| 21/8/2008 |
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| Court of Appeal - Decisions in Income Tax Cases |
| Case No: 56 |
Decided on 26 October, 1964 |
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Taxation Of Partner's Share In A Partnership When His Partner Absconded With All The Profits
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Taxpayer was the major shareholder in a partnership 'en nom collectif'. The partnership made substantial profits all which, however, were mis-appropriated by the junior partner who absconded and later died bankrupt. The Revenue assessed the taxpayer on his share of the profits on the grounds that the theft by the junior partner happened after the profits had come into existence and, vis-a-vis the taxpayer, this constituted application of income after it had arisen.
The Board disagreed, and applying the principle that receipt without receivability constitutes no income, over-ruled the Revenue's contention.
The Court upheld a new approach to the case suggested by the Revenue during the hearing. This was to the effect that the Income Tax Act itself stated that in cases where a trade or business is being carried on by two or more persons jointly (which terminology includes formal partnerships constituted under corporate law that stood to be considered as having separate judicial personality), each partner's share 'shall be deemed to be the share to which he was entitled...in the income of the partnership'.
The Court held that no usual principle of tax legislation, such as 'application of income'or 'receivability without receipt', was to be taken into account in view of the clear wording of the law. The Court quoted with approval U.K. case law on the subject which stated that the 'word deemed clearly indicates that you are not dealing with the actual share he might receive, but something which is deemed to be his share'.
BSC Case No: 4/63
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