Rutherford v Lord Advocate
| Jurisdiction | Scotland |
| Date | 1929 |
| Year | 1929 |
| Court | Court of Session (Outer House) |
NO. 794.-COURT OF SESSION, SCOTLAND.-
Income Tax - Poinding - Recovery in Scotland of tax charged in England - Powers of Scottish Courts in relation to English General Commissioners - Defect in schedule of poinding - Income Tax Act, 1918, (8 & 9 Geo. V, c. 40) Section 137(1) and 166(3).
The Complainer, who resided in Scotland, was assessed to Income Tax, Schedule E, for the year 1928-29, by a body of General Commissioners in England in respect of director's fees received from an English company. He duly appealed against this assessment and it was averred by the Respondent that a notice was sent to the Complainer summoning him to a meeting of the Commissioners for the hearing of his appeal. The Complainer denied that such a notice was sent to, or received by him. He did not attend the appeal meeting and the assessment was confirmed by the Commissioners.
Subsequently, the Commissioners issued a certificate that the Complainer had been duly assessed and charged with the tax, which was unpaid, and, upon application by the collector of taxes for the Galashiels district of Selkirk, the sheriff-substitute for the county issued a warrant for recovery. Goods belonging to the Complainer having been poinded by the sheriff officer, the Complainer presented a Note of Suspension in the Bill Chamber in terms of Section 21 of the Exchequer Court (Scotland) Act, 1856. The Note having been duly passed, it was thereafter enrolled as an Exchequer Cause. In the Note the Complainer craved the Court to suspend the notice of poinding on the following grounds:-
(a) That the Complainer had duly appealed against the assessment under which the tax was charged, and that since, as he alleged, no notice of the hearing of the appeal had been sent to or received by him, the appeal had not been determined according to law, and the tax charged was not recoverable.
(b) That the schedule of poinding served by the sheriff officer upon the Complainer was defective in that it stated that the goods poinded would be sold in default of payment of the tax within four days instead of five days, as prescribed by Section 166(3) of the Income Tax Act, 1918.
Held, that the Note of Suspension fell to be refused on the ground that the decision of the General Commissioners confirming the assessment upon the Complainer could only be set aside by an Order of an English Court, and that the poinding was not invalid by reason of the inaccurate statement in the schedule of poinding.
I.-NOTE OF SUSPENSION.
UNTO THE RIGHT HONOURABLE
THE LORDS OF COUNCIL AND SESSION.
NOTE OF SUSPENSION
for
WILLIAM RUTHERFORD, Writer, Boleside, Galashiels-Complainer;
against
THE LORD ADVOCATE, as representing The Commissioners of Inland Revenue and Others-Respondent.
Humbly sheweth-
That goods belonging to the Complainer to the value of £106 5s.have by notice of poinding, dated 11th July, 1930, been poinded by the first-called Respondent acting by virtue of a warrant of the sheriff-substitute of the County of Selkirk upon a certificate and application of the second-called Respondent in respect of alleged arrears of Income Tax, assessed under Schedule E of the Act 8 and 9, Geo. V, ch. 40, and that valuation and sale is threatened thereunder, most wrongfully and unjustly as shall appear from the Statement of Facts hereunto annexed. That the Complainer is willing to find caution but that the Complainer considers that in the whole circumstances this Note should be passed without caution.
May it therefore please your Lordships simpliciter to suspend the said notice of poinding, and the whole warrants and grounds thereof, or to do further or otherwise as to your Lordships shall seem proper.
According to Justice, &c.,
HERBERT MELLOR, S.S.C.
Agent for Complainer.
II.-STATEMENT OF FACTS FOR COMPLAINER
AND
ANSWERS THERETO FOR RESPONDENT.
STAT. I. The Complainer is a writer, practising in Galashiels, and is a director of Messrs. Stanley Brothers, Limited, Nuneaton. The Respondent, Walter Gebbie, is a sheriff officer for the County of Selkirk and the Respondent, Hugh Harold Godwin Lees, is the collector of duties on profits arising from property, etc., for the County of Selkirk.
Ans. 1. Admitted. The Lord Advocate appears as Respondent in this Note of Suspension as representing the Commissioners of Inland Revenue and the Respondents named in the Note.
STAT. II. In October, 1928, the Complainer received an assessment to tax under Schedule E of the Income Tax Act, relative to the year ending 5th April, 1929, amounting to £96 12s. Against this assessment the Complainer appealed by notice contained in registered letter, dated 27th October, 1928, addressed to the assessing authority. Said notice of appeal was timeously lodged. It is provided by the Income Tax Act that if appeal is made against any assessment, notice of the date for the hearing of the appeal shall be furnished to the person making the appeal.
Ans. 2. Admitted, subject to reference to the said Act for its terms.
STAT. III. The Complainer was never informed of the date for the hearing of his appeal, but in October, 1929, having received a demand for payment of the amount contained in the notice of assessment, he called at the office of the Inspector of Taxes, Nuneaton, the office from which the demand had come.
Ans. 3. Admitted that, in October, 1929, the Complainer called at the office of the Inspector of Taxes, Nuneaton. Quoad ultradenied, under reference to the Statement of Facts for the Respondent.
STAT. IV. The Complainer has received no satisfactory explanation of the matter either from the Inspector of Taxes at Nuneaton, or the Comptroller of Inland Revenue in Edinburgh, and on 11th July, 1930, the Respondent, Walter Gebbie, proceeded to poind goods of the Complainer in his house, Boleside, Galashiels.
Ans. 4. Admitted that on 11th July, 1930, the said Walter Gebbie proceeded to poind goods of the Complainer in his house, Boleside, Galashiels. Quoad ultra denied.
STAT. V. The said Respondent, Walter Gebbie, served upon the Complainer a schedule of poinding which purported to proceed upon a warrant granted by the sheriff-substitute of the County of Selkirk following upon a certificate and application by the Respondent, Hugh Harold Godwin Lees, that certain tax due by the Complainer was unpaid. No sale has followed upon the said poinding. Said schedule of poinding provided for a sale in four days failing payment. It is believed and averred that the warrant authorising the said poinding provided for a period of five days between service and sale. The certificate issued by the said Hugh Harold Godwin Lees was untrue in respect that no tax was due and resting owing by the Complainer. The Complainer had duly appealed against an assessment to tax and his appeal was at the date when said certificate was granted undisposed of. It is provided by the Income Tax Acts for intimation being given to an appellant of the diet for the hearing of his appeal. No such notice was sent to the Complainer and if the appeal was dealt with in his absence it was dealt with illegally. If the said assessment has been confirmed, which is not admitted, by failure to give notice of the diet of his appeal...
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