«THE HAMLYN LECTURES Thirty-Third Series INTOLERABLE INQUISITION? REFLECTIONS ON THE LAW OF TAX H. H. Monroe STEVENS THE HAMLYN LECTURES THIRTY-THIRD ...»
The second point illustrated is that a decision of the House of Lords can be even more effective in countering avoidance than a statutory provision. It is more subtle and more flexible, more readily adapted to a wide variety of circumstances than any specific statutory provision. If circumstances will not oblige by throwing up appropriate cases at an appropriate time—and currently there would seem to be no shortage of cases coming to the House of Lords from which principles may yet be derived as to how avoidance cases should be approached—there may still be something to be gleaned from the cases to guide the draftsman of anti-avoidance legislation.
The third point illustrated is that the House of Lords has given limited guidance on how sheep and goats are to be distinguished. At least, if the tax outcome turns on whether a transaction is trading according to the true intent and meaning of the Act, it is clear that regard is to be had to the whole context in which the transaction occurs and that a valid distinction may be drawn between a taxrecovery device and trading. My reason for suggesting that the evidence in a tax avoidance case might with advantage be heard in open court is because it seems to me that the touchstone is whether all concerned with such a transaction have confidence in speaking of it openly as the commercial transaction which it purported to be, not necessarily a trading transaction but a real loan or sale or whatever may be involved. It is not, as I see it,the distinction between honesty and dishonesty which is in point in such cases, but the distinction between self-deception and recognising one's own preferences for what they are. The distinction may be subtle; some may doubt its validity. But if capable of being detected, an open forum would seem the best place in which to conduct the forensic test.
The secrecy which surrounds proceedings before General or Special Commissioners is, I have suggested, the product of the commissioners' history. Secrecy is not the only product of that history. In the case of the Special Commissioners, in particular, their strange, unresolved status is another.
Consider the evidence. Peel took credit for introducing the Special Commissioners. As the Commissioners of Inland Revenue put it in their 1870 Report 22 : "The Special Commissioners were introduced for the first time by the Act of 1842, section 23, See n. 27 Chap. 1 above.
The Law of Tax and the Common People 11 providing that the Commissioners of Stamps and Taxes [later the Commissioners of Inland Revenue] for the time being shall be Special Commissioners of the Income Tax, together with such other persons as the Lords of the Treasury may think fit to appoint. The number of Special Commissioners in addition to the members of the Board is at present three. [In 1870]. They have the power of making assessment under Schedule D in any case when the taxpayer may elect to be assessed by them instead of the District Commissioners. [Peel's great innovation which never really caught on]...
On the introduction of the income tax in Ireland, where there are no local commissioners of taxes, the Special Commissioners were invested with the same powers and duties as the General Commissioners in England. [The Special Commissioners still go regularly to Northern Ireland to discharge the same duties as are discharged by the General Commissioners in England. They thus have a unique experience, coy and shy it may be, of the problems confronting General and Special Commissioners and of the differences]. The Special Commissioners are also charged with the duty of making all the assessments on railway companies; on the officers of railway companies in respect of their salaries; on dividends payable in this country out of foreign and colonial revenues, or on the stocks, funds or shares of foreign and colonial companies. [Happily the Special Commissioners have today lost these along with their other administrative functions]."
In fact both Peel and the Commissioners of Inland Revenue seem to have got it wrong. The Special Commissioners had arrived before
1842. Section XXX of the Income Tax Act 180523 was in these terms: "That the Commissioners for the Affairs of Taxes for the Time being, together with such other Persons to be appointed as hereinafter mentioned, shall be Commissioners for the Special Purposes of this Act. And it shall be lawful for His Majesty, His Heirs of Successors, under the Royal Sign Manual, or the Lord High Treasurer or the Commissioners of His Majesty's Treasury, or any Three or more of them, for the Time being, by Warrant under his or their Hand and Seal or Hands and Seals, from Time to Time, to appoint such and so many other persons not exceeding Three, to be Assistant Commissioners for such special Purposes, as he or they respectively shall think expedient; which said Commissioners for the Affairs of Taxes and Assistant Commissioners, or any Two or more of them, shall have full Authority to execute the several Powers 45 Geo. Ill, c. 49.
78 The Law of Tax and the Common People given by this Act to Commissioners for Special Purposes... [Here were set out the special purposes, in particular granting charity exemptions]... and also shall have full Authority to do any other Act, Matter, or Thing hereby directed or required to be done by Commissioners for Special Purposes, to be appointed under this Act... and the said Assistant Commissioners not exceeding Three as aforesaid, shall and may be allowed such Salary for their Pains and Trouble... as the said Lords Commissioners... shall direct to be paid to them."
The significance of all this is not whether Peel, the Commissioners and even Dowell24 got their history wrong, but to emphasise that the Special Commissioners started life as three administrative officials at the end of a long government corridor. Their functions were originally administrative; they have lost those. The Commissioners of Inland Revenue were their colleagues; they have lost them. From the start they acted as Two or more; they have lost that requirement only in very limited circumstances. They are paid for their Pains and Troubles as other officers of the Revenue are paid; they have not lost those nor, happily, their pay. But the common people are perhaps to be excused for not knowing who the Special Commissioners are. Undoubtedly, for many people they still reside at the end of a long government corridor. Letters are addressed to the Press referring to the Revenue's own Special Commissioners.
Even Members of Parliament have been known to identify the Special Commissioners as the Revenue's. The correspondents of top people's newspapers call them the Special Commissioners of Inland Revenue. They are, of course, unknown by name. They are faceless and anonymous; they work in secret. Even the profession from which most of them are drawn is happy, in effect, to disown them.
Some of these circumstances have not gone unnoticed. On October 9, 1919 A. M. Bremner gave evidence to Lord Colwyn's Royal Commission. The Chariman asked him: "This paper that you have prepared is on behalf of the General Council of the Bar?" The witness's answer is revealing: "It is. I should like to explain that although I have prepared this statement of my evidence at the request of the Bar Council, it has not been submitted to the Bar Council. I understand that it was not the desire of the Bar Council or their intention that my evidence should be submitted to them for See n. 23 above. See "The Income Tax Commissioners," Dr. A.
Farnsworth, L.Q.R. July 1948.
The Law of Tax and the Common People 79 their consideration. As I understand, they are quite prepared to adopt and accept my views as being representative of those of the Bar." To those familiar with the ways of the Bar there is nothing particularly out of the way in this statement. The Bar is a small profession. Trust is the basis of the relationship between barristers.
A single member of the tax bar, in those days small indeed, was quite capable of representing the Bar's views. But the approach shows the Bar—and the Bar would be from where the judges would be drawn—distancing itself from those involved with tax.
Later in the evidence of A. M. Bremner this passage occurs:
"... there is extraordinary confusion and want of knowledge as to who the Special Commissioners are, and what they are. People say to me 'Who are the Special Commissioners; who appoints them? Are they not a Branch of Somerset House? What communications pass between them and the Inland Revenue?' People do really misunderstand entirely who the Special Commissioners are, and I cannot help thinking that it would be very advantageous if people were made to understand what their position is." Sixty years have gone by but the Special Commissioners remain unidentified and unrecognised.
Evidence had also been given to the Royal Commission on September 25, 1919 by Mr. G. F. Howe, the Presiding Special Commissioner in 1919. Mr. Howe had then served for 44 years in the Revenue having at one stage in his career been a Surveyor. (The Presiding Special Commissioner is a customary rather than a statutory animal. He derives such authority as he possesses from the goodwill of his colleagues rather than from any official source.) In the course of his evidence Mr. Howe was asked questions by a solicitor member of the Royal Commission. "Q. You are paid salary out of an annual vote of Parliament? A. Yes, the Inland Revenue vote. Q. Your tenure, like that of any other civil servant, is at the pleasure of the Crown? A. Yes. Q. Although your status is, therefore, fully that of a professional civil servant, you perform judicial functions? A. Yes. Q. Are you aware of any precedent for judicial functions of the importance of those discharged by your body being discharged by civil servants appointed and paid and pensioned in that manner with that tenure? A. No, so far as I know there is nothing else like it at all." Nothing like it. Mr. Howe in his evidence went on to emphasise that in his long experience no occasion had occurred when anything in the nature of pressure had been brought to bear with a view to influencing his decision in favour of the Revenue. Subsequent generations of Special Commissioners would 80 The Law of Tax and the Common People unquestionably confirm his testimony. But absence of pressure and ambiguity of position, perhaps, involve different issues.
The 1919 Royal Commission made three significant suggestions
regarding the Special Commissioners25:
1. "It appears to us desirable to divest the Special Commissioners of the bulk of their administrative work and to restrict their activities merely to the judicial side, that is to say, to make them an appellate tribunal and little else."
Thirty-five years later the 1955 Royal Commission26 repeated the suggestion. Action was taken in 1964. This is not an area in which change takes place without deliberation. No wonder that between the two Commissions a Presiding Special Commissioner described himself as "the friendless hybrid under the shadow of Somerset House" regarded "not as a judge with a jurisdiction which is as wide as the Kingdom but as a semi-Revenue clerk."
2. "We recommend... that in view of the proposed restriction of their duties, and in order to conform to the change already suggested in the name of the Local Appeal Tribunal [i.e. the General Commissioners], the Special Commissioners should in future be called Special Appeal Commissioners."
A rose by any other name... but the confusion might be less. The 1955 Royal Commission made no reference to the name, but did suggest that the Commissioners of Inland Revenue might cease to be Special Commissioners. From 1964 they did.
3. "We recommend that decisions of the Special Commissioners on appeal on points of principle should be published (at their discretion and without breach of secrecy) and so made available for the information of taxpayers."
The 1955 Royal Commission also considered this point. They rejected it referring to "an immoderate appetite for precedent."
A proposal that selected decisions of the Special Commissioners should be published was included as Clause 46 in the 1977 Finance Bill. After a brief debate the clause was withdrawn. The basis of the withdrawal seems to have been that a wider review of the Special Commissioners' position, on lines suggested by the Council on Tribunals, would take place. Since that date it has been proposed that a merger should take place of the Special Commissioners and Cmd. 615, 1920, para. 362.
Cmd. 9474, 1955, para. 951.
hoc. cit. para. 973.
The Law of Tax and the Common People 81 the VAT Tribunals. In conformity with the welcome practice of extending consultation a consultative document has been issued and views have been invited. It may be that the Special Commissioners will emerge as part of an independent tribunal comparable in standing and authority to the Lands Tribunal. Should this occur it may well be that the question of reporting selected decisions of the tribunal will be reconsidered. It is easy to overlook the effect on the members of the tribunal of conducting their proceedings behind closed doors and of not being heard outside save only when their decisions are challenged in the courts.
The Committee on Ministers Powers in 1932 also noticed the Special Commissioners. Reference was made in the Committee's Report to the 1919 Royal Commission Report which speaks highly "of the public confidence felt in this body of public servants."29 "This specialised Court is of peculiar interest. By common consent it gives general satisfaction by its impartiality in spite of the fact that its members are not only appointed by the Treasury but may, when not performing judicial duties, actually act as administrative officials.
All we can say about it is that it is a standing tribute to the fairmindedness of the British Civil Service: but the precedent is not one which Parliament should copy in other branches of the administration."
Such expressions of public confidence are gratifying indeed.
Some, however, might detect a note of complacency. Others, particularly if they have knowledge of the tribunal over the past 30 years, might less readily endorse the plaudits. Others again might question whether with such a subject matter as the current tax code impartiality, without more, is sufficient.