Agnew v. Ferguson [1903] ScotLR 40_636 (03 June 1903)

Agnew v. Ferguson [1903] ScotLR 40_636 (03 June 1903)

A tenant who pays income-tax on royalties without deduction is not barred from recovering the tax from the landlord; the statutory right to deduct is a privilege, and failure to exercise it does not extinguish the common law right to repayment under condictio indebiti.

Citation
[1903] ScotLR 40_636
Parties
Pursuer: John Agnew; Defender: Alexander Ferguson
Jurisdiction
Scotland
Judgment Date
03 June 1903
Procedural Posture
Civil / Reclaiming Note (appeal) From Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; pursuer entitled to expenses; cause remitted for inquiry as to amount due.
Legal Topics
Income Tax, Deduction of Tax, Condictio Indebiti, Royalties, Statutory Interpretation
Revenue Taxation Income Tax Deduction of Tax Condictio Indebiti Royalties Statutory Interpretation

Case Brief

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Parties

John Agnew

Pursuer

Alexander Ferguson

Defender

Procedural Posture

Civil / Reclaiming Note (appeal) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a lessee who paid income-tax on royalties without deduction can recover the tax from the landlord
  2. 2 Whether section 40 of the Income-Tax Act 1853 precludes recovery after payment
  3. 3 Whether common law condictio indebiti applies in such circumstances

Ratio Decidendi

A tenant who pays income-tax on royalties without deduction is not barred from recovering the tax from the landlord; the statutory right to deduct is a privilege, and failure to exercise it does not extinguish the common law right to repayment under condictio indebiti.

Court Disposition

Lord Ordinary's interlocutor recalled; pursuer entitled to expenses; cause remitted for inquiry as to amount due.

Orders

  • Recall of Lord Ordinary's interlocutor
  • Award of expenses to pursuer