Squatting Investment Co Ltd v Federal Commissioner of Taxation [1953] HCA 13

86 C.L.R.] OF AUSTRALIA.

paid by the company " in respect of or in relation to " an employ- ment of the appellant by the Crown in the armed forces. I would respectfully agree with this. The payments were not in any real sense rewards for services rendered to the Crown. For the rest, the learned Judges accept the decision of Fair J. as correct and express the opinion that periodicity of payment affords no ground for distinguishing between the two cases. Myers C.J. and Northeroft J. in a joint judgment say :—' Nor do we think that what is referred to in some of the cases as the ' periodicity ' of the payments makes any difference " (1).

The point to be observed about the second Lowisson Case (2) is that it proceeds wholly on s. 79 (1) (6) of the Land and Income Tax Act 1923. The question in connection with which Fair J. in the earlier case had regarded the "' lump sum " character of the payment as relevant was the question whether the case fell within s. 79 (1) (h), that is to say, the question whether, apart from any category specifically mentioned in the Act, the payment fell within the ordinary conception of "income". But in the later case no reference appears to be made to this latter question either in the argument of counsel for the commissioner or in any of the judg- ments. Counsel seems to have proceeded on the view that, if the receipts in question could not be related to any employment in the relevant sense, they amounted to " mere gifts" and could not be "income " within the meaning of the Act. Some colour may be said to be given to this assumption by such English cases as Beynon v. Thorpe (3) and Stedeford vy. Beloe (4), but it is to be remembered that the sole question in England in such cases has been whether a particular receipt falls within the terms of a particular description in a schedule which deals with profits or gains arising from an office or employment. At any rate no such assumption can be made with respect to the Commonwealth Income Tax Assessment Act, and for this reason it appears to me that the second Louisson Case (2) should be regarded as supporting the view that this case falls outside the definition of 'income from personal exertion " and outside s. 26 (e), but otherwise as having no bearing on the present case.