Milne v Commissioner of Taxation (Cth) [1976] HCA 2

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen and Murphy JJ. Milne v Commissioner of Taxation (Cth) [1976] HCA 2

ORDER The questions asked in the case stated are answered as follows:

1. Are the amounts received by the appellant during the year ended the 30th June 1973 from the forest company with respect to the bond and covenant or either of them held by the appellant income in the hands of the appellant and therefore assessable against the appellant under s. 25 of the Income Tax Assessment Act 1938 (as amended)?

Answer: No.

2. Are the amounts received by the appellant during the year ending 30th June 1973 from the forest company with respect to the bond and covenant or either of them held by the appellant not income in the hands of the appellant and therefore not assessable against the appellant under s. 25 of the said Act?

Answer: Yes.

3. Are the said amounts or either of them assessable income in the hands of the appellant being profits arising from the carrying on or carrying out of a profit-making undertaking or scheme under s. 26(a) of the said Act?

Answer: No.

4. Are the said amounts or either of them not assessable income in the hands of the appellant not being profits arising from the carrying on or carrying out of a profit-making undertaking or scheme under s. 26(a) of the said Act?

Answer: Yes.

Remit case to the Supreme Court of South Australia for determination in accordance with the answers given. Commissioner to pay appellant's costs of the case stated.

Cur. adv. vult.

The following written judgments were delivered:—

1976, Feb. 11 Barwick C.J.

The Supreme Court of South Australia, pursuant to s. 18 of the Judiciary Act, 1903-1973, stated a case in this appeal for the opinion of the Court setting out the relevant facts, of which the following are basic to the resolution of the questions posed for decision.