Commissioner of Taxes (Qld) v Burke [1926] HCA 21

H.C. or A, 1926.

) BRISBANE,

June 23, 29.

Higgins, Gayan Duity

and Starke JJ.

. HIGH COURT

[HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER OF 'TAXES ) APPELLANT; (QUEENSLAND). 3 a

AND

BURKE o 3 - : i 4 ti . REsponpenr.

Income Tax (Queensland)—Assessment—Income derived from personal exerti Business of buying and selling land—Sales of land—Payment by instalments extending over several years—Profits arising from sale of real property—I Tax Acts 1902-1923 (Q.) {2 Hdw, VIZ. No. 10~14 Geo. V. No. 42), secs. 3, (L) (.*

In the ordinary course of his business the taxpayer purchased land in Queens Jand from time to time and subdivided and sold portions thereof under contra

of sale providing for payment of the purchase-moneys by instalments extendi over more than one year.

* Sec. 7 of the Income Tax Acts 1902- by him during the year in which the 1923 (Q.) imposes income tax (inter sale took place or the six years prior alia) on all taxable income derived thereto, arrived at by deducting from from personal exertion. By sec. 3 the amount realized by the sale the "income derived from personal exer- expenses of sale and the cost to the tion " is defined as "all income consist- vendor (Jess any amount for deprecia- ing of earnings . . . earned in or tion which the Commissioner considers derived from Queensland, andallincome just) of the property," &e. By sec. 7 arising or aceruing from any business of the Income Tar Act of 1923 the above carried on in Queensland. . words "whether or not arising or Without limiting the generality of 'the accruing from any business carried on foregoing provision, the income subject by the taxpayer where such real to tax expressly includes all income property was purchased or acquired referredtoin . . . section fourteen of him during the year in which the this Act." Sec. 14(I.)ofthe IncomeTax took place or the six years priorthereto" Acts 1902-1922 provides (inter alia) that are repealed and the following words in income derived from personal exer- are inserted in lieu thereof: "(i,) in" tion is included "(1) all net gains or connection with any business carried profits arising from the sale of any real _on by the taxpayer ; or (ii.) in all other property . . . whether or not cases where such real property was arising or accruing from any business purchased or acquired by him during carried on by the taxpayer where such — the year in which the ae took place real property was purchased or acquired _in the six years prior thereto.