Federal Commissioner of Taxation v. Efstathakis.

Members: Bowen CJ

Brennan J
Deane J

Tribunal:
Full Federal Court

Decision date: Judgment handed down 12 June 1979.

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Brennan J.: I have had the advantage of reading the judgment of the Chief Judge and I agree with it. I would add some brief observations.

The consideration which the taxpayer gave for the salary which she was paid was her work in Sydney as a secretary. That work was performed pursuant to her appointment as a secretary-typist of the Greek Press and Information Service in Sydney and as part of her duties as a permanent public servant of the Greek Government. She sought her appointment in Greece, the appointment was made by a Greek Ministry, and the funds which she ultimately received as her salary from time to time had their origin in Greece.

No doubt the taxpayer's Greek origins commended her, but her entitlement to her salary did not depend upon the retention of a Greek domicile. The skills which she employed in the performance of her duties were not shown to be distinguishable from skills available in a local workforce, and her appointment to work in Sydney was for an indefinite period. The taxpayer is simply a person who, proposing to live in Australia, sought and obtained a job in an Australian location from an employer in her country of origin. She was at all material times an Australian resident and although she was liable to be posted elsewhere, she was at liberty in that event to resign her post and would probably have done so. In
F.C. of T. v. Mitchum (1965) 113 C.L.R. 401 , Barwick C.J. said at p. 408 that it is not necessary ``to hold that in every case where work forms the consideration for wages or salary paid, the

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ATC 4261

source of the income constituted by the wages or salary is in the place where the work is done''. But in
F.C. of T. v. French (1957) 98 C.L.R. 398 , a temporary posting of an Australian employee by an Australian employer to New Zealand led to a finding that the income derived from his service there was derived from a source outside Australia. In the present case, the work done in Australia is, more clearly than the work in French's case , the source of the salary paid.

``In each case,'' Barwick C.J. said in Mitchum's case (supra), at p. 407, ``the relative weight to be given to the various factors which can be taken into consideration is to be determined by the tribunal entitled to draw the ultimate conclusion as to source... there are no presumptions and no rules of law which require that that question be resolved in any particular sense.'' The circumstances of the case must be evaluated and weight given to some factors rather than others according to the tribunal's sense of what is appropriate. In this case, the circumstances I have referred to lead me to the conclusion that Australia is the source of the taxpayer's income.

No question has been raised as to whether the appeal from the Board of Review to the Supreme Court involved a question of law. It was assumed before the Supreme Court that the appeal was competent and that assumption was not challenged in this Court. Assuming the jurisdiction of the Supreme Court to hear and to dismiss the appeal, the right of appeal to this Court entitles and requires it to determine all questions of fact and of law which arise in the appeal. Whether the ascertainment of the source of the taxpayer's income be characterized as a question of fact or as a question of law, it is the duty of this Court to reach its own conclusion and to give effect to it by its order, though it must allow for any advantages in the finding of facts which the Court of first instance enjoyed. There is no relevant advantage in this case.

In my judgment the conclusion arrived at by the learned trial judge was wrong, and I would therefore allow the appeal and make the order for costs proposed by the Chief Judge.