Commissioners of Inland Revenue v Lysaght
| Jurisdiction | UK Non-devolved |
| Judge | Lord Warrington of Clyffe,Lord Atkinson,Lord Buckmaster,Viscount Sumner,The Lord Chancellor |
| Judgment Date | 09 March 1928 |
| Judgment citation (vLex) | [1928] UKHL J0309-1 |
| Date | 09 March 1928 |
| Court | House of Lords |
[1928] UKHL J0309-1
House of Lords
Lord Chancellor.
Viscount Sumner.
Lord Atkinson.
Lord Buckmaster.
Lord Warrington of Clyffe.
After hearing Counsel as well on Friday the 27th, as on Monday, the 30th, days of January last, upon the Petition and Appeal of the Commissioners of Inland Revenue, of Somerset House, Strand, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 11th of March 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Sydney Royse Lysaght, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 11th day of March 1927, complained of in the said Appeal, be, and the same is hereby, Reversed: and that the Judgment of the Honourable Mr. Justice Rowlatt, of the 17th day of November 1926, thereby set aside, be, and the same is hereby Restored: And it is further Ordered, That the Respondent do repay, or cause to be repaid to the said Appellants the costs of the hearing in the Court of Appeal paid to the Respondent by the Appellants under the said Order of the Court of Appeal; And it is further Ordered, That the costs of the Appellants in the Court of Appeal be taxed; And it is further Ordered (by consent), That the costs incurred by the parties respectively in respect of the said Appeal to this House be taxed and the amount thereof certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This case raises under different circumstances the same questions as those raised in Levene's Case just decided by your Lordships' House, viz., whether the Respondent (as he is in this case) was in either of the years of assessment viz., 1922-23 and 1923-24 resident and ordinarily resident in the United Kingdom.
The Respondent was entitled to certain securities of British possessions the interest on which was payable in the United Kingdom and to British War Loan stock issued with the condition mentioned in Section 46 of the Income Tax Act, 1918.
Having been assessed to income tax on both classes of security he appealed to the Special Commissioners, who decided that he was resident in the case of one class, and was ordinarily resident in the case of the other.
A case was thereupon stated by the Commissioners for the opinion of the High Court. The case was heard before Rowlatt J. who affirmed the decision of the Commissioners. The Respondent appealed to the Court of Appeal who by a majority (Lord Hanworth MR. and Sargant LJ., Lawrence L.T. dissenting) allowed the appeal and set aside the judgment of Rowlatt J. and the decision of the Commissioners, being of opinion that the Respondent was not at the material times either resident or ordinarily resident in the United Kingdom.
The argument of the Attorney-General in this House was rested exclusively on the contention that the questions to be determined are both questions of degree and therefore of fact and that there was on each question evidence on which the Commissioners might reasonably come to the conclusion at which they arrived, and consequently their decision was not subject to review.
I have reluctantly come to the conclusion that it is now settled by authority that, the question of residence or ordinary residence is one of degree, that there is no technical or special meaning attached to either expression for the purposes of the Income Tax Act, and accordingly a decision of the Commissioners on the question is a finding of fact and cannot be reviewed unless it is made out to be based on some error in law, including the absence of evidence on which such a decision could properly be founded.
In Bayard Brown v. Burt 5 Tax Cases 667 p. 670 Hamilton J. after mentioning the finding of the Commissioners that the Appellant was resident in the United Kingdom said:—
"That only raises a question of law, if it can be contended that it is impossible to draw that conclusion of fact as to residence in the United Kingdom from the facts set out in the Case."
This view was affirmed in the Court of Appeal.
The same view was expressed by Rowlatt J. in Pickles v. Foulsham 9 Tax Cases 261 at p. 275. The point was not raised in the Court of Appeal.
In Reid v. The Commissioners of Inland Revenue 10 Tax Cases 671 (a Scotch Case), the Lord President (Lord Clyde) at p. 678 said:—
"It is obvious that the more general and wider the scope of expressions used in a Statute, the more difficult it may become to convict those whose duty it is to interpret it, of an error or misdescription in applying it to a given state of facts. It may be possible in such cases to predicate of a particular state of facts that they lie outside the scope of the expressions used, although it may really be an impossible task to define that scope positively and with exact accuracy. The expression 'resident in the United Kingdom' and the qualification of that expression implied in the word 'ordinarily' so resident are just about as wide and general and difficult to define with positive precision as any that could have been used. The result is to make the question of law become (as it were) so attenuated and the field occupied by the questions of fact become so enlarged as to make it difficult to say that a decision arrived at by the Commissioners with respect to a particular state of facts held proved by them is wrong."
In the same case Lord Sands said:—
"When a Statute uses ordinary non-technical language in describing a person or thing in general or ambulatory terms, and it becomes merely a matter of impression or opinion whether, in relation to the special circumstances, a person or thing falls within the expression, the tendency of the law is to treat a finding upon the matter as a finding of fact."
He concurred in refusing to disturb the determination of the Commissioners though he was not sure that he would have been prepared to differ had they decided the other way.
See also the opinion of Lord Halsbury in Smith v. The Lion Brewery Company 1911 A.C. 150 p. 155 and that of Lord Buckmaster in Malcolm v. Lockhart 1919 A.C. 463 at p. 466 section f, and my own remarks in the Court of Appeal in Cooper v. Stubbs 1925 2 K B. 753 at p. 772.
In the present case after stating that certain facts set forth in detail were either admitted or proved the Commissioners; "held;" that the present Respondent was both ordinarily resident and resident in the United Kingdom for each of the two years in question.
The most material fact in the present case in favour of a finding contrary to that of the Commissioners was that the Respondent had a permanent family home in Southern Ireland. His visits to this country were for business purposes as Advisory Director of John Lysaght Ld. of which he had previously been Director and Managing Director; they were frequent and regular and the number of days spent in this country in the two years in question was 101 and 94 respectively.
I cannot say that there was no evidence on which the Commissioners could properly arrive at their conclusion though I am not sure I should have taken the same view.
I think the appeal ought to be allowed with costs here and below and the judgment of Rowlatt J. restored.
My Lords,
I am about to read the judgment of my noble and learned friend Lord Buckmaster, who is engaged elsewhere, and I concur in that judgment.
My Lords,
The real question that arises in this case is whether the finding of the Commissioners that the Respondent was resident and ordinarily resident in England is a finding of fact which cannot be disturbed, or whether it is open to examine the circumstances set out by the Commissioners for the purpose of seeing whether the conclusion they drew is one that this House will accept. The distinction between questions of fact and questions of law is difficult to define, but according to the Respondent whether a man is resident or ordinarily resident here must always be a question of law dependent upon the legal construction to be placed upon the provisions of an Act of Parliament. I find myself unable to accept this view. It may be true that the word "reside" or "residence" in other Acts may have special meanings, but in the Income Tax Acts it is, I think, used in its common sense and it is essentially a question of fact whether a man does or does not comply with its meaning.
It is, of course, true that if the circumstances found by the Commissioners in the special case are incapable of constituting residence their conclusion cannot be protected by saying that it is a conclusion of fact since there are no materials upon which that conclusion could depend. But if the incidents relating to visits in this country are of such a nature that they might constitute residence and their prolonged or repeated repetition would certainly produce that result then the matter must be a matter of degree, and the determination of whether or not the degree extends so far as to make a man resident or ordinarily resident here is for the Commissioners and it is not for the Courts to say...
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