Molloy v Federal Commissioner of Land Tax [1937] HCA 62

HIGH COURT [1937.

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[HIGH COURT OF AUSTRALIA] MOLLOY é + ss i : ii 2 . APPELLANT ;

AND

THE FEDERAL COMMISSIONER OF seen 4 RESPONDENT.

H.C. or A, Land Tax (Cth.)}—Assessment—Amended assessment—Land included in amended 1937. assessment—Contract of sale—'* Owner "—Possession—* Payment"? of fifteen oe per centum of purchase money—Land Tax Assessment Act 1910-1934 (No. 22 mie of 1910—No. 14 of 1934), secs. 3, 21, 37, 63. Oct, 1, 4. ae Sec. 21 of the Land Tax Assessment Act 1910-1934 provides : " Where any Mezpourne, i F : ; Tans land or interest in land has not been included in the assessment of the owner, cna the commissioner may cause the assessment to be altered so as to include Dixon J.

that land or interest as from the date when the assessment was made."

Held that the concluding words mean that an amendment or alteration shall operate as from the date of the original assessment as an imposition of liability and do not mean that the land can only be included as from the date upon which the original assessment was made or issued so that it could not be regarded for the purpose of assessing him as " owned " by the taxpayer at any prior date, e.g., as at the 30th June in respect of which the original assessment was made.

An intestate at her death owned land subject to a mortgage and other encumbrances, but she owed no unsecured debts and she owned no other property. Two persons were entitled to share in the distribution of her estate as next of kin. One obtained an assignment of the other's interest and took out letters of administration. He entered into beneficial enjoyment of the rents and profits and kept down interest and renewed the mortgage.

Held that, as the sole person entitled, he had taken the only asset of the estate in specie and had entered into its enjoyment and was an " owner" within par. 6 of the definition of that word in sec. 3 of the Land Tax Assessment Act 1910-1934.