Aspin v Estill

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date09 November 1987
Date09 November 1987

Court of Appeal.

Aspin
and
Estill (H.M. Inspector of Taxes)

Mr. Rex Tedd (instructed by Messrs. William Khan & Co., Birmingham) for the taxpayer.

Mr. Launcelot Henderson (instructed by the Solicitor of Inland Revenue) for the Crown.

Before: Sir John Donaldson M.R., Mustill and Nicholls L.JJ.

The following cases were referred to in the judgment of Sir John Donaldson M.R.:

Colquhoun v. Brooks [1889] 14 A.C. 493

Oppenheimer v. Cattermole (H.M.I.T.) ELR[1976] A.C. 249

R. v. I.R. Commrs., ex parte Preston ELRTAX[1985] A.C. 835; [1985] BTC 208

This was the taxpayer's appeal against a decision of Mervyn Davies J. ([1986] BTC 279) dismissing an appeal from the determination of General Commissioners, who declined to make any findings of fact in relation to an allegation of abuse of power by the Revenue in making an assessment.

The taxpayer, a British subject, who had worked in the US for 20 years, wished to retire and live in the UK. He decided that he could not afford to do that if his US Social Security pension was taxable in the UK. He therefore inquired of the Revenue what his tax position was. He was told on the telephone by a Birmingham tax office that the US pension was not taxable in the UK. Relying on what he had been told he settled in the UK and was assessed to income tax under Sch. D, Case V in respect of the pension.

The taxpayer appealed to the General Commissioners who upheld the assessment having declined to make any finding of fact about the incorrect information given to the taxpayer. An appeal to the High Court was dismissed by Mervyn Davies J. The taxpayer appealed to the Court of Appeal contending that the matter should be remitted to the Commissioners to find the facts and to consider whether it was an abuse of power for an assessment to be raised against him at all.

Held, dismissing the taxpayer's appeal:

1. The Commissioners were right to determine that the US pension was taxable under Sch. D, Case V as income arising from possessions out of the UK, not being income consisting of emoluments of any office or employment.

2. The Commissioners had rightly confined themselves to the sole question of whether the pension was in principle taxable. They had no jurisdiction to consider whether there had been an abuse of power on the part of the Revenue which was a matter exclusively for the High Court on an application for judicial review. Thus, even if the Commissioners had found the facts alleged by the taxpayer, they could not have founded their decision on them. (Dicta of Lord Templeman and Lord Scarman in R. v. I.R. Commrs., ex parte Preston TAX[1985] BTC 208,at pp. 215-216 and pp. 223-224, followed.)

JUDGMENT

Sir John Donaldson M.R.: This is a taxpayer's appeal from a decision of Mervyn Davies J., who found in favour of the Revenue on a case stated by the South Birmingham General Commissioners.

Mr. Aspin is a British subject who worked in the USA for some 20 years, returning to the UK in January 1978. During his period of employment in the States he made contributions under the United States Federal Insurance Contribution Act. On reaching the qualifying age of 62, and ceasing to be employed, which occurred in September 1977, he became entitled as a result of those contributions to a retirement benefit of about US $300 per month, which increased to US $440 in 1980.

Mr. Aspin says that upon his return to England he had 12 months in which to decide whether to spend his retirement years here or to return to the US. The significance of the 12 months' period was, as he says, that if he did not return to the US within that period, his residence visa would lapse and he would not be able to renew...

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36 cases
  • Fayed v Commissioners of Inland Revenue
    • United Kingdom
    • Court of Session (Outer House)
    • 11 May 2004
    ...The following cases were referred to in the judgment: Al Fayed v Attorney General for ScotlandTAX [2002] BTC 428 Aspin v EstillTAXTAX [1987] BTC 553; 60 TC 549 Attorney-General for Hong Kong v Ng Yuen ShinELR [1982] 2 AC 629 Blair v Lochaber District Council 1995 SLT 407 Council for Civil S......
  • Reed Employment Plc v Revenue and Customs Comrs
    • United Kingdom
    • Upper Tribunal (Tax and Chancery Chamber)
    • 9 April 2014
    ...Act 1998. However as to the former we are, as Mr Glick accepted, bound by the decision of the Court of Appeal in Aspin v Estill (HMIT)TAX[1987] BTC 553 that the FTT does not have jurisdiction under that section. Reed therefore reserves the right to argue the matter at a higher level but con......
  • TC03780: Karen Rotberg
    • United Kingdom
    • First Tier Tribunal (Tax Chamber)
    • 7 July 2014
    ...in TMA 1970, Taxes Management Act 1970 section 50 subsec-or-para 6ss. 50(6)(a) and (c). The FTT found the case of Aspin v Estill (HMIT)TAX[1987] BTC 553 provides authority that the jurisdiction of the FTT in direct tax cases of this nature is limited to considering the application of the ta......
  • Bishop v HMRC
    • United Kingdom
    • First Tier Tribunal (Tax Chamber)
    • 30 September 2013
    ...have dealt with this type of issue include Hok, Nat West and Corbitt, and also the Court of Appeal decision in Aspin v Estill (HMIT)TAX[1987] BTC 553 which I have not previously mentioned. The House of Lords' binding decision in Corbitt is that this tribunal has no jurisdiction in such a ca......
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