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abroad, not to do so is evasion and it is illegal. I will
not accept that it is contrary to practice and that there
is an encroachment on the necessary confidence which
exists between clients and their solicitors. I would
equally refuse to accept, speaking as a lawyer as well
as a parliamentarian, that lawyers should permit their
professional status to be used for the purpose of evading
tax. If that were to happen and if it were to encourage.
or facilitate evasion then the whole standing of the
legal profession would come under a cloud.
As far back as 1939 the same arguments Deputy
Colley makes were produced in the British House of
Commons when similar provisions were being discussed.
The Solicitor General replying to the criticisms had
this to say :
. . . we are dealing here with an area where we are
trying to prevent tax evasion by the transfer of assets
abroad, and the Clause is really purely declaratory of
the existing law. It suggests that certain particulars
must be furnished by persons or by their agents in
relation to these transactions so that the transactions
may be identified. Subsection (2) to which the
Amendment of the hon. Gentlemen applies preserves
for solicitors the privilege that they enjoy at present.
The only information that the Commissioners may
request from solicitors will be information as to
names and addresses and nothing else. They are not
required to disclose documents or the instructions
that they have received. This is a privilege which the
profession of solicitors enjoys under the existing law
by reason of a long history of case law. The accoun-
tants enjoy no such privilege under the law.
The hon. Baronet is asking for a privilege for
accountants which no other agent would be per-
mitted to have, and which solicitors only enjoy by
reason of the existing law. Privilege is a valuable
thing to conserve, but it is a very dangerous thing
to extend. Privilege by its very nature means the
obstruction of the truth. It is a barrier between the
investigation of the truth and the actual arrival at
the facts. It is not easy to justify in an area where
you are dealing with deliberate evasion, and were
it not for the fact that the privilege exists enabling
a person to go to his solicitor for advice, and while
it might be difficult to justify it, I should find it
impossible to stand here and justify its extension to
particular kind of agent, who, in many cases, is the
very man from whom you want to find out what he
knows about the transfer of assets abroad.
I believe those words can be used with as much justifi-
cation in 1975 as they could be used in 1939. We can
also use them with the value of the experience of what
bas happened in Britain in the intervening years.
Confidentiality has been maintained between solicitor
and client. The Exchequer, the general body of tax-
payers, have not had to bear the enormous costs of
some avoidance practices which would have gone un-
checked if that power were not there.
If we want to discourage people from running con-
trary to the spirit of the legislation as well as to the
letter of it, then we must ensure that if we are imposing
obligations to pay tax we provide the Revenue Com-
niissioners with the means to enforce those obligations.
If we fail to do so then we are continuing an unjust
system in which the person of small means, who is an
employee working for an employer who supplies in-
formation about the income would have to pay his or
her share of the tax while the clever and the rich, en-
gaging consultants, could shelter behind them and avoid
paying their share. That is not a desirable thing to
happen. It need not happen as long as the powers
conferred in the 1974 Act are not tampered with. The
anti-avoidance action of the 1974 Act will ensure that,
to a greater extent than was possible before then, the
clever and the rich will not avoid their fair share of
tax. The battle of the Revenue Commissioners against
tax avoiders and evaders will go on forever. There will
never be a victor. At most there will be a pyrrhic
victory on one side or the other or a short-lived one.
As the Courts have said on numerous occasions, people
who engage in avoidance practices must accept that as
they engage in them they are likely to suffer sooner
or later the wrath of the Legislature, which will take
action to prevent the continuance of the avoidance.
People who engage in avoidance do so knowing that
one of the occupational hazards is that legislation may
be introduced to destroy their fun. It has to be intro-
duced, not for the sake of being a kill-joy of the person
engaged in avoidance practices, but out of a sense of
fair play to the general body of taxpayers who have no
opportunities of avoidance, no discretion in the matter
and no knowledge or skill which would enable them to
avoid paying the full share of tax which the Legislature
intended them to pay. The people against whom this
section is directed, the people engaged in the transfer
of assets abroad, have a liability under the law now to
pay tax. This is one of the necessary weapons that must
be given to the Revenue Commissioners to ensure that
obligation is complied with. Failure to do so would
create a sham, as I s?ud earlier, and I could not be a
party to that.
Mr. Briscoe: I recognise it is the duty of the Revenue
Commissioners to collect as much tax as they can.
Pressure is very often put on them to be a little bit
harsh.
Mr. R. Ryan: That is not so. The Revenue Com-
missioners act independently.
Mr. Briscoe: I am left with nothing else but to
believe this because of the kind of legislation which is
before the House now. The Minister said he morally
sees no difference between tax evasion and tax avoid-
ance. In fact the basic difference is that one is illegal
and the other is legal.
I do not think there is anything wrong in a person
seeking advice on how to make his or her tax return.
The Revenue Commissioners can be co-operative but it
is not their job to tell people what they can claim relief
on. In my view there is nothing whatsoever wrong in a
person going to a tax adviser, who very often is a solici-
tor. If the Minister was out of government tomorrow
and back in his practice or decided to give up politics
and went back to his practice, would he refuse to act
in an advisory capacity on a tax matter with a client?
From what he has said here it seems to me he would
refuse to talk to any client about how he might avoid
a heavy bill for tax because he equates it with tax
evasion.
I believe that the Minister will breed a new kind of
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