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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clerk (Surveyor of Taxes) v. The British Linen Co. Bank [1885] ScotLR 22_750 (17 June 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0750.html Cite as: [1885] ScotLR 22_750, [1885] SLR 22_750 |
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Page: 750↓
[Exchequer Cause.
A banking company were proprietors of a building of which the front portion of the ground floor was occupied as bank premises, while the back portion was used by their agent as an office for the sale of stamps and the collection of taxes in the course of his duty as sub-collector for the district. The first floor was entirely occupied by the bank agent as writing chambers in connection with his business as a law-agent. The second or attic floor was used by the accountant of the bank as a dwelling-house. Access to the tenement was obtained by two doors, one of which was a public access from the street to the bank premises only. The other was a side door opening into a lobby, whence there was a stair to the first floor, and thence by another passage and stair to the dwelling-house on the second floor. A person in the dwelling-house had thus access into any part of the whole building without going outside. Held (following Russell v. Coutts, 9 R. 261) that there being thus internal communication from the dwelling-house throughout the whole building, the bank and other business premises were not “separate tenements” exempt from inhabited-house-duty as being “ occupied solely for the purposes of any trade or business,” and therefore exempt from duty in respect of 41 Vict. c. 15, sec. 13.
This was an appeal by the Surveyor of Taxes from the decision of the Commissioners for executing the Acts relating to the inhabited-house-duties for the county of Selkirk. The Commissioners, sustaining an appeal against the assessment laid on under the Inhabited-House-Duty Acts by the Surveyor, had relieved the respondents the British Linen Company of assessment upon certain premises as far as occupied for business purposes. The following facts were set forth in the case for appeal:—The property charged with assessment (which belonged to the British Linen Company) consisted of a building of three floors fronting Market Place of Selkirk. The front portion of the ground floor, valued at a rental of £45, was occupied exclusively as bank premises by the British Linen Company, while the back portion was occupied as an office for the sale of stamps and the collection of taxes by Mr John Steedman, solicitor, who was the bank's local agent at Selkirk, and also sub-distributor of stamps and sub-collector of taxes for the district.
The first floor consisted of four rooms and a lavatory. They were not enclosed by themselves, but each room entered from a passage running along the side of the building. They were all occupied by Messrs Lang & Steedman, solicitors, of which firm Mr Steedman was sole partner, in
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connection with their business as law-agents; and in one of the rooms, which was occupied by Mr Steedman personally, banking business was also transacted by him when not in the agent's room on the ground floor. For the stamp office and the rooms on this floor Mr Steedman paid a rent of £30 to the bank. The second or attic floor, valued at a rental of £15, was reached by a door in the passage on the first floor (marked D on a sketch produced), and thence by a staircase exclusively belonging thereto. It was occupied by the bank accountant or senior clerk of the branch, and for it he paid no rent. He kept the key of this door. In going from his house to the bank, or vice versa, the occupant could only do so by this door, and then through by a door (marked C on the plan) on the ground floor between the stamp office and the bank.
There were two entries to the premises, first, by a door (marked A on the sketch) leading direct from the street to the rooms occupied for banking purposes, and second, by a side door (B) from a passage running along the side of the building, and which side door opened into a vestibule or lobby having an access to the banking rooms on the right and the stamp office on the left, and from which a stair rose to the upper floors. Access would be had by either of these entries A or B throughout the whole building.
The bank rooms could be, and after business hours were, shut off from the rest of the premises by the door marked C, which locked from either side. The public entrance to the stamp office and the upper portions of the building was by the side door B.
The assessment against which the bank had appealed to the Commissioners was at the rate of 9d. per pound on £90, the cumulo value of the premises above described.
It was maintained for the bank before the Commissioners that the premises above described consisted of three separate tenements, which were capable, without change or alteration, of being let to separate tenants; that the whole of the first floor, which completely intersected the building, was, in point of fact, let and occupied as a separate tenement; that the upper floor, which alone was occupied as a dwelling-house, was a separate tenement; that the bank and stamp offices and the law office premises were used solely for business or professional purposes, and were therefore exempt in terms of 41 Vict. c. 15 (Customs and Inland Revenue Act 1878), sec. 13.
It was maintained for the Surveyor of Taxes that the premises did not fall under the exemption founded on by the bank, the principal portion being in the occupation of the bank itself or its officers, the remainder being occupied by Mr Steedman in his law and stamp business; that there was no structural division thereof into separate tenements, and there being an internal communication throughout the whole, which was used by the accountant daily as the bank's official resident on the premises, and which was the only access from the bank to his dwelling-house when the bank office was closed for the night.
The Commissioners found that the appellants were entitled to be relieved of the said assessments, so far as regards the portion of the premises occupied for business purposes in terms of section 13 of the Act 41 Vict. c. 15, and that the dwelling-house being a separate tenement and under the value of £20, was not liable to be assessed, and therefore sustained the appeal.
The Surveyor of Taxes took the present Case for the opinion of the Court.
Argued for him—This building was not a tenement used solely for business within the sense of the statute, because the accountant of the bank, who was not a caretaker, occupied the top flat. This was a stronger case than the Scottish Widows Fund, January 22, 1880, 7 R. 491, because the access to this top flat was through the bank premises, and not by means of a common outside stair as was the case there. The question was, whether this could be called a property divided into or let in different tenements. It could in no reasonable sense be so said. The top flat could not with any safety be let to anyone but the accountant of the bank, or some such other person. There was no distinction between this case and the case of Russell v. Coutts (December 14, 1881, 9 R. 261), for the accountant's house could in no sense be called a separate tenement; there was no structural division between it and the bank and stamp offices.
Replied for the bank—The Commissioners were right in relieving from the assessment, for the dwelling-house occupied by the accountant was a separate tenement. The criterion of separateness was from the lessee's point of view, i.e., from the interior. When once he was in his house, no-one could enter except by his door (D in the plan), of which he kept the key. The bank and stamp offices were complete separate tenements. If the chambers and the top flat were let to separate tenants there would be no doubt about the case, on the authority of Nisbet v. M'Innes, Mackenzie, & Lochhead, July 15, 1884, 11 R. 1095. It could not make any difference that the tenant of the top flat was the accountant of the bank. There was no appreciable distinction between this case and the case of Corks v. Brims, July 7, 1883, 10 R. 1128. There the separate tenements opened into a common vestibule. Here there was a stair and passage in common. The tenant of the top flat had to leave his own house before he could get into any of the other premises. His house was structurally separate from the bank and stamp offices.
Sub-sec. 1, sec. 13, of 41 Vict. c. 15, provides that “Where any house being one property shall be divided into and let in different tenements, and any such tenements are occupied solely for the purposes of any trade or business, or of any profession or calling by which the occupier seeks a livelihood or profit, or are unoccupied, the person chargeable as occupier of the house, shall be at liberty to give notice in writing at any time during the year of assessment to the surveyor of taxes for the parish or place in which the town is situate, stating therein the facts; and after the receipt of such notice by the surveyor, the Commissioners acting in the execution of the Acts relating to the inhabited-house-duty shall, upon proof of the facts to their satisfaction, grant relief from the amount of duty charged in the assessment, so as to conform the same to the duty on the value according to which the house should in their opinion have been assessed if it had been a house comprising only the tenements other than such as are occupied as aforesaid or are unoccupied.”
Page: 752↓
Sub-sec. 2 of the same sec. (13) provides—“Every house or tenement which is occupied solely for the purposes of any trade or business, or of any profession or calling by which the occupier seeks a livelihood or profit, shall be exempted from the duties by the said Commissioners upon proof of the facts to their satisfaction, and this exemption shall take effect although a servant or other person may dwell in such house or tenement for the protection thereof.” At advising—
Now, in that state of the facts, I think there are two things very clear. In the first place, the accountant's entrance to his dwelling-house from the outside must be by the door B, and when he has entered the door B he cannot reach his own premises without going through the premises occupied as a stamp office and also through the premises occupied as writing chambers by Mr Steedman. It is quite true that the portion of the building which he occupies as a dwelling-house is a floor by itself—the upper floor. But that is the only means of access. Again, when he is in his house on the upper floor, he has the means of obtaining access to every other part of the building. There is no part of the building with which he cannot communicate without going into the outer lobby.
Now, the question comes to be, I think, in short, this—whether this case is to be regulated by the judgment in Russell v. Coutts, or by the judgment in Corke v. Brims? and I shall just take the liberty of reading the view which I took of the distinction between these two cases in determining the latter of them, viz., Corke v. Brims. I said, “The case of Russell v. Coutts which is relied on by the surveyor here is essentially different in this respect, that in that case when Mr Coutts entered from the street into the house occupied by him, he had means without coming out of his door again of ranging over the entire buildings. There was no physical division of the entire premises into separate parts in such a way that when he was in one part of the premises he could not get access to the other. Once entered by the street door he had the means of going into every room in the entire building. Now, in the present case [that is, Corke v. Brims] Mr Mackay, who occupies the dwelling-house here, has an entirely separate door of entrance to his house. It is not indeed immediately from the street that that door has an entrance. There is a small lobby or vestibule from which three doors open, one into the bank only, another into the bank consulting room, and the third, which is in the centre, is the outer door of Mr Mackay's house and when he has once entered in at that door and shut it behind him he cannot obtain access from the premises in which he finds himself to any other part of the building except that which is occupied by him as his residence.” Now, if you put in place of Mr Mackay there, or of Mr Coutts in the other case, the accountant of the bank here, who is the person who has the dwelling-house on the premises, is it not perfectly plain that the description of Mr Coutts' position is exactly that of the accountant here, and the description of Mr Mackay's position in the other case is plainly distinguishable? In short, it appears to me that this case precisely answers to the description of Mr Coutts' position in the case of Russell v. Coutts, and therefore I am for altering the deliverance of the Commissioners and sustaining the assessment.
Page: 753↓
The Court reversed the determination of the Commissioners, and sustained the assessment to the full amount, with costs.
Counsel for Surveyor of Taxes— Moncreiff— Lorimer. Agent— D. Crole, Solicitor of Inland Revenue.
Counsel for British Linen Co.— Gloag— H. Johnston. Agents — Mackenzie & Kermack, W.S.
