CO885-(15-16) — Page 416

PUBLIC RECORD

OFFICE

mmimmim T། ། ། །

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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the Court decided that the duty was payable: Attorney-General v. Glendinning, reported (it is believed only) in the Law Times Reports, Vol. 92, at page 87. Copies of the Information, Answer, and Judgment accompany.

It appeared during the argument that the parties did not seriously contest the Crown's claim, and that they desired to obtain a judicial decision upon which to ground an application to the New Zealand Government for the repayment of death duty which the Colony had required to be paid. The defendants alleged that they had been charged with, and had paid, duty claimed by the New Zealand Govern- ment in respect of the securities in question under the Deceased Persons' Estates Duties Acts (1881, 1885, and 1886) in force in the Colony on the death of the deceased. Prints of these statutes accompany. Section 8 of the first-named Act defines the property chargeable, and is as follows:-

For the purposes of this Act the property of a deceased person shall include all real and personal property situate in the Colony of New Zealand. including all debts, moneys, and choses-in-action receivable or recoverable in the said Colony, the property of such deceased, and which, on the death of such deceased person, shall become vested in the administrator as such, notwith- standing that such deceased person had at the time of his death a foreign domicile.

If the New Zealand Government was right in claiming the duty on the property, in question, it would appear that that class of property is liable to both duties, i.e., to the Estate Duty under the Finance Act, 1894, because the bonds were actually situate in this country at the time of the owner's death, and to the Colonial Death Duty because under the Colonial statute the moneys secured by the bonds, in the event of their becoming payable, were receivable or recoverable in the Colony.

It will be seen that the Order-in-Council ought never to have been applied to New Zealand. Neither of the alternative conditions of Section 20 (3) of the Finance Act, 1894, was satisfied, for duty is leviable in New Zealand in certain cases in respect of property situate in the United Kingdom, and the New Zealand law does not allow the amount of the English Estate Duty on property situate in the United Kingdom which is chargeable with New Zealand Death Duty, to be deducted from the latter duty.

The Commissioners of Inland Revenue suggested to the Colonial Office that the difficulty might be met by the New Zealand Government providing that the amount of Death Duty payable in the United Kingdom in respect of property situate there should be allowable against the Death Duty payable in the Colony in respect of such property. A copy of the correspondence which has passed on the subject accompanies.

It will be seen that the New Zealand Government decline to adopt the course suggested, and that the Colonial Office would accordingly be prepared to agree to the Order-in-Council in reference to New Zealand being revoked if there is power to do so. Having regard, however, to the 4th Subsection of Section 20 of the Finance Act, 1894, the Solicitor of Inland Revenue felt a doubt whether there is such power except in the case provided for by that subsection, viz., whether the law of the British possessions has been so altered that it would not authorise the making of an Order. In the present case there has been no alteration in the law of New Zealand since the Order was made.

At the desire of the Treasury this case is now submitted to the Law Officers for their opinion.

The Law Officers and Mr. F. Vaughan Hawkins are accordingly requested to advise the Commissioners of Inland Revenue whether there is power to revoke the Order-in-Council of the 2nd February, 1895, or whether they can suggest any method by which the difficulty can be met.

Papers sent herewith:-

Copy Order-in-Council of 2nd February, 1895.

Copies Information, Answer, and Judgment in Attorney-General r

Glendinning.

Prints Deceased Persons' Estates Duties Acts, 1881, 1885, and 1886 (New

Zealand),

Copy correspondence.

Opinion,

We are of opinion that the Order-in-Council applying Section 20 of the

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Finance Act, 1894, to New Zealand having been made under statutory authority cannot be revoked except in the case specified in Subsection (4) of the section. The difficulty can, as it appears to us, be met only by an amendment of the law of New Zealand or by an amendment of Section 20.

Royal Courts of Justice,

February 8, 1906.

JOHN L. WALTON.

W. S. ROBSON.

F. VAUGHAN HAWKINS.

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