WA Flick & Co Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 46

High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Windeyer JJ. WA Flick & Co Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 46

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:

Sept. 7 Dixon C.J., McTiernan, Taylor, Menzies and Windeyer JJ.

Upon an appeal to this Court by the taxpayer pursuant to s. 40 of the Pay-roll Tax Assessment Act 1941-1954 Cth from a decision of the Taxation Board of Review No. 3, the Chief Justice directed, pursuant to s. 18 of the Judiciary Act Cth, that the appeal should be argued before the Full Court.

The Commissioner decided that certain payments made by the taxpayer to its employees were "allowances" within the meaning of the definition of wages in s. 3 of the Pay-roll Tax Assessment Act; to this the taxpayer objected; the Commissioner disallowed the objection and, upon reference to the Board of Review, the decision of the Commissioner was confirmed.

The payments in question were made to employees in respect of the use of their motor vehicles in the service of the taxpayer between 1951 and 1956. It seems that before 1951 the taxpayer had provided vehicles for its employees to travel to premises to eradicate pests and to carry gear and chemicals for that purpose. The business of the taxpayer was Australia-wide. In 1951 the taxpayer changed its policy and gradually employees were required to provide their own vehicles so that by 1956 the taxpayer itself provided vehicles only in two or three exceptional cases, e.g., at Mount Isa, and it employed one hundred and thirty employees who provided their own vehicles. An advertisement published by the taxpayer in September 1956 and admitted to be typical stated "Ownership of a reliable vehicle and garage essential Car allowance on completion of training" and in a form issued to applicants for employment, it was stated that successful applicants were expected to: "1. Provide a reliable motor vehicle of recent vintage capable of carrying tools, equipment and insecticides. 2. Provide a shed garage etc. in which you can store your supplies of insecticides and materials"; in return for this and other considerations the taxpayer offered, inter alia: "3. A vehicle allowance consisting of a basic weekly amount and an amount per mile covered on legitimate company's business".