FANMAC LIMITED v FC of T
Judges:Beaumont J
Court:
Federal Court
Beaumont J
Pursuant to s. 187(b) of the Income Tax Assessment Act 1936 (``the Act'') Fanmac Limited (formerly First Australian National Mortgage Acceptance Corporation Limited) (``the taxpayer'') has referred to the Court a decision of the Commissioner of Taxation to disallow the taxpayer's objection to an assessment to income tax in respect of the
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year of income ended 30 June 1988. The matter in contention arises out of a claim by the taxpayer that certain of its expenditure should have been allowed as a deduction under s. 51(1) of the Act.There is no dispute about the primary facts, but there is some measure of disagreement with respect to the secondary facts, that is, the inferences which should properly be drawn from the primary facts. In order to put the respective contentions of the parties in context, it will first be necessary to refer to some matters of background.
It is convenient to describe first the nature of the taxpayer's activities.
The taxpayer's activities
The taxpayer was ``established'' in September 1985. The State of New South Wales holds approximately 25% of its issued shares, with several large financial institutions (the AMP Society, MLC, the NSW Government Insurance Office and the St. George Building Society) each holding 10% of the shares. Other financial institutions each hold a further 5% of the issued capital.
The taxpayer was established for the purpose of engaging in a secondary mortgage market in New South Wales. The business of the taxpayer, which consists of establishing, marketing, managing and administering trusts which issue fixed rate securities, both debt and equity, and use the funds raised to ``securitise'' residential and commercial property mortgages, was described in the taxpayer's 1987 annual report as follows:
``FANMAC operates in the secondary mortgage market purchasing residential and commercial mortgages from financial institutions and pooling them for sale as medium to long term securities to investors. This provides mortgage originators with an opportunity to re-structure their balance sheet or dispose of financial assets and the investor an opportunity to acquire a high quality liquid security which provides attractive returns.
The company developed a programme of securitisation of residential mortgage loans to low to middle income borrowers for the State of New South Wales known as the `Premier Low Start Loan' programme.''
The activities of the taxpayer may be described as follows: The taxpayer procures the establishment of a trust, the trustee of which is generally a public trustee and the manager of which is the taxpayer. The trust raises funds by the sale to professional investors of either (a) equity interests in the trust (in the form of units in the trust) or (b) debt instruments issued by the trustee in its capacity as trustee of the trust. Units in, or debts of the trusts, are placed with an underwriter who charges an underwriting fee for obtaining subscribers to the units or debt instruments. In both cases, the instruments bear a fixed rate of return and have a fixed maturity. The instruments have many of the characteristics of fixed rate debt and, in the case of both units and debt instruments, are called bonds. The proceeds of the fund raising are applied towards making loans, in respect of which mortgages are created, or towards purchasing mortgages over real property. Each trust purchases all of the mortgages it will own within a relatively short period of time (usually two to three months). The trusts do not perpetuate themselves by using principal collections to purchase additional mortgages. Each trust is distinct and of a limited duration. When the proceeds of the fund raising are exhausted, no more loans are made or mortgages purchased. A new trust is created for further lending or purchases. The interest income from such mortgages is utilised to discharge operating expenses and to pay the bond holders the rate of return specified in the trust deed. As the mortgage principal is repaid, those moneys are applied towards partial redemptions of the bonds issued by the relevant trust. The taxpayer manages each trust until all of the mortgages are discharged. At that time, the trust will have redeemed all the bonds which it has issued. Any moneys then remaining are distributed either to the taxpayer or to the ``HPAF'' Trust, a trust a beneficiary of which is the Minister for Housing of the State of New South Wales, depending on the nature of the trust.
The expected average ``life'' or term of the trusts is 12 to 15 years. Whilst the trusts may be established with a longer maximum term, mortgages would normally be expected to experience significant prepayments over the trusts' ``life''. Once the mortgages are repaid, with the exception of two of the ``State Trusts'' (see below) which are able to relend, the trusts
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have no residual value and cannot be used again. The only circumstance in which a trust will do more than one fund raising is if multiple fund raisings are undertaken during the limited period, generally six months, with the mortgage purchase settlement period extending approximately three months past the last funding date. However, after this initial period, the trust will neither raise funds nor acquire further mortgages. Since the commencement of its business in September 1985, the company has established a total of 22 secondary mortgage trusts. The following number were established during each of the financial years ended 30 June: 1987 - two trusts; 1988 - five trusts; 1989 - six trusts; 1990 - three trusts; 1991 - six trusts. The trusts are not ``open-ended'' ongoing trusts. They are ``closed-ended'' trusts in that, once established, they attract initial investors, acquire assets over a period of two to three months and then ``passively'' run down over a period of 15 to 25 years. In order to maintain or enlarge, the pool of assets which it manages and from which it derives its income, the taxpayer must regularly and continually establish new trusts.The business of the taxpayer may be divided into two separate categories: (i) One series of trusts established, at the behest of the State of New South Wales, for the purpose of increasing the moneys available for use in the acquisition by individuals of their own homes, and generally such mortgages are given on a ``low start'' basis (``the State Trusts''). The State indemnifies the taxpayer in respect of the cost of establishing such trusts. The HPAF Trust is entitled to whatever income may be left over after meeting the trust's obligations to its bond holders and its operating expenses (including management fees payable to the taxpayer). (ii) The other category of the taxpayer's business is establishing trusts on its own initiative. These trusts are generally intended to provide mortgage moneys on a more commercial basis, although they may nevertheless be used for residential mortgages. The taxpayer is the residual beneficiary of such trusts.
Of the 22 trusts established since September 1985, 20 were established at the behest of the State. The other two trusts were established on the taxpayer's own initiative. The latter are known as the FANMAC Mortgage Trust (Australia) No. 1 (``the First Private FANMAC Trust'') and the FANMAC Residential Mortgage Trust (``the Second Private FANMAC Trust''). The First Private FANMAC Trust was established during the year ended 30 June 1988. The Second Private FANMAC Trust was established in April 1991, but has not made any issues to date. The First and Second Private FANMAC Trusts were established to provide mortgage moneys to private sector borrowers who do not qualify for the State programme. The taxpayer also manages the day to day affairs of the First and Second Private FANMAC Trusts. The taxpayer is remunerated for managing the First Private FANMAC Trust by the holding of a ``Manager's Unit'' in that trust which entitles it to any trust income left over after meeting that trust's obligations to its bond holders and its operating expenses. The taxpayer has earned the following income in respect of its ``Manager's Unit'' in the First Private FANMAC Trust: 1988 - $43,425; 1989 - $75,291; 1990 - $77,746. The taxpayer will receive a management fee equal to the net income of the trust for managing the Second Private FANMAC Trust.
A common feature of all the trusts established by the taxpayer is that the face value of the mortgages granted by the trusts must be equal to (or at least not be less than) the face value of the bonds (whether issued in the form of equity or debt) issued by the trusts. This is essential so that the bonds can achieve a ``AAA'' rating, without which the bonds could not be marketed satisfactorily. As all of the funds raised by the trusts must be committed to mortgage loans, the trusts cannot pay their own establishment expenses. The capital of the trusts (that is, the debt or equity units sold to the market apart) is generally $10.
The expenditure now in question
During the year ended 30 June 1988, the taxpayer incurred certain costs in the course of establishing the First Private FANMAC Trust. These costs were as follows:
(1) Underwriters fee - First
Boston Australia $70,000
(2) Rating establishment fee 5,250
(3) Legal fees - Corrs Pavey
Whiting & Byrne 1,081
(4) Legal fees - Mallesons
Stephen Jaques
Similar costs have been incurred in establishing the State Trusts and in establishing the Second Private FANMAC Trust.
During the year ended 30 June 1988 the First Private FANMAC Trust raised $14,000,000 by the sale to professional investors of equity interests in the Trust in the form of bonds. Of the funds raised by the Trust, $13,686,125 was used by the taxpayer to make 69 loans to private sector borrowers. The balance, $313,875, was returned to the investors in partial redemption of the bonds. The loans were secured by both residential and commercial mortgages. The loans ranged from approximately $80,000 to $600,000. The average loan was approximately $200,000. As at 30 June 1991, 28 of the loans had been repaid. The remaining 41 loans totalled $8,524,000. The difference between the original loan balance of $13,686,125 and the current loan balance of $8,524,000 was received by the taxpayer in repayment of 28 of the loans. The sum of $5,162,125 has been returned to the investors in partial redemption of the bonds.
The relevant provisions of the trust deed establishing the Fanmac Mortgage Trust No. 1
The relevant provisions of the trust deed establishing the Fanmac Mortgage Trust No. 1, dated 25 September 1987, by which the taxpayer was appointed manager, are as follows. The maturity date of the trust is 30 June 1992 (cl. 3.1). Distribution of and entitlement to income are dealt with by cl. 12.4 relevantly as follows:
``(12.4) Distribution of and Entitlement to Income
- (a) The Bond holders and the Manager holding Manager's Bonds and who are registered as Bond Holders or as Manager's Bond Holders (as the case may be) shall be entitled to all Net Taxable Income of the Trust Fund during each Financial Year in accordance with the provisions of this Clause 12.
- (b)...
- (c) On each Payment Date the Manager for the time being who holds Manager's bonds shall be entitled to any Net Taxable Income of the Trust in excess of the aggregate of all Income Entitlements (the `Surplus Income').
- ...''
The manager's powers and duties are dealt with by cl. 15. By cl. 15.9, the manager, in accordance with the provisions of cl. 16.5(b), shall pay from its own resources all costs of issue of the bonds.
Clause 16.5 deals with expenses as follows:
``16.5 Expenses
- (a) Subject to the Manager making the payments referred to in sub-clause 16.5(b), all costs (including legal costs and disbursements on a solicitor and own client basis), financial institutions duty, bank account debit tax, stamp duties and other disbursements and expenses incurred by the Trustee and the Manager in respect of this Deed and the issue of Bonds including in particular, but without limiting the generality, insurance premiums payable in relation to the Pool Insurance Policy and in the acquisition and sale or other dealing by the Trustee or the Manager with any of the assets or investments of the Trust Fund shall be payable out of the Trust Fund and shall be a charge thereon.
- (b) All legal costs and disbursements on a solicitor and own client basis,
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underwriting commission and disbursements, brokerage fees and all other fees, costs, charges and expenses in relation to the issue of Bonds pursuant to this Deed and the preparation, negotiation and execution of documentation incurred by the Manager or the Trustee shall be paid by the Manager, shall not be payable out of the Trust Fund and the Manager shall not be reimbursed out of the Trust Fund in respect thereof.''
Clause 24 deals with remuneration of the manager as follows:
``24. REMUNERATION OF MANAGER
24.1 Manager not to be paid
- The Manager shall not be remunerated for its services hereunder.
24.2 Manager's Expenses
- The Manager shall be entitled to be reimbursed out of the Trust Fund for the costs and expenses reasonably and properly incurred in the course of its office as Manager hereunder.''
It is convenient to consider each claim for a deduction separately.
Details of the expenditure incurred
(1) Payment of $70,000 to First Boston Australia Limited
This was an underwriting fee paid for obtaining subscribers to the units in the trust.
The taxpayer's argument
On behalf of the taxpayer, it is submitted that there is a relevant nexus or connection between the expenditure and the income-producing activities constituting the taxpayer's business to qualify the expenditure in terms of s. 51(1). Moreover, the argument runs, the expenditure is not a capital outgoing or of a capital nature. It is submitted that the fact that the taxpayer is not entitled to remuneration for its services of managing the First Private FANMAC Trust does not bar that conclusion in the light of the taxpayer's other income-producing activities, including its entitlement to the ``surplus income'' of the Trust. The only real question is the character of these outgoings in terms of the excluding provisions of s. 51(1). That is, are they on revenue or capital account?
The taxpayer argues that its business consists of the establishment of trusts through which the process of ``securitisation'' takes place and that this is an operational function whereby the mortgages acquired are pooled for sale to investors as medium to long term securities; and that the pooling process is a normal operational feature of the taxpayer's business. Viewed in this way, the taxpayer says, the cost of establishing such trusts is a normal operating expense. The expenditure, which did not obtain for the taxpayer any tangible asset or advantage of an enduring kind, was analogous to the cost of marketing or ``packaging'' a product and the following description of Dixon C.J. in
Vacuum Oil Company Proprietary Limited v FC of T (1964) 13 ATD 278 at 278-279; (1964) 110 CLR 419 at 434 is applicable here:
``... there is no sufficient reason for treating the expenditure as made on capital account. It appears to me clearly expenditure incurred in the process of marketing the commodity and to be expenditure which is not made once for all but is likely to be repeated, and not to be sufficiently identified as outside the ordinary conduct of business.''
Alternatively, the taxpayer says, it is accurate to characterise the establishment of the Trust as forming part of the business activities of the taxpayer rather than something done to enlargen the framework with which the taxpayer carried on its business: it was not the first trust established by the taxpayer nor the last.
Conclusion on this item
There are two questions for consideration: (1) whether the amount was an outgoing incurred in gaining or necessarily incurred in carrying on business for the purpose of gaining the assessable income of the taxpayer; and if so, (2) whether it was an outgoing of a capital nature.
As to (1): On behalf of the Commissioner, reliance is placed upon the reasoning of Menzies J. (with the concurrence of the other members of the High Court), in rejecting a claim by a newspaper publishing company for a deduction incurred in defending a suit arising out of the allotment to the company of ordinary shares in a second newspaper publishing company, in
John Fairfax and Sons Proprietary Limited v FC of T (1959) 11 ATD 510; (1959) 101 CLR 30. In holding that the expenditure fell outside the first limb of s. 51(1), Menzies J. said (at ATD 518-519; CLR 47-48):
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``At best what the acquisition of the shares and successful defence did was to put the appellant in a position to enter into partnership with Associated Newspapers Ltd. and to undertake the management of that company. An analogy may be found in the case of a person acquiring shares in a company to qualify himself to be a director and so earn director's fees, or, although perhaps somewhat less pertinently, in a lawyer entitled to practise in one jurisdiction paying a fee to be admitted to practise in another jurisdiction:... To make a payment to acquire or to defend the acquisition of a favourable position from which to earn income or to enter into arrangements that will yield income is not in general an outlay incurred either in gaining or in carrying on business for the purpose of gaining assessable income; such a payment in the case of a trading company, occurs at a stage too remote from the receipt of income to be so regarded. To be deductible an outlay must be part of the cost of trading operations to produce income, i.e., it must have the character of a working expense. What the appellant wanted in taking up the shares in Associated Newspapers Ltd. was to keep Consolidated Press Ltd. out, and to gain the opportunity to make profits of the sort which the accounts show that it made, but that does not mean that payments in connection with the acquisition of the shares or for the defence of the acquisition of shares were incurred in carrying on the profit-making business.''
Nor, in the opinion of Menzies J., was the second limb satisfied. He said (at ATD 519; CLR 49):
``... there must, if an outgoing is to fall within its terms, be found (i) that it was necessarily incurred in carrying on a business; and (ii) that the carrying on of the business was for the purpose of gaining assessable income. The element that I think it necessary to emphasise here is that the outlay must have been incurred in the carrying on of a business, that is, it must be part of the cost of trading operations. The only trading business of the appellant with which we are here concerned is the publication of newspapers and to my mind to pay money to acquire shares in another newspaper company is not to incur an outgoing in carrying on that business nor is to pay legal costs either in the course of that acquisition or in its defence.
For these reasons I have reached the conclusion that the outgoing was not incurred in gaining the assessable income of the year ended 30th June 1954, nor in gaining any assessable income of subsequent years, nor in carrying on business to earn the assessable income of the year ended 30th June 1954, or that of subsequent years. It had the character of an outgoing in the course of extending the appellant's business rather than that of a working expense in the carrying on of the appellant's business.''
The general principles in this area are well established. As Gibbs C.J. pointed out in
FC of T v Foxwood (Tolga) Proprietary Limited 81 ATC 4261 at 4263; (1981) 147 CLR 278 at 283 in accordance with the settled course of authority, the two categories described in s. 51(1) are not mutually exclusive, and in actual working, the alternative in s. 51(1) (``outgoing... necessarily incurred in carrying on a business for the purpose of gaining or producing [assessable] income'') adds little to the first category (``outgoings... incurred in gaining or producing the assessable income''). To fall within the first limb, the expenditure must be ``incidental and relevant'' to that end (at ATC 4263; CLR 284). It is both sufficient and necessary that ``the occasion of the loss or outgoing should be found in whatever is productive of the assessable income'' (at ATC 4263; CLR 284). The word ``necessarily'' in the second limb means ``clearly appropriate or adapted for'' (at ATC 4263; CLR 284).
The application of these principles in respect of the present item leads, I think, to the conclusion that this expenditure was incurred in gaining assessable income in the form of the ``surplus'' income described in cl. 12.4(c) of the trust deed. It is true, as counsel for the Commissioner submits, that, under the deed, the legal right to the income depends upon the holding by the taxpayer of ``Manager's bonds''. But the present question is not merely to identify the source of the legal entitlement to the income. The question is whether the payment of the underwriting fee was ``relevant and incidental'' to that end. That expenditure was incurred in the context of the promotion of
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the trust and in order to ensure its viability, that is, in order to ensure that it generated income, and, ultimately, ``surplus'' income. These considerations further suggest that the expenditure also fell within the second category of s. 51(1), but it is not necessary to decide the point.As to (2): The distinction, for present purposes, between expenditure on revenue account and on capital account was said by Dixon J., in
Sun Newspapers Limited v FC of T (1938) 5 ATD 87 at 93-94; (1938) 61 CLR 337 at 359 to correspond 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 outlays and returns representing profit or loss.''
For recent applications of the distinction, see, e.g.,
McLennan v FC of T 90 ATC 4047 per Hill J. at 4053;
Goodman Fielder Wattie Ltd v FC of T 91 ATC 4438 per Hill J. at 4449;
Sunraysia Broadcasters Pty. Ltd. v FC of T 91 ATC 4530 per Davies J. at 4531.
In Sun Newspapers, above (at ATD 94; CLR 360-361), Dixon J. gave the following illustration of the distinction between the ``profit-yielding subject'' and the ``process of operating it'' in the context of intangibles:
``For example, a profitable enterprise such as the sale of a patent medicine may depend almost entirely on advertisement. In the beginning the goodwill may have been established by a great initial outlay upon a widespread advertising campaign carried out upon a scale which it was not intended to maintain or repeat. The outlay might properly be considered to be of a capital nature. On the other hand the goodwill may have been gradually established by continual advertisement over a period of years growing in extent as it proved successful. In that case the expenditure upon advertising might be regarded as an ordinary business outgoing on account of revenue.''
In Goodman Fielder Wattie, above (at 4449), Hill J. pointed out that, for present purposes, it is necessary to consider carefully the nature of the business carried on by a taxpayer, in order to distinguish between ``recurrent'' expenditure, and expenditure which is made ``once and for all''. Hill J. said (at 4449):
``A pharmaceutical company, the business of which includes continuing research and development as part of the continuous or constant demand for expenditure in its business, does not each time that expenditure is incurred make an outlay of capital or of a capital nature. Its business, when properly analysed, includes its research and development, at least in the ordinary case. No doubt, there are matters of degree involved, and in a particular case the research and development may be concentrated on a product so far removed from the day to day products of the taxpayer, that the expenditure cannot be properly seen as part of its working expenditure.''
In the present case, if the only relevant activity of the taxpayer was the instant trust, there would be much to be said for the view that this item of expenditure was an affair of capital. But, in my view, this would be to take too narrow a view of what the taxpayer was doing. In my opinion, it is appropriate to describe the relevant activities of the taxpayer as the carrying on of the business of establishing, marketing, managing and administering trusts which issue fixed rate securities. The item of expenditure took place within that framework and as part of that process. Similar items of expenditure were incurred by the taxpayer from time to time. These considerations suggest, I think, that the items took their character from the processes of the operations of the business rather than constituted a part of the structure of the business. In this sense, this item should, in my view, be characterised as something incurred on revenue account.
The expenditure in respect of this item was deductible.
(2) Payment of $5,250 by way of rating establishment fee
This amount was paid to Australian Ratings. As has been said, in order to market the bonds satisfactorily, it is necessary to obtain a ``AAA'' rating. Again, if we were concerned only with the instant trust, the expenditure may have been on capital account. But, for the
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reasons already given, this is, I think, too restricted a view of the matter.The expenditure in respect of this item was deductible.
(3) Payment of $1,081 by way of legal fees to Corrs Pavey Whiting & Byrne
This was paid for work done ``in relation to Victorian mortgage - 5 yr. issue''. It is common ground that this item of expenditure was incurred in the course of establishing the trust.
In his work ``Income Taxation in Australia'', Professor R.W. Parsons says (at 405):
``The expenses of organisation - the formation of a company trust or partnership - would generally be assumed to be not deductible, and the expenses of reorganisation and administration to be deductible. These assumptions require examination. The company, partnership or trust is an entity that is a taxpayer, or an entity deemed to be a taxpayer for the purpose of determining the income of others who derive income through that entity. The expenses of formation of an entity, when incurred by the entity, lack sufficient connection with the derivation of income to be relevant: they are private expenses. Where the expenses are claimed by a person who derives income through the entity - a shareholder, a beneficiary in the trust or a partner - the expenses, if regarded as relevant, will generally be denied deduction as not working: they are capital expenses. Where, however, a taxpayer deals in shares the expenses of formation of a company in which he takes shares may be both relevant and working expenses.''
I agree. Applying this reasoning and for the reasons given in respect of item (1), the expenditure in respect of this item was deductible.
(4) Payment of $18,894 by way of legal fees to Mallesons Stephen Jaques
This expenditure was incurred for legal advice given with respect to the trust deed and its documentation, including the securities to be taken in that connection.
For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(5) Payment of $9,284 by way of legal fees to Freehill Hollingdale & Page
This item was for services of the kind in item (4). In fact, Permanent Trustee Company Limited paid one-half of the fees rendered (i.e. a total of $18,568.43).
For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(6) Payment of $8,000 by way of legal fees to State Bank of New South Wales
This amount was for the following:
``Establishment fee $5,000
Legal fees incurred in the
preparation and execution of the
facility 3,000
------
$8,000
------''
For the reasons given in respect of items (2) and (3), the expenditure in respect of these matters was deductible.
(7) Payment of $22,350 by way of legal fees to Allen Allen & Hemsley
This item is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(8) Payment of $8,994 by way of legal fees to Clayton Utz
This item is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(9) Payment of $1,032 by way of legal fees to Allen Allen & Hemsley
This item is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(10) Payment of $1,240 by way of legal fees to Mallesons Stephen Jaques
This item, incurred for legal advice in Western Australia, is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
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(11) Payment of $2,269 by way of legal fees to Finlaysons
This item, incurred for legal advice in South Australia, is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(12) Payment of $737 by way of legal fees to Mallesons Stephen Jaques
This item, incurred for legal advice in the Australian Capital Territory, is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(13) Payment of $3,351 by way of legal fees to Cannon & Peterson
This item, incurred for legal advice in Queensland, is similar to items (4) and (5). For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(14) Payment of $32,118 by way of legal fees to Mallesons Stephen Jaques
This item is similar to item (4) but in respect of a subsequent period. For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(15) Payment of $2,425 by way of printing fee to The Superpoint Printery
This payment was made for the printing of a ``private placement memorandum'' in the present connection, together with sales tax. For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
(16) Payment of $2,722 by way of printing fee to Sharp Printing Services
This payment was made for the printing of a ``memorandum of provisions'' and associated documents in the present connection, together with sales tax. For the reasons given in respect of item (3), the expenditure in respect of this item was deductible.
Result of the appeal
In the result, I would make the following orders: (1) Appeal allowed. (2) Assessment remitted to the Commissioner for amendment in accordance with these reasons. (3) Commissioner to pay the costs of the taxpayer.
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