Commissioner of Taxation (NSW) v Lawford [1937] HCA 14

774 HIGH COURT [1937.

H.C. or A. which it aims. Upon an examination of the language, subject matter 1937.

G~ _ and scope of sec. 198 (1) (a), in my opinion, the legislature did not Sway Hm. intend to authorize the invasion of existing rights which the council Cor. cae has attempted.

Brapavry, 1 my opinion the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant, Z. Edgar Davies & Co. Solicitors for the respondent, Alan Garden & Green.

(HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER OF TAXATION (NEW SOUTH WALES). REsPoNnDENT,

} APPELLANT ;

AND

LAWFORD . : 5 ¥ r s . . ReEsponpENt. APPELLANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Income Tax (N.S.W.)—Assessable income—Solicitor—Costs earned prior to death—

1937. —Payment to executrix—* Income derived by" executrix in her " representative nw capacity" —Income Tax (Management) Act 1928 (.8.W.) (No. 35 of 1928), Sypyey, sec. 79. April I. pal Certain professional costs earned by a solicitor remained unpaid at the date Hane C22, of his death and were subsequently paid to his executrix. : McTiernan JJ.

Held that the moneys so received by the executrix were not income derived by her in her representative capacity within the meaning of that expression in sec. 79 of the Income Tax (Management) Act 1928 (N.S.W.).

Decision of the Supreme Court of New South Wales (Full Court) affirmed.

56 C.L.R.] OF AUSTRALIA.

AppraL from the Supreme Court of New South Wales.

Charles Mauduit Lawford died on 6th January 1932, and probate of his will was granted to his widow, Margaret Sutherland Lawford, the executrix named therein. Lawford had been practising at Orange, New South Wales, as a solicitor in partnership with one William Russell Campbell, and at the date of his death he and his partner had earned certain moneys in the nature of costs which had not been paid to the partnership. After Lawford's death these moneys were collected by the surviving partner who prior to 30th June 1932 paid to Lawford's executrix the sum of £882 on account of Lawford's share of the costs earned prior to the date of his death. In a return furnished by the executrix to the Commissioner of Taxation for New South Wales in respect of the period from 6th January 1932 to 30th June 1932, she disclosed to the commissioner this sum of £882, and deducted therefrom the sum of £32, leaving anet amount of £850. The commissioner claimed income tax upon the sum of £675, being this amount of £850 less the sum of £175 allowed by way of general exemption. On the adjustment sheet which accompanied the notice of assessment appeared the following statement by the commissioner: " Assessment is based on a net income of £850 from the partnership of Campbell and Lawford."