The Gazette 1975

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. 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. — Debate adjourned — (continued on page 191)

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.

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