Mant v Deputy Federal Commissioner of Land Tax (Qld) [1915] HCA 46; (1915) 20 CLR 564 (2 August 1915)

HIGH COURT OF AUSTRALIA

Mant and Others Appellants; and The Deputy Federal Commissioner of Land Tax for Queensland Respondent.

H C of A

2 August 1915

Isaacs, Gavan Duffy and Powers JJ.

Hart, for the appellants.

Macgregor, for the respondent.

The judgment of the Court, which was read by Isaacs J., wasas follows:—

Aug. 2

Isaacs, Gavan Duffy and Powers JJ.

No question arises as to the reality and bona fides of the partition of the land, or the bona fides of the agreement recorded in the deed of partnership. It is a conceded fact that the several parcels belong in law and equity exclusively to the respective persons in whose names they stand, and have not been made part of the partnership stock. No one person has any proprietary interest whatever in the land of any other. The only right which any one of the partners has in respect of the land of any other is a personal right, created by the contract of partnership; and that contract does not provide that the land shall be partnership property or capital. The only capital of the partnership—in other words, the only property owned jointly—consists of live stock and chattels. The contract simply permits common agistment on the severally owned lands. That mutual right is not, in our opinion, the kind of right comprehended by the Land Tax Assessment Act.

The term "joint owners," by sec. 3, means "persons who own land jointly or in common, whether as partners or otherwise."

"Owner" ... includes every person who jointly or severally, whether at law or in equity—(a) is entitled to the land for any estate of freehold in possession; or (b) is entitled to receive, or in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise.

Having regard to that definition, the definition of "unimproved value," the provisions of secs. 27 and 28 as to leaseholders, sec. 35 as to equitable owners, and the general tenor of the Act, we think that the case is not brought within the joint tenancy provisions of the Statute.

The appellants do certainly derive benefit from the land and from its produce, but not as owners. The owner of each respective parcel does not, even as to his own land, receive the profits of the land as owner—though, of course, subject to his contract he would be entitled to do so,—but the partnership by his permission receives them, and then he, quâ partner, shares the profits of the partnership. So that those who are not owners of any given portion of the land are not, as owners, entitled to receive its produce; what they receive in fact, they receive under the partnership contract, which stops short of creating an interest in the land itself.

The Commissioner then relied on sec. 42 of the Act. It was urged that, as before the partition in 1907 the land, though standing in the father's name alone, was held by him in trust for all the then partners, and was then occupied, and has been ever since the partition actually occupied, by the partners for the time being, they are, by the terms of the section, to be deemed owners of the land. This cannot be maintained. The case does not come within the letter of this section, as a taxing provision requires.

None of the appellants was a "person making the" conveyance or transfer of the land. George Mant was that person.

Both contentions failing, the question must be answered in the the negative, and the case remitted with that opinion.

Question answered in the negative.

Solicitors, for the appellants, Flower & Hart.

Solicitors, for the respondent, Chambers, McNab & McNab.