Fanfold Business Forms Pty Ltd -v- Chief Commissioner of State Revenue [2004] NSWADT 210

CITATION: Fanfold Business Forms Pty Ltd -v- Chief Commissioner of State Revenue [2004] NSWADT 210 DIVISION: Revenue Division APPLICANT PARTIES: Fanfold Business Forms Pty Ltd RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 036040 HEARING DATES: 10/03/2004 SUBMISSIONS CLOSED: 03/10/2004 DATE OF DECISION: 09/24/2004

BEFORE: Hole M - Judicial Member APPLICATION: Pay-roll tax - grouping of commonly controlled businesses MATTER FOR DECISION: Principal matter LEGISLATION CITED : Pay-roll Tax Act 1971 Permanent Trustee Nominees (Canberra) Ltd v Chief Commissioner of Pay-Roll Tax (1997) 8 NSWLR 527 CASES CITED: Trevisan and Anor v Commissioner of Taxation (1991) 29 FCR 157 CS & Co Legal Services Pty Ltd v Commissioner of State Revenue (VIC) 1996 Sup Ct (Vic) 4,651 Kivelos Nominees Pty Ltd v Commissioner for State Revenue (VIC) 1997 AAT of Victoria 2,135 APPLICANT REPRESENTATION: F Carnovale, barrister RESPONDENT P Gormly, barrister ORDERS: The Notices of Objection by the applicant to the Payroll Tax Assessment issued to Fanfold Business Forms Pty Limited for the financial years ending June 2000, June 2001 and June 2002 are allowed.

Introduction 1 This is an application on behalf of a company which has been denied the provision of a threshold of payroll tax on the basis that it is subject to the grouping provisions contained in the Pay-roll Tax Act 1971 ("the Act") and in particular the operation of sections 16A, 16D3(b), 16D(2) and 16E. 2 During the period for the financial years ended June 1998, 1999, 2000, 2001 and 2002 the two companies, Fanfold Business Forms Pty Limited and South Pacific Business Forms Pty Limited the Trustee for W.G.P. No. 1 Trust were structured as follows:- Fanfold Business Forms Pty Limited Directors Robert William Wilson Alice Joyce Wilson Shareholders Robert William Wilson – 90% Alice Joyce Wilson – 10% [Robert William Wilson manages the company and provides 70% of his working time to this company] South Pacific Business Forms Pty Limited Directors Robert William Wilson Robert Jan Gardner Michael Desmond Peel Shareholders Robert William Wilson – 52% Robert Jan Gardner – 24% Michael Desmond Peel – 24% South Pacific Business Forms Pty Limited is the sole trustee for W.P.G. No. 1 Trust. It is not an employer and does not lodge a tax return. W.G.P. No. 1 Trust Issued units First Homes (Australia) Pty Limited – 40% Pheroz Holdings Pty Limited – 30% Zumura Pty Limited – 30% 3 The respondent provided the historical versions of the relevant sections of the Act for the benefit of the Tribunal. They are: " Historical version of the provisions as applicable for the financial years ended June 1998 and 1999 . "16A Definition In this Part, business includes: (a) a trade or profession, (b) any other activity carried on for fee, gain or reward, and (c) the activity, carried on by an employer, of employing one or more persons where that person performs or those persons perform duties for or in connection with another business 16D Grouping of commonly controlled businesses