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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 ...»

-- [ Page 8 ] --

There are grounds for hope. One moral tale, a sort of Beatrix Potter tax tale with a happy ending, and three more recent gleams of light.

Harking back to the history of tax soon establishes that there is little that is new by way of complaint or comment. The title page to Dowell's first edition, published in 1874, reads: "The Income Tax Laws At Present in force in the United Kingdom with Practical Notes, Appendices and a Copious Index by Stephen Dowell, M.A. of Lincoln's Inn, Assistant Solicitor of Inland Revenue." Tax lawyers have always had reason to be grateful to members of the Solicitor's office and to other lawyers in the Revenue for finding time to put pen to paper for the benefit of their own and subsequent generations. In the introduction to his second edition, 1885,—he had lost his notes for the introduction to his first edition in a fire—Dowell recalls the statutes with which he must have become familiar when writing his notable History of Tax. He compares "modern" statutes with those of an older pattern. After referring to marginal notes he continues: "This useful aid to those who are desirous to make themselves acquainted with the contents of a bill is not the sole improvement to be observed on a comparison of the modern with the antecedent practice in relation to bills; their form is now studied more carefully than heretofore, and the difference to be noted between the new and the old consists mainly in the following particulars:—

1. The absence, as a rule, of recitals, which, speaking generally, are unnecessary, while they are liable to give rise to questions and to be misleading;

2. The division of the act into parts, when it deals with several distinct subjects, or the subject divides itself easily into different branches;

3. The short title to the act with the year of our Lord in which it passes given for convenience in reference to the act;

4. The interpretation or definition clause as containing not only definitions of terms necessary to a correct understanding of the enactments, but also abbreviations of expressions, Parliament's Part 37 with a view to avoid the necessity of repeating them at length throughout the act;

5. The curtailment of sentences, for which purpose the sections are frequently divided into subsections;

6. The enactment of penalties for any contravention of the regulations of the act, in a sentence subsidiary to the regulations, in lieu of the full penalty clause of former times.

This is copied from the French: toute contravention aux dispositions de cet article emportera une amende de, & c;

7. The more frequent use of schedules, more particularly to contain any regulations which may be altered by some constituted authority;

8. The absence... of enacting words for every section;

and

9. The omission of the usual section to provide that 'the act may be amended or repealed in the same session of parliament' ls as, also, no longer necessary since Lord Romilly's act "These points of difference," Dowell continues, "between modern acts of parliament and those of half a century ago are to be observed in taxing, as well as in other, acts; and indeed, the single peculiarity in the form of a taxing act consists in the recital, in the preamble to the act, of 'the free and voluntary resolution of the Commons to g "ve and grant the tax'; in other respects fiscal resembles ordinary gislation. Taxing acts have, however, this speciality: that while they deal with subjects of no common intricacy, and are liable, in a remarkable degree, to those perils in the birth of acts which arise from alterations in the bill, made while it is in committee, and not subsequently submitted to the framers of the measure for revision, no other kind of legislation touches, personally, so great a number of individuals, or touches them in so tender a part; while experience proves that the attempt to evade the provisions of a taxing act has in it some peculiar charm for Englishmen. Hence questions have arisen, arise, and will arise on fiscal points notwithstanding the greatest care to prevent them.

In modern times great care has been taken in the preparation of fiscal legislation; but, could absolute perfection in expression be attained, were a taxing act to be created in every respect a model of exactness and lucidity in its language, it, probably, would still fail to present, in every part, a front so impregnable to attack as to deter from the attempt all those who are touched by the act, in the 15 Lord Romilly's Act 1850, (13 & 14 Viet. c. 21), s. 1.

38 Parliament's Part breeches pocket, to many of whom, if we may judge by experience, it is a pleasure to endeavour to find a weak point in it at any risk."

Dowell's list of improvements in the preparation of Bills may to us seem commonplace. But that is the point. It was 50 odd years before the natural impediments to change in this sort of area were overcome. Why should we be luckier? But why should we not be as lucky? It would be invidious, indeed I sometimes wonder whether it might not result in a sojourn in the Tower, to name names or identify culprits. These things inevitably take time; but quite small changes of procedure, of style, of habits, could be made and, just as in Dowell's day, quite remarkable improvements would result. What happened in his day is unimportant now. What is reassuring is that it was simple, it happened and the situation improved. So may we hope.





We may take comfort, too, from Dowell's cheerful realism. Of course, reactions are different when the touch is in the breeches pocket. "A fellow feeling makes us wondrous kind"—so runs the doggerel and there will be endless concern about this or that Bill which touches upon some remoter, though none the less deeply felt, social problem. But let the boot be directed towards the breeches pocket—"I wonder would the poet have changed his mind if turning in a crowd he'd chanced to find a fellow feeling in his coat behind."

As to the gleams of light. First, the Radcliffe Royal Commission.

"We do not feel satisfied," they said,16 "that it is impossible to introduce greater clarity and concision into the drafting of income tax legislation. The point is so often a matter of public criticism, and for more than a generation it has been a subject of judicial complaint." An anthology of judicial censure might be compiled.

(Let us face it. The anthology might not all be of censure directed one way.) But they continued: "We remain under the impression that the possibilities of an improved technique are not exhausted and some advance could still be made in the way of clarity." They concluded by mentioning two lines of advance which might be worth exploring: the use of specific illustrations as part of the statutory text, and a preference for clear statements of principle in a brief enactment over detailed attempts to cover by anticipation all imaginable evasions of it. As to the first of these lines of advance, as one whose claim to literacy is not quite so shaming as his claim to numeracy, I cannot pretend that 1 would welcome any attempt to turn Finance Bills into mathematician's playgrounds. If numbers are See above n. 9 para. 1087.

Parliament's Part 39 needed and examples help, it seems to me that the standard of the explanatory leaflets made available by the Revenue has improved beyond recognition—(if the leaflets and booklets, why not the statutes?)—and that the examples contained in them should meet most demands for numerical exposition. As to statements of principle, a warm welcome indeed to the suggestion and a warmer welcome still should any government get round to implementing it.

The usual caveat must be entered: it takes two to make poetry, the one who writes and the other who reads, receives and reacts. A statute needs an interpreter: to that topic I must come in due course.

The second gleam of light came in 1967.17 Under the chairmanship of Lord Scarman and the guidance of Professor Wheatcroft a one-day conference took place to discuss tax legislation. If memory serves, the Revenue were represented and practising lawyers and accountants were present, and the Parliamentary Draftsman. The lion and the lamb, it might be said, were on the same field with an eagle perching proper hardby. Of course, it could not last. Parliamentary Draftsmen have their remote eyries. They have to—for protection. Otherwise, no doubt they would be mobbed. Nor is it the way in which such matters are dealt with that we should know whether or why the Law Commission is thought to have no fiscal function. But suggestions emerged.18 First, that those concerned should press on with consolidation. The 1970 Acts followed and since then we have had the Capital Gains Tax Act 1979. Second, that there should be some kind of permanent body with suitable representatives upon it of the practising professions and of the "official" side charged with the task of reviewing sections of the existing law and making suggestions for revision or redrafting. The suggested alternative of a Parliamentary Select Committee was also touched upon. Third, that the possibility of modifying the existing rules as to budget secrecy might be explored with a view to promoting discussion and consultation on the technical and legal aspects of tax legislation before it comes to Parliament. Clearly much has been done and is being done to increase and improve the consultation which does take place, at least with certain groups and interests, in advance of legislation. More, perhaps, needs- to be known about what facilities and opportunities exist and what success is achieved. Certainly progress with consultative papers has See "The Present State of the Tax Statute Law," G. S. A. Wheatcroft [1968] B.T.R. 377.

B.T.R. loc. cit. at p. 390.

40 Parliament's Part been made. Problems relating to Capital Transfer Tax and settlements have been aired. Sceptics may remain dubious. Others will acknowledge with approval a readiness to receive suggestions and ideas. As emerges in relation to the third gleam of light a solution in relation to the legal aspects of tax legislation is still elusive.

The third gleam came in 1977. Sir Geoffrey Howe Q.C., M.P., addressed the Addington Society.19 He described the defects in what he called the present ritual and made an eloquent plea for gradualism as contrasted with some bold master stroke of the "set all to rights with a Royal Commission" kind. He concluded with a short list of modest but none the less relevant proposals: that exposing drafts well in advance of bills should be the practice rather than the rare exception; that significant changes in structure and shape should always be foreshadowed by suitably coloured papers or draft bills;

that budgetary provisions might be separated from machinery and technicalities; that some form of parliamentary scrutiny should be devised to keep fiscal measures and fiscal proposals under review in an atmosphere lacking the abrasions of the adversary relationship but enlightened by flashes of expertise. Sir Geoffrey also acknowledged the good sense in the Renton Committee's proposal that a suitably qualified committee might have the task of putting forward proposals for amendments to correct situations that are seen to be anomalous, unworkable or a source of confusion or injustice.

The similarities between the different suggestions repeatedly made will be obvious. When so much has been said, can action be so far behind? Sir Geoffrey Howe is today a busy man. He carries with him the non-partisan good wishes of his many friends for his success in the tasks which confront him. He also carries their hopes; hopes that his practical energies, enthusiasm and persistence in execution will not fall short of his sound good sense and lively wisdom in preliminary discussion.

Tax legislation lacks charm. It has a poor name and a worse record. (Whether name and record are better or worse than those of other branches of the law remains open for argument. Candidates from the statute book calculated to win any competition for obscurity and complexity are not in short supply.) Given goodwill, co-operation and a readiness to accept something short of perfection, measures to improve the existing law and such additions to it as are on mature reflection really necessary should not be difficult to achieve. Parliamentary procedures seem to hold the key; some sort See "Reform of Taxation Machinery," Sir Geoffrey Howe [1977] B.T.R. 97.

Parliament's Part 41 of permanent committee, with experienced and expert assistance, to review existing and future legislation not just in relation to its content but in relation to its form seems to offer a practical expedient worth a try. Is the will lacking? Should we all shout together? We might be heard.

CHAPTER THREE

THE JUDGES' ROLE Parliament's part is to pass the laws, the courts' and the judges' part to apply them. Until 1874 the courts and the judges did not have a lot to do with applying the law relating to income tax; the General Commissioners, and to a minimal extent the Special Commissioners, dealt with such disputes as arose. If, around the middle of the nineteenth century, you were an honest and small town tradesman and had a small, local business, you were required by section 111 of the 1842 Act to put in a statement of the profits and gains of your business with a view to being assessed on a three year average under Schedule D. The assessor, a locally appointed functionary, was responsible for letting you have a return form. He obtained the forms from the Revenue Department's representative, the surveyor.

This officer would have an opportunity to look at your return when you sent it in and before it went to the Additional Commissioners, who would make the assessment. The surveyor might subsequently consider the assessment too low in which case he would suggest an increase to the Additional Commissioners and if they did not accept his suggestion, he could take the matter to the General Commissioners. The General Commissioners were appointed by the Land Tax Commissioners from among their own number and they in turn appointed the Additional Commissioners, whose property qualification was half that of the General Commissioners.



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