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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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I recall in the nineteen fifties, (just a century after the period to which my example relates), a case in the Divisional Court involving General Commissioners who had got into something of a muddle as to the party in whose favour they had decided an appeal.1 At the hearing they had apparently found one way but at a later stage reversed themselves. Before the Divisional Court, presided over by Lord Goddard, the question was suddenly asked "who appointed General Commissioners?" Some difficulty was experienced by those available in court in finding the answer but eventually it emerged that the situation was as it had been 100 years and more ago. Shortly afterwards the responsibility for appointing General Commissioners was handed over to the Lord Chancellor's Department.

1 Rex v. General Commissioners of Income Tax for the Division of Morleston and Litchurch, 32 Tax Cas. 335.

The Judges'Role 43 The wording of the surveyor's right of appeal is not without interest. Section 112 provided that where the surveyor or inspector should apprehend the determination made by the Additional Commissioners to be contrary to the true intent and meaning of the Act, and should then declare himself dissatisfied with such determination, it should be lawful for him to require them to state specially and sign the case upon which the question arose with their determination thereupon. It was then for the surveyor to transmit the case to the General Commissioners. If you were the taxpayer and should think yourself aggrieved by an assessment made by the Additional Commissioners, you had a similar right of appeal to the General Commissioners. At that stage the General Commissioners could require you to submit a schedule giving details of your income and you could further be required to attend and verify the schedule on oath. Section 123 provided that the General Commissioners could put questions to the taxpayer and "every person required to make such answers, or appearing before the said Commissioners to be examined as a party, or as the clerk, agent, or servant of such party, shall be permitted to give his answers either in writing as aforesaid or viva voce... and shall be at liberty to object to any question, and peremptorily to refuse answering the same." The Commissioners were given a similarly limited power in the matter of summoning witnesses. They could not summon "the clerk, agent or servant of the person to be charged, or other person confidentially instructed or employed in the affairs of such party to be charged." As I have indicated at an earlier stage, no doubt what was intended to happen was that the taxpayer either disclosed his affairs adequately, or had to accept the assessment suggested by the surveyor. When finally the Commissioners had extracted such information as the taxpayer was willing to impart, their task was to fix the assessment and the assessment so made was final and conclusive.

It is to be noted that the surveyor's powers were extremely limited. Effectively he could do no more than prompt the commissioners. In turn their powers were limited. They were not so much required to adjudicate in a dispute between two parties as to participate in an administrative process, conducted in a quasi-judicial manner to arrive at a figure. The wind was indeed tempered to the lamb about to be shorn. When numbers were less and local circumstances, we may suppose, well known to all participants, and when matters could be dealt with quite soon after the event, the system must have worked well enough. But the powers of the commissioners and inspectors to pursue enquiries have remained largely unchanged 44 The Judges' Role over the years. The social and economic surroundings in which those powers are exercised have changed considerably. In the context of cases involving default or neglect when the onus may be on the inspector to establish liability, or in relation to modern antiavoidance provisions where complex situations have to be shown to exist if the provisions are to apply, some might take the view that the powers are inadequate and less than effective. The wind is not merely tempered but positively deflected. It is welcome news, therefore, as gleaned from a recent parliamentary answer, that Lord Keith of Kinkel is to preside over a committee charged with the task of enquiring into the adequacy of these powers in today's context. The Committee has invited comments and indicated heads under which suggestions would be welcome.

It is not clear whether the difference in wording between the surveyor's right to have a matter reviewed and the taxpayer's right of appeal was intended to be significant. The surveyor could refer the case to the General Commissioners if he apprehended the determination of the Additional Commissioners to be contrary to the intent and meaning of the Act, the taxpayer if he thought himself aggrieved. Clearly the surveyor was not to indulge his emotions; whether he could raise issues of fact is less clear. No lawyer was around to object if he did so and, no doubt, in practice, he had a fairly free hand.

Why were the lawyers kept out—a Utopian state indeed?3 As previously I have tried to show, Pitt was positively apologetic when he introduced the tax and Peel made no extravagant claims for its perfection or its permanence when it was re-introduced. Even in 1853 Mr. Gladstone was only proposing to impose the tax for seven years, at seven pence for two years, six pence for the next two years and five pence for the last three years. And as late as 1874 he was campaigning on the basis of Liberals in and income tax out. Why then make a fuss about a temporary tax at a modest rate? In any event, who would wish their affairs to be disclosed? Pitt had sought to assuage the tradesman's clamour by providing commercial commissioners to make assessments at the tradesman taxpayer's option in place of the local worthies who might be supposed to be too inquisitive about the tradesman's resources and reserves. Peel covered the point by making available alternative assessment by the Special Commissioners, to whose origins, functions and subsequent Parliamentary Answer. See Hansard, H.C. Deb., Vol. 988, col. 683.





c.f. Shakespeare, King Henry VI, Pt. II, iv, ii.

The Judges' Role 45 history I shall return at a later stage. The Commissioners of Inland Revenue summed up the position in their 1870 Report 4 : "The appointment of Special Commissioners was the most important new feature introduced by the Act of 1842 into the income tax system of Mr. Pitt. The principal object of their appointment was to afford to persons chargeable under Schedule D"—the growing trading and commercial community—"the means of avoiding the disclosure of their affairs to their neighbours. For this purpose, it is provided that any taxpayer making a return under that schedule may claim to be assessed by the Special Commissioners instead of the Commissioners of the district. His return is, in that case, delivered under seal to the surveyor, and the whole of the proceedings are then conducted by officers appointed by the Crown. Should the taxpayer be dissatisfied with the charge, he is at liberty to apply to the Special Commissioners to be heard in person by way or appeal, and either he or the surveyor can, if dissatisfied with the decision of the Special Commissioners, demand that a case shall be stated for the opinion of the Board of Inland Revenue." To a jaundiced modern ear, this description of the procedure applicable in former times comes like a breath of vernal innocence. But, surprise mastered, the passage quoted discloses an interesting state of affairs. It is clear that then as now the central government official was regarded with suspicion.

Had not Dr. Johnson—as so often—set the Englishman's seal of disapproval on a particular group when in his dictionary he defined Excise5 as "A hateful tax levied upon commodities, and adjudged not by the common Judges of property, but wretches hired by those to whom Excise is paid."? The same would in due course, and was, said about odious officers of Revenue. But even this distaste was thought to be likely to be suppressed in the face of the neighbour's curiosity.

The way Peel himself put it to Parliament in March 1842 had been as follows.6 "Although, however, it is more consistent with former usage to employ local parties in each neighbourhood to collect the tax, yet a great objection has been raised to their sitting in appeal on the affairs of their immediate neighbours. It has been peculiarly objected that it is inexpedient to produce before their neighbours, or those who might stand towards themselves in the relation of friends or of personal or political enemies, these accounts, See Chap. 1 n. 27.

Cited in the Report of the Committee on Ministers' Powers, 1932.

Cmd. 4060 at p. 11.

Hansard March 18, 1842 Col. 912.

46 The Judges' Role and divulging to them their true state. I propose, therefore, to appoint other persons, and to give an option to the parties. I propose that the Tax Office should appoint a certain number of persons to be named special commissioners, and I propose that these special commissioners shall have all the powers of hearing appeals which the commissioners for general purposes possessed under the Act of 1806.

I propose then that the party shall have full power of going before the committee of general purposes if they so pleased, but if they preferred it the appeal might be heard by the special commissioners, under the control of the Government, and appointed by the Tax Office, which commissioners will be sworn to secrecy. I propose then, that at the option of the party, the appeal may be heard by these special commissioners. The decision that these special commissioners may come to will of course be final." That last "of course" in Peel's comment seems pretty final too. Peel must have overlooked the beneficient provision contained in what became section 131 of his Act to the effect that if taxpayer, inspector or surveyor "shall apprehend the determination of the said commissioners for special purposes on such appeal to be erroneous in any particular, and shall then express himself dissatisfied therewith" the commissioners were to state the case on which the question arose and transmit it for their quite final opinion to the commissioners of stamps and taxes who subsequently became the Commissioners of Inland Revenue.

If anyone doubts the tenacity and emotion with which intelligent men will guard the secrets of their incomes, let him consider the experience of the Senate of the Inns of Court and the Bar in endeavouring to compile accurate information regarding barristers' earnings to lay before Sir Henry Benson's Royal Commission on the provision of legal services. The record is available for all to read.7 Even with guarantees of anonymity the details were extracted with difficulty, the record, though reliable enough for the purpose, was incomplete. Obviously, Peel, either on his own judgement or on advice, regarded the confidentiality aspect as crucial and, seemingly, as rendering desirable the exclusion of any procedure for appealing to the judges. Available figures scarcely support the judgement or the advice. An extract from the 1870 Report, cited above, discloses the position: "The following statement shows the number and The Royal Commission on Legal Services 1979. Cmd. 7648-1, Final Report, Vol. Two, Part B, page 582.

SeeChap. ! l,n. 27.

The Judges'Role 47 amount of the assessments made by the Special Commissioners in Great Britain in 1868-1869. Special assessments (not including those on railways or their officers, on foreign and colonial dividends, and on mines) 2,388 [The excluded items show the ragbag of "special purposes" allocated to the commissioners for such purposes by this date].

Assessments on railways 194 Assessments on railway officials 7,000 Assessments on mines and quarries 56 The whole number of persons assessed under Schedule D in Great Britain is 380,000 and it is matter of surprise that so small a proportion should avail themselves of the secrecy which is ensured by a special assessment."

Matter of surprise indeed. Perhaps, the whole secrecy thing was a canard, one of those myths by which we regulate our affairs long after the message has become- irrelevant. Certainly at least one member of parliament thought so. In 1853 a Mr. Michell is recorded as saying9: "As for secrecy under the present machinery of the tax, it was out of the question. The returns men made were often found in the butter shop, and cheese had been sent to his own house wrapped up in his own return."

Eventually the judges were let in on the Act. What became section 59 of the Taxes Management Act 1880 came into the code as section 9 of the Customs and Inland Revenue Act 1874. There is tantalisingly little information available as to why the change was made. The form of the provision was clearly borrowed from the earlier models : "Immediately upon the determination of any appeal under the Income Tax Acts by the general or special commissioners, the appellant or the surveyor may, if dissatisfied with the determination as being erroneous in point of law, declare his dissatisfaction and having so done may, within 21 days after the determination, by notice in writing to their clerk, require the commissioners to state and sign a case for the opinion of the High Court." The expression of what one wit has called the statutory emotion, the expression of dissatisfaction, has become a meaningless ritual. In the earlier patterns, if a surveyor thought the commissioners had got the law wrong, he expressed his dissatisfaction and asked the commissioners to state the case on which the question had arisen so that the question could receive an authoritative answer Hansard May 27, 1853 Col. 729.

See s. 131 ITA 1842. Above p. 12.



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