Judge dismisses claim by US TV actor that his house was not liable for council tax

The High Court has rejected an attempt by American actor Mercer Boffey to argue that his house in Richmond is not liable for council tax.

Mr Justice Constable described as “misguided” Boffey’s argument that his listed Grade II Queen Anne-era property in Petersham failed to meet the definition of 'hereditament' for council tax purposes.

The actor, whose credits include Ugly Betty and It's Always Sunny in Philadelphia, brought the case against listing officer Lucy Dyer. He contended his property failed to meet the definition because he owned it absolutely, it was only used for his family's private accommodation and he had not sought any permission to retain rents as a licensed provider.

Constable J said in his judgment: “If Mr Boffey was right, of course, it would have rather stark consequences for the lawfulness of many billions of pounds raised by local authorities under successive governments for over three decades, given that he and his family are in no different position in relation to their property to many millions of homeowners around the country. That fact does not, of course, directly affect the correct answer in law.”

Boffey had paid council tax since he bought the property in 2018 and it had been listed in council tax band H since 1993.

After Dyer rejected the de-listing application, Boffey appealed to the Valuation Tribunal for England (VTE), where tribunal president Gary Garland struck out his appeal on the basis it had no reasonable prospect of success.

Boffey then went to the High Court where he argued it was an error for the VTE to assert 'subject matter jurisdiction' over a property case that may have been outside its competence to adjudicate and in which it also lacked the power to order the relief sought.

He also argued Garland erred in striking out the original appeal without affording Boffey pre-hearing disclosure, and by basing his decision on an inconsistent interpretation of well settled law.

Constable J said: “I am entirely satisfied that the listing officer and the VTE had the requisite jurisdiction, derived from statute, for making the decisions they did.”

The judge said the starting point was the definition of hereditament as considered by the Supreme Court in Woolway v Mazars [2015] UKSC 53.

He said 'hereditament' concerned the identification of a particular unit of property for taxation and did not “inherently speak to the circumstances in which such a property may, or may not, pursuant to statute be subjected to tax”.

“At the heart of Mr Boffey's argument seems to be the submission that by deciding to use the word 'hereditament' by reference to the 1967 General Rate Act (rather than, for example, a word in its own right), the word has become imbued with the necessary characteristics of a hereditament which is, itself, rateable under the 1967 Act.”

Constable J said nothing in the 1967 Act indicated that its 'general rate' provisions were limited to a context in which the property was used for a financial gain

“It is simply wrong to say that a conventional dwelling – a privately-owned house or flat, occupied for the purposes of living accommodation with no element of financial reward or benefit – fell outside the scope of 'hereditament' under section 115(1),” the judge said.

Boffey's written skeleton argument focused on the difference between 'use' and 'occupation', and the concept of beneficial occupation.

“Neither the concepts of 'occupation' nor 'beneficial occupation' are of relevance to the proper construction of 'dwelling' under the Local Government Finance Act 1992,” Constable J said.

He added: “The suggestion that a request for and/or grant of permission by a local authority for a property to be rented pursuant to a licence is somehow a necessary precursor to the premises being a 'dwelling' for the purposes of the 1992 is without statutory or any other foundation.

“It is explicit nowhere. It is not implicit in the word 'hereditament' or 'dwelling'. It is simply irrelevant to the statutory obligation to pay council tax in accordance with the 1992 Act.”

Constable J said Boffey's argument that the meaning of 'dwelling' under section 3(2) of the 1992 Act cannot include domestic property by analogy to the structure of the 1988 Act was “equally misguided”.

He concluded the VTE president had been “entirely correct in his conclusion that as a matter of law, Mr Boffey's appeal against the listing officer's refusal to delist the property stood no real prospect of success.

“Having formed that view, he was well within his case management powers to exercise the right given to him to strike out the appeal without hearing. Indeed, he was obviously correct in the circumstances of this case to do so.”

Mark Smulian