Australian Machinery and Investment Co Ltd v Commissioner of Taxation

180 CLR 9

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Australian Machinery and Investment Co Ltd
v Deputy Commissioner of Taxation

Court:

Judges: Latham CJ
Starke J
Dixon J
McTiernan J
Williams J

Subject References:
Taxation and revenue
Exempt Income
Income sourced outside Australia
Appeal against assessment
Sale of shares in England
Appeal against assessment
Power to set aside

Legislative References:
Income Tax Assessment Act 1936 (Cth) - s 23(q); s 99

Hearing date: Sydney, 8 April 1946, 9 April 1946, 10 April 1946
Judgment date: 7 June 1946

Melbourne

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Order varied as follows:

1. By substituting by consent the following declaration for the first declaration:

"that the appellant company derived its profit from its business and operations partly from sources exclusively in Australia, partly from sources exclusively in the United Kingdom, and as to the remainder from a source partly in Australia and partly in the United Kingdom, and that for the purposes of s 23(q) of the Income Tax Assessment Act 1936 the profit of the company which was derived from sources out of Australia is exempt from tax in Australia if not exempt from tax in the United Kingdom."

2. By omitting in the second declaration the words from "That the operations" to the words "corresponding previous enactments" inclusive.

3. By inserting in the third declaration the words "in Australia" after the word "realization".

4. By adding the following declaration:

"7.(a) The income or gain alleged to have arisen from the exchange mentioned in par 26 of the admissions of fact (Ex. B), of 124,498 shares in Great Boulder Mining & Finance Ltd for the same number of shares in Commonwealth Mining & Finance Ltd

(b) the income or gain arising from the surplus produced by the sale mentioned in par 34(i) of the said admissions of fact of shares in Commonwealth Mining & Finance Ltd and Great Boulder Mining & Finance Ltd were derived by the appellant company from sources out of Australia within the meaning of s 23(q)."

5. By substituting for the order that the assessment be set aside and that the matter be remitted to the Commissioner an order that the decision of the Commissioner upon the objections be set aside and that the objections be remitted to the Commissioner for re-consideration and re-determination conformably with this order.

Subject to the foregoing variations, order appealed from confirmed and appeal and cross-appeal dismissed.