Sun Newspapers Ltd & Anor v Federal Commissioner of Taxation

61 CLR 337
5 ATD 87

(Judgment by: McTiernan J)

Between: Sun Newspapers Ltd - Appellant
And: Federal Commissioner of Taxation - Respondent
Between: Associated Newspapers Ltd - Appellant
And: Federal Commissioner of Taxation - Respondent

Court:
High Court of Australia

Judges: Rich J (previous judgment)
Latham CJ
Dixon J

McTiernan J

Hearing date:
Judgment date: 23 December 1938


Judgment by:
McTiernan J

I agree that the appeal should be dismissed. In my opinion the judgment of Rich J. was right and I agree with his reasons. I have had the opportunity of reading the reasons for judgment of the Chief Justice and Dixon J., and I agree with them. There is nothing which I wish to add except to quote a passage from the judgment of Lawrence J. in Collins v. Joseph Adamson & Co. [F32] , a case cited by Rich J. from the report in the Times Law Reports [F33] :- "From the case" (Southwell v. Savill Brothers Ltd. [F34] ) " I think it may be deduced that you cannot test the question whether the payment is properly a capital or a revenue payment by seeing whether it can be shown to be productive. Nor do I think that the argument of Mr. King, that what was produced by the expenditure in the present cases was impalpable or intangible or incalculable is a sound argument for holding that is must be treated as of revenue nature. In fact ...the payments which were made had as a result the removal or the prevention of a trade competitor." In my opinion it may be said of the payment now in question, as Lawrence J. said of the payments in question in Collins v. Joseph Adamson & Co. [F35] , that it created for the taxpayer "advantages of an enduring nature, and, I think, of such an enduring nature as properly to be treated as capital, and not to be treated as revenue."

Appeals dismissed with costs.

(1915) A.C. 433

(1926) A.C. 205

(1928) 14 Tax Cas. 229; 140 L.T. 125

(1924) 2 K.B., at p. 298

(1932) 1 K.B., at pp. 136 and following

(1938) 1 K.B., at pp. 485 and following

(1926) A.C., at pp. 213, 214

(1927) 1 K.B., at p. 739

(1938) 1 K.B., at p. 487

(1927) 1 K.B., at p. 739

(1915) 3 K.B., at p. 273

(1915) 3 K.B., at p. 274

(1926) A.C., at pp. 213, 214

(1932) 145 L.T., at p. 532

(1932) 1 K.B., at p. 141

(1937) 56 C.L.R. 290

(1937) 56 C.L.R., at p. 303

(1937) 56 C.L.R., at p. 306

(1881) 19 Ch. D. 355; 51 L.J. Ch. 108

(1883) 49 L.T., at pp. 337, 338

(1897) 13 T.L.R. 477

(1938) 1 K.B. 477

(1930) S.C. 215, at p. 220; (1929) 12 Tax Cas. 1248

(1926) A.C., at pp. 213, 214; 10 Tax Cas. 155

(1915) 3 K.B., at p. 273; 6 Tax Cas. 671

(1932) 1 K.B. 124; 16 Tax Cas. 253

(1921) 2 A.C. 13, at p. 20; 12 Tax Cas. 266

(1934) 18 Tax Cas. 691

(1928) S.C. 738; 14 Tax Cas. 34

(1930) 15 Tax Cas. 390

(1938) 1 K.B. 477; 21 Tax Cas. 400

(1938) 1 K.B., at p. 488

(1937) 54 T.L.R. 64

(1901) 2 K.B. 349

(1938) 1 K.B., at p. 488