Commissioner of Taxation (Cth) v Rickard [1952] HCA 24

High Court of Australia Webb J. Commissioner of Taxation (Cth) v Rickard [1952] HCA 24

ORDER Appeal dismissed. Decision of the Board of Review affirmed. Assessment set aside. Appellant to pay the respondent's costs of appeal.

Cur. adv. vult.

J Webb delivered the following written judgment:—

May 20 Webb J

This is an appeal from a decision of the Board of Review under the Income Tax Assessment Act 1936-1945.

The respondent taxpayer objected to the inclusion in his assessable income for the year ended 30th June 1945 of military pay and allowances totalling £379 which he had received in that year as a major in the Australian Defence Force. He based this objection on his service in London during part of that year; service which he claimed was rendered by him as a detachment of the Australian Defence Force. The appellant commissioner disallowed the objection, but the Board of Review upheld it.

The taxpayer enlisted in October 1939 as a lieutenant in the 2/1st Australian Field Regiment and served in Palestine, Egypt, Libya, Greece and Ceylon. He returned to Australia in August 1942, and in 1943 commenced work on combined operations (naval bombardment). He took part in the planning and execution of the amphibious landing at Lae. Subsequently he was attached to the British Pacific Fleet, and, whilst so attached, the British Joint Communication Board requested in February 1945 that a representative from Australia should join that board's Bombardment Sub-Committee, which had under discussion combined codes and procedures for the control of gunfire, with the object of providing one book for all inter-service use, apparently in the war then being waged. The Australian Naval Board considered that the taxpayer was the most suitable representative and recommended his release for this important duty. On 18th March 1945 he was posted as Australian representative on the Bombardment Sub-Committee. This appointment was not included on the War Establishment of the Australian Military Forces. Whilst he was absent on this duty he remained a major on the list of the 16th Australian Field Regiment and later of the 2/1st Australian Field Regiment, as a seconded officer.