Stocks and Holdings (Constructors) Pty. Limited v. Federal Commissioner of Taxation.

Members:
Barwick CJ
Menzies J
Stephen J
Mason J

Tribunal:
High Court (Full Court)

Decision date: Judgment handed down 14 May 1973.

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Barwick C.J.: My brother Stephen, in the reasons for judgment which he has prepared in this matter and which I have had the advantage of reading and considering, sets out all the material necessary to be known for the disposal of the case stated for the opinion of the Full Court by my brother Walsh pursuant to sec. 18 of the Judiciary Act.

I agree with the conclusion expressed by my brother Stephen that the respondent Commissioner's assessment of the appellant to tax for the year in question at a rate applicable to a public company should be set aside and the appellant assessed to tax at a rate applicable to a private company within the meaning of Div. 7 of the Income Tax Assessment Act 1936-1965 (the Act).

In my opinion, in the circumstances of this case which my brother details there was no occasion for the exercise by the Commissioner of the discretion given him by sec. 103A(5) of the Act. That discretion is given to the Commissioner for exercise when the operation of other parts of Div. 7 has cast on the taxpayer a burden or disadvantage from which the Commissioner having regard to the matters enumerated in the subsection thinks it reasonable to relieve it by treating it for the purposes of the Division as a public company. Consequently, I agree entirely with the reasons which my brother Stephen gives for his conclusion. I also agree that only the first question submitted by the case stated need be answered and that that question should be answered in the negative.