Scottish Court of Session Decisions

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Cite as: [1865] ScotLR 1_29_2, [1865] SLR 1_29_2

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SCOTTISH_SLR_Court_of_Session

Page: 29↓

Court of Session Inner House Second Division.

Annuity Tax Cases.

1 SLR 29_2

Aitken

v.

Harper and Others,

1 SLR 29_2

Aitken

v.

King and Others.
Headnote:

These cases, which we reported at the time of their hearing during the extended sittings, and which involve the question of the liability of the United Presbyterian Synod in the annuity tax assessment on account of their premises No. 5 Queen Street, were advised to-day.

Judgment:

The Lord Justice-Clerk said—There are two actions before us at the instance of the collector of arrears of the annuity tax imposed by the statute of 1861 on the occupants of premises in the city of Edinburgh. I think it will be most expedient to dispose of the first action first, because it is liable to a serious objection which, if your Lordships agree with me, will be sufficient to throw it out. The action is laid on the statement that from 1848 to 1860 the premises No. 5 Queen Street have been occupied by the Synod of the United Presbyterian Church, formerly the United Associate Synod, and under the authority of the Synod, by committees, &c., and that their management has been committed to certain gentlemen who form the Synod House Committee. I think there can be no doubt of what is intended by this averment—it is intended to say that the occupant of the premises has been the United Associate Synod. The pursuer further says that the present representatives of the Synod are Dr King, the moderator; and Mr Beckett, the clerk; and the other defenders who form the Synod House Committee. It is not said that there is any occupation by that committee, or by any person but the Synod. One would have expected the conclusions of the summons to have been directed against the Synod; and if the conclusions had been so directed, and the Synod convened by some of its representatives, the action might have been well laid. But it is unnecessary to consider that question, because the Synod is not called. The conclusions of the summons are directed against Dr King, as moderator of the Synod, and as an individual, and against Mr Beckett as clerk, and as an individual, and against certain persons forming the Synod House Committee, and as individuals. The way in which liability is sought to be imposed on the defenders is—The defenders conjointly and

Page: 30↓

severally, or severally and individually, ought to be decerned and ordained, &c. Now, that is in no proper sense an action directed against the Synod; it is only directed against certain individuals, and not against these individuals as representatives of the Synod. Under these conclusions the pursuer might go against any of these individuals as the occupant of the premises, or he might sue each for his own share, but what that share is is not said, and moreover there is no foundation laid for it. There is an incongruity between the grounds of action and the conclusions of the summons, and therefore I think the action must be dismissed. In regard to the other case, at the instance of the same pursuer, the action stands in a different position. It is directed against certain individuals as defenders, who are called as defenders in their character of trustees, trustees under which they are made feudal proprietors of the subjects in respect of which the assessment is imposed. Now, it is quite true that feudal proprietors, as such, are not liable in the assessment, because it is imposed on tenants and occupiers. But the question is whether in the circumstances the trustees called are, in view of the law, the occupants of the premises. About other two matters of fact there can be no doubt. There is no doubt, in the first place, that these gentlemen are the owners of the premises, for a fluctuating and uncertain body of persons called the Synod. There is no doubt, secondly, that the premises are, in point of fact, occupied, and that being so, it follows that there must be some person or persons who, in terms of the statute of 1861, are occupiers of the premises in question. Now, what is the state of the occupation? The Synod of the U. P. Church meets periodically, and it is in some measure a representative body. The same individuals, therefore, do not occupy the premises at any two successive meetings of the body. But that is only part of the occupation; there is also occupation by committees under the authority of the Synod; and there is further occupation by persons to whom the Synod or its managers let the premises for hire, not under a lease or for any lengthened period, but for a day or a few hours. Now, it appears to me that in that state of the fact the law must hold the owners to be the occupiers. There is no person intermediate between the owner and those persons who occupy occasionally; there is nobody who can be said to occupy by means of these short occupiers, unless the owners or the short occupiers themselves. But it is out of the question to hold that a person occupying for a short period—for example, for the purpose of a lecture or a concert— is an occupant within the meaning of the statute of 1861; and we are therefore driven to hold the owner to be the occupant. That seems to be the ground of the Lord Ordinary's interlocutor, and I agree with him in the conclusions in law which he has deduced from the facts that the trustees under their feudal title are occupants of the subjects, and are therefore liable for the assessment. I am therefore of opinion that we should adhere to the interlocutor of the Lord Ordinary.

The other Judges concurred.

The Court accordingly, in the second action, sustained the second plea for the defenders, and dismissed the action, and in the first adhered to the interlocutor of Lord Jerviswoode finding the trustees liable.

Counsel:

Counsel for the Pursuer— Mr Clark and Mr Thoms. Agents— Messrs G. & H. Cairns, W.S.

Counsel for the Trustees— Mr Shand.

Counsel for the other Defenders— Mr Gifford and Mr John M'Laren. Agents— Messrs Peddie, W.S.
1865