1992 PLP 1107 (PTD)

LORD SCARMAN.

My Lords, in this appeal the Crown seeks to have restored the determination of the inspector of taxes that tax amounting to L2,033,254 is payable by the respondent corporation ("Oceanic") under Regulation 2,6 of the Income Talc (Employments) Regulations, 1973 (S.I. 1973 No. 334) (the P.A.Y.E. Regulations) for the year 1977-78. The issue is of great practical importance to the revenue and to Oceanic: it is also one of some legal difficult. The issue turns upon the true construction of section 204 of the Income and Corporation Taxes Act, 1970--section which imposes the P.A.Y.E. obligation. Oceanic is a foreign corporation registered in Panama: it is not resident in the United Kingdom for the purposes of income tax. Its operations are worldwide and include the provision of technical services and equipment to those who are engaged in the exploration and exploitation of the oil and gas resources of the North Sea. The issue in the appeal is whether Oceanic can be required to operate the P.A.Y.E. procedure for tax collection in respect of the wages and salaries of those of its work force whom it employs in the United Kingdom sector of the North Sea. It is conceded that the emoluments of these employees are assessable to British income-tax under Schedule E. Is that, by itself, enough to impose upon Oceanic the P.A.Y.E. obligation? The Crown submits that it is. If, however, it is not, the Crown's alternative submission is that Oceanic has by reason of its operations and trading activities in the United Kingdom and in the North Sea a sufficient presence in, or connection with, the United Kingdom to justify the revenue's requirement that it operate P.A.Y.E. in respect of the earnings of the personnel it employs in the United Kingdom sector of the North Sea. To these submissions the respondent makes reply as follows: in its submission, the anomalies and enforcement problems arising from an attempt to impose the P.A.Y.E. obligation upon a non-resident corporation paying emoluments abroad to persons who are working outside the United Kingdom are such that, even though those emoluments be (as they may well be) assessable to tax under Schedule E, Parliament cannot have intended to impose upon the employer the duties of deduction and collection of tax formulated in section 204 and the P.A.Y.E. Regulations: the section must be subject to an implied territorial limitation which would exclude its operation in such circumstances. The special commissioners upheld the respondent's submission. Dillon, J. (1981) 1 WLR 59, while he rejected the Crown's first submission because of its "worldwide" implications which he could not conceive Parliament intended and which he held to be inconsistent with the general rule that an Act of Parliament only applies to transactions within the United Kingdom, upheld the Crown's second submission, finding in section 38(6) of the Finance Act, 1973 (which it will be necessary to consider later) a sufficient link with the United Kingdom to justify the imposition of the P.A.Y.E. obligation in respect of emoluments arising from duties performed in the United Kingdom sector of the North Sea. He reversed, therefore, the determination of the special commissioners in favour of the respondent. The Court of Appeal (1982) 1 WLR 222 reversed the judgment. They considered section 38(6) of the Act of 1973, upon which the Judge relied, to be a charging provision affording no guidance as to the collecting liability imposed by section

204. They accepted the respondent's submission that some territorial limitation must be placed upon the section 204 liability. They refrained, however, from formulating the limitation. It was, in Brightman L.J.'s view, unnecessary to say more than that it must exclude a non-resident corporation making payments in circumstances such as those of this case. The facts have been lucidly set out by the special commissioners and summarised by Dillon, J. at the beginning of his judgment. It will suffice to mention specifically only the following: (1) Oceanic is not resident for income tax purposes in the United Kingdom. (2) It has, however, a design office at Wembley, a platform fabrication yard near Inverness, and a branch at Aberdeen providing skilled services in connection with its North Sea activities. It operates P.A.Y.E. in respect of employees at these establishments. (3) It accepts that it has a place of business within Great Britain and is liable to corporation tax on profits from its activities in the United Kingdom and in the United Kingdom sector of the North Sea, all of which are taxed as a single trade. It is an overseas company to which section 407 of the Companies Act, 1948 applies. It has complied with the; requirements of the section and has an address for service in Wembley. (4) The operating base for its North Sea activities is the port of Antwerp; the headquarters of its North Sea division are at Brussels. Its North Sea activities consist of installation and maintenance of platforms and the laying of pipelines in the United Kingdom and Norwegian sectors of the North Sea, for which purpose it operates barges out of Antwerp. (5) The work force employed on these operations was in 1977-78 several hundred strong (approximately 400 in 1977), of whom approximately 60 per cent. were United Kingdom nationals. They had written contracts not governed by English law. They were paid (in United States dollars) and employed outside the United Kingdom. The statutes The Continental Shelf Act, 1964 makes provision for the exploration and exploitation of the natural resources of the continental shelf outside territorial waters. Its purpose is to give effect to certain provisions of the Geneva Convention on the High Seas (April 1958) (Cmnd. 1929). The Act recognises that the United Kingdom sector of the North Sea continental shelf is not part of the United Kingdom: section 1 (1). The Act provides that areas of the continental shelf outside territorial waters may be designated by Order in Council as areas within which the United Kingdom may exercise rights of exploration and exploitation: section 1(7). Certain areas of the North Sea, compendiously described in these proceedings as "the United Kingdom sector of the North Sea" have been so designated. Consequential upon the Continental Shelf Act, section 38 of the Finance Act, 1973 made provision for the territorial extension of charge to income tax, capital gains tax, and corporation tax. Subsection (1) provides that the territorial sea of the United Kingdom shall for tax purposes be deemed to be part of the United Kingdom. Designated areas under the Act of 1964, which are by definition beyond the territorial sea, are not part of the United Kingdom. The section, however, extends the application of some of our tax laws to these areas. In particular, subsection (4) provides that profits or gains arising to any person not resident in the United Kingdom from exploration or exploitation activities carried on in the United Kingdom or in a designated area shall for the purposes of corporation tax or capital gains tax be treated as the profits or gains of a trade carried on in the United Kingdom through a branch or agency. The subsection brings such a person within section 246 of the Income and Corporation Taxes Act, 1970, thereby recognising a "tax presence" in the United Kingdom of a non-resident corporation if it be engaged by way of trade in exploration or exploitation activities in designated areas. Subsection (6) brings within the charge to income tax emoluments from an office or employment in respect of duties performed in a designated area: they are to be treated for the purposes of income tax as emoluments in respect of duties performed in the United Kingdom. In other words, they are chargeable to income tax under Schedule E. The effect of the section is, therefore: (1) that a non-resident corporation, which, like Oceanic, is engaged by way of trade in exploration or exploitation activities in the United Kingdom sector of the North Sea, is liable to corporation tax and capital gains tax in respect of the profits and gains of its trade there; and (2) that its employees engaged in the United Kingdom sector are liable to tax under Schedule E in respect of their earnings in the sector. Non-resident corporations and their employees are, therefore, in certain very important respects, subject to British tax laws in respect of their activities in the United Kingdom sector of the North Sea. I turn now to the Income and Corporation Taxes Act, 1970. Put very briefly, liability to tax depends, as it always has, upon the location of the source from which the taxable income is derived or the residence of the person whose income is to be taxed. If either the source of income or the residence of the owner of the income is in the United Kingdom, the income is liable to tax. The combination of this principle of income tax law with the provisions of section 38(6) of the Act of 1973 results in persons, whether or not resident in the United Kingdom, who are paid emoluments in respect of duties performed in the United Kingdom sector of the North Sea, being liable to income tax in respect of those emoluments. For the purposes of this appeal, the critical sections of the Income and Corporation Taxes Act; 1970 are sections 181 and 204, which provide for the charging and collection of income tax under Schedule E, and section 246 which imposes a corporation tax liability on a non-resident corporation in respect of the profits of a trade carried on through a branch or agency within the United Kingdom. Again, it is to be- noted that a tax liability can arise in the case of non-resident persons where the income, profit, or gains arise from activities carried on within the United Kingdom. Sections 181 and 204 bear directly on the issue of this appeal. Section 181 as amended by section 21 of the Finance Act, 1974 provides for the Schedule E charge to income tax. Tax under the Schedule is charged in respect of emoluments falling under one or more of three Cases: Case 1, where the employee is resident and ordinarily resident in the United Kingdom; Case II, in respect of duties performed in the United Kingdom where the person is not resident (or not ordinarily resident) in the United Kingdom; Case III, in respect of emoluments received in ' the United Kingdom by a person there resident. The Schedule E charge is, therefore, not limited to the income of United Kingdom residents but is imposed on non-residents in respect of duties performed in the United Kingdom. Section 204 imposes the P.A.Y.E. system of tax collection in respect of any income assessable under Schedule E. On the making of any payment on account of such income, the payer is to deduct the tax: subsection (1). The Board of Inland Revenue is to make regulations with respect to the assessment, charge, collection, and recovery of Schedule E tax; and these regulations may include (as, indeed, the Regulations made most assuredly do) provision for: (a) requiring the payer to make deduction according to tax tables prepared by the board, (b) the production for inspection of relevant documents and records, (c) the collection and recovery of the tax to be deducted. Criminal sanctions and penalties for failure to comply with P.A.Y.E. obligations arise under section 98 of the Taxes Management Act, 1970. Section 204 is general in terms. It contains no express territorial 'limitation upon the extent of the obligation it imposes. In particular, it is silent as to the place of payment, the currency in which payment is made, the residence of the person making payment, and the place of the contract pursuant to which the payments are made. It contains only two express limitations upon the extent of the liability it imposes: (1) the P.A.Y.E. obligation arises when the payment is made, and (2) it arises only in respect of income assessable under Schedule E. It is plain from the terms of the section and its position as the first section in the chapter dealing with the assessment, collection and recovery of Schedule E tax that Parliament intended P.A.Y.E. to be the primary method of Schedule E tax collection. Provision is, however, made by section 205 and Regulation 50 of the Regulations of 1973 for direct assessment upon and collection from the employee at the option either of the Board of Inland Revenue or the employee. To conclude this summary of the relevant statutory provisions, two propositions of law may be said to emerge with clarity: (1) residence is not a necessary condition of tax liability if there be otherwise a sufficient connection between the source of the income, profit, or gain and the United Kingdom; and (2) section 204, silent itself as to the territorial extent of the obligation it imposes, is a machinery section for the collection of Schedule E tax under Cases I and II. Case III is excluded because its charge arises on the receipt of income, whereas section 204 operates upon a person making a payment as and when he makes the payment. Subject a therefore, to the exclusion of Case III section 204 applies whenever a payment is made on account of income, unless it be necessary to imply some limitation not expressed in Schedule E itself. I would add that a review of the statutory provisions amply justifies Dillon, J. s comment (1981) 1 WLR 59, 66d, that "section 204 must apply where the duties of the office or employment are carried out within the United Kingdom, whether the employer is foreign or' not and whatever method be adopted for paying the emoluments for those duties." The principle of construction: The question being, therefore, whether there is to be implied into section 204 a territorial limitation further to those expressed in Schedule E, it becomes necessary to consider what principle of law would justify such an implication. It is well-settled law that English legislation is primarily territorial: Ex parte Blain (1879) 12 Ch.D.522, 528, per Brett, L.J. The principle was recognised and formulated (admittedly in language which now has echoes of world which has departed by the Court of Appeal in Ex parte Blain, and was commented on with approval by the Earl of Halsbury L.C. in Cooke v. Charles A. Vogeler Co. (1901) A.C.102, 107: Two passages from the judgments in Blain's case, 12 Ch.D.522 are directly relevant to the issue in this case. First, a passage from the judgment of James, L.J. At p. 526, he referred to the "broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of an English Court to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction ...But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation." And secondly, a passage from the judgment of Cotton L.J.at pp. 531 -532: "all laws of the English Parliament must be territorial--territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them, and also all aliens who come to this country, and who, during the time they are here, do any act which, on a fair interpretation of the statute as regards them, comes within its provisions .... If he is resident here temporarily, and does an act which comes within the intent and purview of a statute, he, as regards that statute, as does every alien who comes here in regard to all the laws of this realm, submits himself to the law, and must be dealt with accordingly. As regards an Englishman, a subject of the British Crown, it is not necessary that he should be here, if he has done that which the Act of Parliament says shall give jurisdiction, because he is bound by the Act by reason of his being a British subject, though, of course, in the case of a British subject not resident here, it may be a question on the construction of the Act of Parliament whether that which, if he had been resident here, would have brought him within the Act, has that effect when he is not resident here." Put into the language of today, the general principle being there stated is simply that, unless the contrary is expressly enacted or so plainly implied that the Courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction. Two points would seem to be clear: first, that the principle is a rule of construction only, and secondly, that it contemplates mere presence within the jurisdiction as sufficient to attract the application of British legislation. Certainly there is no general principle that the legislation of the United Kingdom is applicable only to British subjects or persons resident here. Merely to state such a proposition is to manifest its absurdity. Presence, not residence, is the test. . But, of course, the Income Tax Acts impose their own territorial limits. Parliament recognises the almost universally accepted principle that fiscal legislation is not enforceable outside the limits of the territorial sovereignty of the Kingdom. Fiscal legislation is, no doubt, drafted in the knowledge that it is the practice of nations not to enforce the fiscal legislation of other nations. But, in the absence of any clear indications to the contrary, it does not necessarily follow that Parliament has in its fiscal legislation intended any territorial limitation other than that imposed by such unenforceability: see Government of India v. Taylor (1955) A.C.491,

503. Indeed, British tax liability has never been exclusively limited to British subjects and foreigners resident within the jurisdiction. As long ago as 1889, Lord Herschell in the well-known case of Colquhoun v. Brooks (1889) 14 App. Cas. 493, 504, summarised the income tax position in one sentence (which received the approval of this House in Westminster Bank Executor and Trustee Co. (Channel Islands) Ltd. v. National Bank of Greece SA. (1971) A.C.945, 954): "The Income Tax Acts, however, themselves impose a territorial limit; either that from which the taxable income is derived must be situate in the United Kingdom or the person whose income is to be taxed must be resident there." In the light of these general considerations, I now turn to consider the issue of this appeal. The P.A.Y.E. obligation is the primary means established by law for the collection of tax charged under Schedule E. Section 204, which imposes the obligation, is the first section in the chapter dealing with the assessment, collection and recovery of Schedule E tax. In seeking the territorial limitations to which the liability imposed by the section is subject, it makes sense, therefore, at the outset of the search to consider the section in its Schedule E context. It is a section tied to the Schedule: its machinery of collection is available only in respect of Schedule E tax. And Schedule E has its own express territorial limitations. The operation of section 204 is, therefore, subject to them: that is to say, however, no more than that the. P.A.Y.E. obligation can arise only in respect of emoluments charged to tax under the Schedule. The possibility, that section 204 may have to be read subject to further limitation remains. The section itself contains no express territorial limitation. More particularly, it imposes the P.A.Y.E. obligation on making a payment on account of Schedule E emoluments without any limitation as to place of payment, the currency in which it is made or the residence of the payer. Is it then necessary to imply any further limitation? And, if any is to be implied, what is it to be? The persuasiveness of the Crown's submission lies in the attractive robe of logicality which it wears. How can it be necessary to -write into the section any territorial limitation other than the two specified in the two Schedule E Cases to which section 204 by its language plainly applies? To this question the respondent makes answer that it is inconceivable that Parliament should have intended the P.A.Y.E. obligation to be imposed on a foreign employer in respect of the emoluments paid outside the United Kingdom in a foreign currency to a person engaged in duties wholly performed outside the United Kingdom. Yet, if the Crown is right, the garb of logicality which it claims for its submission conceals extraordinarily far-reaching and anomalous consequences. How can the P.A.Y.E. duties be enforced? How can the system be made to work? How can it be supervised? How can the necessary documents be obtained for inspection -by the revenue, unless the foreign corporation is compliant? It all adds up to a practical impossibility of enforcing or monitoring the system against an uncooperative employer outside the United Kingdom making payments outside the United Kingdom. The difficulties are such that I have reached the conclusion that the Judge and the Court of Appeal were right to hold that some limitation other than those specified in Schedule E must be implied into section

204. It is perfectly true, as Mr. Potter Q.C. for the Crown urged, that there are situations where our tax laws recognise the existence of a tax liability even though the tax is not collectable and the tax obligation is unenforceable. But, in my view, the problems of construing section 204 so as to extend the duty it imposes to all income assessable under Cases I and II of Schedule E and the anomaly of the theoretical subjection of non-operative foreigners outside the United Kingdom to the penalties of non-compliance compel the conclusion that there must be some further limitation implied. I turn now to the alternative and narrower submission of the Crown. The Court of Appeal did not answer the question as to the extent of section 204 liability. In the words of Brightman L.J. (1982) 1 WLR 222, 234, they thought it "unnecessary to express a concluded view on this formulation of the section 204 liability. It is sufficient to say that the taxpayer company is not a United Kingdom company, or resident in the United Kingdom and does not make payments in this country to the employees of its North Sea division, without considering whether it would make all the difference if, for example, the taxpayer company were an individual with British nationality." They did, however, reject Dillon, J.'s view that the effect of section. 38(6) of the Act of 1973 was to extend the section 204 liability to cover a non-resident foreign, company making payments abroad to, employees engaged in performing duties in the United Kingdom sector of the North Sea. The Crown has formulated its submission in this House somewhat differently from the way in which the judge reached his decision. The judge relied exclusively upon section 38(6). The Crown, while adopting his view as to the importance of the subsection in establishing a link between the designated areas of the North Sea and the United Kingdom, did not, save perhaps by way of last resort, ask the House to treat the subsection as decisive in the interpretation of section

204. Their submission was . that in all the circumstances Oceanic had a sufficient. "tax presence" in the United kingdom to justify the imposition of the section 204 liability. It will be convenient to state the view which I have reached as to the true effect of section 38(6) before considering the Crown's argument. I agree with the Court of Appeal. The effect of the subsection is merely to render income earned in respect of duties performed in the United Kingdom sector of I the North Sea Assessable under Schedule E. Once the conclusion is reached that not all income assessable to Schedule E is subject to collection by P.A.Y.E., it cannot be decisive as to the formulation of the section 204 liability. It remains, however, an important indication. It goes some way towards establishing a company's presence in the United Kingdom in that the duties performed by a company's employees in the United Kingdom sector of the North Sea are to be treated for the purposes of income tax as performed within the United Kingdom. Is, then, the true limitation upon the section 204 liability the presence within the United Kingdom of the person making the payment, even though he be non-resident and the payment be made outside the United Kingdom? The "tax presence" concept was strongly attacked by Mr. Heyworth Talbot Q.C. for the respondent. He submitted that income-tax law knows nothing of such a concept as determinant of tax liability. Presence is only relevant as evidence of residence: and Oceanic is admitted to be a non-resident corporation. My Lords, I find nothing anomalous or contrary to principle in a "tax presence" being the determinant of the section 204 liability. The Schedule E charge to tax is not limited by reference to the residence of the employer paying the emoluments: it applies also to emoluments, whenever paid, in respect of duties performed in the United Kingdom. To imply into section 204 a limitation to employers resident in the United Kingdom would mean that a non-resident employer of persons working in the United Kingdom and paid in this country could escape the P.A.Y.E. obligation. This would mean that tax charged under Case II could not be collected by P.A.Y.E. even though there would in such circumstances be no practical difficulty in operating the system. Indeed, as your Lordships know, Oceanic itself operates P.A.Y.E. in respect of personnel employed by it in the United Kingdom. Schedule E contains the, territorial limitations upon the charge to tax. The only question is to determine in what circumstances the tax may be collected by P.A.Y.E. This question can' be answered by invoking an old principle, even though today it 'has a new name. The "tax presence" for which the Crown contends signifies no more and no less than that the foreigner in question, i.e., the employer who makes the payment on account of wages or salary, has by coining into this country made himself subject to United Kingdom jurisdiction: or, as Cotton, L.J. in Ex parte Blain, 12 Ch.D. 522, put it, he has for the time being brought himself within the allegiance of the legislating power. My Lords, it has been repeatedly, and correctly, asserted in argument that this appeal is not concerned with the charge to tax. Indeed, it is conceded that the income, tax upon which the revenue seeks to collect by P.A.Y.E., is chargeable under Schedule E. Residence of the taxpayer is, of course, one of the factors determining chargeability to tax. But the present case is concerned with the territorial limitation to be implied into a section which establishes a method of tax collection. The method is to require the person paying the income to deduct it from his payments and account for it to the revenue. The only critical factor, so far as collection is concerned, is whether in the circumstances it can be made effective. A trading presence in the United Kingdom will suffice. Upon the facts of this case a trading presence is made out. For the purposes of corporation tax Oceanic, it is agreed, carries on a trade in the United Kingdom which includes its operations in the United Kingdom sector of the North Sea. For the purpose of this trade it employs a workforce in that sector, whose earnings are assessable to British income-tax. Finally, Oceanic does have an address for service in the United Kingdom. It is not the least surprising that the special commissioners concluded that in Oceanic's case there would be no practical difficulties in operating P.A.Y.E. For these reasons I conclude that Oceanic by its trading operations within the, United Kingdom and in the United Kingdom sector of the North Sea has subjected itself to the liability to operate P.A.Y.E. in respect of those emoluments of its employees which are by section 38(6) of the Act of 1973 chargeable to British income tax. Oceanic must, therefore, operate P.A.Y.E. in respect of those emoluments. For these reasons I would allow the appeal and restore the order of the judge. The respondent must pay the appellant's costs in your Lordships' House, in the Court of Appeal and before the judge. LORD WILBERORCE,

My Lords, the issue in this appeal is whether the respondent company is obliged to operate the United Kingdom P.A.Y.E. system of tax collection by deducting tax from the wages of those of its employees who are engaged in exploration or exploitation activities in the United Kingdom sector of the North Sea. The respondent company is a foreign company incorporated in Panama; it is wholly controlled by a United States company whose main place of business is in the state of Louisiana. It claims that because it is neither a United Kingdom company nor "resident" in the United Kingdom it is not obliged to operate the P.A.Y.E. system. The special commissioners have found a number of detailed facts concerning the respondent's business and operations. It conducts certain operations in the United Kingdom, at Wembley, Aberdeen and Inverness, but this appeal does not relate to the company's employees in those places. Its North Sea operations consist, inter alia, of pipe-laying both in the United Kingdom sector and in other sectors; they are controlled from Antwerp, Belgium. It employs United Kingdom nationals as well as citizens of other countries; some, if not all, of the former are resident and ordinarily resident in the United Kingdom; Though 1 do not think that these facts are material, they are, in fact, employed under contracts not governed by English or Scottish law; they are paid abroad and in foreign currency. It is not disputed that the respondent company's employees in the United Kingdom sector of the North Sea are liable to United Kingdom income tax under Schedule E in respect of their pay for duties performed in that sector. But the respondent company contends that they are not liable to have tax deducted from their pay by their employer. The statutory scheme of deduction of tax from wages took shape in the Second World War, and was restated in the Income Tax Act, 1952. The operative provision is now section 204(1) of the Income and Corporation Taxes Act, 1970 which I reproduce: "On the making of any payment of, or on account of, any income assessable to income-tax under Schedule E, income-tax shall, subject to and in accordance with regulations made by the board under this section, be deducted or repaid by the person making the payment, notwithstanding that when the payment is made no assessment has been made in respect of the income and notwithstanding that the income is in whole or in part income for some year of assessment other than the year during which the payment is made." It is obvious that this section is expressed in general and unqualified terms sufficient to apply to the respondent company unless it can be qualified or cut down in some way. Subsection (2) provides for the making of regulations by the board with respect to the assessment, charge, collection and recovery of tax in respect of all income "assessable thereto under Schedule E" and provides that any such regulations shall have effect notwithstanding anything in the Income Tax Acts. It is under this subsection that the now familiar tax tables are made applicable as regards deduction of tax. In the present connection it is important to notice that the regulations may provide for the production to and inspection by tax officers of wages sheets and other documents so that they may satisfy themselves that tax has been correctly deducted and accounted for. The Income Tax (Employments) Regulations, 1973 are of an extremely detailed character amounting almost to a comprehensive code of provisions, which, if the revenue's contentions are correct, would have to be complied with by the respondent company. As regards records, it would be obliged (regulation 32) to produce at its premises all wages sheets, deduction cards and other documents and records whatsoever relating to the calculation or payment of the emoluments of its employees. By virtue of section 98 of the Taxes Managements Act, 1970, which expressly refers to these regulations, failure to comply with these obligations may attract a penalty. The effect of all these provisions is (a) that income tax is imposed on wages, not primarily on the wage earner, (b) that the tax is collectable by deduction by the employer who then becomes a statutory debtor in respect of it to the revenue; (c) that as; a fall-back, provision is made for direct assessment, where necessary, upon the employee. As to the United Kingdom sector of the North Sea, the legal position is as follows. Under the Continental Shelf Act, 1964 an area may be designated by order in Council as one in which rights with respect to the seabed and subsoil of the North Sea and their natural resources may be exercised by the United Kingdom: The United Kingdom sector is an area which has been so designated; its designation does not, of course, make it part of the United Kingdom. However, there are statutory provisions regarding the application of United. Kingdom Income-tax law in this area. (1) Under section 38(6) of the Finance Act, 1973 any emoluments from employment in respect of duties there performed in connection with exploration or exploitation activities (for this expression see section 38(2)(b)) are to be treated for purposes of income-tax as emoluments in respect of duties performed in the United Kingdom. This admittedly applies to the activities of the respondent company, so that their employees in the sector are chargeable to income tax under Schedule E, Case II in respect of their emoluments. (2) Section 38(4) of the same Act applies as regards the profits or gains of persons (including companies) operating in the area. I must quote it: "Any profits or gains arising to any person not resident in the United Kingdom from exploration or exploitation activities carried on in the United Kingdom or in a designated area or from exploration or exploitation rights, and any gains accruing to such a person on the disposal of such rights shall, for the purposes of corporation tax or capital gains tax, be treated as profits or gains of a trade, or gains accruing- on the disposal of assets used for the purposes of a trade, carried on by that person in the United Kingdom through a branch or agency." I regard this subsection as critical in this appeal. It quite clearly brings the respondent company within the net of United Kingdom corporation tax in respect of its profits from its activities (exploration or exploitation) in the United Kingdom sector. It does so by treating respondent as carrying on its trade through a branch or agency in the United Kingdom. This brings it within the taxing provision of section 246 of the Act of 1970 which states the tax position of companies not resident in the United Kingdom. Again, I must cite subsections (1) and (2): . "(1) A company not resident in the United Kingdom shall not be within the charge to corporation tax unless it carries on a trade in the United Kingdom through a branch or agency but, if it does so, it shall, subject to any exceptions provided for by the Corporation Tax Acts, be chargeable to corporation tax on all its chargeable profits wherever arising. (2) For purposes of corporation tax the chargeable profits of a company not resident in the United Kingdom but carrying on a trade there through a branch or agency shall be--(a) any trading income arising directly or indirectly through or from the branch or agency, and any income from property or rights used by, or held by or for, the branch or agency (but so that this paragraph shall not include distributions received from companies resident in the United Kingdom); ...." The combination of subsection (2)(a) with section 38 (4) of the Act of 1973 clearly makes the respondent chargeable to United Kingdom corporation tax in respect of the profits or gains of its North Sea operations, and since it has a registered address in the United Kingdom in compliance with section 407 of the Companies Act, 1948, this tax can be enforced against it. Returning to section 204 of the Act of 1970, the respondent company's contention is that though expressed in general terms, it must be limited in some way, limited, it suggests, by reference to the territorial principles of legislation. There is no doubt of the existence of such a general principle. "English legislation is primarily territorial" (per the Earl of Halsbury L.C. in Cooke v. Charles A. Vogeler Co. (1901) A.C.102, 107) or "prima facie territorial" (per Brett L.J. in Ex parte Blain, 12 Ch.D.522, 528). And the principle was expanded in the same case by James L.J. in often quoted words. There is, he said, at p.526, a "broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of an English Court to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction ...But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation." Lord Herschell applied this principle to income tax in Colquhoun v. Brooks, 14 App. Cas. 493, 504, in these words: "The Income Tax Acts, however, themselves impose a territorial limit; either that from which the taxable income is derived must-be situate in the United Kingdom or the person whose income is to be taxed must be resident there." This was a simple statement about liability to pay income tax and as such is still broadly correct. But since 1889 many extensions have been made in the law, and successive statutes must be examined to see what limit has been imposed in particular cases. The respondent company contends, and the Court of Appeal has held, that the provisions regarding collection of tax by deduction from wages can never have been intended to apply to a foreign company, non-resident in the United Kingdom, which makes payments outside the United Kingdom. In my opinion this contention is erroneous, because it is based upon a mistaken application or understanding of the "territorial principle". That principle, which is really a rule of construction of statutes expressed in general terms, and which as James L.J. said a "broad principle," requires an inquiry to be made as to the person with respect to whom Parliament is presumed, in the particular case, to be legislating. Who, it is to be asked, is within the legislative gasp, or intendment, of the statute under consideration? The contention being that, as regards companies, the statute cannot have been intended to apply to them if they are non-resident, one askes immediately--why not? As regards companies, non-residence in the United Kingdom is not the relevant criterion for freedom from corporation tax. That is not surprising given the difficulty of ascertaining where they do reside. The classic test, laid down judicially (and see section 482(7) of the Act of 1970 for its adoption in a context other than the present) is where its central management and control actually resides, or, in more homely language where it really keeps house and does its real business (De Beers Consolidated Mines Ltd. v. Howe (1906) A.C.455, per Lord Loreburn L.C.). That, with companies such as the respondent, may be difficult to fix. So the tax legislation (section 246(1) adopts the test of carrying on a trade in the United Kingdom through a branch or agency, and it taxes any trading income arising directly or indirectly through or from the branch or agency. The link with the respondent company is firmly made through section 38(4) of the Finance Act, 1973. I quote at this point the finding of the special commissioners: "(2) Oceanic's operations extend throughout the world, including the Middle East, the Far East, Africa and Central and Southern America. Oceanic is not resident for tax purposes in the United Kingdom. It does, however have a permanent establishment on the United Kingdom mainland and (i.e., but) is liable to United Kingdom corporation tax on its profits from activities in the United Kingdom and the United Kingdom continental shelf, all of which are taxed as a single trade. It is an overseas company to which section 407 of the Companies Act, 1948 applies and has complied with the requirements of that section. Its address for service in Great Britain is McDermott House, 140 Wembley Park Drive, Wembley, HA9 7DG." So, the question one has to ask in relation to section 204 is this. Why should not this section apply to a company, which, as regards the very activities to which the section relates, is itself made subject to United Kingdom tax legislation. Why not more particularly, when the employees, to whom the question relates, are employed on precisely those activities, so that the wages they are paid, which are treated as being in respect of duties performed in the United Kingdom, enter into the trading accounts of the company? To the answering of this question non-residence is quite immaterial, as, indeed, section 246 itself shows; it disregards non-residence or, perhaps more accurately, it makes "non-residence a condition of liability and fastens upon trading through a branch or agency. This provides a clear, and surely satisfactory, answer to the question of construction of section 204, so that this section only applies to those companies, which are within the taxing provisions of section

246. As to such companies section 246 provides a convincing reason why the respondent company should be liable to operate the P.A.Y.E. system. I should add that, as the company has an address for service in the United Kingdom, the liability can be enforced against assets here. This was the conclusion reached in the High Court by Dillon, J., by a process of similar, if not quite identical, reasoning to that which I have tried to express. I agree with it and would restore his judgment. In this House, Mr. Potter for the revenue put forward an alternative argument. That was really his first choice, not, I suspect because he considered it more persuasive, but because of the very attractive consequences for the revenue which its success would entail. It was to say, quite boldly, that section 204 should be read according to its terms: that if (and he accepted this) some limitation ought to be imposed upon it, upon the "territorial principle", that was sufficiently achieved through its link with Schedule E of the Income and Corporation Taxes Act, 1970, to which this section expressly refers. Schedule E itself contains a clear territorial test, or rather territorial tests: whether the employee "is resident and ordinarily resident in the United Kingdom" (Case I)' or his emoluments are "in respect of duties performed in the United Kingdom" (Case II). So the reference in section 204 to Schedule E has the effect of introducing the necessary territorial principle into the section, which can, subject thereto, be given general application. This is an ingenious argument which at one time attracted me. It has very far-reaching consequences, since it imposes upon companies which, as regards their income, are not in any way subject to the United Kingdom tax laws, and which may not be capable of being served with process here, very extensive obligations, with sanctions attached to them. Some of the consequences involved are painted in bright colors in the judgments of the Court of Appeal. Mr. Potter did not shrink from accepting these consequences, pointing out that in most cases they would simply be unenforceable and that there are parallels elsewhere in tax legislation for general provisions which in individual cases cannot be enforced. Nevertheless I do shrink from them when there is a safer route to take; an unenforceable obligation is still an obligation, which may be onerous; the existence of it may have a deterrent effect upon the employment of United Kingdom residents. I shrink from it all the more since I am not convinced that the argument for it is sound. The expressed limitation in section 204 to Schedule E is a limitation as to its subject matter, i.e., it only applies to certain emoluments: it is a necessary condition for the section to apply that the emoluments should be taxable under Schedule E. But it seems to me that it may leave open the different question, which is what we are concerned with, namely, to whom the section is to apply. The Schedule E limitation may, in fact, not be a sufficient condition. I am therefore, as at present advised, G unwilling to accept the argument. I would allow the appeal. LORD EDMUND-DAVIES: -- My Lords, this appeal relates to the construction of section 204(1) of the Income and Corporation Taxes Act, 1970, the relevant part of which provides that, "On the making of any payment of, or on account of, any income assessable to income tax under Schedule E, income-tax shall, subject to and in accordance with regulations made by the board under this section; be deducted or repaid by the person making the. payment..." As far as the respondent company is concerned, your Lordships are therefore not concerned with liability to be taxed, but with the quite different question of whether in the circumstances of this case they are under a duty to deduct income-tax from emoluments assessable under Schedule E paid by them to certain of their employees. . The relevant facts have been set out by Dillon, J. (1981) 1 WLR 59, 61, Lawton L.J. (1982) 1 WLR 222, 225, and by others of your Lordships, and I shall not repeat them. It is common ground that some of the employees of the respondent in its North Sea division who worked on barges in the United Kingdom sector of the North Sea (a "designated area" within section 38 of the Finance Act, 1973) were assessable within Schedule E. The primary submission of the Crown in this appeal from the unanimous decision of the Court of Appeal is that those simple facts are in themselves sufficient to bring the respondent within section 204(1). The submission involves the rejection as irrelevant of the further facts that the respondent is incorporated under the law of Panama and (as the special commissioners found) is not resident for tax purposes in the United Kingdom, and that the relevant payments of emoluments were made by the respondents in Brussels in United States dollars by cheques drawn on their New York bank account. My Lords, there are two rules or guides to the construction of section 204(1) which have to be borne in mind: (1) the rule relating to extra territoriality and (2) the rule relating to penal statutes. As to (1), Dr. Lushington said in the Amalia (1863) 1 Moo. N.S.471, 474: "the British Parliament has no proper authority to legislate for foreigners out of its jurisdiction; ...unless the words of the statute are perfectly clear..." This statement of principle has been judicially followed on innumerable occasions. The important decision in Ex parte Blain, 12 Ch.D.522 has been closely considered below and by others of your Lordships, and it is therefore sufficient to recall also that in Attorney-General for Alberta v. Huggard Assets Ltd. (1953) A.C 420 Lord Asquith of Bishopstone said, at p. 441: "An Act of ...Parliament today, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom: not even to the Channel Islands or the Isle of Man, let alone to a remote overseas colony or possession: As to (2), "A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer..." (Vestey v. Inland Revenue Commissioners (1980) A.C.1148, 1172, per Lord Wilberforce.) And in Tuck & Sons v. Priester (188719 Q.B.D.629, Lord Esher M.R. said, at p. 638: "If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for ...penal sections." My Lords, section 204 is a penal section, and the Crown here seeks to apply it extra-territorially, in the words of Brightman L.J. (1982) 1 WLR 222, 231F, to "a foreign employer, resident abroad, paying emoluments in foreign currency outside the United Kingdom to an employee in respect of duties performed outside the United Kingdom." As to its penal nature, not only is section 204 part of a taxing statute, but the Income Tax (Employments) Regulations, 1973 (S.I.1973 No.334), made by the Board of Inland Revenue under the section, impose by Regulation 26 a narrow time limit within which the employer must pay over to the collector all the tax deducted by him from employees' emoluments; Regulation 27 provides for the rendering by the employer of elaborate returns; Regulation 28 empowers the collector to sue the employer personally for the tax he was liable to deduct; and Regulation 32 obliges the employer to produce at his premises for inspection by an authorised officer all wages sheets, deduction cards and other documents. Furthermore, section 98 of the Taxes Management Act, 1970 provides for the imposition of monetary penalties in respect of failure to comply with any of the foregoing regulations, and section 100(7) empowers commissioners to summon defaulters to appear before them at a specified time and place for summary hearing of information laid against them. The duty of discharging the burden of deducting, while not impossible, could thus well prove onerous and expensive (for no remuneration will be forthcoming), and the consequences of default are undoubtedly penal in character. It is true that section 204 itself contains no express territorial limitation, but so to approach the problem is in my judgment wrong and irreconcilable with the observation of Lord Esher M.R. in, Colquhoun v. Heddon (1890) 25 Q.B.D. 129, 134-135, that "unless Parliament expressly declares otherwise ...Parliament...when it uses general words is only dealing with persons or things over which it has properly jurisdiction." The proper approach is to ask whether it has been manifested that, despite the absence of express words giving the section an extra-territorial application, it can operate against this respondent. My judgment is that it cannot, and that the contrary conclusion arrived at by adverting simply to the wide compass of the charging provisions contained in section 181 must be rejected. On this part of the appeal I am accordingly in respectful concurrence with my noble and learned friend, Lord Scarman. The Crown then launch; in the alternative, a narrower attack on the decisions of the special commissioners and the Court of Appeal in favour of the respondent. They assert, in effect, that it is unrealistic to regard the respondent as merely a foreign company. They invoke the references in Ex parte Blain, 12 Ch.D. 522, 526 by James L.J. to "foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction," and by Brett L.J. at p.528 in the same case to "the subjects of other countries who for the time bring themselves within the allegiance of the legislating power," and then attempt to demonstrate that the respondent comes within those tests. Relying solely upon section 38(6) of the Finance Act, 1973, Dillon, J. agreed with that submission. It was expansively considered in the Court of Appeal and unanimously rejected. I understand my noble and learned friend, Lord Scarman, to be of a like mind, and I respectfully adopt his summation, ante, p.1126, that "Once the conclusion is reached that not all income assessable to Schedule E is subject to collection by P.A.Y.E. (section 38(6)) cannot be decisive as to the formulation of the section 204 liability." The majority of your Lordships are nevertheless of the opinion that this appeal should be allowed. Accepting the finding of the special commissioners that the respondent is not resident in the United Kingdom, the opinion is expressed that this is immaterial; and that it is sufficient if a company has a "tax presence" here. My noble and learned friend, Lord Wilberforce, regards section 38(4) of the Finance Act, 1973 as "critical in this appeal," but the whole section makes purely charging provisions in respect of income tax, capital gains tax and corporation tax, subsection (4) having reference only to the two latter categories of tax. Granted that the activities of the respondent, with its design office at Wembley, its fabrication yard near Inverness, and its Aberdeen branch constitute carrying on a trade "in the United Kingdom through a branch or agency" within the meaning of the subsection, I respectfully find it difficult to appreciate the bearing of that conclusion on the application of section 204 of the Act of 1970 to emoluments paid abroad to employees of the North Sea division with headquarters in Brussels and an operational centre in Antwerp. Nor am I assisted by the knowledge that the respondent also comes within the provisions as to the charging of corporation tax contained in section 246 of that same Act, any more than I am by the undoubted fact that this overseas company has complied with section 407 of the Companies Act, 1948 by having a London address for service. My Lords, the concept of a "taxable presence" was described by Mr. Heyworth Talbot Q.C. as "unknown to income tax law," and as "appearing nowhere in the Income Tax Acts; though it can have some significance in relation to residence, it is otherwise irrelevant:" No case cited to this House has convinced me that this submission was wrong. And even had persuasion been induced, it would still not have served, in my judgment, to establish that personal chargeability to tax has any rational or legal connection with a duty to make deductions in respect of the chargeability of others. This would doubtless be highly convenient to the Crown, but that is nothing to the point. In these circumstances, I am not persuaded that the Court of Appeal arrived at a wrong conclusion, and for my part 1 would therefore dismiss the appeal. LORD LOWRY.

My Lords, the facts and the relevant statutory provisions have been set out in certain of your Lordships' speeches, which I have had the opportunity of reading in draft, and in the judgments delivered in the Court below. My conclusion agrees with that of my noble and learned friend, Lord Edmund-Davies, which supports the judgments of the Court of Appeal and the opinion of the special commissioners. Having regard to the different opinions to which the facts have led this House and the Courts which have already considered the problem, I wish to state quite shortly the reasons for my view. The first argument presented to your Lordships by the appellant was that, whenever Schedule E applied to a taxpayer's income, section 204(1) of the Income and Corporation Taxes Act, 1970 imposed a duty on the employer, whether individual or corporate, even when the employer was not resident in or connected with the United Kingdom and the taxpayer's work was performed and paid for outside the United Kingdom, of deducting the tax which was payable and accounting for it to the revenue. This argument has not actually achieved acceptance at any judicial level, although, as your Lordships' opinions confirm, it received an attentive hearing in this House and 1, too, confess to having been at one stage attracted by its simplicity. According to the literal meaning of section 204(1), the company is bound to operate P.A.Y.E. as claimed. In the ordinary way, therefore, the company would have to produce a special argument based on the Act of 1970 for saying that section 204(1) does not mean what it says. But that is not so here, because the company can rely on a general argument, which I shall refer to as the territorial principle, according to which there is a presumption against applying statutory provisions outside the United Kingdom to persons who are not resident there. The authorities illustrating the territorial principle, which is simply a rule of construction, have already been cited to and by your Lordships and I do not need to go over them again. Their effect, as seems to be accepted by the appellant, is to cast on him the burden of showing, by reference to express enactment or clear implication that section 204(1) does apply. Thus, to distinguish the usual situation when one is confronted with the ordinary and natural meaning of words in a statute, the quest is not on behalf of the company for a means of escape from the ordinary and natural meaning, but on behalf of the appellant for an indication to overcome expressly or by implication the territorial principle. The appellant claimed--and at first I thought his claim might be a good one

that the indication in his favour was provided by section 181(1) of the Act of 1970, which gives territorial clues to the chargeability of the taxpayer under Schedule E. But, on reflection, I cannot at all subscribe to the view that the presence of territorial provisions in section 181(1) relating to the income of taxpayers serves to destroy the implied limitations relating to their employers outside the United Kingdom which the territorial principle has imposed on section 204(1). There is no other support for what Brightman L.J. (1982) 1 WLR 222, 233d, called "the argument of the Crown for a worldwide application of section 204" which could offset the territorial principle; this appears clearly from your Lordships' speeches, the judgments of the Court of Appeal and Dillon, J. and the decision of the special commissioners. I would sum up my remarks on it by quoting the observations of the learned Lord Justice, at p.232: "The taxpayer company has made payments of income assessable to income-tax under Schedule E. Therefore in terms section 204 applies to the taxpayer company. But such a simplistic construction flies in the face of the principle, laid down notably in Ex parte Blain, 12 Ch.D. 522 and echoed in numerous later cases, that `English legislation is primarily territorial'; `a broad substantial rule' which the Earl of Halsbury L.C. said in Cooke v. Charles A. Vogeler Co. (1901) A.C. 102, 107, he `should be sorry to see departed from'." The appellant's second argument was, as my noble and learned friend, Lord Scarman, has put it, that the company has, by reason of its operations and trading activities in the United Kingdom and in the North Sea, a sufficient presence in, or connection with, the United Kingdom to justify the revenue's requirement that it operate P.A.Y.E. in respect of the earnings of the personnel it employs in the United Kingdom sector of the North Sea. Here again, my Lords, I would say that the reasons given by my noble and learned friend, Lord Edmund-Davies, for rejecting the appellant's first argument are equally cogent and formidable obstacles to accepting the second. I also respectfully consider that his further citations of authority are most persuasive. Recalling that the United Kingdom sector is nowhere deemed to be part of the United Kingdom, I remind myself that the framers and promoters of the tax legislation must be taken to know very well the high authority and long standing of the cases, including tax cases, on the territorial principle. That is the background against which to judge whether the legislature has made it clear that section 204(1) reaches the company in the present case. And, once the territorial principle is admitted to be relevant, it is not a question of how or to what extent one can qualify or cut down the operation of section 204(1), but of how and to what extent one can widen the operation of section 204(1) beyond the limited sphere of influence to which that principle has prima facie confined it. If he loses the "worldwide" argument, I do not consider that the appellant can find a halfway house, or a safe anchorage in the North Sea, based on his alternative, and I can think of only three ways for him to present it. (1) The first, my Lords, which has the attraction of simplicity and, though not specifically advanced by the Crown, was adopted by Dillon, J., is to say that the words in section 38 (6) of the Act of 1973, "for the purposes of income tax," means for all such purposes, so that the subsection is viewed not only as a charging provision but as referring to the purposes of tax collection. At this point I follow my noble and learned friend, Lord Edmund-Davies, in adopting the statement, ante, p. 1126, of my noble and learned friend, Lord Scarman, who expressed himself as agreeing with the Court of Appeal that "The effect of the subsection is merely to render income earned in respect of duties performed in the United Kingdom sector of the North Sea assessable under Schedule E. Once the conclusion is reached that not all the income assessable to Schedule E is subject to collection by P.A.Y.E. it cannot be decisive as to the formulation of the section 204 liability." I do not forget that Lord Scarman continued: "It remains, however, an important indication. It goes some way towards establishing a company's presence in the United Kingdom in that the duties performed by a company's employees in the United Kingdom sector of the North Sea are to be treated for the purposes of income-tax as performed within the United Kingdom." But I must respectfully insist that there is no in-between meaning to be assigned to the words, "for the purposes of income tax". We must either accept the meaning preferred by Dillon, J. (in which case the Crown have no problem) or confine the purposes mentioned in section 38(6) to those of assessment chargeability. My Lords, in my opinion, section 38(6), which contains a clear echo of the words of Case II, is neutral and does not provide the indication which the appellant needs in order to overcome the territorial principle. This view has commended itself not only to the judges of the Court of Appeal but it seems, to your Lordships as well. (2) The second way of putting the alternative argument is to say that the company had a sufficient "tax presence" in the United Kingdom to justify imposing on it the duty of tax collection under section 204 in respect of emoluments earned by the company's employees in the United Kingdom sector of the North Sea. Your Lordships will recognise that this contention accepts the operation of the territorial principle but seeks to say that, it has been satisfied. Mr. Heyworth Talbot, for the company, in the course of a persuasive and cogent submission, ridiculed the concept of tax presence (in contrast to residence) as a means of attracting liability to the company. His criticism went too far, in my respectful opinion; after all, the liability to deduct tax in respect of the Wembley and Aberdeen employees does not depend on residence. But the tax presence, to be effective, must be tax presence in the United Kingdom. Let me therefore consider the nature of the alleged tax presence on which the appellant relies. I do not believe that anyone has suggested, or could credibly suggest, that the employment of staff at Wembley, Aberdeen and Inverness or the furnishing of a United Kingdom address for service would oblige an American company employing a United Kingdom resident in New York to deduct P.A.Y.E. tax, unless that company were already liable to do so by virtue of the appellant's "worldwide" argument: the tax presence to be effective, must be relevant to the income in question and not merely coincidental. Nor is it logical to rely on the kind of tax presence I have mentioned for the purpose of imposing on the company here the duty of deducting tax from United Kingdom sector earnings, if that duty would not otherwise exist. Neither can section 38(6) be prayed in aid. As your Lordships have seen, that provision simply requires earnings in designated area (i.e., the United Kingdom sector) to be treated for the purposes of income tax as emoluments in respect of duties performed in the United Kingdom but the designated area is not part of the United Kingdom, and an employer who is operating there cannot be said, in the words of Ex parte Blain, 12 Ch.D.522 to have "come to this country". I agree that residence is not the criterion of amenability to our laws, but, once that criterion is rejected, a satisfactory alternative on the facts of each case must be found before it can be validly argued that the territorial principle has been complied with. A certain vagueness at this point of the appellant's otherwise precise and crisp submissions led me to the conclusion that the tax presence relied on was specious. The appellant must still face the fact that, so far as the designated areas are concerned, the company has not "come into the United Kingdom and thereby made itself subject to United Kingdom jurisdiction." (3) The third way of putting the appellant's alternative argument relies on section 38 (4) of the Act, of 1973 and section 246 of the Act of 1970 and has been clearly set out in the speech of my noble and learned friend, Lord Wilberforce. As he says, section 38(4) brings the company within the net of United Kingdom corporation tax in respect of its profits from its activities in the United Kingdom sector. My noble and learned friend further points out that the liability to corporation tax can be enforced against the company because it has a registered address in the United Kingdom in compliance with section 407 of the Companies Act, 1948. It is not, of course, suggested that the need to have a registered address here has arisen from the activities in the United Kingdom sector. Lord Wilberforce also states, as I respectfully accept, that non-residence is not the relevant criterion for freedom from corporation tax. But, equally respectfully, I would observe that, failing residence, Parliament has expressly enacted a test of chargeability, namely, section 246, and has also expressly, by section 38(4) extended that chargeability to the designated areas. Therefore it is quite right that the company is by section 38(4) made subject to United Kingdom tax legislation, specifically by making it liable for capital gains tax and corporation tax on profits or gains arising from activities in a designated area, but it does not, in my opinion, follow that the company is thereby impliedly made liable to deduct Schedule E tax under section 204(1) from the earnings of those whom it employs in those activities. Furthermore, I do not consider that the appellant can, in support of this particular argument, soundly rely on the company's United Kingdom address for service. On this part of the case I would again express my respectful concurrence in everything, which my noble and learned friend, Lord Edmund Davies, has said. I believe that, as he observes, there is nothing to establish that personal chargeability (expressly imposed. I may add) has any rational or legal connection with a duty (allegedly created by implication) to make deductions in respect of the chargeability of others. Indeed, I cannot see that the argument based on section 38(4), although different, is any stronger than that based on section 38(6). Whichever branch of the argument one looks at, the same practical difficulties exist as were described in detail in the judgment of Lawton L.J. I agree that the difficulty, or even the impossibility, of enforcement does not provide a bar to accepting the appellant's interpretation, but the making of that concession does not give the Crown a good case if they have not one already. When I finally come back to re-read the judgments of a distinguished Court of Appeal in the cold light of reason, I conclude that they cannot be faulted on any aspect of the case. Accordingly, my Lords, I would dismiss the appeal. LORD ROSKILL.

My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Scarman and Lord Wilberforce. Like them I would allow this appeal for the reasons which they give. Like my noble and learned friend, Lord Wilberforce, I was for a long time attracted, and I still am attracted, by the alternative argument advanced by Mr. Potter Q.C. for the revenue though I am very conscious of the consequences if that argument were accepted. I am still not wholly persuaded that argument is unsound but like my noble and learned friend I shrink from accepting it when, as he states, a safer route exists. I therefore see no useful purpose in considering the alternative argument further. Solicitors: Solicitor of Inland Revenue; Slaughter & May. M.BA./1596/T Appeal allowed.