Syme v Commissioner of Taxes (Vic) [1914] UKPCHCA 6

— -18C.L.R.] OF AUSTRALIA. 519

[PRIVY COUNCIL}

. SYME : ; ' 5 . APPELLANT;

AND

THE COMMISSIONER OF TAXES FOR

VICTORIA . 3 } RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.*

Income Tax—Income derived from trust estate—Trade carried on by trustees— PRIVY Income from personal exertion—Income the produce of property—Income Tax COUNCIL. ** Act 1895 (Vict.) (No. 1374), secs. 2, 5, 9, 15, 34, 41—Income Tax Act 1896 1914. (Vict.) (No. 1467), secs. 4, 12. bax

July 28. Under the terms of his will a trade or business formerly carried on by the

testator was carried on by the trustees for the benefit of certain beneficiaries

who under the will were entitled to share equally in the residue of the income of the estate,

Held, that the income of each of those beneficiaries, so far as it was attributable to the trade or business so carried on, was 'income from personal exertion" within the meaning of that expression in sec. 2 of the Income Tax Act 1895 (Vict.) as amended by sec. 4 of the Income Tax Act 1896 (Vict.), and was taxable accordingly.

Decision of the Supreme Court of Victoria reversed.

Webb v. Syme, 10 C.L.R., 482, overruled.

AppraL from the Supreme Court of Victoria. This was an appeal by John Herbert Syme from the decision

of the Full Court of the Supreme Court of Victoria to the Privy Council.

"This was in effect an appeal from the decision of the High Court in Webb v. Syme, 10 C.L.R., 482, and is therefore reported here.

**Present—Lord Dunedin, Lord Atkinson, Lord Sumner and Sir Joshua Williams, '

Privy Counert. 1914. — Si SyME v. Commis- SIONER OF

TAXES FOR Vierorta.

July 28.

HIGH COURT [1914.

The judgment of their Lordships was delivered by

Lorp Sumner. The question on this appeal is shortly whether a portion of the appellant's income is assessable to income tax as income derived by him from personal exertion or as income derived by him from the produce of property within Victoria, — within the Income Tax Acts 1895 and 1896 of the State of Vic- toria. The appellant returned this sum under the former head ; the Commissioner of Taxes assessed him under the latter, and thereby doubled the rate of tax chargeable. Mr. Syme objected, and paid under protest, and his objection was duly transmitted for hearing and determination to a Judge of County Courts, who stated a case for the opinion of the Supreme Court which raised the above question. The Supreme Court decided against him on the authority of Webb v. Syme (1), in which the same question, on practically the same state of facts, had been answered by the Supreme Court of the State of Victoria in Mr. Syme's favour and against him by the High Court of Australia. So far as questions of principle and of construction of the Acts are con- cerned, this case is therefore in effect an appeal from Webb v. Syme (1).