Elder's Trustee and Executor Company Limited v Deputy Federal Commissioner of Taxation [1934] HCA 42

694 HIGH COURT [1934.

{HIGH COURT OF AUSTRALIA.)

ELDER'S TRUSTEE AND EXECUTOR)

COMPANY LIMITED . . . . Ae

THE DEPUTY FEDERAL COMMISSIONER OF)

TAXATION ResponvEnNtT. H.C. or A, Estate Duty (Cth.)—Assessment—Value of estate—Shares and government bonds— 1934, Brokerage—Estate Duty Assessment Act 1914-1928 (No, 22 of 1914—No. 47 of Ww 1928), secs. 10 (2), 15, 17. ADELATDE, Sept. 21; In ascertaining the value of shares in companies and government bonds for pe the purpose of the state Duly Assessment Act 1914-1928 it is not permissible

to deduct from the market value of the shares and bonds brokerage that would Starke J. have been payable by the seller had the shares and bonds been sold on the Stock Exchange,

Commissioner of Stamp Duties (Q.) v. Lansdowne, (1927) 40 C.L.R. 115, distinguished.

Apprat from decision of the Deputy Federal Commissioner of Taxa- tion.

Albert Edward Jolly died testate on 11th August 1933 leaving a large estate which included government bonds and shares in various companies. The testator by his will appointed the present appellant, Elder's Trustee and Executor Company Limited, executor and trustee thereof. The appellant proved the will and filed the return required by sec. 10 of the Estate Duty Assessment Act 1914- 1928. In addition to other assets the return disclosed the following personal property :—

Schedule No.1 Bonds .. £16,892 18 0 Less Brokerage £16,811 17 0 Schedule No.2 Bank Shares 14,923 12 0 Less Brokerage 14,776 6 0 Other Shares (S.A.) .. 70,923 15 4 Less Brokerage 69,872 7 5 Other Shares (Vic. .» 64,985 10 0 Less Brokerage 63,995 5 8 Other Shares (N.S.W.) 6,443 14 0 Less Brokerage 6,341 15 10 £174,169 9 4 £171,796 11 11

51 C.L.R.] OF AUSTRALIA.

The shares and bonds were subject to a trust for realization (with power to postpone) contained in the will. The Deputy Federal Commissioner of Taxation, the present respondent, refused to allow the deduction of brokerage claimed in the return. The appellant, being dissatisfied with this decision of the Deputy Commissioner, appealed to the High Court. On the hearing of the appeal evidence was given by a sharebroker and member of the Adelaide Stock Exchange confirming the value placed on the shares in the return. The witness stated that the figures represented the maximum amounts for which in his opinion each parcel could be sold. He also stated that to receive this maximum market price it would be necessary to employ a broker and pay brokerage. He verified the correctness of the amounts of brokerage set out in the return.