An Application by Aubrey Charles Rogers for an Order of Certiorari. and/or an Order of Prohibition and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE PHILLIMORE |
| Judgment Date | 01 June 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0601-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 June 1972 |
[1972] EWCA Civ J0601-1
In The Supreme Court of Judicature
The Court of Appeal
Civil Division
(From: The Divisional Court Queen's Bench Division)
Lord Justice Davtes
Lord Justice Phillimore and
Lord Justice Orr
Mr. MARCUS JONES (instructed by Messrs. Swepstone Walsh & Son, Agents for Messrs. George Lister & Clarke, Gloucester) appeared on behalf of the Appellant (Applicant).
Mr. PATRICK MEDD (instructed by Solicitor of Inland Revenue) ppeared on behalf of the Respondent (H.M. Inspector of Taxes).
(without calling upon Counsel for the Respondent)
LORD JUSTICE DAVISS: Lord Justice Orr will deliver the first judgment.
In this case the Additional Commissioners of Income Tax for the Division of Bisley signed in early 1965 for each of the fiscal years 1954/5 to 196½ additional first assessments on the appellant, Mr. Rogers, for income tax alleged to be due from him under Schedule in respect of profits derived from a trade of property dealing. The appellant appealed against these assessments to the Special Commissioners, who heard the appeal on the 13th and 14th May, 1970, and to whom the Inspector of Taxes made application during that hearing for certificates that the tax covered by the assessments under appeal carried interest pursuant to section 88 of the Taxes Management Act, 1970. On the 29th July, 1970, the Special Commissioners gave a decision by which they dismissed the appellant's appeal, confirmed the assessments in principle, and adjourned the hearing (both of the appeal and of the application for interest certificates) for figures of the assessments to be agreed between the parties. What would have followed in the ordinary course of events was that the figures of tax would either have been agreed or determined in default of agreement and thereafter the appellant would have had a right of appeal by way of Case Stated against the assessments in question. The appellant, however, on the 29th September, 1970, made application to the Divisional Court of the Queen's Bench Division for leave to apply first for an order of prohibition or certiorari quashing the assessments signed by the Additional Commissioners and secondly for an order of prohibition prohibiting the Special Commissioners from determining the figures of the assessments and also from proceeding to hear the application for interest certificates. Leave to make these applications having 1 een granted, they came before the Divisional Court on the 5th October of last year and were dismissed; and it is against that dismissal that the appellant now appeals to this Court.
The facts of the case can be summarised as follows. The appellant is and was at all material times the largest but not a majority shareholder in a company named Yfheatley, Rogers & Smith, Ltd., Builders (which I will call "the company"), which had been formerly a partnership under the same name. On the 23rd Lfarch, 1954, he and his wife bought at an auction for £3,500 a property known as Stonehouse Vicarage in Stroud, Gloucestershire. That property was within the Income Tax Division of Whitstone. It comprised some 4½ acres; and there was no subsisting planning permission in regard to it. The price of £3,500 was satisfied in part by a sum of £1,500 provided by the appellant and his wife out of their joint resources and as to the balance by way of a loan of £2,000 obtained on mortgage from a Benefit Society. That loan was paid off at the end of November, 1954, by means of an overdraft which the appellant and his wife obtained from the Midland Bank. By the conveyance the property was vested in the appellant and his wife jointly on trust for sale and to hold the proceeds of sale and the rents and profits until sale on trust for themselves beneficially.
The subsequent history of the property, which at the time of the purchase comprised, in addition to the land, Stonehouse Vicarage and also a barn, was as follows. In June, 1954, the appellantobtained planning permission to divide the house into four flats, and that work was completed by the end of that year, since when the flats have been let to tenants. On the 24th July, 1954, the appellant first made enquiry as to the possibility of obtaining planning permission to develop the rest of the site. On the 6th August, 1954, he formally applied for planning permission, and obtained in October outline permission for estate roads and services in connection with the erection of dwellings, and subsequent planning permission for the erection of houses, shops and garages, and also for the conversion of the barn into four fiats. As to the houses, planning permission granted in October, 1954, covered the erection of 20; and between February, 1955, and January, 1961, 18 plots were sold for this purpose under contracts in almost identical form, each sale being subject to a condition that the company should do the building work. A further plot with a house built on it by the company was sold to another director of the company at a price somewhat below its market value; and on the 20th plot the appellant built a house for himself, largely by his own work but using materials supplied by the company, and he lived in that house until September, 1960, when it was sold. Subsequently, in about 1961 he and his wife moved their home from the Whitstone Division to the Bisley Division.
Those being the basic facts of the case, the assessments in question were at the hearing before the Special Commissioners challenged on a number of grounds, to which it will be convenient to refer in the order in which they are dealt with in the judgment of the Divisional Court. It was contended first for the appellant that the activities in relation to the plots did not constitute a trade or an adventure in the nature of trade. As...
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