Guild v Inland Revenue Commissioners [1990] UKHL 10

House of Lords
Between
GuildAppellantInland Revenue CommissionersRespondent
Before
Lord Keith of KinkelDate 27 February 1992
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutors of the 15th day of March 1991 complained of in the said Appeal be, and the same are hereby, Recalled and that the determination of the Commissioners of Inland Revenue of the 8th day of June 1990 be Set Aside: And it is further Ordered, That the said Cause be and the same is hereby remitted back to the Court of Session in Scotland to proceed as accords: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Expenses incurred by him in respect of the Action in the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And is is also further Ordered, That unless the Costs certified as aforesaid shall be paid to the Appellant entitled to the same within one calendar month from the date of the Certificate thereof the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland or to the Judge acting as Vacation Judge to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.Cler: Parliamentor:

Judgment: 27 February 1992

HOUSE OF LORDS

GUILD

(EXECUTOR NOMINATE OF THE LATE JAMES YOUNG RUSSELL)

(APPELLANT)

v.

COMMISSIONERS OF INLAND REVENUE

(RESPONDENTS)

(SCOTLAND)

Lord Keith of Kinkel Lord Roskill Lord Griffiths Lord Jauncey of Tullichettle Lord Lowry

LORD KEITH OF KINKEL

My Lords,The late James Young Russell ("the testator"), who resided in North Berwick, died on 11 September 1982 leaving a will dated 7 April 1971 in which, after bequeathing a number of pecuniary legacies he provided as follows:
"And I leave the whole, rest, residue and remainder of my said means and estate to the Town Council of North Berwick for the use in connection with the Sports Centre in North Berwick or some similar purpose in connection with sport and the receipt of the Treasurer for the time being of the Burgh of North Berwick shall be a sufficient receipt and discharge for my Executor."
At the time of the testator's death the town council of North Berwick had ceased to exist as a result of the coming into force on 16 May 1975 of section 1(5) of the Local Government (Scotland) Act 1973. The provision of sporting and recreational facilities in North Berwick and the surrounding area became the responsibility of East Lothian District Council, set up under the Act. The Sports Centre in North Berwick had been the property of the Town Council and as a result of the Act it became vested in the District Council, which undertook its operation and management.In these circumstances the present appellant, who is executor nominate under the testator's will, raised an action of multiplepoinding and exoneration in the Court of Session, in the course of which he lodged an administrative claim to be ranked and preferred to the fund in medio, being the residue of the testator's estate, for the purpose of applying to the court for approval of a cy-pres scheme. Claims were also lodged by the testator's heirs on intestacy and the appellant's administrativeclaim was supported by East Lothian District Council. By interlocutor dated 5 April 1986 the Lord Ordinary, Lord Jauncey, ranked and preferred the appellant to the fund in medio in terms of his administrative claim, holding that the terms of the bequest of residue evinced a general charitable intention, and that there was nothing to indicate that the selection of the Town Council to administer the bequest involved delectus personae (Russell's Executor v. Balden, 1989 S.L.T. 177). "The appellant then presented a petition to the Inner House for approval of a cy-pres scheme for the future administration of the bequest, and approval was duly granted on 14 June 1988. Nothing now turns on the terms of the cy-pres scheme so approved.Some time later, on 8 June 1990, the Commissioners of Inland Revenue, the present respondents, sent to the appellant a notice of determination to the effect that the transfer of value involved in the testator's bequest of residue was not an exempt transfer for the purposes of paragraph 10 of Schedule 6 to the Finance Act 1975. That was the Act, in force at the testator's death, which introduced capital transfer tax. There is no need for present purposes to consider the main provisions of the Act, since this appeal is concerned only with the exemption from the tax afforded to property which is given to charities. The exemption is contained in paragraph 10 of Schedule 6 to the Act, which provided so far as material:
"(1) Subject to the provisions of Part II of this Schedule, transfers of value are exempt to the extent that the values transferred by them- (a) are attributable to property which is given to charities; and
so far as made on or within one year of the death of the transferor, do not exceed £250,000.. . .(3) For the purposes of this paragraph property is given to charities if it becomes the property of charities or is held on trust for charitable purposes only."Under section 51 of the Act "charity" and "charitable" are stated to have the same meanings as in the Income Tax Acts. Section 360(3) of the Income and Corporation Taxes Act 1970 provides:
"In this section "charity" means any body of persons or trust established for charitable purposes only."
The appellant appealed against the respondent's determination to the First Division of the Court of Session as the Court of Exchequer in Scotland, under paragraph 7(3) of Schedule 4 to the Act of 1975. On 15 March 1991 that court by a majority (Lord President Hope and Lord Mayfield, Lord McCluskey dissenting) refused the appeal and affirmed the determination. The appellant now appeals to your Lordships' House.

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At one time it was being contended on behalf of the Crown that for the purpose of determining whether or not the exemption from tax of charitable bequests was available it was appropriate to have regard, not to the terms of the original bequest, but to the terms of the cy-pres scheme approved by the court. That contention, if correct, would have resolved the issue in favour of the Crown, since it is conceded that the purposes of the cy-pres scheme are not, strangely enough, charitable purposes only. The contention has, however, now been departed from. Before the First Division one of the arguments for the Crown was that during the period between the testator's death and the date when the cy-pres scheme became operative the residue of his estate was not "held on trust" within the meaning of paragraph 10(3) of Schedule 6 to the Act of 1975. That argument was unanimously rejected by their Lordships of the First Division and was not renewed before your Lordships' House. Counsel for the respondents did, however, argue another point upon which they were unsuccessful in the First Division, namely that the first part of the bequest failed to pass the requisite test since the purposes of the Sports Centre in North Berwick were not charitable purposes only. Counsel for the appellant, for their part, sought to overturn the decision of the First Division upon the point upon which they had, by a majority, failed there, namely whether or not the second part of the bequest, by its reference to "some similar purpose in connection with sport," was of such width as to admit the possibility of the funds being applied to provide some benefit of a non-charitable nature.A Scottish court, when faced with the task of construing and applying the words "charity" and "charitable" in a United Kingdom tax statute, must do so in accordance with the technical meaning of these words in English law: Commissioners for Special Purposes of the Income Tax v. Pemsel [1891] AC 531 ; I.R.C. v. City of Glasgow Police Athletic Association [1953] AC 380 . For tax purposes, and for them alone, the English law of charity is to be regarded as part of the law of Scotland. Lord Jauncey's decision in the action of multiplepoinding proceeded upon the general law of Scotland as regards charities, and, as the Glasgow Police Athletic case shows, the decision under the corresponding English common law rules would have been different. However, the Glasgow Police Athletic case and that of I.R.C. v. Baddeley [1955] AC 572 led to the Recreational Charities Act 1958, and it is that Act which the appellant invokes in his claim to the charitable exemption from capital transfer tax.Section 1 of the Act provides:
"(1) Subject to the provisions of this Act, it shall be and be deemed always to have been charitable to provide, or assist in the provision of, facilities for recreation or other leisure- time occupation, if the facilities are provided in the interests of social welfare:
Provided that nothing in this section shall be taken to derogate from the principle that a trust or institution to be charitable must be for the public benefit.(2) The requirements of the foregoing subsection that the facilities are provided in the interests of social welfare shall not be treated as satisfied unless-

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(a) the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; arid(b) either- (i) those persons have need of such facilities as aforesaid by reasons of their youth, age, infirmity or diablement, poverty or social and economic circumstances, or(ii) the facilities are to be available to the members or female members of the public at large.(3) Subject to the said requirement, subsection (1) of this section applies in particular to the provision of facilities at village halls, community centres and women's institutes, and to the provision and maintenance of grounds and building to be used for purposes of recreation or leisure-time occupation, and extends to the provision of facilities for those purposes by the organising of any activity."In the course of his argument in relation to the first branch of the bequest counsel for the respondents accepted that it assisted in the provision of facilities for recreation or other leisure time occupation within the meaning of subsection (1) of section 1 of the Act, and also that the requirement of public benefit in the proviso to the subsection was satisfied. It was further accepted that the facilities of the Sports Centre were available to the public at large so that the condition of subsection (2)(b)(ii) was satisfied. It was maintained, however, that these facilities were not provided "in the interests of social welfare" as required by subsection (1), because they did not meet the condition laid down in subsection (2)(a), namely that they should be "provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended." The reason why it was said that this condition was not met was that on a proper construction it involved that the facilities should be provided with the object of meeting a need for such facilities in people who suffered from a position of relative social disadvantage. Reliance was placed on a passage from the judgment of Walton J. in I.R.C. v. McMullen [1978] 1 W.L.R. 664. That was a case where the Football Association had set up a trust to provide facilities to encourage pupils of schools and universities in the United Kingdom to play association football and other games and sports. Walton J. held that the trust was not valid as one for the advancement of education nor did it satisfy section 1 of the Act of 1958. He said at p. 675, in relation to the words "social welfare" in subsection (1):
"In my view, however, these words in themselves indicate that there is some sort of deprivation - not, of course, by any means necessarily of money - which falls to be alleviated; and I think that this is made even clearer by the terms of subsection (2)(a). The facilities must be provided with the object of improving the conditions of life for persons for whom the facilities are primarily intended. In

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other words, they must be to some extent and in some way deprived persons"

When the case went to the Court of Appeal ([1979] 1 W.L.R. 130) the majority (Stamp and Orr L.JJ.) affirmed the judgment of Walton J. on both points, but Bridge L.J. dissented. As regards the Recreational Charities Act point he said at p. 142:
"I turn therefore to consider whether the object defined by clause 3(a) is charitable under the express terms of section 1 of the Recreational Charities Act 1958. Are the facilities for recreation contemplated in this clause to be 'provided in the interests of social welfare' under section 1(1)? If this phrase stood without further statutory elaboration, I should not hesitate to decide that sporting facilities for persons undergoing any formal process of education are provided in the interests of social welfare. Save in the sense that the interest of social welfare can only be served by the meeting of some social need, I cannot accept the judge's view that the interests of social welfare can only be served in relation to some 'deprived' class. The judge found this view reinforced by the requirement of subsection (2)(a) of section 1 that the facilities must be provided 'with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; . . . ' Here again I can see no reason to conclude that only the deprived can have their conditions of life improved. Hyde Park improves the conditions of life for residents in Mayfair and Belgravia as much as for those in Pimlico or the Portobello Road, and the village hall may improve the conditions of life for the squire and his family as well as for the cottagers. The persons for whom the facilities here are primarily intended are pupils of schools and universities, as defined in the trust deed, and these facilities are in my judgment unquestionably to be provided with the object of improving their conditions of life. Accordingly the ultimate question on which the application of the statute to this trust depends, is whether the requirements of section l(2)(b)(i) are satisfied on the ground that such pupils as a class have need of facilities for games or sports which will promote their physical education and development by reason either of their youth or of their social and economic circumstances, or both. The
overwhelming majority of pupils within the definition are young persons and the tiny minority of mature students can be ignored as de minimis. There cannot surely be any doubt that young persons as part of their education do need facilities for organised games and sports both by reason of their youth and by reason of their social and economic circumstances. They cannot provide such facilities for themselves but are dependent on what is provided for them."In the House of Lords the case was decided against the Crown upon the ground that the trust was one for the advancement of education, opinion being reserved on the point under the Recreational Charities Act. Lord Hailsham of St. Marylebone L.C. said ( [1981] AC 1 at p. 11):
"I do not wish my absence of decision on the third or fourth points to be interpreted as an indorsement of the majority

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judgments in the Court of Appeal nor as necessarily dissenting from the contrary views contained in the minority judgment of Bridge L.J."Reference was also made to the speech of Lord Denning in National Deposit Friendly Society Trustees v. Skegness U.D.C. [1959] A.C. 293, a case concerned with the meaning of "the advancement of ... social welfare" in section 2(1)(a) of the Rating and Valuation (Miscellaneous Provisions) Act 1955. Lord Denning said at pp. 322-323:"A person is commonly said to be engaged in 'social welfare' when he is engaged in doing good for others who are in need - in the sense that he does it, not for personal or private reasons - not because they are relatives or friends of his - but because they are members of the Community or of a portion of it who need help ... If a person is engaged in improving the conditions of life of others who are so placed as to be in need, he is engaged in 'social welfare"'.Counsel for the appellant, for his part, relied on part of the judgment of Lord MacDermott L.C.J. in Commissioner of Valuation for Northern Ireland v. Lurgan Borough Council [1968] N.I. 104. A local authority which was owner and occupier of an indoor swimming pool claimed exemption from rates in respect of it under section 2 of the Valuation (Ireland) Amendment Act 1854 on the ground inter alia that it was used exclusively for the purposes of a recreational charity under the Act of 1958. A majority of the Court of Appeal held that this ground of exemption was established. Lord MacDermott said at p. 126, having referred to section 1 of the Act:
"Here, I think, there can be no doubt that in the construction, equipment and running of this hereditament the Council has provided facilities for recreation. The big question is - have these facilities been provided 'in the interests of social welfare'? 'Social welfare' is a somewhat vague and uncertain expression. Taken by itself I still incline to the view I expressed in National Deposit Friendly Society Trustees v. Skegness Urban District Council, that it signifies something more than 'social well-being'. In the present context, however, I do not think it necessary to speculate as to the precise distinction to be drawn between these two expressions as subsection (2) of section 1, though not exactly a definition, provides in effect, in my opinion, the essential elements which must be present if a state of social well-being is to amount to 'social welfare' as that expression is used in the section. These elements are to be drawn from paragraphs (a) and (b) of subsection (2). By (a) the facilities must be provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended. To my mind the provision of the hereditament satisfies that requirement.

(a) would still

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be complied with. It is clear from the terms of the case stated that the hereditament was not only provided to improve the conditions of life for those for whom it was primarily intended, but that in fact it has done so. The full use which has been made of the hereditament since its inauguration is, I think, cogent evidence that it has filled a need in the life of the community and has added to the enjoyment of its members.
"The second requirement to be satisfied is one or other of the subparagraphs of paragraph (b). Of these alternatives I am of opinion that subparagraph (i) does not apply so as to support the Council's case. There is nothing in the case stated that I can see which shows that those benefited have need of the facilities provided by reason of any of the specific factors mentioned, ie. youth, age, infirmity or disablement, poverty or social and economic circumstances. But subparagraph (ii), on the views I have already expressed, is applicable for the facilities of the hereditament are available to the public at large."
In this passage Lord MacDermott makes the point that section 1(2) of the Act does not exactly contain a definition but that it does state the essential elements which must be present if the requirement that the facilities should be provided in the interests of social welfare is to be met. It is difficult to envisage a case where, although these essential elements are present, yet the facilities are not provided in the interests of social welfare. Nor do I consider that the reference to social welfare in subsection (1) can properly be held to colour subsection (2)(a) to the effect that the persons for whom the facilities are primarily intended must be confined to those persons who suffer from some form of social deprivation. That this is not so seems to me to follow from the alternative conditions expressed in subsection (2)(b). If it suffices that the facilities are to be available to the members of the public at large, as subparagraph (ii) provides, it must necessarily be inferred that the persons for whom the facilities are primarily intended are not to be confined to those who have need of them by reason of one of the forms of social deprivation mentioned in subparagraph (i).The fact is that persons in ail walks of life and all kinds of social circumstances may have their conditions of life improved by the provision of recreational facilities of suitable character. The proviso requiring public benefit excludes facilities of an undesirable nature. In my opinion the view expressed by Bridge L.J., as he then was, in I.R.C. v. McMullen is clearly correct and that of Walton J. in the same case is incorrect. Lord MacDermott in the Lurgan case plainly did not consider that the category of persons for whom the facilities were primarily intended was subject to any restriction. The observations of Lord Denning in the Skegness case are not relevant in the present context. I would therefore reject the argument that the facilities are not provided in the interests of social welfare unless they are provided with the object of improving the conditions of life for persons who suffer from some form of social disadvantage. It suffices if they are provided with the object of improving the conditions of life for members of the community generally. The Lord President, whose opinion contains a description of the facilities available at the Sports Centre which

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it is unnecessary to repeat, took the view that they were so provided. I respectfully agree, and indeed the contrary was not seriously maintained.It remains to consider the point upon which the appellant was unsuccessful before the First Division, namely whether or not the second branch of the bequest of residue, referring to "some similar purpose in connection with sport", is so widely expressed as to admit of the funds being applied in some manner which falls outside the requirements of section 1 of the Act of 1958. Counsel for the appellant invited your Lordships, in construing this part of the bequest, to adopt the benignant approach which has regularly been favoured in the interpretation of trust deeds capable of being regarded as evincing a charitable intention. That approach is appropriate where the language used is susceptible of two constructions one of which would make it void and the other effectual. (I.R.C. v. McMullen [1981] AC 1 , per Lord Hailsham of St. Marylebone at p. 14; Weir v. Crum-Brown [1908] AC 162 , per Lord Loreburn L.C. at p. 167). It was argued for the respondents that the benignant approach was not apt in the present case, since the question was not whether the trust was valid or invalid, but whether it qualified for exemption from tax by virtue of the Act of 1958. But the importation into Scots law, for tax purposes, of the technical English law of charities involves that a Scottish judge should approach any question of construction arising out of the language used in the relevant instrument in the same manner as would an English judge who had to consider its validity as a charitable gift. The English judge would adopt the benignant approach in setting about that task, and so the Scottish judge dealing with the tax consequences should do likewise.The matter for decision turns upon the ascertainment of the intention of the testator in using the words he did. The adjective "similar" connotes that there are points of resemblance between one thing and another. The points of resemblance here with the Sports Centre cannot be related only to location in North Berwick or to connection with sport. The first of these is plainly to be implied from the fact of the gift being to the Town Council of North Berwick and the second is expressly stated in the words under construction. So the resemblance to the Sports Centre which the testator had in mind must be ascertained by reference to some other characteristics possessed by it. The leading characteristics of the Sports Centre lie in the nature of the facilities which are provided there and the fact that those facilities are available to the public at large. These are the characteristics which enable it to satisfy section 1 of the Act of 1958. Adopting so far as necessary a benignant construction, I infer that the intention of the testator was that any other purpose to which the Town Council might apply the bequest or any part of it should also display those characteristics. In the result I am of opinion, the first part of the bequest having been found to be charitable within the meaning of section 1 of the Act of 1958, that the same is true of the second part, so that the funds in question qualify for exemption from capital transfer tax.My Lords,for these reasons I would allow the appeal and set aside the determination of the respondents. I would allow the appellant his costs here and his expenses before the Court of Session.

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LORD ROSKILL

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel, and for the reasons which he gives I would allow the appeal.

LORD GRIFFITHS

My Lords,I have had the advantage of reading the speech of my noble and learned friend, Lord Keith of Kinkel, and for the reasons which he gives I, too, would allow the appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Keith of Kinkel, and for the reasons which he gives I, too, would allow the appeal.

LORD LOWRY

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Keith of Kinkel, and for the reasons which he gives I, too, would allow the appeal.

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