Deputy Federal Commissioner of Taxation v. Crowl.

Judges:
Lee J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 12 November 1986.

---

Lee J.

This is a motion by the defendant to stay proceedings brought by the Commissioner to recover moneys alleged to be owing by the defendant for income tax under the Income Tax Assessment Act.

On 13 June 1985 the Commissioner filed in this Court a statement of claim claiming an amount of $755,582.99 being tax assessed by him on the appellant's alleged net income for the years 1971-1979, 1982 and 1985. That amount included late payment tax under sec. 207 and additional tax under sec. 226. The amount of primary tax involved it is agreed is $277,769.90. The defendant after receiving the statement of claim filed a defence and the Commissioner then filed a notice of motion seeking an order that it be struck out and that judgment be entered for the Commissioner. The defendant then filed a motion to stay the proceedings. The defendant has since filed amended grounds of defence, and I will refer to portion of that in a moment.

Counsel for the Commissioner informed the Court that the Commissioner will, for the present, seek only judgment for the amount of the primary tax as the question of the liability of the defendant to pay a considerable part of the penalty tax and additional tax awaits a

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ATC 4003

ruling by the High Court in another case. The amended notice of motion seeking only judgment for the primary tax has been filed.

The substantial basis upon which the defendant seeks the stay is to be found in para. (b) and (c) of the amended grounds of defence, namely (b) the defendant did not derive the taxable income as assessed to him during the said years; but that income was in fact and in law derived and returned during the relevant years of O & C Holdings Pty. Limited as trustee for the J.A. and D.M. Crowl Family Discretionary Trust, Thorcrow Family Discretionary Trust Number 2 and Thorcrow Family Discretionary Trust Number 3; (c) the Commissioner has issued assessments to the beneficiaries of the said trust for the years ended 30 June 1971, 1972, 1973, 1974, 1975, 1976, 1977, and 1978 in respect of that same income as assessed to the defendant.

In short, the defendant claims that it is not open to the Commissioner to issue two assessments to two different persons in respect of the same sum claimed to be income, and that the conclusiveness attributed to an assessment by sec. 177 of the Act cannot be applied by the Commissioner in such cases.

The evidence shows that the defendant was between 1971 and 1978 assessed each year for tax and that he paid that tax. On 17 March 1981 the defendant received amended assessments for the years 1971 to 1978 and an original assessment for the year 1979. An adjustment sheet attached to the assessments explained the basis of each assessment, viz. for the years 1971 to 1977 "Include additional income returned by O & C Holdings Pty. Limited as trustee for J.A. and D.M. Crowl Family Discretionary Trust trading as W.J. Osmond Crowl and Company adjusted as net". Then was set out the gross income of the trust. Certain deductions were allowed and a net income arrived at. In the years 1975 to 1977 the adjustment sheet reads "Include additional income returned by O & C Holdings Pty. Limited as trustee for J.A. and D.M. Crowl Family Discretionary Trust trading as W.J. Osmond Crowl and Company adjusted as under", and adds "Include additional income returned by Thorcrow Pty. Limited as trustee for Thorcrow Discretionary Family Trust Number 2 as under".

In the years 1978 to 1979 the inclusion of the additional income returned by O & C Holdings Pty. Limited as trustee for J.A. and D.M. Crowl Family Discretionary Trust is repeated, but in addition there appears "Include additional income returned by Thorcrow Pty. Limited as trustee for Thorcrow Family Discretionary Trust Number 2" and "Include additional income returned by Thorcrow Pty Limited as trustee for Thorcrow Family Discretionary Trust Number 3". The adjustment sheet then showed an amount being included each year as taxable income.

Notice of objection to each of these assessments was given by the defendant on 12 May 1981. The objections were disallowed on 24 November 1981. The defendant then requested the plaintiff to refer his decision on the objections for the whole of the period to the Board of Review but that was not done by the Commissioner until 7 April this year.

Whilst these matters were taking place, the Commissioner had on 14 August 1981 issued notices of assessment to the various beneficiaries of the trust assessing each on their respective shares of the net incomes as returned by the trust. The evidence is that Mr Crowl did not lodge any return on behalf of the trusts until 1979, believing as he did that under the law as it stood the distributions were not taxable. Objections to those assessments were lodged on 12 August 1981 and disallowed on 30 June 1982.

On 13 September 1982 the various beneficiaries requested the Commissioner to refer his decision on the objections for the years of income to a Board of Review but again that was not done until this year.

The evidence in the case establishes the following: That in 1978 a company, Thorcrow Pty. Limited, which I will refer to as Thorcrow, was established and Mr Crowl at that time and for some time had been carrying on in partnership with a Mr Osmond in the practice of accountancy. Mr Osmond died in 1969. In 1970 there was created the J.A. and D.M. Crowl Family Discretionary Trust, the beneficiaries in which were the defendant, his wife and children and grandchildren and such others as the trustee might appoint.

O & C Holdings Pty. Limited purchased the accountancy practice known as W.J. Osmond Crowl and Company in 1970. O & C Holdings Pty. Limited in the same year accepted

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ATC 4004

appointment as trustee for the trust and the defendant was a director of that company.

Mr Crowl became auditor of the company Thorcrow in 1972 and auditor of O & C Holdings in 1973. In 1977 the Thorcrow Family Discretionary Trust Number 2 was created, the Thorcrow Company being appointed the trustee.

The principal activity of that trust was that of supervision and life assurance consultants. The beneficiaries in 1977/78 were Delia Mary Crowl, Tracey Louise Crowl, Rodney James Crowl, Andrew John Crowl and Julia Patricia Crowl, children of the defendant. For the year of income 1979 the beneficiary was the Gregadoo Trust Number 81. The income tax returns show that the net income for the trust established for the Number 2 trust was distributed to the beneficiaries for the years 1977, 1978 and 1979 respectively as follows: $4,170, no distribution and $8,213.

About the same time the Thorcrow Trust Number 3 was created and the principal business activity conducted by that was that of management consultants, taxation advisers and to advise generally on tax and probate planning. The beneficiaries were the same as in the Number 2. For the 1979 year the beneficiaries of the Number 3 trust were the Gregadoo Trust's members, in 1980 and 1981. The net income trust for the Gregadoo Trust was distributed to the beneficiaries for the years of income 1978 and 1979 respectively as follows: No distribution and $45,231.

To continue with the narrative, there had been incorporated in 1968 a company Western Loans Pty. Limited. The principal activity of that company was apparently money lending. The shareholders of the company were Mr Osmond and Mr Crowl, Mr Crowl also acting as accountant and auditor. Mr Crowl was not otherwise associated with the company and was not an employee.

On 30 September Mr Crowl ceased to be a director and shareholder of Western Loans Pty. Limited and disposed of his shares to his wife. His wife disposed of her shareholding on 29 September 1980 to a stranger, Mr David Cannon. The Western Loans Trust Number 1 was created in August 1978 with Western Loans Pty. Limited acting as trustee. The principal activity for this trust was money lending and lease broking. The beneficiary of the Western Loans Trust Number 1 was the Gregadoo Trust Number 81 in the year of income June 1979.

The Gregadoo Trust Number 81 received the distribution of income from the trust established of the Western Loans Trust Number 1 for the year ended 30 June 1979. The beneficiaries of the Gregadoo Trust Number 81 were Delia Crowl, Tracey Crowl, Rodney Crowl, Julia Crowl, Andrew Crowl, Lillian C. Baker, David R. Cannon and any other beneficiaries whom the trustees might from time to time appoint.

Thorcrow carried on the business of retailing shoes at Bayliss Street, Wagga, under the name of Paramount Shoes. It ceased operating in 1975 or early 1976. The effect of what the Commissioner did in issuing the amended assessments to the defendant may be seen from the document which was not exhibited but which was handed up to the Court and which conveniently extracts from the returns and other documents before the Court the material which it sets out.

(Abovementioned Schedule attached)

As I have said, the substantial claim made by the defendant is that the assessment of the defendant and the assessment of the trusts are mutually contradictory and that they cannot have attributed to them the conclusiveness to which sec. 177 refers. (
F.C. Bloemen Pty. Ltd. v. F.C. of T. 81 ATC 4280; (1980-1981) 147 C.L.R. 360 especially at p. 375.)

Counsel for the defendant contends that the issue of mutually contradictory assessments is itself a demonstration of lack of bona fides on the part of the Commissioner and that that in itself is a ground justifying a court intervening and staying the present proceedings.

In my opinion, the fact that the Commissioner has assessed the defendant on income which according to the trusts is attributable to the beneficiaries thereof in no way stands in the path of the Commissioner receiving the full benefit of sec. 177 of the Act in proceedings taken by him to recover the amount assessed.

In
Richardson v. F.C. of T. (1931-1932) 48 C.L.R. p. 192, Evatt J. said:

"(1) The first point is based upon the general principle that the Act does not intend the same income to be assessed and taxed more than once, and that Collins's

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ATC 4005

amended assessment is incontrovertible evidence of an intention to reach both him and Richardson in respect of Richardson's profits from the hotel. But we are not concerned with Collins's rights, if any, against the Commissioner, and it would be curious if, despite Richardson's `fraud upon the revenue' (as Starke J. calls it), he could establish the invalidity of the assessment upon him by production of the assessment arrived at in error through his own misrepresentation.

The general principle invoked need not be questioned. But it cannot be stated, without qualification, that the administration of the Act must be such that tax can never be leviable against two separate individuals in respect of the same income."

And then his Honour went on to deal with a case of fraud of a taxpayer defrauding the Revenue. The present case is one in which the amended assessments sought to be enforced against the defendant rely in part upon sec. 260 of the Act and that is a section which the authorities plainly show is one which can result in a person paying tax upon what is received by another but deemed by the operation of the section to be taxable income in the hands of the former.

Of course whether sec. 260 does in the present case operate to render the defendant liable in respect of the distribution of the trust income is a matter that I am not called upon to decide. The Administrative Appeals Tribunal will need to decide that. Suffice it to say, at this point, that the very nature of the trust arrangement, if I may call it such, set up by the defendant in 1970 and thereafter would inevitably direct the attention of the Commissioner to the operation of sec. 260.

It is true that the defendant will contest that operation before the Tribunal and it is fair to say that the defendant has more than frivolous contentions to put forward. He has asserted here that he believed that what he did was in accordance with the law at the time, and that he has done no more than to manage his and his family's affairs to attract the least amount of tax. His children, I should mention, between 1971 and 1979 were, except for the eldest, all infants. Section 260 and its operation has been a matter of serious difficulty for the courts and the recent decision in
F.C. of T. v. Gulland 85 ATC 4765; (1985) 62 A.L.R. 545 has not, with the due respect to the learned justices of the High Court, made it any easier to determine when sec. 260 applies and when it does not. But for the purpose of dealing with the submission made by counsel for the defendant that the two lots of assessments must be regarded as mutually contradictory it is sufficient to say that I am satisfied on the facts which have been put before me in this matter, that the Commissioner was entitled to take at least a prima facie view that sec. 260 had an operation, and I am wholly unwilling to conclude that the assessments can in any way be regarded as not bona fide.

I will refer later to some features in the evidence of the defendant which are relevant to the approach to be made by the Court to the question of a stay in circumstances where sec. 260 has a part to play.

I would add that counsel for the Commissioner has stated that the Commissioner will support the assessments at the proper time, not merely upon a basis of tax avoidance but in some respects upon the basis of tax evasion. It follows from what I have said that the amended assessments issued to the defendant are assessments which are presumed to be conclusive under sec. 177 and that this Court accordingly cannot go behind them.

It is appropriate now to refer to the approach to be made when an application or stay is made in circumstances such as here. In this regard, sec. 201 of the Act plays a significant part, that section being one which provides (subsec. (1)):

"The fact that an appeal or reference is pending shall not in the meantime interfere with or affect the assessment, the subject of the appeal or reference; an income tax may be recovered on the assessment as if no appeal or reference were pending."

In
D.F.C. of T. v. Mackey 82 ATC 4571, the Court of Appeal of the Supreme Court dealt with the discretion available to the Court to grant a stay of proceedings in circumstances such as here. Moffitt P. at p. 4574 said:

"It would be too narrow a view to grant a stay of proceedings or execution merely because an appeal is pending or merely because on examination of the pending appeal there appears to be an arguable case, or perhaps there are complex questions

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ATC 4006

involved which the Board of Review or Federal Court can best determine. The policy of sec. 201 is that when an assessment has been made, the Deputy Commissioner has a right to have the tax paid, despite the pendency of an appeal. While hardship to the taxpayer and the merits of the appeal are relevant matters, other considerations are involved, including the Commissioner's right to have the tax assessed paid. The exercise of discretion may involve, and in my opinion in the present case it requires, some examination of the nature and basis of the liability on which the disputed tax has been assessed and the nature of the dispute.

Sufficient has already been said to make it quite clear that the liability, the subject of the appeal, relates to a contrived scheme to avoid the payment of tax. But for this scheme, the taxpayer would have had to pay tax on his net earnings from his medical practice. Having regard to the policy of the Act indicated by sec. 201, the payment of tax should not be deferred pending resolution of appeals. I do not think that, except in quite exceptional circumstances, the Court in exercise of its overriding discretion should intervene to stay proceedings or execution to prevent sec. 201 operating where a taxpayer has been a party to a contrivance to avoid his liability otherwise for tax. The question which so arises upon an application for a stay is quite different to that to be decided upon the determination of the question whether the contrivance has been successful, on the basis that what has been done is no more than an ordering of the taxpayer's affairs in a way which has not attracted a liability for tax (see
Cridland v. F.C. of T. 77 ATC 4538; (1977) 140 C.L.R. 330).

Thus, if a taxpayer embarks on a scheme such as that involved in the present case, I do not think that the court should aid him by setting sec. 201 at naught while the Board or a Court considers whether he has been successful in avoiding the tax by the scheme. A case such as the present is different from that where in the ordinary course of his business a situation has arisen which gives rise to a dispute concerning the liability of the taxpayer for tax."

I will refer in a moment to the judgments of the other two members of the Court. But the following passages from the transcript of the cross-examination of the defendant are significant in the present case. Mr Crowl was asked questions as to why he did not lodge returns again on behalf of the trust for the years 1971 to 1978.

"Q. And what was the reason that up to that time you did not deem it necessary to lodge these tax returns? A. Because when I went through the records each year, bearing in mind that children in those days were on the same limit as adults, when I went through and took an approximate P and L account out on that accounting business I used to put a charge through to myself which virtually eliminated the profit for that year and it really wasn't until about the 1977 year that the profits got a little bit higher than I could handle at that point and that is when distributions were made under the development (?) clause in the trust but to the various other beneficiaries.

Q. So your practice up to then - A. I used to work a figure out myself, approximately. I mean, it's like the plumber with the leaking taps, the last tax return to be done is mine. What happened was I used to work out approximately the amount of income derived such year, put through a management fee to myself and then on the figures I have taken out, distributing a balance amongst the family, it didn't appear that there was any taxable income there for a few years.

Q. May I take it from that, that the management fee which was charged was a matter entirely at your discretion? A. It was a fee that was put through. It was a reasonable fee for the time and effort I had put into it, and I just used to work it out as to what at that point of time would have been what I considered - and I used not to discuss it very much with my wife - but I used to work out what I considered to be a fair fee for that year. It was based really on the drawings I had taken out each week and at the end of the year that would be approximately the management fee."

At p. 20 Mr Bathurst questioned the defendant about the Thorcrow Trust Number 2 and Number 3.

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ATC 4007

"Q. One hundred per cent of the profits of the Thorcrow trust number 2 for the year ended 30 June 1979 were distributed to the Gregadoo trust number 81? A. That would be correct.

Q. And 100% of the profits for the Thorcrow trust number 3 for the year ended 30 June 1978 were distributed to Western Loans Trust number 6? A. That would be correct.

Q. And yet you tell me that you don't know whether the beneficiaries of these trusts were members of your family? A. It's probably gone to a trust with beneficiaries related to my family. I don't know. If I knew I would tell you.

Q. Mr Crowl, you would agree with me, would you not, that the reason for the use of this plethora of trusts was in fact purely to minimise the amount of tax which either you or the various members of your family may otherwise be liable to pay? A. That could have been one of the reasons.

Q. That's the only reason, isn't it? A. Well, I mean, anything we did we did with a QC's opinion, so I could see nothing wrong with that at that point of time."

At p. 24 he was asked about his rights under sec. 189 of the Income Tax Assessment Act to require the Commissioner to forward a request on to the Board of Review.

"Q. So you were aware of it at all times whilst these assessments were outstanding? - A. I did send a request to the Commissioner for determination on Thorcrow, O & C Holdings and Western Loans and the request I got was the request that was back in 1981 and he sent me back a letter to say he couldn't find the income tax returns and yet they were lodged with the Department in Wagga.

Q. In relation to your tax returns, they never made any request? - A.I have made requests under s. 189 on behalf of Thorcrow trust, O & C Holdings to try and clarify the overall position. As you can see from the statements it is certainly not clear to me who is liable for the tax."

Then I asked a couple of questions:

"Q. Those earlier years 1971-1979, you put in your returns each year - A. Each year.

Q. And you paid them? - A. I did pay them."

Mr Bathurst then continued:

"Q. You said a minute ago it is not clear to you who is liable for the tax, if any? - A. That is correct.

Q. How then would you expect it to be clear to the Commissioner? - A. That is a question I have asked. If he does not know, who does? He is party to the series of double assessments. Let him give the reason for that. That is the question I am asking the Commissioner."

In F.C. of T. v. Gulland 85 ATC 4765; (1985) 62 A.L.R. 545 Sir Harry Gibbs C.J. in dealing with the application of sec. 260 referred to the test whether the arrangement on its face must necessarily be labelled as a means to avoid tax. Of course, that is not the only test, as he has pointed out. But all the judgments of the judges in the majority do make that clear that the stamp of tax avoidance on an arrangement is always an important matter in the determination of whether sec. 260 applies. Without in any way suggesting that Gulland's case leads to a conclusion that sec. 260 will apply here, one can at least approach the question upon the footing that the plain inference from the evidence and from the nature of the arrangement looked at over the years - or arrangements - is that tax avoidance was a significant factor for the defendant and his family.

The evidence, it is true, does not make completely clear the true relationship between the defendant and the trusts and the distributions, but that does not help the defendant here. The remarks of Moffitt P. in my view are particularly pertinent to the circumstances of this case, but I would make further reference to Mackey's case merely to point out the approach which the other members of the Court made to this question of a stay of proceedings.

Hutley J.A. said at p. 4575:

"But there are only two cases where it is clear the Court should exercise that discretion. First, the comparatively rare case where the Commissioner abuses his position, for example by assessing and endeavouring to collect tax in defiance of a decision of the High Court or other superior

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ATC 4008

Court precisely in point. Second, in cases of extreme personal hardship to a taxpayer called upon to pay. The obligation to pay which has been cast upon him by law is not a hardship of itself and the mitigation of the effect of inflation and the burden of interest is a matter for the legislature, not for the Court."

Glass J.A. on the same page expressed himself this way:

"I consider that the effect of the legislative direction in sec. 201 when modified by the Court's recognised power to stay proceedings in the exercise of its discretion have a combined effect of a different kind. If the metaphor is to be retained, the needle stands in the Commissioner's favour close to 100 and it requires a weighty case to be presented by the taxpayer in order to depress it below the halfway mark."

Counsel for the defendant has put a number of propositions to the Court in support of the application for a stay. He has referred to the uncertain and invidious position in which the taxpayer finds himself when he receives, what might be described as, a bulk of amended assessments covering many years increasing his taxable income enormously, as in the present case, and the hardship that he suffers in not having received the moneys which the Commissioner claims to have been income in his hands.

It is submitted that the taxpayer should in view of his plain intention, bona fide, to contest the matter before the Administrative Appeals Tribunal, not have judgment entered against him until it has been held that he is liable. But consistently with the approach made in Mackey's case that proposition cannot be made a sound basis upon which to refuse to grant a stay, particularly when tax avoidance is a significant feature in the case.

Great stress has been laid upon the fact that the Commissioner delayed from January 1982 in the case of the defendant's assessment until 7 April 1986 in referring the matter to the Board of Review, and from September 1982 in referring the request of the beneficiaries to the Tribunal. No explanation for the delay has been given by the Commissioner. There is simply no reason why the Commissioner, on receipt of the requests to refer his decisions on the objection to the Board of Review should not have immediately forwarded it on.

As I say no explanation for that very lengthy delay has been given and nothing that is said here is intended in any way to suggest that that was a proper course for the Commissioner to take. However, the facts in the case do not, in my opinion, show any basis upon which the defendant can really complain in regard to that delay.

The evidence shows that in June 1981 the Commissioner on receipt of the notice of objection to the assessment made in regard to the defendant's tax informed the defendant that if he paid one half of the primary tax within 14 days he would not be prejudiced between the period from the notice of objection to the Commissioner's determination of the objection.

In the result, the defendant has paid none of the tax assessed up to the present time, nor have the beneficiaries. There is no evidence before me that the defendant has ever made any approach to the Commissioner with a view to making an arrangement for the payment of the tax on either side and accordingly it seems to me that although the Commissioner certainly was dilatory in forwarding the request on, it has had no prejudicial effect so far as the defendant is concerned. The prejudice is even less in view of the fact that the Commissioner at this point in time is only seeking a judgment for the amount of primary tax.

I leave entirely open whether in any other proceedings involving the additional tax, the penalty tax, the defendant will be able to persuade a court that there has in fact been prejudice because of the Commissioner's action. There is no evidence before the Court as to whether or not the defendant is in a position to pay the tax or whether or not he is in a position of "control" so as to be able to decide when the tax levied on the beneficiaries will be paid.

This is not a case in which the Commissioner having all the facts before him or having facts which ought reasonably to have led him to a full understanding has issued assessments on one basis and then later sought to use sec. 260 to support amended assessments. No assessments were put in until 1979 and then only as a result of an investigation into the defendant's financial affairs.

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ATC 4009

The final matter which was urged before me as a reason for granting a stay is that any judgment entered against the defendant is a final judgment which cannot be set aside. It is submitted that if the defendant succeeds before the Administrative Appeals Tribunal the judgment will stand. It could not of course be enforced if it has been paid. There is a short answer to this and that is that it is the policy to the Act as Moffitt P. pointed out in Mackey's case, that the Commissioner should not be kept out of the tax pending an appeal and that policy inevitably requires that the Commissioner should be entitled to judgment notwithstanding the appeal. It is unnecessary, in my view, finally to determine whether such a judgment could be set aside by this Court by agreement of the parties or otherwise after the time for appealing had expired, when it had been held by the Administrative Appeals Tribunal or a court that the assessment should be set aside. But even if the judgment cannot be set aside, I cannot see that that can be used as a reason for denying the Commissioner the right to proceed to judgment, which the Act plainly gives him.

For those reasons, I am of the opinion that the motion to stay the proceedings fails, and it is therefore dismissed.

That brings me to the amended notice of motion by the Commissioner that judgment be entered for the plaintiff.

The motion succeeds to the extent of $277,769.90. It will follow, therefore, that para. 1 and 2 of the amended grounds of defence are struck out to the extent that they refer to a debt involving the sum of $277,769.90 for the primary tax, payable by the defendant.

There shall be judgment for the plaintiff in the sum of $277,769.90 being for the primary tax involved in the plaintiff's claim and that judgment may be entered.

The order I make is that the defendant is to pay the plaintiff's costs of the motion to stay and the plaintiff's motion to enter judgment. Each party shall bear his own costs in respect of the appearance before the Master. (Counsel for the defendant indicated that he would apply for a stay of execution of the judgment.)

The parties may have the exhibits if they wish. I am indebted to counsel for their assistance in the matter.

SCHEDULE

                         "INCONSISTENT ASSESSMENT ASPECT"
                  1971   1972   1973   1974   1975   1976   1977   1978   1979
                   $      $      $      $      $      $      $      $      $
O & C Holdings Pty. Limited
as Trustee for J.A. & D.M.
Crowl Family Discretionary
Trust
1. (THE TRUST)
- Gross income   57574  70234  62944  74736  95653  126381 115673 128749 137772
Less expenses    55486  62065  48580  55456  70358   85777  97283 107717 133619
                 -----  -----  -----  -----  -----  ------ ------ ------ ------
2. Net income
(exhibits 4 & 9)  2088   8169  14364  19280  25295   40604  18390  21032   4153
                 -----  -----  -----  -----  -----  ------ ------  ----- ------

Trust net income distributed and assessed to
3. Delia M. Crowl  417   1634   2872   3856   5059    8120   3678   4206   4150
4. Tracey Crowl    417   1634   2872   3856   5059    8121   3678   4206    -
5. Rodney Crowl    417   1634   2872   3856   5059    8121   3678   4206    -
6. Julia Crowl     417   1634   2872   3856   5059    8121   3678   4207    -
7. Andrew Crowl    417   1634   2872   3856   5059    8121   3678   4207    -
------------------------------------------------------------------------------
TOTAL             2085   8170  14360  19280  25295   40604  18390  21032  4150
------------------------------------------------------------------------------
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ATC 4010

                             SCHEDULE(continued)

                   1971   1972   1973  1974   1975   1976   1977   1978   1979
                     $      $      $     $      $      $      $      $      $
8. James A. Crowl
Taxable income as
assessed/returned (being
management fee received
from Trust)        5305   5616   6170   5685   5897  10681  11476  11580   3886
9. Amendment to include
gross income of the Trust and
to disclose expenses claimed
by the Trust (No. 1 & 2 refer)
(exhibits 4 & 9)   2088   8169  14364  19280  25295 *41604  18390  21032   4153
10. Other adjust-
    ments         13729  -(119)-(1122)   697   7842   3207   6208 252628  30115
(including assessments for
Thorcrow Family
Discretionary Trusts
No. 2 & 3 and Western Loans
Trust No. 1)
------------------------------------------------------------------------------
11. Amended taxable
income             21122 13666  19412  25662  39034  55492  36074  285240 38154
------------------------------------------------------------------------------
* Error of $1000 on adjustment sheet - Trust expenses should be $85777
                                                            not $84777.