Emanuel v Commissioner of Taxation (Cth) [1968] HCA 57

High Court of Australia Windeyer J. Emanuel v Commissioner of Taxation (Cth) [1968] HCA 57

ORDER Appeal dismissed with costs. Assessment confirmed. Usual order as to exhibits.

Cur. adv. vult.

1968, Sept. 10 Windeyer J. delivered the following written judgment:—

This is an appeal by Sydney Francis Emanuel, a taxpayer, against the Commissioner's assessment of his income tax payable in respect of the year of income ended on 30th June 1964. I heard the case last year. I regret that my delivering judgment has been, by untoward events, long delayed. The statements which I now make are to be read as relating to the facts as they existed at the date of the hearing.

The question for decision arises in relation to what is called "dividend (withholding) tax", being tax payable in accordance with s. 128B of the Income Tax and Social Services Contribution Assessment Act 1936-1964 Cth.

In December 1964 the taxpayer gave a notice of election that income on which dividend (withholding) tax was payable should be included in his assessable income. This notice was given pursuant to s. 128D of the Act as it then was. That section was later amended and then repealed, and by Act No. 85 of 1967, s. 17, a new s. 128D was substituted. Nothing turns on this except as a reminder that the case is to be decided on the Act as it stood in relation to the year of income in question as applied to the facts then existing. When I refer to the Assessment Act I mean therefore the Act of 1936 as amended up to July 1964. The ultimate question is whether the taxpayer is liable for dividend (withholding) tax in the year ended 30th June 1964 at the rate of thirty per cent or fifteen per cent.

No oral evidence was given; but the file of documents which the Commissioner forwarded to the Court and a written statement described as a "statement of agreed submissions" were tendered and admitted by consent. The latter document is couched in the present tense. It is to be read as referring to facts existing in the year of income in question and continuing thereafter to the date of the assessment and of the hearing before me. It is as follows: