Scottish Court of Session Decisions

Mr William Miller, baker and spirit retailer, appealed against an assessment made upon him for the year 1887–88, of 12s. 6d., being the inhabited house-duty at the rate of 6d. per £ on £25, the annual rent of dwelling-house and shop occupied by him at 59 Main Street, Rutherglen.

The appellant was tenant and occupier from year to year of the above-mentioned premises at a cumulo rent of £25. The premises consisted of a front building of one storey and attics, and two back buildings separate from one another and attached to the front building. One back building had internal communication with the attics of the front building, and along with the attics was occupied by the appellant as his dwelling-honse. The other back building had internal communication with the ground floor of the front building, and was along with the said ground floor occupied by the appellant for the purposes of his business. There was no internal communication between the ground floor and the attics of the front building. It was agreed that if the premises occupied by the appellant as his dwelling-house and the premises occupied by him for the purposes of his business were to be deemed separate tenements, neither would be liable in house-duty in respect that the proportion of rental applicable to each tenement would be under £20.

The Commissioners after hearing parties sustained the appeal and discharged the assessment.

“ Note.—The decisions in the cases Nos. 22 and 23 referred to by the Surveyor ( Russell, 4 R. 1143, and Salmond, both decided by Lord Curriehill, March 6, 1877), were given solely on the terms of the 48 Geo. III. cap. 55, Schedule B. rule 33, which enacts that ‘All shops and warehouses which are attached to the dwelling-house or have any communication therewith, shall, in charging the said duties, be valued together with the dwelling-house.’ The exempting Act, 41 Vict. cap. 15, has since been passed, and provides (section 13, sub-section 1), that ‘when any house, being one property, shall be divided into and let in different tenements, and any of such tenements are occupied solely for the purposes of any trade or business,’ the premises occupied for the purpose of trade or business shall be exempt.

The Commissioners cannot distinguish between the present case and the case of Smiles v. Crooke, March 6, 1886, 13 R. 730, referred to by the appellant. They do not think that anything turns, as is suggested by the Surveyor, on the regularity of the structure of the premises, and on this point would refer to the earlier case of Corke v. Brims, July 7, 1883, 10 R. 1128, in which the dwelling-house was situated partly behind and partly above the business premises, and both opened into a common vestibule situated in the inside of the street door. The only real difference between Corke v. Brims and the present case is, that in the former case the dwelling-house and business premises were let to different tenants, while in the present case they are let to the same tenant. But in this respect the present case is identical with Smiles v. Crooke, which decided that the first sub-section of the 13th section of the 41 Vict. cap. 15, applied, and the exemption took effect even although the dwelling-house and business premises were let to the same tenant at a cumulo rent.”

At the request of the Surveyor the present case was presented under the Taxes Management Act 1880 for the opinion of the Court.

The Act 48 Geo. III. cap. 55, Schedule B, rule 33, enacts that “All shops and warehouses which are attached to the dwelling-house, or have any communication therewith, shall, in charging the said duties, be valued together with the dwelling-house.”

By the Act 41 Vict. cap. 15, sec. 13, sub-sec. 1, it is enacted that “When any house, being one property, shall be divided into and let in different tenements, and any of such tenements are occupied solely for the purposes of any trade or business,” the premises occupied for the purpose of trade or business shall be exempt.

Argued for the Surveyor—The dwelling-house and shop formed one assessable subject in the occupancy of one tenant, held at one cumulo rent, and was clearly chargeable under 3rd rule of Schedule B. of the Act 48 Geo. III. cap. 55. The premises were neither divided into nor let in different tenements as required by the recent statute. The case was entirely different from that of Smiles v. Crooke, where the premises consisted of four storeys, each forming a separate and distinct tenement.

At advising—