TMI Blog1933 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... s been discovered which was not known before; all that has happened is that the Inspector has changed his opinion. If the subject pays a tax for which he is not legally liable under a mistake of law, he cannot recover it back-National Pari-Mutual Association, Ltd. v. R.-and the converse proposition is equally true, namely, that the Crown cannot recover a tax which it has remitted under a mistake of law. This case cannot be distinguished from Anderton Halstead, Ltd. v. Birrell, where Rowlatt, J., said (101 L.J.K.B., at p. 223 ; [1932J 1 K.B., at p. 281 ; 16 Tax Cas. at p 208) : The word 'discover' does not, in my view, include a mere change of opinion on the same facts and figures upon the same question of accountancy, being a question of opinion. There is a distinction between a mistake in the ascertainment of a fact and a mistake as to the fact itself. 3. The Attorney-General, in reply.-The fallacy underlying the respondent's argument is that the sub-section does not deal with the discovery of new facts, but with the discovery that some source of income has not been properly taxed. Finlay, J.- In this case, notwithstanding the skilful argument of counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appleton until he attained twenty-one years of age. 6. Subsequently, a new Inspector of taxes came into the district, and he came to the conclusion, and, as it is admitted, rightly, that the trustees were liable to assessment to income-tax in respect of the interest. He rightly came to that conclusion, because, as is now admitted, the interest of young Mr. Appleton in this fund was a contingent interest only. I have mentioned the fact, because it is a fact, that it was a new Inspector of taxes who came into the district and arrived at that conclusion. I desire to add that I do not attach importance from the point of view of the actual decision of the case to the circumstance that another Inspector of taxes came into the district and dealt with this matter. In my opinion, the position would have been the same if the former Inspector of taxes had on a re-survey of the facts in the light of the fuller knowledge changed his opinion. Now, in these circumstances, additional first assessments were raised for the years 1928-29, 1929-30, 1930-31 and 1931-32 ; appeal was made against those assessments and the appeal came before two very experienced Special Commissioners,' Mr. Sanders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Commissioners, are to make an assessment. This Section has been the subject of judicial consideration in several cases I may refer to the case of R. v. Kensington Income-tax Commissioners and Aramayo, Ex parte. It is proper to mention that this decision was subsequently reversed, but reversed upon quite other points, and nothing in the reversal affects the particular point with which I am dealing. The matter is discussed by all three Judges in the judgment. I think it is only necessary, though I might cite several passages, to read a passage from the judgment of Bray, J. He said there (83 L. J. K.B., at page 370; [1913] 3 K. B., at page 889 ; 6 Tax Cas., at page 282): The question which we have to consider is what is the meaning of the word ' discovers.' That word obviously has more than one meaning, and the question which we have to consider is what meaning it has in this section. Does it mean, as contended by the applicant, 'ascertain by legal evidence'? A few lines further down he said : ''The stage preceeding an appeal is not that at which legal evidence is required, and it seems to me to be clear that the word 'discovers ' cannot mean & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying company that he had discovered that the allowance was erroneous. It was held by the learned Judge' that that would not do, and there is one sentence in his judgment which undoubtedly has given me anxiety because he said (101 L. J. K. B. at page 223 ; [1932] 1 K. B., at page 281 ; 16 Tax Cas. at page 208): But the mere fact of such a discussion of the means of ascertainment indicates an assumption that there was something to be ascertained somehow. How greatly it would have simplified 1he problem if it could have been said that the Inspector makes a ' discovery ' if he merely changes his opinion, without any new information a all. He goes on with a sentence which rather tends, I think, to favour the view which 1 take. Moreover, it is to be remembered that income-tax is an annual tax for the service of the year, and when one finds a provision for an additional assessment within a period of six years, one is lead to expect machinery, not for a mere revision, but for the bringing in of something which had been overlooked. With regard to the latter words I should say that in this case there was the bringing in of something which had been overlooked, the something w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
