147 / 228
claim for an increase in duty in respect of such
increased value.
In 1944, the Society took the matter up with the
Controller of Death Duties in connection with a
case in which a claim for additional duty was made
upon executors some years after they had distributed
the estate, notwithstanding that a certificate in
the form mentioned above had already been issued.
The Council took the opinion of Senior Counsel
who advised that Section XI (i) does not impose
any obligation on the Revenue Commissioners to
issue a certificate of discharge as it merely states
that the Commissioners
on being satisfied
that full
duty has been paid
shall
issue
the
certificate.
Furthermore, this certificate is limited to
estate
duty and does not cover legacy or succession duty.
He also advised that Section XI (i) merely discharges
the property and does not release the party account
able from his personal liability.
Section XI (2)
discharges the property and the person accountable,
but here again the discharge is limited to estate
duty.
Certificate No 149, which is issued by the Revenue
Commissioners to the effect that there is no out
standing charge for death duties (including legacy
and succession duties), does not appear to be issued
in pursuance of Section XI of the Finance Act,
1894, and is in fact a non-statutory certificate.
It
is doubtful whether the Revenue Commissioners
have ever issued a statutory certificate in accordance
with Section XI. The effect of the qualifying clauses
which appear in the non-statutory certificate No.
149, is that an executor may not be safe in dis
tributing an estate, without setting aside a fund
to provide for the possibility of outstanding death
duties, until a period of six years has elapsed from
the date of death, having regard to
the danger
that additional facts may come
to
light at a
subsequent date, which were unknown to him when
he distributed the estate, which may give rise to
a
further claim
for duty for which he will
be personally liable.
The following statement in regard to the present
Certificate No. 149, appears at page 28 of the late
Mr. Glover's Treatise on
the Registration of
Ownership of land in Ireland :—
" The form of the certificate issued by the
Commissioners to the effect that on the facts
disclosed to them they have no claim for
duty, is not a certificate that complies with
Section XI of the Finance Act; and having
regard to the express terms of sub-section 3
of that section it is difficult to understand
why or on what grounds the certificate is
issued. Such a certificate at any rate does not
justify an entry in the Registry of exemption
from duty."
61
In February, 1944, the Council suggested to the
Revenue Commissioners that the two qualifying
•
clauses mentioned above should be omitted in
future from certificate No. 149, and that where
an application is made for a certificate the Revenue
Commissioners should decide once and for all what
value they will accept in respect of the property
and issue an unqualified certificate on that basis.
They also suggested that as Section XI of the
Finance Act, 1894, is limited in its application,
and as
the present certificate No. 149 does not
appear to be a statutory certificate it would be
advisable to seek statutory authority for the issuing
in proper cases of a certificate which would relate
to all death duties and would discharge both the
property and the personal representatives or other
accounting parties from liability for such duties.
On February i8th, 1944, Mr. Casey, the Controller
of Death Duties, wrote to the Society referring
to Section 14 of the Customs and Inland Revenue
Act, 1889, which has application both to estate
duty and legacy and succession duties, and which
has the effect of exonerating from liability for duty,
after the expiration of six years from the date of
the furnishing of a full and true account of the
property, an executor or other party accountable
for such duty. Mr. Casey considered that this
section by analogy justifies
the practice of the
Revenue Commissioners in inserting the six years'
qualifying clause in the certificate of discharge,
No. 149.
This argument, however, seems to be
begging the question as it is precisely in cases
which do not come within the scope of Section 14
of the Customs and Inland Revenue Act, 1889,
that the executor requires a certificate of discharge.
If the executor could afford to wait for six years
before distributing the estate he might not require
a certificate to discharge him from his personal
liability, but, as is universally known, an executor
who waited so long before distributing the estate
would be subject to continual pressure from the
beneficiaries, and such delay would in fact be
unreasonable in most cases.
Mr. Casey further pointed out that under Section
XI (3) it is open to any party accountable to request
the Commissioners to determine the value of the
property for the purpose of death duties, and that
once the value has been determined by the Valuation
Commissioners or fixed on an appeal to the Court
from such determination,
it becomes
final and
binding on both the taxpayer and the State. In such
cases the six years' qualifying clause
is
omitted
from Certificate No. 149, but the limitation of the
discharge to the facts disclosed by application for
the certificate remains. It is only in cases where the
Valuation Office
raise no question
on the value of the