Constable v Commissioner of Taxation (Cth) [1952] HCA 64

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Fullagar JJ. Constable v Commissioner of Taxation (Cth) [1952] HCA 64

ORDER Questions (a) and (b) in the case stated answered: No. Costs of the case stated reserved for the judge disposing of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 11 Dixon C.J., McTiernan, Williams and Fullagar JJ.

This is a case stated upon an appeal by a taxpayer from an assessment by the Commissioner of Taxation under the Income Tax Assessment Act 1936-1947. The year of income under assessment is that ended 30th June 1948. During that year the taxpayer received the sum of £403 1s. 9d. on account of his interest in a fund called the Provident Fund of the Combined Petroleum Companies and the question to be decided is whether any portion of this sum forms part of the taxpayer's assessable income. It is in fact a payment in pounds Australian of a somewhat larger sum calculated in sterling to which the taxpayer was entitled, but the rest of the sum was paid in the following year of income.

The money represented the total amount payable to the taxpayer under the regulations of the fund. It became payable under the regulations because of a clause entitling members to withdraw the amounts standing to the credit of their accounts if an alteration were made to the regulations curtailing the rights of members. An alteration of that nature was in fact made taking effect as from 30th September 1947. The fund was established by a deed executed at The Hague and is governed by the regulations already referred to. They are divided into articles, the second of which states that the object of the fund is to accumulate for the benefit of the companies' employees who have joined the fund certain sums as a provision for themselves and their families. The taxpayer has been for many years employed as an ironworker's assistant by one of such companies, namely the Shell Co. of Australia Ltd. He became a member of the fund on entering that company's service.