STRICT CONSTRUCTION OF TAXING STATUTES

INTRODUCTION

Statutes imposing taxes or monetary burdens are to strictly construed. The logic behind this principle is that imposition of taxes is also a kind of imposition of penalty which can only be imposed if the language of the statute unequivocally says so. Any kind of intendment or presumption as to tax does not exist. TAX AND FEE In case of a fee, there is a specific service rendered to the fee payer. (Quid pro quo), whereas for the tax payer no direct services are rendered but the service assumes the form of public expenditure rendered to the public at large.

Rules of interpretation

Charging Section

The section that charges the tax must have clear words. Before taxing any individual it must be clearly established that the person to be taxed falls within the purview of the charging section by clear words. There is no implication of the law. If a person cannot be brought within the four corners of the law, he is free from tax liability. In Calcutta Jute Manufacturing Co. v Commercial Tax officer, the Supreme Court held that in case of interpreting a taxing statute, one has to look into what is clearly stated. There is no room for searching the intentions, presumptions or equity. In Mathuram Agarwal v State of Madhya Pradesh, the Supreme Court held that words cannot be added or substituted to find a meaning in a statute so as to serve the intention of the legislature. Every taxing statute must contain three aspects; subject of tax, person to be taxed and the rate of tax.

Strict and favourable construction

Taxing enactment should be strictly construed and the right to tax should be clearly established. Equitable construction should not be taken into account. Courts should not strain words and find unnatural meaning to fill loopholes. If the provision can be interpreted in two ways, then the one favoring the assessee must be taken into consideration. In Saraswati Sugar mills v Haryana State Board, The Supreme Court held that every Act of the parliament must be read according to the strict natural construction of its words.

Clear Intention to impose or increase tax

The intention to impose or increase tax or duty must be clear and in unambiguous language.

Prospective operation

The cardinal principle of tax laws is that the law to be applied to assessee is the law in force in the assessment year unless otherwise provided expressly or by necessary implication. No retrospective effect to fiscal statute is possible unless the language of the language of the statute is very clear and plain. In Reliance Jute Industries Ltd v Commercial Tax officer, Fiscal Statute are generally not retrospective otherwise expressly provide by necessary implications.

Meaning in common parlance.

In finding out the meaning of a taxing statute, the meaning in common usage, parlance special in commercial and trade circles must be considered.

Machinery provision

Machinery provision means the procedure foe calculation and collection of tax. The person who claims an exemption has to establish it. In National Tag Traders v Commissioner of Income Tax, the Supreme Court held that a fiscal statute must be construed strictly.

No presumption as to tax

As regards to imposition of tax, no presumption exists. It cannot be drawn by implication or analogical extensions. The presumption for equality and against partiality of taxation exists. In Mohammed Ali Khan v Commissioner of Wealth Tax, it was held that no tax can be imposed by inference, analogy or probing into the intention of the legislature.

Fiscal statute to be read as a whole.

The entire provisions of a fiscal statute has to be read as a whole and not in piecemeal to find out the intent of the legislature.

No spirit of law.

A person is no liable to tax on the spirit of law or logic or reason.

Substance of matter.

The tax authorities must consider the legal aspect of a particular transaction for levy of tax. This is called ‘substance of the matter’.
Court fee Act If the court fee is high, then it affects the right of the aggrieved person to seek remedy. In interpreting the court fee Act, the benefit of doubt always goes to the assessee. Double taxation In interpreting a fiscal statute, if one meaning gives rise to double taxation and other meaning gives rise to single taxation, then the interpretation must be in favour of single taxation. Delayed payment of tax. Interest is levied by tax authorities on delayed payment of tax. If provision exists, such delayed payment is valid. Penalty- no criminal Act The penalty provision cannot be equated with a criminal statute as a criminal act requires mens rea.
In short the general rule of construction is that in case of doubt, it is decided in favour of the tax payer even if such a decision is detrimental to the government.

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AMENDING, CONSOLIDATIONG AND CODIFYING STATUTE

INRODUCTION

A Consolidating statute is a statute which collects the statutory provisions relating to a particular topic, and embodies them in a single Act of parliament, making minor amendments and improvements.

CONSOLIDATING STATUTE

The object of a consolidating statute is to present entire body of different statutory laws on a particular subject in a complete form. This is done by repealing all former statutes.
Consolidating statutes are of three types

• Consolidating statutes without changes
• Consolidating statutes with minor changes.
• Consolidating Act with amendment.

RULES OF INTERPRETAION

Presumption
In enactment of a consolidating Act, the presumption is that the parliament is intended to alter the existing law. The further presumption is that the words used in the consolidating Act bear the same meaning as that of the enactment for which consolidation is made.
However, if the words have origin in different legislations, then the same meaning cannot be sustained. INCONSISTENCY
In case of inconsistency between the provisions of a consolidating Act, it is pertinent to refer to different previous enactments with reference to dates of enactment in chronological order. For the purpose of enactment of a consolidating Act it is in order to refer to previous laws, existing laws, judicial decisions, common law etc. Just because certain terms of a non- repealed statute are used in the consolidating statute, it does not mean that the non-repealed statute and general laws are affected by the consolidating statute.
A consolidating statute is not simply a compilation of different earlier statutes, but enacted with co-ordination and for the changing present social circumstances. In this context a consolidating statute may also be an amendment act.

CODIFYING STATUTE

A codifying statute is a statute which states exhaustively the whole of the law upon a particular subject. The maker of law incorporates in the enactment both the pre-existing statutory provisions and the common law relating to the subject. The purpose of a codifying statute is to present uniform, orderly and authoritative rules on a particular subject. When once the law has been codified, it cannot be modified gradually from day to day, as the changing circumstances of the community. Any modifications to it whether of a minor matter or a major amendment must be made by the legislature (bank of England v vagliano brothers) Lord Hershell interprets a codifying statute as follows:- “ The object of a codifying Act is to end the conflict of decisions .
A codifying statute does not exclude reference to earlier case laws on the subject for the purpose of true interpretation of the words. The reference of the previous legislations is for the reason of removal of ambiguity. The aim of a codifying statute is to declare the law on the subject so that the judge, by true interpretation of words decides the meaning within the parameter of such law.
To conclude, the difference between a consolidating and codifying statutes are that the aim of a consolidating statute is to enact a complete code on a particular subject by not only compilation but also by addition but a codifying statute states exhaustively the whole of the law upon a particular subject.

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INTERNAL AID OF INTERPRETATION

INTRODUCTION
Statute generally means the law or the Act of the legislature authority. The general rule of the interpretation is that statutes must prima facie be given this ordinary meaning. If the words are clear, free from ambiguity there is no need to refer to other means of interpretation. But if the words are vague and ambiguous then internal aid may be sought for interpretation.

INTERNAL AIDS

Context

• If the words of a statute are ambiguous then the context must be taken into consideration. The context includes other provisions of the statute, its preamble, the existing state of law and other legal provisions. The intention behind the meaning of the words and the circumstances under which they are framed must be considered.
Title

• Title is not part of enactment. So it cannot be legally used to restrict the plain meaning of the words in an enactment. Long title The heading of the statute is the long title and the general purpose is described in it. E.g. Prevention of Food Adulteration Act, 1954, the long title reads as follows “An Act to make provisions for the prevention of adulteration of food”. In Re Kerala Education bill, the Supreme Court held that the policy and purpose may be deduced from the long title and the preamble.
  Short Title The short title of the Act is purely for reference only. The short title is merely for convenience. E.g. The Indian Penal Code, 1860.
Preamble
• The Act Starts with a preamble and is generally small. The main objective and purpose of the Act are found in the Preamble of the Statute. “Preamble is the Act in a nutshell. It is a preparatory statement. It contains the recitals showing the reason for enactment of the Act. If the language of the Act is clear the preamble must be ignored. The preamble is an intrinsic aid in the interpretation of an ambiguous act.
Headings
• A group of Sections are given under a heading which act as their preamble. Sometimes a single section might have a preamble. S.378441 of IPC is “Offences against property”. Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in the words of a statute, headings can be referred. In Durga Thathera v Narain Thathera, the court held that the headings are like a preamble which helps as a key to the mind of the legislature but do not control the substantive section of the enactment.
Marginal notes
• Marginal notes are the notes that are printed at the side of the section in an Act and it summarizes the effect of the section. They are not part of the statute. So they must not be considered. But if there is any ambiguity they may be referred only as an internal aid to the construction. In Wilkes v Goodwin, the Court held that the side notes are not part of the Act and hence marginal notes cannot be referred.
Proviso
• A proviso merely carves out something from the section itself. A proviso is a subsidiary to the main section and has to be construed in the light of the section itself. Ordinarily, a proviso is intended to be part of the section and not an addendum to the main provisions. A proviso should receive strict construction. The court is not entitled to add words to a proviso with a view to enlarge the scope.
Definition/ Interpretation clause
• The legislature can lay down legal definitions of its own language, if such definitions are embodied in the statute itself, it becomes binding on the courts. When the act itself provides a dictionary for the words used, the court must first look into that dictionary for interpretation. In Mayor of Portsmouth v Smith, the court observed “The introduction of interpretation clause is a novelty.”
Conjunctive and Disjunctive words
• The word “and” is conjunctive and the word “or” is disjunctive. These words are often interchangeable. The word ‘and’ can be read as ‘or’ and ‘or’ can be read as ‘and’.
Gender Words
• using the masculine gender is deemed to include females too. 10. Punctuation Punctuation is disregarded in the construction of a statute. Generally there was no punctuation in the statutes framed in England before 1849. Punctuation cannot control, vary or modify the plain and simple meaning of the language of the statute.
Explanations
• IN certain provisions of an Act explanations may be needed when doubts arise as to the meaning of the particular section. Explanations are given at the end of each section and it is part and parcel of the enactment.
Exceptions and savings clause
• To exempt certain clauses from the preview of the main provisions, and exception clause is provided. The things which are not exempted fall within the purview of the main enactment. The saving clause is also added in cases of repeal and re-enactment of a statute.
Schedules
• Schedules form part of a statute. They are at the end and contain minute details for working out the provisions of the express enactment. The expression in the schedule cannot override the provisions of the express enactment. Inconsistency between schedule and the Act, the Act prevails. ( Ramchand textiles v sales tax officer)
Illustrations
• Illustrations in enactment provided by the legislature are valuable aids in the understanding the real scope.
Meaning of the words
• The definition of the words given must be construed in the popular sense. Internal aid to construction is important for interpretation.

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GENERAL PRINCIPLES OF INTERPRETATION

Introduction

The term interpretation means “To give meaning to”. Governmental power has been divided into three wings namely the legislature, the executive and the judiciary. Interpretation of statues to render justice is the primary function of the judiciary. It is the duty of the Court to interpret the Act and give meaning to each word of the Statute.
The most common rule of interpretation is that every part of the statute must be understood in a harmonious manner by reading and construing every part of it together. The maxim “A Verbis legis non est recedendum” means that you must not vary the words of the statute while interpreting it.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
In Santi swarup Sarkar v pradeep kumar sarkar, the Supreme Court held that if two interpretations are possible of the same statute, the one which validates the statute must be preferred.

Kinds of Interpretation

There are generally two kind of interpretation;

• literal interpretation
• logical interpretation.

Literal interpretation

Giving words their ordinary and natural meaning is known as literal interpretation or litera legis. It is the duty of the court not to modify the language of the Act and if such meaning is clear and unambiguous, effect should be given to the provisions of a statute whatever may be the consequence. The idea behind such a principle is that the legislature, being the supreme law making body must know what it intends in the words of the statute. Literal interpretation has been called the safest rule because the legislature’s intention can be deduced only from the language through which it has expressed itself.

The bare words of the Act must be construed to get the meaning of the statute and one need not probe into the intention of the legislature. The elementary rule of construction is that the language must be construed in its grammatical and literal sense and hence it is termed as litera legis or litera script. The Golden Rule is that the words of a statute must prima facie be given their ordinary meaning. This interpretation is supreme and is called the golden rule of interpretation.

Exceptions to the rule of literal interpretation

Generally a statute must be interpreted in its grammatical sense but under the following circumstances it is not possible:Logical defects

• ambiguity
• inconsistency
• incompleteness or lacunae
• unreasonableness

Logical interpretation

If the words of a statute give rise to two or more construction, then the construction which validates the object of the Act must be given effect while interpreting. It is better to validate a thing than to invalidate it or it is better the Act prevails than perish. The purpose of construction is to ascertain the intention of the parliament.

The mischief rule

The mischief rule of interpretation originated in Heydon’s case. If there are two interpretations possible for the material words of a statute, then for sure and true interpretation there are certain considerations in the form of questions. The following questions must b considered.

• What was the common law before making the Act?
• What was the mischief and defect for which the common law did not provide a remedy?
• What is the remedy resolved by the parliament to cure the disease of the common wealth?
• The true reason of the remedy.

The judge should always try to suppress the mischief and advance the remedy. The mischief rule says that the intent of the legislature behind the enactment should be followed.

casus omissus

Generally, the court is bound to harmonize the various provisions of an Act passed by the legislature during interpretation so that repugnancy is avoided. Sometimes certain matters might have been omitted in a statute. In such cases, they cannot be added by construction as it amounts to making of laws or amending which is a function of legislature. A new provision cannot be added in a statute giving it meaning not otherwise found therein. A word omitted from the language of the statute, but within the general scope of the statute, and omitted due to inadvertence is known as Casus Omissus.

Rule of ejusdem generis

Ejusdem generis means “of the same kind”. Generally particular words are given their natural meaning provided the context does not require otherwise. If general words follow particular words pertaining to a class, category or genus then it is construed that general words are limited to mean the person or thing of the same general class, category or genus as those particularly exposed. Eg: if the husband asks the wife to buy bread, milk and cake and if the wife buys jam along with them, it is not invalidated merely because of not specifying it but is valid because it is of the same kind.
The basic rule is that if the legislature intended general words to be used in unrestricted sense, then it need not have used particular words at all. This rule is not of universal application.

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Interpretation of statutes Basic Knowledge

Statutory Interpretation

How Judges Read the Statute Laws of Parliament

Role of the Courts

Recall the courts have two main roles

• To resolve disputes, both criminal and civil
• To declare the law by Creating new common law ex post facto and interpreting the meaning of statute law

Declaring the Statute Law

There can be uncertainty and dispute about the meaning of statute laws.
Courts have the task of declaring the meaning of statute law when the meaning is unclear

Reasons for Unclear Statutes

Poor drafting:
Many bills are hurried through parliament (flood-gated, guillotined etc). Those drafting a bill may lack specialist knowledge.
Inconsistencies & contradictions: Parts of the same Act may conflict with each other. The Act may conflict with other Acts. Acts are complex.
Wording and definitions:
Words may be poorly defined by the Act or may have multiple meanings is common usage.
The meaning of words may change over time.
Changing circumstances:
Old laws may need to be reinterpreted to fit new developments eg. Technology

Judicial Rules of Interpretation

Judicial rules are used to read unclear statutes and declare the law.

• Literal Rule
• Golden Rule
• Mischief (or Purpose) Rule

The Literal Rule

The Act is read by its plain meaning – exactly as the words are written, the assumption being that parliament has said what it means.
However, this can lead to absurd outcomes.
Pedestrians are not allowed on the freeway. A person whose car has broken down and is walking to the emergency phone is in breach of the law. This is absurd.

The Golden Rule

If the Literal Rule yields an absurd outcome, the judge will apply the Golden Rule.
When the usual meaning of a word causes unjust outcomes, judges interpret the offending word to reduce the absurdity.
Thus “pedestrian” is interpreted so as not to include people walking to freeway phones in an emergency. Such people are not pedestrians and can’t be charged under the Act.

The Mischief Rule

Also called the Purpose Rule. If the Literal and Golden Rules have failed to achieve a just result, the judge will seek the wrong (or mischief) that parliament was trying to legislate for and interpret the Act in accordance with parliament’s intention.
Parliament is clearly aiming to prevent people walking on the freeway as regular pedestrians, not trying to prevent broken down motorist seeking help.

Extraneous Materials

Judges will refer to the specific words of a section of the Act itself for its meaning but sometimes the meaning is still unclear. If this is the case then materials external to the problem section of the Act may be consulted – These are called Extraneous Materials

• Standard English Dictionaries (Oxford Concise)
• Legal Dictionaries (Butterworth’s)
• Other sections of the same Act
• Previous decisions – earlier interpretations of the same Act or established interpretations of words
• Hansard – for Second Reading speeches and debate to clarify parliament’s purpose

Interpretation Acts

Some states have Acts
Interpretations Acts (Interpretation Act WA 1984) which are laws instructing judges on how to interpret other Acts. This is done to restrict judicial freedom of interpretation and make sure parliament’s meaning is clear.
These Acts may define common terms and they may force judges to apply the policy of the Act before its literal meaning.

Legal Maxims

Legal maxims are principles of interpretation used by judges to reach consistent decisions.

• Ejusdem generis
• Noscitur a sociis
• Expressio unis est exclusio alterius

Ejusdem Generis

Latin: “of the same kind”.
Applied to a list of words where a general word appears after a list of specific words of a similar class. Parliament knows that the list of all possible instruments is too long and leaves it to the courts to interpret. “The use of spear guns, spears, knives and other such instruments is prohibited”
The words “other such instruments” will be interpreted in line with spear guns, spears, knives – items used in fishing

Noscitur a sociis

Latin: “by the company it keeps – to know a thing by its associates”
The meaning of a word may be known from the accompanying words. The word “disability” when alone can mean many things – medical, legal (bankruptcy), less able to perform etc etc. “The insurer will pay the amount of $10 million in the event of the insured’s illness, disability or death”
In the above line from a statute the meaning of “disability” is clear – Its is a medical meaning.

Expressio unis estexclusio alterius

Latin: “the express mention of one thing is to exclude all others”.
Applied to a list of words where there are no general words at the end of the list. If the word does not appear in the list then parliament did not intend it to be prohibited. “Riding of trail bikes is prohibited in National Parks, ‘A Class’ Nature Reserves and Conservation Areas”
Riding trail bikes in ‘B Class’ Nature Reserves is permitted because the express mention of the others excludes ‘B Class’ Nature Reserves.

Interpretations and Precedent

Once a court has declared the statute law – that is said what a statute means that interpretation is a precedent. Lower courts must apply the statute as declared by higher courts.
Equivalent or superior courts will regard the interpretation as persuasive.

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Sales and Lease Warranties

Overview

A warranty is an assurance of fact upon which a party may rely.
• Warranty of Title.
• Express Warranty.
• Implied Warranty of Merchantability.
• Implied Warranty of Fitness for a Particular Purpose.
• Implied warranty arising from the course of dealing or trade usage.

Warranty of Title

Automatically arises in most commercial sales transactions.
UCC-312 creates 3 warranties:

• Good Title.
• No Liens.
• No Infringements.

Warranty Title Disclaimer

Title warranty can generally be disclaimed only with specific language in contract.
Circumstances may be obvious to clearly indicate disclaimer of title, such as a sheriff’s sale.

Express Warranties

Can be oral or written-- don’t have to use the words “warrant” or “guarantee.”

• Any Affirmation or Promise.
• Any Description.
• Any Sample or Model.
To create an express warranty, the affirmation of fact must become the “basis of the bargain.”
And Buyer must rely on warranty when he enters into contract.
Case 23.1: Genetti v Caterpillar Inc (1999).
Statements of Opinion and Value.
Generally excludes “puffing” – “Best car in town”, not an express warranty.
However, expert opinion is not puffery.

Implied Warranties

Warranty inferred at law based on the circumstances or nature of the transaction.
Under the UCC, merchants warrant the goods they sell are “merchantable”, i.e., fit for ordinary purpose for which such goods are sold.

Implied Warranty of Merchantability

• Automatically arises from merchants.
• Goods are of average, fair, or medium-grade.
• Adequately packaged and labeled.
• Conform to promises on label.
• Have a consistent quality and quantity among the commercial units.

Case 23.2: Webster v. Blue Ship Tea Room (1964).

Implied Warranty of Fitness for a Particular Purpose

Arises by any Seller who:

• Knows the particular purpose for which the goods are being bought; and
• Knows the buyer is relying on seller’s skill and judgment to select suitable goods.

Implied Warranty Arising from Course of Dealing or Trade Usage

Arises when both parties to a contract have knowledge of a well-recognized trade custom. Courts infer that both meant this custom to apply to their transaction.

Overlapping Warranties

Occurs when two or more warranties made in a single transaction:

• If warranties are consistent, they are construed as cumulative.
• If inconsistent:
• First: implied warrant of fitness for a particular purpose.
• Then: express.

Warranties and Third Parties

At common law only the Buyer could sue the Seller because she is the one in privity of contract with the Seller.
UCC 2-318 provides 3 alternatives from which the states may choose.

Warranty Disclaimer

Express Warranties can be disclaimed:

• If they were never made (evidentiary matter).
• If a clear written disclaimer in contract with specific, unambiguous language and called to Buyer’s attention (BOLD CAPS UNDERLINED).
Implied Warranties:
• Merchantability: “As Is,” “With All Faults.”
• Fitness for a Particular Purpose: must be in writing and conspicuous.
• If Buyer has the right to fully inspect and either: does so or refuses to do so, warranties are disclaimed as to defects that could reasonably be found.
Case 23.3: International Turbine Services v. Vasp Brazilian Airlines (2002).

Statute of Limitations

Action for Breach of Warranty:

• Begins to toll at tender.
• Buyer must notify Seller within a reasonable time.
• Buyer must sue within four years after cause of action accrues.
If warranty is for future performance, action accrues when performance happens and breach is discovered.

Magnuson-Moss Warranty Act

FTC enforces; Attorney general or consumer can bring action.
Modifies UCC for consumer sales.
Only applies when written warranties are made by Seller (including a service contract).

• If goods > $10 label “full” or “limited.”
• If goods > $15 Seller must make additional disclosures.
Full Warranty: Seller must repair or replace.
Limited Warranty must be conspicuous.
• If limit of time only must say, e.g., “full twelve-month warranty.”
UCC Implied Warranties:
• May not be disclaimed, but can be limited, but must correspond with time of express warranty.

Warranties under the CISG

Art. 35: uses the word “conformity” instead of warranty, but very similar to UCC.

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