Federal Court allows Commissioner’s appeal against order of Tribunal for the production of internal legal advice

On 23 January 2018 I reported on a decision of the Tribunal in ACN 154 520 199 Pty Ltd and Commissioner of Taxation [2018] AATA 33 where the Tribunal ordered the Commissioner to produce internal legal advice. The order was made pursuant to s 37(2) of the Administrative Tribunal Act whereby the Tribunal can order the decision maker (in this case the Commissioner) to lodge with the Tribunal “documents that may be relevant to the review of the decision by the Tribunal”. My post discussing that decision can be accessed here.

In Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140 the Federal Court allowed the Commissioner’s application for judicial review of the Tribunal’s decision and ordered that the decision be set aside.

The review proceedings filed with the Tribunal involve GST assessments totalling in excess of $122 million and the imposition of penalties totalling over $58 million. The substantive review proceedings are scheduled to be heard before the Tribunal in September 2018.

The subject of the GST assessments was the entitlement of the respondent to claim input tax credits in respect of acquisitions described as “scrap gold” which was used in the production of  gold bullion that had a 99.9% fineness. The Court (at [6]) described the issue in the following terms :

The Commissioner determined that, by ss 11-15(2)(a), 38-385 and 40-100 of the GST Act, EBS’ input tax credit entitlement turned on, amongst other things, EBS’ use of the scrap gold to make the first supply of gold bullion after refining. Under the GST assessments, the Commissioner disallowed the input tax credits that EBS had claimed for acquiring scrap gold, which the Commissioner found had the same 99.99% purity as the gold bullion that EBS produced from that scrap. Those input tax credits were disallowed on the basis that EBS did not undertake refining, because the purity of the scrap inputs into EBS’ production process was the same as the purity of EBS’ bullion output. That basis for the assessments is referred to here for convenience as the “no refining issue”.

 The Commissioner also issued penalty assessments and did not exercise his discretion to remit those penalties. In respect of this issue, the Tribunal ordered the Commissioner to produce internal legal advice prepared by officers of the ATO that fell within the following category:

Any internal legal advice produced by officers of the Australian Taxation Office in relation to the contention by the Respondent that s 38-385 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) does not apply to the supplies of gold bullion by the Applicant because the supply of that bullion was not the first supply after its refining because the Applicant did not undertake any ‘refining’ to produce the bullion as the refining material from which the gold was produced had a purity of at least 99.5%.

The Court (at [26]) described the reasoning of the Tribunal in making the direction in the following terms:

The Tribunal then went on to state that internal legal advices produced by officers of the Commissioner on the no refining issue which either support EBS’ position, state that it is arguable or do not support its position at all, “may be relevant” to the Tribunal’s review of the objection decision, in that those advices would address EBS’ “particular circumstances” and would go to the issue of whether EBS’ position on the no refining issue was reasonably arguable, as was in turn relevant to the issue of remission. The Tribunal considered that EBS’ application for the disclosure was not premature or a fishing expedition, and that, given that the category of documents specified was narrow, it was appropriate to issue a direction for the disclosure of the relevant advices pursuant to s 37(2).

The Court (at [46]) observed that the “live question” to be answered was whether the Tribunal’s opinion that the legal advices sought to be produced may be relevant “is an opinion that was capable of being, and was, in fact, formed, by reference to a correct understanding of the law applicable to the merits review process”. If it was shown that that the opinion actually formed was not an opinion of this character, then the necessary opinion does not exist in law, the direction was made without jurisdiction and it thus constituted a jurisdictional error.

In considering this question, the Court (at [49]) considered that it was impossible to see how the factors that may be taken into account by the Tribunal on the question of remission of penalties could be expanded to include subjective material, especially if that material was not before the original decision-maker and could not have been known to respondent so as to influence and in some way explain the stance that it took. Any internal legal advice of the Commissioner could not be relevant to the objection question before the Tribunal on the remittal of penalties. It followed that the Tribunal formed an opinion that the internal legal advices concerning the respondent and the “no refining issue” may be relevant upon a basis that was not open to it. The decision to give the direction was made without jurisdiction being engaged and therefore constituted a jurisdictional error.

I also note that in related interlocutory proceedings, in ACN 154 520 199 Pty Ltd and Commissioner of Taxation [2018] AAT 2404 the Tribunal allowed a summons to be issued to a third party so as to explore issues of credit going to expert evidence to be relied on by the Commissioner at the substantive hearing.

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