Cridland v Commissioner of Taxation (Cth) [1977] HCA 61

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Aickin JJ. Cridland v Commissioner of Taxation (Cth) [1977] HCA 61

ORDER Appeals allowed with costs. Orders of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeals to that Court be allowed with costs. Remit matters to the Commissioner to reassess in accordance with the reasons for judgment of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 30 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in these appeals by my brother Mason. I agree entirely with those reasons and with the conclusion that the appeals be allowed. I find no need to add anything on my own behalf.

Stephen J.

I would allow these appeals for the reasons stated by Mason J., with which I am in full agreement.

Mason J.

In the Supreme Court of New South Wales, Mahoney J. dismissed the appellant's appeals against assessments to income tax for the years ended 30th June 1970, 1971 and 1972. The issue in the appeals was whether the appellant was entitled to the benefit of the averaging provisions contained in Div. 16 of Pt III of the Income Tax Assessment Act 1936, as amended ("the Act"). The appellant claimed the benefit of these provisions on the ground that he was an income beneficiary under certain trusts the trustee of which carried on the business of primary production. The appellant relied particularly on s. 157 (3) of the Act which provides:

(3) For the purposes only of determining whether a person is carrying on a business of primary production, a beneficiary in a trust estate shall, to the extent to which he is presently entitled to the income or part of the income of that estate, be deemed to be carrying on the business carried on by the trustees of the estate which produces that income.