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inland Revenue Commissioners Vs. Brown. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Reported in[1972]84ITR383(Cal)
Appellantinland Revenue Commissioners
RespondentBrown.
Cases ReferredRoyal Choral Society v. Inland Revenue Commissioners
Excerpt:
- .....briefly. in paragraph 8 it says :'the reasons for the sale of the shares in the five companies to general auto-work ltd. referred to in paragraph 7(xv) above were stated in evidence by the taxpayer to be as follows : that he and mrs. brown wished to buy some property for their intended retirement to jersey; that mrs. brown wished to obtain some security for their old age, and, unless this were obtained, was not prepared to continue to be permanently concerned in the business of the companies and the risks attendant thereon; that money would have to be raised and for this purpose mrs. brown was prepared to sell her shares in the five companies; that the taxpayer envisaged that, if money could be borrowed from the bank to enable the shares in the five companies to be bought by general.....
Judgment:
RUSSEL, L. J. - This is an appeal from the decision of Megarry J. which is reported in [1971] 1 W. L. R. 11; [1971] 82 I. T. R. 222, where the facts and the problems are set out and to which reference may be made.

I take the first question whether the sum of Pounds 10,000 received by the taxpayer was a consideration which either was or represented the value of, assets which were available for distribution by the company by way of dividend. This depends on the one question - whether 'available' means legally available in the point of company law, or whether it has some other or wider meaning of available in some commercial sense. I, for my part, do not think that I can improve upon the reasons of Megarry J. for holding that the former meaning is the correct one, and I am content to adopt it, and I, therefore, uphold his judgment on this point : see [1971] 1 W. L. R. 11, 25-26, 27.

I add that, though it was not apparently so contended below, it was suggested to us that the money borrowed from the bank was subject to a trust or condition to apply it only in purchases of the shares from the taxpayer, reference being made to Quistclose Investments Ltd. v. Rolls Razor Ltd. (In liquidation). I can only say that the facts in this case come nowhere near establishing such a situation.

Mr. Aaronson produced a point which was not ventilated below, to suggest that if the Crown was right on the meaning of 'available' it would leave no scope for the reference in section 28(2) (c) to the consideration being or representing the value of trading stock of the company, but Mr. Monroe gave an example which satisfies me that there might well be a case of consideration reflecting the increased value of retained trading stock though the accounts of the company would not reflect it or show any realised profit, and I think this possibility would be quite sufficient to justify a draftsman - determined so far as possible to leave no loophole - in introducing this reference to trading stock, while at the same time intending the meaning of 'available' which is the one that I favour.

I come next then to the finding by the Tribunal that the taxpayer did not succeed in showing that the transaction was carried out for bona fide commercial reasons, and on the view that I favour of the meaning of 'available', that finding as it stands is, of course, fatal to the taxpayers case.

It is not, I think, contended that on the case stated it appears on the face of it that this finding was erroneous. What is, I think, submitted is that the case stated should be remitted to the tribunal on the ground that it was inadequate in its exposition and finding of facts and evidence to enable the court to test the reliability or the validity of their finding. The suggestion is also made that the tribunal may have thought that the expertise of the taxpayer in the management of his various companies so as to reduce to a minimum the incidence of tax was not merely a factor for consideration in that connection but was conclusive.

Another suggestion was that the tribunal may have considered (a) that the taxpayer had failed to establish that it was not a main object of the transaction to enable tax advantages to be retained, and that therefore, (erroneously) (b) it could not have been a transaction carried out for bona fide commercial reasons.

Now taking that last point first, the tribunal in the case stated states no conclusion at all on the question of a main object. I see no ground at all for supposing that they came to a conclusion on that question adverse to the taxpayer, not least perhaps because Mr. Bates argued that such a conclusion would have been inconsistent with their conclusion on the meaning of 'available'. I would observe that a conclusion that the taxpayer failed to show bona fide commercial reasons made a decision by the tribunal as to a main object quite unnecessary. Accordingly, I see no reason to suppose that the tribunal reached its conclusion on the question of bona fide commercial reasons by that suggested erroneous path.

Now the case stated deals with this question of bona fide commercial reasons quite briefly. In paragraph 8 it says :

'The reasons for the sale of the shares in the five companies to General Auto-Work Ltd. referred to in paragraph 7(xv) above were stated in evidence by the taxpayer to be as follows : that he and Mrs. Brown wished to buy some property for their intended retirement to Jersey; that Mrs. Brown wished to obtain some security for their old age, and, unless this were obtained, was not prepared to continue to be permanently concerned in the business of the companies and the risks attendant thereon; that money would have to be raised and for this purpose Mrs. Brown was prepared to sell her shares in the five companies; that the taxpayer envisaged that, if money could be borrowed from the bank to enable the shares in the five companies to be bought by General Auto-Work Ltd., with the money received from such sales, together with other money provided by the taxpayer, property for their retirement could be bought in Jersey; that to enable this object to be attained, the taxpayer was prepared to guarantee the money borrowed from the bank by General Auto-Work Ltd. to buy the shares in the five companies; that after the shares were so purchased, a block of flats was bought in Jersey and is still retained.'

In paragraph 9 :

'Mr. Lawson, a principal advisory accountant to the Board of Inland Revenue, produced to us schedules of figures he had extracted from the books and accounts of all the companies hereinafter referred to. The figures were, as figures, accepted by the taxpayer as accurate. The schedules are annexed hereto as Exhibits N, O, P, Q, R, S and T. The schedules were submitted in support of the contention by the Crown that the sale of the shares in the five companies to General Auto-Work Ltd. was not carried out for bona fide commercial reasons......'

Then in paragraph 13 they state their decision :

'We, .... decided - (i) that on all the evidence, oral and written, the taxpayer had not shown to our satisfaction that the sale of the shares in the five companies to General Auto-Work Ltd. was carried out for bona fide commercial reasons, or in the ordinary course of managing investments....'

Now the method adopted in paragraph 8 of the case stated, of stating that certain evidence had been given without stating a conclusion as to whether that evidence was or was not accepted, is a method which was deprecated by Lord Greene M. R. in Royal Choral Society v. Inland Revenue Commissioners, and in this case it is perhaps the more unsatisfactory in that there was an attempt by the taxpayer to persuade the tribunal to amend the case stated by, in effect, treating what was set out in paragraph 8 as evidence which was accepted by the tribunal, and the tribunal apparently were not prepared to do this.

But the Crown is content, and I am prepared to assume, that the tribunal in fact accepted this evidence that was set out as being given in evidence in paragraph 8 in the stated case, and also that they had in mind a letter of May 7, 1959, written by Mr. Brown, the taxpayer, to the manager of Barclays Bank Ltd. at a time when the transaction which ultimately went through was first adumbrated. That letter said :

'Our associate company, General Auto-Work Ltd., is about to sign an agreement to purchase from Mr. and Mrs. J. D. Brown all the shares of the five companies with which it has been in partnership,' and then names the five companies. 'This purchase will bring about,' says the letter, 'a closer and more simplified control as Mr. and Mrs. Brown will then continue to hold the control of General Auto-Work Ltd. which will in turn control the other relevant interests.'

He then proposes the transaction that ultimately went through, which involved in fact, Mr. Brown and his wife, in order to persuade the bank to lend the total sum of Pounds 25,000 to General Auto-Work Ltd. keeping a current account with Barclays Bank Ltd., at one or other branch, a sum of not less than Pounds 25,000. The relevance of this letter consists, it was suggested in the passage referring to a closer and more simplified control. I observe of course, that the company, General Auto-Work Ltd., was owned and controlled by Mr. and Mrs. Brown, the taxpayer and his wife, and so were the other companies, so that the transfer of all the shares making them 100 per cent. subsidiaries of General Auto-Work Ltd. is a matter of machinery and may have resulted in some simplification, but only that.

Now I have read those passages and observed that it was not suggested that there were any other facts that the tribunal ought to have stated for the purpose of their decision.

Now what I have read in paragraph 8 is, of course, only part of the evidence. The schedules which are referred to in paragraph 9 demonstrate that over the years, in managing the affairs of these companies and in making changes in their relationships and activities, the taxpayer had systematically, by cessations and so forth -and ingeniously - taken every conceivable opportunity legitimately to minimise the incidence of tax. I said 'systematically', and I observe that evidence of system is regarded as important even in less innocent fields of activity. Further, I observe that most of the paragraph 8 evidence amounts really to no more than saying that the taxpayer and his wife wanted some money and entered into the transaction in order to get it. Now it seems to me that you do not show that a transaction of sale of securities for full consideration to a company already owned by yourself is a transaction entered into for bona fide commercial reasons, merely by saying that it is such a sale transaction and that you wanted the money.

I must say that, first, I see no reason to suppose that the tribunal considered that past tax awareness necessarily in any case leads to a conclusion adverse to a taxpayer on this point; secondly there seems to be no ground for remitting the case to the tribunal for further clarification or statement of facts; and thirdly, it is to my mind quite plain that there was evidence on which the tribunal could properly arrive at the conclusion on this point at which they did arrive. For those reasons, which I trust by their brevity still do adequate justice to the arguments which have been put forward, I would dismiss this appeal.

FENTON ATKINSON L. J. - I agree, and there is nothing that I can usefully add.

STAMP L. J. - I agree.

Appeal dismissed with costs.


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