Scottish Court of Session Decisions

[1] This appeal raises essentially the same question of interpretation as that arising in the appeal taken by the Assessor against the Committee's decision in respect of 59 Braeside Avenue, Aberdeen.

[2] Mr and Mrs Benzies owned in common their matrimonial home, a dwelling with the postal address Cloverhill Croft, Murcar, Bridge of Don, Aberdeen. It was purchased by them in 1994. While they lived together there they made certain improvements to the property, thereby increasing its value. Subsequently they separated and in 1998 entered into a Separation Agreement regulating their mutual financial affairs. That Agreement contemplated their divorce. Part of its purpose was to divide the matrimonial property in accordance with the principles laid down in the Family Law (Scotland) Act 1985. Later in 1998 in implement of the Agreement a disposition of the subjects was executed, title subsequently being made up by registration in the Land Register. The dispositive clause was in the following terms -

In further implement of the Agreement Mr Benzies in exchange paid over to his wife the sum of £20,000, much of which reflected the net equity value of her one-half pro indiviso share in the property.

[3] In these circumstances the Assessor advised Mr Benzies that the property, which had hitherto been in band D, would be placed in band E. Mr Benzies appealed to the Committee against that decision. The Committee sustained the appeal. The Assessor has appealed to this court against that determination.

[4] There was no appearance by or on behalf of Mr Benzies at the hearing before me but Mr Anderson, who appeared for the Assessor, (rightly) acknowledged that he would require to satisfy me that the Assessor's appeal was well-founded. He adopted his argument in the appeal relative to 59 Braeside Avenue, Aberdeen, which had been heard immediately before the present appeal. The only essential difference between the two situations was that in the present case the disposition had been by A and B in favour of A while in the other case it was by A and B in favour of B and C. Both deeds had been granted for a price. There was in these circumstances, Mr Anderson submitted, a sale of the dwelling within the meaning of regulation 4(1)(a)(i) of the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993.

[5] I refer to my Opinion in the appeal concerning 59 Braeside Avenue, Aberdeen. For the reasons there given I am of the view that in the present situation likewise there was no sale of the dwelling or of any part of it within the meaning of regulation 4(1)(a)(i). The circumstances are not importantly different. In these circumstances this appeal must also be refused.

[6] I should add that in its reasoning the Committee placed some reliance on the exception from stamp duty of certain instruments, including one executed in pursuance of an agreement made in connection with the dissolution of parties' marriage or their judicial separation. It is unnecessary in the circumstances to make any decision on that point. I reserve my opinion on it. Nor is it necessary to express any view on such other arguments as were presented on behalf of Mr Benzies before the Committee but were not renewed before me.