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GAZETTE
JULY/AUGUST
1985
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
DISTRICE COURT
Validity of Issue of Summons —
Jurisdiction of District Court Clerk —
Rule 91 and 30 District Court Rules —
Section 48 Court Officers Act, 1926 —
Whether Appearance of Defendant Cures
Defect.
The Consultative Case Stated from the
District Court raised the question
whether a Summons in respect of an
offence alleged to have been committed
within a particular District Court Area
issued by a District Court Clerk who was
never formally appointed as Clerk for
that area but had acted in that capacity
was a valid Summons. The District Court
Clerk had been appointed on 15 May,
1962 to the Dublin Metropolitan District
Area by the Minister for Justice under
Section 48 of the Court Officers Act, 1926
but to no other District. However, the
District Court Clerk actually worked in
the Kilmainham, Rathfarnham and
Dundrum Areas known as District
Number 11 which was found to be outside
the Dublin Metropolitan District, the
Clerk having been so assigned by the
Chief Clerk of the Dublin Metropolitan
District on 10 July, 1978.
HELD:
1. Rule 91 of the District Court Rules
which gives the Principal Clerk of
the particular Court Area the power
to divide duties amongst his Junior
Clerks in the area, is a power limited
to the control of functions carried
out by the Clerks in the area to which
they have been assigned under
Section 48 aforesaid. Therefore the
assignment of the Clerk in question
by the Chief Clerk on the 10 July,
1978 could not cure the defect that
the Clerk in question had not been
re-assigned to District Number 11
under Section 48 of the Court
Officers Act by the Minister for
Justice. Therefore the District Court
Clerk in question had no power to
act in that capacity in the District
Court Area Number 11 when issuing
the Summons.
2. Rule 30(1 Kc) of the District Court
Rules which empowers a District
Court Clerk to issue Summonses
"within the limits of the District
Court Area or Areas for which he
acts as Clerk" must be interpreted as
being limited to a District Court
Clerk who acts validly as Clerk of
the Area in which the offence is
alleged to have been committed or
the Defendant resides.
3. The subsequent appearance by the
Defendant on foot of the Summons
issued in this case could not cure the
initial defect because the defect in
this case related to a substantive
condition precedent to the issue of
the Summons, namely, that it should
have been received and processed by
a person who had the appropriate
authority to issue a Summons and
therefore the defect here was not
merely a want of form or lack of
procedural correctness but a defect
going to the root of the matter.
DDP
-v-
Clein
[1983] ILRM 76 explained
and applied.
D.P.P.
-v-
McQuaid - High Court (per
Murphy J.). 26 October. 1984.
Eugene F. O'Sullivan
CORPORATION TAX
"Total income brought into charge to
corporation tax" in Section 58(3) of the
Corporation Tax Act 1976, interpreted to
mean the taxpayer's taxable income and
not its actual income.
The taxpayer claimed both Export
Sales Relief under Part IV and Group
Relief for Losses under Part XI of the
Corporation Tax Act 1976 against profits
of £519,038 (Case I Income £518,697 and
Case IV Income of£341) made by it in the
year ending 31 December 1978. 85.685%
of the taxpayer's sales in that year were
attributable to export sales. An associate
company suffered a loss of £74,470,
which it surrendered to the taxpayer,
which group loss was deductible from the
taxpayer's profits for Corporation Tax
purposes.
To determine the amount of Export
Sales Relief allowable, it is necessary to
apportion the Corporation Tax, which
would have been payable had export sales
relief not been claimed, between the
income earned from the sale of exported
goods and the "total income brought into
charge to corporation tax". Export Sales
Relief is thus equal to:
Relevant Corporation Tax X
Income Earned from Sale of Exported
Goods
Total Income brought into charge to
Corporation Tax
To ascertain the taxpayer's net
corporation tax liability the Export Sales
Relief so found, is deducted from the
Corporation Tax which would have been
payable, had the relief not been claimed.
The taxpayer's chargeable gains are
ignored.
The Corporation Tax which would
have been payable had export sales relief
not been claimed was £200,055.60; that is
45% of the taxpayer's profits of £519.038
less the group relief of £74,470. The
Income earned from the sale of exported
goods was £444,446; that is 85.685% of
£518,697.
The dispute between the parties related
only to the denominator in the above
mentioned fraction. The taxpayer argued
that the "total income brought into
charge to corporation tax" was £444,568,
that is its profits of £519,038 less the
group relief of £74,470. The Inspector, on
the other hand, contended that the
taxpayer's "total income brought into
charge to corporation tax" was its profits
of £519,038 without any deduction being
made for the group relief.
On the taxpayer's argument its Export
Sales Relief amounted to £200,000.70
leaving a net Corporation tax liability of
£54.90, whereas on the Inspector's
argument the taxpayer's Export Sales
Relief amounted only to £171,305.20
leaving the taxpayer with a net corpora-
tion tax liability of £28,750.40.
The Court rejected the Inspector's
argument. The words "total income"
could not be interpreted according to
their ordinary or literal meaning as
contended by the Inspector. Those words
must be read in conjunction with the
qualifying word "brought into charge".
Although the words "brought into
charge" were not defined in the
Corporation Tax Act 1976, they were to
be found in Income Tax law and had
been judicially interpreted. In
A.G.
-v-
Metropolitan Water Board
[1927] 1 K.B.
833 the expression "profits brought into
charge to tax" had been interpreted as
meaning the taxpayer's taxable profits
and not its actual profits.
Where a word or expression in an
earlier statute has received a clear judicial
interpretation, unless a contrary
intention appears, there is a presumption
that if such a word or expression is used in
the same context in a later statute, it is to
be interpreted according to the meaning
previously ascribed to it.
Accordingly the Court HELD that the
expression "total income brought into
charge to corporation tax" was to be
interpreted as meaning the taxpayer's
taxable income of £444,568, that is its
profits less the group relief, and not its
actual income of £519,038.
The Court was reinforced in its view by
the provisions of Sections 11(1) and
155(11) of the Corporation Tax Act
which,
inter alia,
provided that words and
expressions in that Act were to have the
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