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Petitioner: INLAND REVENUE COMMISSIONER VS Respondent: BROWN
Court Name: Chancery Division Judge(s): Megarry Title: INLAND REVENUE COMMISSIONER vs BROWN Case No.: (1971) 1 W. L. R. 11 Date of Judgment:1970-10-01 Reported As: 1976 PTD 433 Result: Appeal allowed
JUDGMENT
JUDGMENT ' This is an appeal by way of case stated from the tribunal appointed under the Finance Act, 1960, section 28. The case as stated is some 18 pages long, and I propose to refer only to those facts necessary to make intelligible my decision on the points of law before me, though of course I do not leave the other facts out of account. I am here concerned with a sum of 10,000 which the taxpayer received in cash for a sale in May 1960, to a company called General Auto-Work Ltd. (which I shall call "General"). What was sold was the taxpayer's shares in five other companies. The taxpayer also received some debentures, and his wife received 15,000 in cash, together wit some debentures, for her shares in the five companies : but these transactions are not in issue before me. In order to pay the two cash sums of 10,000, and 15,000, General borrowed 25,000 from a bank. The bank charged only two per cent. Interest on this loan, for the taxpayer, his wife and a company called Reproductive Engineering Ltd. (which I shall call "Reproductive") undertook to keep at least 25,000 on current account with the bank. ' The Inland Revenue Commissioners served a notice under section 28 in respect of the alleged tax advantage which the taxpayer obtained through receiving the 10,000 free of tax, and notified the taxpayer that certain adjustments were requisite for counteracting the tax advantage, the adjustments in effect consisting of treating the 10,000 as if it had been the net amount received in respect of a dividend subject to deduction of tax. The shareholders in General Reproductive and the five companies consisted of the taxpayer and his wife, with in some cases a few shares vested in one of their sons or in an employee of the taxpayer's accountancy business. The taxpayer, I may say, is a chartered accountant. I do not think that I need deploy in any detail the network of transactions between the companies, though I should say that Reproductive carried on a genuine
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light engineering business on behalf of General from the incorporation of General in 1952 or soon afterwards. As to five companies, the taxpayer and his wife bought one in 1952, and incorporated the other four in the same year. They all carried on the business of hiring out plant and machinery, and hired out to General plant and machinery of the type that it required. ' In 1957 General purchased all the plant and machinery owned by the five companies, and in 1958 General and the five companies entered into a deed of partnership under which each of the five companies took one-fortieth of the profits (with a minimum of 1,000 per year), and the remaining seven-eighths went to General. General brought into the partnership its lease, its plant and machinery and so on, while each of the five companies brought in 4,000, and each agreed to pay 5 000 to form a plant and machinery replacement fund. On May 1, 1959, the partnership sold all the plant used in the business to a company called Repetition Plant Hire Ltd. (which I shall call "Repetition") at its written down value for tax purposes, repetition hiring the plant exclusively to the partnership and the partnership having the right to repurchase it in two years' time at a valuation, a right which was exercised on April 11, 1962. Two sons of the taxpayer owned the shares in Repetition. ' A further refinement was also introduced on the same date. May 1, 1959, when another company called Trade Participation Ltd. (which I shall call "Trade"), which was controlled by an employee of the taxpayer's accountancy firm, entered into the partnership with General and the five companies, on the footing of taking 26 per cent. Of the profits ; and two years and a day later, on May 1, 1961, Trade retired from the partnership. ' It may be observed that the 26 per cent. And the two years and a day each sufficed, by almost the narrowest margin possible, to exclude the operation of the Finance Act, 1954, section 17, a section which is aimed at a form of strategic discontinuance that I was told became known as the Manchester gambit. ' That, I hope, gives a sufficient idea of the types of transaction that surrounded what 1 am primarily concerned with in this case. The central core is that of General borrowing the 625,000 on the terms that I have mentioned, and then paying (inter alia) 10,000 to the taxpayer for his shares in the five companies. Before the transaction, the taxpayer owned those shares; after the transaction he was their direct owner no longer, but he had 10,000 in his pocket, and indirectly, through their new owner, General, he had an interest in the shares, for he owned shares in General. His wife was in a similar position, though I should mention that the proportion of indirect ownership was not precisely the same as that of the direct ownership. General's ownership of the shares was, of course, offset by the debt to the bank that General had incurred ; but the 10,000 had come to the taxpayer out of General not as a dividend subject to tax, but as the purchase price of shares, and so free of tax. ' I accordingly turn to section 28. It is far from simple. It contains twelve subsections and occupies over five pages of the statute book, in addition to relying upon definitions to be found in section 43. Subsection (2) with which I am primarily concerned, is over a page long, and it is not conspicuously successful in its scheme of sub-division. Subsections (1) and (2) are concerned with defining the circumstances in which the section applies to a person in respect of a transaction, and thus the circumstances in which the tax advantage obtained by him is to be counteracted by making the appropriate adjustments under subsection (3). Subsections (4) to (10) inclusive are mainly procedural, subsection (11) lays down the criteria for determining whether for the purposes of subsection (2) an amount received by way of dividend is to be treated as "abnormal," and subsection (12) prevents the powers conferred by the section from being limited by other provisions in the Act, though it preserves the six year's period within which an assessment must be made.
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' Subsection (1) lays down three conditions for the application of the section. First, there must be a person who "is in a position to obtain, or has obtained, a tax advantage." Second, that must be "in any such circumstances" as are mentioned in subsection (2). Third, that must also be "in consequence of a transaction in securities cr of the combined effect of two or more such transactions." If those three conditions are satisfied, then the section applies unless the taxpayer concerned establishes that both of two conditions are satisfied. The first condition may be satisfied by showing "that the transaction or transactions were carried out either for bona fide commercial reasons or in the ordinary course of making or managing investments." The second condition is "that none of them" (that is the transactions) "had as their main object, or one of their main objects, to enable tax advantages to be obtained." A proviso excludes transactions prior to April 5, 1960, from the section. ' Subsection (2) begins by laying down, in paragraphs (a) to (d), four sets of "circumstances" for the purposes of subsection (1). In the main, these paragraphs are aimed at devices that have become known as dividend stripping (whether forward or backward) and bond washing. In this case I am primarily concerned with paragraph (d), though referentially paragraph (c) is of great importance. I shall read paragraph (c) first. It runs : "(c) the person in question receives, in consequence of a transaction whereby any other person-(l) subsequently receives, or has received, an abnormal amount by way of dividend ; or (ii) subsequently becomes entitled, or has become entitled, to a deduction as mentioned in paragraph (b) of this subsection, a consideration which either is, or represents the value of, assets which are (or apart from anything done by the company in question would have been) available for distribution by way of dividend, or is received in respect of future receipts of the company or is, or represents the value of, trading stock of the company, and the said person so receives the consideration that he does not pay or bear tax on it as income ; " ' Paragraph (d) runs as follows : "(d) in connection with the distribution of profits of a company to which this paragraph applies, the person in question so receives as is mentioned in paragraph (c) of this subsection such a consideration as is therein mentioned." ' Paragraph (d) thus makes two borrowings from paragraph (c), namely, "such a consideration" and "so receives." "Such a consideration" in paragraph (d) thus embraces three types of consideration. The consideration must be a consideration (I) "which either is, or represents the value of, assets which are (or apart from anything done by the company in question would have been) available for distribution by way of dividend," or (ii) "is received in respect of future receipts of the company," or (iii) "is, or represents the value of, stock of the company". What the words "so receives" in paragraph (d) bring in from paragraph (c) is that the taxpayer "so receives the consideration that he does not pay or bear tax on it as income." ' Subsection (2) continues by defining what the words "profits," "distribution" and "receipt of consideration" include for the purposes of the subsection. It also provides that the "assets" mentioned in paragraph (c) ; "do not include assets which (while of a description which under the law of the country in which the company is incorporated is available for distribution by way of dividend) are shown to represent a return of sums paid by subscribers on the issue of securities :" ' This is a phrase to which I shall return later. Finally, subsection (2) defines the companies to which paragraph (d) applies as being (inter alia) "any company under the control of not more than five persons," with certain qualifications. ' On the facts of this case, no question arises on the words "In connection with the distribution of profits," or "a company to which this paragraph applies," or "the person in question so receives as is mentioned in paragraph (c) of this subsection." The one question on the "circumstances" is on the
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words "such a consideration," and on this the question is solely on the first of the three forms of "such a consideration," namely, "a consideration which either is, or represents the value of, assets which are (or apart from anything done by the company in question would have been) available for distribution by way of dividend." In that phrase it is the word "available" which has been at the center of the argument. Does it mean "legally available," as Mr. Monroe has contended on behalf of the Crown, or does it refer, as Mr. Bates has contended for the taxpayer, only to such divisible assets as are not required to be retained for the purposes of the company's business, "required" being used in the sense not of any arbitrary requirement of the directors, but of being in fact needed ? ' One other question has arisen, and that is in relation not to the "circumstances" but to the first of the two conditions in subsection (1) which, if established by the taxpayer, take him out of the section, namely, "that the transaction or transactions were carried out either for bona fide commercial reasons or in the ordinary course of making or managing investments." This point is short, and I shall deal with it before turning to the main question. The decision of the tribunal on this point was expressed with brevity. The members of the tribunal decided- "that on all the evidence, oral and written, the respondent had not shown to our satisfaction that the sale of the shares in the five companies to General Auto-Work Ltd. Was carried out for bona fide commercial reasons, or in the ordinary course of managing investments." ' Accordingly, on this point the Crown succeeded. Mr. Bates' attack on this decision was to the effect that the members of the tribunal had misdirected themselves in that they reached this conclusion because they decided against the taxpayer under the second of the two conditions under subsection (I) in respect of which the burden of proof lay on the taxpayer, namely, that none of the transactions "had as their main object, or one of their main objects, to enable tax advantages to be obtained." The members of the tribunal, said Mr. Bates, had misdirected themselves in that they held that when a main object was to obtain a tax advantage, that showed that the transaction was not carried out for bona fide commercial reasons ; and this, he said, was not what the statutory language meant. ' As a matter of the construction of subsection (1) I agree with Mr. Bates. I do not think that it is impossible for a transaction to be carried out for bona fide commercial reasons merely because one of the main objects is to obtain a tax advantage. I cannot see why there may not be transactions which manifest for the taxpayer the happy combination of being carried out for bona fide commercial reasons and also having as one of their main objects that they will enable a tax advantage to be obtained. Many a transaction is carried out for more reasons and with more objects than one. The drafting of subsection (1) shows, I think, that Parliament contemplated this, in that it required the taxpayer [to establish both conditions. ' That, however, does not dispose of the point. It seems to me that Mr. Bates faced two insuperable difficulties on this branch of the case. First, and somewhat surprisingly, there is nothing in the decision of the tribunal which in terms shows that there was any finding on the second condition, to the effect that the taxpayer had failed to show that none of the main objects was to enable tax advantages to be obtained. In paragraph 8 the tribunal recounts evidence given by the taxpayer that he and his wife wished to provide for their retirement and so on, and in paragraph 9 the tribunal refers to certain schedules which were submitted by the Crown to show (inter alia) that an object was to enable tax advantages to be obtained : yet the findings say nothing on the point. It was therefore impossible for Mr. Bates to demonstrate that the express finding on bona fide commercial reasons or the ordinary course of managing investments was based (and based illegitimately) upon any finding that a main object was to enable tax advantages to be obtained. Taking the finding as it stands, I can see no reason why the tribunal should not have reached it in precisely the way that is stated, namely, "on all the evidence, oral and written".
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' Second, if in fact the members of the tribunal had reached their decision by the process which Mr. Bates alleged, the very demonstration of that fact would destroy the taxpayer's case. If the tribunal in fact found that one of the main objects of tha transactions was to enable tax advantages to be obtained, then the taxpayer had necessarily failed to establish the second of the two conditions that he had to establish if he was to escape the section. Where the taxpayer must satisfy two conditions, how can it profit him to destroy the tribunal's decision against him on the first condition if the process of destruction involves the demonstration that the tribunal decided against him on the second condition? If the case stated were to be sent back to the tribunal for amplification, as Mr. Bates sought, I cannot see how on this point it could help the taxpayer. In any case, I am very far from satisfied that there are any grounds for sending this case back, even though there is the curious omission of any express finding on the second condition. In my judgment, there is no ground for impugning the decision of the tribunal that the taxpayer had not established that the sale of the shares was carried out for bona fide commercial reasons, or in the ordinary course of managing investments. There was evidence on which the tribunal could reach this decision, and I answer the first question in the case stated accordingly. ' I turn, then, to the main point, the words "assets which are (or apart from anything done by the company in question would have been) available for distribution by way of dividend" in subsection (2), paragraph (c), as incorporated in subsection (2), paragraph (d). Put in the briefest possible form, Mr. Monroe's submission was that assets were available for distribution by way of dividend if they were legally available. The company's debts must be provided for, and there must be no return of capital : but otherwise all assets were available for distribution by way of dividend. Mr. Bates, on the other hand, contended that there must first be set aside the assets which it was necessary to retain for the purposes of the company's business, and only when this had been done could any divisible assets then remaining be said to be available for distribution by way of dividend. ' On this point, the tribunal decided in the taxpayer's favour, though it is far from clear whether in so doing they adopted or applied the test put forward by Mr. Bates. Indeed, as Mr. Bates' test was a revised version, put forward on Day 2, of what in response to questions he had said on Day 1, I infer that although the tribunal had the advantage of bearing Mr. Bates, they did not have the advantage of considering his test in its final form. The tribunal's decision on the point occupies some two pages of the case stated, but nowhere does there appear any clear statement of the criteria that they applied in considering the phrase in question, and especially the word "available". The words of decision, however, make two points clear. First, the tribunal compared the company's current liabilities with its current assets, as shown by the balance-sheet for April 30, 1960, that is, nine days before the transaction in question. These showed that the current liabilities exceeded the current assets by rather over 5,000. The tribunal observed that regard could not be had to assets alone, and that the company's liabilities must also he considered "in order to determine whether there are assets available for distribution." After referring to the excess of liabilities over assets, the tribunal said that at April 30, 1960, the company "did not have the funds available to pay a dividend of anything like 25,000." The second point was that the 25,000 was borrowed from the bank specifically In order to buy assets, namely, the shares in the five companies. "It appeared clear", said the tribunal, "that the bank would not have lent the 25,000 on the sole credit of the company and in our opinion it would have been improper, or at any rate not justified, for the directors to procure the company to incur a bank overdraft of 25,000 for the purpose of declaring and paying a dividend." ' One thing seems plain, and that is that the tribunal did not treat "available" as meaning "legally available," as the Crown contends, but treated it as having a more restricted meaning, of the nature of "commercially available," or "available from the point of view of sound company
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practice," or "available" in some sense such as that which Mr. Bates put forward. I do not propose to set out in detail the figures in the balance-sheet for April 30, 1960, but I must refer to them in outline, rounding them off. On the right hand side there was 46,000, representing General's interest in the partnership assets. Current assets were 23,000, consisting in the main of 12,500 for quoted investments and 10,000 balance at the bank. On the left hand side was the issued share capital of 5,000, revenue reserves of 36,000 (consisting mainly of 15,000 from the profit and loss account), and current liabilities of 28,001, made up mainly of 25,000 for Reproductive and 2000 for proposed dividened. Mr. Bates said that "Reproductive" was a mistake, and that instead there should have been a reference to the partnership. If one merely contrasts current assets and current liabilities, one can see that the liabilities exceeded the assets by 5,000. Of that 5,000, 2,000 consists of proposed dividends (the exact figure was a little under 2,150). I was told that these were paid under a direction of the special Commissioner. However, the figures for the previous year, 1959, showed that the current liabilities had exceeded the current assets by 2,500 and that there had been dividends of 2,000 (the exact figure being a little under 1,850). My enquiry elicited the response that the 1959 dividents could not be accounted for by any direction of the special Commissioners. On the taxpayer's argument, it had been improper to pay either of these dividends, and although the 1960 dividend could be classified as an impropriety in obedience to the special Commissioners, the 1959 dividend was what I ventured to call, without dissent from Mr. Bates, a voluntary impropriety. The tribunal's decision mentions the 1960 dividend but says nothing of the direction by the special Commissioners or the 1959 dividend. ' There is a further point. By subsection (7) the tribunal is to include two or more persons appointed by the Lord Chancellor as having "special knowledge of and experience in financial or commercial matters" ; and the tribunal that sat in this case, presided over by the Chairman of the Board of Referees was, if I may say so, most distinguished in its composition. On any matters connected with finance and commerce I should indeed be hesitant in expressing any views contrary to theirs. Mr. Bates naturally enough pointed to the tribunal and its powers, and submitted that the Court ought to be well content to accept the tribunal's decision on such a point as the word "available". I can indeed see the force of this ; and if it appeared that the tribunal had adopted and applied the right test in law, the submission would be almost irresistible. But that is what troubles me ; ' I do not know what standards the tribunal have adopted in using and applying the word "available," or the words "improper" and "not justified." It has not been suggested before me that the hank loan was subjected to any trust or binding legal obligation to apply it in the purchase of shares, nor has it been suggested that 25,000 or any other sum could not have properly been borrowed for the purpose of paying dividends. It is at least possible that "improper" and "not justified" have a moral flavour about them. It would also be odd if it were to be said by the company, "We could have borrowed 25,000 expressly for paying dividends, and without strings attached to it, and if we had, section 28 would have applied. But as we borrowed it on a basis which made it wrong for us to use it for dividends, section 28 is excluded." ' The real difficulty, however, lies in the word "available." If that means as the Crown contends, "lawfully available," then there is little difficulty. It is usually easy enough to infer that words in an Act of Parliament referring to some state of affairs mean that state of affairs according to law and not contrary to it, or disregarding it, or applying other unspecified standards. Mr. Warner reminded me that in Income Tax Special Purposes Commissioners v. Pemsel (1), Lord Macnaghten had said that in construing an Act of Parliament, it is a general rule that "words must be taken in their legal sense unless a contrary intention appears." Further, it is also usually not very difficult to find out what the relevant law is, the finer points apart. There may be difficulties in detail, and the rule may be far- reaching or severe, but in most cases the concept is clear. Drown v. Gaumont-British Picture Corporation Ltd. (2) which is more fully reported in (1937) 2 All E R 609, illustrates that all assets of a
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company are in law available for the payment of dividents, including (apart from the Companies Act, 1948, section 56) share premiums, subject to not trenching upon assets which represent subscribed capital. If, however, the word "available" is to be restricted to some further extent, confining it not merely to what is legally available but also to what is available in a narrower sense, then as a matter of statutory interpretation one must be able to see not only what that sense is, but also why that particular sense is to be imputed to the words used. ' In the present case, I am far from being convinced on either score. What is the standard of availability? Is it that of the prudent and conservative financier, or that of the daring entrepreneur? Does one resort to the overworked…
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