MacCormick v Federal Commissioner of Taxation [1945] HCA 10; (1945) 71 CLR 283 (27 June 1945)

This is a case stated under s. 35 of the Gift Duty Assessment Act 1941-1942 in an appeal to the Court from an assessment to gift duty under the Act.

The appellant, Charles Malcolm MacCormick, claims that a marriage settlement made by him is exempt from gift duty by reason of s. 14 (i) (ii) of the Act, which provides:—

The appellant contends that the gift made by the marriage settlement was a gift as to which the Commissioner ought to have been satisfied that it was made for or towards the purposes mentioned in the provision quoted. The Commissioner was not in fact so satisfied. The Deputy Commissioner who made the actual assessment, acting under administrative instructions, applied a general, though not a universal, ruling of the Commissioner that gifts of capital, as distinct from gifts of income, should not be allowed exemption under s. 14 (i) (ii). This ruling is challenged by the appellant. It is also contended for the appellant that the court itself may properly determine whether or not a gift falls within the exemption, and, if the court is satisfied that the provisions for exemption are applicable, that the court may and should so hold, irrespective of the opinion of the Commissioner.

The settlement was made on 21st June 1943 between the appellant, his intended wife, and two trustees, and was made in consideration of a marriage intended shortly to be solemnized between the husband and his intended wife. The property settled consisted of shares in companies which were described as "the fund." The fund was settled in trust for the husband until the marriage and thereafter as to two-thirds thereof upon trust that the trustees should pay the net income to the wife during her life for her separate use and during the intended marriage without power of anticipation and after her death in trust as to capital and income for such of the children of the marriage as might survive her and attain the age of twenty-one years, and if more than one, in equal shares. It was further provided that, if there should be no child of the marriage who should attain a vested interest, two-thirds of the fund and the income thereof should be held in trust for such persons and purposes and in such manner as the wife should by will appoint and in default of or subject to any such appointment in trust for her next-of-kin. It was also provided that, notwithstanding the trust mentioned, the trustees might in their absolute discretion transfer to the wife absolutely the whole or any proportion of the two-thirds of the trust property.

As to the remaining one-third of the fund, the settlement provided that it should be held by the trustees upon trust for an adopted daughter of the wife, so that the said property should not vest in the daughter absolutely unless and until she attained the age of thirty-five years. It was provided that during the infancy of the daughter the trustees might apply the income as they in their discretion should think fit for the "maintenance, support and personal benefit of the said daughter." Any accumulation could also be applied in subsequent years for the "support or benefit of the said daughter." After the daughter attained twenty-one years she was to be entitled to the income of the one-third of the property for her absolute use and benefit. There was a further provision that after the daughter attained the age of twenty-one years or married the trustees in their absolute discretion might pay to or vest in the said daughter or apply "for her advancement or benefit" the whole or any portion of the capital of the said one-third of the trust property.

The donor was assessed upon the value of the whole of the property settled, namely £50,997.

In the first place, it was contended that the Commissioner could not properly have refused to be satisfied that the conditions of s. 14 (i) (ii) were fulfilled, because a marriage settlement was necessarily a provision for the maintenance or education of the beneficiaries thereunder. In my opinion this contention cannot be supported. It is true that moneys which come into the hands of beneficiaries under a marriage settlement may, in the absence of any provision to the contrary, be applied by them for their maintenance or education, but it is impossible to say that a marriage settlement as such is a provision for maintenance or education.

It was further argued that the Commissioner was wrong in treating the marriage settlement as a single gift, and that, in determining whether he was satisfied that the conditions of s. 14 (i) (ii) were fulfilled, he should have treated the settlement as containing at least two gifts—one to the intended wife and the other to the adopted daughter, who were the persons in whose favour the settlement immediately operated upon its execution. It was argued that where there were several donees under a settlement there must of necessity be several gifts. This contention, however, is not supported by the terms of the Act. It is sufficient to refer to s. 25 (4), which provides as follows:—"Where there is more than one donee under the same gift, each of them shall be liable only for the same proportion of the gift duty as the value of his interest bears to the total value of the gift." This provision shows that there may be several donees under the same gift. In the present case over 20,000 shares in a number of companies were settled. It would be unreal to regard the transaction as consisting of separate gifts of the shares in each company, or as consisting of separate gifts of each share. It is a single gift of the property which, by the settlement, is vested in the trustees. Similarly, although the beneficiaries under the settlement include several persons, namely the wife, her adopted daughter, and possibly the children of the marriage, or other persons who might become entitled under the general power of appointment contained in the settlement, it would be equally unreal to hold that there are separate gifts to each of those persons. But though it would, in my opinion, be wrong to treat the settlement as containing as many gifts as there are (or may be) donees, the settlement does deal quite separately with two-thirds of the fund and the other one-third of the fund. The provisions relating to the parts into which the fund is divided are quite separate and they operate quite independently. In this case, therefore, I think that the settlement should be regarded as making two gifts, in respect of which the provision for exemption should be separately considered.

The exemption of a gift under the relevant provision depends upon whether it is a gift "made for or towards the maintenance, education or apprenticeship" of certain persons. In the present case the gift is made by a written instrument which defines the terms of the gift, and in such a case the character of the gift must be determined by reference to those terms. The gift is not limited to the provision of maintenance, education or apprenticeship. The trustees may apply income for the maintenance of the adopted child, but both income and capital which may reach the hands of the beneficiaries under the settlement may be spent in such manner as the beneficiaries think proper. It is clear that the wife may spend either capital or income received under the settlement as she thinks proper. The trust in favour of the adopted daughter during her infancy entitles the trustees to pay or apply the income for her "maintenance, support and personal benefit." "Benefit" is a very wide term—wider than "education" or "maintenance": See In re Kershaw's Trusts[1]; Lowther v. Bentinck[2]; In re Peel; Tattersall v. Peel[3]. If capital is paid to the adopted daughter, she may expend it as she thinks proper. It cannot be said that the Commissioner was bound by reason of the terms of the settlement to be satisfied that the gift was a gift for or towards the maintenance, education or apprenticeship of the beneficiaries under the settlement.

There is no dispute that the answer to be given to question 1 in the case should be in the affirmative.

Question 2 asks whether, if certain evidence referred to in question 1 is admissible (and it is now agreed that it is admissible), the learned trial Judge is at liberty to hold on the facts stated in the case that the discretion or judgment claimed by the Commissioner under the words "is satisfied" in s. 14 (i) of the Act has not been exercised according to law. The facts stated show that the Deputy Commissioner who made the assessment applied a general, though not an absolute, rule that a gift of capital, as distinct from a gift of income, could not fall within the exemption. I agree with the argument for the appellant that such a rule cannot be justified. It is sufficient to refer to the word "apprenticeship" in s. 14 (i) (ii). A gift for or towards the apprenticeship of any person would generally be a gift of a capital sum. Accordingly, in my opinion, the Commissioner did not actually in the present case exercise the discretion or judgment given to him by this provision in accordance with law. The result is that in my opinion question No. 2 should be answered in the affirmative. This answer, however, does not mean that the assessment should be remitted to the Commissioner because the majority of the Court (my brothers Dixon, McTiernan and myself) are of opinion that the facts stated in the case show, for reasons which we have stated, that the Commissioner could not, upon a proper understanding of the Act, have been satisfied that the gift was (or the gifts were) made for or towards the maintenance, education or apprenticeship of any person.

This question should be answered by declaring that the Commissioner or Deputy Commissioner might lawfully fail to be satisfied of the matters mentioned and that he was not bound to allow the exemption.

This Court has, in a series of cases involving the interpretation of taxation statutes, held that certain matters are to be determined by the exercise of a discretion by the Commissioner of Taxation, or in accordance with an opinion formed by him, and that upon an appeal the Court cannot substitute the discretion or opinion of the Court for that of the Commissioner. But in those cases the Court has also held that, if it be shown that the discretion was exercised or the opinion formed upon a wrong construction of the relevant statute, or that the discretion exercised or the opinion formed was so irrational as to be not a discretion or an opinion of the character contemplated by the statute, an assessment should be set aside and remitted to the Commissioner for reconsideration in accordance with law: See Moreau v. Federal Commissioner of Taxation[4]; Australasian Scale Co. Ltd. v. Commissioner of Taxes (Q.)[5]; Commissioner of Taxes (Q.) v. Ford Motor Co. of Australia Pty. Ltd.[6]. It has uniformly been held that upon an appeal under Acts the provisions of which are indistinguishable in relevant particulars from the present Act it is not for the Court to substitute its opinion for that of the Commissioner. I am, therefore, of opinion that question 4 should be answered in the negative.

The contention to which question 5 relates has been withdrawn by the appellant and it is unnecessary to answer that question.

Section 14 of the Gift Duty Assessment Act 1941-1942 provides that, notwithstanding anything contained in the Act, gift duty shall not be payable in respect of "(i) any gift concerning which the Commissioner is satisfied— ... (ii) that the gift is made for or towards the maintenance, education or apprenticeship of any person, and is not excessive in amount, having regard to the legal and moral obligations of the donor to afford the maintenance, education or apprenticeship." The criterion of exemption from duty is the satisfaction of the Commissioner (or other authorized officer) of the matters specified. It is for the officer to decide whether he is satisfied that the purpose of the gift is maintenance, education or apprenticeship, and that the gift is not excessive in amount for the purpose; and in so deciding he must have regard to the legal and moral obligations of the donor to afford the maintenance, education or apprenticeship. When a question is raised as to whether a particular gift is the subject of exemption under the sub-clause, it is the legal duty of the Commissioner or other officer to address his mind to the question and come to a decision whether or not he is satisfied of the relevant matters. If he takes irrelevant considerations into account in arriving at a purported decision, this is tantamount to having failed to give a decision at all. The fact that this has occurred may appear from direct evidence on the point, or may be inferred from the circumstances. Thus, a purported decision under this sub-clause allowing exemption of a gift of, say, a million pounds alleged to be made for the education of an individual would, at any rate in the absence of evidence of very extraordinary circumstances, justify the inference that irrelevant matters had been taken into consideration. So would a refusal to grant exemption to a gift of, say, a hundred pounds by a father to a son to apprentice him to a trade, if there were unquestioned evidence that this was the usual premium, and nothing to suggest that the gift was not in fact made for the purpose stated. But an express or constructive failure of the officer to give a decision would not justify a court in assuming to take the matter out of his hands and make the decision for him. The differences in language between the provisions of pars. (f) (ii) and (iii) and (i) and the rest of the section sufficiently indicate that the fact of the Commissioner's satisfaction is intended to be an essential ingredient in the existence of a legal right to exemption. Hence, the most that a court could do would be to treat the matter as still undecided, and require him to proceed to decide it according to law.

I see no reason for supposing that, in order that a gift may be susceptible of exemption under the sub-paragraph now in question, it is necessary that it should be expressed to be made for maintenance, education or apprenticeship: it is sufficient if one of these purposes can be inferred from the circumstances. Also, if separate gifts are made to several persons by a single document, I see no reason for doubting that some may be entitled to exemption whilst others may not, or for thinking that, for this purpose, the line of separation may not be horizontal as well as perpendicular. In gifts of lump sums to A, B and C, the gift to A may be exempt, and those to B and C may not. In a gift to X for life with remainder to Y, X's life interest may go free whilst Y's remainder is dutiable.

Applying these considerations to the facts before the Court, I have arrived at the following conclusions. Having regard to the fact that the amount settled, though considerable, is not enormous in relation to the donor's wealth and social position, that his obligation as husband and head of the family is to support and maintain his wife and family, in which latter term is included the child of his wife by a former marriage (Hill v. Hill[7]; Eversley on Domestic Relations, 3rd ed. (1906), pp. 260, 261), and that on the evidence led in the appeal before me I found that in making the assessment and disallowing the objection the Deputy Commissioner of Taxation acted upon the rule or instruction of the Commissioner which he interpreted as binding him to refuse an exemption to gifts, and particularly settlements by way of gift where the subject of the gift was a substantial amount of capital unless special reasons appeared from the nature or circumstances of the gift why the allowance should be specially considered by the Commissioner, when he would refer the matter to him, a course in the circumstances of the present case he saw no reason for adopting, I am of opinion that the officer has taken irrelevant considerations into account in arriving at his decision, and that the duty cast upon him by the sub-clause has not been performed according to law. The second question should therefore be answered in the affirmative. I am of opinion, however, that no gift here in question constitutes one of those extreme cases in which a court could be justified in holding that, on the material before the officer and his stated or possible conclusions as to its authenticity, only one decision is open to him. In the present case, the whole matter lies in a field which is his and his alone. It follows that, upon the facts of the case, the first arm of question 3 should be answered in the affirmative and the second in the negative, and question 4 should be answered in the negative.

The objection to the admissibility of evidence having been withdrawn, question 1, should be answered—Yes. Question 5 was withdrawn. The remaining questions should be answered as follows:—

Case stated pursuant to the Gift Duty Assessment Act 1941-1942 and the Judiciary Act 1903-1940.

The taxpayer executed a marriage settlement and certain instruments of transfer whereby he transferred into the names of trustees certain shares, investments and securities of considerable value upon trust for himself until solemnization of his intended marriage and thereafter upon trust: (a) As to two-thirds of the fund that the trustees should pay the net income derived therefrom to his intended wife during her life for her separate use and without power of anticipation and after her death hold the capital and income of the said two-thirds in trust for children of the marriage with gifts over in certain events. The trustees were authorized in their absolute discretion to transfer to or vest in the wife the whole or any proportion of the two-thirds fund. (b) As to the remaining one-third of the fund upon trust for an adopted daughter of his intended wife so that the same should not vest in the daughter until she attained the age of thirty-five years. And during the infancy of the daughter upon trust that the income arising from the said one-third of the fund or so much thereof as the trustees should in their absolute discretion think fit be paid or applied for the maintenance support and personal benefit of the daughter and that any portion thereof not so applied should be accumulated and invested and upon the daughter attaining the age of twenty-one years upon trust to pay to her for her absolute use and benefit the income of the said one-third fund until she should acquire a vested interest in the capital. The trustees were authorized in their absolute discretion after the daughter had attained twenty-one years or married to pay or vest in the daughter or apply for her advancement or benefit the whole or any portion of the one-third trust fund.

The Commissioner assessed the full value of the property comprised in the settlement to gift duty as at the time of the making of the settlement.

The taxpayer claims that gift duty is not payable by reason of the provisions of s. 14 (i) (ii) of the Gift Duty Assessment Act 1941-1942, which enacts that gift duty shall not be payable in respect of any gift concerning which the Commissioner is satisfied that the gift is made for or towards the maintenance, education or apprenticeship of any person, and is not excessive in amount, having regard to the legal and moral obligations of the donor to afford the maintenance, education or apprenticeship. The case states that the Commissioner or his officers refuses exemption under this sub-paragraph in respect of gifts and particularly settlements by way of gift where the subject of the gift is a substantial amount of capital unless special reasons appeared from the nature or circumstances of the gift, which did not exist in the present case. Objection was taken to the admissibility of evidence upon which this finding is based but it was, rightly I think, abandoned on the argument before this Court.

The Act lends no support to the Commissioner's principle of assessment. It refers to any gift made for or towards maintenance, education or apprenticeship and does not exclude gifts of capital for that purpose. And it is now, I think, settled, in this Court, that the Commissioner cannot base his dissatisfaction upon a mistaken construction of the section or upon grounds that have no relevance to the matter he has to consider. In short he must act according to reason and justice and not arbitrarily or capriciously: See Stenhouse v. Coleman[8]. Prima facie, therefore, the assessment is bad and in the ordinary course would, I presume, be remitted to the Commissioner for further consideration. But the Commissioner before this Court took wider ground and contended that none of the provisions or dispositions of the marriage settlement exempt the property described therein or any part of it from gift duty. As I understood the argument the gift exempted by s. 14 (i) (ii) is the whole property comprised in the marriage settlement or at least the two-thirds of the fund settled in favour of the wife and the one-third of the fund settled in favour of the daughter. But I am unable to agree with this contention. The Act itself contemplates gifts of any interest in real or personal property whether at law or in equity, the creation of trusts and the liability of donors, donees and trustees to the extent mentioned in s. 25 (7) to gift duty. It also provides for the distribution proportionally of gift duty if there be more than one donee under the same gift. And if the interest of a donee is a future interest then that he should not be personally liable until it becomes an interest in possession: See Act s. 4 (definition) and s. 25 (5). Disposition of property by way of gift may therefore be created by trusts giving rise, as in this case, to various beneficial interests. And I see no reason why those various interests may not in themselves, be gifts within the meaning of the Act and within the scope of s. 14 (i) (ii).

Turning now to the marriage settlement in this case I agree that the gift of the two-thirds share to the wife is not a gift for or towards the maintenance, education or apprenticeship of the wife or any other person. It is no doubt a provision for the wife, but not necessarily by way of maintenance. The gift of the income of one-third of the trust fund to the adopted daughter is expressed to be for her maintenance, support and personal benefit and even though the trustees have full authority to pay or vest in the daughter or apply for her advancement or benefit the whole or any portion of the capital one-third fund of the trust fund, that does not alter the purpose or the character of the gift. But it is still open to the Commissioner to consider whether the gift is not excessive in amount having regard to the legal and moral obligations of the donor to afford the adopted daughter maintenance, education or apprenticeship. And it will also be for the Commissioner to assess the value of that gift and the duty payable in respect thereof. That is a matter upon which he, and not the court, must be satisfied. The gift of the one-third of the trust fund to the adopted daughter vesting absolutely when she attains thirty-five years is not, I think, a gift for or towards her maintenance, education or apprenticeship nor is the gift of the income of the one-third fund to the adopted daughter upon her attaining the age of twenty-one years for her absolute use and benefit. Those gifts are no doubt provisions for her benefit, but they are not expressed to be nor are they necessarily for her maintenance, education or apprenticeship. And none of the other dispositions in the marriage settlement fall within the provisions of s. 14 (i) (ii).

Categorical answers should not, I think, be given to the questions stated. Questions 1, 2 and 5 were not argued and disappeared from the controversy between the parties. I would answer the questions generally in this way: That the gift of the income to the adopted daughter during infancy is a gift for her maintenance, education or apprenticeship within the meaning of s. 14 (i) (ii) of the Gift Duty Assessment Act 1941-1942 if the Commissioner is satisfied that the gift is not excessive in amount having regard to the legal and moral obligations of the donor to afford the maintenance, education or apprenticeship.

In my opinion the gift upon which duty has been assessed cannot be brought within the exemption made by s. 14 (i) (ii) of the Gift Duty Assessment Act 1941-1942.

Having regard to the nature of the settlement and to the limitations it contains, I think that the settlement amounts to one gift within the meaning of the definition of in s. 4. That definition depends upon the words "disposition of property", which are also defined in the same section. In this case the settlement is the disposition of property under the definition of those words. The Act contemplates that under one gift interests may be taken by more than one donee: See s. 18 (1) (a), s. 25 (4) and (5) and the definition of in s. 4. The reference to future interests in s. 25 (5) indicates that where different donees take in succession there is not necessarily more than one gift.

The shares constituting the trust "fund" form the subject of the gift. Even if the limitations affecting the income and capital of two-thirds of the fund were considered one gift and those affecting the remaining one-third were considered another gift, it would, I think, make no difference in the result. For whether the settlement constitutes one gift, or comprises two gifts, in the case of both parts of the fund, it goes far beyond the purposes of maintenance, education or apprenticeship for which alone the exemption provides. Indeed, in the limitations in favour of the appellant's wife there is no reference to any such purpose even in respect of income. In her case the corpus is limited to such of the children of the marriage as survive her and attain full age and, if none such, to such persons as she may appoint under a general power and in default of appointment to her statutory next-of kin, on the assumption of her not having married the appellant. But, notwithstanding these limitations, the trustees are given an absolute discretion to transfer to her the whole or any part of the two-thirds share of the corpus.

In the case of her adopted child, there is a discretionary trust to apply the income of the one-third share during infancy for the child's maintenance, support and personal benefit and otherwise to accumulate. After attaining twenty-one she is to receive the income, without any restriction as to the purpose of its application, until she attains thirty-five, when the corpus is to vest in her in possession. In the meantime, however, the trustees are to have an absolute discretion to apply the whole or any portion of the capital of the one-third share for her advancement or benefit or to vest it in her.

These provisions appear to me necessarily to take the settlement altogether outside the scope of the exemption. I do not think that it is possible to treat the exemption as covering a marriage settlement, containing such limitations, simply because the main purpose of making a settlement upon an intended wife is to insure that her maintenance is always provided for. It may be conceded that the words "for or towards" in s. 14 (i) (ii) involve purpose and that the purpose of a gift may appear independently of any written instrument. But it is another thing to treat a general actuating motive as enough to fulfil the conditions stated in the provision when the gift itself is not definitely connected with the achievement of any of the purposes of the exemption and contains limitations completely outside them.

I do not think that it is possible to regard the life interest limited to the wife as a separate gift to her, nor the discretionary trust for the maintenance, support and personal benefit of her adopted daughter as a separate gift to the latter. There is nothing in this view inconsistent with the application given in Commissioner of Stamp Duties (N.S.W.) v. Perpetual Trustee Co. Ltd.[9] to legislation containing some not very dissimilar provisions. There was but one donee in that case, unless the trustees were included in the category, and the settlement marked out the gift to him, a gift falling short of complete legal or equitable ownership. The gift was constituted by the settlement. It was decided that neither the possibility of an interest resulting to the settlor nor his position as one of the trustees of the settlement were matters inconsistent with the donee's assuming and retaining possession and enjoyment of the gift to the entire exclusion of the donor or of any benefit to him. Neither the decision itself nor the approval of In re Cochrane[10] means that the limitations to every donee must be regarded as a distinct and independent gift. As Lord Russell said in summarizing the reasoning in the latter case of Palles C.B., "gift in the context meant beneficial gift. A person who declares trusts of property only gives the beneficial interests covered by the trusts. Everything else he retains and does not give" (Commissioner of Stamp Duties (N.S.W.) v. Perpetual Trustee Co.[11]). Briefly as this expresses the matter, implicit in it is the reasoning upon which their Lordships negatived both points. It does not touch the question whether such a settlement as that now under consideration is the gift and, though creating interests in a plurality of donees or possible donees, does not amount to more than one gift.

For the foregoing reasons I am of opinion that, in point of law, the settlement cannot fulfil the conditions of which the Commissioner must be satisfied before he can give the appellant the benefit of the exemption. I think that it follows that the Commissioner could not lawfully be satisfied under s. 14 (i) (ii) that the gift was "made for or towards the maintenance, education or apprenticeship of any person."

The Commissioner was not in fact so satisfied. But the difficulty is that the Deputy Commissioner, who in this matter appears to have discharged the functions of the Commissioner acting under a delegation, assigned a reason for denying the claim to exemption which, it is said, cannot be supported. If I had been of opinion that the case was one in which it was open to the Deputy Commissioner to find that the conditions of exemption were fulfilled, I do not think that I would have been prepared to allow the decision refusing the exemption to stand, resting, as the case stated shows it to have done, on the application of a general rule against allowing an exemption in any case in which the gift covered capital as well as income. It may be that the Deputy Commissioner has expressed the departmental rule badly or incompletely. But as it has been formulated the rule appears to involve an inadmissible addition to the conditions prescribed by the exemption, an addition which in some states of fact may operate to exclude cases to which the exemption is applicable. This has not, however, been its effect in the present case. For in the settlement before us the limitations of capital are not themselves within the purposes of the exemption and are not incidental to any limitations that fall within those purposes.

In these circumstances, I think that the second and third questions in the case stated should be answered against the taxpayer. I would, however, frame the answer to the second question specially and say that the Commissioner ought not in point of law to have exercised the judgment claimed under the words "is satisfied" in s. 14 (i) otherwise than by refusing the exemption.

The fourth question asks—Is the question whether the conditions stated in s. 14 (i) (ii) exist or are fulfilled a matter the Court may decide? This Court has, I think, adopted the general view, in dealing with Federal legislation in pari materia, that references to the opinion, judgment, discretion and satisfaction of the Commissioner are intended to make his decision the criterion of the specific matter indicated, subject usually to reconsideration by a Board of Review. The result is that in such cases the Court on appeal does not substitute its decision for that of the Commissioner, but considers only whether he has proceeded according to law and has exercised his judgment or discretion unaffected by extraneous or irrelevant considerations or any misconception or misapplication of the law.

I think that we should interpret s. 14 (i) consistently with this view. I would, therefore, answer the fourth question—No. At the same time I think that a consideration of the reasons briefly given in Commissioner of Stamp Duties (Q.) v. Beak[12] for placing upon a reference to "discretion" in a provision dealing with valuation a somewhat different interpretation shows that we have pursued a course in reference to Federal legislation which derives more support from usage than from logic.

I agree with the answers which my brother Dixon has given to the questions and his Honour's reasons for those answers.

Questions answered as follows:—1. Yes; 2. Yes; 3. (a) Yes; 3. (b) No; 4. No; 5. Not answered. Case remitted to Rich J. Costs costs in the case.

Solicitor for the respondent, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

[1] (1868) L.R. 6 Eq. 322.

[2] (1874) L.R. 19 Eq. 166.

[3] (1936) Ch. 161.

[4] [1926] HCA 28; (1926) 39 C.L.R. 65.

[5] [1935] HCA 23; (1935) 53 C.L.R. 534.

[6] [1942] HCA 16; (1942) 66 C.L.R. 261.

[7] (1902) P. 140.

[8] [1944] HCA 36; (1944) 69 C.L.R. 457.

[9] [1941] HCA 15; (1941) 64 C.L.R. 492; (1943) A.C. 425; 67 C.L.R. 234.

[10] In re Finance Act 1894 and Cochrane (1905) 2 I.R. 626; (1906) 2 I.R. 200.

[11] (1943) A.C., at p. 441.

[12] [1931] HCA 46; (1931) 46 C.L.R. 585, at p. 597.

High Court of Australia

MacCormick v Federal Commissioner of Taxation [1945] HCA 10; (1945) 71 CLR 283 (27 June 1945)

HIGH COURT OF AUSTRALIA