339 / 342
GAZETTE
MARCH 1987
purpose to seize, remove and dispose of the
same as the goods and chattels of the deb-
tor for the recovery or enforcement of any
such duties and penalties.
The defendant submitted that by virtue of
Section 24 the Revenue Commissioners had
a statutory lien; that the defendant as surety
could not have enjoyed or enforced such
lien, but that the Revenue Commissioners
should have enforced It against such goods,
realised the goods and applied the sum
realised in lessening the excise duty payable.
The defendant relied upon an extract on
page 132 of Rowlatt on Principal and Sure-
ty 4th edition (1982).
"It is arguable that a surety has an equity
. . . to stay a creditor attempting unfair-
ly to place the whole burden of the debt
upon the surety, at least in special cir-
cumstances, e.g. where there is a sol-
vent principal debtor, or solvent
co-sureties who could easily be but are
not joined in the action, or a security
which could easily be realised to pay the
whole debt . . . one situation in which
the surety's equity has been held main-
tainable against the creditor is where the
creditor has an opportunity to recover
the debt from the principal debtor which
will not be available to the surety."
HELD:
" It is well settled that it is not necessary for
the creditor, before proceeding against the
surety, to request the principal debtor to
pay, or to sue him, though solvent, unless
this be expressly stipulated in the surety
document. There is authority for the pro-
position that the creditor does not have to
resort to securities received by the creditor
from the principal debtor — see
Ranelaugh
(EarlI -v- Hayes
(1683) 1 Vern. 189;
Wilks
-v-Heeley
(1832) 1 Cr. &M . 2 4 9; Re Howe
ex parte Brett (1871) 6 Ch. App 838, 841,
cases cited in Halsbury's Laws of England,
Vol. 15, p.488/9."
"Again, where parties, met upon equal
terms, in the ordinary course of business
enter into a written contract, the law does
not look to or, indeed, permit terms to be
added to such contract — it applies the rule
of strict construction. In the absence of a
mistake or some impropriety, neither of
which is suggested here, the law will not in-
fer an additional term to the contract nor call
in aid some alleged equity which would
delay, if not defeat, in whole or in part, the
remedy expressly provided for in the con-
tract."
It was further held, in upholding the High
Court Order in favour of the Plaintiff
(McWilliam J, 14 May, 1984), that it was
not necessary to determine whether or not
the Revenue Commissioners had a statutory
lien and the Court should not accept the
defendant's plea to hold that the Revenue
Commissioners accepted the Bond on the
basis that, if default were made, the Com-
missioners would engage upon the exercise
contemplated by Section 24 with all its pro-
blems of possible priorities, retention of ti-
tle and possibly lessening other claims by
the Revenue Commissioners in respect of
different forms of taxation; the defendant
failed to make any provision for such exer-
cise in the terms of the Bond.
A. G. -v- Sun Alliance and London Insurance
Limited —
Supreme Court (per McCarthy J.)
28 February 1985 - unreported.
William Johnston
TAX
Pig Roaring carried on by partnarship in
an agricultural aroa constitutes "Farm-
ing" for tax purposes.
The question of law for the opinion of
the High Court in this case stated was
whether upon the facts admitted and found
by the Appeal Commissioners, there was
evidence upon which they could properly
arrive at their decision that the activity
of pig rearing carried on by the partnership
is not "farming" as defined in S13(1) of
the Finance Act 1974, and whether, upon
such facts, their decision was correct in
law.
S13 of the Finance Act 1974 reads as
follows: —
(1)
In this Chapter "farming", "farm
land" and "occupation" have the
same meaning as in S18(1) of the
Finance Act 1969.
(2)
Any reference in this Chapter to farm
land occupied by an individual in-
cludes farm land deemed, by virtue
of S.17 to be occupied by him.
(3)
A reference in this Chapter . . . to the
rateable valuation of farm land oc-
cupied by an individual for a year of
assessment or part of a year of
assessment is reference to the total
rateable valuation of all farm land oc-
cupied by him and of all farm land
deemed to be occupied by him for
that year of assessment, or part of a
year of assessment calculated in ac-
cordance with the provisions of
SI7(5), (6) and (7).
Provided that, in calculating the
rateable valuation of farm land for the
purposes of this Chapter, the rateable
valuation of any building on the land
shall be excluded."
S18 of the Finance Act 1969 reads as
follows:
(1) In this Section —
"farming" means farming farm land,
that is, land in the State wholly or
mainly occupied for the purposes of
husbandry, the profits or gains from
the occupation of which would, but
for the repeal by this Act of Schedule
B of the Income Tax Act 1967 be
chargeable under that Schedule; "oc-
cupation", in relation to any land,
means having the use thereof;
The holding in the instant case consisted
of some nine acres of land in an agricultural
area with a rateable valuation of £4.50.
Some three acres were covered with sixteen
pig houses purpose built by the Appellants
for the purpose of their enterprise. Some one
and a half to t wo acres were covered by
slurry tanks and the remaining four to five
acres provided spaces between the pig
houses and open areas. Healthy pigs were
not allowed outside the pig houses at all, but
in summer months, sick pigs (between 2%
and 3% of the total on hand at any one time)
were put out into pens set up in the spaces
between the pig houses. Fresh air was the
main curative for these animals but they
were also allowed to root and eat any her-
bage in the pens.
The question was whether the Appellants
could properly be regarded as being engag-
ed in " f a rm i n g ", as defined in S18 of the
1969 Act.
The fact that the proviso to SI 3(3) pro-
vides that the rateable valuation of buildings
on the land are to be excluded in calculating
the rateable valuation of farmland for the
purposes of the chapter would, contrary to
the view expressed by the Appeal Commis-
sioners, imply that the buildings would
otherwise, subject to the provisions of the
Valuation Acts, be included. Under the
Valuation Acts one would look at this
holding, including both lands and buildings,
as one unit and in that context the buildings
would properly be referred to as "farm
buildings".
The main debate in the hearing turned
upon the meaning of the term "husbandry"
in S18 of the Finance Act 1969. Hus-
bandry has always been regarded as
including the tilling of the soil. But it has a
much wider connotation and includes those
concerned w i th the management of
resources.
In the Scottish case of
Keir -v- Gillespie
1 T.C. page 473 the Scottish Court of
Session held that the term "husbandry" in
S21 of the Finance Act 1918 was not
restricted to tillage or cultivation of the soil,
but included the use of lands for the purpose
of grazing sheep.
The tillage of the soil and the rearing and
management of livestock for food would
come within the primary meaning of the
word "husbandry". A difficulty arises from
the secondary connotation of the term.
Certain activities are regarded as
"husbandry" when carried on as part
of the traditional activities of the farm
but are not regarded as husbandry when
carried on in isolation. Butter-making,
jam-making or the cutting of turf or timber
may be examples. In re
Cavan Co-
operative Society
the Irish Kings Bench
Division (Gibson Madden and Kenny J J.)
held that a registered co-operative society
carrying on the manufacture and sale
of butter was not carrying on the bus-
iness of husbandry within the meaning
of Section 39 of the Finance (No. 2) Act
1915. In that case Kenny J. said (at page
608):
" . . . The work of the Society in
connection with the milk which it
received from the Suppliers is not the
wo rk of a producer but a mere
mechanical operation that could not in
its essence be regarded as husbandry.
Husbandry presupposes a connection
with land and production of crops or food
in some shape."
In the instant case the Appellants were
using their holding for the specialised
purpose of rearing and fattening pigs. This
was not a case of mixed farming where
one activity is regarded as husbandry
because it is carried on in association
with general farming activities. Either
what the Appellants were doing on this
holding fell in its own right, under the
general definition of "husbandry" or it did
not.
In the U.K. and Scottish cases of
Lean and
Dickson -v- Ball
(10 T.C. 345) and
Jones -
v- Nuttall
(10 T.C. 349) the test to decide
whether the business can properly be
described as husbandry was whether the
enterprise makes use to a material extent of
the fruits of the soil and the land is not
simply used as a space or stance for holding
animals. However, in the Irish case of
iii