Commissioner of Stamp Duties (NSW) v Jones
2 ATR 641(1971) 125 CLR 511
(1971) 46 ALJR 50
[1971] AEGR 66,086
[1971] HCA 67
(Judgment by: Owen J)
Commissioner of Stamp Duties (NSW)
vJones
Judges:
Barwick CJ
McTiernan J
Menzies J
Windeyer J
Owen J
Case References:
Carapark Holdings Ltd v Federal Commissioner of Taxation - (1967) 115 CLR 653
Barclays Bank Ltd v Attorney-General - (1944) AC 372
Wayne v Commissioner of Stamp Duties - (1966) 85 WN 301; (1966) 2 NSWR 309
Barclays Bank Ltd v Attorney-General - (1944) AC 372
Lever Bros and Unilever Ltd v Inland Revenue Commissioners - (1945) 1 All ER 145
Commissioner of Stamp Duties (NSW) v Perpetual Trustee co Ltd - (1926) 38 CLR 12
Commissioner of Stamp Duties (NSW) v Gale) - (1958) 101 CLR 96
Wayne v Commissioner of Stamp Duties - (1966) 85 WN 301; (1966) 2 NSWR 309; (1969) 91 WN (NSW) 51
Gould v Curtis - (1913) 3 KB 84
The National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation - (1959) 102 CLR 29
Barclays Bank Ltd v Attorney-General - (1944) AC 372
Wayne v Commissioner of Stamp Duties - (1966) 85 WN 301; (1966) 2 NSWR 309
Judgment date: 9 December 1971
Judgment by:
Owen J
S 102(2)(h) of the Stamp Duties Act (NSW) provides that for death duty purposes the estate of a deceased person shall be deemed to include - "Any money payable to any person under a policy of assurance on the life of the deceased where the whole of the premiums have been paid by the deceased or a part of that money in proportion to the premiums paid by him where part of the premiums have been paid by some other person." At the time of his death and for some years prior thereto the deceased was an employee of David Jones (the company) and in 1955, while he was in the service of the company, it decided to adopt a Staff Superannuation Plan (the plan) for the benefit of certain classes of its employees, to be underwritten by the AMP Society (the Society). The plan was put into operation and the deceased became a member of it. Stated in general terms, what was done to set up and operate the plan was as follows:
A trust deed was executed by the company under which trustees were appointed to administer and control the plan. The deed provided (inter alia) that the trustees should take out and keep on foot with the Society what was described as a "group endowment assurance policy" covering the employee members of the plan and providing for payments to be made by the Society to the trustees in certain events including the death of a member while in the service of the company or on his retirement from that service. The moneys so paid to the trustees were to be dealt with by them in accordance with the trust deed. The employee members and the company were each to make regular contributions to the trustees of amounts which would enable the latter to meet the payment of premiums on the policy, and in the case of each employee member the company was to deduct the amount of that employee's contribution from his salary and pay it, along with its own contribution, to the trustees who in turn were to pay the Society the premiums and keep the policy on foot. Each employee who became a member of the plan was to be deemed to be a party to the deed.
The plan was carried out and the amount of the deceased's contributions was deducted from his salary and paid by the company, along with its own contributions, to the trustees who in turn paid to the Society the premiums on the policy. In the case of the deceased, the company contributed from its own funds an amount equal to the deceased's contributions. On the death of the deceased and by reason of it, the Society in accordance with the policy paid to the trustees the sum of £38,427 ($76,854) and this was paid by them to the widow of the deceased. The appellant Commissioner claims that one half of this sum, is by virtue of s 102(2)(h), to be included in the deceased's estate for death duty purposes since, so he submits, the deceased paid one half of the premiums on a policy of assurance on his life.
Two questions seem to me to arise. (1) Whether any part of the premiums paid by the trustees to the Society was "paid by the deceased" within the meaning of s 102(2)(h). (2) If so, whether the group endowment assurance policy taken out by the trustees is properly to be described as "a policy of assurance on the life of the deceased" within the meaning of s 102(2)(h), having regard to the facts that it provided for benefits payable on the occurrence of events other than death, for example on retirement, and that the benefits payable on death were payable only should that death occur during the employee's service with the company. I am of opinion that the first of these questions should be answered in favour of the respondents. The premiums paid to the Society were in fact paid by the trustees. In so doing they were not acting in any way as the agents of the deceased. They were acting as trustees pursuant to the obligations imposed upon them by the trust deed. It is true that part of the moneys received by them to enable them to carry out their duties as trustees was paid by the deceased who authorized the company to deduct the amount from his salary but I am unable to accept the proposition that because of that fact and that the deceased may have been able to compel the trustees to carry out their trust duties the deceased is to be regarded as the person who paid part of the premiums to the Society. That proposition is, in my opinion, answered by the decision of the House of Lords in Barclays Bank Ltd v Attorney-General (1944) AC 372, a decision which was rightly applied by the Court of Appeal Division of the Supreme Court in Wayne v Commissioner of Stamp Duties (1966) 85 WN (Pt 1) (NSW) 301; (1966) 2 NSWR 309, a case in which the facts appear to me to be, in all relevant respects, similar to those in the present case.
For these reasons I would dismiss the appeal and I do not find it necessary to determine what is, to my mind, the difficult problem raised by the second question which I have mentioned earlier, namely whether the policy issued by the Society was "a policy of assurance on the life of the deceased" or whether it is more properly to be described as the Society described it, namely an endowment policy, a well-recognized class of insurance which, it might be thought, would not be properly described as a policy of assurance on the deceased's life within the meaning of s 102(2)(h), notwithstanding that one of the events upon the happening of which benefits would become payable was the death of the deceased while in the company's service.
In my opinion the appeal should be dismissed.