Scottish Court of Session Decisions

This was an action at the instance of the Lord Advocate, on behalf of the Commissioners of Inland Revenue, against the Duke of Buccleuch and Queensberry, concluding for payment of £606, 1s 4d., the amount of the first, second,third, fourth, fifth, andsixthinstalmentsof the succession duty alleged to be payable by the defender in respect of the value of unlet shootings on landed estates in Scotland to which, or the income thereof, the defender became beneficially entitled as successor on the death of his father on 16th April 1884, with interest at the rate of 4 per cent, on each of the said six instalments of succession duty from the dates at which they respectively fell due.

The pursuer averred that the annual value of these shootings, as shown by the valuation roll at the date when the defender succeeded, was £6815, 5s. 7d., and that they formed part of the value of his succession. The pursuer further averred—“By section 21 of the Succession Duty Act of 1853 (16 and 17 Vict. c. 51) it is provided that the interest of every successor in real property shall be considered to be of the value of an annuity equal to the annual value of such property, payable from the date of his becoming entitled thereto, and every such annuity shall be valued according to the tables in the schedule annexed to the Act. The defender was fifty-two years old at the time the succession opened to him, and according to Table I annexed to the Act the value of an annuity of £6815, 53. 7d. sterling, for the life of a person of that age is £80, 808, 15s. 3d. sterling. The succession duty thereon, at the rate chargeable, 1 per cent., is £808, 1s. 9d. sterling. That duty, in terms of section 21, is payable by eight half-yearly instalments, the first being payable at the expiration of twelve months next after the date of the late Duke's death, and the remaining instalments at intervals of six months each thereafter. The first six instalments are already past due, having been respectively payable at the dates mentioned in the summons.”

The defender averred that the shootings of the Buccleuch and Queensberry estates had never been let prior to his succession, and that consequently they had yielded no income or profits, and that this was the .first claim which had been made for payment of succession duty upon the value of unlet shootings.

The pursuer pleaded—“(1) The annual value of the unlet shootings ought to be taken into account in ascertaining the value of the interest to which the defender became entitled on succeeding to his father in the said estates.”

The defender pleaded—“(1) The pursuer's statements are irrelevant and insufficient in law to support the conclusions of the summons. (2) The defender should be assoilzied, in respect that the said shootings were yielding no annual income when he succeeded, and had not previously been let.”

On 12th January 1888 the Lord Ordinary ( Fraser) repelled the first and second pleas for the defender, and granted leave to reclaim.

“ Opinion.—It was stated at the debate that this is the first case in which a claim for succession duty on unlet shootings has been made the subject of judicial discussion in Scotland, though the Revenue Department have been in use to make the claim and have exacted the

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duty, and it was also stated, and not contradicted, that such claims have been made and regularly sustained in England. The whole question turns upon the construction of the 21st section of the Succession Duty Act of 1853, which is in the following terms, so far as bearing upon the point here raised:—‘The interest of every successor, except as herein provided, in real property, shall be considered to be of the value of an annuity equal to the annual value of such property.’ The fact that by the Act 49 Vict. c. 15, unlet shootings must now be valued and enter the valuation roll has no bearing upon the question as to the liability for succession duty under the Act of 1853. The Valuation Act and the various amendments upon it were all subsequent to the Succession Duty Act, and consequently the only matter here to be determined is the construction of the 21st section of the latter Act. The defender admits that a proprietor cannot escape liability for duty merely by allowing his lands to go to waste. But, on the other hand, it is said that if he makes a reasonable use of his property, and if by such reasonable use no annual income is returned, then there is no liability. At the time when the succession here opened none of the shootings of the Duke of Buccleuch were let; they were all in his own hands, but how he disposed of the game there is no averment on the one side or the other. It must be assumed therefore in the Duke's favour that all the game obtained on the land was disposed of without pecuniary return therefor. And, taking the case upon that footing, what does it come to? He is the owner of property which admittedly has annual value, and such being the case, it comes within the very words of the Act of Parliament. The only case relied upon by the defender as bearing upon the question was that of the Attorney-General v. Sefton, 2 Hurlst & Colt, 362, 11 (H. of L. Cas.) 257, but the answer is that in that case it was admitted that there was no annual value derivable from the property, which is not the case here.”

Argued for the reclaimer—The question turned upon the meaning of the words “equal to the annual value of such property” in sec. 21 of the Succession Duty Act of 1853. If an ordinary and legitimate use of the lands was made, and there was no annual income, then no duty was exigible — Lord Advocate v. Marquis of Ailsa, October 28, 1881, 9 R. 40.

Argued for respondent—The shootings were part of the succession; they enhanced the value of the lands, and the valuation roll supplied a fair estimate of the rent which could have been obtained. The value of unlet shootings was taken into account in estimating provisions to widows and children under the Aberdeen Act— Leith v. Leith, June 10, 1862, 24 D. 1059; Macpherson v. Macpherson, May 24, 1839, 1 D. 794, and 5 Bell's App. 280; Menzies v. Menzies, March 10, 1852, 14 D. 651.

At advising—