Glebe Administration Board v. Commissioner of Pay-roll Tax (N.S.W.).

Priestley JA

McHugh JA

Supreme Court of New South Wales (Court of Appeal)

Judgment date: Judgment handed down 18 September 1987.

Priestley J.A.

The questions in issue

By four notices, covering the period from 1 September 1971 to 9 December 1979, the New South Wales Commissioner of Pay-roll Tax notified the Glebe Administration Board that assessments had been made in accordance with the Pay-roll Tax Act 1971 and that the Board was liable to pay pay-roll tax and additional tax as set out in the notices. The Board was a body corporate controlled by the Synod of the Church of England Diocese of Sydney. The Board duly gave notices of dissatisfaction with the assessments. Following disallowance by the Commissioner of these objections the Board appealed to the Supreme Court where the matters came before Rogers J. [83 ATC 4269] late in 1982. On 1 December 1982 after stating his reasons Rogers J. dismissed each of the appeals.

The Board then further appealed to this Court where the appeal was brought on in June of this year.

There were two questions in issue on the appeal to this Court. (1) Was the Board a religious institution within the meaning of sec. 10(b) of the Act? (2) If no to (1) (which was conceded before Rogers J. to be the right answer) were the wages paid to the Board's employees wages paid by the Church of England Diocese of Sydney within the meaning of sec. 10? (Amongst various candidates as the relevant institution, counsel for the Board nominated the Church of England Diocese of Sydney as the preferred one. That the Diocese of Sydney is a religious institution was not contested by the Commissioner, in my opinion correctly.)

The taxing Act

At the time the New South Wales Pay-roll Tax Act 1971 was enacted sec. 6(1), so far as relevant, was as follows:

"6(1) Subject to section ten of this Act, the wages liable to pay-roll tax under this Act are wages that are paid or payable by an employer after the month of August, one thousand nine hundred and seventy-one (whether in respect of services performed or rendered before, during or after that month), and -

  • (a) are wages that are paid or payable in New South Wales (not being wages so paid or payable in respect of services performed or rendered wholly in one other State);
  • (b) are wages that are paid or payable elsewhere than in New South Wales in

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    respect of services performed or rendered wholly in New South Wales; or
  • (c) are wages that are paid or payable elsewhere than in Australia in respect of services performed or rendered mainly in New South Wales,


The term "wages" was defined in sec. 3(1) of the Act as meaning:

"any wages, salary, commission, bonuses or allowances paid or payable... to an employee as such..."

and the term "taxable wages" as meaning:

"wages that, under section 6, are liable to pay-roll tax."

Section 8 was as follows:

"Pay-roll tax shall be paid by the employer by whom the taxable wages are paid or payable."

The side note to sec. 10 of the Act was "Exemption from pay-roll tax". The section took the following form:

"The wages liable to pay-roll tax under this Act do not include wages paid or payable -

  • (a) by the Governor of a State;
  • (b) by a religious or public benevolent institution, or a public hospital;
  • (c) by a hospital which is carried on by a society or association otherwise than for the purpose of profit or gain to the individual members of the society or association;
  • (d) by a school or college (other than a technical school or a technical college) which -
    • (i) is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association and is not carried on by or on behalf of the State of New South Wales; and
    • (ii) provides education at or below, but not above, the secondary level of education;
  • (e) by a council, except to the extent that those wages are paid or payable -
    • (i) for or in connection with; or
    • (ii) for or in connection with the construction of any buildings or the construction of any works or the installation of plant, machinery or equipment for use in or in connection with,

    the supply of electricity or gas, water supply, sewerage, the conduct of abattoirs, of public food markets, of parking stations, of cemeteries, of crematoriums or of hostels or of any other activity that is a trading undertaking within the meaning of Part XVII of the Local Government Act, 1919, or is a prescribed activity;

  • (f) to members of his official staff by -
    • (i) a consular or other representative (other than a diplomatic representative) in Australia of the Government of any other part of Her Majesty's dominions or of any other country; or
    • (ii) a Trade Commissioner representing in Australia any other part of Her Majesty's dominions:
  • (g) by the Commonwealth War Graves Commission;
  • (h) by the Australian-American Educational Foundation; or
  • (i) to a person who is a member of the Defence Force of the Commonwealth or of the armed force of any part of Her Majesty's dominions, being wages paid or payable by the employer from whose employment the person is on leave by reason of his being such a member."

Some complication is caused by the fact that effectively from 1 January 1978 sec. 10 was amended by its being converted into sec. 10(1) and by the insertion of subsec. (2) and (3). On one view it would be possible for different results to be reached concerning the periods from 1 September 1971 to 31 December 1977 and 1 January 1978 to 9 December 1979. I will therefore set out the relevant part of the amending provisions at this point, but will follow the course adopted by counsel in argument and deal only with the Act as originally enacted until it becomes necessary to discuss the difference if any made by the 1977

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amendments. By them, there were inserted before the words "the wages" in sec. 10 the words "(1) Subject to subsection (2)," and then the following paragraphs were added to sec. 10(1):

"(j) by a charity within the meaning of the Charitable Collections Act, 1934, which is registered or which is exempted from registration under that Act (other than a school or college or a statutory body);

(k) by a society or an institution (other than a school or college or a statutory body) which -

  • (i) is, in the opinion of the Commissioner, a charitable society or institution; and
  • (ii) is for the time being approved by the Commissioner for the purposes of this paragraph; or

(l) by a statutory body which -

  • (i) is, in the opinion of the Minister, a charitable statutory body; and
  • (ii) is for the time being approved by the Minister for the purposes of this paragraph."

Subjection (2) was as follows:

"Paragraphs (j), (k) and (l) of subsection (1) only operate so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable to employees in respect of time when they are engaged in charitable work within the charity, society, institution or statutory body."

By subsec. (3) "statutory body" in the newly added paragraphs to sec. 10(1) was said not to include a company incorporated pursuant to the Companies Act.

Fresh argument raised on appeal;

original argument maintained

The fact that the Board had employees to whom it paid wages from 1 September 1971 to 9 December 1979 has never been disputed by the Board. Nor, before Rogers J., did the Board contend that it was itself a religious or public benevolent institution. His Honour indicated that he thought that concession was rightly made. Before this Court the Board sought leave to withdraw that concession. Counsel for the Commissioner did not submit that the Commissioner could be prejudiced, in the relevant sense, by the withdrawal of the concession at that stage of the proceedings. The Board was permitted to argue the point. The Board also continued to rely on the submission it had made before Rogers J., that for any one of several reasons the wages paid by the Board to its employees fell within the meaning of the words in sec. 10 of the Act "wages paid or payable... by a religious... institution". The various reasons relied on all involved the proposition that in substance the wages of the Board's employees were paid by the Church of England, Diocese of Sydney.

Was the Board a religious institution at relevant times?

Preliminary. At first I thought this question could be answered relatively shortly, but then I came to think it would not be safe to do so without identifying the trusts upon which the Board held the property that it managed. The attempt to do this meant looking at the history of the Diocese of Sydney in some detail. It also meant considering some matters, such as the legal aspects of church organisation, which are relevant also to the second question.

At the time when for present purposes it is convenient to begin looking at the organisation of what is in 1987 called the Anglican Church in the State of New South Wales, it was called the United Church of England and Ireland in New South Wales. During the period to which the pay-roll tax assessments relate the name was the Church of England in the State of New South Wales. To avoid the complications caused by use of the different names in various statutes I will in these reasons simply use the name "the Church". This will usually mean the Church in New South Wales although sometimes the context will show that it means the whole Church wherever located.

Some legal features of Church organisation. The Church has always been an unincorporated voluntary association. That is, what has been called the Church has never been a legal entity, but simply a name describing those persons voluntarily associating themselves in what the present constitution of the Church in Australia describes as "the one Holy Catholic and Apostolic Church of Christ" ( Church of England in Australia Constitution Act 1961 (sec. 1)). The historic custom of this Church has been to use the diocese as the unit of organisation, and the Church continues to organise itself in accordance with this custom

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(sec. 7). A diocese does not appear to be in any sense a legal entity, but a geographical area within which the members in that area of the voluntary association making up the whole Church are organised in accordance with rules issuing from various bodies from within the whole Church ranging from rules affecting more members of the Church than those in the diocese (coming from supra diocesan bodies) to those of purely intra diocesan effect, from diocesan bodies. The principal diocesan body is the Synod of the diocese.

The history of the holding of "church property" must be very complicated, extending as it does over a very long period during which there has been constant and substantial change in the laws relating to property. I shall therefore restrict my attempt to describe the way in which "church property" has been held during the past 120 years in New South Wales to modern legal ideas and language.

The underlying legal rules were substantially the same in 1866 as they are now. The legal ownership of property could only be by a legal entity or entities; a person, persons, a corporation, corporations, a person with a corporation, persons with a corporation, a person with corporations or persons with corporations. Hence, when it was intended that property be owned by the Church, the legal ownership of that property had to be vested in a legal entity or entities, as it was impossible for it to be owned by all the individuals who comprised the total membership of the voluntary association called the Church. To state the obvious, that entire membership could never even be listed at any particular time. Property could only effectively be placed in "church ownership" by vesting it in a legal entity or entities bound to hold it on trust for Church purposes. For this trust to be enforceable by legal sanction (and to avoid invalidation by the rule against perpetuities) the purposes for which the trustee was bound to hold the property had to be charitable purposes, that is either:

Within this framework persons who wished to give property for charitable purposes connected with the Church could do so in different ways. The most general way presumably would be for the advancement of religion in accordance with (to use the description from the Church's current constitution) the Christian faith as professed by the Church of Christ from primitive times and in particular as set forth in the creeds known as the Nicene Creed and the Apostles' Creed. Some of the more particular ways appear in the cases, recent examples with which this Court has dealt being trusts for the assistance of candidates training for Holy Orders and for the maintenance of Bishops of new dioceses: Lovett v. Permanent Trustee Company (Court of Appeal, 24/3/87). The types of particular religious charitable purposes must be unendingly various. So also must be purposes which although for the benefit of a church in a general way, are not charitable, as for example in
Davis v. Perpetual Trustee Co. Ltd. (1959) A.C. 439 .

Statutory modification. Thus, what was in a popular sense "church property" in New South Wales in 1866 was in legal terms property owned by a miscellany of different trustees bound by different trust instruments to apply the property entrusted to them for the particular religious or/and other charitable purposes stated in the trust instrument. Clearly, the elements of diversity in this situation could lead to complexity and expense in administration and perhaps to some confusion. In 1866 a private Act of the New South Wales Parliament (the Act thirtieth Victoria) took steps towards simplifying and facilitating the administration of church property. The Act illustrates several points:

"An Act to enable the Members of the United Church of England and Ireland in New South Wales to manage the Property of the said Church. [4th October, 1866.]

Whereas at a General Conference of Bishops and Clerical and Lay Representatives of the existing Dioceses of the United Church of England and Ireland in New South Wales convened and held in the

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city of Sydney in the month of April one thousand eight hundred and sixty-six certain articles and provisions were agreed to and accepted as Constitutions for the management and good government of the said Church. And whereas such agreement cannot as regards the management of the property of the said Church be carried into effect without the aid of the Legislature in manner hereinafter provided Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows: -
  • 1. The several articles and provisions contained in the said Constitutions and any rules and ordinances to be made under or by virtue or in pursuance thereof are and shall for all purposes connected with or in any way relating to the property of the said United Church of England and Ireland within the Colony of New South Wales be binding upon the members of the said Church. And all persons now or at any time hereafter holding any real or personal estate in trust for or in any way on behalf or for the use of the said Church except in so far as such real or personal estate may be the subject of any express trust and then so far as such express trust shall not extend shall hold the said real and personal estate subject to the said rules and shall be bound thereby as fully in all respects as if the said rules were contained in a deed of conveyance and trust of the said real and personal estate.
  • 2. Provided always that no rule or ordinance to be made under or by virtue or in pursuance of the said Constitutions shall be in contravention of any law or statute in force for the time being in this Colony.
  • 3. Provided also that within three months after the passing hereof a copy of the said Constitutions so agreed to and accepted as hereinbefore mentioned shall be recorded in the Supreme Court and the same or a duly certified copy thereof shall be evidence of the said Constitutions."

The Act recognised the Church as an association of individual members. Although on the other hand, use of the phrase "the property of the Church" illustrated the popular tendency to think of the Church as an entity capable of owning property in contrast to the actual legal situation, the need for the Act itself, to permit management of that property, was the result of the legal actuality. The method adopted was by sec. 1 of the Act to make the Church constitutions, and ordinances made under them, binding by force of statute upon all Church members for all purposes connected with Church property. Section 1 also conferred a somewhat enigmatic power to vary existing trusts which suggested distinct limits to the power to vary.

The next important step was taken by a private Act of 1881 which recited the "Act thirtieth Victoria" and the desire of "the Members of the Church" that "in order to enable them to carry out the powers of management conferred by the said Act the property of the said Church should be vested in corporate bodies of Trustees...". The Act then provided for the establishment of a board of trustees in each diocese of the Church which should be a body politic and corporate and in which there was to be vested "the property real and personal of the said Church in such diocese" (sec. 2). A specific power of sale and of leasing for up to 99 years was given to such corporate bodies of trustees, subject to the later provisions of the Act (also sec. 2). Section 5 required that property becoming vested in any corporate body of trustees if affected by any express trust must be held by that corporate body subject to and in conformity with such express trust. It was only subject to such trust that the property could be managed as the Synod directed.

That not all Church property (in the general sense) became vested in the corporate body of trustees for the Diocese of Sydney following upon the 1881 Act is shown by sec. 2 of a further private Act, the Sydney Bishopric and Church Property Act, 1887. More importantly, this section conferred upon the Synod of the Diocese of Sydney power to vary the trusts upon which Church property was held when by reason of circumstances since the creation of the trusts it had in the opinion of the Synod become impossible or inexpedient to carry out or observe the particular purpose or purposes of

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the trusts. Although this power of variation was not subject to such restriction as that conferred by the 1881 Act it was applicable only to express trusts upon which land was held "for the use and benefit of the Church", an expression whose meaning could readily be the subject of argument.

Next, relevantly to the Diocese of Sydney, the Church of England Property Act 1889 conferred on all Synods the power of letting lands on building, mining or occupation leases "for the purpose of obtaining income therefrom in furtherance or aid of the trusts attached to the same" or for "substituted purposes" determined by the Synod (sec. 3). Later sections of this Act conferred further practical powers upon trustees of Church property.

In 1897 the Church Acts Repealing Act made administration of property held for any parochial church purpose much simpler. Such property except lands, the management of which must be specially provided for by Ordinance of Synod or by Act of Parliament, was to be held subject to the provisions of any ordinance in force in the diocese freed from its trust deeds and any church Acts, "but not diverted from the purposes to which" it was "devoted" (sec. 2). There again, although there was a distinct clearing away from church property of trust obligations, the property to which it applied and the meaning of the qualification "not diverted from the purposes", etc., were matters of some obscurity.

In 1902 sec. 5 of the Church of England Constitutions Act Amendment Act 1902 restated the terms upon which persons holding any property in trust for or in any way on behalf or for the use of the Church of England held such property, in much the same way as the Act thirtieth Victoria, which it repealed without prejudice to anything done under it, and leaving the Acts of 1881, 1889 and 1897, together with their difficulties, untouched.

Current relevant statutes. The Acts I have so far mentioned, in the words of the preamble to the Church of England Trust Property Act 1917, both dealt with property held upon any trust for the use, benefit or purposes of the Church in dioceses in New South Wales and conferred powers upon the Synods of those dioceses. The preamble to the 1917 Act continued by describing the earlier Acts as numerous, ambiguous and discursive. The Act then repealed them, with appropriate savings (sec. 2(1) and (2)) and applied its own provisions to everything done under the repealed Acts. The incorporation provisions of the 1881 Act were re-enacted in an improved form (sec. 6) and the Church of England Property Trust Diocese of Sydney and other diocesan corporate trustees were declared to have been duly constituted under the 1881 Act and to remain so under the new Act (sec. 5). The vesting provisions of the 1881 Act were likewise re-enacted in new form (sec. 20 and 21); pursuant to these sections the trustees held the property on the same trusts as before. Sections 24 and 25 conferred power upon the Synod of a diocese by ordinance to provide and vary powers of management. Section 26 then provided a clarified dealing power, making it lawful for the Synod of a diocese:

"for which any church trust property is... held if it shall appear to such Synod expedient by reason of circumstances subsequent to the creation of the trusts of such property by ordinance to direct that such property be sold exchanged mortgaged or let on mining, building, occupation, or other leases or otherwise dealt with in manner provided by such ordinance..."

Although this section, considered in the light of the definition in sec. 4 of "church trust property" as property "subject to any trust... for or for the use benefit or purposes of the Church of England in any diocese", makes the position considerably clearer than it was before, it still seems to me to leave some room for argument about what may be "church trust property" in some circumstances.

Section 31 gave a power of temporary investment of moneys arising from sale, exchange, etc., in specified ways "or otherwise as... any ordinance of the Synod of the... diocese... may provide". Section 32 provided for a wide power to Synods of dioceses to determine trusts by ordinance after forming the opinion it was impossible or inexpedient to carry them out:

"... and by the same or any subsequent ordinance to declare other trusts for or for the use, benefit, or purpose of the Church of England within the said diocese instead of such firstmentioned trusts..."

Glebe Administration Ordinance 1930. Pursuant to the powers in the 1917 Act the

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Synod of the Diocese of Sydney in 1930 made an ordinance called the Glebe Administration Ordinance. The recitals to this ordinance referred to the vesting of various lands in trustees on trusts connected with the Church in the diocese and the subsequent vesting of such lands in the Church of England Property Trust Diocese of Sydney and then declared that by reason of circumstances subsequent to the creation of those trusts it had become inexpedient to carry them out and it was expedient to vary them as later set out in the ordinance. The ordinance was amended from time to time after 1930, but in argument before the Court counsel referred to it as it stood at 1970, on the footing that amendments to it both before and after that time did not affect it in ways material to the issues before the Court. Accordingly I will speak of it by reference to its form in 1970 as if that had been its form throughout.

The membership of the Board consisted of the Archbishop of Sydney and 12 others elected by the Standing Committee of the Synod of the Diocese of Sydney (cl. 5). The Standing Committee could declare the existence of a vacancy on the Board for (inter alia) any reason it specified and then elect another member in his place (cl. 6). Clauses 5 and 6 thus enabled the Synod, through its Standing Committee, to maintain control of the Board in a practical sense. By cl. 13 of the Ordinance, the Board was given absolute and full powers of managing and controlling various Glebes "or such other church trust property of which it may be appointed a trustee (such church trust property being in this cl. 13 included in the expression `the said Glebes')". Clause 13 then said that without limiting the generality of the powers already conferred, the Board might let or demise the said Glebes (subject to certain restrictions), do various things incidental to such letting or demising, subdivide the said Glebes, build new buildings in the said Glebes, borrow money on the security of the said Glebes for cl. 13 purposes and use the revenues of the said Glebes not otherwise appropriated for any cl. 13 purposes. These powers did not include a power of sale. Clause 13 ended with a proviso that leases by the Board must contain a covenant restricting the use of the demised premises to uses to which in the opinion of the Board at the time of grant the premises might be suitably put and further contain covenants preventing the use of the premises for any illegal or immoral purpose as well as some specified purposes such as the sale of tobacco, gambling, betting, the manufacture, sale, distribution or consumption of liquor, anything connected with narcotic drugs (except as part of the ordinary business of a pharmacist) and trade on Sundays with some exceptions.

Clause 14 of the ordinance required the Board to prepare accounts each year showing the balance of the total gross rents issues and profits from the Glebes less rates, other statutory outgoings, repairs, maintenance and other normal expenditure associated with the administration of the said Glebes. Clause 14 then required the Standing Committee of the Synod to determine how much of that balance should be remitted to the Standing Committee. At least one fourth of the balance for any year was to remain with the Board, subject to a procedure whereby the Board might be called on to make further remittances. All amounts retained by the Board were for the administration and development of the said Glebes. Clause 16 empowered the Board to invest any moneys received by the Board and not immediately required to be applied under the Ordinance in investments including real or leasehold estate within the Commonwealth, mortgages of land within the Commonwealth and certain types of loans.

Although the preamble had said it was expedient to vary the trusts on which the property had until then been held "as later set out in the ordinance" the ordinance nowhere made explicit either what the terms of the pre-existing trusts were, or what variations were made.

Incorporation of the Board. Under the Glebe Administration Ordinance as it stood in 1930 all the trust property to which it referred was vested in the corporate trustee the Church of England Property Trust Diocese of Sydney. The Board was a manager, with extensive powers of management. It was also unincorporated, a possible source of inconvenience which was remedied by the Church of England (Bodies Corporate) Act 1938 sec. 3(1) which provided that the members for the time being of the Board "shall be a body corporate under the name of the `Glebe Administration Board"'. Section 9(1)(a) vested all property held upon "any trust for the management, government or control of which

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the Glebe Administration Board is constituted" in the Board. Section 9(3) deemed all property so vested to be church trust property within the meaning of the 1917 Act, and that Act was to apply to such property. Section 9(5) explicitly put the Board in exactly the same position as trustee as the previous corporate trustee had been.

It therefore seems that the trusts upon which the Board held the property vested in it during the period relevant to the pay-roll tax assessments were the same trusts as those on which the Church of England Property Trust Diocese of Sydney held the property vested in it at the moment when the variation of trusts effected by the Glebe Administration Ordinance became operative in 1930. To write them down it would be necessary to know what they were immediately before that moment, and what variation to them was effected by the ordinance. From the available materials it is not easy to see precisely what the trusts were before the 1930 variation. Nor is it easy to be precise about what the variation actually was.

So the question to which I was seeking an answer, upon what trusts precisely did the Board hold property during the relevant period, cannot, I think, be precisely answered, at least without a great deal more research than is possible within the limits of this appeal. But the enquiry has been useful in that it has led me to see that it was probably because the draftsman of the Glebe Administration Ordinance in 1930 was conscious of the same difficulty in stating the trusts on which various properties were held that the ordinance took the form it did, which was to put some matters beyond doubt irrespective both of what the pre-existing position was, and of what the purely trust obligations might be under the ordinance itself. Prior to the making of the ordinance it may well have been debatable whether "church trust property" (as defined in the 1917 Act) could be used, without the backing of statutory authority, in the commercial way the management powers conferred on the Board by the ordinance enabled it to do, even although the net proceeds were entirely devoted to religious charitable purposes. The conferring of the management power in the terms of the 1930 ordinance, which in my opinion the Synod was authorised by the 1917 Act to do, put beyond doubt that such use of trust property was lawful and not a breach of trust. Either it was lawful before in which case no relevant variation was effected, or it was not, in which case there was an effective variation of the trusts on which the property was held. Either way, in my opinion, after the making of the 1930 ordinance the position was clear.

There is no detailed evidence of what the Board did from 1930 to 1938, or from 1938 to 1970. It seems from the evidence about the period from 1971 to 1979 that little attempt was made, until some time during the 1960s, to use the relevant trust property to earn revenue at anything like the level obtainable if the property were in the hands of private enterprise. This position changed during the 1970s.

Activities of the Board during the relevant period. Evidence given on behalf of the Board set out the details of this change by describing the Board's activities and holdings in regard to property from 1971 to 1979. Without attempting to summarise this history, it can be said that by 1979 the position had been reached where the greater part of the land owned by the Board was not used for churches, colleges for theological training, homes for aged persons or young people, schools, hospitals or nursing homes. Rather, the greater part of the land was used for commercial purposes of which the following examples were given: a medical centre leased to medical practitioners, commercial office blocks, factories and commercial shopping centres. At 30 June 1978 the book value of these commercial properties exceeded $18m. Also, at that date the Board had an investment in St Andrews House and the Sydney Anglican Property Fund of approximately $10m.

As well as concerning itself with the acquisition and management of the foregoing property the Board provided management services to various parishes without charge and also to other church connected bodies which for instance had surplus land. In those cases where there was a commercial benefit to the owner the Board charged for advice, guidance, development costs and costs for zoning and roads and footpaths and the like.

Evidence was also given that the Sydney Anglican Property Fund was set up in about 1975 to own buildings. The Fund was a property trust the unit holders in which were all church bodies. The trustees requested the Board

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to manage the properties. The Board charged a fee for management of the properties. It seems that the Board does the same in regard to the Sydney Church of England Investment Trust which was set up to accumulate deposits for and on behalf of Anglican parishioners.

The foregoing details and much other information were given in evidence by Mr Malone, the Board's chief executive officer. He also said that financially the Board was "a wholly self-contained operation". Staff wages were paid by the Board out of its earnings. He said the policy of the Board had been and still was to preserve the value of its assets and provide a maximum return with a proper balance between immediate income and medium and long term capital growth. At the same time, his evidence showed that the Board did not always act from purely commercial considerations, that one of the criteria for the choice of its staff was adherence to church principles and that it was subject in many ways to direction by the Standing Committee, as for example in getting approval of proposed sales of property.

Amongst other activities in the relevant period the Board borrowed from individual parishioners; these were unsecured short term loans. Commercial interest rates were paid by the Board to the lenders. The Board's own investments were confined to real estate and moneys in the short term money market. In its report for the year ending 31 December 1979 pursuant to sec. 162A of the Companies Act 1971 the Board noted that it had a facility on bills of exchange with its banker in the sum of $6m. No bills were drawn as at 31 December 1979.

McAdam's case. In support of the submission that the Board was a religious institution reference was made to
Mayor of Manchester v. McAdam (1896) A.C. 500 ( McAdam's case ). This was also relied upon by the Board in regard to the second question in this case. It turned on a provision in the Income Tax Act 1842 (U.K.) which granted allowances in respect of charges on "any building the property of any literary or scientific institution, used solely for the purpose of such institution, and in which no payment is made or demanded for any instruction there afforded... ". The Corporation of Manchester owned four buildings which were used solely as free libraries for the City of Manchester and otherwise fulfilled the conditions of the provision. The Revenue however took the simple point that the buildings were the property of the Corporation which was not a literary institution. This point (and another not necessary to mention) succeeded in the Court of Appeal but in the House of Lords (Lord Halsbury dissenting) the decision was reversed.

The majority comprised Lords Herschell, Macnaghten and Morris. Lord Morris agreed with Lords Herschell and Macnaghten. Lord Herschell said the word "institution" was frequently used to describe a system or arrangement of a kind which could not own property. When the provision under consideration spoke of the property of such an institution it was speaking only of property appropriated to and applied for the purposes of the institution so, even though the Corporation of Manchester could not be said itself to be a literary institution the four buildings used exclusively as free libraries and being appropriated for that purpose (by the Public Libraries Act pursuant to which the Corporation of Manchester was conducting the libraries) could properly be said to be the property of a literary institution (at pp. 508-509).

Lord Macnaghten's reasoning was to the same effect. He thought that if the Court of Appeal were right all unincorporated institutions must be excluded from the benefit of the exemption in the Income Tax Act 1842 and found it impossible to suppose that that had been the intention of Parliament. The buildings were vested in the Corporation of Manchester for a special purpose; the identity of the person in whom they were vested could not in his opinion affect the question of the exemption. The real property was held on trust for the statutory purposes of the unincorporated institution and was thus, in the sense in which the word "property" was used in the exemption, the property of the institution (at p. 513).

So, for the Board it was argued that like the Manchester Corporation it held property appropriated for particular purposes, in the Board's case of a religious kind, and in paying the wages of its employees it was doing so on behalf of those religious purposes and thus was, for and in respect of those purposes a religious institution.

One matter which this argument does not sufficiently take into account, in my opinion, is

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that the Board in holding church property was endowed with non-religious managerial powers so that it cannot be said that the property was appropriated to entirely religious purposes. The property was to a substantial extent appropriated to commercial purposes, the net profit from which was to be available for religious purposes. I do not think that McAdam's case helps the Board's argument on the first question.

The situation also seems to me to be different in kind from the sort of case dealt with by Else-Mitchell J. in
McGarvie Smith Institute v. Campbelltown Municipal Council (1965) 11 L.G.R.A. 321 where he held that the conduct of trade by a charitable trust does not derogate from its charitable character because any gain from the trading operations had to be used to further the purposes of the trust. The kind of case he was then dealing with was one where it was the charitable activity itself which involved an incidental aspect of money-making. In the case now before the Court the religious and trading activities were fully separated in point of legal operation.

Conclusion on first question. In my opinion the Board was not at any relevant time a religious institution. It was a statutory corporation doing commercial work within limitations fixed by reference to religious principles. It was staffed by persons who wished to observe the religious principles giving rise to the limitations on the Board's commercial activities. The property in its ownership both increased in value and gave rise to revenue. Capital was held for the benefit of a religious institution and large amounts of revenue were handed over to that institution. To my mind all these matters result in it being accurate to describe the Board as a legal entity working in a commercial area, guiding its commercial conduct by the principles of a religious institution and, in ordinary language, working for that religious institution. I do not think that this legal entity can either by an ordinary or a technical use of language be accurately called a religious institution.

In my opinion the position in the present case was that a religious institution, the Church of England Diocese of Sydney, had been given power by statute to confer by its own ordinance management powers of a commercial kind upon the Board as a corporate body. Thus the religious institution was enabled to, and did, create an entity controlled by but distinct from the religious institution, namely a non-religious Board whose duty was to raise money in a commercial way, for the purposes of the religious institution.

Were the wages paid to the Board's employees paid or payable by a religious institution?

The Board's arguments. It was submitted for the Board that although it was the employer who paid its employees their wages, nevertheless it was equally accurate to say that in a realistic or substantial sense those same wages were paid by a religious institution, the Church of England Diocese of Sydney. Further, all property of the Board was held in trust for the Diocese of Sydney pursuant to the Church of England (Bodies Corporate) Act 1938, in particular sec. 9. (What the terms of the trust(s) were was not specified, perhaps because of the difficulties in identifying them that I have mentioned.) It was further pointed out that sec. 10 of that Act was an ample statutory basis for the continuing power of the Synod of the Diocese of Sydney to regulate completely the management and control of the Board, more fundamental than cl. 5 and 6 of the ordinance so far as control was concerned. It was then argued that all moneys coming to the hands of the Board including those paid as wages to its employees were derived from the Board's management as trustee of property beneficially owned by the Diocese. Thus, it was said, it was "really" the money of the religious institution which was paying the wages of the Board's employees. This argument was supported by the submission that the Board was in substance an emanation of the religious institution and that its activities on behalf of the institution should be likened to those of an agent.

In a very broad sense, what the Board says about the church "paying" the Board's employees is both understandable and sensible. The question for decision on the appeals therefore is whether the words "wages paid or payable... by a religious... institution" in sec. 10 of the Pay-roll Tax Act are used in that very broad sense.

It was necessary for the Board to adopt such a "broad sense" approach in order to meet the Commissioner's principal contention, which was successful before Rogers J., that the exemption provided for by sec. 10 was only available to a religious institution which was the contractual employer of the employees

ATC 4836

whose wages were liable to the tax. A further argument of the Board, in support of its general approach, was based on the fact that sec. 6(1) began by saying it was subject to sec. 10 and that that section unlike sec. 6(1) did not refer to "wages... paid or payable by an employer" but simply "wages paid or payable... by a religious... institution". The submission involves the idea that the absence of the words "by an employer" in sec. 10 gave to the words that did appear in the section the meaning "paid or payable in substance by a religious institution whether or not the institution is the employer legally liable to pay the wages". In aid of this suggested meaning of the words reliance was placed on a submission that as between sec. 10 and 6(1), sec. 6(1)'s being "subject to section 10" made sec. 10 the "dominant" or "critical" provision to which sec. 6(1) was "subordinate".

Other supporting arguments were a suggested analogy with McAdam's case and the contention that to read sec. 10 as exempting only the contractual employer paying wages would be to defeat the evident purpose of some of the exempting paragraphs in the subsection.

"Subject to." The force of the foregoing set of arguments depends to a degree upon the idea that sec. 10 was "dominant" and sec. 6(1) "subordinate" in the sense that on the proper construction of the two provisions sec. 10 should be first construed without reference to sec. 6(1) and, that done, sec. 6(1) then construed in the light of the meaning of sec. 10. This is said to be required because of the opening four words of sec. 6(1). It seems to me that this argument asks the court to take a somewhat doctrinaire and abstract view of the meaning of the words "subject to" in sec. 6(1). In some contexts they may have the kind of effect contended for by the Board, in some contexts they will not. I do not accept the proposition that in seeking the meaning of the relevant parts of this statute it is requisite to begin with a view of the effect of "subject to" derived from sources extra the statute and then mechanically use that meaning of the words as governing their construction in sec. 6(1). Context must always be important.

"Subject to": Gibb's case. One example is provided by
Gibb v. F.C. of T. (1966) 118 C.L.R. 628 . Section 44(1) of the Income Tax Assessment Act provided that assessable income of a shareholder should "subject to this section... include dividends paid... out of profits...". Section 44(2)(b)(iii) provided that assessable income of a shareholder should not include dividends of another kind. The conventional view prior to the decision in Gibb was that dividends of the subsec. (2)(b)(iii) kind were first of all brought into assessable income by sec. 44(1) and then excluded by sec. 44(2). In their joint reasons Barwick C.J., McTiernan and Taylor JJ. said this was not so. Because sec. 44(1) only included the dividends which it described in assessable income subject to this section it followed that "at no time do dividends of the kind referred to in sub-s (2), by force of sub-s (1), achieve the character of assessable income" (at p. 636). Thus in that instance neither the positive nor the negative provision had any dominance over the other; the positive provision simply included some dividends in assessable income and the negative provision excluded certain dividends from assessable income, each provision being construed in its place in the section and in light of the other relevant sections of the statute.

"Subject to": Clark's case. Another example is dealt with in
C. & J. Clark Ltd. v. I.R. Commrs (1973) 1 W.L.R. 905 . Counsel for the Board relied upon a particular passage in the reasons of Megarry J., as follows:

"... the phrase `subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision."

(at p. 911)

This passage followed a detailed examination by the Judge of a complicated argument relied on by the Revenue which was rejected. In the course of the argument the Revenue was forced to concede it would only apply where a "specific... backward-looking" provision is made "subject to" preceding provisions and not where a "general... forward-looking" provision is made "subject to" later provisions.

What counsel for the Board particularly relied on in the above passage were the words "master" and "subject" which in the Board's submission were treated as equivalent to "dominant" or "critical" and "subordinate". I do not think Megarry J. was using the words

ATC 4837

in quite the way now contended for in his use of the adjectives "subject" and "master". He was using them to describe specific subsections in the section of the taxing Act which had been subjected to elaborate analysis. His use of the words followed what I take to be an earlier indication ("if I may so describe" at p. 910) that he would use them as a matter of descriptive convenience rather than conclusion. I do not understand him to have been using the adjectives to indicate that the meaning of a "master" provision was to govern that of a "subject" provision but rather that once the meaning of any provision was ascertained, which provision should actually operate to govern a situation apparently falling within both provisions would be decided by seeing which provision was not subject to the other.

What Megarry J. said about "subject to" was a rather elaborate answer to the construction advanced by the Revenue and while on appeal the Judges in the Court of Appeal agreed in a general way with his analysis, they individually relied on simpler answers: (1975) 1 W.L.R. 413. His generalisation about "subject to" should, in my opinion, both be read in the way I have above indicated and also in light of the very specific construction being put to him of a particular statutory provision. The whole of his reasoning preceding the passage relied on shows him directing himself very closely to the specific language, in its context, of what he had to construe.

"Subject to" conclusion. At this point I return to sec. 6 and 10 of the Pay-roll Tax Act. I apply to them the same approach as was used in the joint reasons in Gibb with regard to the effect of the words "subject to". In its simplest form the idea stated in those reasons was that sec. 44(1) of the Income Tax Assessment Act described certain dividends which were to be included in a shareholder's assessable income and sec. 44(2) described certain dividends which were not included in a shareholder's assessable income. Similarly, sec. 6(1) of the Pay-roll Tax Act described wages liable to pay-roll tax under the Act and sec. 10 described wages not included in wages liable to pay-roll tax. I do not think anything more can be got out of the words "subject to" which open sec. 6(1). I do not see how one provision can be described as dominant and the other as subordinate. Between them the two provisions embrace all wages as defined in sec. 3(1). This may be a point of difference from Gibb where sec. 44 may not, in theory, have embraced all dividends. I do not think the possible difference matters for present purposes. In the Pay-roll Tax Act, sec. 6 described one part of the entirety of wages and sec. 10 described the remainder of the entirety. In view of the wording of the two provisions, it does not seem to me to matter which one is taken as describing the one part of the entirety and which one is taken as describing the balance of the entirety. Between them they describe the whole. At least, that is the meaning the two provisions, read in light of the other relevant provisions, convey to me. If this is a proper understanding of the provisions then it is very damaging to the Board's contention, for since (in my opinion) the Board did not come within sec. 10(b) and was therefore within sec. 6(1), the Board's contention that its employees' wages were "really" paid by the Church means that the same wages fell within both provisions and were thus at the same time both wages liable to pay-roll tax and not included among wages liable to pay-roll tax. No doubt it was to escape this difficulty that such emphasis was laid by the Board upon sec. 10 being dominant and sec. 6 subordinate, a view which I have not accepted.

"Wages" in sec. 3, 6 and 10. What is much the same point may be stated in a different way. Both sec. 6(1) and 10 used the phrase "wages liable to pay-roll tax under this Act". In subsec. 6(1) it is doubly clear that the wages referred to were the moneys which one person had paid or was liable to pay to another because the legal relationship of employer and employee existed between them. It is doubly clear because it is explicitly said to be so in the subsection itself and because the word "wages" in the subsection was defined in sec. 3(1) as having such a meaning. The first meaning that would come, in my opinion, to the mind of any ordinary reader of the same words, "the wages liable to pay-roll tax" in sec. 10, after having read them in sec. 6(1) would be the same meaning, that is wages which one person pays or is liable to pay to another because of the employer-employee relationship between them. In saying this I am not relying on what seems to me to be the rather artificial presumption to which recourse is sometimes had in statutory construction, that

ATC 4838

the same words when appearing in different places in a statute are ordinarily to be given the same meaning. It often happens that they do have the same meaning because of the way in which they are used but it seems to me that to rely on any kind of fixed rule extracted from this frequent but by no means invariable happening is sometimes to risk begging the question. In the present case the reason why I think the ordinary reader would read the word "wages" in both provisions in the same sense is that, on the one hand, there is no reason which immediately strikes the mind for not doing so, and on the other hand the identity of the entire expression "the wages liable to pay-roll tax under this Act" in the two provisions containing a key defined term immediately suggests that the word "wages" where secondly used in sec. 10 meant the same thing as when first used in the subsection and when used throughout sec. 6. On this view the omission after the words "wages paid or payable" of the words "by an employer" would not affect the meaning at all. The use of the word "wages" made it unnecessary to include the word "employer" as the definition section did that work. (See para. (e) of the definition of wages in sec. 3(1) which made clear what was otherwise only implicit in the definition that the wages paid or payable to an employee as described in the definition were wages paid by an employer to an employee.) There was thus no need to put the words "by an employer" in sec. 10. Probably there was no need to put them in sec. 6(1) either, except that the expression "wages paid or payable" seems naturally to invite the question, by whom? In sec. 6(1) this question was answered by reference to "an employer" in general and the corresponding need was met in sec. 10 by reference to the specific employers in the various paragraphs of the subsection.

The Church as the "real" payer of the wages: McAdam's case and related arguments. I now come to what seemed to me the Board's strongest argument. It was forcefully put by reference to what was argued to be the close similarity of the ideas involved in the exemption of property owned by (inter alia) literary institutions in McAdam's case, the facts of which have been earlier summarised.

For the Board it was submitted after analysis of McAdam's case that if Rogers J.'s interpretation of sec. 10 were correct a number of unincorporated institutions mentioned in sec. 10 and clearly intended to have the benefit of the exemption would not get the exemption. It was argued that in the same way as the statutory purposes of the literary institution owned the buildings in which the library purposes were carried out, so did the charitable purposes of the Church, for which purposes the Board held all the property vested in it, in the relevant sense "pay" the Board's employees.

This argument has considerable power, particularly if it is accepted that the construction against which the appeal is brought would deny to other unincorporated institutions the benefit of the exemption. However, the analogy between McAdam's case and the present one seems to me to be imperfect. As appears from Lord Herschell's reasons in the former case (at p. 506), the Corporation of Manchester held the buildings in question pursuant to the Public Libraries Act 1855 and its successor, the Public Libraries Act 1892 as a result of which the buildings could only be used for the statutory purposes. The legal title to the buildings was vested in the Corporation. The beneficial interest in the buildings was not vested in any person or legal entity but in a metaphorical sense belonged to the statutory purposes. (For an exposition of the same notion in regard to charitable purposes see the argument of Mr K.S. Jacobs Q.C. as counsel in
Joyce v. Ashfield Municipal Council (1959) 4 L.G.R.A. 195 at pp. 196-198 .) The moneys paid out by the Board to its employees from revenue deriving from property which it held on trust cannot in my opinion be said to have "belonged" to the Church's charitable purposes in the same way as the library buildings were the "property" of the statutory purposes of the literary institution. The Corporation of Manchester held the library building solely for the statutory literary institution purposes, but the Board did not hold all the property vested in it solely to carry out the Church's charitable purposes. It was additionally empowered by cl. 13 of the Ordinance to do so and its primary function was to do the various things earlier summarised which, in my opinion, precluded it being regarded itself as a religious institution. Sections 24, 25 and 26 of the Church of England Trust Property Act 1917 are in sufficiently wide terms to support the conferring upon the Board of the "absolute and

ATC 4839

full powers of managing and controlling" the trust property (subject to the provisos I have earlier summarised) which were conferred upon the Board by cl. 13. The result is that among the purposes to which the Board had to devote its receipts was the purpose of paying the wages of employees working in an ordinary area of commerce. The fact that in working in that area the Board guided its commercial conduct by the principles of the Church and that the whole of the net revenue from its activities was available for the charitable purposes of the Church does not seem to me to make the purpose of the payment of those employees a charitable purpose. To put it slightly differently, the Board in carrying out the duties it was obliged to carry out pursuant to cl. 13 of the Ordinance was not carrying out solely public charitable purposes but was lawfully using trust property in commerce for revenue earning purposes, some of the net proceeds of which were used and all of which were available to be used (if the Standing Committee so decided) by the Church for public charitable purposes.

I am therefore not persuaded by the analogy of McAdam's case to accept that the wages which the Board paid to its employees were wages which in the sense of sec. 10 of the Pay-roll Tax Act were wages which the Church of England Diocese of Sydney either paid or was liable to pay to the Board's employees.

Further, I have not been persuaded by the supporting argument that to refuse the exemption to the Board would deprive unincorporated associations of an exemption which sec. 10 clearly intended to give them. The unincorporated associations which it was suggested would have been affected by such a construction were those falling within para. (b), (c) and (d) of sec. 10. Any problems which might arise in regard to unincorporated associations falling within para. (c) and (d) would arise from different considerations of construction from those arising under para. (b). Without venturing upon any suggestions as to the effect upon the kind of problem predicted by the Board's counsel in regard to unincorporated bodies within para. (c) and (d) by the words "which is carried on by a society or association", it seems clear that they provide plenty of scope for interpretations of a kind not available in regard to para. (b).

So far as concerns the religious or public benevolent institutions or public hospitals dealt with in para. (b), it was simply asserted that the greater part of them were conducted by unincorporated associations and would thus necessarily be deprived of an intended exemption. While I suppose it is true that some of the institutions or hospitals were so conducted there are various considerations which make me wonder whether the effect of the Court's construction would have been so drastic as counsel asserted. One is that it is by no means uncommon for voluntary associations to consist of an ascertainable membership which makes contracts through the agency of a committee. Another is that a number of institutions which might well be religious or public benevolent institutions within the meaning of sec. 10(b) operate otherwise than as voluntary associations. Greek Orthodox Communities for example were organised as companies limited by guarantee long before 1971: see
Anastas v. Greek Orthodox Community of New South Wales, McLelland C.J. in Eq., 18/11/64 (unreported) and
Angelides v. Greek Orthodox Community of Melbourne and Victoria, Herring C.J., 14/11/62 (unreported) . This is only one indication that unincorporated associations have over a long period been developing ways of holding property designed, inter alia, to meet the problems of taxing statutes and their exempting provisions. In another exemption case,
Commr of Land Tax (N.S.W.) v. Joyce (1974) 132 C.L.R. 22 , reference was made in the High Court (at p. 36) to the difficulty that can arise from exemption provisions in rates and land tax statutes and a more uniform approach to exemptions from those taxes was suggested. Pay-roll tax could be added to the list. But the immediate point is that if legislatures move slowly on these matters, it does not follow that taxpayers, including voluntary associations, are equally slow moving. The argument that the construction of sec. 10 arrived at by Rogers J. may have the effect of depriving of exemption the kind of institution the Act intended to exempt must lose force as time passes and institutions adapt. In any event, the argument also loses force in the present case if it is right, as I am inclined to think it would be, that the wages paid by the Board would have been exempt, if the Board's obligations and activities had been predominantly religious.

ATC 4840

As I have no idea of the proportions amongst religious institutions of different types of property holding mechanisms when the Act was passed I do not think it safe, in that state of knowledge, to draw inferences as to the meaning of the words in the statute on the assumptions the Court was asked to make by the Board.

Conclusion on second question: 1971-1977. My conclusion in regard to the period from 1 September 1971 to 31 December 1977 is that the meaning of the words in sec. 6(1) and 10 of the Pay-roll Tax Act is clear on the face of them and no sufficient reason has been put forward by the Board to make me think that they have the meaning for which the Board contends.

Conclusion on second question: 1978-1979. In regard to the period from 1 January 1978 to 9 December 1979 when sec. 10(1) contained para. (j), (k) and (l) and sec. 10(2) became operative the question is whether the addition of those provisions affected the meaning of the words "wages paid or payable" in regard to para. (b) of sec. 10(1). I do not think they did. They can be used to support arguments both for strengthening the construction I have accepted or strengthening arguments to the contrary. In my view they do not affect the construction of the earlier words in either way. Section 10(2) can support an expressio unius exclusio alterius argument to the effect that the subsection shows that in regard to earlier paragraphs of sec. 10(1) it did not matter whether employees were engaged solely in charitable work for the particular society or institution. As so frequently in the case of such arguments there is an exactly opposite one. In this instance it seems to me that the latter is the more obvious meaning which the section as a whole conveys.

Board's general argument. Finally, it was argued very generally for the Board that it was in substance carrying on activities of the Church and that from sec. 10 there could be seen an intention to exempt from pay-roll tax wages of persons engaged in such activities. Even if sec. 10 did convey that intention, I do not think that the activities of the Board and its employees fell into the category which sec. 10 was meaning to exempt. Amongst the materials put in evidence by the Board was a Synod paper on Theological Principles Governing the Church's Use of its Property. This document was an annexure to the affidavit of Bishop Cameron who had been a member of the Board for almost the whole of the relevant period and Chairman of it since 1977. He said that the Synod paper had influenced the minds of the members of the Board but had never actually been endorsed. The paper contains what seems to me as a layman in such matters an extremely thorough discussion of the problems seen by a number of learned members of the Church in the way it should deal with the substantial amount of property held for the Church's purposes. After stating a number of principles of a biblical theology of wealth the report said:

"The theological principles we have stated must cause the Church, at the least, to seriously examine the role it is pursuing as a commercial trader, e.g. as a renter, share dealer, real-estate developer, etc. Although the Committee would not necessarily negate this role we do believe that it presents theological difficulties both theological and practical. At the present the role of our Church as a commercial trader seems not to have been subjected to enough theological scrutiny."

There are later references in the report to the role of the Church at the time of the report (1979) as a "commercial trader". I should note also that two members of the Committee presenting the report expressed reservations about the parts of the report to which I have referred. I do not use this reference from within the Church itself to the Church as a "commercial trader" either as an admission in a legal sense (which it could not be in any event) or in derogation of the Church's activities. The report shows that in the Diocese of Sydney the problems relating to property holding have been most searchingly scrutinised and considered. I mention the matter however because it confirms the conclusion I have independently reached, that substantial activities of the Board may properly be called commercial and that it is through the Board that the Church has decided to carry on these activities. If it is permissible to approach the construction of sec. 10 on the last general basis suggested by the Board, it seems to me that the suggestion can be answered equally generally by saying that the section was not aimed at exempting from liability to pay-roll tax wages paid to persons substantially engaged in commercial activity.

ATC 4841


In my opinion the statutory provisions in question required the Board during the relevant period to give tribute unto Caesar by way of pay-roll tax, and the appeals should be dismissed with costs.


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