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TMI Blog1957 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... opt the same convenient course. The events given rise to this appeal are fully set out in the case stated and are summarized in the judgment of the Master of the Rolls. I gratefully accept his summary and shall not repeat it. The questions for determination before the Special Commissioner were: (a) whether Brentford itself was carrying on a trade on its own behalf of selling tyres to person outside the United Kingdom; and, if not, (b) whether Akron was exercising within the United Kingdom a trade of selling tyres to persons outside the United Kingdom, and, if so, (c) whether that trade was carried on by Akron through the agency of Brentford. The Special Commissioners answered question (a) in the negative and the Crown has not sought to contest this decision, so your Lordships are only concerned with question (b) and (c). The relevant provisions of the Income Tax Act 1918, are as follows:- The Income Tax Act, 1918, Schedule E, para. (1) provides: Tax under this Schedule shall be charged in respect of-(a) The annual profits or gains arising or accruing-...(iii) to any person, whether a British subject or not, although not resident in the United Ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impossible to hold that the mere placing of an order with any one of the listed manufacturers would, without more, oblige that manufacturer to deliver the tyres ordered. As between the distributor and the listed manufacturer the matter must have been one of offer and acceptance, that is to say, an order placed by the distributor with the manufacturer and accepted by the latter. The order and its acceptance would alone constitute the effective contract under which the distributor could call upon the manufacturer to deliver the tyres ordered, and would be bound on his own part to take and pay for them. Such contracts in the case of Brentford would be made in England as the place of acceptance. On applying this view of the contractual position to the facts found, it appears that during the material period Brentford was selling to distributors abroad, under contracts made in the United Kingdom, tyres manufactured by Brentford in the United Kingdom, and deliverable in the United Kingdom to the purchasers thereof against payment in the United Kingdom of the contract price; and, furthermore, was in fact effecting delivery of and receiving payment for such tyres in the United Kingdom. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the four courts by whom their case has been heard has differed from the others in the decision given, nor has there been a dissentient voice here or in the Court of Appeal; and this despite a full and careful presentation on the appellants' behalf of all the arguments that might lead to a contrary result. In my view, what needs to be said has already been said in the other courts and in the speech of my noble and learned friend on the Woolsack. I propose to say, therefore, only in the briefest way where it is that I think that the appellants' argument breaks down. The question before the Special Commissioner was whether the American company, styled Akron in the case stated, was exercising a trade within the United Kingdom. I omit for the moment the subsidiary question whether, it so, the English company styled Brentford was its regular agent for the purpose of assessment. The question whether a trade has been exercised within the United Kingdom is a question of fact in this sense, that, although the law must rule whether any given set of facts can amount to such an exercise or cannot but amount to such an exercise, it is for the Special Commissioners, within those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, much more, But, if crucial does not mean as much as this, it cannot mean more than that the law requires that great importance should be attached to the circumstance of the place of sale. It follows then that the place of sale will not be the determining factor if there are other circumstances present that outweigh its importance or unless there are no other circumstances that can. Since the courts have not attempted to lay down what those other circumstances are or may be, singly or in combination, and it would be, I believe neither right nor possible to try to do so. I think it true to say that within wide limits which determine what is a permissible conclusion, the question whether a trade is exercised within the United Kingdom remains, as it began, a question of fact for the Special Commissioners. In my opinion, therefore, Harman J. in the High Court and the Master of the Rolls in the Court of Appeal were well founded in laying stress on the observation of Atkin L.J. in F.L. smidth Co. v. Greenwood [1921] 3 K.B. 583, 593; 37 T.L.R. 949 (C.A.); Greenwood v. F.L. Smidth Co. [1922] 1 A.C. 417; 38 T.L.R. 421 (H.L.); The contracts in this case were made abroad. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements whereby Brentford agreed to hold goods of its own at the disposal of Akron and to sell the same on Akron's behalf to customers approved of by Akron and subject to term imposed by Akron; and, further, to account to Akron for the proceeds of the sales less the cost of the goods sold plus 5 per cent. There is nothing in law that prevents such a finding being made. It is a very natural description of the course of trading that was pursued. But, if so, the Special Commissioners were fully entitled to their conclusion that Akron was trading in the United Kingdom during the years of assessment and that Brentford had constituted themselves their regular agents for the purpose of this trade. The latter point seems to me to be involved almost of necessity in the reading of the facts which I have set out above. I would dismiss the appeal. LORD TUCKER. My Lords, I agree that the appeal should be dismissed for the reasons which have been stated by my noble and learned friends. LORD COHEN. My Lords, I agree that the appeal should be dismissed, and cannot usefully add any further reasons of my own. Appeal dismissed. Solicitors : Lovell, White King ; Solicitor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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