APPEAL DISMISSED

Dominion, Volume 27, Issue 17, 14 October 1933, Page 7

APPEAL DISMISSED

Payment of Death Duties

London, October 12.

The Privy Council dismissed the New Zealand appeal, Gould versus the Commissioner of Stamp Duties.

This case engaged the attention of the Full Court in March, 1932, before the Chief Justice, Sir Michael Myers, Mr. Justice Herdman, Mr. Justice Adams, Mr. Justice MacGregor, and Mr. Justice Blair. The question before the court was whether two sums of £4450 and £2l,6<W respectively were to be excluded from the final balance of the testator s dutiable estate as assessed by the commissioner. The first-mentioned sum represented certain payments made by the testator within three years of his death to one of his sons, lan. The respondent claimed that both sums in question were gilts, and were as such properly in computing the final balance of the estate bv reason of certain provisions of the Death Duties Act. The appellants, however, claimed that the sum of £4450 was property held by deeeased in trust for the son lan. and similarly they contended that the sum of £-1,000 was also held by the deceased as trustee for some of his children. At the hearing, Mr. Gresson, tor tlie appellant, said the real question was whether a deed of settlement, duly executed by the settlor 14 years ago. upon which gift duty was paid, and under which the beneficiaries entered into enjoyment of the income and paid income tax upon it, could be treated as nugatory on behalf of the commissioner, because the settled fund still remained in the name of the settlor at his death—the securities representing the same never having been transferred. Mr. A. Fair. K.C.. for respondent, said that bona fide possession and enjoyment of the trust fund was not assumed by the trustees or the beneficiaries less than three years before the death of the settlor and thenceforth retained to the entire exclusion of the deceased or of any benefit to him by contract or otherwise. The children never had possession and enjoyment of either the capital or income of the trust fund. The court dismissed the appeal. It was held that the testator had made a valid declaration of trust in respect of sums of money equal in amount to those purported to be settled, but, as he bad retained a benefit in such moneys, such part thereof as was still in hand, or had not been paid to beneficiaries more than three years before his death, came within the provisions of the Death Duties Act