Robertson v Deputy Federal Commissioner of Land Tax [1941] HCA 40

HIGH COURT (1941.

[HIGH COURT OF AUSTRALIA.]

ROBERTSON AND OTHERS . : : . APPELLANTS ;

AND

THE DEPUTY FEDERAL COMMISSIONER R OW IWAINID) MAX p ESPONDENT.

H.C. or A. Land Tax (Oth.)—Land exempted from taw—Land "owned by or in trust for"

1941. —

SyDNEY, Nov. 20; Dec. 8.

Rich, Starke, McTiernan and Williams JJ.

educational institution—Devise wpon trust to pay debts—Creation of fund of income after estate free from debts—Fund to be paid to educational institution— Estate debts unpaid—Land Tax, Assessment Act 1910-1937 (No. 22 of 1910— No. 5 of 1937), secs. 3, 13 (e).

Land devised to trustees upon trust to convert, and out of the proceeds of conversion and the income pending conversion to pay the debts of the testator, and when the estate should be free of debts to constitute from the income thereof a fund and to pay the same in perpetuity to a named educational institution, is not, while debts of the testator remain unpaid, " owned by or in trust for" the educational institution, within the meaning of sec. 13 (e) of the Land Tax Assessment Act 1910-1937.

CaSE STATED.

On the hearing of an appeal to the High Court by Arnold William Robertson, Charles Ferdinand Marks, and James Henry Lalor, as trustees of the will of James O'Neil Mayne, deceased, from an assessment to land tax made upon them in that capacity by the Deputy Federal Commissioner of Land Tax, under the Land Tax Assessment Act 1910-1937, in respect of lands belonging to or forming part of the estate of the deceased, at the request of the parties, on facts admitted by them, Williams J., pursuant to sec. 44m of the Act, stated for the opinion of the Full Court a case which was substantially as follows :—

1. James O'Neil Mayne of Brisbane in the State of Queensland, medical practitioner, died at Brisbane on 31st January 1939.

2. By his last will dated 23rd December 1937 the deceased appointed the appellants, Arnold William Robertson, Charles