Taxes, Commissioner of (Tas) v Perpetual Trustees Executors & Agency Co of Tasmania Ltd [1969] HCA 9

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Taxes, Commissioner of (Tas) v Perpetual Trustees Executors & Agency Co of Tasmania Ltd [1969] HCA 9

ORDER Appeal allowed. Order of Supreme Court of Tasmania varied by substituting—(1) for the figure $43,648.00 appearing therein the figure $46,180.00, (2) for the order that the present respondent recover against the present appellant its costs to be taxed an order that the present appellant recover against the present respondent his costs to be taxed. The present appellant to pay to the present respondent its costs of the appeal.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 20 Barwick C.J., McTiernan, Kitto, Menzies and Windeyer JJ.

This is an appeal by special leave from an order of the Chief Justice of the Supreme Court of Tasmania whereby his Honour allowed an appeal by the present respondent against an assessment of duty under the Deceased Persons' Estates Duties Act 1931-1962 Tas. upon the estate of T. A. Pitman deceased made by the appellant. The actual order of the Chief Justice was:

that the assessment by the respondent of the value of the deceased's shares in Hotel Arthur Pty. Ltd. be reduced from $49,930.00 to $43,648.00. The only question with which this Court is concerned relates to a sum of $2,532.00 forming part of the reduction made in the assessment by virtue of the foregoing order.

In making the assessment the appellant was of the opinion that s. 16A (1) (c) of the Act should be applied in valuing the shares in Hotel Arthur Pty. Ltd. forming part of the estate of the deceased, and against that exercise of discretion there was and is no appeal, although, at a late stage in his argument to this Court, learned counsel for the respondent did indicate that it might well be that his fundamental objection to the assessment was really concerned with the exercise of the Commissioner's discretion to apply the provision. However, that matter was not in issue in the Supreme Court and is not open to this Court. Moreover, there is no material upon which exercise of the discretion could now be challenged. The whole appeal turns, therefore, upon the construction of s. 16A (1) (c) which is in these terms: