Duke Of Westminster Research Articles

DEVELOPING THE SUBSTANCE OVER FORM DOCTRINE IN TAXATION AFTER THE JUDGEMENT IN COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE v NWK

In 1936 Lord Tomlin in IRC v Duke of Westminster (hereafter ‘Duke’)1 concluded that it is trite law that every man (and woman) is entitled to arrange his or her affairs as to pay the least amount of tax under the appropriate statutes. This sentiment has been a cornerstone of South African tax jurisprudence and was again repeated in Commissioner for the South African Revenue Service v NWK Ltd (hereafter ‘NWK’).2 This broad liberty in arranging one’s own tax affairs has, however, led some taxpayers to dress up their transactions and hide their’ true nature as to ‘either … secure some advantage which otherwise [the law] would not give, or to escape some duty which otherwise the law would impose’.3 The most prominent tool the courts can use to try and curb this type of abuse is the General Anti-Avoidance Rules (hereafter ‘GAAR’) in Section 80A to 80L of the Income Tax Act 58 of 1962 (hereafter ‘the Act’), other specific anti-avoidance provisions in the Act4 and the substance over form doctrine (hereafter ‘the doctrine’). This article is a reflection on the taxation in South Africa, but specifically anti-avoidance provisions as provided by legislation.

GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

A Comedian Sees the World

A Comedian Sees the World

GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Abroad

Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

The Role of the Estates: From Agriculture to Urbiculture

AbstractLarge swathes of London's West End remain under the ownership of the Great Estates, with the Grosvenor Estate (Duke of Westminster) owning much of Mayfair and the Cadogan family (Earl of Cadogan) much of Chelsea. Terry Farrell looks at how this long‐term custodianship has impacted on the development of the fabric of the city and its strong sense of place. He explains how it is a model that he has tried to draw from in his own Earl's Court masterplan. Copyright © 2012 John Wiley & Sons, Ltd.

Remember Lot's Wife: Interpretation of Tax Statutes

The common law has over several centuries developed rules of or guides to statutory interpretation. These rules are usually referred to as canons of statutory construction or canons of statutory interpretation. Although tax statutes are (allegedly?) a special breed of legislation, they are nevertheless statutes, and it is submitted here that the canons of statutory interpretation may be employed freely in the interpretation of tax statutes, almost, though not quite, as much as they are used in statutory interpretation generally. In the evolution of the canons of statutory construction, tax statutes have not been exempted from their beam. On the other hand, the received professional wisdom on tax statutory interpretation is that most of the canons are not suitable for construing this elite category of legislation. Indeed, going by some of the most eminent authorities, the Strict Constructionist Approach and the Literal Rule appear to be the only permissible guides to construing tax statutes. Lawyers love certainty of doctrine and precedent along with predictability of their application. They adopt a worshipful backward gaze at rigid precedent and stiffen their necks in the process. They are like Lot’s wife, who, having looked back, was turned into a pillar of salt , rigid and unyielding, unable to glance forward. Tax lawyers love to invoke Cape Brandy and Duke of Westminster, and then fold their arms, gleefully expecting a judicial “Amen!” to whatever fossilised jurisprudence they have uttered. Well, “nothing is certain except death and taxes” including the death of doctrines about the interpretation of taxes. International, or more precisely foreign, tax jurisprudence has hitherto guided the understanding of tax statutory interpretation among the legal community in Nigeria. Our regular courts, including even the Supreme Court, have contributed very little to tax law jurisprudence, and even less to tax statute interpretation. They have tended to feebly copy and paste Cape Brandy and Duke of Westminster. Cape Brandy and Duke of Westminster are no longer gospel truth. The simple, unvarnished truth is that our courts are scarcely learned in tax law. They take their guidance wherever they can find it- until now, from outside. With the advent of the new tax regime and the inauguration of the tax appeal tribunals, our courts can now look inward, even if downward, for inspiration on the growth of our tax jurisprudence especially as regards tax statutory interpretation. In this paper I essentially submit the proposition for your consideration that while taxes may be certain, their interpretive philosophy is not as settled as tax lawyers have been led to assume or would like to think. The paper therefore muddles the waters that you thought had long been calmed, in order to throw up the pebbles and coral reefs of discord entangled beneath, for possible disentanglement. The tax appeal tribunals, being specialist albeit inferior administrative tribunals, can lead the development of tax law jurisprudence. Appeals to the Federal High Court and thence higher up should provide the legal system with ample opportunities as sharpening the contours of our tax law, particularly in the matter of interpretation.

Do shifting baselines in natural history knowledge threaten the environment?

In an early guest editorial, the Duke of Westminster (1991)wrote of the conflict between human population pressureand the preservation of the countryside highlighting thepivotal role that science would play in mediating thisconflict. His editorial was a modified version of a speech hegave to graduates and their guests at the Award and Degreeceremony of environmental scientists at FarnboroughCollege of Technology, Hampshire UK on 12th December,1990. His message to these embryonic environmentalanalysts and conservation managers was that they were thetorch-bearers of the future and guardians of the country-side. The message was clear: to protect the environmentone must be able to comprehend and recognise its com-plexity and understand how its varied components interactand respond to change. To achieve this mission, we notonly need a cohort of well-educated environmental scien-tists, but also a general population with a reasonableunderstanding of nature. It is becoming apparent that weare in danger of having neither.Recently, we highlighted the lack of entomological andtaxonomic training in the United Kingdom and its likelydeleterious impact on the ability of future generations tomake sense of the world around them (Leather 2007,2009a, b; Leather and Quicke 2009). Similarly, Papworthet al. (2009) draw attention to the fact that due to theshifting baseline syndrome, whereby succeeding genera-tions set their perceptions of change based on their ownexperiences rather than from those of previous generations(Pauly 1995), conservation efforts are likely to be jeopar-dised. This effect will even stretch to the conservation ofcharismatic mega-fauna. As Papworth et al. point out, ifyou are unaware of the change around you then how canyou be expected to engage with the conservation of thatenvironment? A good example of this is a possibly apoc-ryphal story that was prevalent in the UK Forestry Com-mission in the 1990s. The story goes that in the 1950sduring the major afforestation of upland Britain with exoticconifers, an area of moorland outside a small Scottishvillage, was earmarked for planting with North Americanlodgepole pine. The local inhabitants were not happy andthe local newspaper was full of letters of protest com-plaining that the glorious scenery and dog walkingopportunities would be ruined by the planned forest plan-tation. Needless to say, the plantation was duly established.Forty years later, it became due for harvesting. The localpress was full of letters of protest from the nearby residentscomplaining that the glorious scenery and dog walkingopportunities would be ruined by the planned harvestingoperation. Human memories are indeed only a generationlong. Environmental degradation on the other hand isprobably permanent.Just as alarming, is the disappearance of natural historyboth from school curricula (Leather and Quicke 2009) andfrom the daily experience of the general populace partic-ularly those dwelling in urban environments; that is, themajority in all western countries (Cheeseman and Key2007). This is having a devastating effect on the publicknowledge base of plants and animals in general, andparticularly of invertebrates (Leather 2009b). The situationfor vertebrates is less desperate, although it is a sad factthat the most readily recognised mammals are likely to beexotics such as polar bears or tigers. In Germany, thegeneral public’s ability to recognise vertebrate species hasapparently not changed since the 1980s (Randler 2008),although a mean recognition score of 20 out of 54, peaking

Sir Kingsley Charles Dunham. 2 January 1910 – 5 April 2001 Elected FRS 1955

The history of the Dunham family goes back to the researches of Kingsley Dunham's grandfather, Rev. Charles Dunham (1848–1942), a Methodist Minister and diarist who, at the age of 72, brought together facts and recollections of the Dunham family. Apparently the family migrated from East Anglia and settled in the Bedford area for 200 years, centred on the village of Shillington. By the middle of the nineteenth century the family were bootmakers and shoemakers and moved to north London. Kingsley Dunham's father, Ernest Pedder Dunham, was trained in estate management at the Duke of Bedford's office in Trafalgar Square, and in 1904 he was given a position in the Pitt-Rivers estate office at Hinton St Mary, Dorset. To here he brought his bride, Edith Agnes Humphreys, to live at Newton House, Sturminster Newton. The first child, Kingsley Charles Dunham, was born on 2 January 1910. The family's time in Dorset was short, because Ernest Dunham's post came to an end in 1913 and be obtained a new appointment at Lord Boyne's estate office at Brancepeth near Durham. Although this estate was later sold to the Duke of Westminster, Ernest Dunham stayed on as agent throughout his career. Kingsley Dunham's mother Edith was a trained schoolteacher and chapel organist, and she gave him the foundations of his education and an introduction to music. Aged seven years he joined the school on the estate, Brancepeth Village School. Here he was well prepared to sit for a County Scholarship in the spring of 1921, when he was 11 years old. Dunham won the scholarship and entrance to the Durham Johnston School, a notable secondary school in the district. The teaching at the Johnston School was extremely efficient and he flourished, developing a particular interest in physical science and mathematics. His hobby was music and he was taught the organ at Durham Cathedral by the Canon Precentor, A.D. Culley. He was also a chorister at St Brandon's Church, Brancepeth, for five years, where, despite his Methodist background, the liturgy of the Anglican prayerbook made a deep and lasting impression. He was head of school in 1927 and sat for a Durham University Open Foundation Scholarship, winning a junior award. Thus, early in October 1927, aged 171/2, Dunham went up to Hatfield College, University of Durham, a scholar and later organ scholar. He was advised to read honours in chemistry with two auxiliary subjects, for which he chose physics and geology. The chemistry course was enjoyable, but the real joy was the geology course, with lectures on physical fundamentals given by Professor Arthur Holmes (FRS 1942) and practical work and fieldwork with Dr William Hopkins. The geology course and particularly the fieldwork proved to be life changing. At the end of the first year, Dunham was encouraged to continue with geology and found himself the only honours candidate in geology in his year, with almost individual attention from Professor Holmes and Dr Hopkins.

Collecting Taxes

This paper provides an account of the nature and development of tax law. The author argues that tax law touches human activities to the extent that it is an accurate predictor of human and corporate behaviour. The paper examines several prominent tax cases, including Sir Ivor Richardson's involvement in the Duke of Westminster, Europa Oil and Re Securitibank decisions. In particular, the author discusses Sir Ivor's "no halfway house" rule (which focuses on the true nature of any given transaction by a consideration of the legal character of the agreement which embodies the transaction). The importance of the "no halfway house" rule is discussed through several tax cases. Finally, the author argues that even rational judges tend to adopt a "pure gut" response to tax disputes. In light of all of the above, the author praises Sir Ivor's impact on tax law, stating that his judgments would be sure to have an enduring benefit.

»... Is Said to Follow the Light of the Sun »: Van Dycks Selbstbildnis mit der Sonnenblume

The writer discusses a self-portrait by Anthonie van Dyk in the Duke of Westminster's collection. The oil painting, traditionally dated to 1632–33, shows the artist beside a splendid sunflower and wearing a gold chain like one presented to him by King Charles I, who ennobled him in 1632. The richly allusive work, which was designed to promote van Dyk's work by appealing to his educated aristocratic patrons, likens the artist to a sun on the firmament of art.

Professor Sir Kingsley Dunham, 1910–2001

Kingsley Charles Dunham, who died in Durham at the age of 91 on 5 April 2001, was born in the Dorset village of Sturminster Newton on 2 January 1910, the only child of Ernest Pedder Dunham and his wife Edith Agnes. However, when he was three the family moved to Brancepeth, near Durham, where his father managed the estate, successively as Land Agent to Viscount Boyne and the Duke of Westminster. His early education was at the village school in Brancepeth, followed by the Durham Johnston School. With strong support and encouragement from his parents, he matriculated well and gained entrance to the University of Durham as a Foundation Scholar at Hatfield College in 1927. This scholarship partly related to him being a talented musician (piano, taught by his mother, and organ, with lessons given by Canon Culley at Durham Cathedral) and he was the College chapel organist. Having gone up to the University to read Honours Chemistry, Dunham became captivated by the lectures of Arthur Holmes, then Professor in Durham, and transferred to Honours Geology, in which he was the only candidate, receiving individual tuition from Holmes and his lecturer Bill Hopkins. After graduating with a first-class honours BSc degree in 1930, he was offered a postgraduate studentship in Durham to work under Holmes and chose to research the genesis of the lead-zinc-fluorine-barium mineralization in the Northern Pennine Orefield, upon which he continued investigations throughout his life. A PhD degree for his thesis on the subject was awarded in 1932. Upon gaining a Commonwealth Fund Fellowship in 1932, study was undertaken in the USA at Harvard University, where he graduated MS in 1933 and, based upon a geological survey of the Organ Mountains for the New Mexico Bureau of Mines, SD in 1935. During this period, he also travelled …

It Could be You—But Would it be Fair?

Every Saturday, and every Wednesday, millions of people club together and give millions of pounds to a few people. The beneficiaries are not selected for their achievements, efforts, or personal qualities. They might be the most unsuccessful, lazy, and unpleasant of all the players; when there's a hint of this, the tabloids enjoy themselves, but the winner keeps her money. Nor are the winners given the money because they are most in need. They might easily be richer than many of the other players, even before collecting their prizes  there's nothing to stop the Duke of Westminster having a flutter. This can seem like a very unfair way of distributing money. But the players buy their tickets through choice, and even the losers benefit from the excitement of playing: perhaps it's just harmless fun.

The Onward March of Leasehold Enfranchisement

The Leasehold Reform, Housing and Urban Development Act 1993, which was introduced into the House of Commons on 22 October 1992 as the Housing and Urban Development Bill, finally reached the statute book on 20 July 1993.1 Part I of the Act, which is the subject of this note, came into force on 1 November 1993.2 Although popularly characterised as a radical measure, it is actually the latest stage in a process of reform which began in 1967 when the controversial Leasehold Reform Act3 first gave many occupiers of houses who hold under a long lease granted for a 'low (ground) rent,' a right to acquire compulsorily the freehold reversion to their property. This process is referred to as leasehold enfranchisement. As an alternative to enfranchisement, the 1967 Act also made provision for a qualifying tenant to extend his or her lease by claiming a new 50 year term at a ground rent for the site without the buildings. Part I of the 1993 Act extends the scope of the 1967 Act to the more expensive properties which until now had been excluded from its ambit. It also extends the principle of leasehold enfranchisement to flats which, for unconvincing reasons, had not been dealt with in 1967. The extension is by way of a new right of collective enfranchisement exercisable by tenants of flats over the freehold of the block of flats in which they live. The Act also confers on some tenants, who for some reason cannot or do not want to enfranchise collectively, the individual right to acquire a new long lease of the flat in substitution for the existing lease. Just as the 1967 Act proved to be controversial, not least in so far as it dealt with the price to be paid on enfranchisement, the most recent measure was also not without its vociferous critics. Foremost amongst the Act's opponents was the Duke of Westminster who, in a much publicised gesture, resigned from the Conservative Party. The criticisms of the Duke and other landlord opponents of the measure were voiced in both Houses of Parliament by Conservative Members who between them forced the Government to concede over three hundred amendments to the Bill

The Duke of Westminster's Graven Idol on Extending Property Authorities into Tax and Back Again

The author of this article argues that whilst a desire for uniformity and certainty in taxation law is both desirable and necessary, it should not and cannot be achieved simply by extrapolating general property and trust concepts and authorities into taxation law. Conversely taxation authorities cannot mechanically be cited as supporting property and trust principles. The result of simple extrapolation not only inhibits effective judicial response to tax avoidance by by-passing important policy considerations but also creates uncertainty by obscuring the real reason for the decision.

Victorian Duke: The Life of Hugh Lupus Grosvenor, First Duke of Westminster

Victorian Duke: The Life of Hugh Lupus Grosvenor, First Duke of Westminster

Inaugural Address of his Grace the Duke of Westminster, K.G., to the Annual Meeting of the Institute, Held at Chester

Inaugural Address of his Grace the Duke of Westminster, K.G., to the Annual Meeting of the Institute, Held at Chester

Chester New Museum

THE foundation-stone of this museum was laid on February 5 by the Duke of Westminster, K.G. We have previously referred to the work done by the Chester Natural Science Society, and the Archæological Society, whose joint museum is now to be placed in a permanent building, uniting under one roof accommodation for it, an art gallery, and every provision for Science and Art Department classes. The remains of ancient Chester, which came to light from time, found their way to the British Museum up to the year 1849, when the Rev. W. H. Massie, the Rector of St. Mary's-on-the-Hill, called a meeting to consider the formation of a museum, and a society was formed for “the illustration and preservation of the remains of antiquity and other objects of interest in the city and in the county.” The Society's “collection” was first housed in a cupboard at the Commercial Buildings; thence it was removed, first, to the Episcopal Palace in Abbey Square, afterwards to a house in Lower Bridge Road, to join the Museum of the Natural Science Society, whose collections are of considerable extent and essentially local in character, thanks to the marked love of nature and zeal for scientific research infused into many of the Chester citizens by the founder of the Society, the late Canon Kingsley, and the admirable rules for directing local investigation by which the Society is governed. Under the presidency of Prof. McKenny Hughes, the Society remains as vigorous as ever, as is the Archæological Society under that of Dean Howson, who, since the failing health of Mr. Thomas Hughes, F.S.A., to whom great credit is due, has taken an active interest in the Society, and in 1882 became the chairman of a joint committee to secure a building to answer all the requirements of science and art in Chester. This Committee selected a site in the Grosvenor Road, the greater part of which was at once placed at their disposal by the Duke of Westminster, who, moreover, headed the subscription list with the munificent sum of 4000l., to which the Committee have since received promises of sums amounting to a further 3500l.