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TMI Blog1956 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the said 'A' licence held before the war and as such were admissible expenses. The reference to replacement arises from the fact that originally in 1939 the A licence which this company had covered seven vehicles ; they were, in fact, what are called rigid tipper vehicles. In 1952, when the abortive application was made, their A licence, which, in the meantime, had been renewed with other variations, allowed but four articulated vehicles and the company proposed to increase the figure of four to the figure of seven which originally had been the number allowed in the year 1939. 3. The answer to the contention so stated which the Crown put forward was that the A licence was in the nature of a capital asset and that, accordingly, the legal expenses which had been incurred were capital expenditure not admissible in computing liability under Schedule D. The commissioners, again observing their terse form, stated their conclusion simply thus : that in view of the evidence produced before us the claim of the company had been established. 4. The Crown appealed to the High Court and the matter came before Vaisey J. Before him it is not in doubt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which the haulage contractor desires to use, the licence will authorize the use of a certain number-four, five or whatever it may be-and the contractor may only carry on his trade as a haulage contractor on the roads by use of the power-driven vehicles specified and with the limited number of trailers allowed. 7. We have also been told that there is a certain strict control kept in this matter (as the experience of the present appellants makes indeed manifest) : one cannot, so to speak, go and intrude into this business with any very high prospects of success. Apparently the licensing authority is concerned to see that no more persons than are really necessary for the economy of the trade carry on this business and that no more vehicles are used in the business than are really required. So in this case the appellants, who had carried on the business for some years, failed to get the authority to add to their fleet any one of the three additional articulated vehicles for which they sought authority. 8. One other matter of obvious fact may be mentioned in regard to licences : as must be commonly experienced, these articulated vehicles, like other vehicles, in cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All. ER 858, 862 ; [1956] 1 WLR 974, 978 ; [1957] 31 ITR 517, 523 : I have hesitated about this case, because I have had to draw inferences and make assumptions which may rest on rather insecure foundations, but, having regard to all the circumstances of the case, I think I am justified in dealing with the matter on the materials before me and forming the conclusion that this A licence is exactly comparable with and analogous to the licence granted in respect of licensed premises under the Licensing Acts. I think that the principle of the cases to which I have referred -which were cases, inter alia, of licences for licensed premises- really governs my decision in the present case. It is unfortunate that I have not some better information about these A licences, although one has been produced to me. 11. Mr. Talbot says-and he has really limited himself to this single point-that that judgment is based upon an assumption. The assumption is that the A licence is a capital asset, being (and Mr. Talbot quotes the words the judge used) exactly comparable with and analogous to a publican's excise licence. That assumption, says Mr. Talbot, is not in truth well founded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink it would be right for me) to lay down as a rule to govern necessarily all such cases in the future that A licences in the hands of businesses of this kind must be capital assets. I think that is unnecessary for this decision and I therefore do not say it, though I must not be supposed to be encouraging the possibility of a different view. 16. However that may be, I am satisfied that the assumption which the judge made was an assumption which certainly could be sensibly justified on such material as there was before him and had been before the commissioners : in other words, I am quite satisfied that this is not a case where I feel that the assumption is likely to involve the possibility of real injustice. That is a matter which will be relevant when I consider the question whether we should send it back in any case to the commissioners. 17. I also add this : that, although the judge did use the language (which I have already read) indicating on the face of it an exact parallel between an A licence and an excise licence, I think it would be unfair to the judge to say that he founded his judgment upon that precise similarity. He founded it, as I think, corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, I do not think it would be right now to give to this company, after hearings before the commissioners, the judge and the Court of Appeal, an opportunity to start all over again and try to present on the facts an entirely different case. 19. The principles on which this court will remit to the commissioners in order that they may, in effect, allow the taxpayer to start again were stated in Murphy v. Australian Machinery and Investment Co. Ltd. (1947-1948) 30 TC 244. Mr. King referred to the language used by Tucker, Somervell and Cohen L.JJ., and I need not take time by referring to it again ; it will suffice to say that the members of this court made it plain, I think, that in circumstances such as arise in this case it would not be in accordance with the proper practice of this court to exercise our discretion in the appellants' favor : something much more special would have to be presented than has been presented in this case to justify the court taking such a course. I have not forgotten what Lawrence J. said in Burston v. Inland Revenue Commissioners [1942] 24 TC 285, 291, but I do not think that the judge in that case qualified by his language anything which e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if this case were to be remitted, no doubt evidence could be called to show that in certain respects the A licence under the Road and Rail Traffic Act and the excise licence did differ in certain particulars. 24. The judge thereupon said [1956] 1 WLR 974, 979 ; [1957] 31 ITR 517, 522 : It seems to me that, quite apart from the cases, the matter must turn on ordinary principles. Then he discusses the ordinary principles. But then, a little later, he said [1956] 1 WLR 974, 980 ; [1957] 31 ITR 517, 523 : this 'A' licence in question is exactly comparable with and analogous to the licence granted in respect of licensed premises under the Licensing Act, and I think that the principle of the cases to which I have referred really governs my decision in the present case. That looks as though he was referring to the fact that he had discussed it on general principles, quite apart from the cases, and that they really governed his decision. 25. I daresay that, if he had had the opportunity of thinking longer about it, he might-as everybody might in the like circumstances-have phrased it rather differently, but I think it is perfectly plain that what he was sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e too. When the matter came before the General Commissioners it is quite plain, from the case stated and the extracts that my Lord has read, that the case that was made for the company was that these legal expenses were incurred in an attempt to obtain replacement of the A licence which the company had formerly had and the Crown, in answer to that, contended that the A licence was in the nature of a capital asset. 29. I think that at this stage, having gone from the commissioners to Vaisey J. and now to this court, the words of Lord President Clyde in R.A. Bird Co. v. Inland Revenue Commissioners 12 TC 785, 794 ; 1925 SC 186 : 1925 SLT 96 are peculiarly apposite. He said 12 TC 785, 794 ; 1925 SC 186 : 1925 SLT 96 : It is quite plain from the case, and from what parties say, that the appellant did not put before the commissioners any material other than is reproduced in the case, bearing on the alleged inadequacy. It seems to me that if we were to send this case back for further inquiry about this, we might be exposed, as far as I see, in almost any case, to an exactly similar application-whenever, in short, the appellant has not presented his case to the commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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