Federal Commissioner of Taxation v Elder's Trustee and Executor Company Limited [1946] HCA 14

71 C.L.R.] OF AUSTRALIA. 381

{HIGH COURT OF AUSTRALIA.)

FEDERAL COMMISSIONER OF TAXATION . AppELLant ;

AND

ELDER'S TRUSTEE AND EXECUTOR COM-\ », PANYSEIMITRD eae ane ee

Income Tax (Cth.)—Assessment—Rebate—Gifis "made by the taxpayer" to H, C, or A. charitable institutions—Income of deceased person's estate taxable in hands of 1946, executor—Legacies to charities—Payment by executor—Right of executor to San rebate—Income Tax Assessment Act 1936-1943 (No. 27 of 1936—No. 10 of MELBouRNE, 1943), ss, 95-99, 1004, 1014, 160 (1), (2) (g). May 27, 28;

Legacies paid by an executor in accordance with the, terms of a testator's § 7¥"¢ 7

will to charitable institutions specified in s, 160 (2) (g) of the Income Tax Latham C.J. Assessment Act 1936-1943 are "gifts . . . made by the taxpayer" within the meaning of that sub-section, so as to entitle the executor to a

concessional rebate of tax under s. 160 (1) in his assessment to income tax in respect of the income of the trust estate,

Apprau under Income Tax Assessment Act.

This was an appeal by the Federal Commissioner of Taxation from a decision of a Board of Review under the Income Tax Assess- ment Act 1936-1943 on an appeal against an assessment to income tax of Elder's Trustee and Executor Co. Ltd., as executor of the estate of T. E. Barr Smith, in respect of the income year 1942-1943, The facts and the relevant statutory provisions sufficiently appear in the judgment hereunder.

Hudson K.C. and D. M. Little, for the appellant.

E. Phillips, for the respondent. Cur. adv, vult.

HIGH COURT [1946.

Laruam C.J. delivered the following written judgment :— The question which arises upon this appeal from a Board of Review under the Income Tax Assessment Act 1936-1943 is whether legacies to charitable institutions paid by an executor in accordance with the terms of a will are gifts made by a taxpayer within the meaning of s. 160 (2) (g) so as to entitle the taxpayer to a concessional rebate of tax under that section.