or deductible under sec. 51. This submission is propounded in three alternative forms: (1) the taxpayer's business is the lending and borrowing of money; (2) the obtaining and repayment of loans is integrated with its lending business and thus is done as part of the taxpayer's trading activities; (3) the purpose and use to which the borrowed moneys were put characterise the transactions as being on revenue account.
The primary submission for the Commissioner is that an exchange gain or loss on the repayment of a loan must necessarily be a capital gain or loss. Alternatively, it is submitted that the only circumstances in which a borrowing may result in an assessable exchange gain or deductible exchange loss is where its purpose is related to such a matter of expenditure of a revenue nature as stock in trade or services. Thirdly, it is submitted that the true view of the evidence is that the borrowings by the
ATC 4566
taxpayer were referable to providing a profit yielding subject no different in nature from shareholders' funds.The Commissioner's primary submission may be isolated and considered first. It relies upon the view indicated by Gibbs J. in the CAGA case that:
``an exchange gain or loss on the repayment of moneys lent will always be a capital gain or loss, and can never be taken into account in the assessment of income''
(at p. 4377; 377). While, as his Honour points out, this would seem to have been the view of Latham C.J. in
Texas Co. (A'sia) Ltd. v. F.C. of T. (1940) 63 C.L.R. 382 at 428), a less absolute opinion appears to have been expressed by Menzies J. in
Caltex Ltd. v. F.C. of T. (1961) 106 C.L.R. 205 at p. 251) as follows:
``Borrowing money to carry on business or to pay liabilities included in carrying on business is prima facie to increase the capital employed in the business, and there is not sufficient here to give the taxpayer's borrowing any different character.''
(my emphasis)
Likewise, Jenkins L.J. (with whom Cohen and Singleton L.JJ. concurred) stated in
Davies v. The Shell Co. of China Ltd. ((1951) 32 T.C. 133 at p. 157) that:
``As loans, it seems to me they must be prima facie loans on capital not revenue account: which perhaps is only another way of saying they can be prima facie considered as part of the Company's fixed and not circulating capital.''
The dissenting judgment of Cartwright J. in
Tip Top Tailors v. M.N.R. (11 D.L.R. 289 at p. 300) is to the same effect that:
``In the case of a taxpayer carrying on a commercial undertaking such as that of appellant, when the business is not that of dealing in foreign exchange or borrowing and lending money, a gain or loss related to dealings between borrower and lender is prima facie one of capital and not of income.''
It is an open question whether Mason J. in the CAGA case was implicitly applying the prima facie test, or merely stating his conclusion on the facts, in saying (at p. 4380; 383):
``The exchange gain was in reality a saving or reduction in the amount of Australian currency equivalent which the taxpayer required to repay its indebtedness. In essence it was a windfall advantage stemming from a reduction in a liability to repay a borrowing of capital. I can see no persuasive reason for saying that the gain was a receipt of income.''
In any event, however, it seems to me that the approach adopted by Mason J. in his judgment in the CAGA case tends to the contrary of the view suggested by Gibbs J. Barwick C.J. and Jacobs J. agreed with the conclusions and reasons of Mason J., as did Gibbs J. subject to the abovementioned view. I derive support for this conclusion from the judgment of Meares J. in
Thiess Toyota Pty. Ltd. v. F.C. of T. (78 ATC 4463; (1978) 1 N.S.W.L.R. 723) who apparently regarded the decision in the CAGA case as leaving it open for consideration on the facts whether an exchange gain or loss on repayment of moneys lent would be a matter of income or capital. Accordingly, I do not accept the Commissioner's primary submission.
The other submissions involve consideration of the facts by reference to the principles expounded by Dixon J. in
Sun Newspapers Ltd. v. F.C. of T. ((1938) 61 C.L.R. 337 at 359-363), with the added benefit of the review thereof by the Privy Council in
B.P. Australia Ltd. v. F.C. of T. ((1965) 112 C.L.R. 386; 1966 A.C. 224).
As to the basic criterion governing the question whether a gain or loss bears an income character or a capital character Dixon J. said (61 C.L.R. at p. 359):
``The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure, or organization set up or established for the earning of profit and the process by which such an organization operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss.''
and (at p. 360):
``As general conceptions it may not be difficult to distinguish between the profit-
ATC 4567
yielding subject and the process of operating it...For the one concerns the instrument for earning profits and the other the continuous process of its use or employment for that purpose. But the practical application of such general notions is another matter.''
As to the indicia or tests to be considered in resolving the question, Lord Pearce said in the B.P. case (at p. 394; 261):
``A valuable guide to the traveller in these regions is to be found in the well-known judgment of Dixon J. in Sun Newspapers Ltd. v. F.C. of T. ((1938) 61 C.L.R. 337) where he discussed the nature of certain sums spent in buying up the competition of a rival and concluded that they were capital. `There are, I think', he said (at p. 363), `three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment,' and he also said `the expenditure is to be considered of a revenue nature if its purpose brings it within the very wide class of things which in the aggregate form the constant demand which must be answered out of the returns of a trade or its circulating capital and that actual recurrence of the specific thing need not take place or be expected as likely' (at p. 362).
To this one may add the general observation of Viscount Radcliffe in
Commr. of Taxes v. Nchanga Consolidated Copper Mines ((1964) A.C. 948 at p. 959): `Nevertheless, it has to be remembered that all these phrases, as, for instance, `enduring benefit' or `capital structure' are essentially descriptive rather than definitive,...'.''
His Lordship added (at p. 397; 264):
``The solution to the problem is not to be found by any rigid test or description. It has to be derived from many aspects of the whole set of circumstances some of which may point in one direction, some in the other. One consideration may point so clearly that it dominates other and vaguer indications in the contrary direction. It is a commonsense appreciation of all the guiding features which must provide the ultimate answer. Although the categories of capital and income expenditure are distinct and easily ascertainable in obvious cases that lie far from the boundary, the line of distinction is often hard to draw in border line cases; and conflicting considerations may produce a situation where the answer turns on questions of emphasis and degree. That answer: `depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed, or exhausted in the process' (per Dixon J. in
Hallstroms Pty. Ltd. v. F.C. of T. ((1946) 72 C.L.R. 634 at 648)).''
The task involved is to ascertain the essential nature of the taxpayer's business and the relationship of the subject gains and losses to it. This in turn involves looking to the transactions out of which the gains or losses arose, or by reference to which they occurred. It is contended for the Commissioner that for an apparent capital gain or loss to be treated as being on revenue account it is essential to find an underlying transaction of an income character involving a liability for trading stock or services to which the gains or losses can be linked. Whilst the cases referred to in the International Nickel case and the CAGA case have this element, I do not think the limitation of this proposition can validly stand with the reasoning of the judgments in the B.P. case and the CAGA case itself, where the character of the transactions out of which the gains arose was the matter upon which the decision turned. In the present case the gains and losses realised upon repayment of loans arose out of the borrowing transactions of the taxpayer. It is the nature of these borrowing transactions, which
ATC 4568
includes reference to their purpose which determines the issue between the parties.The ultimate object of the taxpayer's enterprise was to make profits out of the making of the consumer loans. It is clear that in order to provide funds to this end it made borrowings, inter alia, in foreign currency.
In applying the first of the guiding features mentioned by Dixon J. to such borrowings, it is plain that the occasion for them being made was the growth of the taxpayer's consumer lending business, coupled with the need to meet maturing obligations to repay moneys already employed in such business. The steady increase in the taxpayer's lending operations created a constant and increasing demand for funds. This resulted in the course which was adopted of undertaking a multiplicity of borrowings. Such borrowings were continual and recurrent. They were made principally on a short-term basis so that the borrowing activities involved regular and frequent transactions. Their function was to provide successively a temporary source of funds. Indeed, after the taxpayer's consumer lending business became established, the making of borrowings became a necessary incident of its operations to enable the revenue business of the taxpayer to continue. It is fair to say that such borrowings were an ordinary incident of the regular conduct of the taxpayer's business and was at all material times one of the current necessities of the taxpayer's business.
As to the second guiding feature mentioned by Dixon J., it is clear that the purpose of undertaking such borrowings was to provide the taxpayer with necessary funds to lend in the ordinary course of its business as a finance company. In this respect the distinction from the circumstances of the CAGA case is plain. The activity of borrowing, rolling over and repaying loans formed part of the money earning process adopted by the taxpayer in carrying on its undertaking. It is proper to infer that the cost involved in the borrowings was reflected in the terms of the taxpayer's consumer loans. Again the frequency and regularity with which the borrowed funds were to be used and replaced required borrowings to be maintained on a regular and systematic basis. The borrowings thus merged in and became part of the ordinary trading activities of the taxpayer.
As to the third feature, the method of funding was by means of loans, most of which were of a very short-term character, the others being for relatively short periods. They could not be regarded as having a ``once for all'' quality.
I would add that it does not seem to me that the method of funding its lending operations adopted by the taxpayer was directed to or resulted in strengthening the structure or framework within which the taxpayer intended to carry on business, rather, the systematic borrowings described in the evidence formed an essential step in the regular performance in the day to day activities involved in carrying on the taxpayer's business. This system provided the wider context underlying the making of the exchange gains and losses, which in my view answers the argument for the Commissioner that no independent revenue character existed distinct from the original obligation of a capital nature to repay the loans.
I consider that the significant factors affecting the borrowings point to them being an integral part of the ordinary operation of the taxpayer's business so as to represent a matter of revenue rather than capital. Hence, I accept the basic submission for the taxpayer.
Therefore I hold that the subject exchange gains and losses, being, on revenue account, are assessable as taxable income in the case of gains and deductible in the case of losses. Hence the disallowance by the Commissioner of the taxpayer's objections to the assessments for the years 1972, 1973 and 1974 are upheld, and the appeals relating to those years are dismissed. With respect to the years 1975 and 1976 the Commissioner's disallowance of objections to the inclusion of exchange gains as part of the taxpayer's assessable income is upheld, but the appeals succeed in relation to the disallowance of objections against the Commissioner's refusal to allow the exchange losses in these years as deductions.
With respect to the year 1977 the appeal is upheld.
ATC 4569
I order that the assessments for the years 1975, 1976 and 1977 be remitted to the Commissioner for amendment.
The appellant having succeeded on the issue before the Court, I order that the Commissioner pay the costs of the taxpayer of the appeals.
I order that the exhibits may be returned at the expiration of twenty-eight days or otherwise be dealt with in accordance with the Rules of Court.
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