LOCAL TAXATION CASE LAW - AN UPDATE GARY L WATSON IRRV (HONS) DEPUTY CHIEF EXECUTIVE IRRV

Transcription

1 LOCAL TAXATION CASE LAW - AN UPDATE GARY L WATSON IRRV (HONS) DEPUTY CHIEF EXECUTIVE IRRV

2 OUTLINE OF PRESENTATION Judicial System Appeal Routes - Council Tax - Non- DomesIc Rate Case Stated Judicial Reiew Analysis of Cases - Council Tax - Non- DomesIc Rate Contact Details

3 JUDICIAL SYSTEM Court of JusIce of European CommuniIes Supreme Court Court of Appeal Crown Court County Court High Court Upper Tribunal (Lands Chamber) Magistrate s Magistrate s Court ValuaIon Court ValuaIon Tribunal Tribunal

4 APPEAL ROUTES (COUNCIL TAX) ValuaIon - ValuaIon Tribunal Liability Reliefs - ValuaIon Tribunal - ExempIons * ValuaIon Tribunal - Discounts * ValuaIon Tribunal - ReducIons Recoery * ValuaIon Tribunal - High Court (Case Stated) - High Court (Judicial Reiew) - Magistrates Court

5 APPEAL ROUTES (NON- DOMESTIC RATE) ValuaIon - ValuaIon Tribunal Liability Reliefs - ExempIons * ValuaIon Tribunal - OccupaIon * High Court (Case Stated) - Unoccupied Rate * High Court (Case Stated) * ValuaIon Tribunal - TransiIon * High Court (Case Stated) * ValuaIon Tribunal

6 APPEAL ROUTES (NON- DOMESTIC RATE) Reliefs - Small Business * High Court (Case Stated) - ChariIes, Kindred OrganisaIons & CASC S * High Court (Case Stated) * High Court (Judicial Reiew) - Rural Areas * High Court (Case Stated) * High Court (Judicial Reiew) - Part- Occupied * High Court (Judicial Reiew) - Hardship & Discounts * High Court (Judicial Reiew)

7 APPEAL ROUTES (NON- DOMESTIC RATE) Recoery - High Court (Case Stated) - High Court (Judicial Reiew) - Magistrates Court

8 CASE STATED JUDICIAL REVIEW Case Stated - DefiniIon - SecIon 111 Magistrates Court Act Magistrates Court Rules When used - Procedure - 21 day rule - Further right of appeal - Reference to Local TaxaIon * LegislaIon * Case Law

9 CASE STATED JUDICIAL REVIEW Judicial Reiew - DefiniIon - Supreme Court Act When used - Procedure - 3 month rule - Further right of appeal - Reference to Local TaxaIon * LegislaIon * Case Law

10 ANALYSIS OF CASES (COUNCIL TAX) ValuaIon - R (On the applicaion of a LisIng Officer) Callear (2012) Liability - MacAaram Camden LBC (2012) Reliefs - ExempIons - Edem Basingstoke & Deane BC (2012) - Daid James Vaughan South Oxfordshire DC (2012)

11 ANALYSIS OF CASES (NON- DOMESTIC RATE) Liability - OccupaIon - Makro ProperIes Ltd Nuneaton & Bedworth BC (2012) Liability - Unoccupied Rate - Porter (VO) Trustees of Gladman SIPPS (2011) - PrudenIal Assurance Company Ltd. A ValuaIon Officer (2011) - Friends Life Company Ltd Alexander (VO) and HunIngdonshire DC (2012) - Cosmopolitan Bellshill and Another North Lanarkshire C (2012) - Moffea Commissioner of ValuaIon for Northern Ireland (2012) - English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd Grace (VO) and Lierpool CC (2012)

12 ANALYSIS OF CASES (NON- DOMESTIC RATE) Reliefs - ChariIes, Kindred OrganisaIons & CASSC s - R (On the applicaion of AugusIne Housing Trust) Grays Magistrate s Court (2012) - Preston CC Oyston Angel Charity (2012) - Kenya Aid Programme Sheffield CC (2012) Recoery - Tower Hamlets LBC Rahman (2012)

13 COUNCIL TAX (VALUATION) R (On the applicaion of a LisIng Officer) Callear 16 th Noember 2012 High Court (Queen s Bench Diision) (His Hon Judge Shaun Spencer QC) Reference This was an appeal by a lising officer from a decision of the ValuaIon Tribunal for England dated 1 st March 2012 to delete Flat 4, 7 Vernon Aenue, Huddersfield from the aluaion list

14 R (On the applicaion of a LisIng Officer) Callear LegislaIon - SecIon 3 Local Goernment Finance Act Council Tax Chargeable Dwellings Order 1992 (S.I.1992/549) Key Facts - The aluaion tribunal decided that premises with an area of 30 sm containing faciliies for sleeping, eaing, cooking and showering (but with a WC and laundry shared with other similar premises in the same building) did not form a dwelling - It was argued by the lising officer that this conclusion was wrong and it was a self contained dwelling Decision - The appeal by the lising officer was allowed - It was held the aluaion tribunal should hae addressed first the quesion of whether the premises consituted a dwelling and that quesion was clearly not addressed and the conclusion that the premises did not amount to a self- contained unit was an unreasonable one

15 COUNCIL TAX (LIABILITY) MacAaram Camden LBC 2 nd April 2012 High Court (Queen s Bench Diision) (Judge Robinson) Reference This was an appeal to the High Court from a decision of the ValuaIon Tribunal for England that the leasehold owner was liable for council tax for a period From the 5 th June 2007 to 9 th Noember 2008 on Flat 3, 32 Croldown Road, London, W5

16 LegislaIon - SecIon 6 Local Goernment Finance Act 1992 Key Facts MacAaram Camden LBC - The appellant leased the property to the council for three years from 23 rd June 2013 who then failed to gie up possession; rent finally ceasing in January 2007 and the keys were returned on 5 th June Whilst the appellant accepted liability from the 10 th Noember 2008, it disputed the fact it was liable from the 5 th June 2007 to 9 th Noember The aluaion tribunal concluded that aler the lease expired, a periodic monthly tenancy arose by implicaion from the payment and acceptance of rent and that tenancy was a leasehold tenancy; howeer it was not granted for a term of six months or more and therefore not a material interest Decision - The appeal by the appellant was dismissed - It was held the aluaion tribunal made no error in law in that the tenant holding oer on a monthly tenancy aler the expiry of a fixed term did not hae a material interest

17 COUNCIL TAX (RELIEFS - EXEMPTION) Edem Basingstoke & Deane BC 23 rd August 2012 High Court (Queen s Bench Diision) (HHJ Seys Llewellyn QC) Reference This was an appeal to the High Court from a decision of the ValuaIon Tribunal for England that a dwelling at 16 Chantry Mews, Basingstoke, was not exempt under class A

18 Edem Basingstoke & Deane BC (2012) LegislaIon - SecIon 4 Local Goernment Finance Act Council Tax (Exempt Dwellings) Order 1992 (S.I.1992/558) Key Facts - The appellant had rented out the property unil March 2010 when the tenants of some four years chose to leae - It was accepted the property was not in good repair and it was recommended to the appellant that work need to be carried out before it was let again - The appellant lied elsewhere and contented that a class A exempion should be awarded; not just a class C exempion - The aluaion tribunal concluded that no class A exempion was applicable as the property was not uninhabitable whilst any works were carried out Decision - The appeal was dismissed - It was held the aluaion tribunal was correct in determining there should be no difference between owner occupied and tenanted property when determining an exempion under class A

19 COUNCIL TAX (RELIEFS EXEMPTIONS & DISCOUNTS) Daid James Vaughan & South Oxfordshire DC 4 th July 2012 InesIgatory Powers Tribunal (Mr JusIce Burton, Mr Charles Flint QC and Hon Christopher Gardner QC) Reference This was an issue on whether inspecions of a property carried out by the respondent, to ascertain whether council tax exempions or discounts hae been property claimed on 70 Greys Road, Henley consituted or intrusie sureillance within the meaning of the regulaion of InesIgatory Powers Act 2000

20 Daid James Vaughan & South Oxfordshire DC LegislaIon - RegulaIon of InesIgatory Powers Act 2000 (RIPA) - Council Tax (AdministraIon & Enforcement) RegulaIons 1992 (S.I.1992/613) Key Facts - The appellant made a complaint to the Tribunal about sureillance carried out on a property where he had claimed a 25% discount - Between 25 th August 2009 and 31 st January 2012, 17 separate isits had been undertaken; one of which inoled climbing a ladder at the rear of the property to take pictures - The appellant claimed the property was occupied although the aluaion tribunal had twice dismissed appeals Decision - The appeal was dismissed - It was held that haing reference to the facts of the case and legislaion, no coert sureillance had been conducted by the council and as a consequence, it was not necessary to decide whether it could hae been consituted intrusie or directed sureillance

21 NON- DOMESTIC RATE (LIABILITY - OCCUPATION) Makro ProperIes Ltd Nuneaton & Bedworth BC 28 th June 2012 High Court (Queen s Bench Diision) (His Hon Judge Jarman QC) Reference This was an appeal to the High Court from a decision of a Magistrates Court issuing liability orders against Makro ProperIes Ltd. In respect of unoccupied property rates for the raing years 2009 to 2011 on a retail warehouse at Silerstone Drie, Rowley s Green, Coentry together with costs and a liability order for costs against Makro Self Serice Wholesalers Ltd

22 Makro ProperIes Ltd Nuneaton & Bedworth BC LegislaIon - SecIons 43 to 46 Local Goernment Finance Act Non- DomesIc RaIng (Unoccupied Property) (England) RegulaIons 2008 (S.I.2008/386) Key Facts - The Magistrates Court issued liability orders in respect of unoccupied property rates - It was argued by the ratepayer that pallets of paperwork (occupying 0.2%) was sufficient to consitute occupaion Decision - The appeal by the appellant must be allowed - OccupaIon was a maaer of law and the use (and intenion) must be taken in to consideraion (howeer slight any occupaion may be) with the acceptance that ratepayers will organise their affairs to aoid paying the rates

23 NON- DOMESTIC RATE (LIABILITY - UNOCCUPIED RATE) Porter (VO) Trustees of Gladman SIPPS 20 th May 2011 Upper Tribunal (Lands Chamber) (George Bartlea QC, President, and N J Rose FRICS) Reference This was an appeal to the Upper Tribunal (Lands Chamber) against a decision of Gloucestershire ValuaIon Tribunal that office units in a newly erected office building did not saisfy the requirements for entry in the raing list as hereditaments

24 Porter (VO) Trustees of Gladman SIPPS LegislaIon - SecIon 42, SecIon 45 and Schedule 4A Local Goernment Finance Act 1988 Key Facts - Before any compleion noice was sered, the aluaion officer entered a number of units in the local raing list - The material day was set at the 1 st May 2006 and all were unoccupied - ValuaIon officer argued that where there is no compleion noice, it was necessary to consider whether the building was pracically complete and ready for occupaion - The ValuaIon Tribunal did not accept this argument Decision - Appeal by the aluaion officer was dismissed - Nearly or ery ery nearly ready for occupaion not sufficient for entering a hereditament in the local raing list where no compleion noice issued - Obiter Dicta

25 NON- DOMESTIC RATE (LIABILITY UNOCCUPIED RATE) PrudenIal Assurance Company Ltd. A ValuaIon Officer 21 st June 2011 ValuaIon Tribunal for England (Professor G J Zellick QC, President & Mr MarIn Young (Vice- President) Reference This was an appeal to the ValuaIon Tribunal for England against a decision of the aluaion officer refusing to remoe from the 2005 raing list relaing to properies at 3 and 4, The Heights, Brooklands Road, Weybridge

26 PrudenIal Assurance Company Ltd. A ValuaIon Officer LegislaIon - SecIon 45 and Schedule 4A Local Goernment Finance Act 1988 Key Facts - The billing authority issued a compleion noice on the 24 th February 2004 addressed to the deeloper; not the owner - An agreement was reached between the owner and the billing authority in May The appellant (the owner) argued that the compleion noice was inalid as it was not sered on the owner and any subsequent agreement was immaterial Decision - Appeal by the owner was dismissed - The aluaion officer was enitled, indeed bound, to enter the properies in the list in consequence of and in accordance with the agreement

27 NON- DOMESTIC RATE (LIABILITY UNOCCUPIED RATE) Friends Life Company Ltd Alexander (VO) and HunIngdonshire DC 25 th June 2012 ValuaIon Tribunal for England (Professor G J Zellick QC, President) Reference This was an appeal to the ValuaIon Tribunal for England from a decision of the aluaion officer refusing to alter the 2010 raing list in response to a proposal made by the appellants to delete a hereditament as it was not complete and no compleion noice sered on the correct owner

28 Friends Life Company Ltd Alexander (VO) and HunIngdonshire DC LegislaIon - SecIon 45 and Schedule 4A Local Goernment Finance Act 1988 Key Facts - The billing authority sered a compleion noice in April 2007 on Miller Deelopments Ltd who were the deelopers and original owners - Ownership has subsequently passed to Friends Life in July 2006 (then named AXA Sun Life PLC) who were the appellants - The appellant argued the compleion noice was defecie and the hereditament should be remoed from the local raing list Decision - Appeal by the new owner was allowed - The compleion noice was not sered on the owner (and therefore inalid) which resulted in the hereditament being remoed from the local raing list

29 NON- DOMESTIC RATE (LIABILITY UNOCCUPIED RATE) Cosmopolitan Bellshill Ltd and Another North Lanarkshire C 31 st August 2012 Outer House, Court of Session (Lord Hodge) Reference This was an appeal to the Outer House, Court of Session seeking repayment of Unoccupied Rate amouning to 289, on the grounds the ratepayer had been charged (and paid) for fie years from 2006/07 on a new hereditament entered in the aluaion roll where no compleion noice was sered

30 Cosmopolitan Bellshill Ltd and Another North Lanarkshire C LegislaIon - SecIon 25 Local Goernment (Scotland) Act 1966 Key Facts - The assessor entered premises in the aluaion roll as an unoccupied office from 1 st December 2006 with an RV of 330,000 as it was saisfied the office was complete and capable of beneficial occupaion - No compleion noice was sered by the authority and no appeal was made against the entry in the aluaion roll - Demand noices were issued, the rate was paid and the ratepayer subsequently requested a refund as no compleion noice was sered Decision - ApplicaIon was dismissed - There was no requirement to sere a compleion noice; the 1966 Act being more akin to the Local Goernment Finance Act 1988 than the General Rate Act 1967 not be oerlooked

31 NON- DOMESTIC RATE (LIABILITY UNOCCUPIED RATE) Moffea Commissioner of ValuaIon for Northern Ireland 25 th September 2012 Northern Ireland ValuaIon Tribunal (J V Leonard (President), T Hopkins FRICS and A MarIn) Reference This was an appeal by wriaen representaions to the Northern Ireland ValuaIon Tribunal from a decision of the Commissioner issued on the 28 th May 2012 dismissing the appellant s appeal against a compleion noice issued on the 22 nd March 2012 staing a compleion day of the 7 th June 2012 in respect of 78 Ballagh Road, Beagh, Fiemiletown, County Tyrone

32 Moffea Commissioner of ValuaIon for Northern Ireland LegislaIon - Rates (Northern Ireland) Order 1977 Key Facts - A compleion noice was sered on the 22 nd March 2012 staing a compleion date of 7 th June An appeal was lodged with the commissioner on the 2 nd April 2012 staing the property was not complete and would be completed when the owner had aailable money to spend as his only source of income was from employment Decision - The appeal by the owner was dismissed - Personal and financial circumstances were held not to be a reason for defending the serice of a compleion noice; the intenion of the legislaion could not be ignored (i.e. to preent an owner from not compleing the property)

33 NON- DOMESTIC RATE (LIABILITY UNOCCUPIED RATE) English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd Grace (VO) and Lierpool CC 5 th February 2013 ValuaIon Tribunal for England (Professor G J Zellick QC, President) Reference These were appeals to the ValuaIon Tribunal for England against compleions noices sered on 5 St. Paul s Square (August 2008) and 4 St. Paul s Square in (March 2012) as either the correct owner was not named and / or the serice of separate noices in respect of each floor was unlawful

34 English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd Grace (VO) and Lierpool CC LegislaIon - SecIon 45 and Schedule 4A Local Goernment Finance Act 1988 Key Facts - Two compleion noices were sered by the billing authority:- * No. 5: it was accepted the correct owner and address had not been quoted and that muliple compleion noices had been issued * No. 4: it was accepted the owner and address were correct but that muliple Decision noices had been issued - The appeals were allowed:- * No. 5: The correct owner and address had to be quoted and as a result, the compleion noice was deemed inalid * No. s 4 & 5: Serice of muliple noices where the purpose was to fix a period that was less than the fair and reasonable period for doing the works that needed to be done was held unlawful The moral of this tale -

35 NON- DOMESTIC RATE (RELIEFS - CHARITIES, KINDRED ORGANISATIONS & CASC S) R (On the applicaion of AugusIne Housing Trust) Grays Magistrates Court 1 st February 2012 Court of Appeal (Carnwath LJ) Reference This was a renewed applicaion for permission to apply for judicial reiew of decisions of a Magistrates Court issuing liability orders for non- payment of Non- DomesIc Rate on Suite A and the acant first floor on first floor of Groer House, Groer Walk, Thurrock

36 R (On the applicaion of AugusIne Housing Trust) Gray s Magistrates Court LegislaIon - SecIons 43 and 45 Local Goernment Finance Act 1988 Key Facts - Two liability orders (separate addresses one occupied and one unoccupied) were issued against the defendants without any charitable relief awarded - The claimant objected to being asked to proide accounts; the billing authority should rely on the fact they were a registered charity Decision - ApplicaIon by the ratepayer for judicial reiew was again refused - The billing authority were enitled to ask for any releant informaion (including accounts) that they beliee will help them in reaching a decision (Note: Case stated judicial reiew)

37 NON- DOMESTIC RATE (RELIEFS - CHARITIES, KINDRED ORGANISATIONS & CASC S) Preston CC V Oyston Angel Charity 19 th July 2012 High Court (Queen s Bench Diision) (Hickinboaom J) Reference This was an appeal to the High Court from a decision of a Magistrate s Court refusing the council s applicaion for liability orders against the respondent for unpaid rates on unoccupied units at Oyston Mill, Stand Road, Preston

38 Preston CC V Oyston Angel Charity LegislaIon - SecIons 43 and 45 Local Goernment Finance Act 1988 Key Facts - Oyston Angel Charity were held liable for the unoccupied rate as the person enitled to possession - The Magistrate s Court concluded that it did appear that the respondent would next occupy and use the property Decision - The High Court dismissed the appeal from the billing authority - The wording it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes (whether of that charity or of that and other chari7es) were unambiguously clear and meant used for charitable objects of the owning charity, accompanied or not by other charitable purposes, and the requirement for it to appear addiionally that when the property was next used, the owning charity would occupy and use the property could not be read in

39 NON- DOMESTIC RATE (RELIEFS - CHARITIES, KINDRED ORGANISATIONS & CASC S) Kenya Aid Programme Sheffield CC 22 nd January 2013 High Court (Queen s Bench Diision) (Treacy LJ and King J) Reference This was an appeal to the High Court from a decision of a Magistrate s Court to issue liability orders for non- domesic rate in respect of units 1 and 2 Europa Way, Sheffield for the period 9 th September 2010 to 31 st March 2012 in the sum of 863, and 750, respeciely and an applicaion for judicial reiew on the same grounds

40 Kenya Aid Programme Sheffield CC LegislaIon - SecIons 43 and 45 Local Goernment Finance Act 1988 Key Facts - Two liability orders were issued against the ratepayer on two separate properies - The Magistrate s Court had concluded that on the eidence aailable, the properies were not wholly or mainly used for charitable purposes Decision - The High Court allowed the appeal but refused the applicaion for judicial reiew - Whilst the Magistrate s Court was enitled to look at the whole eidence and decide on on a broad basis whether the premises were being used wholly or mainly for charitable purposes, the court wrongly took account of other factors or did not analyse them sufficiently (i.e. the efficiency or otherwise of the furniture storage, the necessity for the ratepayer to occupy both premises, the mutual adantages to the ratepayer and the landlord and the significance of reenue generated for the ratepayer) - Judicial reiew was not considered to be the appropriate remedy

41 NON- DOMESTIC RATE (RECOVERY) Tower Hamlets LBC V Rahman 16 th October 2012 High Court (Queen s Bench Diision) (Kenneth Parker J) Reference This was a case stated on appeal from a decision of a Magistrates Court to re- open and then set aside liability orders made against the respondent for non payment of non- domesic rate on two premises in London

42 Tower Hamlets LBC V Rahman LegislaIon - Schedule 9 Local Goernment Finance Act Non- DomesIc Rate (CollecIon and Enforcement) RegulaIons 1989 (S.I.1989/1058) Key Facts - The Magistrates Court reopened and set aside three liability orders made in January and Noember 2008 for non- payment of non- domesic rate on two premises in London - The reasons gien were:- * There was a dispute oer liability (why would he be here otherwise) * An error had been made * The ratepayer had acted promptly Decision - The appeal by the billing authority must be allowed - The magistrates had found there existed a dispute as to liability for the rates but failed to address whether it was arguable and failed to idenify clearly a procedural error which led to the making of the liability orders

43 CONTACT DETAILS Gary L Watson IRRV (Hons) (Deputy Chief ExecuIe IRRV) Telephone E- Mail Gary.watson@irr.org.uk

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