National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation

[1954] HCA 71

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540

HIGH COURT

[1954.

[HIGH COURT OF AUSTRALIA.]

NATIONAL TRUSTEES EXECUTORS AND^

AGENCY COMPANY OF AUSTRAL­

Appellant ;

ASIA LIMITED...................................J

AND

FEDERAL COMMISSIONER OF TAXATION

Respondent.

(Cain’s

Case)

H. C. OB' A.

Estate Duty (Cth.)—Assessment—Amendment—“Personal ‘property'" of deceased—

1954,

Right to share of profit under Wool Realization {Distribution of Profits) Act 1948

— Valuation of right as at date of death—Disclosure by executor of material facts Melbotjrne,before assessment—Estate Duty Assessment Act 1914-1947 {No. 22 of 1914—

May 18, 19,

20.  No. 16 of 1947), ss. 8 (3) (6), 20 (2) (3)—Wool Realization (Distribution of

Profits) Act 1948 {No. 87 of 1948), ss. 7, 11, 28, 29. ’

Sydney,

A testator, who had carried on the business of wool-grower and had, pur­ suant to the National Security (Wool) Regulations, submitted for appraisement

Nov. 29.

Dixon C.J., McTiernan, certain wool shorn by him in the seven wool seasons of the war period, died

Fullagar,

after the enactment of the Wool Realization {Distribution of Profits) Act 1948

Kitto and Taylor JJ.but before notification that any sum was available for distribution under the

Act. The estate duty return as submitted on 16th August 1949 by the testator’s executor contained no reference to any rights in respect of wool submitted for apjDraisement. On 24th November 1949 an amount was declared by the Minister to be available for distribution and on 5th December 1949, the sum of £2,816 15s. 9d. was paid by the Australian Wool Realization Commission to the executor and an additional sum of £14 3s. Id. to the testa­ tor’s wool brokers as their commission. On 3rd November 1950 the solicitors for the executor sent to the Commissioner of Taxation, who had not assessed duty on the estate, a letter stating “ We have been instructed to advise you of the following additional asset—appraised value of participating wool held by Australian Wool Realization Commission £45,295 2s. 2d. 6J% of which is equivalent to £2,830 18s. lOd.”. The commissioner, in a.ssessing duty, on 9th March 1951, included the last-mentioned sum as an asset which he described in an alteration sheet accompanying the notice of assessment, as " Wool payments as advised 3/11/50—£2,831 ”. The asse.ssment was not objected to and the duty, as assessed, was paid. On or about 28th March 1952 the executor received a further sum equal in amount to the first sum, which

91 C.L.R.]OF AUSTRALIA.

541

further sum was distributed pursuant to a declaration made by the Minister

H. C. OF A.

on 27th March 1952. Although the executor did not inform the commissioner

1954.

of the receipt of this further sum, he learned of it and, on 30th May 1952,

National

issued a notice of amended assessment increasing the amount of the duty by

Trustees

adding to the net value of the estate the sum of £2,831, describing the addition

Executors

as “ on a/c. : Second Wool Distribution £2,831 ”. It…