188 / 336
Revenue Commissioners or the Exchequer that is the
victim but the general body of taxpayers who because of
the avoidance action of the well-to-do are left carrying
a larger burden themselves. The State has a clear ob-
ligation to counter tax avoidance activities.
It is the case of
Clinch v the Inland Revenue
Com-
missioners,
1973.
All
England
Reports,
Page
977.
the plaintiff asked the Court to rule that a notice
served on him was invalid and one of the questions
addressed to itself by the Court was: Has the plaintiff
established that the Commissioners have exercised their
discretion unreasonably? The Inland Revenue contend-
ed that the notice could only be attacked for unreason-
ableness if the degree of unreasonableness was such
that no reasonable person could consider the notice
necessary for the purposes of the Act. The plaintiff con-
tended that the Court was entitled to interfere if it
could be shown that, viewed objectively, the authority
were acting unreasonably, albeit that they were acting
within the four corners of the authority conferred on
them. In the course of the judgment, the Judge
said: "The particulars are sought of the intermediary in
order that he may be used as a stepping stone towards
obtaining the more detailed information required by the
Commissioners to enable them to decide whether or
not, in their opinion, tax has been unlawfully evaded.
The information which they require is such as to give
them a shrewd idea of the relationship between a tax-
payer and a foreign company, partnership, trust or
settlement. Accordingly, if the particulars sought went
substantially beyond that which was required for this
purpose so that they could be properly described as
unduly oppressive or burdensome, I have no doubt that
a Court would be entitled to intervene and declare
the notice invalid. One of the vital functions of the
Courts is to protect the individual from any abuse of
power by the executive."
In the event, the judge held in favour of the
Inland Revenue. This would be similar to the kind
of instance that could arise if the Revenue Commission-
ers used the powers given to them under the 1974 Act.
Those powers may only be reasonably used and if a
taxpayer, or a person to whom the notice is addressed,
is of opinion that they are being unreasonably used,
then a right exists to take the matter before the Courts
to see if the Courts would have a different view. It is,
therefore, clear that the Revenue Commissioners in
acting under this section and in looking for the infor-
mation will do so when they think it necessary. I have
no reason to anticipate that the Revenue Commission-
ers will act unreasonably. In fact, the law assumes that
the State and its agents will act in a reasonable way in
using any powers given to them. One does not need to
use the words that Deputy Colley suggests in his am-
endment in order to ensure that reasonableness will at
all times prevail so far as the conduct of this State is
concerned.
Mr. Colley:
May I ask the Minister in regard to the
case he quoted whether the relevant portion of the
English Act was similar to this? Does it contain the
phrase: "such particulars as they think necessary"?
That was the phrase in question.
Mr. R. Ryan: Yes.
Mr.Colley:
What the Minister has said in regard
to a requirement that the Revenue Commissioners
would not act unreasonably in general, is true
With all due respect, that, is not really the point of this
amendment
which
is
that
if
you
have
the
phrase:
"such particulars
as they
think
nec-
essary" and if the Court is asked to interpret
whether the Commissioners acted reasonably or not,
the Court will establish a certain level of responsibility
which I suggest would be different from what would
be established if the section were to read: "such partic-
ulars as they reasonably require". There is a slight
difference in the meaning and I think there would be
a difference in the interpretation by the Courts arising
out of these words. Therefore, he should not have any
difficulty in agreeing that the phrase "they reasonably
require" be inserted. If I understood him correctly ear-
lier he was saying in effect that it does not make any
difference whether you put in "reasonably require" or
"they think necessary", that you get the same stan-
dards applied by the Courts.
That does not inhibit the Revenue Commissioners
in any way in carrying out their duties under this pari
of the Act. It should meet the requirements of anybody
in the House that the Courts would not interpret it in
a way that would hinder the Revenue Commissioners
but it does establish some criterion, some level on which
an aggrieved taxpayer can stand and can apply to the
Court and get a greater degree of protection than is
implied in replying on the general obligation of the
Revenue Commissioners to act reasonably and within
reason. On the other hand, if his argument is
that it makes no difference, I suggest he might ac-
cept it anyway because he is not losing anything.
— Debate adjourned —
(continued on page 191)
Appointments
The Hon. Mr. Justice Walsh has been nominated
as President of the Law Commission for a
period of 5 years from 1st August, 1975.
The other members of the Law Commission
are:— Mr. Justice Charles Conroy, President
of the Circuit Court, Professor Robert F.
Houston, Dean of the Faculty of Law, Trin-
ity College, Mr. Martin Marren, solicitor, and
Mrs. Helen Burke, Department of Social
Science, UCD.
Mr. John O. Sweetman, Barrister-at-law, has been
nominated to the Land Registration Rules
Committee by the Bar Council in place of
Miss Agnes B. Cassidy, who has become a
District Justice.
.184