Union Fidelity Trustee Co (Aust) Ltd v Commissioner of Taxation (Cth) [1969] HCA 36

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Union Fidelity Trustee Co (Aust) Ltd v Commissioner of Taxation (Cth) [1969] HCA 36

ORDER Question raised by the case stated answered—No. Costs of the case reserved for the Justice disposing of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 6 Barwick C.J.

The case stated for the opinion of the Court by my brother Kitto discloses that the trustees of the estate of Nevil Shute Norway, deceased, one of whom is a company incorporated in the State of Victoria and the other a person residing in Australia during the relevant tax year (1960-1961) received in that tax year from sources beyond Australia income to which under the terms of the will of the deceased no person in that year was presently entitled. The trustees disclosed that income in their return of income for that year but claimed that they were not taxable in respect thereof, relying upon the decision of this Court in the Federal Commissioner of Taxation v. Belford [3] . The Commissioner assessed the trustees to tax under Pt III, Div. 6 of the Income Tax and Social Services Contribution Assessment Act 1936-1961 Cth (the Act), and in particular under s. 99. An objection to that assessment was disallowed by the Commissioner. It has now been treated at the request of the trustees as an appeal to this Court under s. 187 of the Act. The question asked in the stated case is whether the trustees are taxable in respect of the receipt of that income in that year of tax.

1. (1952) 88 C.L.R. 589.

Division 6 of Pt III of the Act is headed "Trustees" but its provisions range more widely. It contains three provisions plus a definition which are presently relevant. Section 97 provides that a beneficiary not under any legal disability who is presently entitled to a share of the income of a trust estate shall have that share of the net income of the trust estate included in his assessable income.