Barringer v Nyngan Corporation [1953] HCA 4

H. C. or A. 1952. =

ROBERTSON v. FrpErau Commis- SIONER OF TaxaTION,

Taylor J.

HIGH COURT [1952.

of the article. Again, it was argued that there were other articles, and in particular those imposing restrictions upon the sale and transfer of shares, which were repugnant to the local Stock Exchange requirements and which also tended to depress the value of the deceased's shares, and that the existence of these articles justified the application of the section. But I should point out that it is quite clear from the terms of par. 36 of the admitted facts, that the operation or notional exclusion of article 6 is the only factor material to this branch of the case. No doubt the existence of articles which operate to depress the value of shares in a company, and, perhaps, the existence of articles which, in some respects, determine the character of shares, will form an appropriate basis for the application of s. 16a (1) (a) (see the observations of Williams J. in Federal Commissioner of Taxation v. Sagar (1) ), but such a basis having been found and the section having been applied, the only warrant for excluding or ignoring particular articles is that such a course is necessary in order to assume a form of articles which will satisfy Stock Exchange requirements and render the shares " listable''. Accordingly, even if it was proper to apply s. 16a in the present case, the question is whether article 6 was repugnant to such requirements "at" or '"' upon " the death of the testator. The clear evidence is that the existence of the article at that time no longer precluded the company's listing at the appropriate stock exchange. This being so, 1 am of the opinion that the assumption which s. 16a requires to be made does not require or authorize the exclusion of article 6 in making a valuation of the shares held by the deceased at the time of his death and, for the reasons which I have given, I think the com- missioner was wrong in ignoring or excluding the provisions of article 6 in assessing the value of the deceased's shares for the purposes of the Act.