The Gazette 1985

GAZETTE

JULY/AUGUST1985

payment and not how they were dealt with by the Recipient or how the Grantor considered they should be applied. It was the opinion of the Court that the main object of the IDA in paying the training grant was to secure permanent employ- ment in Ireland and a company carrying out work which would not be undertaken by existing Irish Firms. The object of the Company in qualifying for the Grant was to aid its new industrial venture in Ireland by getting relief of its wages and salaries and training in new employees. It was HELD by the Court that the grant should be treated as Revenue rather than Capital in assessing the Company's position as the sole object of paying the grant was to relieve the company's outgoings in relation to the employment of new employees. The Revenue Commissioners Appeal was therefore allowed and the training grant was treated as Revenue of the Company for the purposes of Corpora- tion Tax. Jacob International Ltd. Inc. -v- L. O'Cleirigh (Inspector of Taxes) - Supreme Court (per Hederman J.). (nem diss). 22 March 1984 - unreported. John Barry Fox ADOPTION The welfare of the child is to be found within the family unit unless there are compelling reasons why this cannot be achieved. At the time of the birth of the infant girl in September 1982 her father and mother were unmarried. The mother arranged for her to be placed in foster care and she visited her infant while in such care from time to time. In November 1982, the mother signed a consent for the placement of the infant for adoption and one month later the infant was placed with the adopting parents with a view to being adopted by them. In December 1983, the mother withdrew her consent and in March 1984, the mother and father of the infant were married. The a d o p t i ng p a r e n ts i s s u ed proceedings in February 1984 seeking inter alia an order pursuant to Section 3 of the Adoption Act, 1974 authorising An Bord Uchtala to dispense with the consent of the natural mother to the making of an adoption order and an order granting them custody of the infant. In the course of the High Court hearing, the Court added the father as a party to the proceedings. He also added An tArd Cláraitheóir as a party and restrained him, pending the determina- tion of these proceedings, from re-regis- tering the birth of the infant under the Legitimacy Act, 1931. On August 10, 1984, the Court refused the claim of the adopting parents for relief pursuant to the Adoption Act, 1974 and continued the order restraining An

tArd Cláraitheóir from re-registering the birth until after the expiration of 21 days from the date of the perfection of the order. On May 22, 1984, the parents had i s s u e d a s u mm o n s u n d er t he Guardianship of Infants Act, 1964 claiming custody of the infant and naming the adopting parents as the defendants. The adopting parents issued a summons on June 21, 1984 under the same Act claiming custody of the infant. On October 15, 1984, judgment was delivered by the Court and custody of the infant was awarded to the adopting parents with rights of access to the parents. By a further order, dated October 17, 1984, the Court continued the order restraining an tArd Cláraitheóir from re- registering the birth of the infant pending the appeal against the decision of the High Court in the summons under the Adoption Acts. The issue raised on appeal by the parents against the order granting custody of the infant to the adopting parents was as to whether the High Court had applied the right test having regard to the fact that they were now married; that the infant was now their legitimate daughter and had that status even before re-registration of its birth. The Supreme Court HELD that the principles of law applicable to the case were as follows: (1) The infant being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Con s t i t u t i on and which are identified by O'Higgins CJ in G. -v- An Bord Uchtala [1980] I.R., at p.56, rights under the Constitution as a member of a family which are: (a) to belong to a unit group po s s e s s i ng inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41.1); (b) to protection by the State of the family to which it belongs (Article 42.1); (c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42.1). (2) The State can not supplant the role of the parents in providing for the infant the rights to be educated conferred on it by Article 42.1 except "in exceptional cases" arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42.5). (3) The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution. The Court HELD, also, that it did not seem that Section 3 of the Act of 1964

acquisition when that motive was in keeping with the statutory policy. Brian Hussey and Others -v- Irish Land Commission - Supreme Court (per Henchy J. (with Hederman J. concurring) and McCarthy J., 13 December 1984 - unreported. Eamonn G. Hall TAXATION Corporation Tax — IDA Training Grant — Capital or Revenue? J a c o b I n t e r n a t i o n al L i m i t ed Incorporated is a multinational company incorporated in Panama which has carried on the business of providing engineering services in Ireland from May 1974. On 1 October 1975, the Company entered into an agreement with the Industrial Development Authority under which the IDA was prepared to give the Company a training grant not exceeding £245,000.00 towards actual elegible training costs, subject to certain terms and conditions. The relevant conditions considered by the Court were:— 1. A condition binding the company during the period of ten years from the date of the agreement, not to undertake without IDA consent any work or commission which in the opinion of the IDA could be undertaken by existing Irish Firms. 2. There was an upper limit of £1,633.00 per permanent full-time job created by the Company. 3. That if by the end of 1978 the total number of permanent full-time jobs created within the Company was less than 150, the company would repay to the IDA, all grant monies received in excess of the sum of £1,633.00 multiplied by the number of such jobs actually created. 4. The monies were to be refunded in the event of the appointment of a Receiver over the property of the Company. The IDA by Section 39 of the Industrial Development Act, 1969 was given power to enter such an agreement with the Company and no evidence was given to state that the Company had not complied with all the conditions laid down by the IDA and the Court assumed that the IDA was satisfied that the Company had complied. The grants paid from 1976 to 1978 came to a total of £244,996.00. The case stated to the Supreme Court was whether the sum of £244,996.00 was assessable to Corporation Tax and the issue to be decided by the Court was whether the training grant was to be treated as Revenue or Capital and for this purpose the Court stated that the question must be answered by investi- gating the true nature and purpose of the

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