Norman v Commissioner of Taxation (Cth) [1963] HCA 21

High Court of Australia Dixon C.J. McTiernan, Menzies, Windeyer and Owen JJ. Norman v Commissioner of Taxation (Cth) [1963] HCA 21

ORDER The question in the case, stated answered as follows: The learned judge hearing the appeal would, upon the facts appearing in the case stated, be neither bound nor at liberty to hold that (a) the said sum of £450, or (b) the said sum of £460 did not constitute assessable income of the appellant in respect of the income year which ended on 30th June 1958. Costs of the case stated reserved for the order of the judge disposing of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1963, July 25 Dixon C.J.

This is a case stated under s. 198 of the Income Tax and Social Services Contribution Assessment Act 1936-1958 Cth. It is stated in an appeal from an amended assessment (sc. an amendment of an assessment cf. s. 173 and s. 185) pursuant to s. 187 of the Act. So much appears from the heading to the case stated. The case was drawn up and agreed upon by the parties and stated automatically at their request. It contains many statements concerning the facts, not all of which are relevant to the question ultimately submitted. That question adopts a form which is used no doubt quite legitimately when the only final question of law which can be discovered is whether a tribunal of fact might or might not on the evidence collected and stated arrive reasonably at a given conclusion of fact. The question actually propounded in the present case stated is whether the judge hearing the appeal is either bound or at liberty to hold that either of two sums of money named, viz. (a) "the said sum of £450" (sc. interest), or (b) "the said sum of £460" (sc. dividends), did not constitute assessable income of the appellant in respect of the income year which ended on 30th June 1958. The case stated does not adopt the customary order or sequence in setting out the matter submitted for the consideration of the Full Court but, from a study of its contents, it appears that the appeal is from the disallowance of a notice of objection dated 30th June 1959, which notice of objection was made to an amendment made on 4th June 1959 to an assessment of the appellant at some antecedent date. The amendment apparently added to the assessable income of the taxpayer an amount of £910, composed of the two sums already mentioned. The amount of £450 was added as interest arising from a debt to the taxpayer; the amount of £460 was added as dividends received from certain companies which are identified by description but not by name. It appears from the case stated that there were many objections taken to the amendment which are not covered by the question in the case stated. The basis of the question asked appears to lie in a contention that the two sums of money, when derived, were not derived by the taxpayer. The reason on which the taxpayer bases the contention is that according to his view they were derived by his wife. His reason for that view or contention lay in the fact that, as he maintained, by an effective instrument of assignment which had been made and become effective before they arose as income he had made over the two sums to her which otherwise might have accrued as his income. The year of income with which we are concerned closed on 30th June 1958. It therefore opened on 1st July 1957. As I understand it, the whole case depends upon showing that in the case of each of these sums the taxpayer had, before 1st July 1957, by some dispositive act ensured that no part of it would be derived by him.