Gould v Curtis.

Image 1 in PDF format. Available for Offline Print In the Court of Appeal. 18 April 1913

[1913] 3 K.B. 84
Cozens-Hardy M.R., Buckley and Kennedy L.JJ. 1913 April 17, 18. RevenueIncome TaxDeductionPremium on Life InsuranceSum payable on Death before, and Larger Sum if alive, on Certain DateIncome Tax Act, 1853 (16 & 17 Vict. c. 34), s. 54. An insurance contract, whereby, in consideration of an annual premium, 100l. is payable on the death of the assured within fifteen years and 200l. if he is alive at the end of that period, is an insurance on his life within the meaning of s. 54 of the Income Tax Act, 1853, and the assured is entitled to deduct the whole amount of the premium from his assessment to income tax. Decision of Hamilton J. [1912] 1 K. B. 635, affirmed. Observations in Joseph v. Law Integrity Insurance Co., Ld. [1912] 2 Ch. 581, approved. APPEAL from a decision of Hamilton J. Commissioners of Income Tax. The case stated was as follows: Gould appealed against an assessment to income tax made upon him, under Sched. D, for the year ending April 5, 1911, and claimed that he was entitled to a deduction therefrom of 11l. 11s. 8d., being the whole of the premium paid by him under a policy of assurance dated March 12, 1908.
1

upon a case stated by

By the policy, in consideration of an annual premium of 11l. 11s. 8d., the assurance company covenanted that, if the assured should die before March 1, 1923, they would pay 100l. upon his death, or would pay the sum of 200l. if he should be living on that day. A policy in that form was called a double endowment assurance policy. The form of proposal, which was filled up and signed by Gould for the purpose of effecting this insurance, contained the questions and particulars usual in proposals for ordinary life insurance. The premium was actuarially calculated as on a series of alternative risks dependent on the assured's life, that is to say, the respective chances of the assured's dying before March 1, 1909, and before each subsequent March 1 up to and including 1923, and the*85 premium was calculated in regard to such fifteen chances and on the amounts payable in respect of their respectively happening. The risk was estimated by actuarial calculations based on a recognized table of mortality. The appellant admitted that he took out this policy partly as an investment of money, his main object being to make provision for people if he died. Endowment policies, assuring sums payable on and in the event of the assured attaining a particular age, no payment being made in case of previous death, had been in use since 1805. About 1840 there first came into use policies under which the right to payment on reaching a certain age was combined with the right to payment on death; under these policies payment was to be made either (a) at a particular date or on the previous death, or (b) on attaining a particular age or on the previous death. This kind of assurance constitutes more than one-half of the business (other than industrial assurance) of some of the life assurance companies. Where under such policies the same sum was payable at death or at the alternative time therein mentioned, a deduction for the purposes of assessment to income tax, under s. 54 of the Income Tax Act, 1853 16 & 17 Vict. c. 34 2, equal to the whole premium, but not exceeding one-sixth of the income, was invariably allowed, but only as a concession and without any admission of legal right except as to such part of the premium as would be applicable to the sum payable at death. The surveyor of taxes did not object to a deduction in respect of so much of the premium as was attributable to the sum payable on death before March 1, 1923, but contended that, as to the alternative amount payable if the assured was alive*86 on March 1, 1923, the insurance was not an insurance on his life within the meaning of s. 54. The Commissioners decided that the policy was not only a policy of life insurance, but also a contract for an investment, and that part only of the premium was applicable to the life insurance risk; and that only that part of

the premium could be deducted, the amount being a matter for actuarial calculation. On appeal that decision was reversed by Hamilton J., who held that by the policy in question the assured had effected an insurance on his life within the meaning of s. 54, and was entitled to deduct the whole amount of the premium from the profits or gains in respect of which he was liable to be assessed. The respondent appealed. Sir J. Simon, S.-G., and W. Finlay, for the appellant. A contract in consideration of an annual payment to secure a deferred payment of a lump sum on a certain date if the assured shall then be alive is not an insurance on his life within the meaning of s. 54 of the Income Tax Act, 1853. If it be so, it is difficult to see why the section should go on to provide for the Case of a person contracting for a deferred annuity on his own life, seeing that that would be within the contractual provision for a benefit to himself dependent upon the continuance of his own life which it is contended that insurance on his life means. Sect. 54of the Act of 1853 draws a distinction between an insurance on life and a contract for a deferred annuity, the inference being that a contract for the payment of a deferred lump sum was intended to be excluded. The Income Tax Acts contain no definition of life insurance, and definitions contained in statutes passed for different purposes are not helpful in determining the question now before the Court. The definition of life insurance given by Parke B. in Dalby v. India and London Life Assurance Co. 3 exactly applies and is in favour of the contention of the Crown. That definition is as follows: The contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a*87person, in consideration of the due payment of a certain annuity for his life, - the amount of the annuity being calculated, in the first instance, according to the probable duration of the life; and when once fixed it is constant and invariable. [KENNEDY L.J. Looking at the whole contract in this case, is it not an insurance on life?] It is all one bargain, no doubt, and it is not contended that a mere incident in the contract (substantially a life assurance) would take it out. Here each part of the contract is equally substantial.

[COZENS-HARDY M.R. referred to Prudential Insurance Co. v. Inland Revenue Commissioners. 4] That case turned upon the definition in s. 98 of the Stamp Act, 1891, and although at first sight it seems to be against the contention of the Crown, yet, when examined, it is really in favour of it. Channell J. there recognized that a contract of life assurance was not so wide as a contract of assurance upon an event or contingency relating to or depending upon any life. That case was followed in Joseph v. Law Integrity Insurance Co. 5, where Farwell L.J. adopted what was said by Holmes L.J. in Flood v. Irish Provident Assurance Co. 6 In Joseph v. Law Integrity Insurance Co. 7 the company were bound to be defeated if any portion of the business they were carrying on came within the class of insurance on life. But the real question for decision in this case turns upon the meaning of s. 54 of the Act of 1853. The submission is that the Legislature intended the words insurance on his life to have the same meaning as they had in 1806, when they certainly would not have included a contract insuring the payment of a lump sum during the life of the assured. Danckwerts, K.C., and St. J. G. Micklethwait, for the respondent. The decision of Hamilton J. was right. This was an insurance on his life within the meaning of s. 54 of the Act of 1853. The history of the legislation on the subject is sufficient to shew that in 1853 the Legislature was well aware of the existence of this kind of insurance, and if it had been intended to exclude it from*88 the benefit of the exemption it would have been plainly so provided in the Act. Sect. 54 only applies to contracts with insurance companies. See also Colquhoun v. Heddon. 8 [BUCKLEY L.J. In Prudential Insurance Co. v. Inland Revenue Commissioners 9Channell J. says a contract of insurance must be a contract for the payment of a sum of money, or for some corresponding benefit to become due on the happening of an event, which event must be of a character more or less adverse to the interest of the person effecting the insurance.] That was dissented from in the Irish case reported in a note to Joseph v. Law Integrity Insurance Co. 10 [They also referred to Dalby v. India and London Life Assurance Co. 11 and Godsall v. Boldero. 12] Sir J. Simon, S.-G., in reply.

[BUCKLEY L.J. What is the difference between insurance and assurance?] According to the Oxford Dictionary the terms have been used indiscriminately for contracts relative to fire, life, and shipping. It is not suggested that there is any difference. The meaning of either word is making something certain. The expression insurance on life has been used in a chain of Income Tax Acts, and in this section of the Act of 1853 the second branch of exemption means something which is not included in the first. An insurance on life is limited to payments to be made in the event of death, and does not include a contract under which the assured is entitled to receive a lump sum of money during his life. [ Danchwerts, K.C., referred to the Life Assurance Companies Act, 1870.] COZENS-HARDY M.R. This appeal raises an important question upon the true construction of s. 54 of the Income Tax Act of 1853. The question is really whether the right to an abatement in respect of premiums payable by a man on a policy on his*89 life includes payments made by him in respect of a policy, which is often called an endowment policy, under which 100l. is payable in the event of his death within fifteen years and a lump sum of 200l. if he survives the fifteen years; or whether the benefit conferred by s. 54 is limited to the case in which a sum of money is insured payable only to his executors, administrators, or assigns on his death. Hamilton J. has held that an endowment policy of the nature I have described is within the section, and I agree with his decision. This is a case in which, no doubt, it is useful for some purposes to go back to the history of the income tax and of the legislation with reference to this particular abatement or allowance. In the Act of 1799 (39 Geo. 3, c. 13) there is found in the schedule 13 a provision which entitled certain people to have an abatement in respect of their premiums, the language being the same as in the Act of 1806 (46 Geo. 3, c. 65): Persons who have made or shall make insurance on their respective lives, or on the lives of their respective wives, shall be at liberty, in addition to any other deductions, to deduct the amount of the premium of such insurance for the current year. Then there is this provision: Persons entitled to any income during and depending upon the life or lives of any other person or persons who have made, or shall make, insurance on the life or lives of such other person or persons, shall be at liberty, in addition to any other deductions, (except the

deduction hereinafter mentioned) to deduct the amount of the premiums of such last mentioned insurance for the current year; provided that if, after the death of such other person or persons on whose life or lives such insurance shall have been made, the income, or any part thereof from which such premiums have been deducted, shall be continued, or the estate from whence the same arose renewed, or shall have been usually continued, or the estate from whence the same arose shall have been usually renewed by the payment of a fine or fines, then and in such case no deduction shall be*90 allowed The first provision which I have just read was No. 5 in the General deductions from Income given in the schedule. The next one, No. 6, is much wider and seems to give exemption to premiums not only paid in respect of a man's own life or his wife's life, but of other people too on their lives. That was a statute which in no way referred to insurance companies. It was perfectly general, and that was continued for relevant purposes in the Act of 1806, which I have before me. The words of s. 178 of that Act are: That in case any person shall have duly claimed and proved his title to such allowance as aforesaid for income less than 150l. per annum, and such person shall have made insurance on his life or on the life of his wife, the amount of the annual premium whereon shall have been included in the amount of such income, there shall be granted out of the duties so charged a further allowance bearing the like proportion That fell to the ground when the income tax was abolished in 1815, and from 1815 until 1842 or 1843 there was no such thing as income tax. When the income tax was first reimposed by Sir Robert Peel there was no corresponding abatement allowed in respect of premiums on policies. Then we come to 1853, the income tax having been continued, as we know, from time to time up to that date. It is important to observe the enactment in the Act of 1853 in two points. First of all, it is limited to contracts of insurance with an insurance company, whereas the old Acts had no such limitation. In the next place there are words here added to the former words: who shall have made insurance on his life or on the life of his wife, or shall have contracted for any deferred annuity on his own life or on the life of his wife, in or with any insurance company. It was contended on behalf of the Crown that in construing these words we must suppose that that language in 1853 had precisely the same meaning as it had in 1799 or in 1806. I do not assent to that. I think in 1853 Parliament was dealing with a perfectly well known, well established, and very large class of business, namely, the business of insurance companies which entered into contracts of insurance on people's lives to an enormous amount; and in order to consider the meaning of the words used in 1853, limited as they*91 are to contracts with insurance companies, I decline to refer for that purpose to the meaning of those words in the Acts of 1799 or 1806, which had no special reference whatever to insurance companies.

Now what was the meaning of those words contract of insurance on his life or on the life of his wife as understood commonly in the business world, by insurance companies, and by other people in the year 1853 and onwards? I think the shortest way in which I can deal with this proposition is to repeat what I said inJoseph v. Law Integrity Insurance Co. 14 I thought it was legitimate to look at works of authority on the branch of law dealing with this matter, and I referred to Mr. Bunyon's book as a book of authority on this subject, the first edition of which was written in 1853 and published in 1854. It was contemporary with this Act. It was not dealing with a subject which was then first started, but it was dealing with what was well known in the insurance world. Mr. Bunyon gives this as a definition of life insurance: The contract of life insurance may be further defined to be that in which one party agrees to pay a given sum upon the happening of a particular event contingent upon the duration of human life in consideration of the immediate payment of a smaller sum or certain equivalent periodical payments by another. Is not that a legitimate thing to refer to, having regard to the statements which we find in the special case? Instruments known as endowment policies, we are told, assuring sums payable on and in the event of the assured attaining a particular age, no payment being made in the event of his or her previous death, have been in force since 1805. And About 1840 - that is thirteen years before this statute there first came into use policies under which the right to payment on reaching a certain age is combined with the right to payment on death. Under these instruments sums were contracted to be paid either (a) at a particular date or on the previous death of the assured; or (b) on the assured attaining a particular age or on the previous death of the assured. This kind of assurance constitutes more than one half of the business (other than industrial assurance) of some of the life assurance companies at*92 the present time. Therefore the subject-matter with which we are now dealing was one with which in the year 1853 insurance companies were dealing largely. It is a topic which must have been familiar to any writer of authority who was considering what the meaning of insurance on his life was at that date. I think, therefore, that there is no reason to doubt, and as far as I am concerned I feel no doubt, that under the language of that section the policy in question is a contract of insurance on his life, and none the less because in the event of his surviving fifteen years, which is a contingency dependent upon the continuance of his life, of course, he will receive 200l., although in the other event, in the event of his death before the expiration of fifteen years, his executors will only receive 100l. It has been suggested that this cannot be a contract of insurance because the continuance of life is not an event which can be fairly said to be adverse to the interests of the insurer. This is based really upon a passage in the judgment of Channell J. in the Prudential Company's Case. 15 He was there

dealing with an argument which had been addressed to him by counsel. Dealing with the case of an insurance by a man who was of the artisan class, with small weekly payments, he pointed out that a payment made to a man in that class when he attains sixty-five, or whatever the age might be, is one which may be fairly said to contemplate an adverse event to the man who probably might not then be able so well to maintain himself and his wife. If, however, the learned judge intended to lay down that there cannot be a contract of insurance unless the event is of a character more or less adverse to the interests of the person effecting the assurance, with the greatest possible respect to the learned judge, I do not think that is accurate. I do not think it is true to say that there can be no insurance except the event covered by the contract is one which is in its nature adverse to the assured. I do not think it really necessary to consider the puzzle which arises upon the subsequent words of the section, or shall have contracted for any deferred annuity on his life or on the life of his wife. This document is in the form of an assurance policy on*93 the assured's own life, and it is called an own life policy. It is not a deferred annuity policy. I think those subsequent words were inserted in order to remove any doubt which there might have been as to whether a deferred annuity policy could be considered to be an insurance on his life, or on the life of his wife. This policy in question seems to me to come within the first words of s. 54, and there is nothing, either in the prior legislation or in the prior decisions, which justifies us in coming to a different conclusion. With reference to the case recently before this Court, Joseph v. Law Integrity Insurance Co. 16, although it turned upon the construction of words in a different Act of Parliament, yet I think the observations made by every member of this Court in that case, though they may be mere dicta, are really dicta which in the present case, as far as I am concerned, must now have the force of a decision. I think this appeal fails and must be dismissed with costs. BUCKLEY L.J. The respondent could is the holder of a policy under which an insurance company have covenanted with him that if he should die before March 1, 1923, they will pay 100l. on his death, or if he should be living on that day they would at that date pay him 200l. The annual premium is 11l. 11s. 8d. The question is whether he is entitled to have an allowance by way of deduction of that annual premium under s. 54 of the Income Tax Act, 1853. Hamilton J. has held that he is. In my opinion that is right.

The question is one of construction of s. 54. The section commences by specifying two matters between which occurs the disjunctive or, and it is argued, I think quite soundly, that when you find the expression A or B you ought as a matter of construction, if you can - unless driven to a contrary conclusion - to say that B is an alternative to A and is not included within A. It is contended that that principle of construction ought to be applied to this Act, that the words after or include deferred payments during life, and that such a payment is therefore excluded from the previous words insurance*94 on his life. But take the case, it is a possible case, I suppose, of a deferred annuity commencing on the death of the assured, or commencing in his lifetime and continuing for say ten years after his death. That will be included in the words following the word or. The words occurring after the disjunctive are therefore words characterized not by the quality of being payable during as distinguished from at or after the death but by the quality of periodicity of payment. To give full effect therefore to the rule of construction it is not necessary to say more than that the first words do not include periodical payments of that kind. The contrast of the antithesis of the two phrases may lead to the exclusion from the former of periodical payments, but does not tend to any determination at all as to when the payment of a lump sum as distinguished from a periodical sum is to be made. It may be a sum payable at death or a sum payable at an earlier date dependent upon a contingency, namely, the contingency of living at that time. An argument was advanced that the word on in the connection insurance on his life is confined to a payment to be made at the death. If that is so, then an annuity on the life must equally be an annuity commencing at the death. No one can say that it is. It may be and generally is an annuity current during the lifetime and terminating on the death. An annuity on life cannot be confined to something payable at death. By parity of reasoning an insurance on life is not confined to a payment to be made at death. What then is the true meaning of the words insurance on his life. There would, to my mind, be a significant difference if the preposition were of and not on. I can agree that the phrase insurance of the life may as matter of English mean a guarantee of a sum to be paid if the life drops. Insurance on it is, to my mind, a different thing. It means the insurance of a sum dependent upon it. The life is mentioned as a contingency upon which the insurance is to be paid. The contingency is death or no death - death or life. Insurance on life is an insurance of a sum payable or not payable according as the contingency of life or death is answered*95 one way or the other. Regarded thus, it is plain that an insurance on life includes as much an obligation to pay a sum of money if life continues at a date as an obligation to pay a sum of money if life ceases. An insurance on life

expresses an obligation to pay a sum of money on an event dependent upon the contingency of human life. If that be sound, it follows that the whole of this premium is deductible, because this is altogether an insurance on life. I wish to add a word as to something which was said by Channell J. in the case ofPrudential Insurance Co. v. Inland Revenue Commissioners. 17 The particular words to which I venture to take exception are these, at p. 664: which event must have some amount of uncertainty about it, and must be of a character more or less adverse to the interest of the person effecting the insurance. The learned judge was using those words in connection with a policy of life insurance, and he gave a reason there why he thought there was in that case an adverse risk. As to that I say nothing; but what I want to say is this: If the policy be one such as a fire policy, or a marine policy upon a vessel, it is a policy of indemnity, an obligation to indemnify. In insurances of that class I agree that what you look at is to see whether there has occurred an event adverse to the person who is insured, such as that, having suffered a loss by reason of that adverse event, he is to be indemnified by the sum which is guaranteed to him under the policy. The same is not true of a policy of life insurance. A policy of life insurance is not a policy of indemnity, but is a policy upon a contingency. Death cannot for this purpose be appropriately described as an adverse event. It is an event which some people regard as adverse, and some do not. But for this particular purpose it is not adverse, for it is not in the sense that it occasions pecuniary loss, which is what is meant in the case of a fire or marine policy. The obligation in a policy of life insurance is not based upon any doctrine of compensating the person for the event. Money is no compensation for death. An insurance upon life is the creation in favour of a person who has an insurable interest of an obligation to pay money in an event, namely, the contingency*96 of human life. Whether the contingency be the continuance of life at a date or whether it be death, in both cases it seems to me that it is included within the expression insurance on life contained in s. 54. For those reasons I think that this policy-holder was the holder of a policy the whole of the premiums upon which he was entitled to deduct under the provisions of s. 54, and the result is that I think this appeal should be dismissed. KENNEDY L.J. I am of the same opinion. We have had a good deal of most interesting discussion as to the proper construction of statutes in general, and of this statute in particular, and a good deal of discussion as to what ought to be the meaning of the word on when you speak of an insurance or a policy on life. The most important thing to bear in mind is, that the whole scheme of

this legislation, beginning at the end of the eighteenth century and continuing until to-day, is the encouragement of thrift. That is the base principle of such legislation as this. In order to encourage thrift there is an exemption from taxation to a certain extent, which is an exemption in respect of sums of money devoted by the subject who is taxed to assuring at a subsequent date for the use of his family, whom by law he is bound to support, or himself, of course, if he is the only person still living, or to his family or his creditors when he dies, of a sum of money; and the object of the legislation must be carefully borne in mind as a matter alike of justice and common sense, when you have to construe legislation which refers to taxation of this kind. The law intended to give the taxpayer some relief in respect of such sum as he was paying as a thrifty person, in order to encourage such thrift generally. So approaching the statute it seems that one is entitled, in the first instance, to look without favour upon an interpretation which would arbitrarily limit the form which that thrift should take. It seems to me that it cannot matter for that purpose whether the sum to be insured and for which present payment or payment in premiums is made is a lump sum payable in the case of death or a lump sum payable if the assured survives a certain time. It seems to me that it ought to require some*97 very cogent reason of construction in order to interfere with the plain and universal policy of such legislation as this. When we come to this particular clause it is contended that although that may be the principle, the construction of the words, read as a statute ought to be read, according to the natural meaning, does not allow of the principle being carried out. I agree with Hamilton J. that there is a great deal of force in the point that was put with regard to construction; that if you disjoin two classes of things, and by disjoining them assert necessarily a degree of difference between them, prima facie you ought not as a matter of construction to include in the first the second which has been disjoined from it. But I entirely agree with the Master of the Rolls in saying that in this you ought not to look at this matter from a highly technical standpoint, but at what I may call the popular sense of the words. It is legislation in regard to life insurance. Life insurance in the year 1853, as now, was not limited, and never has been limited, to the mere contract for a payment upon death. The statute is enacted in terms which had a popular and perfectly understood meaning, and when I say popular I do not mean in a sense different from that which would be understood by commercial and business men who had to deal with this class of business: I mean popular as opposed to a limited and technical sense. In this case I agree that we cannot do better than do what his Lordship did in the beginning of his judgment in Joseph v. Law Integrity Insurance Co. 18, by taking Mr. Bunyon's book on Life Assurance and saying that, if you speak

of a contract of life insurance, or an insurance on life, it may be defined to be that in which one party agrees to pay a given sum upon the happening of a particular event contingent upon the duration of human life. It is an insurance on the subject of life, or, as was put by the Irish judges in the case which is now reported, really it may be expanded to being an insurance, in one sense, upon a life; that is, either where the payment is upon that life ending, or in reference to the duration of the human life. Here the contingency, apart from death, upon which by the contract the assured is entitled to payment of a lump sum, is that of his*98 surviving a certain number of years. That is a contingency, or an event contingent (to keep to the exact words of Mr. Bunyon's work) upon the duration of human life. I agree with Buckley L.J. as to the importance of remembering that the word is on and not an insurance of, and I should not personally be afraid of saying that the Legislature was anxious in adding the other alternative which is disjoined, to prevent its being said by any possibility that that was a form of insurance which was not intended to be covered by the earlier legislation, although the earlier phrase might in fact include it. I have only to add that with regard to the judgment of Channell J. in the case in the year 1904, which we generally approved in the judgment in Joseph v. Law Integrity Insurance Co. 19, I am not disposed at all to differ from the criticism that has been used, if we are to construe it strictly, of the word adverse in the judgment of Channell J. I approved that judgment in my own terms, and I am still of opinion that, while it is quite right that in this case it should go forth that there may be question as to adverse being universally a proper test, I think as used by Channell J. it represents a real and not an immaterial fact. In a sense, and particularly with regard to the insurances effected by workmen for small weekly payments, it may well be said that such an insurance against what may happen to the man or to his family in regard to the possibility of wage-earning at a later period of his life is an insurance against an adverse event, namely, the coming of a time when, although he is still living, it may be more difficult or even impossible for him to earn wages as before. In the same way you may use the word adverse in speaking of death. It is equally true that, speaking generally (and we are not legislating in the clouds, but for actual human events that happen in the community), death is an adverse event as regards the family and creditors, and that is why a creditor has an insurable interest in the life of his debtor. You desire to guard (and I think my brother Channell had that in view throughout) against the happening through old age or death of an event which, unless you provide against it by thrift, will result, I will not say in*99 adversity or anything adverse, but in a position of pecuniary disadvantage against which the thrifty person desires, and rightly desires, to insure himself, or his family or his creditors.

Therefore there is, in that sense, in reference to a contingency relating to the duration of human life, the happening of an event - of course it is not like the burning of a house or the destruction of a ship, and has no reference to the question of indemnity - but an event which places a man from a pecuniary point of view in a less favourable position than he otherwise would have occupied. Therefore while I agree that the word adverse may not be quite the right word to use as a universal test, still I think it was properly used in reference to the policies which Channell J. was considering. I agree in this particular case, on the construction of this particular section, that the decision of my colleagues for which they have fully stated their reasons is the right one.

Representation
Solicitor for the Crown: Solicitor of Inland Revenue. Solicitor for respondent: A. E. Pratt. Appeal dismissed. (G. A. S. )

1. [1912] 1 K. B. 635. 2. , s. 54: Any person who shall have made insurance on his life or shall have contracted for any deferred annuity on his own life in or with any insurance company which shall become registered shall be entitled to deduct the amount of the annual premium paid by him for such insurance or contract from any profits or gains in respect of which he shall be liable to be assessed under either of the schedules (D) or (E) of this Act Provided always that no such abatement allowance or repayment as aforesaid shall be made in respect of any such annual premium beyond one-sixth part of the whole of the profits or gains of such person so chargeable as aforesaid