WHITE V. THE COMMISSIONER OF TAXATION

Appeal allowed with costs, Declare that by reason of the provision of s. 170 of the Income Tax Assessment Act 1936-1942

the Commissioner was not empowered to make the amendmeré of the appellant's assessment referred to in the notice of amended assessment dated the 7th September 1944.

Qrder that the said amendment be set aside accordingly.

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The proceeding before me is an appeal instituted by the forwarding to this Court by the Commiseioner of Taxatieny at the request of o taxpayer; of an objection to an amended assessment of income tax under the provisions of the Thome fax Assessment Act 199657948 (Ctwith), 'The amended" Sasesement related to income derived by the appellant during the yeer ended 30th dune 1942, and notice of it was iesued to the @ppellent on 7th September 1944. 'the appellant's objection wae lodged on 29th September 1944, and was disallowed by the Conmiestoner on 16th Desember 1947, On Ziet January 1946 the appellant requested that the objection be treated as an appead end fonwarded to thie Court. The request was complied with om 9th May 1992.

in hie veoturn te respect of the relevant year the oppeliant disolesed income both from personal exertion and fvem property. The income from property which he disclosed Anoluded dividends amgunting to £6,800 from Rowden Pty. Ltdes @ Gompeny incorporated in Victoria, Uhat company held shares tm two companies Incorporated in Canada, namely Bulolo Gold Dmedging Iamited ( which will be xeferred to as Bulelo) and Placer Development Idmited (which will ve called Placer), and dividends in respect of these shaves constituted the whole of the income of Rowden Pty. Itd, No claim was made in the

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return or otherwise that any portion of the dividends paid by Rowden Pty. Lid, was exoluded from the appellant's assessable income by virtue of any provision of 2. 44(2) of the Income Sex Assessment Act or was for any reason exempt income, In previous years, however, dividends received by the appellant from Rowden Pty. Utd; had been exoluded by virtue of pares (1) of s» 44(2)(o), which had provided that the assessable income of @ shareholder should not inelude dividends paid wholly and exolusively out of the amount remaining after deducting from income derived from sources out of Auetralia (not being ageegsable income of the company) any loans ox outgoings dnousred dn geduing or producing that income which would have bean allowable deductions if thet income had been assessable income. The dividende of Rowden Pty. Lids which had been treated ag falling within this provision had deen paid by that company out of dividends whieh Bulolo and Placer had paid wholly and exclusively out of income derived by them from sources out of Australia,