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«THE HAMLYN LECTURES Thirty-Third Series INTOLERABLE INQUISITION? REFLECTIONS ON THE LAW OF TAX H. H. Monroe STEVENS THE HAMLYN LECTURES THIRTY-THIRD ...»

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Does it all matter? Are there all that number of appeals to and from the Special Commissioners? The Reports of Tax Cases indicate the volume of business. When appeal to the High Court by way of case stated was instituted in 1874 the official reports of Tax Cases, described since the publication of volume 43 as "Reported under the Direction of the Board of Inland Revenue in association with the Incorporated Council of Law Reporting" commenced. Four volumes sufficed for the first 25 years, 1875-1900. The next 25 years, 1900 to 1925, were covered in six volumes. Nineteen twentyfive to nineteen fifty occupied 24 volumes, and another 24 covered the years 1950 to 1978. In two fascinating articles, "The First Cmd. 4060, 1932, p. 86.

Cmd. 615, para. 359.

82 The Law of Tax and the Common People Hundred Years of Tax Cases"30 Victor Grout and Basil Sabine have analysed the contents of tax cases. I commend with gratitude and acclaim the articles to all serious students of the history of tax law.

The authors' research confirms that before 1915 there was no significant number of appeals from the Special Commissioners to the High Court. However, business became brisker after the introduction of surtax. Between 1875 and 1914 29 cases went from Special Commissioners to High Court, between 1915 and 1944 624 cases and between 1945 and 1974, 516. It is clear that after 1914 more cases went to the High Court from the Special Commissioners than from the General Commissioners, an indication, perhaps, that heavier cases tend to go to the Special Commissioners. It is the experience of at least some General Commissioners that cases lasting longer than a day are rare. The Special Commissioners are not unacquainted with cases lasting for several weeks. The statistical evidence suggests that the courts find in favour of the Revenue more frequently than the Commissioners in those cases which go to the courts, that the decisions of the Commissioners when challenged are upheld in something like three out of five cases while a higher proportion of the courts' decisions are upheld on appeal. Incompetence? Bias? Or are the Special Commissioners unlucky?

Statistics from another fascinating source, "Final Appeal—A Study of the House of Lords in its Judicial Capacity" by Louis Blom-Cooper Q.C. and Gavin Drewry, suggest that an unusually high proportion of tax appeals find their way to the House of Lords, 150 out of 466—or almost one third of the total—civil appeals to the House of Lords between 1952 and 1968 were tax or rating appeals.

In 18 cases when the Crown lost Parliament legislated to reverse the decisions; the corresponding figure for cases where the taxpayer lost was nine.

Not many reliable conclusions are to be drawn from statistics such as these. As Messrs. Grout and Sabine point out, with 29 million taxpayers to be catered for, an average of 30 appeals a year to the Courts from Appeal Commissioners suggests that the common people are reasonably content with the manner in which disputes are resolved, whether by agreement or by appealing to General or Special Commissioners. Weighty, and sometimes tedious, though tax cases may be, it still seems open to question whether four tiers of appeals are required when disputes arise. Scotland and Northern [1976] B.T.R. 75 and 239.

See Chap. 1 n. 6 above loc. cit. at p. 317.

The Law of Tax and the Common People 83 Ireland manage with three. Should the Special Commissioners become a tribunal of standing comparable to the Lands Tribunal, it would seem to merit consideration that appeals should go direct to the Court of Appeal. Whether it would be appropriate to constitute an Exchequer Court of Appeal to be assembled on an ad hoc basis and to be presided over by a Lord Justice with the other members of the Court selected with reference to their background experience is yet another matter which could repay consideration.

In "Final Appeal" referred to above the comment is made:

"Revenue law, however, finds the lawyer, on both the common law and the chancery side of the profession, in his element, interpreting and applying statutes, an activity which, after all, is meat and drink to the lawyer. While any good lawyer can cope with the maze of tax legislation, it is fair to point out that there is a specialist Tax Bar." This comment identifies a dilemma in the system as yet unresolved. True it is that any good lawyer can cope with tax law.

In Scotland, where there is no specialist tax Bar, they habitually do with great skill and, some might argue, to the advantage of the law's development and the disposal by the courts of tax cases. In recent years senior members of the Bar from the Chancery, and less frequently from the Commercial or Common Law Bars in England, have been making welcome appearances as advocates for the Revenue in tax cases at all levels. The question remains whether the specialist Tax Bar is over specialised. Opportunities for the younger barrister to obtain experience of advocacy in tax cases on the civil side are limited. As is customary where a Government department is concerned, representation of the department tends to be entrusted to the department's own officers (Inspectors of Taxes in the case of the Revenue) or to its legal staff or to barristers identified as more or less retained exclusively by the department. Whether this system is wise or necessary raises quite separate issues: it happens, it works, it is well established and is not noticeably the subject of criticism. As mentioned, among more senior barristers the pattern has been changing and opportunities, similar to those which occur as a matter of course at some other branches of the Bar, to appear now in one interest, now in another, are encountered very much more frequently than once was the case. This must, I would suggest, contribute substantially to the coherent development of the law of tax as interpreted by the courts.





Advocacy, however, is only a part, and a comparatively small part, of the activities of members of the specialist Tax Bar. The other horn of the dilemma is here: could the lawyer on the common 84 The Law of Tax and the Common People law or chancery side, however "good" as a lawyer, however industrious and energetic, provide the specialised expertise needed to cover the whole field of tax without in the process becoming identified as a specialist? And once so identified, must an element of isolation inevitably intrude? Currently the position may, perhaps, be said to show an advance on the position as it obtained some years ago. Certainly in the fields of education, discussion and the exchange of ideas leading, on occasions, to legislative improvements, gradual changes in the scene have been welcome. The Revenue's changed approach to consultation could lead to further welcome progress. Of course, there are difficulties. The material is sensitive, often politically charged. The interests which must be assuaged, mollified or even occasionally put down are numerous, resistant and often powerful. Inevitably, the wise and experienced will take the view that innovation and enthusiasm are calculated to impede rather than advance what may already be claimed to be an orderly advance towards more open discussion of how tax affects the taxpayer and how the common people's interests can best be served consistently with the inexorable demands of Government and State.

But an occasional lapse into boldness and novelty might yet work wonders.

As to the forensic field and the confrontation of the Common People with fiscal authority before tribunals and courts, here too a heartening awareness of the merits of adaptation makes itself felt.

Change is, perhaps, still too emotive, too strong a term. None the less it may be hoped that the practices and patterns which prevail in other branches of the law will increasingly be regarded as appropriate to the resolution of fiscal disputes. Perhaps, even the constitutional principle of open justice could be reconsidered without prejudice to proceedings being "closed" whenever cause is shown why privacy should be preserved. Perhaps, too, standards of co-operation between the representatives of opposing parties will continue to rise and to reflect the mutual respect and understanding which the sharing of a common professional background produces in other branches of the law. Perhaps, most important of all, provisions for making and communicating tax laws and for resolving tax disputes will advance with due regard for the need of the common people to understand the meaning, purpose and working of what is provided. Happy indeed the lot of the common people should such need be met.

INTOLERABLE INQUISITION?

REFLECTIONS ON

THE LAW OF TAX

by H. H. MONROE, Q.C.

PRESIDING SPECIAL COMMISSIONER

From its inception the law of tax has had to struggle to make good any claim to respectability and relevance among lawyers.

In the 1981 Hamlyn Lectures Hubert Monroe Q.C, formerly a leading member of the Tax Bar and now a key figure in the administration of revenue law, considers whether the system, particularly in its legal aspects, contributes to the wariness and hostility with which it is regarded both by the legal profession generally and by the public at large.

The author's theme is that tax law—as a branch of law—has received a raw deal from history, from Parliament and from the judges. His criticisms are reinforced by a searching examination of the reasons, historical and social, why lawyers approach tax law in the way they do.

Chapters includeThe backdrop of history * Parliament's part * The judges'role * * The law of tax and the common pedp'ib' * There can be few other branches of the law where the interaction of interests between the community and the individual is regarded by many as little more than a game, and the social and / economic consequences of this attitude are becoming increasingly important. Intolerable Inquisition? will be of absorbing interest to all those involved in the law of tax, whether as legislators, as lawyers, or simply as taxpayers.

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