National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation [1953] HCA 90

Seo pel (76

89 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.)

NATIONAL TRUSTEES EXECUTORS &

AGENCY COMPANY OF AUSTRAL- APPELLANT ; ASIA LIMITED AND ANOTHER

AND

FEDERAL COMMISSIONER OF TAXATION . RESPONDENT.

(CuIsHoLm's Cas)

Bstate Duty (Cth.)—Hstate situate partly within and partly outside Australia—

Deduction—Duty payable in respect of part of estate outside Australia—Method of determining quantum—Asset situate outside Australia—Ruempt from duty under law of situs—Whether part of estate on which duty lawfully paid in situs —Estate Duty Assessment Act 1914-1950 (No. 22 of 1914—WNo. 80 of 1950), s. 8 (7).

Sub-section (7) of s. 8 of the Estate Duty Assessment Act 1914-1950 provides : "When any duty is lawfully paid in any place outside Australia in respect of any part of the estate situate outside Australia there shall be deducted from the total duty to which the estate is liable under this Act the lesser of the following sums—(a) the amount of duty so paid in the place outside Australia; or (b) the duty which is payable under this Act in respect of that part of the estate "'.

Held, by Dixon C.J., Webb and Taylor JJ. (Kitto J. dissenting), that the quantum of the deduction under sub-s. (7) is ascertained by comparing the aggregate of the duties so paid in the places outside Australia and the duty payable under the Act in respect of the appropriate parts of the estate.

A testator domiciled in Australia left estate in England, including invest- ments to the value of £stg.5,026 8s. 2d. which, under the English Finance Acts, were exempt from duty. Duty was assessed in England and paid on the remainder of the English estate.

Held, by the whole Court, that the investments did not constitute any part of the deceased's estate upon which duty was lawfully paid in England

and, accordingly, no deduction was allowable under s. 8 (7) of the Hstate Duty Assessment Act 1914-1950 in respect of them.