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GAZETTE
JULY/AUGUST 1985
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
REVENUE
Section 18 Finance Act 1983
Request to submit Accounts not a Request
for Statement of Profit or Gain. Two
categories of information Financial
Institution may be asked for: Definition of
Bankers' Books; Cost of Financial Institu-
tion complying with Order to be borne by
Revenue.
An Application was made for an Order
pursuant to Section 18 of the Finance Act
1983 directing the Bank to furnish to the
Inspector of Taxes full particulars of
Accounts held by the Taxpayer.
The Inspector of Taxes' Affidavit,
which was uncontradicted, showed the
taxpayer had failed to make any Return
of Income for over ten years, had failed to
keep proper accounting records, had
mislaid his banking records and had been
extremely unco-operative with the
Revenue Authorities.
The Taxpayer raised two objections to
the making of the Order. The first
objection was that there was no evidence
that he was ordinarily resident in the
State as required by the Section. In the
absence of evidence from the Taxpayer
this was not accepted.
The second objection was that the
Taxpayer had not been "duly required by
an Inspector to deliver a statement of the
profits or gains arising to him from any
Trade or Profession or to deliver to the
Inspector a Return of Income" and
accordingly that the condition precedent
to the right of an authorised Officer to
apply for relief under Section 18 had not
been fulfilled.
The Applicant had been asked to
submit accounts for five years ending 5th
April, 1976. It was held that there was no
evidence to suggest that the Taxpayer was
ever requested to deliver a statement of
profits or gains and that the condition
precedent to the right of the Inspector to
apply for relief under Section 18 had not
been fulfilled.
Section 18 makes a clear distinction
relating to two categories of information
which a Financial Institution may be
directed to furnish. The first category
comprises "full particulars of all
Accounts maintained" by the Taxpayer
in question and the second category
comprises "such information as may be
specified in the Order relating to financial
transactions" of the person concerned
but restricted first to information
recorded in the books of Financial
Institutions concerned and then only to
such information as would be material in
determining the correctness of a
statement of profits or gains or in
determining liability to Tax. "Particulars
of Accounts" merely meant the name or
names of the person by whom the
Account had been opened, the nature of
the Account and perhaps the date on
which it was opened and closed. It does
not include lodgments and withdrawals
which are more appropriate to financial
dealings.
The Court also considered the
definition of 'Books' as used in Section
18.
A definition will vary depending on
whether it is a Bank as specified in the
Bankers' Book Evidence (Amendment)
Act 1959 or the A.C.C., Post Office
Savings Bank, etc., as described in
Section 7(4) of the Central Bank Act
1971. In the case of a Bank, "books"
means "bankers' books" and in the case
of Financial Institutions which are not
Bankers within the statutory meaning of
the term "books" simply means "records
and documents" of such Institutions.
In relation to the statutory definition of
Bankers' Books the generally accepted
concept of a Book is consisting of leaves
of paper containing writing, manuscript
or type and bound or fastened together.
The statutory definition extends this
concept to include sheets of paper or
pages which are not bound together in the
conventional sense and also information
which is not necessarily recorded in the
conventional methods of calligraphy,
typing or printing but by modern
processes. However while the word
"record" is included in the statutory
definition this does not mean the files of
correspondence.
The definition does not include
documents in the possession of a Banker
which are not in essence a Book within
the extended meaning of the word. It was
also stated that there were circumstances
in which a Financial Institution could
discharge its obligations under a
particular Order by providing photostat
copies of particular records but that
could only be done when the information
directed to be provided coincided with
the information contained on the
photostat record.
The proper costs of the Financial
Institution in complying with an Order
must be borne by the Revenue
Authorities.
In any case in which an Order is made it
is desirable to limit the information
sought so closely as possible in the first
instance with liberty to the parties to
apply for further relief in the event of
extended disclosure becoming necessary.
HELD: that it had not been established
even on the onus of proof as required in
Civil Cases, that the Inspector of Taxes
had required the taxpayer in the present
case to deliver a statement of profits and
gains and in the absence of such evidence
it was held that the conditions precedent
to the granting of the relief sought had
not been fulfilled and the Application was
refused.
J.B. O'C.
-v-
P.C.D. and A Bank - High
Court (per Murphy J.), [1985] ILRM 123.
John O'Connor
CRIMINAL PROCEDURE:
RECORDING A CONVICTION
Where a clear and manifest clerical error is
discovered in a District Court Order of
conviction,
certiorari
should not issue to
cure the defect as the interests of justice
would not require it and it would be a
debasement of the relief of
certiorari
to
order it in such circumstances.
The Prosecutor was charged in the
District Court with an offence that he
entered as a trespasser a premises with
intent to steal therein contrary to Section
23(A) of the Larceny Act, 1916 as inserted
by Section 6 of the Criminal Law
(Jurisdiction) Act, 1976. A plea of guilty
was entered to the charge and the
prosecutor was sentenced to eight months
imprisonment in the District Court. The
solicitor who undertook his appeal
against sentence to the Circuit Court
discovered that in the order of the District
Court the recital of the charge omitted the
words "entered as a trespasser". The
appeal was adjourned pending an
application for
certiorari
to the High
Court.
The date of the certified copy of the
District Court Order on the court file was
12th March, 1984. On applying for a
certified copy of the order, the Prosecutor
was furnished with one dated the 30th
March, 1984 in which the words omitted
from the original copy were entered.
A conditional order
certiorari
was
granted by the High Court and the cause
shown by the District Justice included an
affidavit exhibiting the charge sheet
containing the charge made and the entry
of the District Justice as signed by him.
In refusing an absolute order of
certiorari,
the President of the High Court
HELD:
1. No conceivable interest of justice
would be served by quashing a
conviction duly made, properly
recorded and within the jurisdiction
of the District Court because of a
clerical error of an official made at a
later stage. In this context, the
following dictum of O'Higgins C.J.
in
The State (Abengien)
-v-
Dublin
Corporation
[1982] ILRM at p.597
was cited with approval, "for the
Court to act otherwise, almost as of
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