National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation [1923] HCA 63

33 C.L.R.] OF AUSTRALIA. 491

In my opinion, the proper answer to question 1 (a) as newly framed H. ©. or A. is that both these dividends should be taken into the calculation ; we to question 1 (b) is Yes. The proper answer to question 2 (a) is, Hooprr & in my opinion, No; and to question 2 (b) is No proportion. Hareeoy

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Questions answered :—(1) (a) Both. (1) (b) Yes. aoe (1) (c) Not answered. (2) (a) No. (2) (b) PEPERAL

Coyns- No. SIONER OF Taxation.

Solicitors for the appellant, Brawnd & Watt.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.

BLL. {HIGH COURT OF AUSTRALIA.] THE NATIONAL TRUSTEES, EXECUTORS | AND AGENCY COMPANY OF AUSTRAL- APPELLANT ;

ASIA LIMITED

AND

THE FEDERAL COMMISSIONER OF TAXA-

TION } RESPONDENT.

Land Tax —Assessment—Owner—Joint owners—Deduction of £5000—Trustees—

H.C. or A, Will of testator who died before 1st July 1910—T'rust to pay income to children— ga Discretion to trustee to withhold part of income — Land Tax Assessment Act 1910- 1916 (No. 22 of 1910—No. 33 of 1916), secs. 3, 11, 38 (7). Mernovurnx,

By his will a testator, who died before Ist July 1910, after certain specific O° 12> 15+ aifts gave the residue of his estate real and personal to his trustee upon trust to sell and convert with full power to postpone, and to manage and let the real estate during postponement ; and any rents were to be treated as income under the trust for investment. He directed that the net residue should be 1 invested and, subject to an annuity to his widow and to the proviso next herein- after mentioned, that the income should be paid to such of five of his children as

sai

Starke JJ.

HIGH COURT (1923. H.C. or A. should for the time heing be living, during his or her life or until insolvency, assign- 1923. ment, &c. 'The proviso was that if any of the five children should die leaving any a children, or have any children at insolvency, assignment, &c., the trustee should, Nationa until the death of the parent or the distribution of the residue, apply to or for RRUSTEES, the maintenance, education, benefit or advancement in life of the children of that AND child of the testator (or of such of them to the exclusion of the others and in we such shares, equal or unequal, as the parent should by deed appoint, and in Ausrrat- default of appointment in equal shares as tenants in common) or pay to the asta Lrp. guardian of such children a share of the income of the residue proportioned to Waoceas their expectant share in the corpus, But the trustee was empowered, if the Comms- trustee should deem it desirable, instead of paying or applying the whole of the pee share of the income, to pay or apply such part only as the trustee might think