Taxation, Commissioner of (Cth) v Westgarth [1950] HCA 59

High Court of Australia McTiernan J. Latham C.J. Williams, Webb and Fullagar JJ. Taxation, Commissioner of (Cth) v Westgarth [1950] HCA 59

ORDER Appeal dismissed with costs. McTiernan J.

delivered the following written judgment in which the facts are sufficiently set forth:—This appeal is made under s. 26 (9) of the Federal Estate Duty Assessment Act 1914-1942 against a decision of a Board of Review given upon a reference for which ss. 24 (4) (a) (ii) and 26 (1) of the Act provide. The decision of the Board involves a question of law. The question is whether an amendment of an assessment increasing the liability of this estate for duty is a valid exercise of power under s. 20 of the Estate Duty Assessment Act 1914-1942.

The only two questions which have been raised are whether the second sub-section of s. 20 applies to the case, and, if not, whether the third sub-section applies.

The commissioner alleges that the respondents had not made to him a full and true disclosure of all the material facts necessary for the making of an assessment. The respondents deny this allegation. If this allegation is not sustained, s. 20 (2) does not apply.

The only fact within the class of facts defined in the sub-section which the commissioner alleges that the respondents did not fully and truly disclose was the value of a cottage, No. 26 Kent Street, Rose Bay, which was part of the estate left by the testatrix.

In the return of the estate made under s. 10 of the Act, and verified on 22nd November 1945 in compliance with s. 12, the respondents stated that the value of this cottage was £2,750. This statement refers to the value of the cottage at the date of the death of the testatrix. The date was 15th October 1945.

The respondents annexed to their return a certificate of valuation given by the Valuer-General of New South Wales under the State's Valuation of Land Act, 1916. The Valuer-General thereby certified that the improved value of the property, that is the cottage and land, on 15th October 1945 was £2,750.