Scottish Court of Session Decisions

At advising—

Lord President—The assessment here complained of was laid on under the 17th section of the Income Tax Act, and the assessment is on the appellant's salary as master mariner.

The question is, whether Captain Young is resident in Great Britain. The expression in the schedule is very simple, being “person residing in Great Britain.” Now there are many persons so residing who do not go away very often, but there are a great many more who do, and this class is increasing every day. Therefore anything like continuous residence is not contemplated by the statute,—if by that was meant constant personal presence. So I think that the poor law decisions which were quoted to us have no application, and the statute alone is to be looked to. Under the statute, if a man has his ordinary residence in this country, it does not matter if he is absent for a greater or less portion of the year. Some people's business takes them constantly from home, such as travellers or Queen's messengers. Then the class to which the appellant belongs comes under this category, and is an extensive one. He is the master of a trading vessel belonging to Glasgow. When he is not at sea he resides in Glasgow, and when he is at sea he is represented there by his wife. In the ordinary and plain meaning of the words the appellant has thus his residence in Glasgow, and has no residence anywhere else, unless his ship could be called a residence, which I do not think can be suggested. A residence is a dwelling place on land, and the only one which the appellant has is in Glasgow.

The 39th section of the statute contains several parts, but the only part of importance here is the first. It is as follows:—[ His Lordship read the first paragraph of the section.]

There is some doubt whether that part applies to the present case—whether a trader between Glasgow and New York goes there only for the purposes of occasional residence. It is not necessary to decide that point, but I should be inclined to answer the question in the affirmative. But even if the provisions in the 39th section do not apply to this case, still it throws light on section 17, as it shows that the residence there meant is the ordinary residence which may be broken by occasional residence abroad—ordinary residence in the country fixes the liability notwithstanding visits abroad, if these are not of such a nature as to be more enduring than the residence in this country. In this case the appellant's absences are longer or shorter according to the fluctuations of trade; so it is a mere accident how long he may be away, and his absence is merely temporary. I do not think it is necessary to show that the absence abroad is shorter than that in this country if in its nature it is temporary.

The case of M'Callum referred to by Lord Ardmillan is very much in point. There citation by a messenger, which by statute is required to be made at the dwelling place, was made in this way:—“by leaving said copy of certified copy of petition and deliverance, and certificate, with short copy of service and citation subjoined, for the said John M'Callum, with his father, within his father's dwelling house at Newburgh, with whom he lives and resides when not at sea, to be given to him because I could not find him personally.” The Judges held that that was a good execution at the dwelling place, which I think means the same thing as residence. The Lord President says:—“Where a man lives and resides is his dwelling house. An execution, bearing that that citation was left at Blackhouse or Whitehouse, where the debtor lives and resides, would be clearly sufficient. Saying that it is his father's house is clearly descriptive, just as Whitehouse or Blackhouse is. The statement that the debtor lives and resides there is fulfilment of the Act.” Then Lord Mackenzie says:—“The expression is, that it was left at his father's dwelling house ‘with whom he resides when not at sea.’ The construction 1 put on that is that he has a residence at his father's house. Every sailor has a residence on land. We have no persons who are born and live and die on the water. The execution just certifies that he is a sailor, and has a residence on land with his father.” Lord Jeffrey says:—“The addition here, when not at sea, just means that his father's house is where he lives and resides when not absent on business.” The views as to the construction of the words dwelling house are equally applicable here. But apart from authority, 1 think that the statute is quite clear. So I think that the Commissioners’ deliverance should be sustained.