Melkman, Charlotte v Commissioner of Taxation - [1988] FCA 334

I

L

i .

CATCHWORDS

Whether a pension is paid by the Netherlands Government under

leuislation comuensatina victims of Nationalist Socialist

peisecution was-exempt income under the Income Tax Assessment Act
prior to the introduction of S. 23(kca) - operation of S. 23(kc) bf the Income Tax Assessment Act in conjunction with 6 . 10 of the

Racial Discrimination Act - whether pension paid by the

Netherlands Government was exempt income as a payment of the kind

referred to in S. 23AD(3)(c) of the Income Tax Assessment Act.

Administrative Appeals Tribunal Act 1975 (Cth) S . 44

Income and Corporation Taxes Act 19 70 (Imp) S. 365

Income Tax ASSeSSment Act 1936 i Cth) ss. 23(kc), 23AD(3)
Injuries in War (Cornpenration) Act 1914 (U.K.) Injuries in War (Compensation) Act 1915 (U.K.)

Racial Discrimination Act 1915 ( Cth) ss. 3, 10

war Compensation Act 1914 (Session 2) (U.K)
CHARLOTTE HELKKAN as executor of the estate of NICO HELKMAN

Deceased v COMISSIONER OF TAXATION
No. G495 of 1987

CORN¶: DAVIES, LOCKEART AND GUMMOW JJ.
PLACE: SYDNEY.

DATE : 8 JULY 1988

IN THE FEDERAL COURT OF AUSTRALIA )
1
NEW SOUTH WALES DISTRICT REGISTRY

) No. G495 of 1987.
1
GENERAL DIVISION )

On appeal from a single Judge of the Federal Court of Australia

BETWEEN: CHARLOTTE MELKPLRN
as executor of the
estate Of NICO MELKNAN
Deceased

Appellant

AND : COMMISSIONER OF TAXATION

Respondent

CORAM: DAVIES, LOCKHART AND GUMHOW JJ.

PLACE: SYDNEY.

DATE : 8 JULY 1988

HINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. There be no order as to the costs of the appeal.

Note : Settlement and entry of orders is dealt with by Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G495 of 1907
)
GENERAL DIVISION 1

On appeal from a slngle
Judge of the Federal Court
of Australia

BETWEEN: CHARLOTTE MELKMAN

as executrix of the
estate of NICO MELKMAN
Deceased
Appellant

AND : COMMISSIONER OF TAXATION

Respondent

CORAM: DAVIES, LOCKHART AND GUMMOW JJ.
PLACE : SYDNEY.
DATE : 8 JULY 1980

REASONS FOR JUDGMENT

THE COURT:
Introduction:

This is an appeal from a decision from a single Judge

of this Court (Fox J.) dismissing an appeal brought on

questions of law pursuant to S. 44 of the Administrative

Appeals Tribunal Act 1975. The appellant is the widow and

executrix of the estate of Nico Melkman who died in January

1985. She seeks to have treated as exempt income under the
Income Tax Assessment Act 1936 ("the Assessment Act") a pension paid to her late husband by the Government of the Kingdom of

. -

.- 2.

Netherlands pursuant to a law of that country entitled Benefit

Payments to Victims of Persecution 1940-1945 ("the Benefits
-
Act").
On 10 March 1981, the respondent ("the Commissioner")

disallowed an objection against the treatment as assessable

income of the pension received by Mr. Melkman in respect of the

year of income ended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melkman, Charlotte v Commissioner of Taxation

Details

AGLC: Melkman, Charlotte v Commissioner of Taxation [1988] FCA 334
Case: [1988] FCA 334
Decision Date: 7 Aug 1988

CaseChat Overview and Summary

This case involved an appeal by Charlotte Melkman, as executrix of the estate of her late husband, Nico Melkman, against a decision of the Commissioner of Taxation. The Commissioner disallowed an objection against the treatment as assessable income of a pension received by Mr. Melkman from the Government of the Kingdom of the Netherlands. The appeal was brought on questions of law pursuant to S. 44 of the Administrative Appeals Tribunal Act 1975. The legal issues in the case were whether the pension was exempt income under the Income Tax Assessment Act prior to the introduction of S. 23(kca), the operation of S. 23(kc) in conjunction with S. 10 of the Racial Discrimination Act, and whether the pension was exempt income as a payment of the kind referred to in S. 23AD(3)(c) of the Income Tax Assessment Act.

The court found that Section 10 of the Racial Discrimination Act did not apply in this case, as the pension was not a right enjoyed by persons of a particular race, colour or national or ethnic origin. The court also held that the pension did not fall within the description of any of the pensions mentioned in the relevant English Acts and therefore was not exempt from income tax under paragraph 23AD(3)(c) of the Assessment Act.

The court dismissed the appeal and ordered that there be no order as to the costs of the appeal.

Orders