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Dáil Éireann - Volume 39 - 02 July, 1931

Public Business. - Finance Bill, 1931.—Committee.

The Dáil went into Committee.

Question proposed: “That Section 1 stand part of the Bill.”

Mr. MacEntee: The Minister for Finance may remember the point I raised with regard to the pensions of dependants of those executed in 1916, asking that they should be placed on the same footing as the pensions and retiring allowances that we pay to ex-officers and men of the National Forces. As I have already explained to the House, those who are in receipt of army pensions are not subject to income tax. I suggest as a matter of equity that the pensions which are paid to the dependants who were executed in 1916 should be upon the same footing.

Mr. Blythe: I have looked into this matter. The position is that, of course, there is only one class of pension at present that is not liable to income tax and that class is wound or disability pensions. All ordinary widows pensions are liable to income tax. It is true that certain lump sum payments to officers are not liable to tax, but apart from that, ordinarily officers' pensions are liable to tax. There are small sums payable by the widows of the leaders of 1916. Looking into the matter we find that if we were to introduce a new class of exemptions there would be quite a series of new claims put up and on the whole I think it is not desirable to introduce a new class of exemptions. The amounts that are payable are very small. In some cases there is no [1364] amount payable. In others it is only a very small sum. They arise because in the Amending Act passed a year or two ago, the amount of the allowances which had been heretofore payable to the widows of the signatories of the 1916 rising have been doubled and we think a certain amount of consideration was shown to these particular ladies by doubling the amount of the pensions. While from the point of view of the Exchequer there is not much money involved yet we could hardly exempt these pensions from income tax without exempting certain other classes and, on the whole, as the amounts are very trifling, we think that the ordinary rule should hold.

Section 1 agreed to.

SECTION 2.

Mr. Blythe: I would like to say with reference to this particular question that a doubt was expressed in the House as to whether the practice that has been in existence here since 1925 was in conformity with the practice that exists in England. I have had inquiries made and I have a copy of a letter here in my hand from Somerset House which states that the practice which has been carried on here since 1925 is identical with the practice which has been carried on in Great Britain. Since these provisions were made in 1923 they have never been challenged in Britain. So that what we are seeking now is identical with the practice on the other side as well as being identical with the practice carried on here since 1925. Somebody said that if this section were passed certain executors might be made liable to penalties for not having made returns. There is not any intention at all to seek for penalties, and I am advised that the passing of this section would not enable us to seek penalties for anything that has been done. As a couple of cases have come into the courts it is proposed —in a case before the Circuit Judge where the decision was got in favour of the executor—to pay the taxed costs of the parties. It is the intention that the taxed costs of the parties should be paid on application.

[1365] Mr. MacEntee: In that connection owing to the exigencies of the situation during the week-end I had not time to hand in an amendment which I had intended handing in to delete the words “shall be deemed always to have had effect.” I do not want to discuss that amendment at this stage if the Minister will agree to discuss it on the Report Stage.

Mr. Blythe: I could not accept any such amendment.

Mr. MacEntee: Then I am afraid we shall have to vote against the section in its present form. The letter from the British Income Tax Department which has been put before the House has nothing to do with the case. It does not go to the root of the argument at all. The position is that here for a certain number of years the law was something different from what the Revenue Commissioners contended it was. One gentleman here more intimate with the law than they were contested their right to ask for certain returns. When the matter came to the courts he was proven to be right. This proposal of the Ministers is a proposal to penalise him on that ground and because of the fact that for a certain number of years the Income Tax Commissioners have been acting illegally; as a result of his action that has been found out. That is the effect of the Minister's proposal. It is an unjust and inequitable one.

I suggest that the position which the Minister has in view would be fully met if we amend the law so as to bring it into line with the practice, but not to make it retrospective. Surely there is no justification for that. The citizen, after all, is entitled to the benefit of the law as it stands, and must not be victimised because some persons in authority think the law was something else. The courts have decided in this man's favour. It would be very unjust if the House were to go back upon the decision of the courts. We have had retrospective legislation to amend court decisions in some respects here in this country, but as a general rule they have been to amend decisions of the House of Lords. Never before has [1366] there been an attempt to get over the decision of our own courts in this way. I think the House would be well advised not to permit the Minister to act in the way he proposes under this section.

Major Myles: I think that the Minister ought to give us a further opportunity on the next stage of this Bill to consider this whole matter. To my mind it is a very serious outlook. It may be what he says it is. A number of Deputies here are, perhaps, not able to argue from the legal point, but it appears to me and to a number of people outside as if this were retrospective legislation. Whatever may be the rights and the wrongs of it, I think the Minister should give the fullest opportunity for discussion on the next stage, so as to remove any doubt whatever from the minds of the public, and from the minds of Deputies here too, as to what is intended in this matter. I think Deputy J.T. Wolfe last week stated the case, and there is no necessity for me to add to it. I will ask the Minister to take serious cognisance of the state of feeling that has got up through the introduction of legislation of this sort.

Mr. T. O'Connell: I should like to have a little more light as to the meaning of the section. I should like to know, for instance, has it the implication which Deputy MacEntee suggests, that it will have the effect of cancelling the decision of the court in a particular case? I do not read that into it. I do not think that that can hold. I believe that that would be a very objectionable proceeding. As I say, I have not read that into it, that it would in this case which was tried out have the effect of wiping out, as it were, the decision of the court. Apart from that, I cannot see why, if a person during his lifetime has succeeded in evading the income tax authorities and has not paid the tax which he was bound justly to pay in accordance with the law, his heirs and successors should be allowed to benefit by the fact that he has so evaded the law and has not been discovered.

Mr. MacEntee: It was not the law.

[1367] Mr. O'Connell: There was a law while he was alive that he should make certain payments.

Mr. Flinn: Not these particular payments.

Mr. O'Connell: As I understand the section, this is its effect: that a person has evaded certain obligations during his life-time and the Revenue Commissioners have not discovered these evasions until after the man's death. Then they proceed to collect from his estate the tax that he should properly have paid during his life-time. If that is the proper interpretation of it, I say it is just and fair that that should be done. If a man who is bound to pay income tax does not pay it, the general community suffers to that extent. If a man during his life-time does not meet his obligations with regard to income tax, I do not see why the people who benefit by what he leaves should be free from the obligation to pay. They have got money that properly would not come to them if the man had met his obligations and I do not think the Revenue should be prevented from recovering it. I do, however, say that if this section would have the effect of reversing a judgment in a particular case it is not right that that should be done. Otherwise I would be prepared to support the section on its merits.

Mr. Flinn: Deputy O'Connell said that he is not going to uphold a man who has evaded his obligations, who has evaded the law. What has happened in this particular case is that the Minister for Finance, or his Department, has gone into the court to say that a man has evaded his obligations.

Mr. O'Connell: I think that what they have gone into court for is to say that the executors have evaded their obligations.

Mr. Flinn: It does not matter the tossing of a coin who it was. The person who was in court was alleged by these people to have evaded his obligations, to have evaded the law, and the courts of this country have said that he did not evade his obligations [1368] and that he did not evade the law. That is perfectly clear. If it is not clear, it is up to the Minister to make it clear instead of putting in a thing here which is certainly not clear. This section says that the Finance Act of 1925 shall be construed to have effect and be deemed always to have had effect as if the figure “1918” now contained therein was inserted. It was not. The man was doing what he was entitled to do. Whether he should have been entitled to do it or not is another question. He was entitled to do it. He was carrying out the law and the “Ancient Order of Torturers” were breaking it. That is the position. The court-said they were breaking it. The court said this man was perfectly entitled to do what he did, that he was neither evading his obligations nor the law. Deputy O'Connell has the effrontery to suggest that that man should now be penalised for knowing the law better than the Department of Finance, and carrying out the law more honestly than the Revenue Commissioners. That is the plain English of this.

There is very strong obligation on the ordinary citizen, an immensely onerous obligation, which presumes him to know the whole of the law in every particular, and to be held liable for the transgression of any particular of every law, even if he does not know it. But it is a monstrous suggestion that a man should be held liable not merely to know the law, but to know what the Minister for Finance will do if the man carries out the law in a way which does not happen to suit the Minister. I have described this as anarchy. Anarchy is a disrespect of law as law, and this is a disrespect of law as law. First, they have disrespected the law and then, when that law has been enforced against them in their own courts, they disrespect the courts and the law by saying what they know to be untrue. In other words, that you must take up an Act of Parliament and construe it to mean not merely what the court says it never meant and does not mean now, but what on the face of it it does not mean. If that sort of thing is to go on, where do we stand?

[1369] Deputy MacEntee, with that moderation which distinguishes him, has strained the case in favour of the Government. Personally I have a habit of doing the same thing myself. He has strained it outside all the limits and I really feel I must rebuke him. He has strained it outside all the limits when he said that the only thing that they have upset has been the decision of some court. They have not. They have upset it in every case that suited them. They have actually proposed to upset it even before the court has decided. We had the case of the Local Authorities Mutual Assurance Bill. They set up a company there.

An Ceann Comhairle: I do not think it arises here.

Mr. Flinn: We are speaking now of retrospective legislation.

An Ceann Comhairle: No, we are not.

Mr. Flinn: Then we will not. We will take it that we will simply go on with the bad custom we have of upsetting every law when it suits us, using the courts as tools and treating them with contempt whenever it suits the Minister. Whenever a man in this country, by knowing the law, acting under the law, carries on his business in accordance with the law, if in the result it does not suit the Minister, then what he did legally will be, as in this case, declared to be a crime for which he may be penalised. That is constitutionalism. That is respect for the law, the respect for the law that an anarchist has; no other respect.

Mr. O'Connell: Might I explain? The man who I said was evading his obligation was not the man in court, but the man who has gone beyond anything this Dáil or the courts can do— the deceased person. My interpretation of this is that it deals with executors or trustees, and enables the Revenue Commissioners to recover from them taxes that should have been paid by the deceased before his death. I was not speaking at all of the person who went into court to insist upon his right. I was speaking of the person [1370] who did not pay the taxes that he was obliged to pay before his death. This section proposes that the Commissioners should have the right to collect the taxes from his trustees and executors, if they find out after the man's death that he had not paid. On the merits I say that that seems to me to be fair and sound. The man who evaded his obligation was the man who is dead.

Mr. de Valera: Surely it must be clear to Deputy O'Connell that if a man evades his obligation the law as it stands is what would have to deal with him. It is by means of the law as it stands he would be dealt with and there would be no need whatever to introduce this particular clause to deal with a man if he were really evading his obligations. I think he ought to have no doubt in his mind as to what the Minister is at. The Minister made it quite clear on the last day as to what he was at. He said in a certain case certain payments made by other people were not paid by a certain individual. Then he brought the executors of that individual to the court and the decision was given against him, and now he wants by the wording of this Act to put himself in the position which he was not in when he came before a court and that is to try to declare the law to be something that the court previously declared it was not. It seems to me that there can be no doubt from the Minister's own statement what he is after, I think it ought to be clear on the face of it that if a man were evading his statutory obligations the law as it stands should be the method by which he should be dealt with.

Mr. O'Connell: Exactly. The law says he must pay his income tax.

Mr. de Valera: And as the law stands it is capable of getting him through the executor if he was legally obliged to pay.

Mr. Blythe: No.

Mr. O'Connell: That is what the section wants to correct.

[1371] Mr. de Valera: The Minister made it clear in his statement that what he wanted to do by this particular section was to put himself in the position of recovering the money which could not be recovered otherwise and which was not as the law stood legally due.

Mr. Blythe: Nothing about due. It is a question of recovery machinery. This section has nothing at all to do with liability.

Mr. de Valera: Recovery machinery when the law as it stood did not recover it. In other words, there was no obligation to pay this money.

Mr. Blythe: There was.

Professor Thrift: I think there is confusion quite generally upon this matter. I take the view put forward by Deputy O'Connell. I think what the Minister is after here is that he wants to get back that money which everybody would admit was lawfully due.

Mr. de Valera: The courts do not.

Professor Thrift: Which the courts would admit was lawfully due, and which the courts always have admitted was lawfully due. The question of law which has been referred to by Deputy Flinn as being decided is not yet decided, and, as I understand it, is still sub judice. But leaving that aside for one moment the point is whether the executors in another respect have been legally liable to do certain things or not. One court has decided they must. That court took the view that the law was as these executors interpreted it, but apart from that, there is the other question as to whether what the Minister wants is to extend his powers over executors where other cases of attempted evasion of the law have occurred. If the Minister will make it perfectly clear that that is what the section applies to, I think he would probably get the whole House with him. The objection to the clause as it stands is that it will apply to a great many other cases besides this, and though I do not feel as strongly about this as other people, it is an objection to say that the clause would give the [1372] Revenue Commission powers which they do not intend to use in most cases.

Mr. Flinn: Except for blackmail.

Professor Thrift: And I think the Minister ought to be able to word the section so as to secure what he wants, and yet not do what many of us would strongly dislike being done. I urge him to accede to Deputy Myles's request, and give us an opportunity of going into this in the interval between now and the Report Stage, and see whether we cannot make the section something that will satisfy us all.

If it is the case that after death it is discovered that any person has not paid the income-tax which he ought to have paid, and if it is the case that when his estate is declared, it becomes obvious that he had not declared his whole income and had been liable to tax, which I take is the case Deputy O'Connell referred to, I think we would all admit that the Minister and the Revenue Commissioners ought to have as much power as possible to get all the information as to what the man's income was in his lifetime and as to the amount of the tax he ought to have paid. But I do put it to the Minister that the executors are in a difficult position frequently and that their position is difficult enough as it is and that they should not be put to unnecessary trouble and trouble of a very delicate nature. I know that in such cases of difficulty in ordinary cases, the executors would get all the help possible from the Revenue Commissioners who would be reasonable in these matters. Still I suggest to the Minister it is desirable that this section should not leave that entirely as an open question of law, and that it is unnecessary to have such a wide section in order to secure the power he wants to get in these cases where evasions have occurred. Therefore I ask the Minister to meet Deputy Myles in the way he suggests.

Mr. MacEntee: Apparently there is some misunderstanding in the minds of Deputy Thrift and members of the Labour Party in regard to what is our attitude to this section. Our attitude towards those who have succeeded in evading taxes during their lifetime is exactly the same as that of Deputy [1373] Thrift and Deputy O'Connell. We have no objection at all to the Minister by all the means in his possession recovering those taxes as soon as he discovers that the deceased has evaded the payment of them during his lifetime; but we say that the Minister has machinery quite effective for the purpose provided by this section if the section were to read: subsection (1) of Section 8 of the Finance Act “shall be construed and have effect as if after the figure 1918 now contained therein there was inserted the words and figures, etc., etc.” We do say it is not necessary and that it is giving retrospective effect to the section to insert the words “and be deemed always to have had effect.” That is the precise ground of our objection to the section in its present form that it does give it retrospective effect. There can be no doubt about that. The Minister speaking on the Second Reading suggested that the decision given against the Revenue Commissioners in one court was likely to be reversed on appeal.

I am merely a layman, but I have studied the sections and I am convinced that that decision will be upheld, and I say that in view of the fact that the courts have already tried and found in favour of the citizen in one case, we should be very slow when the matter is sub-judice to endeavour by a legislative act to reverse that decision of the courts and reverse it against the citizens. I think if there is any doubt that the subject will get the benefit of the doubt, and he will not get that benefit if we make this section retrospective. If we do, then we feel, notwithstanding what has been said in the House that it will be open for the Income Tax Commissioners to recover the penalties which the court held they are not entitled to recover in respect of this estate. While I take up without reserve the attitude which Deputy O'Connell and Deputy Thrift have taken in the matter, nevertheless there are certain other factors which enter into the decision. For one thing, the deceased is no longer in a position to put himself right with the State. His widow and dependants are possibly [1374] not in a position to redress the wrong which has been inflicted. They may find it difficult to provide for themselves, let alone to pay, if you like, for the sins of the father, and for that reason there is a good deal to be said for the law as it originally stood; that is to say, the law which clearly states in Rule 18 that “where a person dies without having delivered a statement of all his profits or gains chargeable to tax, with a view to an assessment thereon in due course, an assessment in respect of the profits or gains which arose or accrued to him before his death, may be made at any time within the year of assessment, or within three years after the expiration thereof, upon his executors or administrators, and the amount of the tax thereon shall be a debt demand payable out of his estate.” Quite obviously it would be a difficult matter for the executors to fight the additional assessments that had been made in regard to the estate of the deceased three years after the wrongful return had been made. He would not be there to help them, so to that extent they are greatly handicapped. The estate may have decreased much in value, and, after all, their primary duty is to the legatees under the estate. As the law stood in England originally, there was, therefore, a good deal to be said in favour of it. We are leaving that to one side, and we are prepared to accept an amendment which would put the law in the same position as the law in England. That should suffice for the Minister. We ought not to go back and try to ante-date the amendment now before the House. If we do not do that, but content ourselves with amending the law prospectively, we will have recovered for the Minister the machinery he desires, and he will not be doing an injustice to the executors, to the estate, and to the widow and dependants.

Mr. Blythe: There is a great deal of misapprehension, I think, in regard to this particular sort of case. What is desired is simply this, that where the man has failed to pay what was due during his life-time, when, in fact, the man has avoided paying what was due —all the cases that have come up have [1375] been cases where people have taken steps to avoid what was due during their lifetime—that out of his estate, provided they act in time, the Revenue Commissioners can recover six years' tax—if they act immediately they can go back six years. If they do not act up to the end of the limited period, they can only go back six years altogether, three years before the man's death. This is to enable us to recover six years' tax out of the estate. That has been the practice so far as we know, and perhaps still is the law here. It is the practice in England. It has not been challenged; it has always been the practice here and has only now been challenged. There are no obligations thrown on the executors to discover whether a man paid this tax or not, or to discover if his returns were accurate. The obligation will be on the inspector. It will give the inspector power if he discovers that properties have been omitted from the assessment to include them, and that additional assessment will be subject to appeal, so that nothing at all is going to be taken from anybody except tax that was wrongfully withheld from the Revenue. I quoted a case the other day, and it seems to me to be wrong that the heirs of a man should have the benefit of money wrongfully withheld from the Exchequer, and that other people should be obliged to pay it. If we do not make this to some extent retrospective we will lose something like £100,000. We will perhaps have to pay.

Mr. Little: Crown debts are not recoverable.

Mr. Blythe: I would not be assured by the Deputy's statement. We may have to repay taxes for a much larger sum, all of which should have gone into the Exchequer and be duly paid. People have paid; nearly all executors have paid. What sort of position are they going to be in? Can we afford to repay this tax which was being paid all the time in England? What position are they going to be in vis-a-vis the beneficiaries, who can say: “You paid tax you ought never to have paid.” [1376] The only just thing is to be retrospective. The only just thing is to make the law what it was intended to be; what it was conceived to be until this particular judgment was issued. As I say, hundreds of cases have been settled and paid on this basis. Thousands of cases have been settled in Great Britain on this basis. If we now disturb it we open up a number of difficult problems.

As I say this does not impose an obligation on the executors. It simply means that when the Revenue Commissioners discover after a man's death that he has concealed his income, when the machinery which we conceived to be in existence and which apparently now has broken, is restored, they can put it in operation and they can make the assessments and these amounts can be recovered. Deputy O'Connell raises the point about cases where there was a decision in the Circuit Court. I am really in doubt about that matter. He really only got a Circuit Court decision and there would have been an appeal to the High Court and another to the Supreme Court, and there is a great difference of opinion amongst counsel as to what would be the result. In certain cases if there was not a great deal of money involved we would wait until the Supreme Court had finally decided the matter and we would not bring in any legislation while the law was unsettled.

This is a matter that involves big sums. The revenue would be held up by people who would await the outcome of the litigation and revenue would have to be found by other means. It would perhaps be a couple of years before a decision would be obtained and revenue which ultimately would prove to be payable would be held up during that period. We act really before there is a final determination as to what the law is on the matter. In the particular case that was before the Circuit Court the amount involved was not large and there would be a case if the man's expenses were paid, for letting him pay the tax under the amended law. We could equally let him have the tax. It is a matter upon which I [1377] am quite indifferent so far as this particular provision is concerned but to condemn particularly one of these Revenue Acts because it is retrospective is to disregard the facts of all these cases. It is disregarding the way in which the courts construe the revenue law, and if that taxpayer is given the benefit of the doubt in such a way as to upset the practice which had been in existence even for a very long period, a practice which everybody had thought to be entirely in accordance with the law, it will have serious results.

As a matter of fact both here and in England legislation has had to be introduced with retrospective effect. In the present year's Finance Bill in Great Britain pending a decision of the final court a section was introduced because they feared that a decision might be given which would have upset the practice as it had existed for forty or fifty years. Before the court had announced its decision at all, a section was introduced to continue the existing practice if it proved to be necessary. You can get the most extraordinary results if the whole meaning of legislation is going to be revealed, by some court decision, to be entirely contrary to what was intended and to what it was always believed to be. In those cases no injustice is done if what everybody has been doing is confirmed as right. In many cases a grave injustice would be done if the practice were entirely upset. Though certainly no injustice might be done in a high degree to individuals, a grave injustice might be done to the community as a whole.

It seems to me that the idea that executors should not be liable to pay for the same period as that for which an individual is liable to pay, a six year period, is really quite unjust. As a matter of fact the executors escape a little because a man who during life was discovered to have made a false return, as in the case I quoted for the Dáil the other day, would certainly be mulcted in penalties as well as the tax. I had a case here the other day of a man who was returning an income as relatively small but in fact it was discovered after his death that he had property the [1378] income from which gave him a sum of £12,500 a year. His estate will only have to pay £17,000 but there is no doubt that if that fraud had been discovered during his lifetime, he would have been mulcted in penalties, as well as the amount of tax of which he had defrauded the revenue, so that there is no hardship on the heirs or successors of the deceased in these cases. There is no burden cast on the executors because as I say the burden is on the inspector to discover it. He discovers it by a certain method. He finds that the man's estate was immensely greater than would have provided the income which he had been returning. There is no delay in winding up the estate because the period during which the revenue officers can take action is limited to a period of three years after the year of assessment in which the person died.

Captain Redmond: With the Minister's general proposition that the Revenue authorities should have power and machinery to enable them to go back six years to recover debts due by deceased persons, I certainly have no quarrel, and I do not think any other Deputy can have any quarrel. I leave that portion of the discussion altogether upon one side, because the opposition to this section, as far as I understood it, has been, not to the Minister's proposal in regard to the future, but entirely to his carrying back those proposals to have effect in the past. I may say that personally I am strongly against that principle. I think to have it introduced in the Finance Bill, from the point of view of the revenue authorities, is injurious to the State. I think it is injurious to the carrying on of the government of the State and I think it is bad for the whole system of government of the country. After all if we have a state of law in the country and if ordinary citizens abide by that law, how are they to know that to-morrow there may not be some retrospective measure introduced saying that they were not acting in accordance with the law? It is very far-reaching indeed to introduce in any measure, and especially in a Finance [1379] Bill this principle of retrospection. The Minister has said that if there is any doubt, is the taxpayer to have the benefit of the doubt? I ask why should not the taxpayer have the benefit of the doubt? Is it not up to the State to have their authority so watertight that they will be in a position to carry out their intentions according to the strict interpretation of the law? If there is any doubt I say the taxpayer is distinctly entitled to the benefit of that doubt.

What is the position with which we are faced? The proposal of the Minister, as far as I understand it, is, that not only as regards the future but also the past, the custom which he says has prevailed in England so far and has also prevailed in this country merely as a custom, shall be given statutory effect. That is that the Revenue authorities shall have the right to go back over a period of six years in these cases. The Minister has thrown out the suggestion, though I do not think he can really have done it seriously, that if this custom is not now given statutory effect the State may be called upon to repay sums of money which have been paid by executors in the past. I give him credit for knowing this much, that anything paid in mistake, certainly anything paid to the State, in law is not recoverable by those who pay it. I do not think that he would seriously get up and state definitely that these sums of money can be recovered from the State.

It is said that if this section as it now stands is not passed the Minister will be at a considerable loss of revenue. That may be so. We do not blame him for the loss; we shall have to bear it. The State will have to bear whatever the loss is. In my opinion that loss should be borne by the State and the law as it was should be respected. Let us make the law in future as we please, but let us have the law respected as we make it in the future. It has been said that this practice has gone on in England and that it has gone on here until only the other day when it was challenged. The Minister has also [1380] suggested that the law might even be now as he desires it to be in the section because this particular case is still sub judice and a decision has not yet been given on it.

I venture to say that if he had not some very grave doubts indeed that the law was not as he and the Revenue Commissioners endeavour to interpret it there would be no necessity for his bringing in this section as it stands in this Bill. I think the only straightforward course for the Minister to adopt is to ask this House to pass this section with that portion of it deleted as suggested by Deputy MacEntee. If those words were deleted I venture to suggest that he would have the unanimous support of the House because I said in the beginning that no one would question the right of the State if they think fit to go back the same number of years in regard to a deceased person's estate as they are entitled to in the case of a living being. Therefore on the section as a whole I would ask the Minister to reconsider this retrospective portion of it. The proposal that the law shall be changed now in order to have effect in a few cases even though it may involve a considerable amount of money is a principle I think which should not be approved of by this House in regard to any other financial Bills or any other legislation.

Mr. Little: The Minister for Finance must make every lawyer tremble in his shoes and every judge wonder whether he is to administer the law as it is or the law as it is intended to be. He says that you get the most extraordinary results from the decisions of the judges. Of course that reveals the mind of the very ardent collector of taxes, quite a proper state of mind for the particular official who has to do that work, but the Minister should not forget that the decision of the judge is recognised in this country where there is constitutional law existing as that of the protector of the individual against the State. He is there particularly for that purpose and in going in for retrospective legislation of that sort the Minister is over-riding a very essential principle of constitutional law. Even if it does mean [1381] a certain loss of revenue provided he adjusts the law to carry out the intention of the legislature for the future he should be satisfied and not cut the ground of all constitutionalism from under the feet of lawyers and of judges.

I do not quite follow the Minister, because he says in one breath that it has been the practice to work upon a certain line and to collect revenue upon that basis. He ignores the principle of law that money which has been so collected cannot be recovered from the individual. Crown debts, to use the old phrase, are irrecoverable. Of course there are certain legislative exceptions to that, such as the getting of a rebate on Income Tax, but these are matters directly legislated for. Otherwise moneys paid for taxation cannot be, as a general rule, recovered back again, so that disposes of that bogey.

Mr. Blythe: It does not dispose of it.

Mr. Little: I tremble before the Minister with my small knowledge of law. It must be a splendid thing to be in the position of having a mind that is tabula rasa so far as law is concerned. There are certain cases pending which will be determined by the decision of the court, but the decision, so far as it is to come, is a res judicata. When the decision has been given it may be appealed against, and until it is appealed the decision of the Circuit Court stands. The Minister says it is merely a decision of the Circuit Court. The decision of the Circuit Court is as sacred in law as the decision of the High Court, and as such is part and parcel of the whole machine of law. From the point of view of merely losing a certain amount of revenue, suppose there are a certain number of cases which will be decided by a case which is being tried. Up to a certain date, people have refrained from making their payments because they are waiting for this decision. The Minister ends the evil from that time on. It may mean a loss of a certain amount of revenue pending the decision. If he now changes the law he is going to stop what, from his point of view, is an evil. I would [1382] submit that the Minister would be well advised, in maintaining respect for the law from every section of the people, to forgo that amount of revenue, to respect the law as it is, and simply to legislate for the future and not for the past.

Mr. Law: I am afraid that I am going to go somewhat further, because there are certain things which Deputy Redmond referred to as being matters of general agreement with which I would be inclined to assent. I do not think it is right to require from an executor precisely the same things that you would require from a living person. It is a question of justice and expediency, as Deputy Thrift has stated, and the duties of an executor are exceedingly onerous and thankless. I think we ought not, in the case of persons who have taken on them such duties not from the point of view of pecuniary gain but out of friendship, to add to the great difficulties with which they are already encumbered.

I do not know if I follow what the Minister meant when he stated a moment ago in the case of executors that the estate escaped more lightly than in the case of a living person who is found to have evaded his income tax; he did not quite finish what he was going to say. He began to say that in the case of living persons such persons would be liable to penalty, and those penalties would be exacted, but he did not say that no penalties would be exacted in the case of the estate of deceased persons. I would be glad if he would tell us if that is his intention.

Mr. Blythe: There is absolutely no penalty against the estate, but merely six years' taxes due.

Mr. Law: Is that a matter of practice?

Mr. Blythe: That is clear.

Mr. Law: I suggest to the Minister at the same time, quite apart from this, that he would do very well to harken to the suggestion which came from Deputy Professor Thrift. It must be evident that there is a good deal of disquiet in the House at some of the proposals contained in this particular clause. I could say a good deal more [1383] about it. I dislike the form to begin with. We were promised last year that a great effort would be made for the simplification of the income tax procedure. This hangs upon the simplification of the Income Tax Law.

It seems to me that this clause, in the form in which it is drafted—very convenient for the draftsman, of course—adds more bricks to that rambling structure full of dark corners, blind alleys with stairs going up but leading nowhere in particular, known as our income-tax law, and if for no other reason I would like to see the clause withdrawn. I would like to have said a great deal on the substance of the clause, apart from the form. I wonder how many people understand what we are doing. If I understand it we are declaring that if a man in the view of the Revenue authorities makes a return that is incorrect or incomplete then it shall be held to be, and always has been the right of the State—a matter which I understand is in considerable doubt— to require from the executors returns going back for six years. The Minister said that he saw no hardship in that. I hope that neither he nor I will ever be in that unfortunate position.

Mr. Blythe: There is no obligation on the executors to make income tax returns for six years.

Mr. Law: Nor to make enquiries?

Mr. Blythe: To make a return. The obligation is that if an inspector discovers anything he will make an assessment.

Mr. MacEntee: An additional first assessment.

Mr. Law: I apologise to the Minister. There is no obligation on the executors to make a return but, if the assessment made is, in the judgment of the executors wholly excessive quite obviously they must furnish accounts over six years in order to justify their claim. That comes to the same thing. I hope neither the Minister nor I will ever be in the difficult position of having to act as executors for persons as unbusinesslike as I am. I should be very sorry for my unfortunate executors if they had to render [1384] any accounts relating to my affairs for a period of six years. I should find it extremely difficult to render them myself. This is not a laughing matter. I said before, and I think it will bear repetition, that I think officials, particularly those dealing with such matters, do not realise the appalling difficulty that ordinary human beings have in giving the mass of information which quite naturally is required, and for that reason I should have thought that if we are going to make a change in the law—I know that the Minister says he is not going to make a change, but is merely declaring the law to be what the Revenue Commissioners hold it is—by incorporating this clause in the Bill, it shows that there is some doubt. While I have no sympathy whatever with the man who defrauds the Revenue, if we are going to legislate do not let us forget that these returns are not always made fraudulently on the part of individuals.

The Minister quoted a certain case, but let me remind the House of the case quoted by Deputy Jasper Wolfe, in which a charge of fraud was brought by the Revenue Commissioners against a person who had recently died, because according to Deputy Wolfe who is a very responsible person, the Commissioners discovered that a deposit of £140 had been made in the bank and that it was not mentioned in the income tax returns. According to the Deputy the amount was lodged in the bank three days before the person's death. I do not know what happened afterwards. At any rate, it shows that in dealing with matters of that kind we should be careful and should not always assume that the Revenue authorities are right and the public rogues. I had occasion to criticise the Revenue authorities several times. I am not voicing any sort of personal complaint. I have nothing to complain of in any transaction I ever had with the Inspectors of Taxes or with the Revenue Commissioners. I received nothing but the greatest courtesy and consideration, and I do not speak on behalf of any individual who has reason to complain. I say that we should be very careful before doing anything that would make it harder for the [1385] ordinary individual, and especially for an individual who is in the difficult position occupied by an executor. With great respect to the Minister I say that I am not greatly impressed when he tells us what has been the practice in England and that they found it necessary to pass a measure of this kind there. The Minister is not unaware that in very high quarters there have been grave complaints of the manner in which public departments have been, not alone seizing, but usurping powers which in the view of the late Lord Chief Justice more properly belonged to the law of the realm.

Mr. J.X. Murphy: My attention was called to this section in connection with the case decided in the Circuit Court. I presume that is the case the Minister referred to. I am told that if the law remains as it is and if this section is passed the executor cannot fail to succeed in the two other courts that he can go to. That may be right or wrong. But if it is right I think that it is not quite fair play that the law should be altered while the case is sub judice. I think the Minister said that the sum involved was indifferent to the Exchequer. If it is indifferent perhaps the Minister might use his discretion in connection with this Bill and so remove from the minds of the people the idea that there is unfair legislation against those who have succeeded in the Law Courts against the Revenue Commissioners.

Mr. Blythe: I have already stated but perhaps I did not say it clearly in reply to Deputy O'Connell, that while I believe a good argument could be made for getting the tax in that particular case, nevertheless, it was a matter I did not feel strongly upon. If Deputies think—and more than one Deputy appeared to think so—that it should be done, I would be quite prepared to undertake that, so far as that case was concerned, the decision of the Circuit Court Judge will not be appealed against, and so far as that particular case is concerned, only the amount of tax he considered chargeable would be collected.

Mr. Murphy: I am very much obliged to the Minister.

[1386] Mr. MacEntee: There is one thing that I would like to make clear. The Minister has prejudiced the whole of this discussion by making it appear that we were attempting to overthrow something that had been established by time. He said that it had always been the custom of the Revenue Commissioners to proceed in that way. The section which the Bill proposes to amend was introduced in the Finance Act of 1925. It has only been in operation for six years. It is not as if it had been in operation for twenty or thirty years. The number of cases that came under it must have been comparatively small and the value of the estates and of the amounts of the taxes to be recovered must be comparatively small. Anyway, the one thing that is clear is that the Revenue Commissioners could only have been acting in the illegal way in which they have been acting for a period of six years. As to whether there is any doubt that the decision of the Circuit Court will be upheld, I would like the House to bear with me for a minute or two, while I try to put before them what I think are the relevant sections. The basic Act in the matter is the Act of 1918, the first section of which provides:—

“Where any Act enacts that income tax shall be charged for any year at any rate, the tax at that rate shall be charged for that year in respect and in accordance with the rules respectively applicable to these schedules, that is schedules A, B, C, and D.”

The tax is to be charged and is to be collected in accordance with the rules applicable to these schedules.

The next section with which we are concerned is Section 125 under which additional assessments may be made and Rule 18 relating to this section recites

“Where any person dies without having delivered a statement of all his profits or gains chargeable to tax with a view to an assessment thereon in due course an assessment in respect of the profits or gains which arose or accrued to him before his death may be made at any [1387] time within the year of assessment or within three years after the expiration thereof upon his executors or administrators and the amount of the tax thereon shall be a debt due from and payable out of his estate.”

That is the law as it stood in 1922. That is, the additional assessment must either be made at any time within the year of assessment or within three years after the expiration thereof upon his executor or administrator. And the law as it was in 1922 remained the law up to 1925 when Section 8 of the Finance Act of 1925 provided:

“Subject to the provisions of this section, an assessment of an additional first assessment in respect of income tax chargeable for the year beginning on the 6th day of April, 1922, or any subsequent year may be amended or made (as the case may be) under Section 125 of the Income Tax Act, 1918, at any time not later than six years after the expiration of the year of assessment.”

The courts found this that while it amended Section 125 it did not amend Rule 18, and Rule 18 is part of the income tax law and therefore the section was defective in so far as it omitted to recite that the rule shall be amended accordingly. I think that is entirely due to faulty drafting of this Act and to a misconstruction of the law on the part of the Income Tax Commissioners who have been responsible for creating the present situation. In order that justice may be done and that the subject may have the benefit of the law as the courts have found that law, I think, irrespective of whether it costs the State £100,000 or £200,000, in equity we are forbidden to make this amendment retrospective in effect.

Mr. Geoghegan: It is fortunate in some respects that the Minister has thought fit to introduce into this Bill the words “deemed always to have had effect.” It is fortunate because it has directed the attention of Deputies in this House, who might [1388] be inclined to turn a blind eye, to the trend of things in this country. It was a pleasant surprise to me to listen to the speech of Deputy Murphy.

Deputy Murphy deprecated an attempt here by the Executive to divest people of their legal rights and to nullify all the proceedings that may have taken place in actions which are pending and where the arguments have concluded by enacting that the law is to be deemed to have been according to the Minister's fancy at the time that these arguments were advanced. Some of these Deputies were not so wide awake to that trend yesterday when the Minister sneered at a court of petty sessions and said that a court of petty sessions might construe a document in a certain way or take a view quite dissimilar from his view and that apparently he could give the force of law to something that he conceived ought to be the principle.

Now the Minister comes in here and says his officials have been blundering for years past and because they have misconstrued an Act of Parliament that is the reason why this legislature is to pass ex post facto legislation of this character, because they have been blundering for these years, because this wrong has gone on, that we are now to sanctify it. Surely that is the strongest argument against it. It would have been the strongest argument against it but for the extraordinary utterance of the Minister a few minutes ago, because I think it was extraordinary. The Minister said in reference to Deputy Murphy's speech that he, the Minister, was willing to undertake—I hope I have got his words precisely—not to interfere with the present case. In other words, we are not to be all equal before the law, the law may be one thing for a Mr. Robinson and may be quite different for Mr. Jones, at the sweet will of the Minister. That is what we are coming to now.

Mr. G. Boland: And always was.

Mr. Geoghegan: Perhaps I have understated it. Perhaps we have been in that condition already, but perhaps [1389] I have been consistent because I rather indicated in the opening of my speech that we have been in that condition, that this law and order that is so much boasted about from the opposite benches is ignored whenever their own fancy or their own prejudices prompt them to ignore it. We make speeches here from these benches prepared with some care. We analyse statutes like the Treaty Confirmation Act. We analyse documents like the Agreement of December, 1925, and we apply to them certain well known canons of construction. We deal with them as they have been dealt with by eminent text writers, and all that is brushed aside with a sneer about what the courts may do. We were ignoring altogether this divine right that there is to apply some sort of great principle that is to be found only in the bosom of the Minister. It gives the go-by to all these ideas of construction that the text-book writers tell us about and that the judges tell us about.

I ask the House to pay particular heed to what the Minister has said now. That is, his idea of his responsibility and of his power is that when the House enacts this section he will dispense with it. He will do here what James II lost his Throne for doing across the water. He is to have some sort of dispensing powers. The Constitution of this Free State provides that we are powerless to make something an infringement of the law that was not an infringement of the law at the time the act was committed. It is a curious phrase, infringement of the law. Too vague though it may be, I think that it is quite sufficient to cover various consequences that flow from the omission to furnish proper accounts or the furnishing of erroneous accounts.

If this is enacted, various things will be deemed infringements of the law that were not an infringement of the law as the law has been enunciated by a highly distinguished judge and as the law has been argued and some people think successfully argued in another case in which judgment has been reserved. Deputy J.X. Murphy just as I came in stated in a few [1390] sentences one of the arguments that I had intended to advance in regard to this matter, that it coerces the judge to find, and to find in a way that he could not or might not have found if the law had been allowed to remain as it was at the time that the case was tried in court.

I would remind the House that the Lord Chief Justice of England thought fit to write a book in which he has dealt in emphatic language with the great peril of the liberty of the subject in England by the encroachments by departments and ministries on the courts. I think that Lord Hewart has not found anything to denounce which is as extreme as this section that is now before the House. I would ask the House to be jealous of the privileges of the courts of justice and to remember that any true liberty that we can hope to enjoy is to be enjoyed owing to the independence of the judiciary and owing to the impartial administration of the law as the law may be at a particular time by these judges. If this House is from time to time to make hay with the law by enacting that something is to be deemed always to have had effect, we will gradually undermine the confidence of the public in that just and impartial administration of the law to which we have grown accustomed, and thereby we will be eating in upon and undermining the foundations of that liberty which we all prize.

I am not going into any discussion as to the merits or demerits of this proposal. I think a good deal could be said about the expediency of such an enactment either retrospectively or prospectively. I think the Revenue Commissioners have already far-reaching powers for preventing anything in the nature of a fraud on the revenue. They have had quite a long enough time to use the machinery at their disposal. A great deal might be said against this elongation of the period, even prospectively. But I do appeal to this House on the highest and broadest grounds not to endorse this attempt by the Minister to encroach upon the liberty of the citizen here, to encroach, as I say—it is an encroachment—upon [1391] the independence and impartial administration of justice by the courts of the land.

Professor Alton: I feel rather frightened, coming after a jurist of the calibre who has just spoken. I cannot speak from the legal point of view. I can only speak from the point of view of the ordinary man. I am just as much against fraud or evasion of one's just tax as any man in the House. I love the income tax officials just as little as anybody else, but I do think that a man who deliberately evades his taxes and makes the burden heavier for his fellow-citizens deserves no mercy, and if there is any loophole in the existing Finance Act that allows him to escape I will support the Minister in closing that loophole. Nor do I think that a man who is committing a fraud of that sort should be condoned simply because the man succeeded in concealing it for a length of time. That only makes the offence greater. About this present section there is the old atmosphere of retrospective legislation. Always I find it hard to swallow it. It does not seem to me the game, and it has very ugly consequences.

We have been trying in this country to build up respect for the law, love for the law and for our courts. This section seems to be, if I am not mistaken, a thing that will tend to cast a slur on the dignity of the law, and it will in some way be contempt of court from a quarter where the court should expect to receive respect, and has always received respect. Such contempt exhibited in any other place would meet with sharp reproof from the court itself. I am aware that we are privileged, but I do not think that we ought to take advantage of our privileged position and insult the dignity of the court by interfering in the cases that are actually before it— interference which amounts to nullifying their decisions. It is that aspect of the section that seems to me to be particularly undesirable. I am not speaking from the point of view of the law or lawyer, but from the point of view of the ordinary man who has played games. I play games according [1392] to the rules and the laws, and when penalties are incurred I pay them. That is the atmosphere of every decent Irishman, and when you go to law you are playing a game. You must obey the rules, and you must take the losses as well as the prizes. Here now the Revenue Commissioners have gone into playing a game of cards with individuals. Suddenly, in the middle of the game, they want to change trumps or the value of the cards.

Mr. Gerald Boland: Not the first time they did that, and Deputy Alton supported them, too.

Professor Alton: I do not think that is right. I wish that the Minister could see his way to do on a generous scale what he suggests doing in one case—to exclude all pending legislation—that would lead to respect for your courts of law.

Mr. Finlay: It would appear that objection is taken to this section on two broad grounds. First, by way of sympathy with executors, and secondly, owing to the effect on pending proceedings before the court. I should say, at the outset in regard to the income tax code that the length of time which the assessing authority could go back upon a live person in the way of income tax, was one year, and at the time that that was provided an executor was also placed in the same position as the person he represented, namely, that he was only liable to go back for one year. Since then, the period for which the Revenue Commissioners were authorised to go back for the purpose of recovering arrears of income tax upon a live person was made, in the first instance, three years, and a corresponding extension was made in the time during which the Revenue Commissioners could call upon an executor to account. I think there is a general recognition that money due by a person by way of income tax is a debt, just the same as money due by a person by way of individual is a debt. From the year 1850 in this country a person is liable for any debt contracted six years previous to the date upon which it is sued for. If a person be indebted to [1393] the Revenue Commissioners by way of income tax it seems difficult to understand why any great distinction should be drawn between that debt and a debt due to any private individual. The period of limitation in the case of a private debt is six years, and it seems difficult to appreciate why the same period of limitation should not apply in the case of a debt due to the State. Some Deputies spoke of the hardship which would be incurred by reason of an executor having to go back and furnish accounts in respect of a deceased person whom he represents. In the case of private debts, the executor would be placed in practically the same difficulty as he may be in the case of a claim for income tax.

As I understand, General Rule 18 of the Income Tax Act, 1918, confines the liability of an executor to income tax on profits or gains which had accrued to the deceased in his life-time. Take the case of a person in business. I understand that at the moment the Revenue Commissioners insist each year on a properly audited account being furnished by such person for the purpose of the assessment of his tax. This is the year 1931. That has been insisted upon for some years past. So that if an executor of a person engaged in business was called upon to account he has those accounts which have been furnished each year to the inspector of taxes and it would not cause him any great difficulty to go back upon them. If, on the other hand, it is a tax upon shares, or money on deposit, or matters of that nature, they should not afford him any great difficulty in furnishing an account. Undoubtedly, from the passing of the Finance Act, 1925 (Section 8), there has been, let it be right or wrong, a generally recognised view of that section that executors were liable by means of the provisions of that section to account in respect of the estate of a deceased whom they represented over a period of six years. Only recently for the first time has that section been challenged, and the challenging of that section was upon the basis that sub-section (4) of it really did not amount to a charging or taxing provision. That section may have failed or [1394] it may not have failed; that is a matter for decision by the court and it is a matter upon which there is some doubt, but one thing is clear from the section, that it was the intention of the legislature at that time, whether they effected it or not, to make an executor accountable for six years back, just as in the case of a private debt, and that was recognised until this recent case.

On general principles, I do not think there is anything against the section which is the subject-matter of discussion. However, on the second branch of the matter perhaps more can be said. I should say, before I pass from Section 8, that Deputy Geoghegan spoke of the consequences of infringement. I may be wrong, but, as I understand the section, there is no question whatever, under General Rule 18 of the Income tax Act, 1918, or as it is extended by the provisions of Section 8 (4) of the Finance Act, 1925, of the imposition of a penalty upon an executor, and as the income tax code stands at present no penalty can be imposed upon an executor for any defaults committed by a deceased person whom he represents in respect of income tax.

Exception has been taken to the provisions of Section 2 with regard to pending proceedings. It is pointed out that certain people who have been alive, as it were, to their rights, and who have challenged these rights in court, may be prejudiced by this. Retrospective legislation, as I understand in this matter of income tax, has been resorted to frequently not alone in this country but by the British Parliament. It is not at all unknown. Perhaps there may be something in the point made as to actual pending proceedings, and I would suggest to the Minister that an exception might be made to Section 2, which would cover the case of actual pending proceedings conversant with Section 8 of the Finance Act, 1925. I think that if that were done it would meet the matter fully, because, as I said, the generally accepted principle and view of this section by people in general, and by the Income Tax Department, was that Section 8 (4) of the Finance Act, 1925, [1395] did operate to make an executor chargeable for six years as set forth in the sub-section.

Mr. de Valera: I want to say, as far as I am concerned, and I think the other members of my Party, that we are not satisfied with the exception of pending cases. We are opposing this on principle. The suggestion that there is some confusion of thought amongst Deputies is, I think, altogether unwarranted. Every Deputy who has spoken, from all sides of the House, except the last Deputy and Deputy O'Connell, made it quite clear what it is he is opposed to here, namely, the principle of retrospective legislation. The law is as it is, and what it is is to be determined by the courts and not by the wishes of the Minister or anybody else. That is the position. The suggestion that there is any confusion in the minds of Deputies here is obviously unwarranted. We can argue as much as we please about whether it is wise or not to change the law. We have a very open mind—at least, I have got—as to whether the law ought to be changed or not, but I have certainly nothing but a firm conviction that the principle as enunciated by the Minister, and the attitude of mind revealed by him in his speech is one subversive of order and of law.

Deputy Thrift was one of those who talked about evasion. It reminds me very much of a previous occasion in which Deputy Thrift introduced that very phrase to bring about an evasion of what was the law. I remember it very well. It was a case where, in order to avoid an obvious judgment, an artifice, a subterfuge was resorted to which was nothing but a violation of the law.

Professor Thrift: I do not think the Deputy ought to be permitted to make a statement on quite another matter, assuming that he is now summing up what was the result of an argument on a previous occasion, giving statements to which replies were then and there made, but to which there will be no opportunity of replying here.

[1396] Mr. de Valera: I am referring to this whole principle of trying to nullify the law as it is, by the power of a majority Party, to make it what they want it to be, and to try to anticipate the judgment of a court by changing the law when cases are pending. That was the position in this House and it is the position in regard to the cases in the courts. We have to put up with the law as it is. If the Exchequer is going to suffer from the law not being what the Minister would like it to be, then it has to suffer. That is our attitude and, as far as we are concerned, we are not going to have any compromise on that particular matter, and we are not going to accept. any suggestion that there is to be retrospective legislation, even if pending cases are excepted. The principle we stand upon is the law as it is and what it is to be as interpreted by the courts and not by the Minister for Finance. We here ought not to adopt the attitude that we can suddenly come in and make, to the detriment of some private citizens, the law what we would like it to be.

Professor Thrift: May I ask the Minister a question? He stated the type of case to which he wished this section to apply. In his statement my sympathies were quite with him and the question I want to ask is this: “Are there any words in this section or the sections to which it makes reference which limit the application of the section to that type of case? And if there are not such words will he consider the possibility between this and the Report Stage of limiting the application to that type of case?” We all dislike retrospective legislation, but it a deliberate evasion of the existing law which took place in previous years can be got after at all, then, in that sense the legislation that gets at it must be retrospective legislation. It is not legislation making or altering the law which was evaded. It is only making explicit the conditions under which that evasion of the law can be detected. I do not want to improve the Minister's words at all.

Mr. de Valera: It is an enabling Act, is it not?

[1397] Mr. MacEntee: I would like to challenge the position at the outset that the practice has been what the House intended in the Act of 1925. The Minister, so far as the section I have already read for the House is concerned, does not propose to amend Rule 18, which is the rule that applied in the particular case when an additional assessment is made upon the executors or administrators of the estate. That is quite clear. To my mind, the only thing with which Section 8 of the Act of 1925 is concerned is to deal with the general case of living individuals who made wrongful or misleading returns. In the case of living individuals, it seems quite clear the Act intended this additional assessment should be applied. If in the case of those who were deceased persons Section 8 of the Act did not propose to amend Rule 18, which was part of the Income Tax Act, 1918 then I think the clear intention was that this extension to six years was only to apply to living individuals and not to deceased persons. That is really the position, and there is no formula that the Minister can devise that would prevent this section in its present form from being retrospective except by deleting the words “and be deemed always to have effect.” If these words are left out we have no objection to making the law and practice here conform to each other, and to put them on the same level as the law in England.

As Deputy Geoghegan and Deputy Law indicated, on the merits even of that there must be considerable difference of opinion. But, speaking for myself, I am prepared to accept the position stated so emphatically by Deputy Alton that where the law is evaded, and income tax not paid, we are entitled to collect it. But the position in this case is that the law is not being evaded, that the executors and administrators who refuse to accept this additional assessment were acting in accordance with the law, and that it was the Revenue Commissioners who were acting contrary to the law. That having been already established by the courts, I think it would be a defeat of justice for this House to propose now [1398] to reverse that decision and to make the illegalities of the Revenue Commissioners law for the past five or six years which it is proposed to do by this section.

Mr. Geoghegan: Reference has been made to the intention of the legislature to make the executors liable for six years. I do not know how much value the House may attach to that phrase, but possibly certain members of the House may attach importance and may be influenced in the exercise of their votes by that phrase. Is the intention referred to the intention expressed in the Act of 1925? Many who were members of this House in 1925 are not here now. Where would you get their intention except in the way we are told by the authorities we are to get it—that is, in the words used by them in the statute. That is the only place we can look for their intention. As Deputy MacEntee pointed out, the words here are reasonably clear, and they have been interpreted by a judge and have been argued in a pending case, and that is the only place where you are to find the intention. It is not open to the Minister now to come here and say that in 1925 he or somebody in his Department intended something or other. There is another matter that possibly may affect the judgment of some members of the House, and that is as to the extent to which this offends against the possible letter and at all events against the spirit of the Constitution.

It has been suggested here that because the executors cannot, I suppose, be sent to jail that therefore it is not making something an infringement of the law that was not an infringement then. I do not suggest that no words I used are capable of the meaning that the executor of some testator who has not acted according to what has been the practice can be sent to jail. I do not suggest that for a moment. What I do suggest is that if you face this clause as it is now in the Bill that something will be made an infringement of the law that was not an infringement of it as it stood, that the estate of the testator can be blistered, and blistered very heavily, [1399] because of that infringement. That is the punishment that will be meted out.

Mr. Alton: Will the Deputy explain that?

Mr. Geoghegan: At least I will try to endeavour to make it clear. What I desire to convey to the House is this, that as the law stands now—if we are to accept a judgment, as I said before, of a very distinguished judge—if the law stands thus and that I understand the effect of the judgment correctly, the estate of a testator or an intestate, as the case may be, is subject, or may be subject, to certain liabilities of the Revenue authorities and the Minister here as the law exists. If the law is to be deemed since 1925 to have been otherwise, then by the operation of this Bill, when passed, heavier liabilities will be imposed on that estate.

Mr. Alton: If the testator has been fraudulent, if he has been making fraudulent declarations, surely it is right that his estate should pay.

Mr. Geoghegan: With great respect to Deputy Alton, that may be begging the question. If the testator or the intestate were alive something which, in the absence of explanation, may appear fraudulent may not be fraudulent at all if you hear both sides of the case. I think possibly some members of this House have had experience from time to time as jurymen, and any of us who are familiar with the routine of the courts know that sometimes something that is presented, and quite fairly presented, and which appears to any reasonable man to be very serious and sometimes highly criminal and fraudulent may, when the other side is heard, be explained to the complete satisfaction of every person. We have had experience of that. The intestate cannot come back from the grave. I possibly was taking too much for granted, but that is what I meant to convey that by this ex post facto legislation that you are putting a burden or fine—I am using the words in their popular sense—you are imposing a fine on the estate of the testator which it might otherwise escape, and in that way you are running right up against the spirit of the Constitution.

[1400] It has been suggested by Deputy Finlay that this section could have a good deal of the poison taken out of it if it were to be so framed as to apply only to exclude pending cases. I think that, after all, the prefatory remarks of Deputy Finlay to an income tax debt, a debt for goods sold or delivered, the reference to the Statute of Limitations—all that was a sort of smoke screen before the final sentence of Deputy Finlay's speech, in which he made it clear that this section, as it stands, was repugnant to his sense of the seemliness and fitness of things. He suggested then that pending cases should be excluded. The answer to that is the answer that has been given by Deputy de Valera—that there is a much bigger principle involved in this. If I may give a similar answer I would ask the House to consider this. Cases of income tax law are frequently test cases.

It is not everyone who is prepared to take on the Revenue Commissioners. Most people will prefer to pay something slightly in excess or perhaps substantially in excess of what they think right rather than run the hazard of litigation which may end in the last court of the land. It is much more important to the Revenue Commissioners than it is to the citizens. They might justly and properly think it right to bring a case involving a small amount of money to the last court in the land. For that reason the taxpayer, if he learns that some other citizen is litigating the particular point that is agitating him, he may stand by and await the decision in that case and avail of it, and he is right. It is done in every branch of commercial life. If some case is pending which will settle a question on principle, many others concerned in that point will stand by. If Deputy Finlay's suggestion were to be adopted, then the fact would be that anybody who issued a writ would apparently escape, but the possible thousand and one people who had as good or better cases and who stood by while that case was pending and awaited that decision to be guided by it would be mulcted by the enactment of the Dáil, even if it is whittled down in the way Deputy Finlay suggests.

[1401] I do not want to be dragged into any question of the fundamental rights or wrongs of these claims for income tax, but I do say, and I think it is a fair statement, that a liability for income tax is a liability that every right-minded citizen must discharge. Nobody must have any sympathy, and no citizen will have any sympathy with anyone who tries to evade it, for the good reason that anybody who evades it is putting a greater burden on the citizens. For reasons, and higher reasons, I have no sympathy for anyone who evades his liability. I may say this, that a debt for income tax cannot fairly be compared to any ordinary debt, such as the debt I have mentioned, for goods sold and delivered. A debt for income tax is a purely artificial creation. It does not exist until the words of the statute, in language or phrases that are inescapable, create it. It does not exist. It is not payable until the statute, on the strictest parsing, makes it payable, and if the statute on the strictest parsing does not make it payable, the citizen is entitled to refrain from paying and he would be a fool if he did pay it. It cannot be suggested that that is comparable with pleading the Gaming Act or the Statute of Limitations. There is no resemblance between the two things. I mention that because it emphasises the great gravity of the ex-post facto enactment such as you have in this clause.

Mr. Flinn: I listened with very great interest to the speech of Deputy Alton. It is well, and it is a wholesome discipline for this House, that there should be occasionally put before us the proposition that there are certain things that are not done, that it is one's duty to act not merely as a Christian but as a gentleman, that the rules of the game during the progress of the game should be observed. I am very glad to be present in the House when a doctrine, which possibly it should be unnecessary to expound, but which the practice of this House has made it very necessary to emphasise, has been laid before the House. I only propose to refer to it to this extent, to say that the speech reminds me of the counsel that has [1402] been often given that you should do as the preacher says and not as the preacher does. Anything more grossly contrary to the practice and to the custom of Deputy Alton, and to the Party to which he belongs, than the idea that one should play the game, I cannot conceive. In respect to the fundamental law of this State on the contrivance of Deputy Thrift, and with the consent of Deputy Alton, the rules of the game were altered during the progress of the game.

I desire to call the attention of the House to the method in which this particular clause, which has caused a lot of anxiety, was introduced into the House, the method by which it was defended, and the principle that has been exposed as the foundation of that defence. No one is going to deny that there is a feeling of seriousness and anxiety in every portion of the House in relation to the principle that is involved in this Bill. No one is going to deny that that clause was sought to be introduced into this House by stealth, without explanation and passed without justification. If what has been said by every lawyer in this House of whatever politics— because the Minister has not been able to find any lawyer to take his attitude of mind—is true, then, in relation to this clause and its retrospective quality, fundamental things have been attempted to be done which most certainly ought not to be done by stealth, which ought not to be done without explanation, which ought not to be done without full advertence by the whole House to the seriousness and the consequences of the act which they were taking. How has it been defended?

There are various kinds of ignorance which I have at one time or another, I think, defined to the House. One kind I have commonly referred to is privitive ignorance. I am saying this in defence of the Minister. Privitive ignorance is ignorance of the things which, in all the circumstances, it is your duty to know. Before the Minister for Finance put before the House his arguments as to why they should [1403] consent to this retrospective legislation, introduced unexplained, by stealth, that if we did not do so the State would be subject to penalties by law, the Minister for Finance, in all the circumstances, ought to have known that he was talking nonsense. He was guilty of privitive ignorance. He was guilty of putting before the House a statement which he ought to have known was false for the purpose of getting an advantage out of it. On what foundation principle—these are merely the procedure and the machinery—has this clause depended? I have used the word anarchy. As a grammar of anarchy, the utterances of the Minister, not merely in the past but precisely in this debate and on this issue, would deserve a very high place and authority. Imagine the Minister for Finance in a responsible Government, who has the impudence to allude to the extraordinary results that would follow if the decisions of the court were accepted as the interpretation of the law. Now get that. I ask you to define anarchy in any stronger terms—the extraordinary results that are going to follow if the decisions of the court are accepted as the interpretations of the law. Red ruin and the breaking up of the laws, or, rather, the breaking up of the customs built up outside the law by the unrestricted authority of the Executive—that is what is at issue—and that is the disaster which must be avoided by passing this particular retrospective legislature.

If we are to take the Minister's speeches and especially the speeches into which he was unfortunately betrayed in interjectory defence, we have to take it as his principle that every decision of the Revenue Commissioners which shall be reversed by the court shall be declared to be right, but that every decision of the court upsetting a custom of the Revenue Commissioners shall ab initio be declared to be wrong. We are certainly getting into fairly deep water for constitutional government—mar eadh. When you come to the Minister's method of getting it, you get into a position more disgraceful than even the position [1404] which he attempts to take up. What happens? Deputy Thrift, Deputy Redmond, Deputy Murphy, Deputy Myles, Deputy Law—all his supporters—get up and interject that it was a hardship on a particular individual, and the Minister says: “All right, if a sufficient number of Deputies on my side of the House object to the administration of the law as I say it is, in relation to a particular individual, in relation to that particular individual that law shall not operate.”

What do you think of that for the constitutional, law-abiding people? “Whose sins you shall forgive they are forgiven them; whose sins you shall retain they are retained.” Selective protection, yes. Selective commandments, yes. Selective administration of the law in relation to individuals. Then he goes on to tell us the procedure of the Revenue Commissioners—I am not blaming them; they do what they are told; they are appointed by him, and they have got to carry out the law. I do not know if the House knew until now that the Minister for Finance claimed the power to tell the Revenue Commissioners, in relation to any particular person, to put the law into operation or not, to put the law into operation just whether or not representation in sufficient volume was made by Deputies Thrift, Murphy, Redmond, Myles, and Law. I wonder if they knew that before? In the case of anybody else he says we shall go on; appeal and appeal and appeal. Every man, according to the Minister, who, for some extravagant reason, thinks that his ipse dixit will carry one inch beyond the Division Lobby on a matter of law, says the law was intended to be this. Now, what that means is that in future everybody in this State, before he enters into a contract, before he does any act which might or might not be criminal or otherwise, has got to anticipate all the Bills to remove doubt, not merely the daily ones he is getting, but all the Bills to remove doubts which the Ministry will be able to put through in future. I am glad that Deputy Law did say that this was not altogether a laughing matter. Deputy Law sometime stumbles on the truth. It is not [1405] a laughing matter that the Minister for Finance should try to get through, by stealth, a provision of this kind, and that he should defend it by statements which he ought to know were false and founded upon the principle which is the denial of all law—that is, the claim of this Executive Council to interpret retrospectively the laws. It is not a laughing matter. It is a most serious matter that those who profess to be the constitutionalists of this country should have no respect whatever for law, except so far as they can use it as an instrument for their own benefit.

Mr. Aiken: I was delighted to-day to hear some of the independent members standing up and pleading for respect for the law and for playing the game according to rule. We always felt that somewhere in these people's minds there was some decency and justice. We were like men outside a big field enclosed by a high hedge and barbed wire; no matter what angle we approached it from we could not get through to whatever justice was in it. In this little matter we have got through it appears, and we are glad. They say that what we want to do in this country is to build up respect for the law. I wish they had started that appeal long ago. I wish when we brought in here the Referendum signed by 90,000 people, according to the law and Constitution, that they had stood with us in forcing the Minister to stand by the law and the Constitution which he and his men executed people to put through and enforce in this country. The Ministers have never stood by the law unless when it suited them. They started this State by flinging contempt on all the laws which had been in force. When a judge who had been appointed by the representatives of the Irish people wanted to stand in between the people and the breaches of the law committed by the Ministers, the Justice was dismissed and threatened with arrest. They did not stand by the Constitution. They did not stand by the orders of the old Dáil to have the Dáil meet on the 30th June.

An Leas-Cheann Comhairle: Surely that does not arise under this. We are [1406] in Committee, and the Deputy ought to come to the section.

Mr. Aiken: We are making an appeal for respecting the law.

An Leas-Cheann Comhairle: I do not mind the Deputy doing that, if he does it in an orderly manner.

Mr. Aiken: I think there is no use in asking the Leas-Cheann Comhairle to play according to the rules.

An Leas-Cheann Comhairle: Perhaps the Deputy will tell us what he means by that. The Standing Orders in this House must be determined by the Ceann Comhairle or the Leas-Cheann Comhairle, or the Chairman for the time being, and nobody else.

Mr. Aiken: Then I think the rules should be applied impartially.

An Leas-Cheann Comhairle: On that the rules are applied impartially. The Deputy knows that. The Deputy will speak on the section.

Mr. MacEntee: We are judges of that.

Mr. Aiken: The section has been read. It wants this House to make the law now something that was not law several years ago, and it wants it to get after people who lived up to the law. The Minister wants to extend the net of the law now. Some innocent Deputy said that they might trust the Minister or ask the Minister to guarantee that he would not take full advantage of the law if they passed this, and would not proceed further against people who have got the judges on their side. I would not trust the Minister very far with any powers which this House might give him. He will assume powers even if the House do not give them to him. I think any excuse like that, put up by members on the Government side, is simply to throw dust in the eyes of the people. The Ministers exceeded the laws before and will exceed them again. I will not trust them if we give them that power. They have done everything men can do, and had no law except their own will, and I am certainly against giving any legal sanction to their breaches of the law in the past.

[1407] Mr. Blythe: Deputy Thrift asked a question in regard to what cases this section would apply to. It will only apply to cases where during the life-time of the deceased his returns fail to disclose his true income. That is, where items of income were omitted from the returns. It cannot affect any other type of case and consequently it can only mean this, that from the executors and from the man's estate there shall be recovered tax for which he was liable in his lifetime and which he would have been liable for if he lived, if the misrepresentations or evasions had been discovered.

Professor Thrift: Could the Minister make it clear in the section that only when there is evidence of fraudulent evasion having taken place this section applies?

Mr. Blythe: I will consider whether anything could be done to clarify it. I think it is clear as it stands. I will have it examined. Sometimes a question of fraud may be difficult to determine and there must have been evasions of tax and omissions from the returns of income received by the individual.

Professor Thrift: Evasions would satisfy me.

Mr. Blythe: I will have it further looked into. It is perfectly clear that the section could only apply where the income was hidden from the revenue and where tax was not paid. With regard to the intentions of the legislature, I think they are pretty clear as shown in the Act. Whether the intentions are carried out is another matter. If Deputies will look at Section 8 of the Finance Act of 1925 they will see that it contains four sub-sections, and these extend the period from three years, for which people are liable to be assessed, to six years. It winds up in the final sub-section by referring to the estates of deceased persons and the liabilities of executors and administrators. If the section was not intended to have the effect of extending the period from three years to six years in the case of estates of a deceased person the insertion of sub-section (4) was entirely [1408] absurd and unnecessary. Section 4, on the ruling of the Circuit Court judge who tried the case, did not achieve what it was intended to do. Section 8 intended to extend the period from three years to six years, both in the case of living persons and in the case of estates of persons who died. That is perfectly clear. Even in his judgment, and by implication, as it were, the judge stated “it is based on the assumption that the view urged on behalf of the Commissioners is correct, but I cannot construe the Act of 1918 by reference to the Act of 1925, or on the view of the framers of the Act of 1925.”

With regard to the questions of respect for the courts, no disrespect is involved in amending the law, whether amending the law retrospectively or not. Very frequently people discover, as a result of the courts carrying out their function of interpreting and applying the law, that the law contains something which it was not generally believed to contain, and steps are taken to amend the law. Sometimes it is amended only for the future. There are cases where there are strong reasons for amending it restrospectively, but there is no disrespect for the courts in that. The function of the courts is to interpret and to apply the law as they find it. If, as a result of the interpretation of the courts, the legislature thinks the law is not in a satisfactory position, there is absolutely no disrespect for the courts in the legislature exercising its function to alter the law. There is no more than there would be in the court finding that, for instance, the legislature had not succeeded in carrying out what members, or even the bulk of them, expressed as their views at the time.

The function of the courts and the function of the legislature are distinct in the matter, and when the legislature exercises its function in any respect in which it thinks it right to do so, there is absolutely no disrespect to the courts involved. With regard to the case of people who have cases before the courts and have won them, some Deputies stated that there was no reason for treating them exceptionally. I think there is good [1409] reason for treating them exceptionally. There is the fact that they have got a judgment, even though we may think it might be reversed on appeal. We have absolutely good ground for accepting the judgment as it stands and going on that. In other cases people who did not take the risk of expending money and carrying on litigation might get that particular benefit.

Major Myles: The Minister has mentioned one case. Are we to understand that all the other cases that are sub judice are to be treated similarly?

Mr. Blythe: If there was a case where only a writ had been issued and where no costs were incurred I do not think that would be possible. As a matter of fact before the passage of [1410] this Bill people could issue writs and could be in the position of taking some steps. If there was a case which had proceeded to some reasonable extent and in which costs had been actually incurred that would be a different matter.

Mr. MacEntee: Apart altogether from cases in which writs have been issued, what about cases in which proceedings have been taken?

Mr. Blythe: I think they should pay and I think also that cases in which writs were issued should pay.

Mr. Flinn: In this particular case which the Minister has declared he forgave is it not a fact that the person would be liable under this law?

Question put.

The Committee divided: Tá, 71; Níl, 43.

Tá

Aird, William P.

Anthony, Richard.

Beckett, James Walter.

Bennett, George Cecil.

Blythe, Ernest.

Brennan, Michael.

Broderick, Henry.

Brodrick, Seán.

Byrne, John Joseph.

Collins-O'Driscoll, Mrs. Margt.

Conlon, Martin.

Connolly, Michael P.

Corish, Richard.

Cosgrave, William T.

Craig, Sir James.

Crowley, James.

Daly, John.

Davin, William.

Davis, Michael.

De Loughrey, Peter.

Doherty, Eugene.

Dolan, James N.

Doyle, Peadar Seán.

Duggan, Edmund John.

Dwyer, James.

Egan, Barry M.

Esmonde, Osmond Thos. Grattan.

Everett, James.

Finlay, Thomas A.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Gorey, Denis J.

Heffernan, Michael R.

Hennessy, Thomas.

Hennigan, John.

Henry, Mark.

Hogan, Patrick (Galway).

Holohan, Richard.

Kelly, Patrick Michael.

Keogh, Myles.

Law, Hugh Alexander.

Leonard, Patrick.

Lynch, Finian.

McDonogh, Martin.

McFadden, Michael Og.

McGilligan, Patrick.

Mongan, Joseph W.

Morrissey, Daniel.

Mulcahy, Richard.

Murphy, James E.

Murphy, Joseph Xavier.

Nally, Martin Michael.

Nolan, John Thomas.

O'Connell, Richard.

O'Connell, Thomas J.

O'Connor, Bartholomew.

O'Donovan, Timothy Joseph.

O'Higgins, Thomas.

O'Mahony, The.

O'Reilly, John J.

O'Sullivan, Gearóid.

O'Sullivan, John Marcus.

Reynolds, Patrick.

Rice, Vincent.

Roddy, Martin.

Shaw, Patrick W.

Sheehy, Timothy (West Cork).

Thrift, William Edward.

Tierney, Michael.

White, Vincent Joseph.

Wolfe, George.

[1411] [1412] Níl

Aiken, Frank.

Allen, Denis.

Alton, Ernest Henry.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Briscoe, Robert.

Buckley, Daniel.

Carty, Frank.

Clery, Michael.

Colbert, James.

Corkery, Dan.

Corry, Martin John.

Der