G A Roe & Sons Ltd v Commissioner of Stamps Attorney General of Belize
| Jurisdiction | Caribbean States |
| Judge | Justices Saunders,Anderson,Wit,Rajnauth-Lee,Mr Justice Burgess,Burgess,Mr Justice Saunders |
| Judgment Date | 17 November 2021 |
| Docket Number | CCJ Appeal No BZCV2021/001 |
| Year | 2021 |
| Court | Caribbean Court of Justice |
[2021] CCJ 12 (AJ) BZ
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
Mr Justice A Saunders, PCCJ
Mr Justice J Wit, JCCJ
Mr Justice W Anderson, JCCJ
Mme Justice M Rajnauth-Lee, JCCJ
Mr Justice A Burgess, JCCJ
CCJ Appeal No BZCV2021/001
BZ Civil Appeal No 1 of 2019
Mr Andrew Marshalleck SC, Mr Jaraad Ysaguirre, for the Appellant
Mrs Samantha Matute-Tucker for the Respondents
Cases referred to:
A-G v Carlton Bank (1899) 2 QB 158; American Express International Banking Corp v Hurley [1985] 3 All ER 564; Argosy Co Ltd v Inland Revenue Commissioner [1971] 1 WLR 514; Bartholomew and Persaud, Re (Trinidad and Tobago HC, 23 May 1979); Breen v Amalgamated Engineering Union [1971] 2 QB 175; Craven v White [1988] STC 476; Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949; G A Roe & Sons Ltd v Commissioner of Stamps (Belize HC, 18 January 2019); G A Roe & Sons Ltd v Commissioner of Stamps (Belize CA, 3 November 2020); Lap Shun Textiles Industrial Co Ltd v Collector of Stamp Revenue [1976] 1 All ER 833; MacNiven v Westmoreland Investments Ltd [2001] STC 237; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Parinv (Hatfield) Ltd v Inland Revenue Commissioners [1998] STC 305; PR v Income Tax Commissioner (1959) 2 WIR 149; Shell Canada Ltd v Canada 99 DTC 5669; Spencer v The Commonwealth of Australia (1908) 5 CLR 418; Stanyforth v Commissioners of Inland Revenue [1930] AC 339; Stockl v Rigura Pty Ltd (2004) 12 BPR 23,151; Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349; Whitney v Inland Revenue Commissioners [1926] AC 37; Windward Properties Ltd v Government of Saint Vincent and the Grenadines (1996) 47 WIR 189 (PC).
Legislation referred to:
Belize - Stamp Duties Act, Rev Ed 2011, Cap 64; United Kingdom - Stamp Act 1891;
Stamp Duties Management Act 1891.
Other Sources referred to:
Crosby N, Hutchison N, Lusht K, Valuations and their importance for real estate investments, in MacGregor B D, Schulz R and Green R K (eds), Companion to Real Estate Investments (Routledge 2018); International Valuation Standards (IVSC, 2017); International Valuation Standards Council, ‘International Valuation Standards 2020'; Schmidt P, ‘Debunking the forced sale myth!’ (2012) 13(1) INSLB 2.
Property — Conveyance on sale at public auction — Whether public auction forced sale — Stamp Duty — Whether Commissioner correctly exercised discretion in assessing stamp duty chargeable — Approach that should be taken by Commissioner in assessing stamp duty — Stamp Duty Act Cap 64, ss 28, 72, 73.
SUMMARY
G A Roe & Sons Limited (“the Company”) purchased a parcel of land (“the property”) from Belize Bank Limited (“the Bank”) at public auction. The price paid was $150,000.00. The Company paid $6,500.00 in stamp duties based on the consideration stated in the deed. The Commissioner of Stamps (“the Commissioner”) later determined that $150,000.00 did not represent the market value of the property. Pursuant to s 28 of the Stamp Duties Act (“the Act”), the Commissioner assessed the value at $335,000.00 and required the Company to pay further stamp duty based on that higher sum.
The Company was dissatisfied with the Commissioner's assessment and the manner in which the Commissioner went about the assessment. The Company initiated proceedings in the Supreme Court claiming, among other relief, an order to restrain collection of duty on the enhanced amount. The Company's claims were unsuccessful at the Supreme Court. An appeal to the Court of Appeal was also dismissed. The Company appealed to this Court.
The Commissioner's position is that her office was entitled to request and rely upon a valuation report from a reputable valuer and this was what she did. The Commissioner's view was that the price paid for any property should be taken into account, but that price is near meaningless if it is not based on some form of valuation. The assessed value done by experts is the most accurate valuation. Further, s 72(1) of the Act makes it clear that duty is paid on the value of the property or of the amount of the consideration, whichever is the greater.
The Court in a judgment authored by Saunders PCCJ found that the Commissioner's assessment should be set aside because the Commissioner did not follow the process that was required by s 28 of the Act. The Court held further that the Commissioner misled herself by regarding the consideration in the deed as meaningless on the premise that, because the sale occurred by public auction, it was a forced sale.
The Court noted that s 28(2) of the Act makes provision for the Commissioner to be furnished “with such evidence as they may think necessary in order to show to their satisfaction whether all the facts and circumstances affecting the instrument with regard to duty or the amount of duty chargeable thereon are fully and truly set forth therein.” Where there was an arm's length sale by public auction, the Commissioner should only disregard the stated consideration where there is evidence to warrant that course. There was no proper basis here upon which the Commissioner was entitled, without more, to arrive at the conclusion that the consideration expressed in the Deed was of little or no meaning. Far from being meaningless, the actual consideration produced by an arm's length transparent sale between a willing buyer and a willing seller is the best evidence of the value of land.
In a concurring judgment Burgess JCCJ stated that it cannot be gainsaid that s 28 of the Act has invested particularly wide assessment powers in the Commissioner. However, notwithstanding the subjective language of s 28, that section cannot be interpreted as conferring unbounded power on the Commissioner. The undoubted law is that no matter how broad a discretion may be framed, its exercise may only be in furtherance of the policy and objects of the Act. Section 28 reflects the revenue raising policy of the Act and is enacted in furtherance of the object of raising revenue on the instruments listed in Part IV of the Act: not on transactions or on persons. The power conferred on the Commissioner in s 28(1) is circumscribed by s 28(2). Section 28(2) is premised on the axiom that a Commissioner cannot properly assess an instrument to duty unless provided with the information necessary to enable them to do so.
Given the foregoing, Burgess JCCJ found that the Commissioner's assessment was not lawful as the Commissioner's s 28 discretion was not exercised in accordance with the steps set out in s 28(2), and the Commissioner also took into account extraneous considerations.
The appeal was therefore allowed.
Judgment of the Honourable Justices Saunders, Wit, Anderson, Rajnauth-Lee and Burgess
Delivered by The Honourable Mr Justice Saunders, President and Concurring Judgment of the Honourable Mr Justice Burgess
Delivered on the 17 th Day of November 2021
Judgment of the Honourable Mr Justice Saunders, PCCJ:
G A Roe & Sons Limited (“the Company”) purchased a parcel of land (“the property”) from Belize Bank Limited (“the Bank”) at public auction. The price paid was $150,000.00. The Company duly presented the deed of conveyance to the Land Titles Unit for registration and paid $6,500.00 in stamp duties based on the consideration stated in the deed. The Commissioner of Stamps (“the Commissioner”) later determined that $150,000.00 did not represent the market value of the property. The Commissioner assessed its value at $335,000.00 and required the Company to pay further stamp duty based on that higher sum.
The Company was dissatisfied with the Commissioner's assessment and the manner in which the Commissioner went about the assessment. It had the option of utilising a provision in the Stamp Duties Act (“the Act”) to challenge the assessment. Instead of pursuing that route, the Company initiated proceedings in the Supreme Court claiming, among other relief, an order to restrain collection of duty on the enhanced amount. The Company also claimed a number of declarations. The declarations were essentially to the effect that the Commissioner was only entitled to levy duty on “the real value” of the land and that the price negotiated between a vendor and purchaser at a bona fide arm's length sale represents the best evidence of determining such value.
The Company's claims were unsuccessful at the Supreme Court. An appeal to the Court of Appeal was also dismissed. The Company has appealed to this Court. We have decided to allow the appeal for the reasons that follow.
The factual background to the case admits of little dispute. The Bank had held a mortgage on the property. The mortgagor defaulted on their obligations and the Bank decided to exercise the power of sale conferred by the Deed of Mortgage. We have heard nothing directly from the Bank, but the Company claimed, and it was not disputed, that the property had been put up for sale by the Bank “for a number of years” and that the Company's offer of $150,000.00 was the highest bid at a duly advertised public auction sale. As far as the Company was concerned, a) this was a bona fide sale held in the open market; b) its successful bid represented the best evidence of the fair market value of the property; c) the Commissioner arrived at her enhanced value of $335,000.00 without requiring the production of any evidence that might either substantiate or challenge the previous two facts; and d) the Commissioner's assessment should be set aside because she was only entitled to find an alternative valuation in circumstances where there was some evidence impugning the propriety or legitimacy of the price arrived at via the public auction sale.
The Commissioner's position is that her office is ultimately...
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