Stocks & Holdings (Constructors) Pty Ltd v Commissioner of Taxation (Cth) [1973] HCA 16

High Court of Australia Barwick C.J. Menzies, Stephen and Mason JJ. Stocks & Holdings (Constructors) Pty Ltd v Commissioner of Taxation (Cth) [1973] HCA 16

ORDER The questions asked in the stated case answered as follows: 1. Whether, upon the true construction of Div. 7 of Pt III of the Act, and in particular of s. 103A (5) thereof, and upon the facts above set forth the respondent (or the Board of Review upon reference from him) could properly form the opinion, in pursuance of s. 103A (5) of the Act that having regard to the matters specified in the said sub-section it was reasonable that the appellant should be treated as a public company in relation to the year of income.—No. 2-6. Unnecessary to answer. Respondent to pay appellant's costs of the case stated.

Cur. adv. vult.

The following written judgments were delivered:—

May 14 Barwick C.J.

My brother Stephen, in the reasons for judgment which he has prepared in this matter and which I have had the advantage of reading and considering, sets out all the material necessary to be known for the disposal of the case stated for the opinion of the Full Court by my brother Walsh pursuant to s. 18 of the Judiciary Act.

I agree with the conclusion expressed by my brother Stephen that the respondent Commissioner's assessment of the appellant to tax for the year in question at a rate applicable to a public company should be set aside and the appellant assessed to tax at a rate applicable to a private company within the meaning of Div. 7 of the Income Tax Assessment Act 1936-1965 (the Act).

In my opinion, in the circumstances of this case which my brother details there was no occasion for the exercise by the Commissioner of the discretion given him by s. 103A (5) of the Act. That discretion is given to the Commissioner for exercise when the operation of other parts of Div. 7 has cast on the taxpayer a burden or disadvantage from which the Commissioner having regard to the matters enumerated in the sub-section thinks it reasonable to relieve it by treating it for the purposes of the Division as a public company. Consequently, I agree entirely with the reasons which my brother Stephen gives for his conclusion. I also agree that only the first question submitted by the case stated need be answered and that that question should be answered in the negative.