Commissioner of Taxation (Cth) v Barrett [1973] HCA 49

High Court of Australia Stephen J. Commissioner of Taxation (Cth) v Barrett [1973] HCA 49

ORDER Appeal allowed. Assessment of pay-roll tax confirmed. Respondents to pay Commissioner's costs of appeal.

Stephen J delivered the following written judgment

Nov. 2 Stephen J

This case involves a quite short point, the distinction between a servant and an independent contractor.

The incidence of pay-roll tax, under the now largely inoperative Pay-roll Tax Assessment Act 1941-1969 Cth, is made to depend upon payment by an employer of wages and part of the definition of "wages" is as follows:

"wages" means any wages, salary, commission, bonuses or allowances paid or payable (whether at piece work rates or otherwise and whether paid or payable in cash or in kind) to any employee as such

The respondents, members of a large firm of South Australian land agents, contend that amounts of commission paid by them to certain land salesmen, who are engaged principally in the work of finding purchasers for land entrusted to the firm for sale, do not fall within that definition because they are not paid "to any employee as such" but rather to these land salesmen as independent contractors. This contention succeeded, by a majority, before a Board of Review and it is from that majority decision that this appeal is now brought by the Commissioner. The course adopted by the parties on this appeal was to tender in evidence before me the transcript of the proceedings in the hearing before the Board, no additional evidence being tendered; there was no criticism of the statement of facts contained in the Chairman's reasons, which the majority of the Board themselves adopted subject only to the addition of one further circumstance. That statement of the facts by the Chairman is both lucid and precise; it appears in the report of the reasons of the Board [1] and I do not propose to survey afresh the facts of the matter generally.