The Gazette 1974

in regard to "the opinion of the Revenue Commis- sioners" as incorporated in subsection (3) and the man- ner in which they exercise this opinion, as incorporated in subsection (5), the scope here for legal interpretation as to what way or manner the Revenue Commissioners exercise their opinion appears to me to be enormous. I am just as concerned as anybody in this House that revenue be collected in a proper form in the interests of the community as a whole. I do not see why the Revenue Commissioners should be arrogating to them- selves, first of all, an opinion in the matter at all and, secondly, why they should be setting out in a section here the various matters to which they must have regard. Mr. R. Ryan: I can find some area of agreement with the Senators when they speak of the phrase "in the opinion of the Revenue Commissioners" being super- fluous. From a purely literary point of view I suppose it could be left out but I do not think that its inclusion creates any legal complications because the reality of the operation would be that when the return of income would be made the inspector of taxes would have to make as assessment based on what he considered to be dividends which were issued in lieu of income. That in practice would be the opinion of the Revenue Commis- sioners. The right of appeal to the Appeal Commis- sioners exists under subsection (8) with respect to any opinion of the Revenue Commissioners. The final opin- ion in this will not be that of the Revenue Commis- sioners in the case of a taxpayer being aggrieved by the original decision. I do not think the amendment strengthens the operation in any way nor do I think it relieves the Revenue Commissioners of the need to form an opinion in the first place. I would be prepared to accept perhaps that the phrase is superfluous but it is the language much admired and used by draftsmen. Down through the decades there have been several cases in which the phrase "in the opinion of the Reve- nue Commissioners" has been used. I will draw the attention of the draftsmen to the wise remarks of the Senators and of the Minister on this and, perhaps, consideration would be given to whether it is necessary to use such a phrase in the future. So far as subsection (5) is concerned, it is wise to list the number of considerations which should be borne in mind. There is always the danger that if these tests are not set out, the view may be held elsewhere that these are not relevant. I would suggest that each of these considerations here is a relevant one. Mr. E. Ryan: This Bill is full of flat statements that the Revenue Commissioners are to act in circumstances which are set out and where no reference is made to their opinion. My point is that if they are to rely on an opinion then they are letting themselves in for a lot of trouble. If the taxpayer is not satisfied let him appeal. Mr. R. Ryan: I do not think Sen. Eoin Ryan would dispute that somebody somewhere along the line has to come to an opinion on the facts. What subsection (5) says inter alia is that any evidence tendered by or on behalf of the person must be considered. It helps unifor- mity of interpretation. If the legislators do not set out what they consider to be appropriate considerations, there is a danger of different inspectors of taxes apply- ing their own valuations and their own considerations which might vary quite considerably. On the ground that tax law should be certain, there is a great deal to be said for saying what are the relevant considera- tions. 237

The Minister is dealing here with something that is fundamental to our whole system of law and juris- prudence which recognises the privilege that extends to the relationship between a solicitor and his client. For the sake of this one piece of tax evasion it is not worth even tinkering with the confidential relationship between solicitor and client. If the Minister considers this situa- tion from a broader point of view, I think he will agree with me. If we should tamper, even for this limited purpose, with the confidential relationship between soli- citor and client we would be starting something that could be very injurious in the long run in other situa- tions. Subsection (2) of that section reads: "The particulars which a person must furnish under this section, if he is required by such a notice so to do, include particulars . . . " I would draw the Minister's attention in particular to the word "include" there. It seems to me that in this regard the Revenue Commissioners can direct the tax- payer involved to give them any sort of information about anything, provided it is related to the sections in question. In subsection (3), page 30, lines 31 and 32, to delete "in the opinion of the Revenue Commissioners". My purpose in putting down this recommendation is that on the one hand it is not necessary and, on the other, it will create difficulties both for taxpayers and for the Revenue Commissioners. If dividends are re- ceived instead of salary or emoluments, then the tax- payer can be assessed and, if he does not accept the assessment, he can appeal and the matter can be decided then as a matter of fact, as a matter of where evidence would be given, the circumstances will be considered and it will be decided as a matter of fact. If, in fact, the Revenue Commissioners do press this matter and rely on their opinion then, of course, in the long run—if they have reference to quite a number of cases in recent years decided by the Supreme Court— they will have to exercise their power under the posi- tion where they are acting on their opinion. They will have to exercise that power with great circumspection and really in a much more complicated way than if they merely suggested that the person was not really receiving adequate consideration and argue that pos- sibly on appeal. My suggestion is that it is a compli- cation. Any State body, any Minister is being circum- scribed more and more by Supreme Court decisions on the circumstances in which an opinion of this kind can be formed. For that reason I suggest that it would be much better to leave out the words in question alto- gether. Mr. Lenihan: I would support Senator Ryan very strongly on this because I think it is a superfluous inser- tion in the section. First of all, the subsection stands on its own without the words "in the opinion of the Revenue Commissioners". From the point of view of the Revenue Commissioners themselves, I think they are entering a very dangerous area here because, both Section 54 (Seanad Eireann; Committee Stage) 31 July 1974 An Cathaoirleach: Recommendation No. 22 is conse- quential on recommendation No. 20. Accordingly, it is suggested that both be debated together. Mr. E. Ryan: I move recommendation No. 20: