R v General Commissioners (Brentford Division)ex parte Chan and Others
| Jurisdiction | England & Wales |
| Judgment Date | 29 November 1985 |
| Date | 29 November 1985 |
| Court | Divisional Court |
Queen's Bench Division (Divisional Court).
Mr. Robin Mathew (instructed by Farrell Matthew & Wein) for the taxpayers.
Mr. Alan Moses (instructed by the Solicitor 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] BTC 129, [1985] STC 183
Ottley v. Morris TAX(1978) 52 T.C. 375
R. v. Chief Constable of Merseyside Police, ex parte Calveley & Ors., WLR[1985] 2 W.L.R. 144
R. v. Epping & Harlow General Commissioners, ex parte GoldstrawUNK[1983] 3 All E.R. 257
R. & D. McKerron Ltd. v. I.R. Commrs. TAX(1978) 53 T.C. 28
Rose v. Humbles TAX(1971) 48 T.C. 103
Waldron; In re WLR[1985] 3 W.L.R. 1090
R. v. I.R. Commrs., ex parte Preston TAXELR[1985] BTC 208, [1985] A.C. 835
Judicial review - Case Stated - Commissioners - Refusal of adjournment of hearing before Commissioners - Decision against taxpayers - Whether judicial review appropriate forum for appeal against refusal -Taxes Management Act 1970 section 56Taxes Management Act 1970, sec. 56.
This was an application for judicial review by Mr. Chan, Mr. Leung and Mr. Tang for an order that a decision of the General Commissioners of income tax for the Division of Brentford, dated 10 August 1983, be quashed.
The taxpayers, three Chinese restaurant proprietors, appealed against partnership tax assessments and assessments under Sch. E and the appeals were determined against them. The case involved back duty over a period of ten years. The taxpayers were advised by a chartered accountant, G, who dealt with the tax inspector on their behalf. Unsuccessful attempts had been made to achieve a settlement of the taxpayers' tax liability and in June 1983 the inspector decided to refer the issues to the General Commissioners. He wrote to the Clerk to the Commissioners on 13 June saying that the taxpayers had ceased to co-operate and 10 August was fixed as the date for the hearing before the Commissioners. The tax inspector was notified by letter dated 11 July. G was not consulted and did not receive notification of the date until 18 July. Meanwhile he had gone on holiday on 16 July and was not due back until 8 August. G's office tried to contact the inspector to seek an adjournment. However, since he was also on holiday until 8 August and no one else could deal with the matter, G sought an adjournment on 9 August which was refused and so he was forced to send a representative to the hearing. The Commissioners refused any adjournment, but allowed the representative five minutes to marshal his case. At the end of the hearing the Commissioners were asked to state a case under Taxes Management Act 1970 section 56sec. 56of the Taxes Management Act 1970. Further, on 10 November 1983 the taxpayers applied for and were granted leave to apply for judicial review.
The court was asked to decide whether it should entertain the application for judicial review having regard to the alternative remedy of appeal by way of Case Stated which was already in motion.
The taxpayers submitted that the refusal of the adjournment was unreasonable and a denial of natural justice. An appeal by way of Case Stated would not enable the case to be remitted to the General Commissioners, at any rate as freely as by judicial review. The Chancery Division of the High Court did not deal with procedural matter which were solely within the jurisdiction of the Queen's Bench Division. Where issues related to a substantive point of law or mixed issues of law and procedure, Case Stated was the appropriate remedy. However, where as in this case the issue was purely procedural, judicial review should be granted.
Held, dismissing the application:
1. The court ought only to grant judicial review in exceptional circumstances where there was an alternative remedy which had not been exhausted.
2. Taxes Management Act 1970 section 56Section 56of the Taxes Management Act 1970 gave the High Court the widest powers to deal with procedural irregularities such as a wrongful refusal of an adjournment and to remit the case for rehearing if it was just to do so.
3. There were no exceptional circumstances in the present case which justified the consideration of judicial review in preference to an appeal under Taxes Management Act 1970 section 56sec. 56 which was already underway. The matter of the taxpayers' liability to tax had to come before the Commissioners since the taxpayers' case was that it should be remitted to them for rehearing.
This was an application by the taxpayers for leave to apply for judicial review, under R.S.C. O.53, r.3, of a decision of the General Commissioners of Income Tax for the Division of Brentford, given on 10 August 1983. The applicants sought an order that the decision of the Commissioners be transmitted to the High Court and quashed and that the appeals of the applicants which were the subject of that decision be referred to a fresh panel of General Commissioners for retrial.
The application was made on the ground (1) that an application for an adjournment of the hearing before the General Commissioners was unreasonably refused; (2) that although some of the assessments under appeal at that hearing had been made on the basis of the alleged fraud, wilful default or neglect of the applicants, no submissions were made by the Inland Revenue relating to these allegations which were not considered either adequately or at all by those General Commissioners; (3) that the contentions of the Inland Revenue regarding alleged undisclosed income in the years of assessment under appeal were not adequately disclosed to the applicants or to their advisers prior to the hearing before those General Commissioners on 10 August 1983.
Taylor J.: This is application for judicial review by three restaurant proprietors, Mr. Chan, Mr. Leung and Mr. Tang. They seek an order that a decision of the General Commissioners of income tax for the division of Brentford, dated 10 August 1983, be quashed. The applicants had appealed against partnership tax assessments and tax assessments under Sch. E and their appeals were determined against them.
The case involved back duty over a period of some 10 years. The applicants had throughout consulted and been advised by a Mr. Gillott. He is a chartered accountant and is said to be a sole practitioner in the sense that he is the sole proprietor of his firm. However he has staff, including a Mr. Wright, also a chartered accountant. Unsuccessful attempts had been made to achieve settlement of the applicants' tax liability. In June 1983 the inspector decided to refer the issues to the General Commissioners for the Brentford division. He therefore wrote to their clerk on 13 June saying that the taxpayers and their agents has ceased to co-operate. I think it unfortunate and inappropriate that he should have written in those terms. However, the clerk fixed 10 August 1983 as the date for hearing after the inspector had indicated dates which would be inconvenient to him. The inspector was notified by letter dated 11 July of the date of hearing. Mr. Gillott's firm was not consulted and did not receive notification of the date until 18 July. Meanwhile Mr. Gillott had gone on holiday on 16 July and was not due back until 8 August, two days before the hearing.
He was notified whilst on holiday and dictated responses to some queries by the inspector as to what facts could...
To continue reading
Request your trial
- Director General of Inland Revenue v Siong Hoe Biscuit & Confectionary Factory Sdn Bhd
- Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan
- R v Commissioner for the Special Purposes of the Income Tax Acts, ex parte Napier
-
R v Commissioners of Inland Revenue, ex parte S G Warburg & Company Ltd
...of the Merseyside Police, ex parte Calveley & Ors ELR[1986] 1 QB 424 R v General Commrs (Brentford Division), ex parte Chan & OrsTAX[1986] BTC 50 R v IR Commrs, ex parte MFK Underwriting Agencies Ltd & OrsWLRTAX[1990] 1 WLR 1545; [1989] BTC 561 R v IR Commrs, ex parte Opman International UK......