Scottish Court of Session Decisions

At a meeting of the Commissioners of Income Tax held in Edinburgh on 5th May 1806, the trustees of the Free Church of Scotland appealed against an assessment under Schedule A of the Property and Income Tax Acts on £665, duty £22, 3s. 4d., made on them for the year ended 5th April 1896 as occupiers of the Free Church or New College Buildings, Edinburgh, and claimed exemption from the tax on the ground “that the said College being a public school is exempt under the Act.

The Commissioners sustained the appeal on this ground, and the Surveyor of Taxes obtained a case.

The case stated—“(3) The College referred to is what is known in Scotland as a divinity hall—and it is in this sense that the word ‘college’ is used in this case—and is intended for the training of candidates for the ministry after they have completed their undergraduate course at one or other of the national universities, although other students who may be desirous to make themselves proficient in any of the subjects taught therein may be and are admitted. The ordinary theological curriculum consists of four years' regular attendance, and

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the grouping of the classes for the said College is as follows:—First year—Divinity, Junior Hebrew, Natural Science; Second year—Divinity, Senior Hebrew, Junior Exegetics; Third year—Divinity, Senior Exegetics, Junior Church History; Fourth year—Divinity, Senior Church History. Lectures in natural science and in elocution are also delivered every session, and although attendance at these lectures forms no part of the curriculum, regular students are recommended to attend them. (4) The number of students who attended the said College in session 1895–86 was 131. Of these 86 were regular or ordinary students of the Free Church of Scotland, who before admission had produced all the certificates set forth in pages 9 and 10 of the College calendar of the Free Church of Scotland for session 1895–96, and who intended to follow the regular four years' course of study. The remaining 45, of whom 10 were Scotch, 4 English, 9 from Ireland, and 22 from the United States, Canada, and other places abroad, were irregular students, who had either not passed the necessary examinations or who were not provided with the certificates required from regular or ordinary students or aspirants to the ministry of the Free Church, who did not intend to follow the regular four years' course of study. On a separate page of the enrolment book there is also kept a register of students who are not provided with all the statutory certificates; such students may be allowed to take part in all the ordinary work of the classes they attend with the exception of the discourses required by the laws of the Church, but the course of study followed at the New College, and the examinations which follow, are regulated to meet the requirements of the ordinary Free Church students, and not those of the irregular students. The irregular students have the right to compete for certain of the bursaries and scholarships attached to the College, provided they have attended one year at any of the universities. There is also one bursary open to irregular students. All students who enter the College are understood to profess their faith in Christ and their obedience to Him. (5) Candidates for admission to the College as ordinary or regular students must have completed that attendance at a university which is required for graduation. Before admission, graduates in arts, science, law, or medicine, are examined by the Free Church of Scotland Examination Board in Scripture and in Hebrew, Greek, and Latin, except in so far as these languages have been included in the examination for their degrees. Non-graduates are examined in Scripture knowledge, Hebrew, classics, philosophy, and mathematics, except in so far as they have already passed degree examinations in any of the subjects.… (9) The matriculation fee for ordinary students of theology is 10s. a-year, and the common fee £4,10s.annually. Students from other countries and churches, counting their attendance as part of their curriculum, pay the same fees. Other English-speaking students pay in all £2, 10s. annually; students speaking foreign languages pay the matriculation fee only. The revenue of the College from students' fees for tuition and for use of library does not nearly cover the working expenses, the deficiency being made up by the income of endowments and from church—door collections.”

It was contended by the appellants that the New College was a public school within the meaning of section 61, No. VI., of 5 and 6 Vict. cap. 35, and that it was accordingly exempt from duty, and in support of this contention they cited the following cases— Hall v. Derby Sanitary Authority, November 12, 1885, 16 Q. B.D. 163, 54 L.T.R. 175; Blake v. Mayor, etc., of London, May 23, 1887, L.R., 19 Q.B.D. 79. In support of the assessment Mr Alexander Bain, surveyor of taxes for the district in which the College buildings are situated, contended that the College was not a public school within the meaning of Schedule A, No. VI., of section 61 of the Income Tax Act 1842. In support of this contention, he argued—(1) That Schedule A, No. VI., did not apply; that the Free Church College or Divinity Hall, Edinburgh, was not ‘a college or hall in any of the universities of the United Kingdom’; and that the term ‘public school’ in the sense of Schedule A, No. VI., was not synonymous with, and did not include, ‘college or hall,’ because ‘college or hall’ is distinguished from ‘public school,’ and separately dealt with in the clause. (2) That nowhere in the College calendar, which the College Committee publish annually for the information of the public, is the College designated a ‘school’ or a ‘public school’; but that, on the contrary, the Edinburgh, Aberdeen, and Glasgow Free Church Colleges are, in the opening paragraph of the calendar, defined to be ‘all theological colleges, or, according to the designation long prevalent in Scotland, “divinity halls,” intended for the training of candidates for the ministry, after the students have completed their undergraduate course at one or other of the national universities.’ (3) That even assuming the College could be called a ‘school,’ neither its purpose nor its regulations with regard to the admission of students entitled it to be called a public school in the sense of Schedule A, No. VI.”

Schedule A, No. VI, of section 61 of the Income Tax Act 1842 (5 and 6 Vict. cap. 35) exempts from duty “any hospital, public school, or almshouse, in respect of the public buildings and offices belonging to such hospital, public school, or almshouse.”

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