High Court of Australia
IN| THE HIGH COURT OF AUSTRALIA
CRADDOCK
REASONS FOR JUDGMENT
Sydney
Judgment delivered at..
on...Lnursday 2nd October 1969
CRADDOCK
Ve
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
ORDER
Appeal dismissed with costs. Usual order as to exhibits.
CRADDOCK Ve
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
JUDGHENT KITTO J.
CRADDOCK
Ve
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
This appeal is constituted by the reference to the Court of an objection against an assessment of the income tax payable by the appellant in respect of income derived by him in the year ended 30th June 1967. The ground of the objection is that the assessment has erroneously treated as assessable income the appellant's share of certain amounts of profit which in the relevant year were derived by four persons, of whom he was one, from the resumption of a part and the sale of other parts of a tract of land which they owned as tenants in common in equal shares. The only question which I find it necessary to consider is whether the appellant acquired his interest for the purpose of profit- making by sale; that is to say for that purpose alone or, if for more purposes than one, for that purpose predominantly:
Pascoe v. Federal Commissioner of Taxation (1956) 6 A.I.T.R.
315. Under s. 190(b) the appellant has the burden of satisfying me on a balance of probabilities that profit- making by sale was neither the sole nor the dominant purpose of the purchase.
The appellant's co-owners of the land were his wife, his brother and his brother's wife. They bought the land in 1958. For some years before that they had been carrying en in partnership a drapery business in Bunbury, a seaport town on the south-west coast of Western Australia, and the brothers, if not their wives also, were familiar with the district, having lived most of their lives in the town, The country round about is devoted largely to farming, part cularly the grazing of cattle and sheep, but until 1958 the brothers kept to their drapery business. Late in 1956 or early in 1957 they considered buying a semi-developed
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