The following memorandum by the Commissioner of Taxation has been submitted to me for advice:

With reference to the opinion given to you under date 25.8.19 on a case submitted to you by the Secretary to the Treasury as to the liability of the Commonwealth Bank to pay to this Department moneys deposited in current account or Savings Bank account, sections 51 (d) and (e) of the Income Tax Assessment Act read:

51. Every company which carries on business in Australia shall at all times be represented by a person residing in Australia duly appointed by the company or by its duly authorized agent or attorney, and with respect to every such company and person the following provisions shall apply:-

Service of any document at the address for service or on the public officer of a company shall be sufficient service upon the company for all the purposes of this Act or the regulations, and if at any time there is no public officer then service upon any person acting or appearing to act in the business of the company shall be sufficient.

The public officer shall be answerable for the doing of all such things as are required to be done by the company under this Act or the regulations by a taxpayer, and in case of default shall be liable to the same penalties.

Note: The definition of Company in the Act reads:

'Company' includes all bodies or associations corporate or unincorporate, but does not include partnerships.

The definition of 'Company' and the provisions of the section quoted above appear to be sufficient to justify the action taken in the case cited in the opinion. In the case in point there is no public officer of the Commonwealth Bank and the document was accordingly addressed to the Manager as a person 'acting ... in the business of the company'. I should be glad to learn whether this aspect of the position has been considered.

I should also be glad of your advice on the following matters, viz: (1) whether it is competent for this Department to appoint a Savings Bank as agent under section 50A in such manner as to require it to attach Savings Bank deposits when lodged, for the purpose of satisfying the Department's claim for tax, and (2) whether the advice already given extends to prevent recourse to interest accruing from day to day upon deposits in the Commonwealth Savings Bank.

The provisions of section 51 were considered in connection with the opinion given on 25 August 1919.⁽¹⁾

Section 50A authorises the Commissioner to declare any corporation making payments or owing money to the taxpayer to be his agent.

In the case under consideration, the money was owed by the Commonwealth Bank to the taxpayer and the Bank, not the Manager, should have been declared the taxpayer's agent.

Paragraph (d) of section 51 quoted in your memorandum authorises the service of documents on the public officer of a company or on a person appearing to act in the business of the company. Paragraph (e) casts responsibility on the public officer for the doing of certain acts. Neither provision authorises the substitution, in action taken under section 50A, of the public officer for the person owing money to the taxpayer; and in the case of the Commonwealth Bank no public officer had been appointed.

With regard to question (1) in the last paragraph of the above memorandum, I incline to the opinion that it is not competent for a Savings Bank to be appointed an agent under section SOA in such a manner as to require attachment of deposits when lodged. My objection to this course is, as set forth in the last paragraph of my opinion of 25 August 1919, that the money is only due and payable upon the giving of the prescribed notice. The withdrawal of interest is subject to the same requirement as to notice.

[Vol. 17,p.112]

(1)Opinion No. 927.