H.W. Coyle Limited v. Commissioner of Inland Revenue (New Zealand).
Judges:Holland J
Court:
High Court (New Zealand)
Holland J.
The Objector is a private limited liability company carrying on business as a plumbing and roofing contractor.
On 18 December 1970 it entered into a partnership deed with three other limited liability companies for the purpose of making combined tenders for the roof and wall cladding work in the erection of the New Plymouth power station, and if successful, to carry out the work as a joint venture. The deed provided that the partnership would commence on the date of the deed and would continue until the completion of the work. The capital of the partnership was to be provided equally and ``the net profits of the partnership business shall be divided between the parties equally and they shall in like ratio bear all liabilities and losses including loss of capital''. Clauses 16, 17 and 18 of the partnership deed provided:
``16. Proper books of account shall be maintained by an Accountant appointed by the Partners and an annual balance sheet and statement of accounts prepared audited and submitted to the Partners as soon as is reasonably practicable after the 31st day of March in each year and at the completion of the said contract Work. Such books of account are to be made available to the Partners and each of them and may be examined at all reasonable times. Reports on the Partnership business and its finances and the progress of the Work shall be prepared and submitted to the Partnership during each year at monthly intervals.
17. Except where provided at the request or with the prior agreement of the other Partners no Partner shall be entitled to be paid by the Partnership for any ordinary overhead expense or for the time or labour which may be expended in conjunction with work by such Partner or its officers or employees unless employed by the Partnership in carrying out work under this Agreement.
18. All profits discounts and commissions received by any Partner directly or through a subsidiary or associated Company in purchasing or carrying out of the said Work shall be accounted for to the Joint Venture provided however that this provision shall not apply to any Partner or associate of a Partner being a head or subcontractor on the New Plymouth Power Station project in respect of such other contracts.''
Clause 22 provided:
``22. Upon the completion of the Partnership business each Partner will render to the others a full account of all expenses incurred on account of the said Work and of all moneys received on behalf of the Partnership when all accounts between the Partners and any of them and the Partnership will be settled.''
Work commenced on the project in 1971 following the acceptance by the Ministry of Works of a tender made by the partnership of $1,235,809 on 7 December 1970. The terms and conditions of contract formed part of the tender. Those terms and conditions contained provisions for progress payments.
ATC 6014
The date for completion of the contract was set by the contract at 21 March 1974 but the formal Certificate of Completion given by the engineer under the contract was not obtained until 28 May 1975 and provided for a maintenance period ending on 22 November 1976.Apart from the evidence of a Professor of Accountancy and two eminent chartered accountants as to principles of accountancy, evidence was given before me by Mr. R.J. Shaw, the Contracts Manager of the partnership, Mr. L.J. McIlraith, a chartered accountant who had had the responsibility for preparation of the accounts of the Objector for more than 25 years and who was also responsible for the preparation of accounts of the partnership, and Mr. G.N.R. Player, a chartered accountant employed as an inspector by the Commissioner of Inland Revenue.
No returns were filed with the Commissioner of Inland Revenue on behalf of the partnership until 1975 and no reference was made to the partnership in the accounts or the returns of the Objector until that date. This occurred because the joint venture of the partnership was financed entirely from loans obtained from lending institutions by the partnership and from progress payments received. Although the partners were no doubt liable, they did not contribute any sums by way of capital or contribution to the expenses of the joint venture.
In 1975 the existence of the partnership came to the notice of the Commissioner and he communicated with Mr. McIlraith as chartered accountant for the partnership. Mr. McIlraith stated on behalf of the partnership that it had always, been understood that the Commissioner would, if the taxpayer so desired, allow profits on long term contracts to be financially determined on or approaching completion of the contract and the resulting profit or loss taken into account for taxation purposes in the year of completion or shortly prior thereto. The partnership had applied this principle and had accordingly filed no returns since the contract began.
It appears that the Commissioner had issued instructions that there had been a change in policy regarding the treatment for taxation purposes of profits on such contracts. The Commissioner requested that returns be filed on behalf of the partnership pursuant to sec. 10 of the Land and Income Tax Act 1954 and returns were duly filed. The statutory obligation in respect of a return on behalf of a partnership was contained in sec. 10 of the Land and Income Tax Act 1954 (now sec. 10 of the Income Tax Act 1976) and is as follows:
``10(1) When income is derived by 2 or more persons jointly, whether as partners, co-trustees, or otherwise, the following provisions shall apply:
- (a)...
- (b) In the case of partners -
- (i) They shall make a joint return of the income of the firm, setting forth the amount of that income, and the shares of the several partners therein:
- (ii) Each partner shall make a separate return of all income derived by him and not included in any such joint return:
- (iii) There shall be no joint assessment, but each partner shall be separately assessed and liable for the tax payable on his total income, including his share of the income of any firm in which he is a partner:
- (c) In any case other than that of co-trustees or partners, each person by whom income is so derived shall include in his return the amount of his share in the joint income, and shall be assessed and liable accordingly.''
Returns were duly filed on behalf of the partnership for the years ended 31 March 1972 to 1975 inclusive, declaring a nil return of income. Accounts were, however, submitted with the returns showing a deficiency on trading for the year ended 31 March 1972, of $6,451.97, an accumulative surplus on trading for 1973 of $133,185; for 1974 of $215,448, and for 1975 of $281,399.
The Objector and its expert witnesses place some significance on the fact that the accounts prepared for the partnership and sent with the returns were described as ``Statement of Position at 31 March 1972'' and ``Statement of Profit'' for the period, whereas the accounts of the objector drawn
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by the same chartered accountant, described the documents as ``Balance Sheet'' and ``Trading and Profit & Loss Account''. Mr. McIlraith, the chartered accountant who prepared both sets of accounts, said that the partnership accounts were prepared for the benefit of the parties to the joint venture and not for outside parties. Although he did not specifically say so, I formed the impression that he regarded the accounts as merely being statements giving information as to the current financial position, rather than formal accounts.Professor Johnston, who was called as an expert witness, described the partnership accounts as being ``really only memoranda statements called for the special purpose by principals of the consortium''. He compared them with the formal accounts of the objector which complied with the provisions of the Companies Act.
I do not consider that too much significance should be given to the description of the accounts because sec. 152 of the Companies Act 1955 places a statutory obligation on a company to provide a ``Profit & Loss Account'' and a ``Balance Sheet''. It was recognised that in cases where the Companies Act 1955 did not apply it had become fashionable in some quarters to describe what used to be regarded as a Balance Sheet as a Statement of Position and what used to be regarded as a Profit & Loss Account as a Statement of Profit, even though it may end with a deficiency.
In the year ended 1974 the partnership distributed from its apparent ``surplus on trading'' $100,000 to the four partners. A further $80,000 was distributed in the year ended 31 March 1975, and an additional $100,000 for the year ended 31 March 1976. These distributions were treated in the partnership accounts as being assets and were shown as ``Partners' Current Accounts''. The objector received one quarter of this sum i.e., $70,000 which it had shown in its accounts as a current liability owing to the partnership. There was no change in the position for the year ended 31 March 1977.
Notwithstanding the Completion Certificate the final payment was not made to the partnership by the Ministry of Works until March 1979 and the total payments made were, after adjustment, $1,343,352. The accounts for the partnership showed that a net profit on the total contract had been made amounting to $321,423. The objector recognised this profit and brought its one quarter share, i.e., $80,350.75, into its financial accounts for the year ended 31 March 1979 as profit.
The Objector had prepared its accounts on the basis that the profits of completed contracts only were taken into account: that is, no profits on work in progress were included in the annual profit figure until the contracts were completed. The accounts have been prepared for a single joint venture. The expenses incurred during the year have not been debited to profit or against income. I suggested in the course of argument that this case might be of little help as a general precedent because only a single venture was involved in the accounts. Presumably in the case of a large contractor carrying out several contracts at a time separate accounts could be kept for each contract and expenses excluded when no payment was brought to income for the year, but one wonders whether there is a right to deduct expenses incurred other than in the income year. The objector submits that in the circumstances of this contract the completed contracts method was a proper way of assessing the ``profit or gain derived by it from the business'' within the meaning of sec. 88(1)(a) of the Land and Income Tax Act 1954 (now sec. 65(2)(a) of the Income Tax Act 1975).
The Commissioner has, however, reassessed the Objector, calculating its assessable income as including its share of the income of the partnership, calculated at the end of each year on a ``percentage of completion'' basis, essentially in accordance with the Annual Statement of Profit prepared on behalf of the partnership.
The reassessment made by the Commissioner affects the objector's liability to income tax for the years ended 31 March 1972 to 1977 inclusive, and has allowed for the year ended 31 March 1972 one quarter of the loss for that year, namely $1,612.99. In the following year he has included the surplus on trading shown in the accounts after making adjustments for outstanding retentions and the loss for that preceding year. Particulars of the reassessment are set out in para. 7 of the case stated as follows:
In essence, the issue before me is whether for taxation purposes the profit of the Objector arising from the partnership was correctly returned as having arisen at or near the completion of the contract, or whether provision should have been made in the returns of the taxpayer for profit spread during the period of the contract.
In accountancy terms the issue is whether the accounting should be on the ``percentage of completion'' method or on the ``completed contract'' method.
There can be no doubt that the task before the Court is to ascertain whether there is a profit in each year in respect of which the objector is liable to pay income tax under the New Zealand income tax legislation. What may well be sound accounting practice may, in some circumstances, not result in a correct return for income tax purposes. As was said by Lord Haldane in
Sun Insurance Office v. Clark [1912] A.C. 443 at p. 455 -
``It is plain that the question of what is or is not profit or gain must primarily be one of fact, and of fact to be ascertained by the tests applied in ordinary business. Questions of law can only arise when (as was not the case here) some express statutory direction applies and excludes ordinary commercial practice, or where, by reason of its being impracticable to ascertain the facts sufficiently, some presumption has to be invoked to fill the gap.''
However, in
B.S.C. Footwear v. Ridgway [1972] A.C. 544 at p. 552, Lord Reid said -
``The application of the principles of commercial accounting is, however, subject to one well-established though non-statutory principle. Neither profit nor loss may be anticipated. A trader may have made such a good contract in year one that it is virtually certain to produce a large profit in year two. But he cannot be required to pay tax on that profit until it actually accrues.''
These dicta have recently been adopted by the House of Lords in
Willingale v. International Commercial Bank Ltd. [1978] A.C. 834.
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The relevant statutory provisions are contained in sec. 88(1)(a) of the Land and Income Tax Act 1954, which provides:
``88. Without in any way limiting the meaning of the term, the assessable income of any person shall for the purposes of this Act be deemed to include, save so far as express provision is made in this Act to the contrary, -
- (a) All profits or gains derived from any business (including any increase in the value of stock in hand at the time of the transfer or sale of the business, or on the reconstruction of a company):
- ...''
Or perhaps equally appropriate are the provisions of (g):
``(g) Income derived from any other source whatsoever.''
The only relevant statutory provisions relating to deductions are sec. 110 to 112 which provide as follows:
``110. Except as expressly provided in this Act, no deduction shall be made in respect of any expenditure or loss of any kind for the purpose of calculating the assessable income of any taxpayer.
111. (1) In calculating the assessable income of any person deriving assessable income from one source only, any expenditure or loss exclusively incurred in the production of the assessable income for any income year may, except as otherwise provided in this Act, be deducted from the total income derived for that year.
(2) In calculating the assessable income of any person deriving assessable income from two or more sources, any expenditure or loss exclusively incurred in the production of assessable income for any income year may, except as otherwise provided in this Act, be deducted from the total income derived by the taxpayer for that year from all such sources as aforesaid.
112. Notwithstanding anything to the contrary in section 111 of this Act, in calculating the assessable income derived by any person from any source, no deduction shall, except as expressly provided in this Act, be made in respect of any of the following sums or matters:
- (a) Investment, expenditure, loss, or withdrawal of capital; money used or intended to be used as capital; money used in the improvement of premises occupied; interest which might have been made on any such capital or money if laid out at interest:
- (b) Bad debts, except debts which are proved to the satisfaction of the Commissioner to have been actually written off as bad debts by the taxpayer in the income year:
- Provided that all amounts at any time received on account of any such bad debts shall be credited as income in the year in which they are received, and shall be subject to tax accordingly:
- (c) Any expenditure or loss recoverable under any insurance or right of indemnity:
- (d) Payments of any kind made by a husband to his wife or by a wife to her husband:
- (e) Rent of any dwellinghouse or domestic offices, save that, so far as any such dwellinghouse or offices are used in the production of the assessable income, the Commissioner may allow a deduction of such proportion of the rent as he may think just and reasonable:
- (f) Income tax...:
- (g) Interest, except so far as the Commissioner is satisfied that it is payable on capital employed in the production of the assessable income.''
The short question before the Court is when did the Objector ``derive'' its ``profit'' from the business partnership, or receive ``income'' from this contract?
Before one turns to consider the arguments for and against the alternative methods of accountancy, it is essential to consider the terms of the contract. It was conceded to me by Counsel for the Commissioner, that if the contract merely provided for one lump sum payment at the completion of the contract, then there can be no argument that no profit
ATC 6019
was derived until the time for payment became due. That, however, is not the question that arises here because this contract provides, as is usual in long term contracts, for progress payments. Clause 3 provides that progress payments on account would be made monthly on the certificate in writing of the engineer, and provided that the final balance of the moneys payable under the contract less 5% would be paid after the engineer should have certified, under his hand, that the works had been finally and satisfactorily completed. The 5% was retained until the expiration of the period of maintenance contemplated under the contract.The accounts of the partnership do not as such show the actual progress payments received, but it would seem that those progress payments totalled, in the respective financial years, the following sums -
31/3/72 $56,430.72
31/3/73 $570,574.00 less $56,430.72
31/3/74 $997,285.00 less $570,574.00
31/3/75 $1,097,408.00 less $997,285.00
31/3/76 $1,125,893.00 less $1,097,408.00
31/3/77 $1,127,165.00 less $1,125,893.00
The question before me is whether those progress payments which seem to me clearly to have been earned during the years in question, are profits ``or income'' after making the appropriate deductions for expenses provided under sec. 110 to 112 of the Act. When the question is posed in that form without any regard to the evidence of accountancy principles and without any regard to reported cases other than those previously referred to, there seems to me to be only one answer.
Although it may be that there are alternative methods of accounting, each of which is based on proper accounting principles and results in profit being declared in different years, but where the total profit of a long term contract will be the same; nevertheless that cannot be the situation in determining what is the ``assessable income'' for the purposes of the Land and Income Tax Act, 1954.
I adopt, with respect, what was said by Barwick C.J. in
Henderson v. F.C. of T. 70 ATC 4016 at p. 4018 -
``This argument, strongly pressed before us, is, in my opinion, clearly untenable. The Act by sec. 17 levies income tax upon the amount of taxable income derived by the taxpayer in the year of tax. The taxable income results from the application of the provisions of the Act to what is in fact the assessable income of the taxpayer: that, in the case of a taxpayer resident in Australia, is the whole of the income which is not expressly exempted by the Act, which the taxpayer has derived during the year of tax from any source whether within or beyond Australia. That assessable income when ascertained must be expressed in a figure. There cannot in fact be alternative figures for such assessable income. The figure determined as that income may be the result of estimation, as well as of calculation, and its determination may involve the acceptance of opinions, expert or otherwise. In the long run it may be the outcome of an exercise of judgment. But however arrived at, the result is a figure, the assessable income in fact of the particular taxpayer for the year of tax.''
The contractor, be he an individual, a partnership or a limited liability company, is no doubt concerned to know how he is progressing by way of profit or loss in respect of a long term contract. The Land and Income Tax Act, however, is concerned with assessing liability for tax on income derived during the fiscal year and as defined in the legislation. The results may well be different.
There is at present some difference of opinion in the accountancy profession as to whether in the case of long term contracts, the percentage of completion method is the appropriate method or whether the completed contract method is appropriate. I am satisfied from the evidence that the choice of method will vary according to the contract and that in many cases where there can be no accurate forecast as to whether an ultimate profit or loss will be incurred on the completed contract, it may be desirable to prepare accounts according to the completed contract method at least until the stage has been reached where the future end result of the contract can be reasonably accurately forecast. Where there is no reason to doubt that the contract is going according to plan and budget, there are considerable
ATC 6020
advantages in the adoption of the percentage of completion method as a means of accurately recording the financial position of the contractor at the end of each year.I am satisfied that a large number of substantial contracting companies are adopting the percentage of completion method in presenting their accounts in relation to long term contracts, but in the end I find that I fortunately do not have to resolve any differences of opinion between the eminent chartered accountants and Professor of Accountancy who gave evidence before me on principles of accounting. My task is to apply the statutory provisions of the Land and Income Tax Act 1954, now the Income Tax Act 1976, to the Objector concerned and the particular contract.
I was told from the Bar that this was regarded by the Commissioner as a test case, and that there were a number of cases stated awaiting hearing involving the assessment of income for tax purposes in respect of long term contracts. In my view, each case must depend on the terms of the contract and the provisions for payment in order to ascertain whether a profit has been derived at any particular stage.
It was submitted to me on behalf of the Objector that the payments received were, in fact, advances and had not yet fully come home to the taxpayer. As such they must not be appropriated to income and should be credited to a suspense account as in fact was done by the partnership of which the Objector was a member.
Counsel referred me in particular to a passage of Lord Salmon in Willingale v. International Commercial Bank (supra) at p. 841 -
``It is well settled by the authorities cited by my noble and learned friends that a profit may not be taxed until it is realised. This does not mean until it has been received in cash but it does mean until it has been ascertained and earned. It follows in my view that corporation tax cannot be levied in respect of the bank's transactions until the fiscal year in which the bank sells the bill or if the bank holds it until maturity, until the fiscal year in which it matures. The tax is leviable even if the bank does not receive the cash in that fiscal year. If the bank's customer defaults, an adjustment would be made for the bad debt in the following year.''
In that case the House of Lords was considering the business of a clearing bank which purchased bills with a view to disposing of them at maturity or prior to maturity at a profit. The House of Lords held that the amount of profit could not be ascertained until the bills were sold or reached maturity.
That, with respect, seems to me to be a different case. In the case before me, a contractor pursuant to a contract expected to take several years to complete, has spent moneys on that contract, and has become entitled to payment in respect of part of the moneys due under the contract in the particular fiscal year in question.
It is clear that in the passage referred to, Lord Salmon was not referring to contracts of this kind and I do not consider that what he said there in relation to discounted bills, should be applied to contracts of this nature.
The Objector placed strong reliance on the dicta of the High Court of Australia in
Arthur Murray (N.S.W.) Pty. Ltd. v. F.C. of T. (1965) 114 C.L.R. at p. 314. This was a case where the taxpayer received fees for dancing lessons to be given over future periods. A payment could be made in advance for 5, 15 or 30 hours of private tutition within a year, or, alternatively, for 1,200 hours to be taken at any time during the student's lifetime. The fee for this lifetime course was £3,000. If paid in cash the student was given no contractual right to a refund in the event of his not completing the course although in practice refunds were sometimes given. When these fees were received they were credited into an account styled ``Non-earned deposit - untaught lessons account'' and from that account amounts corresponding with lessons taught, were transferred to the credit of an account styled ``Earned tutition account'' and then, and only then, appropriated to income. The Court, after considering the earlier decision of that Court in C. of
T. (S.A.) v. Executors & Agency Co. of S.A. (1938) 63 C.L.R. 108, more commonly known as Carden's case, said -
``As Dixon, J. observed in Carden's case: `Speaking generally, in the assessment of income the object is to discover what
ATC 6021
gains have during the period of account come home to the taxpayer in a realized or immediately realizable form'. The word `gains' is not here used in the sense of the net profits of the business, for the topic under discussion is assessable income, that is to say gross income. But neither is it synonymous with `receipts'. It refers to amounts which have not only been received but have `come home' to the taxpayer; and that must surely involve, if the word `income' is to convey the notion it expresses in the practical affairs of business life, not only that the amounts received are unaffected by legal restrictions, as by reason of a trust or charge in favour of the payer - not only that they have been received beneficially - but that the situation has been reached in which they may properly be counted as gains completely made, so that there is neither legal nor business unsoundness in regarding them without qualification as income derived.''
Although in that case the High Court of Australia held that the taxpayer was correct in appropriating the payments to income in the years in which the tutition was given, the passage does not, in my view, assist the argument of the Objector that in this case the progress payments, which are only paid in respect of work actually done and certified for, should be appropriated to capital and not included in income until the completion of the contract.
In the case at present before the Court the payments made to the partnership have been earned and the taxpayer was entitled to sue for their recovery. For the purposes of income tax they do not have any indicia of capital payments and must accordingly be treated as income. When the deductions for the income year permitted by sec. 111 of the Act (supra), are made the surplus must be a profit or gain derived from a business and are accordingly covered by sec. 88(a). It is because of the temporal provisions of sec. 111 that there must be a substantial risk to a taxpayer who chooses the completed contract method that he will not be able to deduct for tax purposes the bulk of the expenses incurred on the contract.
A complication that arose in respect of this contract was that early in the piece problems arose in relation to the paintwork applied to some of the cladding. This appeared as early as April 1972. The partnership was contractually obliged to attain satisfactory adhesion in respect of the painting and had not done so. In accordance with the contract the Ministry of Works threated to claim liquidated damages at the rate of $1,000 per week and an estimate was made from time to time that the cost of repairing the defective painting would involve a very substantial figure and might amount to almost as much as the total profit on the job. There was no doubt that this was a real problem for the partnership and for some years the partnership was genuinely concerned that it might be involved in considerable expense in remedying the alleged defects. It was argued, on behalf of the Objector, that that concern even continued after the Certificate of Completion was given on 23 May 1975 but as that Certificate of Completion did not specify that any work was to be done in that regard, there must be considerable doubt as to whether the fear was justified after 28 May 1975.
It was submitted on behalf of the Objector that if the ``percentage of completion'' method of accounting were adopted, a prudent contractor would set against any profit for the period, a reasonable provision for the cost of repairing defects. I have no doubt that once there arose a real risk of such a claim a prudent contractor would make some provision in respect of the claim in his accounts for the financial year in question. The issue before the Court, however, is whether the provisions of the Land and Income Tax Act 1954 would allow such a provision as a deductible item. It has already been held that the payments received under this contract were in the nature of income. Section 110 of the Act provides that no deduction shall be made unless expressly provided in the Act. Such a deduction could only be made under sec. 111 and then in respect of expenditure or loss exclusively incurred in the income year. A threatened claim for damages for breach of contract such as is referred to above, could not be expenditure or loss incurred until it was actually paid or the contractor was found liable to make such payment. In fact, in hindsight, no claim was made against the partnership in this regard.
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It is my view that no provision in this regard could be made in assessing the profit of the partnership for income tax purposes unless the cost of repair had been agreed to be paid, or been paid, or been ordered to be paid under the contract in the year in question. That did not arise and it accordingly follows that the Objector must include in its assessable income in each year its proportion of payments earned under the contract less its proportion of the expenses incurred during that year.
There is insufficient information in the case stated to assess the exact amounts. The Statement of Profit prepared for the partnership includes items under the heading of Estimated Escalation Claims; Stock on Hand and Materials on site; Proportion of Establishment Fee; and Interest received.
Just as in the case of the provision for claims for bad workmanship or breach of contract, it is not necessary for stock on hand and materials on site to be included in profit. The contract provides the circumstances in which progress payments are to be made. If they are due then the profit in respect of the work has been ``derived''. If work has been done on the contract for which no payment is due, then I do not consider that the Commissioner can include such items in a taxpayer's assessable income against his will.
The apportioning of the establishment fee over several years of the contract probably comes within the principle laid down in Arthur Murray (N.S.W.) Pty. Ltd. v. F.C. of T. (supra). I have not heard argument but consider that the Commissioner was correct in assessing the taxpayer in this regard in accordance with the accounts submitted.
Interest received is clearly to be appropriated to profit and forms part of the assessable income.
The moneys which the Ministry of Works were entitled to retain (5% of progress payments), have not been derived or earned and should not be included in the assessable income of the taxpayer until they are payable.
The answer to the question posed in the case stated is that the Commissioner must calculate the assessable income of the partnership as being the total progress payments earned during the financial year including payments for extras and final payments, plus interest earned and a proportion of the establishment fee less all items of expenditure actually incurred by the partnership in the year and allowed by sec. 111 of the Land and Income Tax Act 1954 together with any other authorised items of deduction such as depreciation. The Objector will, of course, be assessed with its proportion of the end result, be it profit or loss.
The end result is that the Commissioner has substantially succeeded on all matters in issue. Nothing was said about costs. I was told that this was a test case.
I reserve leave for the Commissioner to apply for costs and this may be done by memorandum.
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