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Capital Allowance: Whether a Ship used as a Restaurant constitutes Plant


High Court of Justice

(Chancery Division)

Court of Appeal


Benson (H.M. Inspector of Taxes)

v

Yard Arm ClubLtd


15 January 1979

England & Wales


In 1962 the Company bought a secondhand ship and converted her into a floating restaurant.


The converted hulk had no means of propulsion or steering.


She was moored with an attendant barge at a permanent site on the Victoria Embankment.


The Inspector refused capital allowances for the cost of the ship and subsequent expenditure upon her for the years 1963-64 to 1965-66 and for subsequent accounting periods up to and including the year to 31 December 1973.

On appeal the General Commissioners upheld the Company's contention that the hulk was plant, on the grounds that it was the principal means of attracting people to the restaurant.


In the High Court, the Company did not seek to defend the grounds of the Commissioners' decision, but contended that for the purpose of deciding if something is plant, assets fall into two classes:

  • the first class being land and buildings and structures on land,

  • the second comprising all other assets, including the floating restaurant.

The test for the former, it was argued, is stricter: the asset has to play a part in the commercial process.


For the second class the asset merely needs to be something kept for permanent employment in the trade; the authorities establishing a rigorous functional test were all concerned with the former class and thus irrelevant.


Alternatively, the Company's trade was not merely that of a restaurant, but a floating restaurant.


In that specialised trade the hulk had a functional role.


The Crown contended that the hulk and its barge were simply the place or setting of the trade and not a means for carrying it on.


The Chancery Division, allowing the Crown's appeal, held

  1. that the Company's main argument had no foundation in the authorities even if it were not explicitly inconsistent with them;

  2. that its alternative argument was really for an amenity test, not a functional test; the hulk had amenity value in the Company's trade, but it was not plant, because it was the setting of the trade and not the apparatus used for carrying on the trade.

Dixon v. Fitch's Garage Ltd. 50 TC 509; [1976] 1 WLR 215 followed.

In the Court of Appeal, it was also contended for the Company that ships and hulks were by their very nature "plant", on the authority of John Hall, Junior & Co. v. Rickman [1906] 1 KB 311, and capital expenditure on them therefore qualified for capital allowances.

The Court of Appeal, dismissing the Company's appeal, held that the hulk and the barge, though chattels, were the premises where the business was carried on and not apparatus employed in the Company's commercial activities. John Hall, Junior & Co. v. Rickman (above) distinguished and explained.


Case

Stated by the Commissioners for the General Purposes of the Income Tax for the Division of Spelthorne in the County of Middlesex pursuant to s 56 of the Taxes Management Act 1970, for the opinion of the High Court of Justice.


1. At a meeting of the said Commissioners at Sunbury Council Chambers, Green Street, Sunbury-on-Thames, Middlesex, on 15 December 1976, the Yard Arm Club Ltd. (hereinafter called "the Company") appealed against income tax assessments made on the Company under Case 1 of Schedule D in respect of profits from its trade as restaurateurs, as follows:

1963-64: £200

1964-65: £300

1965-66: £300.

The Company further appealed against corporation tax assessments made on the Company in respect of profits from its trade as restaurateurs, as follows:


Accounting period

  • 1.10.66-30.9.67: £1,000

  • 1.10.67-31.12.67: £200

  • 1.10.67-30.9.68: £1,000

  • 1.1.68-31.12.68: £2,000

  • 1.1.69-31.12.69: £2,000

  • 1.1.70-31.12.70: £12,000

  • 1.1.71-31.12.71: £20,000

  • 1.1.72-31.12.72: £20,000

  • 1.1.73-31.12.73: £20,000.

2. The question for our determination was as follows: whether the Company was entitled to capital allowances in respect of capital expenditure incurred in acquiring the vessel "Hotspur" later known as "Hispaniola" (and referred to here as Hispaniola 1) and the cost of its conversion into a floating restaurant, together with a barge which provided services to it.


The expenditure in dispute related to the hull and structure of the vessels, the Revenue having agreed that capital allowances were due in respect of restaurant furniture, sewage pumps etc.


3. Oral evidence was given by Mr. W.R. Watson-Smyth, formerly chairman of the Company.


4. The following documents were proved or admitted before us:

  1. A schedule of the profits assessable and capital allowances for each period if the case were determined in favour of the Revenue.

  2. A schedule of the profits assessable and capital allowances for each period if the case were determined in favour of the Company.

  3. (A schedule showing summaries of the capital expenditure incurred, the capital allowances granted and the capital allowances disputed for each period.

  4. Schedules showing details of the capital expenditure incurred.

  5. A copy of an advertising circular sent to the Board of Inland Revenue.

  6. Two photographs of Hispaniola 1.

  7. The certificate of registration of Hispaniola 1.

5. The following facts were proved or admitted:

  1. Hispaniola 1 had been originally built in 1927 for use as a ferry between Southampton and the Isle of Wight. Subsequently it had been sold to a firm in Norfolk who used it as a pleasure craft. It was acquired by the Company for £2,449 in 1962.

  2. The reason for acquisition of the vessel was in order to convert it into a restaurant club.

  3. The ship was initially registered as the "Hotspur" at Southampton. Since acquisition by the Company it had been re-registered at Southampton as the "Hispaniola".

  4. During the conversion of the vessel the engines and boiler were removed and it had thereafter no power or steering ability.

  5. The vessel, after conversion, was towed to a permanent site of the Victoria Embankment, where it was used initially as a floating restaurant club and later as a floating restaurant open to the public at large from 13 August 1963 until 1975 when it was replaced by a larger vessel.

  6. The vessel was moved under tow to dry dock for repainting and maintenance every few years (maximum five).

  7. When the shares of the Company were acquired (in 1967) by Mr. Watson-Smyth and other members of his family, the ship comprised three decks;

  8. a hold where the washing-up etc., was done, which was served by a lift from the other decks,

  9. a main deck containing bars, toilets and restaurant facilities and

  10. an upper deck comprising table facilities and the kitchen.

  11. Associated with that was the barge which was necessary for the gangway to come down and slide on.

  12. It also contained sewage disposal equipment and waiters' changing rooms, etc. In 1972 a new kitchen was built on the barge.

  13. The barge was fixed to mooring posts and was able to slide up and down those posts as required by tidal movement.

  14. The maximum tidal difference at the site was about 30 ft.

  15. The Hispaniola 1 was attached to the barge by ropes and chains and was subject to the vertical tide movement of up to 30 ft. and also to movement up and down river to the extent of some 5 ft. caused by the ebb and flow of the tide.

  16. The waves caused it to rock gently from side to side.

  17. The customers of the restaurant nearly all joined the vessel by way of the gangway from the Victoria Embankment but some came by boat, mooring to the barge. They came, to quote the former chairman, "to get good food somewhere different with views of the river, etc. and a shipboard feeling".

  18. The vessel was intended to be kept in a permanently fixed position although it could be moved if required. It was never intended to carry passengers or cargo on voyages.

  19. When it was replaced by a larger vessel in 1975 attempts were made to sell Hispaniola 1 but these attempts had failed and a new mooring was being sought at Hammersmith Pier where negotiations with the local authority had reached an advanced stage.

  20. In the period 1962-73 capital expenditure was incurred as follows:

  21. Cost of hull alterations (including cost of vessel) - £41,254

  22. Cost of lifts, machinery and furniture - £8,517

  23. Cost of additional fixtures, etc.- £26,091

  24. Total: £75,862.

  25. Capital allowances have been granted in respect of the expenditure on the items 2 and 3 above. The dispute arises over item 1.

6. We were referred to the following authorities:

  • Gibson v. Small (1852-54) 4 HL Cas 353

  • European and Australian Royal Mail Co. Ltd. v. The Peninsular and Orient Steam Navigation Co. (1866) 14 LT 704

  • The Mac (1882) 7 P 126