COMMISSIONER OF STAMP DUTIES

Press, Volume LXXVIII, Issue 23800, 20 November 1942, Page 4

COMMISSIONER OF STAMP DUTIES

CRITICISM BY MR JUSTICE BLAIR MINISTER REPLIES (P.A.) WELLINGTON, November 19. The following statement was issued by the Minister of Stamp Duties (the Hon. H. G. R. Mason) tonight:—“ The reference to the Stamp Duties Office in newspaper extracts from the recent judgment of Mr Justice Blair in the case of Messrs Williams and Gardiner against the Commissioner of Stamp Duties, and newspaper comment thereon demanding a Ministerial explanation have been so condemnatory that it is expedient to make some observations on the matter. "The judgment is based upon the finding (not explicit but to be inferred) of a trust communicated to and accepted by the trustees in the lifetime of the deceased. This trust did not in any way appear on the face of the documents the Commissioner had seen. The case stated was handed to the appellants on April 1. to file in Court, and it was only in May that the appellants’ solicitors intimated that they proposed to rely on a trust communicated and accepted orally. “In his judgment the Judge mentions as a matter of reproach that the case as stated by the Commissioner contains no reference to the question whether the trust was communicated. The answer is that the Commissioner could not have mentioned it because ho had never heard of it. It is true that the Commissioner had heard a suggestion of a (rust after proceedings in court had been initiated, but so far from being obliged to believe it, it was his duty to have it proved, in view of the circumstance that it was put forward at the eleventh hour. “The statement appears that ‘the effect of the attitude the Commissioner takes in this matter is that ho entirely disregards any moral or ethical considerations.’ This expression will be interpreted by all readers only in a severely condemnatory sense, and that is most unfair to the Commissioner, who has this in common with the Judge: he is bound by the law. He cannot in disregard of the law make decisions which he believes to accord with what would be right and fair if there were no legal difficulties in the way. Nor can a Judge. Mr Justice Edwards’s Comment “This fact is vividly brought out where Mr Justice Edwards, having to give a direction that would result in depriving a woman ol compensation due to her by every moral right, said: T deplore the absurdity. I protest against the injustice, but I have no alternative but to administer the law as I find it.’ “If testators or other parties enter into transactions or execute documents which require further documents to produce a result consonant with the dictates of morality and justice, and those further documents appear ]ip be liable to duty, then the Commissioner is not to be accused of making war on morality and justice because he demands that duty. Yet that is the basis of the accusations laid against the Commissioner. “It is a commonplace that the law as to stamp duties implies nothing of principle but is -entirely a question of what a statute says. As considerations of equity and morality will not avail to impose a lax upon a man who escapes by what may appear to be an irrational loophole or anomaly, so they will not serve to save him from an obligation if it is clearly imposed; and there is no power in the Commissioner to modify or rectify the law in the one case more than in the other. “Imputation Not Warranted’’ “There is no warrant for the imputation that the Commissioner does not appear to hold with sound and honest views. Is the Commissioner to asses? taxation at peril of this attack upon liis views of honesty in every case in which the transaction is one an honest man would feel bound to enter into? The Commissioner has no authority of any description to remit taxation for the purpose of encouraging honesty. Such a system would clearly be as impossible as one of discretionary power to impose taxation to discourage what in his opinion is dishonesty. “The judgment says that ‘the Commissioner is just seeking to take advantage of a technicality to get more tax than Miss Keith would have been called upon to pay had she given away the whole of her estate in her lifetime or given it away direct by her will to the person she wishes to benefit,’ That is unfairly expressed, for a technicality must not be disregarded by the Commissioner. If a person has the technical ingenuity to devise a way. of carrying out a transaction without incurring payment of the duty incurred by methods commonly used, then there is neither legal nor moral obliquity to be charged against him for so doing. “Equally, if a person chooses to employ methods which incur more duly than would be incurred by simpler methods commonly used, then there can be neither moral nor legal obliquity charged to the Commissioner for assessing that higher duty. “I notice a reference to the law courts and Stale departments being alike in that each must be fair, just, impartial, and fearless. The Commissioner complied with this standard when he was fearless in that he did not give instructions that the case be dropped when a message was sent that condemnatory remarks on his conduct would be made.”