Re Ferguson

• Jurisdiction: Ireland
• Judgment Date: 08 December 1935
• Date: 08 December 1935
• Docket Number: (1932. No. 19 (Revenue).)
• Court: Supreme Court (Irish Free State)

High Court.

Supreme Court.

(1932. No. 19 (Revenue).)

In re Ferguson.

In the Matter of the FINANCE ACT, 1894, and in the Matter of certain Stocks and Shares in British Companies the property of SARAH FERGUSON, a Person of Unsound Mind, Deceased, and which were standing at the date of her death in the name of the Accountant of the Courts of Justice of Saorstát Éireann éireann(1)

Revenue - Estate duty - Stocks and shares in British companies - Owner a person of unsound mind domiciled in the Irish Free State - Securities transferred into name of Accountant of Courts of Justice of Irish Free State - British estate duty paid on death of owner - Refusal of Revenue Commissioners of Irish Free State to allow amount paid to be deducted from Irish Free State estate duty - Double Taxation (Relief) Order (No. 1), 1923 - Nature of property passing on death of owner - Whether the property in the stocks and shares or merely a chose in action - Finance Act,1894, sect. 2, sub-sect. 1 (a); sect. 22, sub-sect. 2.

Petition.

This petition, dated the 24th day of March, 1932, was brought by David Griffith and John Fergus Griffith, the executors of the will, dated the 26th April, 1924, of Sarah Ferguson. Sarah Ferguson died on the 9th August, 1931, and probate of her will was granted to the petitioners on the 18th January, 1932, forth of the Principal Probate Registry of the High Court of Justice, Saorstát Éireann éireann.The said Sarah Ferguson was at all material times domiciled in Saorstát Éireann éireann. The petition (as amended), having stated the above facts, continued as follows:—

"2. The said Sarah Ferguson was, by order of the Chief Justice, made on the 4th day of June, 1926, declared to be a person of unsound mind. At the date of the said order she was entitled to certain securities which included stocks and shares in companies having their principal or registered offices, respectively, in Great Britain.

3. Pursuant to orders made on the 5th day of November, 1926, and 21st day of April, 1927, respectively, in the Matter of Sarah Ferguson, a person of unsound mind, the stocks and shares of the said Sarah Ferguson were transferred into the name of the Accountant of the Courts of Justice, Saorstát Éireann éireann, and on the 9th day of August, 1931, the date of the death of the said Sarah Ferguson, there were standing in the name of the said Accountant to the credit of the said lunacy matter (inter alia) the following:—

£69 5 per cent. First Debenture Stock, Coast Lines Limited.

£100 3¹/₂ per cent. Guaranteed Preference, Fishguard and Rosslare Railways Stock.

315 Ordinary Shares, British Match Corporation.

31 Shares £1 each, fully paid, Westminster Bank, Ltd.

£185 Ordinary Stock, A. Guinness Son & Co., Ltd.

4. As to the Coast Lines, 5 per cent. First Debenture Stock, the registered offices of the said Company is, by Clause 2 of the Memorandum of Association, in England, and at present in the Royal Liver Building, Liverpool, and under the conditions endorsed on the Debenture Stock Certificate and contained in the Trust Deed securing this stock, dated 31st March, 1926, this stock is transferable by a transfer in writing signed by both parties which must be left at the registered office of the Company for registration in the Company's register of Debenture Stock kept at the said office. As to the 3¹/₂ per cent. Guaranteed Preference Stock of the Fishguard and Rosslare Railways, it appears that the said Company is a statutory Company under the Fishguard Bay Railway and Pier Act, 1893 (56 & 57 Vict. c. 97), as amended by the Fishguard and Rosslare Railways and Harbours Act, 1894 (57 & 58 Vict. c. 137). The principal office of the said Company is at Paddington Railway Station, London, W. 2, where the register is kept and the stock is transferable under the said Acts, which incorporate provisions of the Companies Clauses Act, 1845. The remaining securities are stocks or shares of companies having their registered offices in Great Britain and are transferable in accordance with the Articles of Association of the said respective Companies by registration of the transfers at the registered offices of the said Companies respectively.

5. The value of the said securities at the date of the death of the said Sarah Ferguson was the sum of £1,484 12s. 7d. on which sum duty was assessed.

6. The Inland Revenue Commissioners of Great Britain claimed estate duty in respect of the said securities and British estate duty, amounting to the sum of £44 10s. 8d., has been assessed and paid in respect thereof by your petitioners as executors of the said Sarah Ferguson deceased.

7. Your petitioners originally accounted to the Saorstát Éireann éireann Revenue Commissioners for the said securities by including them in Account No. 2 of the Inland Revenue affidavit filed by them, as personal property situate outside Saorstát Éireann; éireann; and, by annexing to the said affidavit the Certificate of the British Inland Revenue Commissioners that British estate duty had been paid in respect thereof. The Saorstát Éireann éireann Revenue Commissioners insisted that the said securities should be included in Account No. 1, as personal property situate in Saorstát Éireann éireann, and the said affidavit was (under protest) amended accordingly.

8. The Saorstát Éireann éireann Revenue Commissioners have decided that no allowance falls to be made in Saorstát Éireann éireann from the estate duty paid or payable in SaorstátÉireann éireann in respect of property which passed on the death of the said Sarah Ferguson for the estate duty paid in Great Britain in respect of the said securities, and your petitioners have (under protest) paid the full Saorstát Éireann éireann estate duty in respect of the said securities without making any deduction or receiving any allowance.

9. Your petitioners submit that the said decision of the Saorstát Éireann éireann Revenue Commissioners is erroneous on the following grounds:—

(a) That the said securities, respectively, being stocks or shares of companies having their principal or registered offices in Great Britain and being transferable as aforesaid, are personal property situate outside Saorstát Éireann éireann.

(b) That at the time of her death the said Sarah Ferguson was a person competent to dispose of the said securities within the meaning of sect. 2, sub-sect. 1 (a), and sect. 22, sub-sect. 2 (a), of the Finance Act, 1894, and that the said securities passed, or are to be deemed to have passed on her death.

(c) That the property which passed on the death of the said Sarah Ferguson was the property in the said stocks and shares and not merely a right to have her personal estate administered in Saorstát Éireann éireann, or a chose in action enforceable in Saorstát Éireann éireann.

(d) That estate duty was properly paid in Great Britain in respect of the said stocks and shares on the death of the said Sarah Ferguson.

(e) That under the provisions of Double Taxation (Relief) Order (No. 1), 1923, the Saorstát Éireann éireann Revenue Commissioners are bound to allow a sum equal to the amount of the British estate duty paid in respect of the said stocks and shares to be deducted from the estate duty payable in Saorstêt Éireann éireann in respect thereof.

Your petitioners therefore pray:—

1. That it may be declared that the said stocks and shares respectively were personal property situate outside Saorstát Éireann éireann passing or deemed to pass on the death of the said Sarah Ferguson.

2. That it may be declared that your petitioners are entitled to be repaid by the Saorstát Éireann éireann Revenue Commissioners, pursuant to the provisions of the Double Taxation (Relief) Order (No. 1), 1923, as a deduction from the estate duty paid in Saorstát Éireann éireann in respect of the said stocks and shares, a sum equal to the amount of the British estate duty paid in respect thereof.

3. That the Saorstát Éireann éireann Revenue Commissioners be ordered to pay to your petitioners their costs of and incidental to this petition, the order thereon and proceedings thereunder when taxed and ascertained.

4. That your petitioners be granted such further or other relief in the premises as to the Court may seem proper.

The answer (as amended) of the Revenue Commissioners, dated the 11th day of May, 1932, was as follows:—

1. The Revenue Commissioners (in the petition referred to as the Saorstát Éireann éireann Revenue Commissioners) are prepared to accept as correct the statements contained in paragraphs 1, 2, 3, 5, 6, 7, and 8 of the petition, but for greater certainty as to the purport and contents of the several documents and orders in the said paragraphs mentioned they refer to the same when produced. As regards paragraph 4 of the petition the Revenue Commissioners do not admit the correctness of the statements therein contained and refer to the said Memoranda and Articles, Debenture Stock Certificate, Trust Deed, and Acts of Parliament when produced.

2. As regards paragraph 9 of the petition, the Revenue Commissioners do not admit that their decision in said paragraph referred to is erroneous, nor do they admit the correctness or validity of any of the grounds in the said paragraph set forth.

3. The Revenue Commissioners submit that they are entitled to maintain their claim on the following grounds:—

(a) That at the time of the death of the said deceased the said securities, stocks and shares were vested in the said Accountant and continued to be so vested after the said death, and did not pass in specie or otherwise upon the said death, and that the said deceased was not competent to dispose of the said securities, stocks or shares within the meaning of sect. 2, sub-sect. 1 (a), and sect. 22, sub-sect. 2, of the Finance Act, 1894.

(b) That at and after the time of the death of the deceased the said securities, stocks and shares were vested in the said Accountant, and were under the power and...