The Gazette 1985

GAZETTE

MARCH 1985

sioners and the Minister for Finance, and Catherine Mary Gallagher andAnother -v- The Attorney General, The Revenue Commissioners and The Minister for Finance - Supreme Court (per O'Higgins CJ.). nem. diss. 20 November. 1984. Karl Hayes

circumstances of one or other of the Plaintiffs before the Court. The Court did not rule out a further challenge to the Act by another Plaintiff with sufficient locus standi. The main cause of complaint in the Madigan Action related to the method by which the market value of the residential property was to be determined, which was the estimated value of the unencum- bered Fee Simple. By, for example, not allowing the owner to deduct the value of any Mortgage on the property, it was argued that this ignored the true value of the owner's beneficial interest, and thereby unfairly and unjustly taxed him on an interest in property he did not possess. It was also argued that to tax only those whose premises exceeded £65,000 in value was to fail to treat them equally with those owners not so taxed. It was submitted that the Act was in breach of Article 40.1 (failing to provide equality of treatment) and of Article 40.3.2. (unjust attack on the property rights of the citizen). The Court did not agree, holding that, as a Tax measure, the Act necessarily interfered with the property rights of affected citizens. It could not be challenged if it was action by the State in accordance with the principles of social justice and having regard to the exigencies of the common good as envisaged by Article 43.2 of the Constitu- tion. The Court upheld the view of the High Cort which was that the Tax was a "tax on the occupation of property" and that there was nothing offensive in measuring the Tax by reference to the market value of property. The main cause of complaint in the Gallagher Action concerned the method by which, in relation to exemption, income was assessed. On proof of the fact that the combined household income was less than £20,000 per a n n um, the occupying owner, although assessable, would be exempt f r om the Tax. The Plaintiffs claimed that this aggregation of the incomes of all family members of the owner occupying the house was unfair and unjust and amounted to an unjust attack on the property rights of the affected Taxpayer, contrary to Article 40.3.2. The Court did not agree, and pointed out that the Sections which the Plaintiffs complained of were exemptions, intended to give relief from tax. The Court was satisfied that this exemption was "based on the c ommon experience in society that members of families and households, to the extent that they can do so, contribute to the expenses and outgoings of the Family Home. To ignore this fact in framing an exemption to meet cases of hardship or inability to pay would be to act without regard to reality". For these reasons, the Court upheld the constitu- tionality of the Statute.

Recent Irish Cases

DISTRICT COURT CRIMINAL PRACTICE

Circuit Court not deprived of jurisdiction to try accused person by reason of non transmission to County Registrar within the time prescribed by District Court Rules of Order sending accused forward for trial — signature of Orders by affixing rubber stamp — valid where stamp impressed by hand or party signing. In a consultative case stated from the Circuit Court to the Supreme Court two questions of law arose. The first related to whether failure of the District Court Clerk to transmit to the County Registrar the Orders of preliminary examination within ten days of the making thereof deprived the Circuit Court of jurisdiction to try the two accused and the second as to whether the District Justice failed to sign the Orders because he purported to sign them by affixing a rubber stamp thereby rendering them null and void. The matters were raised by Motion to quash prior to Arraignment and the Motion was adjourned pending deter- mination of the questions raised. The Court stated that a time limit of ten days allowed in Rule 38 of the District Court (Criminal Procedure Act, 1967) Rules for transmission to the County Registrar by the District Court Clerk of the Order sending the accused forward for Trial was similar to the period of ten days for forwarding of the District Justice's Order contained in Rule 63 of the 1948 Rules. The latter has been annulled by the 1967 Rules. The Court cited The State (Attorney General) -v- Judge Roc [1951] I.R. 172, wherein Ga v an Duffy P. saw no difficulty about ascribing to a certified copy Order coming late from the District Court Clerk to the County Registrar the same evidential value as to a copy punctually transmitted. Mentioned also was Rule 23 of the District Court Rules 1948 which provides that non-compliance with the Rules shall not render any proceedings void but gives to a District Justice discretion, inter alia, to treat proceedings as void or amend or otherwise deal with them as the Justice thinks fit. Rule 13 of the 1948 Rules as inserted by rule 5 of the District Court Rules 1955 enables a Justice " to enlarge or abridge the time appointed by these Rules . . . for doing any a c t . . . and any such enlargement may be made although the application for the same is not made until after the expiration of the time appointed or fixed". The requirement as to time specified in Rule 38 of the 1967

Edited by Gary Byrne, Solicitor

TAX Part VI of the Finance Act 1983 which creates a "Residential Property Tax" payable annually by certain Tax payers on certain residential property, is not unconstitutional. T h e C o u rt c o n s i d e r ed t o g e t h er Appeals in two separate Proceedings claiming the same relief, a Declaration of unconstitutionality of Part VI of the Finance Act, 1983, which established a Residential Property Tax. The Tax was created by Section % of the Act, but other provisions of the Statute restricted its impact within narrow limits. Tax would only be payable if the market value of the property exceeded £65,000 and the owner had an annual income in excess of £20,000 or the aggregate of the annual incomes of those family memb e rs residing in the house, exceeded £20,000. The Plaintiffs in the Madigan Action were husband and wife who jointly owned a house in Foxrock, Co. Dublin, having an estimated market value of £250,000. The husband's income was in excess of £25,000 and the wife had no income. They were clearly liable to the impugned tax. The Plaintiffs in the Gallagher Action were mother and son. The mother was the owner of the house, which had an estimated market value of £95,000. Her income was £1,400 per a n n um, but her husband and five of her children lived in the house, and she did not know what their incomes were. Her son, the co- Plaintiff, was not willing to disclose his income to his mother, regarding the request as an invasion of his privacy. Faced with the impossibility of showing household income of less than £20,000 and thus claiming the exemption from tax which the Act provided, the Plaintiffs were also liable to the impunged tax. The Court stated that its sole function was to enquire into the constitutionality of the impugned provisions, and that it could not concern itself with Taxation policy, which was a matter for the Oireachtas. The Court also refused to consider arguments based on assumptions and hypotheses outside the facts, and stated that it would base its decision only on the

Patrick J. Madigan and Another -v- The Attorney General, The Revenue Commis- v

Made with