Hogg & Company Ltd issioners of Income Tax and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 21 May 1932
• Date: 21 May 1932
• Court: High Court (Irish Free State)

Hogan v. The Special Commissioners of Income Tax and Others.

JOSEPH HOGAN and BRIDGET HOGAN, Executor and Executrix of the Will of PATRICK HOGAN,Deceased

Plaintiffs

and

THE SPECIAL COMMISSIONERS OF INCOME TAX AND THE ATTORNEY-GENERAL

and by order, FRANCIS J. McCARTHY AND MICHAEL SMIDIC

and by further order, WILLIAM O'BRIEN, WILLIAM D. CAREY, MICHAEL V. NOLAN AND BARTHOLOMEW COLLINS

Defendants.

Practice - Parties - Attorney-General as defendant - Revenue - Super-tax - Forms served claiming super-tax - Assessments for super-tax - Action against Income Tax Commissioners and the Attorney-General - Declaration claimed that Forms and assessments invalid - Whether Attorney-General proper defendant - Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922), Sch. I., Art. 2 - Ministers and Secretaries Act, 1924 (No. 16 of 1924), sect. 1 and sect. 2, sub-sect. 1 -Finance Act, 1924 (No. 27 of 1924), sect. 38, sub-sect. 1.

Preliminary objection, as to the constitution of the action, raised on behalf of the defendants, and ordered by the Court to be determined before the trial of the action.

The plaintiffs, in the action were the executor and executrix of Patrick Hogan, deceased, who died on the 10th March, 1929, and probate of the will of the deceased was granted to them on the 6th August, 1929. The defendants were the Special Commissioners of income tax, the Attorney-General, and the Special Commissioners in their individual capacity. The material facts, as set out in the Statement of Claim, were as follows:—The deceased had been assessed for, and had duly paid, income tax during his life time, but no claim had been made upon him for super-tax. On or about the 3rd March, 1930, the Special Commissioners of income tax, the first named defendants herein, caused to be served upon the plaintiff, Joseph Hogan, certain forms, dated the 3rd March, 1930, addressed to him "for self and coexecutor of Patrick Hogan, deceased," requiring him within 28 days to make returns for the purposes of super-tax of the total income from all sources of the said deceased for the years, 1923-24, 1924-25, 1925-26, 1926-27, 1927-28 and 1928-29. The forms were accompanied by a leaflet by which the plaintiffs were threatened with penalties for failure to comply with the said notices or any of them. The plaintiffs, without prejudice to their legal rights, expressed their willingness to render returns, so far as they were able, for the years 1926-27, 1927-28 and 1928-29, and did make returns for those three years. The Special Commissioners threatened to enforce against the plaintiffs the said penalties and to proceed to assess the plaintiffs to super-tax for the years 1923-24, 1924-25 and 1925-26, as representing the said Patrick Hogan, deceased, if the plaintiffs did not comply with the said forms. On the 5th day of April, 1930, subsequent to the issue of the summons in this action, the said Special Commissioners of income tax, served upon the plaintiffs notices, dated the 5th day of April, 1930, of the said assessments and demanding payment of super-tax alleged to be due and payable by the plaintiffs, as executors of and as representing the said Patrick Hogan, deceased, in respect of each of the years 1923-24, 1924-25 and 1925-26 amounting to three sums of £212 10s. 0d. each. The plaintiffs contended that the said forms, assessments and notices were made without jurisdiction and were ultra vires and void.

The plaintiffs claimed a declaration (a) that they were not under any obligation to render the returns required by the said forms for the years 1923-24, 1924-25 and 1925-26, in respect of the total income...