swarb.co.uk - law index
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Taxes - Other - From: 1970 To: 1979
This page lists 4 cases, and was prepared on 02 April 2018.
Secretary of State for Employment v The Mitchell Construction Company Ltd; CA 26-Nov-1971 - [1971] EWCA Civ 3; [1972] ITR 24
In re Nichols, deceased [1975] 1 WLR 534
2 Jan 1975
CA
Russell and Cairns LJJ and Goff J
Taxes - Other
The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father's death the revenue claimed duty. Held: Goff LJ: "Having thus reviewed the authorities, we return to the question what was given, and we think that a grant of the fee simple, subject to and with the benefit of a lease back, where such a grant is made by a person who owns the whole freehold free from any lease, is a grant of the whole fee simple with something reserved out of it, and not a gift of a partial interest leaving something in the hands of the grantor which he has not given. It is not like a reversion or remainder expectant on a prior interest. It gives an immediate right to the rent, together with a right to distrain for it, and, if there be a proviso for re-entry, a right to forfeit the lease. Of course, where, as in Munro v. Commissioner of Stamp Duties (N.S.W.) [1934] A.C. 61, the lease, or, as it then may have been, a licence coupled with an interest, arises under a prior independent transaction, no question can arise because the donor then gives all that he has, but where it is a condition of the gift that a lease back shall be created, we think that must, on a true analysis, be a reservation of a benefit out of the gift and not something not given at all." Having referred to the gift of the freehold and the material estate duty provisions, and then stated the three problems thereby posed: "whether all that was given was the beneficial interest in the estate shorn of the benefit of the rights and interests of the donor under the lease back, in which case, prima facie, the gift must fall outside the statutory provision, or whether the gift was of the whole beneficial interest in the property, in which case it is not disputed that the lease back must have prevented the son from assuming bona fide possession and enjoyment immediately upon the gift to the entire exclusion of the father, and also whether the covenants in the lease are such that in any case the son cannot be said to have assumed such possession and enjoyment to the entire exclusion of any benefit to the father by contract or otherwise within the meaning of the section." There were two unanswerable reasons why the case was caught by the statutory provision, i.e. the full repairing covenant on the part of the son and his covenant to pay tithe redemption annuity.
Finance Act 1894 2(1)(c)
1 Cites
1 Citers
Esso Petroleum Limited v Commissioners of Customs and Excise; HL 10-Dec-1975 - [1976] 3 All ER 117; [1975] UKHL 4; [1976] 1 WLR 1
British Airports Authority v Customs and Excise Commissioners [1977] STC 36
1977
Scarman LJ
Taxes - Other, Contract
The court adopted the test when interpreting the contract at issue of whether the substance and reality of the agreement was the grant of a license to occupy land.
1 Citers
