Federal Commissioner of Taxation v Official Receiver [1956] HCA 24

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FEDERAL COMMISSIONER OF TAXATION APPELLANT ; RESPONDENT, AND OFFICIAL RECEIVER AND ANOTHER . . RESPONDENTS,

APPLICANT AND RESPONDENT,

ON APPEAL FROM THE FEDERAL COURT OF BANKRUPTCY DISTRICT OF VICTORIA.

H. C. or A. Bankruptcy—Income Tax (Cth.)— Bankrupt—Vesting of property in trustee—After- 1956. acquired property—Personal earnings of bankrupt—Weekly deductions of tax

Se by employer therefrom—Excess of deductions over tax liability—Provision for MELBOURNE, payment by Commissioner of Taxation of amount of excess " to the employee "— Feb. 23; Right of employee to payment of amount—Whether a chose in action —Whether June 6. vested in trustee in absence of intervention— Whether amount could be paid to any Dixon C.J., person other than employee—W hether employee '' in receipt" of amount prior ams, to payment by commissioner—Bankruptcy Act 1924-1950 (No. 37 of 1924—No. tet 80 of 1950), ss. 91 (i), 99 (4), 101—Income Tax and Social Services Contribution

Assessment Act 1936-1953 (No. 27 of 1936—No. 81 of 1953), ss. 16, 172, 202, 221H (2) (b), 221u, 22lyex.

Section 91 (1) of the Bankruptcy Act 1924-1950 provides that, subject to the Act, the property of a bankrupt divisible among his creditors includes, inter alia, all property which is acquired by or devolves on him before his discharge. By s. 4 " property " is defined to include things in action. Section 99 (4) of the Act provides that where any part of the property of the bankrupt consists of things in action they shall be deemed to have been duly assigned to the trustee. Section 101 provides that subject to the Act where a bankrupt is in receipt of pay, pension, salary, emoluments, profits, wages, earnings or ° income, the trustee shall receive for distribution among the creditors, so much thereof as the Bankruptcy Court, on the application of the trustee, directs.