Perpetual Executors & Trustees Association of Australia Ltd v Commissioner of Taxation [1948] HCA 24

High Court of Australia Latham C.J. Starke, Dixon, McTiernan and Williams JJ. Perpetual Executors & Trustees Association of Australia Ltd v Commissioner of Taxation [1948] HCA 24

ORDER Questions in case answered:—(1) Yes. (2) No. Respondent to pay appellants' costs of case. Case remitted with these answers to Dixon J.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 22 Latham C.J.

Case stated under s. 28 of the Estate Duty Assessment Act 1914-1942. Section 8 (3) of the Act provides that for the purpose of the Act the estate of a deceased person comprises, inter alia—"(b) his personal property, wherever situate (including personal property over which he had a general power of appointment, exercised by his will), if the deceased was, at the time of his death, domiciled in Australia." The Commissioner of Taxation of the Commonwealth has included in an assessment to estate duty an amount of £6,814, representing what is described in the assessment as a "right of action" belonging to the deceased person for "recovery of unliquidated damages valued at the sum paid by the Treasury to the administrators of the deceased person's estate." The sum so paid was £6,814.

In May 1944 this Court gave judgment in the case of Magrath v. The Commonwealth [8] . The plaintiff Magrath was the holder of gold dollar bonds issued in New York in 1927 by the Commonwealth. The bonds provided that the principal was payable to bearer in New York without deduction of any tax then or at any time thereafter imposed by the Commonwealth or by any taxing authority thereof or therein. The interest coupons provided that interest was payable "without deduction for any Australian taxes present or future." Two questions were submitted to the Full Court in a case stated. The first question was as follows:—