Ballarat Trustees Executors & Agency Co Ltd v Commissioner of Taxation (Cth) [1950] HCA 19

High Court of Australia Kitto J. Ballarat Trustees Executors & Agency Co Ltd v Commissioner of Taxation (Cth) [1950] HCA 19

ORDER Appeal dismissed.

Cur. adv. vult.

J. Kitto delivered the following written judgment:—

June 20 Kitto J

This is an appeal from the assessment by the Acting Deputy Commissioner of Taxation, Melbourne, of the estate duty payable in respect of the estate of Henry Angus Cameron, deceased.

By clause 10 of his will the deceased directed his trustee:—"To pay to the Treasurer (or person or persons for the time being authorized to receive monies) of St. Andrew's Presbyterian Hospital Cathedral Place Melbourne the sum of Twenty Thousand Pounds for the following purposes:—(a) to invest the same in securities authorized as trustee securities by Act of Parliament; (b) to use the income derived therefrom to provide free accommodation and where practicable medical and surgical services at the said Hospital for persons male or female living in the State of Victoria who are in the opinion of the Board of Management of the said Hospital deserving people who are unable to pay any fees or such fees as private patients in the said Hospital are usually required to pay for the foregoing preference to be given to persons answering above description who possess a good standard of education." The will also contained a direction to the trustee to divide the ultimate residue of the estate into four equal parts of which two were directed to be given to St. Andrew's Hospital for the purposes provided for in clause 10.

The appellant, being the executor and trustee of the will, objected to the assessment of estate duty on the ground that it was excessive in that the bequests of £20,000 and one-half of the residue had not been treated as exempt from duty under s. 8 (5) of the Estate Duty Assessment Act 1914-1942, the appellant claiming that those bequests were so exempt as being bequests as a fund established and maintained for the purpose of providing money for the relief of persons in necessitous circumstances in Australia. The objection was disallowed and the appellant requested the Acting Deputy Commissioner to treat the objection as an appeal and to forward it to this Court. Section 8 (5) provides:—"Estate duty shall not be assessed or payable upon so much of the estate as is devised or bequeathed or passes by gift inter vivos or settlement for religious, scientific, or public educational purposes in Australia or to a public hospital or public benevolent institution in Australia or as or to a fund established and maintained for the purpose of providing money for use for such institutions or for the relief of persons in necessitous circumstances in Australia."