“In the High Court, it was held that a Deed of Gift dated the 28th April, 1959, by which the tax-payer conveyed the property to himself and six other members of his family as tenants in common, was a valid Deed and that a subsequent Deed of Settlement relating to the same property was of no effect. The Board submits that notwithstanding this the income from the property must be deemed to be the income of the tax-payer by virtue of Paragraph (1)(ii) of the Second Schedule to the Income Tax Management Act, 1961, which provides for the case where the settlor or person creating the trust “may make use directly or indirectly, by borrowing or otherwise, of any part of the income arising under the settlement or trust.” On this question we agree with the submission made on behalf of the tax-payer, that the provisions of that paragraph only apply if the instrument creating the settlement or trust expressly permits the settlor or other person to make use of the income, and that it is not enough for the Board to show that he has in fact done so.”
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