Edwards v Warden/supervisor et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Kelsick, C. |
| Judgment Date | 17 May 1968 |
| Court | Tax Appeal Board (Trinidad and Tobago) |
| Docket Number | No. L1 of 1967 |
| Date | 17 May 1968 |
Tax Appeal Board
Kelsick, C; Burke, M.; Waterman, M.
No. L1 of 1967
J.B. Kelshall for the appellant
A. Warner (Assistant Solicitor General) for respondent
Revenue law - Property tax assessment — Petrol station — Mode of assessment.
This appeal raises two important issues of general importance. The first is whether there is any general authority to re-assess buildings (including machinery and plant) outside the municipalities at times other than the fifteen yearly intervals prescribed for the preparation of assessment rolls. The other question canvassed in this appeal is with regard to the proper mode of assessing the annual taxable value of petrol service stations outside the municipalities, and in particular whether the rental value should be based on the, throughput of petrol at the service station.
The appellant is the owner in fee simple of a parcel of land situate on the Southern Main Road at Couva in the County of Caroni on which a gas service station had been located and operated from before the year 1963 to the date of hearing of this appeal. The buildings and plant and machinery on the land are hereinafter referred to as “the Station” and the Station together with the land are hereinafter called “the property”.
The respondent is the authority who is empowered by the Land and Buildings Takes Ordinance, Ch. 33. No. 7 (hereinafter referred to as “the Ordinance”) to assess the annual taxable value (hereinafter referred to as “the A.T.V.”) of buildings in County Carom.
In 1963 and 1964 the property was assessed to land and building taxes in the sum of $83.75; in 1965 and in 1986 the tax was raised to $116.75 and $126 respectively. When the tax was in 1967 further increased to $371.34 the appellant made an objection to the respondent against the assessment, and when the assessment was confirmed he appealed to this Court.
There had been no additions to the property by way of buildings, machinery or plant between the dates of the assessments in 1963 and in 1967.
The provisions conferring the right of appeal, which are set out in sections 16 and 17(1) of the Ordinance, are as follows:–
“16.(1) It shall be lawful for any owner of any lands or buildings assessed under this Ordinance who objects to such assessment on the ground of unfairness or incorrectness, to appeal against such assessment to the Warden of the Ward in which such lands or buildings are situated.
(2) Such appeal must be in writing and must be lodged with the Warden, if the lands or buildings are entered in any published assessment roll or amended assessment roll, within thirty days after the publication thereof, and, if such lands or buildings are not so entered, within thirty days after receipt of notice of the addition to the assessment roll of such lands or buildings.
“17.(1) The Warden, on hearing the parties interested in the matter of such objection, shall have power to determine the same or to alter and amend such assessment in any particular objected, to, and the decision of the Warden shall be binding and conclusive on all parties, unless some party objecting to such decision, within five days next after the same has been made, causes notice in writing to be given to the Appeal Board and to the Warden of his intention of appealing against such decision; and the Appeal Board shall hear and determine such appeal, and may, in its discretion award such costs as it thinks proper to any party.”
There is a further right of appeal to the Court of Appeal, under ss. (2) to (5) of s. 17.
The tax on buildings is a prescribed percentage of the assessed A.T.v. The relevant provisions governing the assessment of the tax are contained in (1) and 9 of the Ordinance:–
“3.(1) On all lands and buildings ….. there shall be raised …… the following taxes-that is to say, on every acre and an every fractional part of an acre of land, an annual tax of twenty-four cents; …… and on every building the annual taxable value of which exceeds twenty-four dollars and annual tax at the rate of seven and one half per centum of such taxable value.
9.(1) In determining the annual taxable value of any building for the purposes of this Ordinance, the Warden shall, whether such building be actually rented or not, consider in every case what amount of annual rent a tenant may be reasonably expected to pay far such building and all machinery and plant therein, having regard to the purpose for which such building is actually used, or, in case it is not actually used or occupied, the purpose or purposes for which it is reasonably suitable.
(2) It shall be permissible for the Warden, in every case where he shall deem it expedient so to do, to calculate the annual taxable value of any building and/or the machinery and plant therein by taking sic per centum of the present capital value of the building and/or the, machinery and plant therein as the annual taxable value.”
The grounds of appeal are:–
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(a) The property assessed is in fact rented at a fixed rental, which represents its true rental value.
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(b) The Warden misdirected himself in that he assessed open land at more than 24 cents per acre contrary to section 3 of the Ordinance, Ch. 33. No. 7, and in that he assessed the rental value of the buildings thereon as a function of the profit made therein instead of at their true rental value.
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(c) The Warden did not have any legal right to alter the appellant's assessment as he purported to do from the figure of $63.75 to the figure of $371.34.
The last ground of appeal, which was added by leave at the outset of the hearing, was argued first and if it succeeds will effectively dispose of this appeal. I proceed therefore now to adjudicate on this ground of appeal.
The respondent relied on section 12(2) of the Ordinance for his right to revise the assessment. That section is worded as follows:–
“12.(1) Every assessment roll shall be published by the Warden on or before the 15th of February of the year in which it is to come into operation, and shall continue in operation during the fourteen years commencing on the 1st of January next ensuing and thereafter until a new assessment roll comes into operation.
(2) during the period commencing on the 1st of January for which such assessment roll continues in operation, the Warden shall mend the same by making such alterations and additions as may be required to make the same true and correct, but so that the previous writing in such assessment roll shall remain apparent.”
The valuer for the respondent (Mr. Pierre) caught to justify the assessment in 1967 because in his view the A.T.V. of the Station was much less than it should be when calculated under s. 9(1). His opinion was based on a survey of the petroleum market, which he carried out in 1965 to 1966. He thereupon prepared a valuation which was used by the respondent to re-assess the Station and to tax on the ground that the assessment, and therefore the tax, was not true and correct”.
The compilation of the roll and its contents, to which the amendments under section 12 are addressed, are provided far in section 8 of the Ordinance as follows:–
“8. In the year 198 and every subsequent fifteenth year, every Warden shall prepare an assessment roll for each Ward in his district from the records of his office, from the returns received by him under sections 5 and 6 of this Ordinance, and from the lists furnished him by the Registrar General under the Real Property Ordinance, of all lands and buildings within such Wards liable to the taxes imposed by this Ordinance showing:–
(a) the number assigned to the entry of such lands an the roll;
(b) the reference to the Real Property Register kept by the Registrar General, where such lands are under the provisions of the Real Property Ordinance;
(c) the names of the owners of such lands;
(d) the area and local situation of such lands;
(e) the number of buildings thereon;
(f) he amount of taxes payable in respect of such lands and buildings respectively; and
(g) the reference to the sectional ward map of the Ward in which such lands are situated.”
Prior to the amendment of sections 8 and 12 by Ordinance No. 11l of 1948:–
(a) the first nine words of s. 8 read “In the year 1921 and every subsequent third year”; and
(b) “two years” appeared in place of “fourteen years” in s.12(1); and “the second and third years” instead of “the period” in s.12(2).
In the absence of any evidence to the contrary, the presumption was made that, in compliance with section 8, an assessment roll for the County of Caroni was prepared in 1963, and that entered therein was the tax of $63.75 in respect e property.
Counsel for the respondent contended that section 12(2) confers a wide and unrestricted power on the Warden to reassess at any time the A.T.V. of any building entered in an assessment roll, and thereafter to delete the tax inserted in the roll in respect of such building and replace it by the revised tax ascertained e proscribed percentage of the new A.T.v. The power to “alter and amend” be maintained, is not expressed to be, and is not restricted to, minor errors or mistakes; and is exercisable wherever the A.T.V., on which the tax entered in the roll was based, was at the time of such entry, or subsequently thereto has become, inaccurate, either because:–
(i) the mode of assessing the A.T.V. was not the appropriate one; or
(ii) there has been an increase yr decrease in the A.T.V. owing to economic or social causes.
For either or both of these reasons it was claimed that the respondent was justified in reassessing the Station and consequently altering the tax thereon in assessment roll.
Other supporting contentions put forward by counsel for the respondent were that:–
(a) the Warden was...
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