National Trustees Executors & Agency Co of A/asia Ltd v Commissioner of Taxation (Cth) (Chisholm's Case) [No 1] [1953] HCA 90

High Court of Australia Dixon C.J. Webb, Kitto and Taylor JJ. National Trustees Executors & Agency Co of A/asia Ltd v Commissioner of Taxation (Cth) (Chisholm's Case) [No 1] [1953] HCA 90

ORDER Questions answered as follows:—

(1) (a) Yes; (1) (b) and (c) No.

(3) £stg.55,632 14s. 0d.

(2), (4) and (5). These questions do not arise having regard to the answer to question (1).

Costs of the case stated reserved for the judge disposing of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Dixon C.J. and Taylor J.

The first series of questions raised by the case stated in this matter is concerned with the construction of sub-s. (7) of s. 8 of the Estate Duty Assessment Act 1914-1950. That sub-section is in the following terms:—"When any duty is lawfully paid in any place outside Australia in respect of any part of the estate situate outside Australia there shall be deducted from the total duty to which the estate is liable under this Act the lesser of the following sums—(a) the amount of duty so paid in the place outside Australia; or (b) the duty which is payable under this Act in respect of that part of the estate".

Some of the difficulties involved in the application of this provision were solved by the decision in Perpetual Trustee Co. (Ltd.) v. Federal Commissioner of Taxation [1] , where it was held that the duty which was payable under the Act in respect of that part of the deceased's estate which was situate outside Australia should be determined by ascertaining the proportion of the total duty which that part of the deceased's estate, less a ratable part of the estate debts, bore to the net value of the whole estate. But in that case the only part of the estate situate outside Australia was a part situate in England and the further difficulties which arise where assets of an estate are situate in different countries outside Australia and where some of such assets attract duty in more than one of such countries do not present themselves.