The Gazette 1985

GAZETTE

JULY/AUGUST 1985

comprises "full particulars of all Accounts maintained" by the Taxpayer in question and the second category comprises "such information as may be specified in the Order relating to financial transactions" of the person concerned but restricted first to information recorded in the books of Financial Institutions concerned and then only to such information as would be material in determining the correctness of a statement of profits or gains or in determining liability to Tax. "Particulars of Accounts" merely meant the name or names of the person by whom the Account had been opened, the nature of the Account and perhaps the date on which it was opened and closed. It does not include lodgments and withdrawals which are more appropriate to financial dealings. The Court also considered the definition of 'Books' as used in Section 18. A definition will vary depending on whether it is a Bank as specified in the Bankers' Book Evidence (Amendment) Act 1959 or the A.C.C., Post Office Savings Bank, etc., as described in Section 7(4) of the Central Bank Act 1971. In the case of a Bank, "books" means "bankers' books" and in the case of Financial Institutions which are not Bankers within the statutory meaning of the term "books" simply means "records and documents" of such Institutions. In relation to the statutory definition of Bankers' Books the generally accepted concept of a Book is consisting of leaves of paper containing writing, manuscript or type and bound or fastened together. The statutory definition extends this concept to include sheets of paper or pages which are not bound together in the conventional sense and also information which is not necessarily recorded in the conventional methods of calligraphy, typing or printing but by modern processes. However while the word "record" is included in the statutory definition this does not mean the files of correspondence. The definition does not include documents in the possession of a Banker which are not in essence a Book within the extended meaning of the word. It was also stated that there were circumstances in which a Financial Institution could discharge its obligations under a particular Order by providing photostat copies of particular records but that could only be done when the information directed to be provided coincided with the information contained on the photostat record. The proper costs of the Financial Institution in complying with an Order must be borne by the Revenue Authorities. In any case in which an Order is made it is desirable to limit the information sought so closely as possible in the first instance with liberty to the parties to apply for further relief in the event of

extended disclosure becoming necessary. HELD: that it had not been established even on the onus of proof as required in Civil Cases, that the Inspector of Taxes had required the taxpayer in the present case to deliver a statement of profits and gains and in the absence of such evidence it was held that the conditions precedent to the granting of the relief sought had not been fulfilled and the Application was refused. J.B. O'C. -v- P.C.D. and A Bank - High Court (per Murphy J.), [1985] ILRM 123. John O'Connor Where a clear and manifest clerical error is discovered in a District Court Order of conviction, certiorari should not issue to cure the defect as the interests of justice would not require it and it would be a debasement of the relief of certiorari to order it in such circumstances. The Prosecutor was charged in the District Court with an offence that he entered as a trespasser a premises with intent to steal therein contrary to Section 23(A) of the Larceny Act, 1916 as inserted by Section 6 of the Criminal Law (Jurisdiction) Act, 1976. A plea of guilty was entered to the charge and the prosecutor was sentenced to eight months imprisonment in the District Court. The solicitor who undertook his appeal against sentence to the Circuit Court discovered that in the order of the District Court the recital of the charge omitted the words "entered as a trespasser". The appeal was adjourned pending an application for certiorari to the High Court. The date of the certified copy of the District Court Order on the court file was 12th March, 1984. On applying for a certified copy of the order, the Prosecutor was furnished with one dated the 30th March, 1984 in which the words omitted from the original copy were entered. A conditional order certiorari was granted by the High Court and the cause shown by the District Justice included an affidavit exhibiting the charge sheet containing the charge made and the entry of the District Justice as signed by him. In refusing an absolute order of certiorari, the President of the High Court HELD: 1. No conceivable interest of justice would be served by quashing a conviction duly made, properly recorded and within the jurisdiction of the District Court because of a clerical error of an official made at a later stage. In this context, the following dictum of O'Higgins C.J. in The State (Abengien) -v- Dublin Corporation [1982] ILRM at p.597 was cited with approval, "for the Court to act otherwise, almost as of CRIMINAL PROCEDURE: RECORDING A CONVICTION

Recent Irish Cases

Edited by Gary Byrne, Solicitor

REVENUE Section 18 Finance Act 1983

Request to submit Accounts not a Request for Statement of Profit or Gain. Two categories of information Financial Institution may be asked for: Definition of Bankers' Books; Cost of Financial Institu- tion complying with Order to be borne by Revenue. An Application was made for an Order pursuant to Section 18 of the Finance Act 1983 directing the Bank to furnish to the Inspector of Taxes full particulars of Accounts held by the Taxpayer. The Inspector of Taxes' Affidavit, which was uncontradicted, showed the taxpayer had failed to make any Return of Income for over ten years, had failed to keep proper accounting records, had mislaid his banking records and had been extremely unco-operative with the Revenue Authorities. The Taxpayer raised two objections to the making of the Order. The first objection was that there was no evidence that he was ordinarily resident in the State as required by the Section. In the absence of evidence from the Taxpayer this was not accepted. The second objection was that the Taxpayer had not been "duly required by an Inspector to deliver a statement of the profits or gains arising to him from any Trade or Profession or to deliver to the Inspector a Return of Income" and accordingly that the condition precedent to the right of an authorised Officer to apply for relief under Section 18 had not been fulfilled. The Applicant had been asked to submit accounts for five years ending 5th April, 1976. It was held that there was no evidence to suggest that the Taxpayer was ever requested to deliver a statement of profits or gains and that the condition precedent to the right of the Inspector to apply for relief under Section 18 had not been fulfilled. Section 18 makes a clear distinction relating to two categories of information which a Financial Institution may be directed to furnish. The first category

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