Gale v Commissioner of Taxation (Cth) [1960] HCA 18

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Menzies JJ. Gale v Commissioner of Taxation (Cth) [1960] HCA 18

ORDER Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof order that the appeal to the Supreme Court from the assessment of the Commissioner of Taxation be allowed with costs. Declare that for the purposes of the assessment of estate duty the gift by the deceased to Peggy Mary Martin should not have been included at an amount or value in excess of £2,250. Remit the assessment to the Commissioner for reassessment consistently with the foregoing declaration.

Cur. adv. vult.

The following written judgments were delivered:—

April 6, 1960 Dixon C.J.

In my opinion this appeal should be allowed. I concur in the reasons given by Fullagar J.

McTiernan J.

In my opinion the appeal should be dismissed. I have reached the same conclusion as the primary judge (Walsh J.). I agree with his reasons and I wish to adopt them. I cannot usefully add anything to them.

Fullagar J.

This is an appeal from a judgment of the Supreme Court of New South Wales (Walsh J.). The appellant, Raymond Arthur Gale, is the executor of the will of his brother, Leslie Ross Gale, who died on 29th July 1950. He appealed to the Supreme Court against an assessment of estate duty under the Estate Duty Assessment Act 1914-1947 Cth, and the Commissioner's assessment was upheld by Walsh J. The point in dispute is as to a gift made by the deceased within three years of his death to a lady whom he afterwards married and who survived him. Section 8 (3) of the Estate Duty Assessment Act provides that, for the purposes of the Act the estate of a deceased person comprises (a) his real property in Australia, (b) his personal property, wherever situate, if he was at the time of his death domiciled in Australia, and (c) his personal property in Australia, if he had at the time of his death a foreign domicile. Section 8 (4), so far as material, provides that "Property (a) which has passed from the deceased person by any gift inter vivos or by a settlement made within three years before his decease shall for the purposes of this Act be deemed to be part of the estate of the person so deceased". The executor maintains that in the present case what is to be treated as part of the estate under s. 8 (4) (a) is a sum of money (£2,250). The Commissioner maintains that what is to be brought into charge under s. 8 (4) (a) is an undivided one-half interest in a station property known as "Bibaringa". The value of a one-half interest in that property (which was subject to a mortgage) was at the date of death £28,271 17s. 6d. A similar question to that which now arises came before this Court in Commissioner of Stamp Duties v. Gale [1] . It was there held, affirming the decision of the Supreme Court of New South Wales, that the amount to be brought into account for the purposes of s. 102 (2) (b) of the Stamp Duties Act 1920-1949 N.S.W. was £2,250, and not the value of a one-half interest in "Bibaringa".