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GAZETTE
JANUARY/FEBRUARY 1992
Stamp Duty - No Amnesty for Interest
Section 100 Finance Act 1991:
Penalties and Interest.
Many commentators on s 100
Finance Act, 1991 took the view
that there was a lacuna in the Act
because the new penalty and
interest provisions did not take
effect until 1 November, 1991 and
that the old provision in s 15 Stamp
Act, 1891 was repealed on 29 May,
1991 the date of passing of the
Act. On that interpretation no
penalties or interest were leviable
on i ns t r umen ts presented for
stamping between 29 May, 1991
and 1 Novembe r, 1991. The
Revenue response was to state that
the interpretation of statutes is
confined to the actual words used.
To d e t e rm i ne t he sense and
meaning of s 100, the section must
be construed as a whole. Given the
use of the word 'substitute' in the
section and given the ordinary
meaning of that word, the correct
interpretation of the section is that
the old provisions cease to have
effect only when new provisions
become operative. To contend that
s 100 created a legislative void
would be to strain the plain mean-
ing of the words of the Act and the
intention of the Oireachtas beyond
what is reasonable and acceptable.
Bo th v i ews appear to have
overlooked Section 19 (1) of the
Interpretation Act, 1937 wh i ch
provides:
'.'Where an Act of the Oireachtas
repeals the whole or a portion of a
previous statute and substitutes
other provisions for the statute or
portion of a statute so repealed, the
statute or portion of a statute so
repealed shall, unless the contrary
is exp r es s ly p r ov i ded in t he
repealing Act, continue in force
until the said substituted provisions
come into operation".
A recent application
(O'Leary -v-
Revenue Commissioners)
to the
High Court seeking liberty for
judicial review of a decision of the
Revenue Commissioners to charge
a penalty on an instrument pre-
sented for stamping during the
period 29 May, 1991 and 1
November, 1991 was refused. An
appeal against that decision was
unsuccessful in the Supreme Court
(21 November, 1991) where Mr.
Justice O'Flaherty pointed out that
s 19(1) gave the complete answer
to the application.
While November 1 has gone by, the
above may be of interest to a
number of taxpayers who paid
under protest in the hope that the
Revenue ruling might be set aside
by the Courts.
B.H. Gib/in B.L.
The then Chairman, of the Taxation
Committee, Brian Bohan, wrote to
the Revenue Commissioners
last
November about this issue and
received the following
reply:
Dear Mr. Bohan,
I refer to your letter of 4 November
concerning the statement of prac-
tice on stamp duty and in particular
the provisions in the Finance Act,
1991, relating to the charging of
interest. Although your letter does
not outline the aspects of our inter-
pretation of section 100 with which
you disagree I assume that the
disagreement revolves around the
treatment, for penalty purposes, of
instruments presented for stamping
between the passage of the Act and
1 November, 1991. An argument
has been advanced that there were
no provisions for the charging of
interest during that period.
Apart from the fact there was
certainly no intention to create a
legislative void for the charging of
interest it is the view of the
Revenue Commissioners that even
the most literal reading of section
100 does not support the con-
tention that one was created. In the
interpretation of statutes one is, in
general, confined to a consideration
of the actual words used. Section
100 refers to the substitution of a
new section for the then existing
section 15 of the Stamp Act, 1891.
At the end of the revised section 15
it is stated that the effective date
of the revised provisions is 1
November. To determine the sense
and intention of section 100 the
section must be construed as a
whole. A dictionary definition of
" subs t i t u t i on" is "change of one
t h i ng for a n o t h e r ". The Act
changes the then existing section
15 for the revised version. That
change can only take place on the
coming into effect of the revised
section 15 i.e. 1 November, 1991.
Any other interpretation would lead
to the conclusion that the then
existing section 15 was substituted
for by a legislative blank. This
wou ld be to strain the plain
meaning of the words of the Act
and the intention of the Oireachtas
beyond what is reasonable and
acceptable.
Given this technical background to
the interpretation of the section its
practical effect is to provide that
instruments executed prior to 1
November are liable to the then
prescribed interest charges up to
31 October. Thereafter they are
liable to the new charges. A
comparable situation has arisen
many times in other taxes where
interest charges have been varied.
Stamp duty is unique only in that
the charges were not varied for
over a century.
There remains then the question of
the further interest charges of
10%, 2 0% and 3 0% of the duty
provided for in section 100 of the
Finance Act, 1991. These further
cha r ges w i ll app ly to pre 1
November, 1991 documents as if,
for the purpose of these charges,
the documents were executed on 1
Novembe r, 1991. Th is avoids
(Continued on page 34)
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