Molloy v Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Mr Justice Charleton |
| Judgment Date | 26 June 2008 |
| Neutral Citation | [2008] IEHC 247 |
| Court | High Court |
| Date | 26 June 2008 |
[2008] IEHC 247
THE HIGH COURT
BETWEEN
AND
CAPITAL ACQUISITIONS TAX ACT 1976
MENTAL HEALTH ACT 2001
TAXES CONSOLIDATION ACT 1997 S941
TAXES CONSOLIDATION ACT 1997 S941(4)
TAXES CONSOLIDATION ACT 1997 S941(2)
TAXES CONSOLIDATION ACT 1997 S941(5)
INSPECTOR OF TAXES v KIERNAN 1981 IR 117
RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121
A & B v DAVIS (INSPECTOR OF TAXES) 1944-1977 2 ITR 60
VETERINARY COUNCIL v CORR 1953 IR 12
Revenue law - Case stated -Death duties - Capital Acquisitions Taxes - Delay - motion to strike out - Earlier judicial review - Whether delay inordinate and inexcusable
Facts: On a case stated from the Appeal Commissioner, an issue arose as to the changeover from death duties to taxes under the Capital Acquisitions Tax Act in respect of a will dated from 1965. A motion came before the Court to strike out the appellants appeal on the grounds of delay and whether the court had jurisdiction to deal with the dispute. The issue arose as to the agreement reached following earlier judicial review proceedings brought 13 years previously and the application of procedural time limits in statutes in respect of the proceedings.
Held by Charleton J (ex tempore) that the case stated was drafted but not submitted for 6 years. There had been inordinate and inexcusable delay and a failure to comply with statute.
Reporter: EF
This is a case stated which came before me having been signed by Appeal Commissioner John O'Callaghan and which relates to an issue dealing with the changeover from death duties to taxes under the Capital Acquisitions Tax Act. Whilst I don't know anything about the substantive issue in the case and I make no comment on it, I am sure the issues involved are serious issues, and it is incumbent on the High Court on cases stated to assist the parties, be it the Circuit Court Judge or the Appeal Commissioners, in dealing with these cases.
There is also a motion before me to strike out the Appellant's appeal on two grounds, raising issues as to whether there was an inexplicable and unwarranted delay in processing the case; and whether this court has jurisdiction to deal with the matter, based on non-compliance with statute. I have read the papers and it seems to me I have to look at two things:-
) The agreement that was reached following earlier judicial review proceedings in this case in 1995,
) The statute in terms of time limits and whether there was compliance with it, and whether there was expedition of the procedures in this case apart from statute.
In relation to number 1, from the correspondence opened it appears that Julia Molloy died on the 11 th of December 1965, and in her will bequeathed property to Edward Molloy and, following his death, to her nephew Ronan Molloy, the appellant. I am assuming that Edward Molloy is the brother of Julia Molloy. On the 20 th of January 1994 Edward Molloy released his life interest in the properties to Ronan Molloy, thus accelerating Ronan Molloy's inheritance. An issue arose between the parties as to whether the release constituted a gift or deemed inheritance under the Capital Acquisitions Tax Act 1975. The Appellant sought a certificate of discharge from inheritance tax in order to sell the property. An application was made to the Revenue Commissioners for the certificate, which application was refused. On that, and it is now 13 years ago, the Appellant brought judicial review proceedings. The matter came on for hearing before Mr. Justice Frank Murphy, who has since retired, and he directed that the proper forum for the appellant was an appeal to the Appeal Commissioners and he suggested the parties agree to put the money in question, being the amount of the tax in dispute, on joint deposit pending resolution of the matter before the Appeal Commissioners. The proceedings were settled on the terms set out in the agreement dated 5 July 1995. The money was placed on joint deposit in the National Irish Bank Malahide. The correspondence establishes this was the agreed pot of money to satisfy whichever side won the appeal.
Now, before I deal with the issue of delay, the second issue is that of failure to comply with a statutory time limit and this involves considering what is contained in the Act and what overall attitude the Oireachtas has taken in the Act to the time limits involved. This brings to mind the provisions of the Mental Health Act of 2001. That Act provides for periodic independent review of patients so that no one can be locked up for years at a time. That Act allows for an appeal by way of case stated to the High Court similar to that contained in the Taxes Consolidation Act of 1997. In the 2001 Act, however, it is clear from the time limits that matters are to proceed within certain time limits, and it is obvious that cases by way of appeal to the High Court and Circuit Court are expected to be dealt with with expedition. That is the general thrust of the legislation, and this is similar. Under Section 941 of the Taxes Consolidation Act 1997, it is clear that dissatisfaction must be expressed when the Appeal Commissioners give their decision and then an appeal made to the High Court by way of case stated. There are time limits in the Act and these are very tight. Section 941(4) refers to 21 days within which to request the Appeal Commissioner to sign and state a case for the opinion of the High Court. The section states that the Appeal Commissioner must then sign and state a case for the High Court. In theory, the Appeal Commissioners write their own case stated. The practice has grown up, however, whereby both parties try to agree the draft case stated which is then sent to the Appeal Commissioner to amend, state and sign. Another sub-section - section 941 (2) - deals with the fee of €25 to be paid.
Section 941(4) says that the matter must then be transmitted within 7 days to the High Court and when you add together 21 days and 7 days you get 28 days and this is a reasonable period, excluding the time for drafting the case stated. The case stated has to be given to...
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