Trustees Executors and Agency Co Ltd v CMR of Taxation
49 CLR 220(Judgment by: Rich J, Dixon J, McTiernan J)
Trustees Executors and Agency Co Ltd
vCmr of Taxation - 49 Clr 220
Judges:
Rich JStarke J
Dixon JEvatt J
McTiernan J
Legislative References:
Estate Duty Assessment Act 1914-1928 - s 8
Case References:
Winans v Attorney-General (No 2) - (1910) AC 27
Harding v Commissioner of Stamps - (1898) AC 769
National Trustees etc Co Ltd v Commissioner of Taxation - (1916) 22 ALR 409; 22 CLR 367
Jackson v Commissioner of Taxation - (1920) 27 CLR 503; 26 ALR 121
Commonwealth v Colonial Sugar Refining Co - (1914) AC 237
Commissioner of Stamp Duties v Millar - (1933) ALR 134
Macleod v Attorney-General of New South Wales - (1891) AC 455
Ashbury v Ellis - (1893) AC 339
Ashbury v Ellis - (1893) AC 339
Croft v Dunphy - (1933) AC 156
P and O Company v Kingston - (1903) AC 471; 9 ALR (CN) 65
Judgment date: 3 August 1933
Judgment by:
Rich J
Dixon J
McTiernan J
We are called upon to decide whether movables situated abroad which passed from a deceased person domiciled in Australia by gift inter vivos within one year of his death are to be included as part of his estate for the purpose of ascertaining the value upon which estate duty is to be levied under the "Estate Duty Assessment Act 1914-1928."
Subsection (3) of s 8 provides that the estate of a deceased person comprises his real property in Australia, his personal property wherever situate if the deceased was at the time of his death domiciled in Australia, and his personal property in Australia if he was not so domiciled. Subsection (4) then enacts that property which passed from the deceased person by any gift inter vivos or by a settlement made within one year before his decease, and certain other interests of which he had divested himself or which were determined or divested at his death, shall for the purposes of the Act be deemed to be part of the estate of the person so deceased.
The first question is whether, as a matter of construction, the operation of subs (4) should be restricted to property and interests situated in Australia. In our opinion it should not be so restricted. The purpose of subs (4) is to extend the dutiable estate of the deceased so as to include property which, because of dispositions by the deceased or of the nature of his interest, is not actually part of his estate devolving upon his death. The chief object of subs (3) is to prescribe the conditions in which, because of its situation abroad, property actually part of the deceased's estate is excluded. The provision is expressed in an affirmative form, but its intended operation is to exclude all real property situated abroad, and personal property so situated if the deceased died domiciled out of Australia.
The natural interpretation of the two provisions when read together appears to us to be that property, which by force of the Statute is "deemed to be part of the estate of the person so deceased," is made subject to exactly the same territorial exclusion and discrimination as the actual estate.
In opposition to this construction the contention is, briefly, that in the absence of a more definite expression of such an intention the general words of subs (4) should be understood to refer only to property in Australia, and that the charge created by s 34 and the apportionments directed or authorised by ss 35 and 35A cannot be effective upon or against foreign movables of donees whose title is complete under the lex situs or loci actus .
In our opinion these considerations are answered by the general plan and nature of the legislation and the form of the two sub-sections. In the first place, the duty is described as an "estate duty," and the incidence of estate and succession duties upon movables has been much affected by the domicil of the deceased -- comp. Winans v Attorney-General (No 2), (1910) AC 27 at p 39, Lord Gorell; and Harding v Commissioner of Stamps (1898) AC 769. In the next place, the charge of duty upon and its apportionment to gifts must often be ineffectual independently of locality; for instance, donees will consume or dispose of the subject-matter given. These are matters ancillary and subsidiary to the main purpose, the imposition of the duty upon the total mass of property at a scale graduated according to the value of the whole. Such matters, therefore, cannot have much influence upon the interpretation of the provisions defining the property to be assessed. Finally, the structure and arrangement of ss (3) and (4) sufficiently show what the real intention of the legislation was, namely, to include for the purpose of duty in the estate of a person dying domiciled in Australia personal property wherever situate, whether falling under subs (3) or subs (4).
The second question is whether to do this is beyond the constitutional power of the Commonwealth. Clearly it is not beyond its power.
For these reasons we think both questions in the Special case should be answered Yes.