FEDERAL COURT OF AUSTRALIA Bosanac v Commissioner of Taxation [2019] FCAFC 116 Appeal from: Bosanac v Commissioner of Taxation [2018] FCA 946 File number: WAD 317 of 2018 Judges: GREENWOOD, BURLEY AND COLVIN JJ Date of judgment: 15 July 2019 Catchwords: INCOME TAX - appeal by taxpayer from decision of primary judge dismissing appeal from objection decision disallowing objections to notices of amended assessment - where taxpayer lodged no returns for a number of years - where returns when lodged showed nil or negligible income - consideration of the nature of an appeal under s 14ZZ Tax Administration Act 1953 (Cth) - where onus on taxpayer to prove that the assessment the subject of the objection decision was excessive - whether concession by Commissioner was sufficient basis upon which the Court could reach conclusion about taxpayer's income - where taxpayer did not demonstrate the nature and extent of his income - where taxpayer failed to discharge the onus - whether primary judge erred in characterising taxpayer's wealth as considerable - leave to raise a ground alleging statutory double jeopardy not before the primary judge refused - whether primary judge erred in assessment of penalty as to taxpayer's level of culpability - consideration of s 284-220 of Sch 1 of the Tax Administration Act - whether a penalty and a 20% uplift could be imposed on taxpayer at the same time - appeal dismissed Legislation: Evidence Act 1995 (Cth) s 50 Income Tax Assessment Act 1936 (Cth) ss 166, 167, 170, 175, 175A, 190 Judiciary Act 1903 (Cth) s 39B Tax Administration Act 1953 (Cth) ss 8ZE, 14ZL, 14ZQ, 14ZU, 14ZV, 14ZVC, 14ZY, 14ZZ, 14ZZO, 14ZZP, 14ZZQ, Schedule 1 s 284-220(1)(c) Tax Laws Amendment (2010 Measures No 1) Act 2010 (Cth) Cases cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Aurora Developments Pty Ltd v Federal Commissioner of Taxation (No 2) [2011] FCA 1090; (2011) 196 FCR 457 Australian Competition & Consumer Commission v Australian Competition Tribunal [2006] FCAFC 83; (2006) 152 FCR 33 Avon Downes Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 Commissioner of Taxation v Rigoli [2013] FCA 784 Commissioner of Taxation v Sharpcan Pty Ltd [2018] FCAFC 163 Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd [1994] HCA 58; (1994) 181 CLR 466 Federal Commissioner of Taxation v Hines (1952) 9 ATD 413 Federal Commissioner of Taxation v Mantle Traders Pty Ltd [1980] FCA 156; (1980) 49 FLR 256 Federal Commissioner of Taxation v Montgomery [1999] HCA 34; (1999) 198 CLR 639 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gashi v Commissioner of Taxation [2012] FCA 638 Kajewski v Commissioner of Taxation [2003] FCA 258 Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation [1975] HCA 5; (1975) 132 CLR 535 Krew v Federal Commissioner of Taxation (1971) 71 ATC 4213; (1971) 2 ATR 230 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 Ma v Federal Commissioner of Taxation (1992) 37 FCR 225 McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Phillips v Commonwealth [1964] HCA 22; (1964) 110 CLR 347 R v Hoar [1981] HCA 67; (1981) 148 CLR 32 Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 Re Picton Finance Ltd and Federal Commissioner of Taxation [2013] AATA 116 Rigoli v Commissioner of Taxation [2014] FCAFC 29 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 W R Carpenter Holdings Pty Ltd v Commissioner of Taxation [2006] FCA 1252 Western Gold Mines No Liability v Commissioner of Taxation (WA) (1938) 59 CLR 729 Weyers v Commissioner of Taxation [2006] FCA 818 Zappia v Commissioner of Taxation [2017] FCAFC 185 Date of hearing: 7 November 2018 Registry: Western Australia Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 151 Counsel for the Appellant: Mr M Robertson QC with Mr JW Fickling Counsel for the Respondent: Mr AJ Musikanth with Ms TL Jonker ORDERS WAD 317 of 2018 BETWEEN: VLADO BOSANAC Appellant AND: COMMISSIONER OF TAXATION Respondent JUDGES: GREENWOOD, BURLEY AND COLVIN JJ DATE OF ORDER: 15 July 2019 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The respondent do file and serve submissions as to costs within 14 days. 3. The appellant do file and serve submissions as to costs within 14 days of service of the respondent's submissions as to costs. 4. The respondent do file and serve any submissions strictly in reply within 10 days of service of the appellant's submissions as to costs. 5. Unless the Court otherwise orders, the orders as to the costs of the appeal be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 Mr Bosanac lodged no tax returns for income earned in the tax years from 2006 to 2013 until 25 February 2015. When finally he lodged those returns, they disclosed little or no income in the years 2006 to 2009 and 2013 and about $800,000 of taxable income in total for the whole period. The unchallenged findings of the primary judge are that Mr Bosanac is very wealthy, that he 'displayed a cavalier attitude to his obligations as a taxpayer … whilst successfully pursuing his career as a businessman', that the returns he eventually filed were demonstrably wrong and that he swore misleading affidavits about his income in the proceedings before the primary judge. Assessments, objection and appeal 2 The Commissioner commenced an audit of the tax affairs of Mr Bosanac in March 2014. Well after the audit started, he lodged tax returns. Tax payable by Mr Bosanac was initially assessed on the basis of the tax returns lodged by him. Based on the audit, the Commissioner assessed Mr Bosanac for an increased amount of taxable income over the period of about $9 million and for penalties and interest. On 16 June 2015, amended assessments to reflect that position were issued under the Income Tax Assessment Act 1936 (Cth) (ITAA) (Amended Assessments). 3 Mr Bosanac lodged objections to the Amended Assessments in August 2015. The outcome of the objections was a decision by the Commissioner in June 2016 to the effect that there should be various adjustments to the tax returns as originally lodged (Objection Decision). The Objection Decision revised the taxable income upwards in some years and downwards in others. The net effect over the period was a further increase in taxable income of about $930,000. Objections as to the level of penalties and interest were not upheld. Thereafter, the Commissioner issued further amended assessments to reflect those adjustments (Further Amended Assessments). 4 In August 2016 an appeal against the Commissioner's Objection Decision was commenced under s 14ZZ of the Taxation Administration Act 1953 (Cth) (TAA). 5 Even though it was only after the audit started that Mr Bosanac lodged his tax returns, he also claimed before the primary judge that the Commissioner should impose only minimal penalties based upon a form of amnesty that had been announced by the Commissioner known as Project DO IT. As one might expect, the remission of penalties offered as part of Project DO IT was not available where tax liabilities were disclosed after a tax audit had commenced. 6 The primary judge dismissed the appeal against the Objection Decision. In a careful consideration of the evidence the primary judge concluded that Mr Bosanac had not established that any of the assessments issued to him in relation to primary tax were excessive: Bosanac v Commissioner of Taxation [2018] FCA 946 at [111]. The primary judge described the state of the evidence by way of overview at [13] in the following way: Little detailed evidence was adduced by the applicant concerning his business of earning income from share transactions or from consultancy. He never explained the structure of his business, save that it would appear that he used up to four companies in Singapore to buy and sell shares using a Credit Suisse bank account in order to bank the proceeds. The owner or owners of these four companies was not disclosed. The books of account of these four companies, if they had any, were not disclosed. The origin, purpose and extent of what the applicant called the "offshore structure" was not disclosed. The manner in which consultancy fees were earned was not disclosed. The precise legal relationship between the applicant and certain companies in Australia (Healthtec Growth Partners Pty Ltd ("Healthtec") and Greenday Corporate Pty Ltd ("Greenday")), which he either owned or controlled in part with a Mr Cross, for the purposes of the provision of consultancy services, was not disclosed. 7 Income had been assessed based on 74 entries in bank accounts between 2006 and 2013. Mr Bosanac sought to explain the entries by affidavit. The trial judge found that, for the most part, the evidence was 'assertion' noting that no agreements, receipts, invoices or books of account were provided and that it appeared that Mr Bosanac kept no books of account at all: at [17]. His Honour dealt in detail with the evidence as to each entry in the bank accounts and gave detailed reasons as to why the evidence failed to demonstrate the nature and extent of the taxable income of Mr Bosanac in each of the relevant years. 8 The primary judge also found no error in the level of penalties that were assessed. 9 The general right of appeal by way of rehearing that is available in respect of final decisions by primary judges of this court was then exercised by Mr Bosanac. The amended notice of appeal raised 17 grounds. However, in the course of oral submissions at the hearing of the appeal, senior counsel for the appellant indicated that grounds 7, 9, 10 and 11 were not pressed. 10 The remaining grounds relied upon by the appellant make no real challenge to the key factual findings upon which the decision of the primary judge rests. 11 For the following reasons, each of the grounds pressed on the appeal should be dismissed. The relevant statutory provisions 12 By the terms of s 175A of the ITAA, a taxpayer who is dissatisfied with an assessment may object against the assessment in the manner set out in the TAA. (Unless otherwise stated, subsequent references in these reasons to sections are to sections in the TAA). 13 The objection must state the grounds of objection fully and in detail: s 14ZU. Relevantly for present purposes, the term 'taxation objection' is used in the TAA to refer to an objection to an assessment: s 14ZL. The assessment against which the taxation objection has been made is a 'taxation decision': s 14ZQ. Where an assessment has been amended in any particular then the right of objection in respect of the amended assessment is limited to a right to object against alterations or additions to that particular: s 14ZV. So, an amendment does not trigger a fresh right to object to the whole of the assessment. If, after an objection decision, the Commissioner exercises the power to amend the assessment the subject of an objection then the amended assessment may be the subject of an objection under s 175A of the ITAA, but the taxpayer cannot object on a ground raised in a previous objection: s 14ZVC. So, in the case of an amended assessment not only is the objection to be confined to any amended particular, it must not re-agitate grounds dealt with by an objection to an earlier assessment in respect of the same tax liability. 14 In this case, there were objections by Mr Bosanac to the Amended Assessments issued after the audit. They were objections to the particulars by which the substantial additional taxable income, penalties and interest were assessed. 15 By s 14ZY of the TAA, if a taxation objection has been lodged then the Commissioner must decide whether to allow it, wholly or in part, or disallow it: s 14ZY(1). The outcome is an 'objection decision': s 14ZY(2). It is no part of the objection decision to amend an assessment. The decision concerns only the merits of the objection. Under s 170(1), item 6 of the ITAA the Commissioner has power to amend an assessment as a result of an objection made by a taxpayer. Indeed, an amendment in exercise of that power may be expected if an objection is upheld given the statutory consequences of an assessment: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 at 199 (Brennan J). Issues of validity may arise in respect of the assessment the subject of a valid objection where that assessment has not been amended to conform to the outcome on the objection, particularly given the conclusive evidentiary character afforded to a tax assessment under the legislation. A challenge to the validity of an assessment would confront the terms of s 175 of the ITAA: Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 at [24] (Gummow, Hayne, Heydon and Crennan JJ). However, what is significant for present purposes is that the determination of the objection is a separate exercise of power to any amendment to the assessment that may be made consequent upon an objection. 16 A person dissatisfied with an objection decision may appeal to the Federal Court: s 14ZZ(1). As to the proceedings on such an appeal, s 14ZZO(b)(i) provides that 'if the taxation decision concerned is an assessment' (as it is in the present case), then the appellant has the burden of proving 'that the assessment is excessive or otherwise incorrect and what the assessment should have been'. In context, the reference in s 14ZZO(b)(i) to a 'taxation decision' must be the decision by the Commissioner to make the assessment that was the subject of the taxation objection. The TAA provides for an appeal in respect of the 'objection decision' not in respect of any further amended assessment that may be consequent upon the conclusions in the objection decision. 17 As we have noted, a decision of the Commissioner resulting from the taxation objection does not itself involve the exercise of any power to amend an assessment. So, a decision on the objection will not itself produce an amended assessment. Further, even where an amended assessment does issue after the decision on the taxation objection, the amended assessment will not have been the subject matter of the objection. As we have also noted, any such amended assessment could only be objected to as to the amended particulars and by raising a ground not advanced in a previous objection. If the appeal right could only be pursued as to an amended assessment issued after the objection decision there would be no right to appeal as to those aspects that were not amended or grounds advanced in an earlier objection to the assessment. There would be no logic in such a scheme. Therefore, on an appeal to this Court under s 14ZZ, the 'assessment' that the appellant must demonstrate to be 'excessive or otherwise incorrect' is the assessment the subject of the taxation objection. 18 The distinction between the objection process (on the one hand) and an amendment to the assessment (on the other hand) is also reflected in the terms of s 14ZZQ. Where an order of the court is made in relation to an objection decision there is a statutory obligation upon the Commissioner within 60 days to amend any assessment to give effect to the decision: s 14ZZQ. So, if an appeal in respect of an objection decision is upheld, the amendment of the assessment is a separate matter and the power to amend remains with the Commissioner (albeit that there is a statutory direction to the Commissioner to amend). 19 In Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd [1994] HCA 58; (1994) 181 CLR 466, Brennan, Deane, Dawson and Toohey JJ considered the nature and extent of an appeal to the court against an objection decision under provisions that were 'much the same in form' as those which are now to be found in the TAA: at 474. Their Honours rejected a claim that part of an objection decision may be isolated from the rest and referred to this Court. They found that when there is an appeal what is referred is the objection decision in its entirety: at 476. Significantly, the power to amend assessments was analysed as a power that remained with the Commissioner: at 480-481. 20 On an appeal to the Federal Court, the appellant is confined to the grounds of objection raised with the Commissioner as part of the objection process, unless the court otherwise orders: s 14ZZO(a). 21 Finally, where an appeal is brought against an objection decision under s 14ZZ 'the court may make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision': s 14ZZP. The subject matter of the proceedings below 22 As we have noted, Mr Bosanac brought taxation objections in respect of the Amended Assessments. The outcome of the objection process was a decision on 1 June 2016 that the income tax returns lodged by Mr Bosanac would be adjusted in various respects. The income in some years was increased and in other years was decreased. The net overall adjustment to income over all years the subject of the assessments that was decided by the Objection Decision was an increase in taxable income with no adjustment to the rate of penalties and interest to apply. 23 The subject matter of the appeal to the primary judge under s 14ZZ(1)(b) was the assessment the subject of the objection, namely the Amended Assessments. On that appeal, Mr Bosanac had the burden of demonstrating that the Amended Assessments were excessive: s 14ZZO(b)(i). 24 The nature of that burden, how it may be discharged and whether the appeal can be confined to a particular aspect of the obligation has been considered in a number of decisions. Those matters turn upon the nature of the statutory right of 'appeal' conferred by s 14ZZ, a matter considered below. 25 However, at this point it is to be noted that the appeal to the primary judge was not in respect of the Further Amended Assessments issued to give effect to the decision on the objection. Whether the Further Amended Assessments have a proper foundation depends upon the outcome of this appeal. If the appeal was to result in a determination by this court (or by a single judge on remitter) that any of the Amended Assessments were excessive then issues would arise as to the validity of any further amended assessment that did not reflect that determination. It appears that s 14ZZQ would apply to require the Commissioner to further amend the assessment to reflect the outcome on the appeal. However, the issue in the present appeal is not whether the Further Amended Assessments were correctly issued. It is the Amended Assessments that were the subject of the objection before the Commissioner and it is the objections to the Amended Assessments that were the subject matter of the appeal heard by the primary judge. 26 It is important to have regard to the character of the appeal heard by the primary judge when considering the appeal grounds which now fall for determination. The nature of the right to appeal under s 14ZZ of the TAA 27 The decision by the Commissioner on an objection is administrative. The statutory right to 'appeal' to this Court conferred by s 14ZZ provides for a judicial determination. An appeal is always a creature of statute and it is a question of proper construction of the terms of any particular grant of a right of appeal which determines its nature: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [2]; Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 at [7]; and Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273-274. 28 Where an appeal is provided for in respect of an administrative determination then the court is required to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at [15]. In such instances, it is for the court 'to pronounce anew upon the rights of the parties as disclosed by the evidence before it': Phillips v Commonwealth [1964] HCA 22; (1964) 110 CLR 347 at 350. A statutory right of review may be confined to an error of law as was the case in Roy Morgan Research Centre. It may be confined to a question of law: see, for example, the analysis by Buss JA in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [53]-[57]. Or it may extend to a review on a question of fact, or mixed law and fact. The review may be confined to grounds raised before the administrative decision-maker. It may be confined to a consideration of the record that was before the decision-maker such that no new evidence could be adduced on the 'appeal': see, for example, Australian Competition & Consumer Commission v Australian Competition Tribunal [2006] FCAFC 83; (2006) 152 FCR 33 at [43]-[44], [170]. 29 If the statutory right of appeal to a court from an administrative decision is expressed to be by way of rehearing then that will generally mean that the court will undertake a hearing de novo: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621 (Mason J). However, where the administrative hearing has much of the formality of a court hearing that may be a reason for concluding on the proper construction of the particular provision that there is to be a rehearing on the evidence received in the administrative hearing with a special power to receive further evidence: at 619-620. 30 The phrase 'by way of rehearing' does not necessarily have a fixed or settled meaning and 'is best used only when required by a statutory text': Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [21]. The task in considering the nature and extent of the original jurisdiction in respect of a statutory right of appeal from an administrative decision is one of construction of the statutory text. 31 In considering a statutory right of appeal from a primary judge, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [57] that '[a]ppeals being creatures of statute, no taxonomy is likely to be exhaustive', but identified three classes of appeal as being relevant in the context of that case, namely: 1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. 2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. 3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance. (citations omitted) 32 Further distinctions were described by Mason J in Sperway in a passage approved in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20] (Gleeson CJ, Gummow and Kirby JJ) and by Glass JA in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281. 33 Where the statutory right of appeal is from a judicial decision, an express right to receive further evidence on the appeal supports the conclusion in a particular case that the appeal is by way of rehearing rather than a hearing de novo. There would be no need to provide for such a right if the whole matter was to be determined afresh. On a rehearing, the statutory powers of the appellate court may only be exercised where error has been demonstrated and if there is error, unless the matter is remitted, the appellate court substitutes its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [22]-[23] (Gaudron, McHugh, Gummow and Hayne JJ). 34 However, where (as here) the appeal is to a court from an administrative decision and therefore requires a conferral of original jurisdiction to make a decision it is necessary to consider the statutory scheme because in many cases the statute will not contemplate an appeal which is the equivalent of a de novo judicial determination after a contested hearing on the facts in which there is the opportunity for cross-examination. In the absence of an express provision concerning the right to receive further evidence, the 'appeal' may contemplate a fresh hearing or it may contemplate a hearing in which the material before the administrative decision-maker may be received but supplemented by other evidence which may be tested in accordance with the usual evidentiary procedures of the court. So, in Turnbull, (a case concerned with a right to appeal an administrative decision) Glass JA drew a distinction between those cases where there was a statutory right of appeal from an administrative decision and cases where there was a right of appeal from a judge or after a trial before a judge and jury. 35 As we have noted, s 14ZZ simply provides that a person dissatisfied with the Commissioner's objection decision may appeal against the decision. There is no reference to a rehearing. There is no reference to a right to receive further evidence. There is no reference to the status of materials presented to the Commissioner on the objection or factual matters determined by the Commissioner for the purposes of dealing with the objection. Significant contextual aspects are that there is no requirement for the Commissioner on an objection to convene a hearing, to receive sworn evidence, for the evidence to be tested or for there to be an adjudication akin to that conducted by a court. Further, the TAA provides that the appeal, unless the court otherwise orders, is confined to the grounds stated in the taxation objection, thereby giving significance to the way the case was advanced by the taxpayer on the objection. Also, the taxpayer as appellant has 'the burden of proving' that the assessment is excessive or otherwise incorrect and what the assessment should have been. This is significant for two reasons. First, it contemplates that there will be a process in which matters will be proved on the appeal. Second, the focus is on whether the assessment is excessive, not on whether there was error in the objection decision. This points to a fresh hearing on review in which the court reaches its own view as to whether the assessment is excessive regardless of error. However, the fresh hearing is confined to an adjudication of the issues raised by the objection, unless the court makes an order allowing a broader inquiry. 36 Further, for the following reasons, on the hearing of the appeal the court receives evidence in accordance with its usual procedures where the original jurisdiction of the court is invoked. 37 In Kajewski v Commissioner of Taxation [2003] FCA 258, Drummond J considered the nature of the right to appeal to this Court then conferred by s 14ZZ(c) (which at that time was expressed in the following terms): If the person is dissatisfied with the Commissioner's objection decision, the person may: … (c) if the decision is an appealable objection decision (other than a reviewable objection decision) - appeal to the Federal Court against the decision. 38 In the case of a reviewable objection decision, s 14ZZ(b) then provided that the person could apply to the Administrative Appeals Tribunal for review of the decision. 39 Drummond J referred to a number of High Court decisions in concluding that subject to the express statutory provision confining the grounds to those raised in the objection (unless the court orders otherwise) 'the taxpayer is, in general, entitled to put before the appeal court evidence that may not have been before the Commissioner and to seek the Court's decision on whether, on all the evidence before it on the appeal, an assessment different in amount from that issued by the Commissioner should issue'. The High Court decisions concerned earlier statutory provisions in relation to appeals from decisions on objections to assessments. As to those decisions, we note the following matters. 40 In Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd at 476-477 it was held that on an appeal against an objection decision the court is seized of the Commissioner's decision in its entirety. The appeal is not confined to the matters with which the taxpayer was 'dissatisfied'. 41 In Deputy Commissioner of Taxation v Richard Walter Pty Ltd, Brennan J stated at 198 that: The procedures in Pt IVC of the Administration Act expose an assessment to correction if the application of the general provisions of the Act to the facts as found establishes that the assessment was excessive. 42 However, Richard Walter was concerned with an attempt to challenge the validity of an assessment (particularly its conclusive evidentiary effect) in circumstances where there had been no appeal to the court nor review sought in the Tribunal. The decision was not directly concerned with the nature of the right of appeal. The quoted statement made reflects the terms of s 14ZZQ that require the Commissioner to amend an assessment to give effect to an order made by the court on an appeal against an objection decision. 43 In Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63, the Court was concerned with the effect of a qualification to the conclusive evidentiary effect of an assessment which at that time applied in an appeal where the assessment was 'prima facie evidence only'. Although there was no discussion of the nature of the appeal provided for at that time, a provision of that kind lent support to a construction of the appeal provisions that they required a fresh hearing at which evidence was to be received. 44 In McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284, Gibbs J at 300 (Stephen J agreeing) described an appeal to the court following a decision on an objection by the then Board of Review as 'not a true appeal, but a proceeding in the original jurisdiction of the court' which had 'some of the characteristics of an appeal'. The question in that case was whether the burden of establishing that the assessment exceeded the amount of taxable income was on the taxpayer. The other members of the court did not address directly the question of the nature of the appeal. However, the reasons of each member of the court contemplate that on such an appeal the evidence before the Board of Review may be received and the taxpayer may give further evidence and the absence of such evidence may bear upon a conclusion as to whether the burden on the taxpayer had been discharged (at 292 (Barwick CJ), 302-303 (Gibbs J), 306 (Stephen J), 316-318 (Jacobs J), 324 (Murphy J)). 45 In Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation [1975] HCA 5; (1975) 132 CLR 535 the court was concerned with income tax provisions whereby a deduction by a company for past losses could only be claimed if the company established to the satisfaction of the Commissioner that a specified position concerning the beneficial ownership of shares in the company pertained on the last day of income. The decision turned on whether, having found that the requisite satisfaction of the Commissioner on which an assessment issued was based on a misconception (such that the function of forming the state of satisfaction was not discharged according to law), the court on an appeal against an assessment could form its own view as to whether the Commissioner could be properly satisfied on the basis of the evidence before the court on the appeal: at 568 (Gibbs J), 576 (Stephen J). Therefore, the case was not concerned directly with the nature of the appeal (which, in any event occurred in a very different legislative context to that which now applies). Rather, it was concerned with the extent to which there could be a review of the Commissioner's state of satisfaction in the course of such an appeal. In that regard the majority applied the views of Dixon J in Avon Downes Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 which concerned the circumstances in which there could be a review of the Commissioner's state of satisfaction. 46 For present purposes it is sufficient to note that some care must be exercised in considering earlier taxation decisions concerned with appeals to the court where those appeals were to be brought in a different legislative context to that which now applies. 47 Having regard to the issues raised in the present appeal, we would summarise the nature of an appeal under s 14ZZ in the following terms. Although s 14ZZ provides for an 'appeal', it confers an original jurisdiction to determine a review claim 'against the decision' by the Commissioner on an objection. The Court is to determine the claim on the evidence presented to it in accordance with its usual practice and procedure for applications in its original jurisdiction. The onus is on the appellant to prove that the assessment the subject of the objection decision was excessive or otherwise incorrect and what the assessment should have been. As stated by Dowsett J in Weyers v Commissioner of Taxation [2006] FCA 818 at [146], '[t]he Commissioner need not justify the decision, save in response to an appropriate attack upon it'. The grounds that may be relied upon are confined to those raised before the Commissioner in the objection, unless the court otherwise orders. So, the evidence that may be led to discharge the onus is likewise confined. It is a matter for the parties whether they stipulate the correctness of factual matters before the Commissioner. However, in the absence of such matters being agreed or such matters being presented as evidence of the truth of those matters without objection, it is for the appellant to provide the necessary evidence on the hearing before the court on the 'appeal'. The court does not simply receive the record before the Commissioner on the objection and make its decision on that basis. Nor does it consider whether there has been error demonstrated in the decision by the Commissioner. Even less so does it consider whether an amended assessment issued after the objection decision is correct. Therefore, as noted by Greenwood J in Aurora Developments Pty Ltd v Federal Commissioner of Taxation (No 2) [2011] FCA 1090; (2011) 196 FCR 457 at [32], 'an appeal under s 14ZZ(c) bears some of the characteristics of an appeal by way of a hearing de novo in that the taxpayer has an extensive, though not unqualified, right to put additional evidence before the Court'. 48 The above views are consistent with the reasons of Pagone J (Robertson and Bromwich JJ agreeing) in Zappia v Commissioner of Taxation [2017] FCAFC 185 at [3] in considering the nature of the question for the Court hearing a tax appeal (which reasons were cited and applied by the primary judge): Proof of the amount upon which tax was to be levied is not established by showing error by the Commissioner in the evidentiary, factual or legal basis of assessment … Statements made by the Commissioner in an objection decision do not establish the facts upon which tax was to be levied and do not bind the Commissioner, or the operation of the taxing provisions, except (perhaps) where the parties in proceedings have agreed to the facts for the purposes of the proceedings. The recital of facts found in an objection decision are not themselves the facts they purport to recite and their recitation does not bind the Commissioner, or the operation of the taxing statute, where a taxpayer is required to discharge the burden imposed by s 14ZZO to prove that an assessment is excessive. That can be done only by establishing the facts upon which the liability depends. (citations omitted) 49 Having regard to the above matters, we now consider the grounds advanced in support of the appeal as developed in the course of submissions. Ground 1: Alleged failure to identify relevant assessments 50 It was submitted for Mr Bosanac that the primary judge ought to have found that his onus was to prove that the Further Amended Assessments that issued after the decision on the objection were the subject matter of the appeal. 51 The primary judge approached the matter on the basis that it was the Amended Assessments that Mr Bosanac had to show were excessive: at [8]. For reasons we have already stated, the primary judge was correct to approach the matter in the way that he did. 52 The appeal before the primary judge was against the Objection Decision which concerned the Amended Assessments. As was said by Brennan, Deane, Dawson and Toohey JJ in Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd at 479, '[t]he question for the Court hearing an appeal is not whether the grounds of objection have been made out but whether the taxpayer has satisfied the burden of proving that the assessment is excessive'. The assessment is that which is the subject of the objection, not any amended assessment subsequently issued by the Commissioner. 53 Further, even if the primary judge was in error, then the factual findings made by the primary judge apply irrespective of whether the statutory appeal heard by the primary judge was in respect of the Amended Assessments or the Further Amended Assessments that issued after the Objection Decision. In either case, it is clear that the burden upon Mr Bosanac was to demonstrate that each assessment was excessive. The primary judge found that Mr Bosanac failed because he did not establish what his taxable income was. He failed to adduce sufficient evidence to prove his income, both as to its sources and amount. 54 So, even assuming (contrary to the above views) that ground 1 was to be upheld, in order to succeed on the present appeal it would be necessary to show that the primary judge erred in finding that Mr Bosanac had simply failed to demonstrate the nature and extent of his income during the relevant years. Even if it was the Further Amended Assessments that were the subject of the appeal to the primary judge, the same reasoning would apply. 55 Not only is the appeal ground not to be upheld, it does not go anywhere unless the main findings of the primary judge are also demonstrated to be in error. As the balance of these reasons show, no such error has been demonstrated. Ground 2: Whether the statutory basis for the Amended Assessments was of practical significance 56 The primary judge found that the onus that would apply to Mr Bosanac on the appeal was practically the same irrespective of whether the Amended Assessments issued under s 166 or s 167 of the ITAA: at [81]. The primary judge was correct in so finding. His Honour was simply applying what had been decided by the High Court in Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd at 479. Irrespective of whether an assessment issued under s 166 or s 167 of the ITAA, the same burden fell upon the taxpayer of proving that the assessment was excessive. The correctness of the means by which the Commissioner may have reached that assessment was not the issue. The 'appeal' was a proceeding in the Court's original jurisdiction in which the taxpayer had to demonstrate that the amount in the assessment was excessive. If that burden was discharged then the Court had the broad power conferred by s 14ZZP to make such order as it thought fit concerning the Objection Decision, including an order confirming or varying the decision. 57 Although the nature of the task for the Court on appeal is the same irrespective of whether an assessment is the subject of an objection issued under s 166 or s 167 of the ITAA, the differences between the way those assessments are made may mean that there is the possibility that the manner in which it may be demonstrated that an assessment is excessive may be different depending upon the power that is exercised. In the case of an assessment under s 167 of the ITAA there is a lump sum assessment of taxable income rather than the computational process under s 166 of the ITAA of considering allowable deductions that may produce the taxable income. So, for example, in the case of an assessment under s 166 it is possible for the taxpayer to accept aspects of the calculations (assuming the Commissioner does not seek to advance a different position on the appeal) and focus upon whether certain deductions should have been allowed. Whereas, in the case where the assessment is made under s 167, the taxpayer will have to demonstrate by evidence both sides of the equation because the assessment involves the exercise of a power to make a lump sum assessment of the taxable income based on the information available to the Commissioner. The same will be the case when the objection decision is based on calculations or upholds an assessment on a lump sum basis. However, in either case, the burden to prove that the assessment was excessive could not be discharged without proving the taxable income of the taxpayer. It is that burden that the primary judge found that Mr Bosanac had failed to discharge. 58 Reliance was placed by Mr Bosanac on the reasoning of Pagone J in Commissioner of Taxation v Rigoli [2013] FCA 784, considered on appeal in Rigoli v Commissioner of Taxation [2014] FCAFC 29. However, the reasoning in those decisions did not aid Mr Bosanac because the Full Court reiterated the need for a taxpayer to discharge the burden of proving that an assessment was excessive rather than demonstrate that there was some error in the approach by the Commissioner in making the assessment: at [25]-[26]. 59 In oral argument, senior counsel for Mr Bosanac did not object to the finding by the primary judge that the Amended Assessments were assessments under s 167 of the ITAA. Rather, he submitted on appeal for Mr Bosanac that the power that had been exercised by the Commissioner was the power under s 170 of the ITAA by which the Further Amended Assessments were issued. Further, it was submitted that it was the Further Amended Assessments that were the subject of the objection and it was an objection to those assessments that was before the primary judge. This argument is infected with the fallacious reasoning that provided the foundation for the argument in support of ground 1. It should be rejected for reasons already given. 60 Even though ground 2 did not allege any factual error by the primary judge, written submissions were advanced to the effect that the statutory burden was properly discharged by Mr Bosanac. It was said that this was done in two ways: First, where the applicant and his witnesses could directly identify or infer from the source documents that the item did not have the character of income, because it was a transfer between his own accounts or because it was the repayment of advances he made, he did so. No contrary evidence was adduced. Second, the appellant provided evidence to the Court of … consultancy income, share trading income and property income. No evidence was adduced, and no finding was made, that the receipts were derived from a secret source of income. And no finding could be made that the appellant had failed to satisfy the Court that it had a secret source of income from which the remaining receipts were derived. 61 These submissions fall embarrassingly short of what is required to demonstrate factual error. They condescend to no particularity as to the nature of the factual error. They do not engage with all of the evidence before the primary judge. They were not developed or supplemented orally. The primary judge dealt in detail with the evidence that was advanced on behalf of Mr Bosanac concerning his income in each taxation year. The reasons run to some 100 paragraphs. Nothing is said at all about that reasoning. 62 Further, the submissions do not correctly characterise the nature of the evidence before the primary judge. In most instances, the primary judge found that the attempt to reconstruct from bank records after the event what was said to be income was no more than assertion and conjecture. It has not been shown that the findings to that effect were not open on the evidence. It was not a matter for contrary evidence. The question was whether the burden had been discharged by Mr Bosanac. The primary judge found that it had not been discharged. 63 Finally, the question was not whether there was a secret source of income. The question was whether there was credible evidence upon which the Court could find that the assessment was excessive. As the primary judge had found that there was no reliable evidence as to the income of Mr Bosanac, there was no evidence upon which to conclude whether the assessment was excessive. Ground 3: The scope of the controversy for the 2009 year 64 In submissions before the primary judge, counsel for the Commissioner accepted that two amounts totalling $600,000 did not form part of the Mr Bosanac's income for the 2009 year. It was a concession that might have been deployed together with other evidence to demonstrate that the Amended Assessments were excessive. However, the burden remained upon Mr Bosanac to demonstrate that the amounts in which each of the Amended Assessments had been issued was excessive. As we have said, in the circumstances of the case, he had to demonstrate the nature and extent of his income. The trial judge found that he failed to do so. In that context, the concession made by the Commissioner went nowhere in the appeal to the primary judge. 65 The problem for Mr Bosanac is that he failed to demonstrate to the primary judge what his income was in the relevant years, even in general terms. Therefore, he could not demonstrate that the Amended Assessments were excessive. 66 It was alleged that the primary judge erred in 'not identifying that the Commissioner had a duty not to overclaim tax that he determined was not payable and to correct his objection decision and any over-assessment' and erred 'in not defining the controversy for the 2009 year to be whether the amount of reduced income ... was excessive'. 67 The problem for the appellant is that on the factual findings made by the primary judge the point was never reached where there was an identified amount of tax that was 'overclaimed'. In order for that point to be reached it was necessary to compare an amount of income that had been proven by Mr Bosanac to be the income he earned in 2009 and the tax on that income on the one hand with the amount of the assessment on the other. He simply failed to prove the first step. 68 Significantly the written submissions to the primary judge on behalf of the Commissioner made it abundantly clear that the Commissioner maintained that the onus was on the applicant to show that each of the Amended Assessments was excessive and it was for Mr Bosanac to prove the position in relation to his income. The point was put squarely in the following terms: The respondent accordingly puts the applicant to the proof of all facts upon which the applicant seeks to rely to establish: … that the amended assessments were excessive; and (in doing so) … what his taxable income for each of the relevant years actually was. 69 A concession by the Commissioner that a particular amount did not form part of the taxable income of Mr Bosanac in a particular year was an insufficient basis upon which the Court could reach a conclusion as to the actual extent of Mr Bosanac's income in that year. There needed to be evidence establishing the level of income after allowing for the concession. On the unchallenged findings of the primary judge Mr Bosanac failed to demonstrate the extent of his income in any year. Without a basis for such a finding it could not be demonstrated that the assessments were excessive. In particular, having regard to the character of the appeal, it was not sufficient (in the absence of a concession or stipulation by the Commissioner) to proceed on the basis that the conceded amount may simply be deducted from the amount of income determined in the Objection Decision. The findings or conclusions upon which the Objection Decision were founded did not form part of the evidence before the primary judge. 70 For Mr Bosanac reliance was placed upon the decision in Federal Commissioner of Taxation v Mantle Traders Pty Ltd [1980] FCA 156; (1980) 49 FLR 256 to support a submission that there were particular items of assessable income that were identified by the Commissioner to support the Amended Assessments and before the primary judge those items were in dispute. It was further submitted that if it was demonstrated that those particular 'ingredients' should be altered because they were demonstrated to be excessive then as 'the other ingredients remain static' the primary judge should reach a different number for taxable income to that found by the Commissioner in the Objection Decision. On that basis it was submitted that 'three big ticket items plus small items' were all that was disputed and it was necessary for the primary judge to consider each of those matters and not approach the question by reference to whether the assessed amount in each of the Amended Assessments was excessive. 71 The decision in Mantle Traders provides no support for such an approach. It concerned an appeal from a decision made by the Board of Review in respect of an objection under statutory procedures which applied at that time (since repealed). Certain preliminary questions as to the conduct of an appeal from a decision of the Board of Review were considered by a court comprising Bowen CJ, Franki and Brennan JJ. They concerned, amongst other things, whether the evidentiary onus on the hearing of the appeal was to be borne by the appellant (in that case the Commissioner) or the respondent (in that case the taxpayer) and whether the Commissioner could simply tender the assessments and thereby require the taxpayer to provide evidence that they were excessive or wrong. 72 Noting that the relevant provisions have since been repealed, they provided for an appeal if the decision of the Board of Review involved a question of law. The nature of the appeal provided for was described as being by way of a rehearing in which the court on appeal would receive the record before the Board of Review being the notice of objection, the Commissioner's decision on the notice, the request to refer the matter to the Board, the decision of the Board and its reasons (if any). However, these views are a function of the nature of the appeal provided for at that time. 73 There was also an express provision (s 190(b)) to the effect that on an appeal the taxpayer had the burden of establishing that the assessment was excessive. The question was whether the Commissioner had any burden to discharge when the Commissioner commenced the appeal. It was in that context that Brennan J stated at 272-275: The burden of "establishing a case" requires a party on whom the burden is cast to prove the facts which are elements of that party's claim, his entitlement to relief or his defence, as the case may be. The burden imposed by s.190(b) upon a taxpayer is distributive, extending to proof if any fact which it is necessary for the taxpayer to establish in order to displace the assessment …, and he bears the burden of proving facts to show that the Commissioner's assessment is in error because it reflects the erroneous inclusion of a particular amount in his assessable income, or the erroneous exclusion of a particular amount from his allowable deductions. … … it may be said that an appeal under s.196(1) connotes a hearing and determination by the court of issues which were before a Board of Review in the proceedings in which the decision under appeal was made. The appeal against that decision is determined by resolving the same issues by reference to the evidence adduced before the court. 74 Brennan J also noted the significance of the fact that the proceedings before the Board were administrative in nature and the proceedings on appeal to the court were judicial in nature and the appeal was to be conducted 'as an original cause in the court, and when the issues before the court involve the ascertainment of facts the court ascertains the facts for itself upon the evidence laid before it, and not by appellate review of the findings made by the Board' (citations omitted). 75 There is no support to be found in these views for the submission advanced for Mr Bosanac in the present appeal. 76 It was also submitted that the assessment was 'excessive to the extent of $600,000'. This too proceeds on a false premise. The question was not whether the assessment could still be supported by the reasoning used to make the assessment. The question was whether the amount of the assessment was excessive. Unless and until Mr Bosanac had led evidence to show the extent of his income and his tax liability in respect of that income, the only finding to be made was the one made by the primary judge, namely that the onus had not been discharged by the taxpayer. Ground 4: Alleged failure to consider whether receipts were income 77 Evidence was led before the primary judge of amounts received by Mr Bosanac as deposits into his bank account. It was these unexplained deposits that had been significant in making the Amended Assessments and had been the subject of much consideration on the objection. However, once the matter came on appeal to the primary judge the question was not how much the Commissioner might assess, but rather whether the amount of the assessment was excessive. 78 The appellant asserts, contrary to the unchallenged findings of the primary judge, that Mr Bosanac 'adduced comprehensive evidence of all his sources of ordinary income for the years in issue' and, on the basis of that assertion, that the court was required to work out his income. 79 Strikingly, the particulars to ground 4 state in paras 16 and 17 that: The Court should have found that there was no probative evidence before it that the unexplained amounts were amounts derived from personal exertion or property or, if there was, that the contrary evidence of the appellant was of greater weight. The Court erred throughout the judgment in adverting to conjecture or possibilities adverse to the appellant's evidence. It should have decided the facts in issue by reference to the proper civil standard of proof. It erred in treating the Commissioner's assertions of fact having statutory weight (see ground 6 below). In particular, having admitted as the appellant's evidence the Credit Suisse documents that the appellant swore recorded the appellant's share trading activities and having declined to accept the guidance of the appellant's tax accountant - Mr Roos - as to the profits and losses that those documents record because he was not an independent expert, the Court was duty-bound, despite the great mass of evidence before it, to work out, on the balance of probabilities, what the share trading profits were for the relevant years (or adjourn the proceedings to explore an alternative means by which it could make findings of fact). It was not open to the Court, in rejecting Mr Roos' characterisation of some of those profits as capital gains rather than income, to decline to find as a fact what were the amounts of share trading income. 80 The problem with all of these 'particulars' is that they fail to acknowledge the significance of the burden that was on the taxpayer throughout. It was not for the Commissioner to prove anything. The evidence for Mr Bosanac was not accepted as establishing what his income was and therefore there was no means of undertaking any calculation. 81 Reliance was placed upon Federal Commissioner of Taxation v Hines (1952) 9 ATD 413. However, that was a case where the evidence of the taxpayer was accepted and there was nothing to suggest that there was any other source of income on the part of the taxpayer. Here, the primary judge did not make findings to the effect that the receipts in the bank accounts were the extent of Mr Bosanac's income from his share trading, consulting and other activities. 82 It was submitted that the Court in the proper exercise of its jurisdiction would have been assisted by the evidence of Mr Roos, even if part of it was to be treated as submission. Mr Roos was the accountant for Mr Bosanac from mid-2015. He was not his accountant at the time of the deposits. The primary judge described the evidence of Mr Roos in the following way at [96]: In his affidavit, Mr Roos deposed that he had identified the income included by the Commissioner in the applicant's assessable income, had gone through business records supplied by the applicant to him, including his domestic bank account statements and his Credit Suisse account statements, and from them had sought to ascertain the applicant's taxable income in each year of dispute. He exhibited a series of spreadsheets and worksheets, including emails, annual reports of certain companies, and more detailed calculations, all of which was said to support his conclusions concerning the applicant's taxable income. There were about 199 pages of these, a great deal of which was entirely illegible. A legible copy of the working papers was adopted by Mr Roos when he gave his evidence. I did not admit this material into evidence but marked it separately. I treated the spreadsheets and working papers as a submission. 83 The primary judge found that the burden of proving the taxable income of Mr Bosanac was not discharged by calling an accountant to tell the Court what, in the accountant's opinion, was the taxable income of Mr Bosanac because evidence of that kind went to the ultimate issue: at [100]. A claim that the evidence should be received under s 50 of the Evidence Act 1995 (Cth) was also rejected: at [101]-[104]. There is no challenge to the finding of the primary judge that the evidence of Mr Roos should not be accepted. 84 There was no evidence demonstrating the factual matters assumed by Mr Roos. There were no books or records maintained at the time. In the absence of such material there was no foundation for the submissions said to be advanced by Mr Roos. Ground 5: The requirement for a wide survey of business activities 85 The primary judge found at [73] that: I have concluded that the applicant has failed in relation to each year of income in dispute to demonstrate that any of the amended assessments issued to him were excessive. That is because, in addition to rejecting his evidence concerning the nature of the deposits (other than in relation to the car), the applicant failed to positively adduce evidence as to the quantum and nature of his foreign and domestic earnings in each year of dispute. In my view, the applicant needed to go further that his attack on the basis upon which the Commissioner had issued the amended assessments to him, and positively prove what his taxable income was in each year. He needed to lead evidence constituting a wide survey and exact scrutiny of his business activities. This he never did. 86 The language 'wide survey and exact scrutiny' reflects the language used in Federal Commissioner of Taxation v Montgomery [1999] HCA 34; (1999) 198 CLR 639 at [69] by Gaudron, Gummow, Kirby and Hayne JJ to describe the nature of the forensic task to be undertaken when considering whether a receipt is income or capital in character (adopting terminology from Western Gold Mines No Liability v Commissioner of Taxation (WA) (1938) 59 CLR 729). 87 For Mr Bosanac it was submitted that a wide survey and exact scrutiny of the business affairs of Mr Bosanac was not what was required in order to determine whether a particular receipt said to be the repayment of a loan was income. In such an instance it was said that all that was required was that the amount was repayment of a loan and no more, relying on Commissioner of Taxation v Sharpcan Pty Ltd [2018] FCAFC 163. However, that was a decision in which the approach urged by the High Court was applied: at [89]-[93]. 88 In any event, the ground fails because it is premised on a view that there was a finding by the primary judge that there was a repayment of a loan (or a successful challenge to a finding that a deposit was not a repayment of a loan). Neither is the case. Ground 6: Alleged error in characterising evidence as assertion and assertion as evidence 89 This ground has two parts. As to the first part, the primary judge said at [56]: This is a case where there is only assertion, or evidence upon which I can give no, or very little, weight. 90 In making that statement his Honour was contrasting the case advanced by Mr Bosanac with authorities where there was 'inexact evidence' or a great mass of evidence in which patterns could be observed. The authorities were Krew v Federal Commissioner of Taxation (1971) 71 ATC 4213; (1971) 2 ATR 230 and Ma v Federal Commissioner of Taxation (1992) 37 FCR 225. His Honour gave the following reasons to explain what he meant at [55]: In contrast, here, very little evidence was led about how the applicant earned his income, and what corporate structure he had in place. I do not know how the Singapore companies traded in shares. I do not know why those entities acquired or sold any particular class of shares. I do not know whether the four companies were the only entities comprising the so-called offshore structure. In cross-examination, the applicant appeared to accept that one of the entities through which he traded in shares was called "Devonport Traders Ltd" which had an address based in the British Virgin Islands and a "please reply address" in Lichtenstein. The applicant led no evidence about this entity. 91 The point being made by the primary judge was not about corroboration as the submissions advanced for Mr Bosanac intimated. It was a point about a lack of particularity and comprehensiveness in the evidence given by Mr Bosanac. Once issues arose about possible sources of income he had to be specific about what had occurred. Otherwise, his 'evidence' was not an account of his recollection of what had occurred. It was properly characterised as no more than an assertion that the amounts received into the bank accounts were his income in the relevant years. Further, the evidence of Mr Bosanac as to those amounts was carefully traversed by the primary judge and findings were made exposing the insufficiency of that evidence. No doubt the reference to 'evidence upon which I can give no, or very little, weight' is a reference to this earlier analysis dealing with the 74 entries listed in the bank account records: at [16]-[51]. 92 In those circumstances, the submissions for Mr Bosanac needed to give details as to why the reasoning process of the primary judge was said to be in error in the particular circumstances of the case. In other words, they needed to demonstrate why the kind of reasoning adopted in the authorities relied upon was apposite in this case. There was no argument of that kind. The submission assumed (wrongly) that there was general evidence from which an inference may be drawn concerning the taxable income of Mr Bosanac. 93 The appeal ground set out a list gainsaying a number of the factual findings made by the primary judge concerning the evidence of Mr Bosanac. The submissions concerning the ground failed to condescend into any particularity as to why there was error in relation to any of the findings. Mr Bosanac had the burden of demonstrating error. The case put reduced to no more than asserting that there was error as to each of the findings. Error has not been demonstrated in the primary judge's characterisation of much of what was advanced by Mr Bosanac as being 'assertion' nor in the findings as to the matters the subject of evidence given by Mr Bosanac. 94 It was also submitted that the Commissioner asserted without any evidence that Mr Bosanac 'might have a secret source of income'. However, that statement simply reflects the finding that the extent of Mr Bosanac's income had not been shown. 95 Finally, as to the grounds of appeal concerning fact finding by the primary judge, in oral submissions senior counsel for Mr Bosanac stated that the 'ultimate submission' was that the overall assessment of the facts by the primary judge 'was infected by extraneous matters and that it may not be useful to criticise one particular aspect of the fact finding'. It was submitted that it might be more appropriate, if the submission concerning the nature of the jurisdiction being exercised was upheld, for the matter to be remitted to the primary judge. Otherwise, reliance was placed on the written submissions (which have been addressed above). It can be seen that in the manner in which the case was put orally, the factual grounds of appeal were substantially subsumed in the claims made about the nature of the original jurisdiction being exercised by the primary judge. For reasons already given, those grounds lack merit. Ground 8: Alleged inferences drawn from evidence of the wealth of Mr Bosanac 96 At [57], the primary judge said: Compounding the problem for the applicant is that, in cross-examination, the size of his considerable wealth was exposed, if only in part. Three loan applications to Westpac dated 8 February 2006, 24 October 2006 and 20 June 2007 respectively, and signed by the applicant on each occasion, were tendered into evidence. In cross-examination, the applicant agreed that the financial details comprised in each application were the product of statements he had made to Westpac. The first application disclosed that he and his former wife owned property assets valued at about $8,475,000, shares valued at about $24,841,100 and motorcars to the value of about $281,000. The applicant further accepted that the shares he had valued included those held by him via his Singapore companies (the value of these shares included certain shares he thought he was to receive, but which he did not). The application also contained statements made by the applicant to his bank that he earned monthly income of $32,047 and that his annual gross income was $772,000. The other two forms contained similar statements. In cross-examination, the applicant did not dispute the accuracy of these figures save for one possible mistake in the third form. The size and nature of these earnings and assets required proper explanation; no such explanation, however, was to be found in the affidavits relied upon by the applicant. 97 It was said that the court erred in treating gross assets as considerable wealth and failed to address the explanation given by Mr Bosanac that the assets were debt funded with a $3.5 million facility and car finance. Neither of these matters demonstrate error by the primary judge in characterising the level of wealth described above as 'considerable'. The point being made by the primary judge was that the information provided to Westpac to support loan applications demonstrated that Mr Bosanac had considerable earnings and assets which required explanation. They required explanation because of the prospect that the assets represented accumulated past earnings after expenditure. There was logic in that analysis and the approach of the primary judge in that regard has not been demonstrated to be in error. There was no error in bringing that evidence to account as reinforcing the conclusion by the primary judge that Mr Bosanac needed to give a full account of his income sources, before he could reach conclusions as to whether any of the deposits received into the bank accounts were truly repayments of loans as Mr Bosanac claimed and not taxable income. 98 Before the primary judge, Mr Bosanac gave evidence that he had earned income from share trading and consulting work. He also said he earned income from what he described as 'the property side of things that I was doing as well, on occasion'. Mr Bosanac agreed that he knew in 2014 and 2015 that consultancy fees he was earning from certain companies were subject to tax in Australia. In all those circumstances, he could only discharge the obligation of demonstrating that the Amended Assessments were excessive by establishing the facts upon which the extent of his admitted liability to pay tax depended. Mr Bosanac had to prove affirmatively the correct amount of taxable income and of tax: W R Carpenter Holdings Pty Ltd v Commissioner of Taxation [2006] FCA 1252 at [118]. The onus to show that the assessments were excessive could not be discharged by showing that there was error in the basis of the assessment: Zappia at [3]. Therefore, Mr Bosanac could not discharge the obligation to demonstrate that the assessments were excessive by showing that the receipts into his bank accounts were not income. Rather, he had to show the amount of the admitted income that he had earned and the tax that was payable on that income. In that context, otherwise unexplained wealth assumed significance for all of his evidence. 99 It was submitted orally that there was error because an inference could be drawn from the wealth of Mr Bosanac that he had the capacity to make loans which were repaid. The submission to that effect assumed, correctly, that the evidence demonstrated that Mr Bosanac had accumulated considerable personal wealth. The submission fails to engage with the finding made by the primary judge which concerned the significance of the fact that the source of the wealth was not explained and that was a matter which was relevant in evaluating whether to accept the claim that the deposit into the bank account was a loan and not income. Ground 12: Alleged erroneous application of the decision in Perisher Blue 100 In written submissions for Mr Bosanac it was submitted that the Court, having rejected his evidence as mere assertion, then allowed a perceived 'risk' that the appellant had, by discussing matters with his witnesses, infected some of them with his hopes and expectations as a basis for rejecting their evidence as 'all the more unreliable'. It may be noted at the outset that nothing turns on this ground. The criticised observations of the primary judge follow an express finding that Mr Bosanac failed to discharge his onus of providing that any of the deposits were repayments of loans he had advanced to third parties (at [58]) and the rejection in terms of the affidavit evidence given by the witnesses who purported to corroborate the evidence of Mr Bosanac (at [60]-[69]). Those findings have not been successfully challenged in this appeal. 101 After making those findings the primary judge found that Mr Bosanac had read the affidavits of other witnesses and had spoken to them about some of the transactions he was endeavouring to prove. In his evidence Mr Bosanac said that he did so because he was 'trying to identify deposits with Mr Roos': that is to say together with Mr Roos he was trying to find out the reason for the deposits into his bank accounts. The primary judge found that 'there is a risk that because of the conversations [Mr Bosanac] had with [the witnesses], the evidence those witnesses gave became infected with [Mr Bosanac's] objectives or hopes': at [71]. His Honour then observed that was a matter that rendered their evidence all the more unreliable citing Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 at [30]. On that basis, the primary judge found that the evidence of other witnesses called to corroborate Mr Bosanac's account did not progress his claim in any meaningful way: at [72]. 102 The observation by the primary judge that there was a risk from conversations between a party to litigation and witnesses who are advanced to corroborate the party's account is unremarkable. It did not require support as a matter of law from the decision in Perisher Blue. It was submitted that it was a matter for counsel for the Commissioner to explore the risk in cross-examination of the witnesses concerned and that he chose not to do so. This submission ignores the fact that the evidence of the conversations by Mr Bosanac with other witnesses arose in cross-examination of Mr Bosanac by counsel for the Commissioner. Therefore, it was a matter raised by the Commissioner. The evidence given in answer indicated that Mr Bosanac suggested to a Mr Lambrecht (a witness before the primary judge whose evidence was relied upon by Mr Bosanac) a reason for a particular deposit received with a designation relating to Mr Lambrecht. It also indicated that Mr Bosanac spoke to other witnesses to assist him in working out what the transactions that led to deposits were about. 103 The question is whether this evidence could be used by the primary judge to support a finding that the evidence of those other witnesses may not be reliable when it came to corroborating the account of Mr Bosanac without it being put to those witnesses in some way. It seems to us that it could. By raising the matter with Mr Bosanac in cross-examination, the issue was flagged. It was not necessary for the primary judge to make an adverse finding as to the evidence given by other witnesses. The vice of a party to proceedings engaging in conversations with prospective witnesses concerning the evidence that they might give in proceedings is the subtle way in which the evidence may be tainted by suggestions made by the interested party in the course of the conversations. Ordinarily witnesses are not asked leading questions in the course of giving evidence. Likewise, a legal practitioner should not pose leading questions when preparing an affidavit or witness statement. These rules are designed to assist in preserving the integrity of the account of the witness. They may be compromised if a party engages in conversations with witnesses of the kind described by Mr Bosanac. It is not necessary to demonstrate, in addition, specific respects in which the evidence was tainted. It would be necessary to cross-examine other witnesses about the conversations with a party if it was to be submitted ultimately that they were not to be believed or that their evidence had been concocted or suborned. However, where the point of concern was the subtle effect that such conversations may have, all that need be demonstrated was that the conversations occurred. Given the cross-examination of Mr Bosanac, his counsel was on notice of that point. Ground 13: Alleged statutory double jeopardy 104 Ground 13 alleges that there was error by the primary judge in failing to find that Mr Bosanac was not liable for penalties under the TAA because he had been convicted in respect of his failure to lodge tax returns and the imposition of further civil penalties would infringe the rule against double jeopardy. 105 Senior counsel for Mr Bosanac accepted that ground 13 raised 'a new point'. However, it was said that similar submissions to those relied upon to support ground 13 had been advanced below to support claims that there should have been a remission of penalties because of Project DO IT. Therefore, so it was submitted, the factual issues concerning the nature of the penalties imposed for failing to lodge tax returns had been in issue below and there would be no prejudice if those matters were now relied upon to support the new ground. In effect, the ground was said to raise a legal point only, it was said to be an important point bearing upon the justness of the penalties and it was said that there would be no prejudice to the Commissioner if it was entertained in the appeal. 106 There was no application for leave to adduce further evidence in support of the ground. Therefore, the evidence is confined to that adduced before the primary judge in circumstances where the issue was not raised. Indeed, it was submitted for Mr Bosanac that there was no dispute as to the factual position. 107 Before the primary judge, there was both an appeal against the Objection Decision and an application under s 39B of the Judiciary Act 1903 (Cth). It was submitted for the Commissioner that the double jeopardy point did not arise under the appeal concerning the Objection Decision and could not arise in the s 39B application. The appeal dealt only with the Objection Decision and was confined to the grounds advanced before the Commissioner on the objection. The s 39B application complained only about the conduct of the Commissioner in not affording to Mr Bosanac the treatment announced as part of Project DO IT. It alleged that there was reviewable error in the failure by the Commissioner to treat Mr Bosanac as falling within the terms of Project DO IT when it came to remission of penalty. The submissions for Mr Bosanac have not demonstrated how the double jeopardy point might be raised given the form of the s 39B application before the primary judge. Therefore, the submission for the Commissioner that the s 39B application was concerned only with claims made as to the conduct of the Commissioner given the commitment announced as part of Project DO IT and did not touch or concern matters of double jeopardy should be upheld. 108 It was also submitted for the Commissioner that the double jeopardy point was not raised below in either the appeal or the s 39B application. As we have noted, this is conceded but it is submitted for Mr Bosanac that the same matters were raised in submissions dealing with the s 39B application. 109 For Mr Bosanac, reliance was placed upon submissions advanced orally in reply before the primary judge as the basis for the claim that the factual matters on which Mr Bosanac relies in the present appeal to support ground 13 were live before the primary judge. Those submissions appear at pages 493 to 496 of the transcript of the hearing before the primary judge. However, those reply submissions dealt with the circumstances in which the Commissioner came to issue the Amended Assessments. The thrust of the oral reply submissions was an allegation that the Commissioner withheld the issue of the Amended Assessments in order to first issue assessments based upon the late tax returns expected to be lodged by Mr Bosanac. When those tax returns were finally lodged, a number of them returned nil amounts as taxable income. It was said that the Commissioner then issued assessments in respect of each of the years based upon the returns that were lodged (including the nil returns). The assessments were then amended based upon the audit that had been conducted. The submission advanced before the primary judge was to the effect that the Amended Assessments were delayed so that there was an under reporting of income (even though, before the tax returns were lodged and the original assessments issued, the Commissioner intended to proceed to assess taxable income based upon the audit in the greater amounts stated in the Amended Assessments). 110 These matters are re-agitated to some extent in the present appeal in support of later grounds. However, what is significant for present purposes is that the above submission raises no issue as to the circumstances surrounding the prosecution of Mr Bosanac for failing to lodge the tax returns, the nature of that prosecution or what was sought by way of relief. 111 In written closing submissions for Mr Bosanac to the primary judge dated 30 April 2018, it was said that the Commissioner could have issued a default assessment for each of the taxation years before Mr Bosanac belatedly lodged his tax returns. If a default assessment had issued then a 75% penalty could have been imposed. It was submitted that the Commissioner chose not to do so because Mr Bosanac was being prosecuted for his failure to lodge those returns in the Magistrates Court in Western Australia. The returns were lodged on 25 February 2015. In that context the written submissions stated: 'The Applicant has been punished in the Magistrates Court of WA for his sins for the period up to 24 February 2015'. It was then submitted that administrative penalties could only be assessed for the statements made in the tax returns 'as s 284-75(1) clearly pronounces'. Submissions were then advanced as to why the matters stated in the tax returns did not involve an intentional disregard of the tax law and there were explanations proffered for the contents of the tax returns. Those matters were rejected by the primary judge and are not challenged on appeal. 112 Significantly, what was advanced in the written submissions to the primary judge was a claim that the penalties dealt with in the Objection Decision concerned a separate act from the failure to lodge the tax returns, namely the lodgement of the tax returns on 25 February 2015. On that basis it was submitted that the penalties dealt with in the Objection Decision (and to be considered by the primary judge on appeal from that decision) should relate only to the conduct of Mr Bosanac when he lodged his returns and not the earlier failure to lodge which had been the subject of penalties in the Magistrates Court. 113 Therefore, the double jeopardy submission now sought to be advanced is directly contradictory to the way the case for Mr Bosanac was advanced before the primary judge. What is now sought to be argued by ground 13 is that the delay in lodgement of the returns and the content of the returns when lodged were together the same act because a penalty that could have been imposed by the Magistrates Court for failing to lodge the return was a penalty of up to 200% of the tax shortfall. By reason of the availability of that penalty for a prosecution for failing to lodge a tax return it appears that it is claimed that the act for which Mr Bosanac was prosecuted in the Magistrates Court included the shortfall in tax payment. It is not possible to deal with that argument without dealing with the detail of what occurred in the prosecution and the position in relation to penalties sought by the Commissioner. As the point was not advanced below, that full detail is not available in the present appeal. 114 In all the above circumstances, leave to raise ground 13 should be refused. The events surrounding the prosecution of Mr Bosanac in the Magistrates Court were not in issue before the primary judge. They could not have been raised in the appeal before the primary judge. They are also outside the subject matter of the s 39B application. At most the submission to the primary judge relied upon the bare fact that there had been a prosecution for failing to lodge tax returns and a penalty imposed. The matters sought to be raised by ground 13 depend upon the detail of what occurred in relation to the prosecution for failing to lodge tax returns, particularly the nature of the charge, the acts said to constitute the offence and, most significantly, the penalties that the Commissioner may have sought. Those matters were not in issue before the primary judge and Mr Bosanac should not be allowed to raise a new ground which depends upon the detail of what occurred concerning the prosecution. 115 In any event, on the evidence that is before the Court, Mr Bosanac was convicted of a failure to lodge tax returns. The Objection Decision concerned penalties imposed due to false or misleading statements made in the tax returns when lodged. These are separate matters arising from separate acts. If Mr Bosanac had lodged proper tax returns when he eventually came to lodging them then there would have been no issue of further penalty. It is that separate act that gave rise to the imposition of penalties. The penalties were upheld by the Objection Decision and the primary judge. 116 The fact that the penalties to which a taxpayer may be exposed for two separate acts may both include an amount determined by reference to the tax payable does not expose the taxpayer to a form of double jeopardy. Once the penalty is imposed in relation to the first matter it will likely be a substantial factor to be considered when imposing a penalty in relation to the second act. All the more so where the second act gives rise to a civil penalty only. However, the fact that the penalties in both matters are determined by reference to the level of taxable income does not mean the penalties are imposed in respect of the same matter. In any event, the TAA ensures that a penalty imposed under a taxation law other than for an offence is remitted by operation of the Act: s 8ZE. 117 For Mr Bosanac reliance was placed upon the decision in R v Hoar [1981] HCA 67; (1981) 148 CLR 32, but that was a case where the two liabilities were sought to be imposed in respect of the same act for statutory offences created by separate provisions in the same legislation. 118 Therefore, no merit was demonstrated in the matters sought to be raised in support of ground 13 and that is a further reason why leave to raise the ground should be refused. Grounds 14 to 16: The culpability of Mr Bosanac as to content of tax returns when lodged 119 Ground 14 claims that the primary judge should have found that the Commissioner did not rely on the tax returns of Mr Bosanac because, by that time, the Commissioner had already formed the view in the audit that the appellant should be assessed personally on income that Mr Bosanac had said would be disclosed through another company (Dominion) and through Project DO IT. 120 Ground 15 claims that as the primary judge only found that Mr Bosanac acted recklessly in lodging his tax returns, there was no finding that he had intentionally disregarded the law and therefore the primary judge should have found that a penalty at the base level of 75% should not have been assessed. 121 Ground 16 claims that the primary judge should have found that Mr Bosanac honestly believed at the time of lodgement of his tax returns that his consultancy income was to be disclosed as Dominion's income (relying on a communication between the tax agent and the auditor of 11 June 2014) and his foreign income was to be disclosed separately under Project DO IT. It was further claimed that the primary judge ought to have found that the subjective intention elements of recklessness and intentional disregard did not apply and the level of culpability of Mr Bosanac was a failure to take reasonable care which carried a 25% penalty. 122 The written submissions in support of the above three grounds dealt with them together. They contended that because Mr Bosanac had failed to lodge tax returns over 10 years in order to avoid tax it was inherently improbable, and unsupported by evidence, that Mr Bosanac would 'continue this ruse once he had been convicted'. It was also said to be 'even less probable' that the Commissioner who had undertaken the audit and formed the view that Mr Bosanac had avoided significant tax would rely on the returns lodged that showed nil income. It was submitted that the Commissioner had not relied on the tax returns actually lodged and mechanically issued nil assessments and followed them up with the Amended Assessments to reflect views that had already been reached through the audit. 123 It was then said that the Commissioner knew when the tax returns were filed that Mr Bosanac's then tax agent was going to disclose the consulting income in other returns (on the basis that it was income received by Dominion from Greenday) and that he had significant other offshore income that he wished to disclose separately under Project DO IT relying on an alleged communication on 19 December 2014. As a result of these matters it is said that there was no intentional disregard in making the statements in the tax returns when lodged. 124 It was said that the finding of reckless non-disclosure made by the primary judge should not have been made. 125 In oral submissions, it was said that immediately prior to the lodgement by Mr Bosanac of his tax returns in 2015, the Commissioner was ready to issue default assessments. Instead of doing so, the Commissioner waited until Mr Bosanac had put on his own tax returns and those, for a number of years, showed nil tax. The Commissioner issued assessments based upon those returns. In those years where nil tax was included in the returns, the Commissioner issued Amended Assessments. It was submitted that in those circumstances the Commissioner could not be said to have relied upon the tax returns lodged by Mr Bosanac and therefore it could not be said that the assessments arose from any intentional disregard of the law by Mr Bosanac. The submission, framed in that way, raised a causation point. It suggested that there could be no penalty assessed on the basis of an intentional disregard of the law if the Commissioner had not been shown to be actually misled by the tax returns as lodged (even if the content of those returns and the circumstances of their lodgement demonstrated an intentional disregard of the law on the part of the tax payer). 126 The submission appeared to be advanced on the basis that there was error by the primary judge in failing to find that the Commissioner did not in fact rely on Mr Bosanac's tax returns showing nil income. If that finding had been made then, according to the argument, as a matter of law the proper basis for assessment of a penalty at the level of 75% had not been demonstrated. 127 The above attempt to challenge factual findings by the primary judge is unorthodox. A challenge to a factual finding requires an appellant to point to all of the evidence that bears upon that particular issue and then demonstrate error by the primary judge in making a particular finding given all of the relevant evidence. Instead, here the submissions seek to isolate a particular point or two considered to be against a finding made and then assert that there should have been a different finding. 128 Further, the submissions fail to recognise the nature of the task that fell upon Mr Bosanac before the primary judge. It was for Mr Bosanac to demonstrate on the fresh hearing before the primary judge that the assessment of penalty was excessive and as to any other aspect the taxation decision the subject of the Objection Decision should not have been made or should have been made differently: s 14ZZO. 129 However, there is an even more fundamental problem with most of the submissions advanced as to grounds 14, 15 and 16. They do not reflect the actual findings by the primary judge. Relevantly, those findings were: (1) the statement in an email dated 11 June 2014 that the tax agent for Mr Bosanac had indicated that funds 'received by Dominion are income to Dominion from Greenday' simply recorded a matter that was communicated by Mr Bosanac to his tax agent: 'Yet [Mr Bosanac] now admits that he knew in 2014 that this income was taxable in his hands' (at [146]); (2) as to the preparation of his tax returns: 'I have no hesitation in finding that the applicant was at least wilfully blind in relation to the preparation of his returns' (at [148]); (3) as to the content of the returns filed by Mr Bosanac for the 2006 to 2013 years: 'I nonetheless also hold that he had knowledge that the contents of the returns … contained deliberate false information' (at [148]); (4) Mr Bosanac knew that he was obliged to declare his foreign and consulting income (at [148]); and (5) Mr Bosanac did not discharge his onus of showing that there was no intentional disregard of his taxation obligations (at [150]). 130 The submissions advanced in support of the three grounds are wholly inadequate to demonstrate error in the decision of the primary judge in making the above factual findings. 131 As to the submission to the effect that the Commissioner was not misled by the tax returns of Mr Bosanac, the Court was not taken to any evidence to support the submission. 132 As to the claim that the primary judge only found that Mr Bosanac acted recklessly, there was an express finding that Mr Bosanac knew the income was taxable in his hands and he was wilfully blind as to his obligation. Wilful blindness involves a conscious turning away from that which is known to be likely to be found upon inquiry and is not a finding of mere recklessness. 133 As to the imposition of a base penalty amount of 75%, Schedule 1 of the TAA provides in s 284-90, item 1, that a base penalty amount of 75% of a 'shortfall amount' applies where: as a result of a statement described in subsection 284-75(1) or (4) [there is a shortfall amount] and the amount, or part of the amount, resulted from intentional disregard of a taxation law … by you or your agent. 134 Section 284-75 provides that a tax payer is liable to an administrative penalty if a statement is made to the Commissioner and the statement is false or misleading in a material particular. 135 There is a 'shortfall' amount if an item in the table set out in s 284-80 applies. It includes a case where the tax related liability for an accounting period worked out on the basis of a statement is less than it would be if the statement were not false or misleading. 136 These provisions do not require that the Commissioner be actually misled by the statement made in intentional disregard of a taxation law. Rather, they focus upon the character of the statement. 137 It must be made under a taxation law. It must be false or misleading in a material particular. The false or misleading aspect must result in a shortfall amount and, for a base penalty of 75% of the shortfall amount to apply, it must have resulted from an intentional disregard of a taxation law. 138 Therefore, the question whether the Commissioner may or may not have been actually misled by the statement was irrelevant when working out the base penalty amount. It follows that the grounds do not demonstrate error by the primary judge. Ground 17: Alleged error as to 20% uplift in penalties for recalcitrance 139 The matters advanced in support of this ground were confined to written submissions. 140 The penalties found to have been properly imposed upon Mr Bosanac included a 20% uplift for recalcitrance. It was submitted for Mr Bosanac in support of ground 17 that upon the proper construction of s 284-220(1)(c) of Schedule 1 of the TAA (being the relevant source of the power to impose the uplift) there had to be a prior imposition of a penalty. Therefore, so it was submitted, there could not be both a penalty and a 20% uplift imposed in relation to the penalty at the same time: yet that is what occurred in relation to the penalties imposed upon Mr Bosanac. 141 Section 284-220(1)(c) provides that the base penalty amount is to be increased by 20% if: [T]he base penalty amount was worked out using item 1, 2 or 3 of the table in subsection 284-90(1) and a base penalty amount for you was worked out under one of those items previously 142 Section 284-220 as a whole provides for a base penalty amount to be increased by 20% in a number of circumstances. Others include where the taxpayer took steps to prevent or obstruct the Commissioner from finding out about a shortfall amount or a failure to correct a false or misleading statement within a reasonable time of becoming aware of the position. It forms part of subdivision 284-D which contains provisions which are common to subdivisions 284-B and 284-C and deals with increases or reductions in the base penalty amount. Subdivision 284-B states the circumstances in which there will be liability to a penalty: s 284-75. It then defines the term 'shortfall amount': s 284-80. It describes how a base penalty amount is worked out: s 284-90(1). There is a separate set of provisions in subdivision 284-C that deal with penalties for schemes. It too describes the manner in which a base penalty amount will be worked out in different circumstances. Therefore, in context, it is apparent that s 284-220 is concerned with the imposition of a further penalty where there is an additional aspect to the particular conduct of the taxpayer beyond that which gives rise to a base penalty amount that gives rise to further culpability. 143 In the case of s 284-220(1)(c) the additional element leading to a 20% uplift is described as a base penalty amount having been worked out under item 1, 2 or 3 of the table in s 284-90(1) 'previously'. Each of items 1, 2 and 3 concern instances where there is a 'shortfall amount'. Grammatically, the term 'previously' may mean that the penalty was worked out earlier in time or it may mean that it was worked out in respect of a shortfall amount that arose for a previous tax liability. In either case there is an additional aspect to the conduct that could mean that there is additional culpability. In the first instance there is the repetition of the conduct after an assessment has issued. In the second instance there is a repetition of the same conduct. 144 For the following reasons, the construction that the additional penalty amount applies where the shortfall amount arose for a previous tax liability is to be preferred. 145 The submission advanced for Mr Bosanac would mean that the 20% uplift would only apply if a taxpayer had been the subject of an assessment issued on an earlier date. On the logic of the submission, in a case like the present where tax returns for a number of years were lodged on the same date and assessments in respect of each return year issued on a single later date there could be no 20% uplift. However, if the Commissioner adopted the administrative practice of issuing each assessment on subsequent days, the 20% uplift would apply. It is unlikely that there was intended to be different penalty consequences in the two instances because the conduct of the taxpayer in both instances is equally culpable. 146 Further, within the context of a self-assessment regime, it is not the case that the taxpayer is dependent upon the assessment in order to know and understand the extent of their tax liability. Items 1, 2 and 3 deal with instances where the disregard of taxation laws has been intentional, reckless or there has been a failure to take reasonable care. So the base penalty will only be imposed where there is something beyond innocent error. The view may be taken that there is additional culpability where there is another shortfall amount that is a consequence of the same behaviour. Repetition may be viewed as being more serious. 147 An earlier version of s 284-220 was considered by Jessup J in Gashi v Commissioner of Taxation [2012] FCA 638. At that time the additional penalty applied where there had been an assessment 'for a previous accounting period'. In that context his Honour said at [57]: The policy with which the paragraph appears to be concerned is the discouragement of subsequent defalcations, once a taxpayer has been subjected to an administrative penalty of a particular kind on a previous occasion. On one view, it would not induce to the implementation of that policy if the taxpayer were subjected to the s 284-220(1)(c) uplift for each of the second and subsequent years in circumstances where he or she received assessments from the Commissioner in respect of a series of years at the one time. The question is: does "for a previous accounting period" mean "in respect of a previous accounting" or "on a previous occasion"? Counsel for the Commissioner informed me that this question has not previously been addressed by the courts, but submitted that the former construction was the correct one. Counsel for the applicants did not engage with that submission. I am disposed to accept it. Whatever legislative policy is discernible here, the latter interpretation would involve something of a strain against the words actually used in the provision. I would hold that it was open to the Commissioner to apply the uplift factor to the penalty assessments in 2004 and 2005, notwithstanding that they were served on Mr Gashi at the same time, and at the same time as was the 2003 assessment. 148 The amendment to provide for the additional penalty if there had been a base penalty amount worked out using items 1, 2 or 3 'previously' was introduced by the Tax Laws Amendment (2010 Measures No 1) Act 2010 (Cth). However, as was correctly explained by Senior Member P W Taylor SC in Re Picton Finance Ltd and Federal Commissioner of Taxation [2013] AATA 116 at [101]-[107] those amendments were part of a wider set of changes that also removed the significance of an accounting period in relation to the base penalty. The result was that the penalty regime as applied by items 1, 2 and 3 no longer focused upon a shortfall amount for the same accounting period. This explains the change in wording in s 284-220(1)(c). 149 It follows that where there are shortfall amounts that arise in respect of successive tax liabilities and a base penalty is to be worked out in respect of each shortfall amount under items 1, 2 or 3 of s 284-90(1) then in the case of each successive tax liability any increase in the base penalty amount may apply under s 284-220(1)(c) because there will be a penalty 'worked out under one of those items previously'. 150 For the above reasons, ground 17 should not be upheld. Conclusion 151 It follows that the appeal should be dismissed. The Commissioner requested that no order as to costs be made before hearing from the parties as to the appropriate orders once the outcome of the appeal was known. In those circumstances, there should be orders providing for submissions as to costs to be filed by the Commissioner within 14 days and a response from Mr Bosanac within 14 days thereafter. If any party is opposed to the question of costs being dealt with on the papers then any submissions as to why there should be a hearing as to costs orders should be included in those submissions. I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, Burley and Colvin. Associate: Dated: 15 July 2019