Barentz v Whiting
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE DIPLOCK |
| Judgment Date | 19 January 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0119-1 |
| Court | Court of Appeal |
| Date | 19 January 1965 |
[1965] EWCA Civ J0119-1
In The Supreme Court of Judicature
Court of Appeal
T.69.
(Revenue Paper)
Lord Justice Willmer
Lord Justice Harman
Lord Justice Diplock
SIR GEORGE HONEYMAN, Q. C. and MR. J. RAYMOND PHILLIPS (instructed by the Solicitor of Inland Revenue, Somerset House, Strand, London, W. C. 2.) appeared as Counsel on behalf of the Inspector of Taxes.
MR. DESMOND MILLER, Q. C. and MR. H.H. LOMAS (instructed by Mr. H.F. Langstaff, 3 A, Church Side, Macclesfield) appeared as counsel on behalf of Mrs. D. Whiting.
In this case Mrs. Whiting, who is a widow, seeks relief from income tax for the four years 1957 to 1961 in respect of a female person, a certain Mrs. Allen, who is said to have been employed by her for the purpose of having the charge and care of her two young daughters. The claim arises under Section 214 of the Income Tax Act, 1952, which I had better read straight away. Sub-section (1): "If the claimant proves that he is a widower and that for the year of assessment a person, being a female relative of his or of his deceased wife, is resident with him for the purpose of having the charge and care of any child of his or in the capacity of a housekeeper, or that he has no female relative of his own or of his deceased wife who is able and willing to take such charge or act in such capacity and that he has employed some other female person for the purpose, he shall, subject as here in after provided, be entitled to a deduction from the amount of income tax with which he is chargeable…". There are then certain promises which I do hot think are material to the consideration of the present case. By sub-section (2) it is provided that "child" means a child in respect of whom relief is allowed in this Act. Sub-section (3) says "This section shall apply to a claimant being a widow as it applies to a claimant being a widower, with the substitution of 'her deceased husband' for 'his deceased wife'".
Mrs. Whiting's husband in fact died on the 6th July, 1957. She has two daughters, an elder daughter, Heather, who was born in July, 1940, and a younger daughter, Rosemary, who was bon in March, 1953. Mrs. Allen was first employed by the Whiting family in 1953, shortly after the birth of Rosemary, and she was employed for the purpose of looking after the children. This was necessary because Mrs. Whiting herself had a job with a company which necessitated her being out every morning from Monday to Friday. Mrs. Allen, however, did not then reside, and indeed never has resided, with Mrs. Whiting. When Mrs. Whiting's husband died, Heather was already attending a day school, but Rosemary had not yet gone to school, and did not, in fact, go to school until the beginning of 1958. Mrs. Whiting proved that she had no relative of her own or of her deceased husband's who was able or willing to reside with her for the purpose of having the charge and care of the children; so what she did was to continue employing Mrs. Allen. Thanks to this, Mrs. Whiting was able not only to continue her employment with the company for which she had always worked during the mornings, but also to take over at least some degree of responsibility for what had been her husband's business of a retail shop. That involved spending the afternoons at the shop from Monday to Friday and, as I understand the findings of the Commissioners, it also involved her in spending as much time as she could at the shop on Saturdays. Mrs. Allen in fact works at Mrs. Whiting's house from nine until one on each day from Monday to Friday, but except in exceptional circumstances does not work on Saturdays or Sundays.
Up to the end of 1957 — that is to say, during the period before Rosemary went to school — Mrs. Allen did take charge of Rosemary during the: morning hours when she was at Mrs. Whiting's house, but since Rosemary has gone to school the position has been that during term time Mrs. Allen would never normally take charge of the children indeed it seems that on most days she probably would not even see them, but she has been available for the purpose of taking charge of the children, or either of them, if one of them were taken ill; and during holidays she would take charge of the children during the absence at work of Mrs. Whiting. In term time Mrs. Allen's work consisted of washing up, making the children's beds, preparing their meals, tidying their bedrooms and doing their washing and ironing. That, I think, fairly represents the picture described in the Commissioners' findings as contained in the Case.
On those facts two questions have arisen. First, is the relief from taxation prodded for by Section 214 of the Act applicable in thecase of a female person who is not a relative, but who is employed not in a resident capacity to have charge and care of children? Secondly, if it is, do the facts found by the Commissioners justify the conclusion that Mrs. Allen was employed for the purpose of having charge and care of the children?
The Commissioners answered the first question in the affirmative. As to the second question, they found in favour of Mrs. Whiting so far as concerned the first of the years in question, namely, the year 1957-58, but against her for the remaining three years.
The matter then came before Mr. Justice Ungoed-Thomas, who upheld the decision of the Commissioners so far as the first point was concerned, but varied their decision iii relation to the second point by holding that for each of the four years Mrs. Allen was employed for the purpose of having the charge and care of the children.
This appeal is now brought by the Crown against that decision. It will have been observed that Section 214, which I have read, applies both to persons (whether they are resident relatives or persons employed) having the charge and care of children, and also to persons acting as housekeepers. It has been conceded on behalf of Mrs. Whiting that a person acting as a housekeeper, whether she is a relative or whether she is a person merely employed as a housekeeper, must be resident. That concession, as I understand it, has been made having regard to the authority of Brown v. Adams on, reported in 41 Tax Cases, page 186. But it is argued that in the case of a person having the charge and care of children, although such a person if a relative must be resident, if she is not a relative but an employee residence is not required. It may be said with regard to that argument that it is difficult to justify drawing any distinction in this respect between a person employed as a housekeeper, as to whom it is conceded that she must be resident, and a person employed to have the charge and care of children) as to whom it is said that such a person need not be resident.
But it is argued that the words "for the purpose" in the phrase "employed some other female person for the purpose…" must refer back to the purpose stated at the beginning of sub-section (l), namely, the purpose of having the charge and care of any child of his. I do not think, however, that that will do, because if that were so it would mean that no provision at all was made by the section for the case of the housekeeper who is not a relative but who is employed. It seems to me that the word "purpose" in that later phrase must have a somewhat wider connotation, and must refer to the whole of the purpose stated at the beginning of sub-section (l) so as to include both the charge and care of the children and the work of a housekeeper. In other words, those initial words should be read as meaning "the purpose of having the charge and care of any child of his, or of acting in the capacity of a housekeeper." If so, and if a housekeeper, though not a relative, must be resident it would seem strange if the same did not apply to a person employed to have the charge and care of children.
But it may be that Section 214. standing by itself, could well be regarded as ambiguous in relation to the question...
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