Trustees Executors and Agency Co Ltd v CMR of Taxation
49 CLR 220(Judgment by: Starke J)
Trustees Executors and Agency Co Ltd
vCmr of Taxation - 49 Clr 220
Judges:
Rich J
Starke JDixon J
Evatt 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:
Starke J
The facts are fully stated in the case.
The first question is whether certain personal property situate abroad which passed from a deceased person by gift inter vivos within one year before his decease is part of the estate of the deceased person within the meaning of the "Estate Duty Assessment Act 1914-1928," s 8. The estate of a deceased person comprises ( inter alia ) his personal property, wherever situate, if the deceased at the time of his death was domiciled in Australia -- "Estate Duty Assessment Act 1914-1928," s 8 (3) ( b ); and any property which passed from the deceased by any gift inter vivos within one year before his decease shall be deemed to be part of his estate -- s 8 (4) ( a ). It is said that the proper interpretation of subs (4) is to confine its operation to property within Australia at the time of the gift, or at the time of the death of the deceased person. But the purpose of subs (4) ( a ) is to bring back into the estate of the deceased person for the purposes of estate duty property that would have formed his dutiable estate, in whole or in part, if he had not disposed of it. Consequently, it predicates the attributes of the categories of property contained in subs (3), and cannot be confined in the manner suggested in argument.
It is insisted that this view will create many practical difficulties in the apportionment of the duty under ss 35 and 35A, and in giving effect to the charge under s 34; but these considerations cannot control the clear purpose of s 8 -- cf. In re Harper , 28 ALR at p 219, (1922) VLR at p 525.
The second question is whether the provisions of s 8 are intra vires of the Constitution. The decision in National Trustees, etc, Co Ltd v Commissioner of Taxation , (1916) 22 ALR 409 , 22 CLR 367, resolves this question in the affirmative.
Both questions should therefore be answered in the affirmative.