Murphy v Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hamilton |
| Judgment Date | 12 October 1979 |
| Neutral Citation | 1978 WJSC-HC 3525 |
| Docket Number | No. 1435P/1978 |
| Court | High Court |
| Date | 12 October 1979 |
BETWEEN:
and
1978 WJSC-HC 3525
THE HIGH COURT
Judgment of Mr. Justice Hamilton delivered the 12th day of October 1979.
In this case the plaintiffs claim:-
(1) An order declaring that the provisions of the Income Tax Act 1967(No. 6 of 1967) Part IX, Chapter 1, Sections 192 to 198 (inclusive), (as amended), containing special provisions as to married persons, are repugnant to the Constitution of Ireland and void, in so far as they provide that the income of a married woman living with her husband is to be deemed to be his income for income tax purposes, and not to be her income.
(2) An order declaring that the provisions of the Income Tax Act, 1967, Section 138 (as amended) are repugnant to the Constitution of Ireland and void, in so far as they provide that a lower personal allowance is to be allowable as a deduction against taxable income and dealing with the combined incomes of husband and wife than would be allowable if they were not married to each other.
(3) An order declaring that the provisions of the Income Tax Act, 1967, Section 193 (4), which give rise to an obligation on the part of a husband or wife in the circumstances therein referred to, to make returns concerning the income of the other party, are repugnant to the Constitution of Ireland and void.
(4) An order declaring that the plaintiffs are entitled to be assessed separately in each year for income tax purposes and are entitled to make separate returns, without being required to invoke the provisions of Section 197 of the Income Tax Act, 1967, (as amended) and are entitled to the same reliefs and exemptions as if each of them was a single person and to have the rates of tax payable by them determined by reference to the income of each separately without aggregating their incomes for the said purpose, and declaring that each is liable only to make returns and payments in respect of his or her own separate income.
It is desirable to this stage to set forth in detail the provisions of part IX chapter 1 of the Income Tax Act 1967and the provisions of Section 138 of the said Act.
Section 192 of the Income Tax Act 1967provides that:-
(1) Subject to the provisions of this chapter, a woman's income chargeable to tax shall, so far as it is income for a year of assessment of part of a year of assessment during which she is a married woman living with her husband, be deemed for income tax (including sur tax) purposes to be his income and not to be her income, but the question whether there is any income of hers chargeable to tax for any year of assessment and, if so, what is to be taken to be the amount thereof for tax purposes shall not be affected by the provisions of this sub-section.
(2) Any tax falling to be assessed in respect of any income which, under sub-section (1), is to be deemed to be the income of a woman's husband shall, instead of being assessed on her or on her trustee, guardian or committee, or on her executors or administrators, be assessable on him, or, in the appropriate cases, on his trustee, guardian or committee, or on his executors or administrators.
(3) References in this section to a womans income include references to any such sum which, apart from this section, would fall to be included in concluding her total income, and this sub-section has effect in relation to any such sum notwithstanding that some enactment (including, except so far as the contrary is expressly provided, an enactment passed after the passing of this Act) requires that that sum should not be treated as income of any person other than her.
Section 193 provides that:-
(1) This Section shall have effect as respects personal reliefs where, by virtue of an application under Section 197, income tax for any years to be assessable and chargeable on the incomes of a husband and a wife as if they were not married.
(2) The total relief from tax given to the husband and the wife by way of personal reliefs shall be the same as if the application had not had effect with respect to the year and, subject to sub-section 3, the benefit flowing from the personal reliefs may be given either by way of reduction of the amount of tax to be paid, or by repayment of any excess of tax which has been paid, or by both of these means, as the case requires, and shall be allocated to the husband and the wife.
(a) So far as it flows from relief under Sections 143, 151 and 152, to the husband or the wife according as he or she made payment giving rise to the relief.
(b) So far as it flows from relief under Section 134, in proportion to the amounts of their respective earned incomes.
(c) So far as it flows from relief in respect of a dependent relative under Section 142 or relief in respect of a child under Section 141 (2) to the husband or the wife according, as he or she maintains the relative or child
(d) So far as it flows from relief under Section 135, in proportion to the amounts of their respective unearned incomes within the meaning of Section 135.
(e) So far as it flows from relief under Section 136, in proportion to the amount of their respective relevant incomes within the meaning of Section 136 and
(f) As to the balance, in proportion to the amounts of their respective assessable incomes.
(3) Where the amount of relief allocated to the husband under sub-section (2) exceeds the income tax chargeable on the income of the husband for the year of assessment, the balance shall be applied to reduce the income tax chargeable on the income of the wife for that year and where the amount of relief allocated to the wife under that sub-section exceeds the income tax chargeable on her income for the year of assessment, the balance shall be applied to reduce the income tax chargeable on the income of the husband for that year.
(4) Returns of the total incomes of the husband and the wife may be made for the purposes of this section either by the husband or by the wife but, if the Revenue Commissioners are not satisfied with any such return, they may obtain a return from the wife or the husband as the case may be.
(5) The Revenue Commissioners may by notice require returns for the purposes of this section to be made at any time.
(6) In this section personal reliefs mean any relief under Sections 134, 135, 136, 138, 139, 140, 141, 142, 143, 144, 151 or 152.
Section 194 provides that:-
(1) Where:
(a) an assessment of income tax or sur tax (in this section referred to as the original assessment) has been made for the year beginning on the 6th day of April 1958 or any subsequent year of assessment on a man, or on a man's trustee, guardian or committee, or on a man's executor or administrators.
(b) The Revenue Commissioners are of opinion that, if an application for separate assessment under Section 197 or 198 had been in force in respect of that year of assessment, an assessment in respect of, or of part of, the same income would have fallen to be made on, or on the trustee, guardian or committee of, or on the executors or administrators of, a woman who is the said man's wife or was his wife in that year of assessment, and
(c) the whole or part of the amount payable under the original assessment has remained unpaid at the expiration of 28 days from the times when it became due.
The Revenue Commissioners may give to her, or, if she is dead, to her executors or administrators, or, if such an assessment as is referred to in paragraph (b) could, in the event therein referred to, have been made on her trustee, guardian or committee, to her or to her trustee, guardian or committee, a notice.
(1) Stating particulars of the original assessment and of the amount remaining paid thereunder and
(2) stating particulars, to the best of their judgment, of the assessment which would have fallen to be made as aforesaid, and requiring the person to whom the notice is given to pay the amount which would have been payable under the last mentioned assessment if it conformed with those particulars, or of the amount remaining unpaid under the original assessment, whichever is the less.
(2) The same consequences as respects:
(a) the imposition of a liability to pay, and the recovery of, the tax with or without interest.
(b) authority for the tax and bankruptcy or in the administration of the estate of a deceased person.
(c) appeals to the special commissioners, the rehearing of such appeals and stating of cases for the opinion of the High Court, and
(d) the ultimate incidence of the liability imposed, shall follow on the giving of a notice under sub-section 1 to a women or to her trustee, guardian or committee, or to her executors or administrators, as would have followed on the making on her or an her trustee, guardian or committee, or on her executors or administrators, as the case may be, of such an assessment as is referred to in sub-section (1) (b), being an assessment which
(1) was made on the day of the giving of the notice,
(2) charged the same amount of tax as was required to be paid by the notice,
(3) fell to be made and was made by the authority who made the original assessment, and
(4) was made by that authority to the best of his or their judgment, and the provisions of this act relating to the matters specified in paragraph (a) to (d), shall, with the necessary adoptions have effect accordingly.
(3) Where a notice under sub-section (1), tax up to the amount required to be paid by the notice shall cease to be recoverable under the original assessment and, where the tax charged by the original assessment carried interest under Section 550, such adjustment shall be made of the amount payable under that Section in relation to that assessment and...
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