Banin v Mackinlay
| Jurisdiction | England & Wales |
| Judgment Date | 13 December 1984 |
| Date | 13 December 1984 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal.
Mr. C.W. Koenigsberger (instructed by Messrs. Kean and Kean) for the taxpayer.
Mr. R. Carnwath (instructed by the Solicitor of Inland Revenue) for the Crown.
Before: Oliver, Purchas, L.JJ. and Neill J.
Income tax - Procedure - Hearing before Special Commissioners - Taxpayer not present - Documents described as "pleadings and affidavit" submitted - Whether Commissioners correct not to admit documents - Whether proper hearing took place - Taxes Management Act 1970 section 50Taxes Management Act 1970, sec. 50.
This was an appeal by the taxpayer against a decision of Harman J. (reported at [1984] BTC 100), upholding a decision of the Special Commissioners determining assessments to income tax on the taxpayer. The appeal was based upon the assertion that the Special Commissioners erred in law with regard to the procedure which they adopted at the hearing of the case.
The taxpayer was a manufacturing jeweller. For the years 1975-76 to 1981-82 the inspector raised estimated assessments on the taxpayer to income tax. In 1981 the inspector wrote to the taxpayer stating that the Revenue proposed to ask the Commissioners to determine the assessments. On the Friday prior to the hearing, the taxpayer's accountants delivered a bundle of documents, described as "Pleadings and Affidavit", to the office of the Commissioners. The accountants were informed that the Commissioners would not look at the bundle prior to the hearing, and were advised that the taxpayer should attend in person. The taxpayer failed to attend but a junior member of the accountant's staff did: not, however, to present a case, but merely to note the outcome. The Commissioners decided not to admit the taxpayer's bundle of documents as they felt that the accountants had been made fully aware of the case to be met, and that the taxpayer had been content to leave matters in their hands. The assessments were determined in accordance with the inspector's figures.
The issue for the Court of Appeal was whether the Commissioners' decision not to admit the taxpayer's documents was correct.
The taxpayer argued first that the Commissioners' refusal was contrary to natural justice, and secondly that it was contrary to an express statutory provision, namely the Taxes Management Act 1970,Taxes Management Act 1970 section 50 subsec-or-para (5)sec. 50(5), which provided that a barrister or solicitor appearing on behalf of the taxpayer was entitled to make written submissions. The taxpayer submitted that in the light of that subsection it would be illogical if he himself did not have a similar right. Finally the taxpayer contended that the Commissioners had a discretion to look at the documents and that their failure to do so was not a proper exercise of that discretion. In relation to that submission the taxpayer said that where a tribunal was presented with a document there existed a duty to read the whole of it in order to determine whether or not there was something admissible in it.
In reply to the last contention, the Crown argued that as the Commissioners were an investigatory body, it was important that the taxpayer should have been before them. It was also pointed out that no explanation was offered of the documents, or why the taxpayer could not attend; nor was there any application for an adjournment.
Held, dismissing the taxpayer's appeal:
1. The Commissioners were not bound to look at the documents. The bundle did not reveal its contents beyond saying that it was evidence. There existed no basic right in law to conduct a case in writing without attendance.
2. Taxes Management Act 1970 section 50 subsec-or-para (5)Subsection (5) of sec. 50 was not to be read in isolation, but in the context of the section as a whole. It was clear on such a reading that the privilege of pleading was confined to barristers and solicitors, and that accountants had no such right. This did not support the proposition that all litigants have a right to present their cases in writing.
3. The onus lay on the taxpayer to show that there had been some miscarriage of justice. The manner in which the matters at issue were handled was the choice of the taxpayer and his accountants, and it could not now be argued that the Commissioners were in error in the exercise of their discretion.
The taxpayer, Mayer Menahem Banin, appealed against a decision ofHarman J. upholding a determination of the Special Commissioners.
By Notice of Appeal dated 20 March 1984 the taxpayer appealed on the grounds that:
1. The judge was wrong in law in deciding that a litigant in person is not entitled to put forward arguments in writing.
2. The judge was wrong in law in deciding that the statutory provision contained in Taxes Management Act 1970 section 50 subsec-or-para (5)sec. 50(5) of the Taxes Management Act 1970 which permits any barrister or solicitor to plead before Appeal Commissioners, inter alia, in writing was a special privilege accorded only to the legal profession.
3. On the footing that the taxpayer was not entitled to argue his appeal in writing, the judge was wrong in law in deciding that the Special Commissioners had properly exercised their discretion not to admit the taxpayer's "Pleading and Affidavit" despite their failure to read it.
Oliver L.J. This is an appeal from a judgment of Harman J. delivered on 8 February of this year, dismissing the taxpayer's appeal from a determination of the Special Commissioners determining certain assessments which had been made upon the taxpayer, Mr. Banin.
As the learned judge observed, the appeal is a somewhat unusual one, because it is not an appeal which raises any point of law as regards the correctness, or otherwise, of the assessments which were determined by the Special Commissioners; it is based entirely upon the assertion that the Special Commissioners, in hearing the case, went wrong in law as a matter of procedure as regards the hearing, and that the error of law lies not so much in the result of the proceedings, as in the way in which the proceedings were conducted.
The appellant taxpayer, Mr. Banin, is, as I understand it, a manufacturing jeweller, and in respect of the years 1975-1976 to 1981-1982 inclusive, he appears to have preserved a degree of reticence with regard to his financial affairs which prompted the inspector of taxes concerned with his tax affairs to raise estimated assessments upon him for those years, both in respect of the business of manufacturing jeweller and in respect of certain properties - or the income from certain properties - of which apparently the appellant was possessed.
Certain accounts were submitted on behalf of the taxpayers, but the inspector had a number of queries, and the taxpayer was invited to attend, with his accountant, to clear those queries up, but it seems that he elected not to do...
To continue reading
Request your trial
-
Glaxo Group Ltd and Others v Commissioners of Inland Revenue
...in the judgment: Argosam Finance Co v Oxley (HMIT) ELR[1965] Ch 390 Balen v IR Commrs TAX(1978) 52 TC 406 Banin v Mackinlay (HMIT) TAXTAX(1984) 58 TC 398; [1985] BTC 18 Barraclough v Brown ELR[1897] AC 615 Beach v Willesden General Commrs TAX[1982] BTC 25 Beecham Group plc v IR Commrs TAX[1......
-
R v General Commissioners (Brentford Division)ex parte Chan and Others
...of Inland Revenue) for the Crown. Before: Taylor J. The following cases were referred to in the judgment: Banin v. McKinlay TAXUNK[1985] BTC 18, [1985] STC 144 Edwards v. Bairstow & Anor. ELR[1956] A.C. 14 Hawkins v. Fuller TAXTAX[1982] BTC 217, (1982) 56 T.C. 49 Kovak v. Morris TAXUNK[1985......