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118
The Gazette of the Incorporated Law Society of Ireland".
[APRIL, 1909
and correct list, declaration, or statement, shall
refuse or neglect so to do." The result would
be that any error or omission, however slight
or however innocent, involves a liability to
treble duty and
£20
penalty at the hands of the
Commissioners, or a penalty of ^50 from the
High Court. On the other hand, it is contended
that the section applies only to non-delivery,
as distinct from delivery of an imperfect or
inaccurate statement.
1 think the latter is the
preferable view
for
several
reasons:—(i)
The Act in other sections speaks of a person as
having delivered " such account as aforesaid " ;
although it is false: see sections 68 and 178.
(2) The words "as aforesaid" naturally refer
to section 48, where the words are " make out
such lists, declarations, or statements as may
be applicable to such person "—that is to say,
lists, declarations, or statements of the cha
racter appropriate to the particular person, and
nothing more.
To avoid misconception, I
may add that a document may be so illusory
that the tribunal would be justified in holding
that there had been no delivery, but no such
case arises here.
(3) The Act contains provi
sions not of a penal character for rectifying
any omission or wrong statement in a state
ment or schedule; see section 129.
(4) The
Act imposes a penalty on a false or fraudulent
statement which is less severe than that which,
on the other hypothesis, is imposed upon an
honest mistake;
see section 178.
(5) The
proviso in the middle of section 55, dealing
only with the case of the trustees acting on
behalf of parties chargeable, pre-supposes non
delivery of any statement and then authorizes a
delivery, after prosecution, of an imperfect
list.
(6) The Revenue is protected by the
power possessed by
the Commissioners to
assess a person making default (section 113),
and to surcharge (sections 161, 162).
I am
aware that there are some provisions of the
Act which support the opposite view.
The
most weighty seems to be found in section 50,
the section which requires a person to give a
list of his lodgers and
employes,
with a proviso
exempting him from a penalty in one event
only.
Section 129 does not, it seems to me,
apply to such a list, nor does section 113 or
section 161.
Notwithstanding the difficulty
caused by section 50 and by several other sec
tions, I think the better view is that which I
have already expressed. Thus far I have dealt
with the case apart from authority, and in
truth there is singularly little authority. After
fifty-five years—viz., in 1897, the question was
raised
in the Scotch Courts
in
the case
of
The Lord Advocate
v.
Sawcrs
(35
Sc.
L.R.,
190, 3 Tax Cases, 617).
There the
Lord Ordinary and
the Judges of the First
Division of the Inner House held that the-
penalty of ,£50 was incurred if the statement
delivered was untrue or incorrect. Now, with
the utmost respect for the learned Judges who
decided that case, and notwithstanding my
strong sense of the importance of uniformity
of decision in
fiscal matters
in all parts of
the United Kingdom, I feel unable to decide
the present case in accordance with the view
adopted in the Scotch Courts.
I am not satis
fied that the arguments addressed to us were
so fully presented to them. The Lord Chief
Justice followed the decision in the Scotch
Courts, and, I think, expressed his own con
currence with their view, but he did not sub
stantially add to their reasoning. Upon the
whole, I think this appeal must be allowed,
with costs here and below.
LORD JUSTICE FLETCHER MOULTON also
read a written judgment, discussing and re
viewing the same sections, and the decision in
the Scotch Courts, which he also declined to
accept, and continued :—A large portion of the
contention on behalf of the Crown was that it
was no hardship in enacting these penalties,
which are so utterly out of proportion to the
gravity of the offence, because the Commis
sioners had power to relieve against them.
I
confess that this argument has very little effect
in reconciling me to an interpretation which
would make the penalties of an unnecessary and
almost barbarous severity.
I have no doubt
that the Commissioners do their duty to the
best of their ability, and that in most cases
they would exercise their power of relief equit
ably ; but there is a great temptation to use
powers of this kind for an indirect purpose, an
example of which is given in the present case.
The action is for a penalty of
£50,
and if the
contention of the Crown be correct, the Court
has no jurisdiction to lessen the amount, how
ever trivial-the inaccuracy may be. Now in
the present case, where no fraud is suggested,
the appellant offered to pay the difference in
the assessment, but the Income-tax officers
refused to stay their hands, unless he would
also pay sums for which he would have been
liable under a similar mistake in previous
years, but which were barred by the provisions
as to limitation of time.
It was on his refusal
to do so, on the ground that the Legislature
had provided that these sums were not re
coverable under the Statute, that this action
for the penalty of ^50 was brought, and it