Digby-Bennett v. Federal Commissioner of Taxation.
Judges:Mahoney J
Court:
Supreme Court of New South Wales
Mahoney J.: In 1963 an area of some 5 acres of land at Belrose was purchased in the joint names of Mr. and Mrs. Digby-Bennett. In 1967 the land was the subject of a plan of subdivision and the first portion of the land as so subdivided was sold in the 1968 income tax year.
The substantial question which I am asked to determine is whether portion of the proceeds of the sale of the land as so subdivided constitutes ``income'' or ``profit'' liable to be assessed to income tax under the Income Tax Assessment Act 1936 (as amended).
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Mr. and Mrs. Digby-Bennett were married in 1958. Prior to their marriage, Mr. Digby-Bennett had practised as a surveyor of land. Shortly after their marriage they went to live in Hong Kong where Mr. Digby-Bennett was engaged in surveying work for the Government of that Colony.
In April 1958, the parties entered into a partnership agreement (Board of Review Ex.S) under which they agreed to become partners in the ``business of land and property investors and subdividers''.
In 1960, during their stay in Hong Kong, a company N.D.B. Pty. Limited was formed in New South Wales, that company being controlled by them.
They returned from Hong Kong in 1961.
During the three year period when Mr. Digby-Bennett was working for the Hong Kong Government, certain land transactions were entered into by them, either personally or by the company N.D.B. Pty. Limited. Portion 1571 in Keldie Street, French's Forest was purchased in 1958 and sold in subdivision in 1961. Portion 1577 in Salerno Avenue, French's Forest, was purchased in September 1959 and sold in globo in 1961. Portion 1674, situated at the corner of Forest Way and Glen Street, was purchased in 1959 and sold in subdivision in 1964. Lot D in Pringle Avenue, Belrose was purchased in 1960 and sold in globo in 1962.
When they returned from Hong Kong the parties lived in rented accommodation for some time. On 1 January 1963, they acquired an option to purchase the land here in question, Portion 1655, situated at the corner of Forest Way and Hews Parade, Belrose and that option was exercised on 29 April 1963 (Board of Review Ex.E).
The events which occurred in relation to Portion 1655 include the following. On 2 July 1963 and prior to the commencement of home building on the portion, the parties made an application to the Local Council for approval to the use of a corner portion of the land as a service station but that approval was not obtained.
On 12 July 1963, a deposit was paid by them to a building company under a contract for the erection of a home and in September 1963, building operations commenced, the house being completed sufficiently to enable them to occupy it in January 1964.
In August 1963, the parties had, together with G.V. and S.W. Brown, purchased for ultimate resale at a profit, a 5 acre block (portion 1657) in the same street, being the block next but one to the subject land. This block was purchased in the contemplation that it would be in due course released from its then zoning and would become available for sale as residential lots in subdivision. This subsequently occurred and the land was sold in subdivision during the period 1968-1971.
On 20 January 1964, at or about the time of the parties occupying their home on the subject land, Mr. Digby-Bennett wrote a letter to the Local Council concerning the zoning of the land (Board of Review Ex. 4). In the letter he said -
``With reference to the council notice concerning the rezoning of lands in the Warringah Shire I understand that certain suggestions are being put to Council re Belrose. It has been suggested that parts of Belrose be rezoned for industrial purposes.
As I have just built my home on portion 1655 I would not want to be surrounded by factories and would request that a section of land around my home be set aside for residential development. Provided the development of an industrial area was limited to special industries such as clothing or radio factories I consider it an excellent idea to create industry in Belrose.
I would like it noted that I intend resubmitting an application for a service station on the corner of Hews Pde. and Forest Way. Perhaps this could be considered if any rezoning is contemplated in the near future.''
In April 1965 a 6 acre block, Portion 1654 was purchased by N.D.B. Pty. Limited with G.V. & S. W. Brown. This 6 acre block had a frontage to Forest Way, Belrose and was the block immediately adjacent to the subject land facing Forest Way. It is the block which was amalgamated with the subject land for
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the purposes of the plan of subdivision ultimately approved by the local council (Board of Review Ex. D). This portion was purchased for the purpose of resale at a profit.In November 1965, a public notice was exhibited upon land near the subject land indicating that it was proposed that a hotel be built there. Thereafter steps were taken by Mr. and Mrs. Digby-Bennett to oppose the granting of relevant approval for the erection on that site of a hotel. On 23 March 1966, Mr. Digby-Bennett wrote a letter to the Minister of Local Government (Board of Review Ex. 9) in which he said, inter alia, that if the surrounding land was zoned for industrial purposes, he would sell his home and leave, but if it was zoned as residential, he would remain living in the area.
In March 1966, the local council approved the use of the land near the subject land for a hotel.
In June 1966, a further application for use of portion of the subject land as a service station was refused.
On 5 September 1966, a public statement was made indicating that 665 acres of land in the Belrose area (including the subject land) would be changed in zoning so as to permit use for residential purposes in subdivision. In December 1966, Mr. Digby-Bennett gave an interview to the Daily Mirror newspaper an account of which was published on 4 December, 1966, making various statements as to his dissatisfaction with the approval given for the erection of a hotel (copy of that article is included in Board of Review Ex. A, as part of his Income Tax return for the year ended 30 June, 1968).
In 1962, the parties had purchased a 1 acre block in Kara Crescent, Bayview. They said in evidence that they had proposed to use this land as a home site, but it was not so used and it was sold in 1965. In March 1967, another 1 acre block was purchased in Lentara Avenue, Bayview. This block, comprising 1 acre, was said to have been purchased as the site for a home, but was not used for this purpose and was resold in 1970.
In or about September 1967, steps were taken for the subdivision of an area of land including the subject land, (portion 1654) the adjoining land (portion 1655) and, it would appear, (Board of Review transcript pp. 56-7), another portion of land acquired from church authorities and situated in the immediate vicinity. The plan was to combine all of these areas of land into ``one overall subdivision'' as ``the most profitable way of subdividing the area'' and ``the most popular'' and it was contemplated that the land would be subdivided in stages. The subdivision (Board of Review Ex. D) was seen as the first stage in such subdivision.
The official rezoning of the subject land occurred on 1 December 1967. On 20 December 1967, the plan of subdivision which was ultimately approved was lodged with the local council.
The plan of subdivision (Board of Review Ex. D) provided for the creation of some 29 lots. The portion of land on which the parties' home was situated was described as Lot 6, and this was an area of 3 acres 2 roods 14¾ perches comprising an irregularly shaped part of Portion 1655 (the subject land) and an adjacent part of Portion 1654 (the land acquired jointly with G.V. & S.W. Brown). By a subsequent plan of subdivision dated 26 July 1968, prepared by Mr. Digby-Bennett and approved by the council, that Lot 6 was divided into three separate lots (Board of Review Ex. Q). Lot 1 of that resubdivision was situated in Portion 1654; Lot 3 (on which the parties' home was situated) comprising 2 roods 22¼ perches, was situated wholly in Portion 1655; and Lot 2 comprised 1 acre 1 rood 26½ perches, included mainly land in Portion 1655 but also a small portion of land situated in Portion 1654.
In January 1968, the parties offered their home for sale.
In May 1968, the hotel premises situated in the vicinity was opened for business.
In July 1968, Mr. and Mrs. Digby-Bennett left Australia for an overseas trip of some weeks and during this time, the plan for resubdivision of Lot 6 of the original plan of subdivision was approved by the local council.
In August 1964, the parties had purchased Portion 973 in Perentie Road, Belrose, an area not far distant from the subject land.
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The land comprised some 5 acres 3 roods and was zoned ``non-urban'' in the relevant planning scheme. In late 1969, building operations upon that land were commenced and a home was erected thereon in which the parties were, it would appear, living in May 1972, at the time of the hearing of the present matter before the Taxation Board of Review No. 1. The parties have now separated, but the home in Perentie Road, Belrose, is still owned by them.
The events to which I have so far referred relate primarily to the subject land. However, during the period in question, the parties, either alone, or with others, and the company N.D.B. Pty. Limited were actively engaged in the business of buying and selling land, either in globo or in subdivision. There was prepared a document headed ``Schedule of Land Transactions'' for use by the members of the Taxation Board of Review No. 1 setting forth details of the transactions in which the parties were engaged in this fashion. It has been agreed that that document be available to me as a summary of the relevant facts as before me, and that I treat it as a summary of the relevant evidence before me in the present proceedings.
This schedule shows that during the period 1958-1972, some 27 transactions of this kind were engaged in (including the transaction of purchase of the subject land and the land at Perentie Street, Belrose).
In respect of the purchase of the land at Kara Crescent, Bayview, it was contended that there was no purpose of resale at a profit, but the profit on resale was assessed to tax and despite what I am informed were statements of dissent from such assessment, there was no attempt by the parties to avoid the assessment by a reference to a Taxation Board of Review or appeal to a court.
It is contended that Portion 973, the site of the last home of the parties, was not purchased for the purpose of resale at a profit. That land is still held and the determination of the position in relation to it is not in question in the present proceeding.
As to the balance of the transactions, it is not in issue that they were entered into as part of the trading activities of the parties concerned. Insofar as occasion has arisen for assessment of them to tax, they have been assessed.
The present appeals concern what the Commissioner of Taxation claims to be assessable income derived from the sale of certain of the lots in subdivision of the relevant land in the income tax year ended 30 June 1968. The proceeds of sale were shown in the income tax return for the partnership of the parties as capital and not income receipts. There was included in their individual returns the share of the partnership income to which the parties were entitled, that income not including any amount calculated by reference to those proceeds of sale. It was contended in the relevant documents (Board of Review Ex. A) that the subject land had been purchased as a capital asset and the proceeds of sale were not liable to assessment to tax.
The Commissioner of Taxation included in the assessable income of each of the parties, one half of what may be described as the income or profit content of the proceeds of sale of the lots sold during the relevant tax year. Each of the parties has objected to such inclusion and the assessment to tax issued upon the basis of such inclusion. The assessment was issued on 24 April 1969: objections to the assessments were disallowed: and on reference, the Taxation Board of Review No. 1, after hearing evidence on 17 and 18 May 1972, by a majority confirmed the assessment on 21 September 1972.
The parties appealed to the High Court of Australia and the present appeals come before this Court consequent upon the amendment to the Income Tax Assessment Act 1936 (as amended).
The appeals by Mr. and Mrs. Digby-Bennett have, by consent, been heard together.
The evidence placed before me upon such appeals consists in substance of the evidence given before the Taxation Board of Review No. 1 and the exhibits tendered before that Board, two short affidavits filed in this Court, and certain short oral evidence and exhibits given and tendered in the hearing before me.
At the commencement of the hearing
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before me, the Commissioner of Taxation submitted that there was no question of law involved in the decision of the Taxation Board of Review No. 1 and that the appeal was incompetent; but it was indicated to be by both parties that the convenient course to be followed was to hear the evidence and then to hear argument upon the competency of the appeals. This course has been followed.The substantial question at issue between the plaintiffs and the defendant is whether, having regard to the context in which or the intention with which the land in question was purchased, the relevant portion of the proceeds of sale is assessable as income. The parties are agreed that there is no issue as to the quantum of the assessment; the only question at issue is whether, in respect of such proceeds of sale, any amount should have been included in the assessable income of the parties.
The plaintiffs claim that the subject land was not purchased as part of the business activities of the plaintiffs within sec. 25(1) or for purposes of resale at a profit within sec. 26(2); they claim that it was purchased for the purpose, or the dominant purpose, of use as a home site for themselves and their family.
However, the statements made by a taxpayer in this regard are to be scrutinised with care and to be weighed against the objective facts and the inferences to be made from his activities generally. Such statements must ``be considered most closely and received with the greatest caution'';
Pascoe v. F.C. of T. 30 A.L.J. 402 at p. 403 per Fullagar J. See also
Eisner v. F.C. of T. 71 ATC 4022 at pp. 4025-4026; 45 A.L.J.R. 110 at p. 112 per Walsh J.
The context in which the subject land was acquired provides strong support for the view taken by the Commissioner of Taxation.
The land was purchased not merely in the joint names of Mr. and Mrs. Digby-Bennett, but as part of the assets of the partnership formed between them. This was a partnership which was actively engaged, before and after the date of acquisition of the subject land, in the business of dealing in land. No explanation was offered as to why the land was acquired as a partnership asset rather than as an asset of the individual plaintiffs.
In the accounts of the partnership included in the Income Tax return for the year ended 30 June 1968, (Board of Review Ex.A.), the land is shown as a ``fixed asset'' of the partnership. It does not appear how the land was originally entered in the accounts of the partnership at the date of acquisition, but I assume that it was entered in a similar fashion.
Mr. Digby-Bennett held a real estate agent's licence and dealings had taken place prior to the events in question in the real estate field. In 1963, part of the activities of Mr. Digby-Bennett and of the partnership were activities of a real estate agent. Mr. Digby-Bennett was also a surveyor by occupation although he indicated that his activities in that professional field had not been concerned, or had not been primarily concerned, with subdivisional land.
Mr. Digby-Bennett, had, both before and after the date of acquisition of the subject land, been engaged in the purchase and sale of land in the immediate area, both in subdivision and in globo.
(No distinction was drawn before me as to activities of Mr. Digby-Bennett personally, of the partnership, of the company N.D.B. Pty. Limited, and of the foregoing parties with other parties. These activities were treated generally as being the activities of Mr. Digby-Bennett and his wife or activities from which inferences as to matters relevant to their activities could properly be drawn).
The activities in which Mr. Digby-Bennett and those he represented were involved were widespread. The ``Schedule of Land Transactions'' to which I have referred, shows a large number of transactions, many of them involving areas of land of the order of 5 or 6 acres, but one of them involving an area of 70 acres acquired in 1966 and still held for sale.
A substantial number of the transactions took place in the area in which the subject land was situated. In Ex.D tendered in evidence before me, there is an indication of the location of the lands in question, and I am satisfied that at the relevant time Mr. Digby-Bennett was convinced of the profit
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potential of land in the particular area and set about to acquire it for purposes of sale for actual or potential subdivisional home sites. He engaged in this activity, not merely whilst he was in Australia, but even during the three year period when he was stationed in Hong Kong.Mr. and Mrs. Digby-Bennett both, in substance, agree that they were, when the subject land was purchased, aware of its potentiality for sale in subdivision. It was suggested that a rezoning of the land might be so far distant, or might have been seen by them as such, that the possibility of resale in subdivision after rezoning should be taken to be a matter not particularly present to their minds as a motivating factor in respect of the purchase of the subject land. I do not think that this is a correct inference from the facts. In fact, in August 1963, some four months after purchasing the subject land, they had joined with G.V. & S.W.Brown to purchase portion 1657, a 5 acre block being the block next but one to the subject land. It is admitted that when this block was purchased, it was purchased for the purpose of being subdivided and sold. That subdivision and sale could not take place until the area was rezoned. I am satisfied that in August 1963, the parties were content to acquire portion 1657 for this purpose and to do so in the expectation that it would be rezoned within such a period as would be business-like to hold the land in the interim. There is nothing to warrant the conclusion that, considered as a business proposition, the the subject land would have been viewed by them differently.
The action of the parties in April 1965 in purchasing, with G.V. & S.W. Brown, the adjoining portion 1654, is in my opinion, also of significance. This portion was admittedly purchased for resale in subdivision, and at a time when its rezoning from non-urban to urban land capable of relevant subdivision, had not occurred. I find it difficult to accept that, having acquired Portions 1654 and 1657 to hold pending rezoning subdivision and sale, Mr. Digby-Bennett could have intended that the whole of Portion 1655, the subject land, would be retained unsubdivided. Ultimately, the two blocks, Portions 1654 and 1655 were, when subdivision took place, amalgamated for purposes of subdivision, (as in Board of Review Ex.D). It was not established before me that this was done for any purpose other than to achieve the most expedient form of subdivision, and I would not be prepared to accept that in April 1965, Mr. Digby-Bennett saw Portion 1654 as being subdivided otherwise than in conjunction with the subject land.
Reference was made to the proposals as to restrictive covenants in relation to such subdivision, but these, in my view, are consistent with subdivision of the land so as to achieve the greatest overall profit; they do not warrant the inference that Portion 1654 was acquired for the purpose merely of protecting the amenity of the subject land in an unsubdivided state.
The actions of the parties in relation to Portions 1657 and 1654 are, in my opinion, of some importance because these actions took place prior to any substantial steps being taken for the erection of a hotel in the vicinity. One of the main matters relied upon by the parties as indicating that the subject land was acquired merely as a home site, was the position in respect of this hotel. It was said, in substance, that the parties desired to live in a rural atmosphere and that they desired to retain the whole of Portion 1655, the subject land, for this purpose. The suggestion which emerges is that, even upon rezoning of the land so as to permit subdivision into smaller lots, they would have retained the land in its undivided state, had it not been for the fact that a hotel was erected in the immediate vicinity of their home.
No doubt Mr. and Mrs. Digby-Bennett were both anxious to prevent the erection of the hotel in the vicinity, and I accept that they made substantial efforts to this end. However, I am not satisfied that it was the ultimate erection of the hotel which brought about the subdivision of the subject land. I am satisfied that the subdivision of the subject land was the purpose of the parties, in the relevant sense, from the date of its acquisition. It is quite possible that the erection of the hotel may have been a factor in influencing them to sell their home ultimately, although the extent of the
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influence exercised by this factor, I find difficult to assess. However, I am satisfied that prior to problems associated with the hotel arising, a subdivision of Portion 1655, the subject land, was the course which they proposed to follow.I am satisfied also that Mr. Digby-Bennett at the time of purchase, saw the possibility of turning to immediate account a portion of the subject land. In July 1963, he made an application for use of an area at the corner of Forest Way and Hews Parade as a service station. The exact distance between the home site and the proposed service station site does not appear, but Mr. Digby-Bennett's actions provide some evidence that at that time, he saw the proper use of the subject land as being sale in subdivision.
Mr. Rath Q.C., for the Commissioner of Taxation, has submitted that the letter of 20 January 1964 (Board of Review Ex.4) grounds a clear inference that the parties did not intend to retain the whole of the subject land as their own home site. In my opinion, the letter is somewhat ambiguous and I do not think that any clear conclusion against the plaintiffs can be drawn from it. It is consistent with the view adopted by the Commissioner of Taxation; I do not think it completely inconsistent with the contentions of the plaintiffs.
Reference was made in evidence also, to the fact that, in respect of the quantum of rates and taxes, it would be ``very expensive'' for the parties to continue to reside upon the subject land and to hold it in an undivided state and the inference was suggested, in cross-examination, that this made it unlikely that, on rezoning of the subject land, it would be retained by the parties as a home site. The exact financial position of the parties does not appear in detail, but references have been made in passing to it. This suggested inference has some basis, but I do not treat it as being a matter of great importance in determining the present question.
A substantial matter which was urged in support of the plaintiff's claim is that they would not have acted as they did in relation to their home upon the subject land, had they intended the land to be subdivided and sold.
The parties spent a substantial sum, of the order of $28,000, upon the erection of the home, a swimming pool, and the additions to the home. In addition, Mrs. Digby-Bennett made substantial efforts, by way of manual labour and otherwise, to beautify the area surrounding the home. It was suggested that I should infer that any prospects of resale of the home was something which the parties regarded only as a contingent possibility and not as, as it was put, the dominant purpose with which the land was acquired.
These facts have in my opinion, substantial weight, and they may be accepted as being evidence which, standing alone, would suggest that it was more likely that the intention of the parties was not to resell but to retain the land as a home for an indefinite period.
However, these actions of the parties are not inconsistent as such with such an intention in respect of the land as would justify the present assessment. The actions are consistent with an intention to reside upon portion of the land permanently, but to subdivide the balance and sell it when rezoning permitted. Similarly, the actions are consistent with the purpose of resale of the whole of the land, the intention being to reside on the land until the appropriate time for resale occurred, in the contemplation that the existence of a home of the kind in question would, at the lowest, make the sale of that lot and perhaps the balance of the land not unattractive to prospective purchasers. In fact, the home, and the area of 2 roods, 22¼ perches on which it was ultimately situated, was sold for a price of $40,000 or more.
Whilst the evidence as to the actions of the parties concerning their home is of importance, it is in my opinion, only one of the several factors to be weighed in determining the present matter.
In my opinion, the proper inference to be drawn from the evidence as a whole is that the intention with which the subject land was acquired was that it would be ultimately subdivided and sold. I am not satisfied, as a matter of belief, that it was the intention of the parties and certainly not the dominant
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intention, that it be retained unsubdivided as a home site for them.I have considered whether the proper inference from the evidence should be that the parties intended to subdivide Portion 1655, to sell in subdivision the main area of it, but to retain a significant portion of it as a home site for themselves.On balance, I would not be satisfied that this was their intention at the time of purchase. I do not think that the evidence establishes that any particular area had been marked out by them, in their minds, for such a purpose, and certainly there was not such area sufficiently defined as would enable a differentiation to be made between that area and the balance of the land, of the kind discussed by Menzies, J. in
Chapman v. F.C. of T., 117 C.L.R. 167.
Moreover, neither Mr. nor Mrs. Digby-Bennett said in evidence that their intention at the time of acquisition of the land was of this kind. Their evidence in general was that the land was not to be subdivided at all; they did not put to me that there was any intention to subdivide and sell part only of the land. In these circumstances, I am not satisfied that the land was purchased with the purpose or intention, dominant or otherwise, of retaining any particular portion of it as a permanent home in this sense.
It was submitted that, even if I should not be satisfied in the appeal by Mr. Digby-Bennett that his intention was otherwise than to subdivide and to sell the subject land, I should take a different view as to the intention of Mrs. Digby-Bennett, and that I should therefore uphold the appeal against the assessment upon her.
In the case of assessments issued to the partners in respect of the income of a partnership, difficult questions may arise. A partnership is liable to furnish a return of income, but is not liable to pay tax thereon: sec. 91. That which is included in the assessable income of a partner appears to be assumed to be not income as such, but ``his individual interest in the net income of the partnership'': sec. 92(1). The term ``net income'' in relation to a partnership is defined by sec. 90 as being ``the assessable income of the partnership calculated as if the partnership were a taxpayer less all allowable deductions...'' except concessional deductions and losses of previous years.
Whether and to what extent a partnership is to be treated as an entity for income tax purposes in relation, for example, to intentions or purposes relevant, in the case of an individual taxpayer, in determining whether particular receipts are of the nature of income or assessable income, may still be open for consideration: but see
Tikva Investments Pty. Limited v. F.C. of T. 72 ATC 4231 at p. 4238; 47 A.L.J.R. 38 at p. 43;
Steinberg v. F.C. of T. 73 ATC 4030 at pp. 4037-4038; 47 A.L.J.R. 255 at pp. 260-261.
What was in substance argued in this regard in the present case was that I should treat Mrs. Digby-Bennett as having had, on the evidence, an intention or purpose different from that of Mr. Digby-Bennett and that in determining the nature of her share of the partnership income, I should have regard to her intention or purpose alone.
Under the general law, a partnership is a carrying on business in common with a view to profit by two or more persons and when, in common, they join in the acquisition of a partnership asset, it is possible that they may have different intentions or purposes, in the sense here relevant, in relation to that asset. In such a case, difficulties may arise, insofar as purposes or intention are relevant, in determining whether, for example, that which results from the disposal of the asset is an income or a capital nature.
In the present case, it is not, in my opinion, necessary to consider these questions. I am not satisfied that in any relevant respect, Mrs. Digby-Bennett had a purpose or intention which differed from that of her husband.
It is clear, in my opinion, that Mr. Digby-Bennett made all of the decisions which were made in respect of the partnership affairs. The evidence does not establish that any particular decision of the partnership was made as the result of the formation of a purpose or intention by Mrs. Digby-Bennett; she was seldom, if ever, consulted in any significant way before acts were done in the course of the partnership
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activities. Her interest appeared to have been in the sphere of her home and her children, and I do not think that she sought to make a decision in any sense, as a member of the partnership. It may be that she pressed upon her husband her preferences in relation to what the partnership should do with the subject land and it may be that he took into account what she said to him in this regard prior to doing any act on behalf of the partnership. However, I am satisfied that the acts of the partnership were those which Mr. Digby-Bennett determined should be done by it and I am satisfied that throughout the period of the partnership Mrs. Digby-Bennett accepted the position that the acts, purposes and intentions of the partnership were those which her husband gave to it.In relation to the subject land, Mr. Digby-Bennett ``found'' the land, took his wife to see it and I would infer, suggested it to her as a home site. I do not think that her purpose or intention in relation to it was otherwise than to do with it what her husband decided.
Upon the substantial questions in issue, I am therefore of opinion that the Commissioner of Taxation should succeed.
In these circumstances, it is not necessary for me to consider whether the decision of the Taxation Board of Review No. 1 ``involves a question of law'' within sec. 196(1) so as to permit of an appeal to this court and upon this question I do not express any opinion.
It is also not necessary for me to consider whether the Notices of Objections are in form such as to exclude from consideration any of the matters urged by the parties in the present proceedings.
I therefore dismiss both appeals, with costs.
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