The Gazette 1908-9

[APRIL, 1909

The Gazette of the Incorporated Law Society of Ireland".

118

Sc.

(35

Sawcrs

of The Lord Advocate v.

and correct list, declaration, or statement, shall refuse or neglect so to do." The result would be that any error or omission, however slight or however innocent, involves a liability to treble duty and £20 penalty at the hands of the Commissioners, or a penalty of ^50 from the High Court. On the other hand, it is contended that the section applies only to non-delivery, as distinct from delivery of an imperfect or inaccurate statement. 1 think the latter is the preferable view for several reasons:—(i) The Act in other sections speaks of a person as having delivered " such account as aforesaid " ; although it is false: see sections 68 and 178. (2) The words "as aforesaid" naturally refer to section 48, where the words are " make out such lists, declarations, or statements as may be applicable to such person "—that is to say, lists, declarations, or statements of the cha racter appropriate to the particular person, and nothing more. To avoid misconception, I may add that a document may be so illusory that the tribunal would be justified in holding that there had been no delivery, but no such case arises here. (3) The Act contains provi sions not of a penal character for rectifying any omission or wrong statement in a state ment or schedule; see section 129. (4) The Act imposes a penalty on a false or fraudulent statement which is less severe than that which, on the other hypothesis, is imposed upon an honest mistake; see section 178. (5) The proviso in the middle of section 55, dealing only with the case of the trustees acting on behalf of parties chargeable, pre-supposes non delivery of any statement and then authorizes a delivery, after prosecution, of an imperfect list. (6) The Revenue is protected by the power possessed by the Commissioners to assess a person making default (section 113), and to surcharge (sections 161, 162). I am aware that there are some provisions of the Act which support the opposite view. The most weighty seems to be found in section 50, the section which requires a person to give a list of his lodgers and employes, with a proviso exempting him from a penalty in one event only. Section 129 does not, it seems to me, apply to such a list, nor does section 113 or section 161. Notwithstanding the difficulty caused by section 50 and by several other sec tions, I think the better view is that which I have already expressed. Thus far I have dealt with the case apart from authority, and in truth there is singularly little authority. After fifty-five years—viz., in 1897, the question was raised in the Scotch Courts in the case

There the

190, 3 Tax Cases, 617).

L.R.,

Lord Ordinary and the Judges of the First Division of the Inner House held that the- penalty of ,£50 was incurred if the statement delivered was untrue or incorrect. Now, with the utmost respect for the learned Judges who decided that case, and notwithstanding my strong sense of the importance of uniformity of decision in fiscal matters in all parts of the United Kingdom, I feel unable to decide the present case in accordance with the view adopted in the Scotch Courts. I am not satis fied that the arguments addressed to us were so fully presented to them. The Lord Chief Justice followed the decision in the Scotch Courts, and, I think, expressed his own con currence with their view, but he did not sub stantially add to their reasoning. Upon the whole, I think this appeal must be allowed, with costs here and below. LORD JUSTICE FLETCHER MOULTON also read a written judgment, discussing and re viewing the same sections, and the decision in the Scotch Courts, which he also declined to accept, and continued :—A large portion of the contention on behalf of the Crown was that it was no hardship in enacting these penalties, which are so utterly out of proportion to the gravity of the offence, because the Commis sioners had power to relieve against them. I confess that this argument has very little effect in reconciling me to an interpretation which would make the penalties of an unnecessary and almost barbarous severity. I have no doubt that the Commissioners do their duty to the best of their ability, and that in most cases they would exercise their power of relief equit ably ; but there is a great temptation to use powers of this kind for an indirect purpose, an example of which is given in the present case. The action is for a penalty of £50, and if the contention of the Crown be correct, the Court has no jurisdiction to lessen the amount, how ever trivial-the inaccuracy may be. Now in the present case, where no fraud is suggested, the appellant offered to pay the difference in the assessment, but the Income-tax officers refused to stay their hands, unless he would also pay sums for which he would have been liable under a similar mistake in previous years, but which were barred by the provisions as to limitation of time. It was on his refusal to do so, on the ground that the Legislature had provided that these sums were not re coverable under the Statute, that this action for the penalty of ^50 was brought, and it