A.J.C. Investment Co. Pty. Ltd. v. Federal Commissioner of Taxation.
Judges:Jenkinson J
Court:
Supreme Court of Victoria
Jenkinson J.: Appeal under Div. 2 of Pt. V of the Income Tax Assessment Act 1936 against disallowance of an objection against an assessment of the appellant's taxable income derived during the year of income ended 30th June 1972.
The appellant's objection was to the omission from the calculation of taxable income of an amount of $8,342 which the appellant had claimed as an allowable deduction under sec. 51 of the Act.
During the year of income, and for some years before then, the appellant was one of a small group of private companies owned by members of a family named Anson. Late in 1971 George Anson sold 3,600 ``A'' class shares which he owned in the appellant to another company in the group, Kathan Pty. Ltd., for about $335,000. At about the same time, George Anson and the appellant made an agreement under seal in the following terms:
``This agreement made the 20th day of December 1971 between A.J.C. Investment Co. Pty. Ltd. the registered office of which is situate at the corner of Gardiner and Commercial Roads, North Clayton, in the State of Victoria, (hereinafter called `the Company') of the one part and George Anson of 503 Orrong Road, Armadale in the said State, Company Director (hereinafter called `the Annuitant') of the other part:
WHEREAS
A. For the consideration hereinafter appearing the Annuitant has agreed to purchase and the Company has agreed to sell to the Annuitant an annuity on the terms and conditions hereinafter appearing.
B. The amount of the annuity payable to the Annuitant and the consideration payable by the Annuitant to the Company have been taken from Annuity Table K prepared by the Australian Mutual Provident Society the registered office of which in the State of Victoria is situate at 535 Bourke Street, Melbourne.
Now this agreement witnesseth and the parties hereto covenant and agree as follows:
1. In consideration of the sum of three hundred and thirty-five thousand dollars ($335,000) paid to the Company by the Annuitant, the Company hereby covenants with the Annuitantto pay the Annuitant an annuity of twenty-seven thousand four hundred and three dollars ($27,403) payable by equal consecutive quarterly instalments of six thousand eight hundred and fifty dollars and seventy-five cents ($6,850.75) payable quarterly in arrears the first such payment to be made on the Thirty-first day of March 1972 and to continue until the quarter date immediately preceding the death of the Annuitant.
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2. Notwithstanding anything herein contained or implied, the Company shall be entitled to apply the consideration paid by the Annuitant for its own purposes and its obligations hereunder shall be purely contractual and in no circumstances shall this Agreement be construed to create any Trust between the parties hereto in respect of the annuity.
This Agreement shall be personal to the parties hereto and shall not be capable of assignment or transfer.''
In performance of that agreement, two quarterly instalments of the annuity were paid by the appellant to George Anson in the year of income. In respect of those two payments the sum of $8,342 was claimed as a deduction allowable under sec. 51 of the Act. The sum of $335,000, the amount paid to the appellant by George Anson in performance of the agreement, was lent by the appellant to Kathan Pty. Ltd., which was described in evidence as an investment company, on terms which provided for the payment of interest on the money lent at the rate of $6 per centum per annum from 1st February 1972, and at half yearly intervals. The first payment was to be made on 31st July 1972. The business of the appellant before and during and after the year of income included the lending of money at interest to other companies in the group and to purchasers of real property from it. Another business activity of the appellant was buying and selling land, the sale sometimes being made after the appellant had erected a building on the land it had bought.
When asked to say in what kinds of business activities the appellant had engaged over the three or four years preceding the year of income, the appellant's secretary, and the only director of the appellant who gave evidence, said:
``A.J.C. Investment Pty. Ltd. had a block of flats, and still has, factory buildings and land, block of land, and also provided accounting services for associated companies, and these were the main activities of A.J.C. Investment.''
When asked whether it was the intention of the appellant at the time when the agreement was made to employ the $335,000 in income-earning activities, the same witness testified:
``Yes, it was. We purchased a large block of land in Fowler's Road, Dandenong, and it was the intention to use the $335,000 to build factories, two factories on this block of land, which are still the property of A.J.C. Investment. But the economic climate changed and Mr. Anson, the company board of directors, decided to postpone this building of factories, and we are still having drawings drawn up as far as these factories are concerned, and we applied to the Waverley City Council for a permit, but certainly, at the present time we don't want to go into such an activity because it's very difficult to let such factories. At the moment this is still on the drawing board.''
(Transcript pp. 36-37)
``The intention was that one of the factories would be let and the other would be sold.''
(Transcript p. 39).
In the year of income ended 30th June 1973 the loan of $335,000 to Kathan Pty. Ltd. was repaid shortly after payment of the first instalment of interest thereon, and the appellant's funds have continued during and since that year to be employed in the acquisition of income producing assets and of assets intended to be sold and in loan transactions at interest.
At 30th June 1972 the share capital and reserves of the appellant were shown in its balance sheet at $479,700: represented by net current assets at $351,802, long term loans at $133,218, shares in other companies in the group at $7,000 and fixed assets at $342,403, less long term liabilities at $354,723, of which the annuity fund to which I shall later refer accounted for $329,604.
There was no evidence, nor was it suggested, that the appellant had ever entered into another transaction similar to the grant of this annuity or had ever intended to do so.
The sum of $8,342 is the result of a calculation for the purposes of which the assumption was made that George Anson would die at the expiration of the period which was assumed, for the purpose of formulating the ``Annuity Table K prepared by the Australian Mutual Provident Society'', to be the expectation of life of a man of his age. Annuity Table K does not specify the assumed period: it states in respect of a man aged 58, which was George Anson's age at the time when the agreement was made, the annuity payable quarterly until the quarter day immediately preceding the death of the annuitant for each $1,000 paid to the Society. But the evidence established that, in the calculations by reference to which the Society
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had formulated the table, the mean of the unexpired periods of the lives of a large sample of men of that age was taken to be the annuitant's expectation of life. The mean was 18.667 years, or, perhaps, another number so little different from 18.667 that the difference may be ignored for present purposes. Having made, for the purposes of calculations which I shall specify, the assumption that George Anson would die after the expiration of that period from 31st December 1971, those who prepared the appellant's accounts in respect of the year of income calculated upon that assumption the amount by which the aggregate of the annuity payments to be made by the appellant exceeded the sum of $335,000. A further calculation was made by which it was estimated that, if the sum of $335,000 were regarded as a fund from which, each quarter, the instalment of the annuity was deducted throughout the period of the annuitant's assumed life, and to which, throughout that period an addition was made each quarter of an amount equal to $1.25 per centum on the diminishing balance of the fund, that fund would be exhausted by payment of the last quarterly instalment of the annuity which immediately preceded the assumed expiration of George Anson's life. Those calculations were utilised in casting the accouts of the company in respect of the year of income and in framing the appellant's income tax return for that year.In the appellant's profit and loss account the aggregate of the two quarterly additions to the notional fund was included as an expense, being treated as interest paid to the annuitant. In the appellant's balance sheet a liability of $329,640 was included in respect of the agreement under seal. That sum was the balance as at 30th June 1972 of the fund with which the calculations were concerned, derived by deducting from $335,000 the aggregate of the two instalments of annuity paid and by adding thereto the sum of $8,342, which was the aggregate of the two quarterly additions to the fund. The profit and loss account was proposed in the appellant's return as the primary measure of taxable income, and it was to the elimination for the purposes of assessment to income tax of the $8,342 included in the profit and loss account as ``interest'' that the appellant's objection related.
Before the appellant's objection was lodged calculations of greater mathematical sophistication had been made by an actuary, which showed that the quarterly addition to the fund should, upon the assumption I have stated concerning the duration of George Anson's life, have been of an amount equal to $1.0669 per centum, not $1.25 per centum, of the balance of the fund in order to exhaust the fund by payment of the last quarterly instalment of the annuity before the assumed time of the annuitant's death. The aggregate of the first two additions to the fund, so calculated, is $7,113, in lieu of $8,342. Appropriate adjusting entries have been made in the accounts of the appellant and the notice of objection includes in the grounds thereof both an explanation of the adjustment and the assertion that the quarterly payments of the annuity ``to the extent of $8,342, or alternatively those payments to the extent of $7,113.28, or alternatively some other part of those payments, were losses or outgoings incurred by the taxpayer in gaining or producing assessable income, or were necessarily incurred in carrying on a business for the purpose of gaining or producing such income, and were not in whole or in part losses or outgoings of a capital, private or domestic nature, or incurred in relation to the gaining or production of exempt income''.
Those grounds also include the following alternative contentions, which were not supported by argument of the hearing of the appeal:
``2. Pursuant to the said agreement, during the year of income ended the 30th June 1972 the Taxpayer paid to the Annuitant two instalments of $6,850.75, totalling $13,701.50.
3. The annuitant has brought into his taxable income for the year ended 30th June 1972, the sum of $3,329 being the amount of the said payments less the deduction allowable under sec. 26AA of the Income Tax Assessment Act, namely an amount of $10,372.
6. The payments referred to in para. 2 hereof, or alternatively those payments to the extent of $10,372, or alternatively... some other part of those payments, were losses or outgoings incurred by the taxpayer in gaining or producing assessable income, or were necessarily incurred in carrying on a business for the purpose of gaining or producing such income, and were not in whole or in part
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losses or outgoings of a capital, private or domestic nature, or incurred in relation to the gaining or production of exempt income.''
The question as to whether the annuity payments by the appellant were to any extent ``incurred in gaining or producing the assessable income'' or were ``necessarily incurred in carrying on a business for the purpose of gaining or producing such income'', within the meaning of those phrases in sec. 51, was answered in the Commissioner's submissions in the negative, but counsel for both parties placed first in their arguments the submissions they advanced concerning the further question sec. 51 poses if the first question be answered in the affirmative: were those payments ``outgoings of capital or of a capital... nature''. I shall follow their example.
Two documents were tendered in evidence, each of which purported to be a copy of the resolution of the appellant's directors passed on 20th December, 1971, that the appellant should enter into an agreement in the terms which were subsequently embodied in the agreement under seal. One is part of Exhibit ``A'' and the other is part of Exhibit ``B''. The former document omits reference to so much of the resolution as provided that ``The continued payment of the said annuity during the lifetime of Mr. G. Anson will be secured by a charge over the company's freehold properties'', which were specified in the resolution and the prior charges over which were stated therein.
The document which is part of Exhibit ``B'' and which contains the resolution for a charge may be taken to be an accurate record of the resolution, for it is a photostatic copy of a page in the minute book produced by the appellant's secretary when he was giving evidence, tendered in evidence upon its production, and later withdrawn from evidence under an agreement between counsel in pursuance of which the photostatic copy was substituted in evidence. No other evidence was tendered on the subject of a charge and neither counsel adverted in his submissions either to that subject or to the difference between the two documents.
Mr. Forsyth of counsel for the appellant conceded, or rather founded himself upon the contention, that each annuity payment was to a certain extent an outgoing of capital. It was fundamental, Mr. Forsyth submitted, to the characterisation of such an annuity as is here in question that it be recognised as a repayment of the capital sum in consideration of which it is granted, together with payment of interest in respect of that capital sum; and that each annuity payment consists partly of capital repayment and partly of interest. So much the appellant and George Anson may, in Mr. Forsyth's submission, be seen to have in substance agreed by executing the agreement under seal, without the aid of evidence as to anything the appellant's directors or George Anson may have said in negotiation for the agreement under seal, or may have thought in the course of determining whether to make that agreement. The extent to which any particular instalment payment of the annuity would consist of repayment of capital and payment of interest respectively was ascertainable by the parties when they made the agreement, Mr. Forsyth said, because all the numbers required to be known for the calculation of those amounts were either known or easily ascertainable and there was in this case no difficulty of the kind which the High Court exposed in
Egerton-Warburton v. D.F.C. of T. (1934) 51 C.L.R. 568 at 574-575, when the Court was considering para. (d) of the definition of ``income'' in sec. 4 of the Income Tax Assessment Act 1922-1933.
To the objection that the uncertainty of duration of the annuitant's life made such a calculation liable to subsequent invalidation Mr. Forsyth responded by treating the agreement as involving, in addition to repayment of capital together with interest thereon, a wager between the parties upon the question as to whether the annuitant's life would extend beyond, or would fall short of the assumed date of the annuitant's death if that life did not end on the assumed date. By selecting, in their choice of Annuity Table K, the mean of the periods of survival of the males aged 58 who had been sampled instead of the medium age of the sample, the parties had, however, failed to assure perfect equality of odds in the wager suggested by Mr. Forsyth.
One response to Mr. Forsyth's characterisation of the annuity is that which a Board of Review first expressed in rejection of a similar submission in a similar case (Case E48,
73 ATC 392). It is the response which juristic analysis according to general legal principles of the purchase of an annuity for a money price evokes.
``Let me take the simple case of a contract under which in consideration of a single
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payment by B, A agrees to pay to him an annuity for a period of years. The legal nature of such a contract is beyond question. The property in the sum paid by B passes absolutely to A; no relationship of debtor and creditor with regard to that sum is ever constituted. The sum as a sum ceases to exist when once it is paid. Its place is taken by A's promise to pay the annuity and B's only right is to demand payment of the annuity as it accrues due. If A repudiates the contract, B may sue for damages, the measure of damages being the sum of the payments still remaining to be paid, subject to discount.''(Per Greene M.R. in
Sothern-Smith v. Clancy (1941) 1 K.B. 276 at 283.
Cf. Young v. Queensland Trustees Ltd. (1956) 99 C.L.R. 560.)
Such an analysis is inconsistent with the concept, upon which Mr. Forsyth's argument depends, of the repayment to the annuitant of money owed to him by the appellant. Such inconsistencies are, however, not unknown in revenue law.
``The truth is that, in excluding as deductions losses and outgoings of capital or of a capital nature, the income tax law took for its purposes a very general conception of accountancy, perhaps of economics, and left the particular application to be worked out, a thing which it thus became the business of the courts of law to do. The courts have proceeded with the task without, it is true, any very conspicuous attempt at analysis, but rather in the traditional way of stating what positive factor or factors in each given case led to a decision assigning the expenditure to capital or to income as the case might be.
It is one thing to say that the presence among the circumstances of a case of a particular factor places the case within a specific legal category. It is another thing to infer that the absence of the same factor from some other case necessarily places that case outside the category and gives it an opposite description. But towards that kind of fallacy human reasoning constantly tends, and the decisions upon matters of capital and income contain much reasoning that is quite human.''
(Per Dixon J., in
Hallstroms Pty. Ltd. v. F.C. of T. (1946) 72 C.L.R. 634 at 646.)
Regard to analytical conceptions in the law of contract has not in England suppressed admiration of the reasoning upon which Mr. Forsyth based his submission: see
I.R. Commrs. v. Church Commissioners for England (1976) 3 W.L.R. 214; (1976) 2 All E.R. 1037, and the cases discussed in the speech of Lord Wilberforce.
No evidence was tendered of any express agreement between the parties to the agreement under seal that the annuity payments were, or were to be treated as, in part repayment of the money paid by George Anson and in part payment of interest on that money. The written agreement is the only evidentiary source of the bargain the parties made.
The only evidence adduced as to the appellant's purpose in entering into the agreement was given by George Somogyi, who has been a director and the secretary of the appellant since 1961. He gave evidence as follows:
``A.J.C. Investment was considering Mr. Anson's suggestion and obtained a quotation from the AMP Society which I mentioned before, and we thought if Australian Mutual Provident Society can give such an annuity to Mr. Anson for a certain amount, then A.J.C. Investments, having possibilities in different investment spheres, might do it better, and we thought the AMP Society would make a profit on their quotation, and maybe that profit could be kept in the present organisation. Therefore A.J.C. would be better suited to make the same deal for Mr. Anson as AMP Society would do. That was the reason why we accepted the proposition and entered into this annuity agreement.''
At the time when the appellant's directors resolved that the appellant should enter into the agreement under seal, and at the time when the agreement was made, there were two other directors of the appellant: Dr. Julia Anson and her father George Anson, the proposed annuitant. There was evidence from which it might be inferred, and I shall assume, that the directors considered information and opinion furnished by a doctor or doctors with respect to George Anson's health and his prospects of survival. The evidence does not persuade me that the appellant's board of directors, or any of the directors, had as a purpose of the appellant's entering into the agreement the making by the appellant of a profit arising in consequence of George Anson's failure to survive for any period, nor that the board or
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any of the directors had as a purpose of the appellant's entering into the agreement the acquisition by the appellant of the chance of making a profit in consequence of such a failure. No suggestion was made by counsel for the appellant that any such a finding ought to be made, or would advance the appellant's claim for the deduction which is the subject of the appeal.The two questions which immediately followed the evidence of Mr. Somogyi I have quoted, together with other evidence adduced by Mr. Forsyth, indicate that the appellant's purpose in entering into the agreement was to obtain funds for use in the conduct of its business at a cost to the appellant which it was hoped would permit a profitable return on those funds. Those two questions, with the answers, were:
``Over the years had A.J.C. Investment had the need for substantial funds from time to time?''
- Answer: ``Yes, we did.''
``Had it always been able to find suitable employment for any funds that were available to it?''
- Answer: ``Yes, yes, always we had possibilities and we invested in land and after this date we purchased land which if you are going through the balance sheet you will see that certain land, we sold and we bought different other lands which was a better proposition for the company than...''
After referring to these passages in the evidence, Mr. Forsyth submitted that ``the general purpose of the company in entering into the annuity agreement was to get the $335,000 for employment in its activities upon the basis that it thought that it could use the money to make a better return than the AMP was prepared to pass on to the annuitant.'' In my opinion the payment of the $335,000 by George Anson to the appellant must be regarded as having been received by the appellant as a capital asset. The contrary was not suggested by Mr. Forsyth. Attention should turn then, in my opinion, to the two instalments of the annuity paid during the year of income and, in respect of those payments, to a consideration of the matters which Fullagar J. comprehended in
Colonial Mutual Life Assurance Society Limited v. F.C. of T. (1953) 89 C.L.R. 428 at 454 by the question; ``What is the money really paid for?'', and which Dixon J. listed in
Sun Newspapers Limited & Associated Newspapers Limited v. F.C. of T. (1938) 61 C.L.R. 337 at p. 363, third of the three matters to be considered in determining whether an outgoing is of a capital or of a revenue nature -
``(c) the means adopted to obtain (the advantage sought); that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment, or by making a final provision or payment so as to secure future use or enjoyment.''
As to the other two matters specified by Dixon J. in the latter case: if the advantage sought and obtained be correctly characterised as a capital asset of the appellant when received, and if no indication exists, as none in my opinion exists in this case, that the acquisition of the asset constituted for this appellant a step in the process of operating its profit yielding subject, rather than what I think the acquisition was, a substantial and unusual enlargement of that subject, then nothing in my opinion turns on the distinction which Mr. Forsyth sought to draw between a sum of money, which is the asset obtained in this case, and a fixed asset of a permanent character such as land, which was the asset obtained in Colonial Mutual Life Assurance Society Limited v. F.C. of T. supra.
In support of the appellant's case evidence was adduced from several accountants, well qualified to express opinions, concerning the appropriate provision to be made in the appellant's accounts with respect to the transactions with which I am concerned. Their evidence was not contradicted. They were unanimous in their opinions that the proper provision had been made in those accounts. One of them gave evidence that he had had experience of the same provision in accounts prepared by other accountants in similar circumstances and that he believed his opinion to be generally accepted in the accountancy profession. The evidence of those witnesses included a critique of other possible provision in the appellant's accounts, consistent with allocation of the whole of each annuity payment to capital. The witnesses were of the opinion that any such a provision would prevent fulfilment of the purpose of the accounts, that is, to provide an accurate and fair view of the economic activity and position of the appellant.
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The course which the appellant took in formulating its accounts and which the expert evidence of the accountants approved, involved the selection of a specified future date as the time of George Anson's death. Until such a selection is made, no assertion is possible that any part of any annuity payment can be conceived as interest on the sum paid by George Anson to the appellant.
The evidence, that the median of the periods of survival in the sample upon which Annuity Table K was based was about eighteen years, may justify the inference that it is more probable than not that George Anson will live beyond the time at which the annuity will, if duly paid in performance of the agreement, aggregate $335,000, that is, a time more than twelve but less than thirteen years after 31st December 1971. But the evidence does not justify a finding that the year selected by the appellant's advisers, for calculation of the claimed deduction, as the year of George Anson's death, that is, more than eighteen but less than nineteen years after 31st December 1971, or any other year which might be selected for that purpose and which is later than the time at which the annuity payments will aggregate $335,000, is more probably than not the year of that death.
Allowance of a deduction for interest in this transaction cannot, in my opinion, be justified by reference to the considerations which justified allowance of estimated sums in respect of outgoings of the kind in question in
R.A.C.V. Insurance Pty. Ltd. v. F.C. of T. 74 ATC 4169; (1975) V.R. 1, where reliable estimation of the amount which will in the future be payable in respect of a large number of transactions, can be derived from the experience of a multitude of past transactions. This appellant cannot claim reliability of estimation for its purpose, because the prediction required is of the duration of one life, and not of the average duration of many lives.
If it were relevant to the determination of the appeal, I would not be persuaded that George Anson (whom I have not, to my knowledge, seen) will survive the date on which the annuity payments will aggregate $335,000. Notwithstanding the evidence of average expectation of life and the evidence of George Anson's good health, I have no belief that he will attain his seventieth birthday, I can accord neither credence nor disbelief to the suggestion that he will attain that age. (See sec. 190(b) of the Income Tax Assessment Act 1936,
Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at 360-363, and compare the article by the Honourable Sir Richard Eggleston Q.C. in 4 M.U.L.R. 180.)
It appears clearly enough, in my opinion, from the reasoning of Fullagar J. in Colonial Mutual Life Assurance Society v. F.C. of T. (1953) 89 C.L.R. 428, and in particular from his Honour's explanation of Egerton-Warburton v. D.F.C. of T. (1931) 51 C.L.R. 568, that payments of an annuity for the duration of a life are to be regarded as wholly of a capital nature if they are made on account of the price of a capital asset acquired, or, to employ the language of Dixon J. which I have quoted from The Sun Newspaper case, if they are made as ``a final provision or payment so as to secure future use or enjoyment'' of the advantage sought by the grantor.
To say of a class of bargain, as Mr. Forsyth said, with justification, of the bargain for an annuity for life in consideration of a present payment of a lump sum, that its financial terms are always determined in expectation of the annuitant's receiving back the amount he is to pay and an addition for interest on what he is to pay, calculated by reference to average expectation of life, is not, in my opinion, to provide an answer to the question whether, either in substance or in form, the bargain is for interest as well as principal, or capital, or repayment of what the annuitant has paid. Such expectations of the parties may well have decided them to make the bargain, but what the bargain was must be ascertained by examining its terms and, if substance be looked for, the certain and the probable and the possible results of its performance.
In my opinion the appellant's covenant to pay the annuity is, in form and in substance, the promise of a price for the $335,000 received, and can be recognised as a final provision to secure the future use and enjoyment of that sum. The uncertainty which the terms of the covenant create as to the length of the period during which payment in performance of the covenant will be made precludes, in my opinion, description of the instalments it prescribes, or description of specified parts of those instalments, as periodical rewards to cover use or enjoyment of the $335,000 for periods commensurate with the instalments, or with specified parts thereof.
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In this particular case form and substance both indicate, in my opinion, an outgoing wholly of a capital nature, notwithstanding the analysis which the accountants make of the transaction.
The conclusion I have stated is, I think, consonant with the reasoning of Fullagar J. in Colonial Mutual Life Assurance Society Limited v. F.C. of T., in whose reasons for judgment Kitto and Taylor JJ. concurred. Those reasons relieve me of any anxiety I might otherwise have felt that my conclusion was in conflict with the Egerton-Warburton case; and they have afforded authoritative guidance in the use which may legitimately be made of reasoning in cases concerned with the characterisation as capital or income of payments received by the taxpayer. (See 89 C.L.R. at pp. 452-453, 455-457.) Careful regard was paid to cases of that kind in the submissions of both counsel. It is sufficient to say that those cases, examined in the light which that guidance afforded, did not, in my opinion, assist the appellant.
The conclusion I have reached makes it unnecessary for me to decide whether any part of either of the instalments of the annuity paid in the year of income was an outgoing incurred in gaining or producing the appellant's assessable income or was necessarily incurred in carrying on a business for the purpose of gaining or producing such income, and I refrain from doing so.
The order of the court is that the appeal be dismissed.
DR. SPRY: If the court pleases, we ask for an order for costs in the circumstances?
HIS HONOUR: Is there any practice - was it the practice, I do not remember, of the High Court to make an order for costs?
DR. SPRY: To the best of my knowledge the taxpayer would obtain costs if he succeeded and the Commissioner would obtain costs if the Commissioner succeeded.
HIS HONOUR: Is there anything you wish to say on that matter?
MR. FORSYTH: No, I cannot, resist my learned friend's application.
HIS HONOUR: There will be an order that the respondent's costs of the appeal be taxed and paid by the appellant.
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