Revenue Commissioners v O'Donohoe

• Jurisdiction: Ireland
• Judgment Date: 01 January 1936
• Date: 01 January 1936
• Court: High Court (Irish Free State)

Revenue Commissioners v. O'Donohoe

THE REVENUE COMMISSIONERS

Plaintiffs

and

ANDREW O'DONOHOE (otherwise DONOHOE)

Defendant.

Revenue - Estate duty - Absolute assignment subject to charge and covenant for support and maintenance of assignor - Whether possession of assignee exclusive of any "benefit to the donor" "by contract or otherwise" - Customs and Inland Revenue Act, 1881 (44 & 45 Vict. c. 12), sect. 38,sub-sect. 2 (c) - Customs and Inland Revenue Act, 1889 (52 Vict. c. 7),sect. 11 - Finance Act, 1894 (57 & 58 Vict. c. 30), sect. 2, sub-sect. 1 (c).

By deed of the 11th April, 1927, a farm, together with the farmhouse and its contents, the live stock thereon and the chattels and effects were assigned absolutely to the defendant, A. O'D., in consideration of natural love and affection by his cousin J. O'D. "subject however to the right of the said J. O'D. to the exclusive use of a room in the dwelling house upon the said lands with the use in common with the said A. O'D. of the kitchen and passages of the said house and to the right of his support therein which is to include all necessary fuel at the expense of the said A. O'D. and to the use of a donkey and trap when required." The defendant also covenanted with the said J. O'D. to permit him to enjoy the said rights and to provide personal attendance on him.

On the death of J. O'D., the defendant was assessed to estate duty upon all the property comprised in the said deed. Upon a motion for attachment for failure to pass an estate duty account:

Held, that the property transferred by J. O'D. to the defendant was not possessed or enjoyed by the latter to the entire exclusion of the donor or of any benefit to him by contract or otherwise and, accordingly, that estate duty was payable thereon under sect. 2, sub-sect 1 (c) of the Finance Act, 1894.

Attorney-General v. Worrall, [1895] 1 Q. B. 99, and Earl Grey v. Attorney-General,[1900] A. C. 124, applied. In re Cochrane [1906] 2 I. R. 200, distinguished.

Motion on Notice.

The originating summons, having recited that Andrew O'Donohoe (otherwise Donohoe) the defendant, being an accountable party within the true intent and meaning of the Finance Act, 1894, had been required by the Revenue Commissioners to render an account pursuant to the Act and had made default therein, required him, within eight days from the service thereof or of a copy, to deliver to the said Commissioners an account upon oath of the property which passed on the death of James O'Donohoe deceased within the meaning of the said Act under deed, dated the 11th of April, 1927, and to pay the estate duty chargeable together with costs of the proceedings, or within the same time to appear before the High Court to show cause why he made default in the premises, upon pain, in case of omission, of contempt issuing against his person.

The said summons was served upon the defendant on the 2nd of November, 1934, but no payment was made as required thereby, and in consequence thereof a motion to attach the defendant was issued by the plaintiffs on the 30th day of January, 1935, grounded upon an affidavit of personal service of the summons and an affidavit of the Examiner of Accounts in the Estate Duty Office, an official of the Revenue Commissioners, showing that no payment had been made. The said notice was in the form set out (post) in the judgment of O'Byrne J.

The deed of the 11th of April, 1927, was as follows:—

"This indenture made the 11th day of April, 1927, between James Donohoe of Walderstown, Athlone in the County of Westmeath, farmer, of the one part and Andrew O'Donohoe, otherwise Donohoe, of Liscahill, Edgeworthstown in the County of Longford, farmer, of the other part, whereas the said James Donohoe being unable through age to farm his lands of Walderstown hereinafter more particularly described has agreed with his cousin the said Andrew O'Donohoe to assign to him the said farm and all household furniture, farm implements, live stock and other chattels and effects thereon as more particularly hereinafter described and subject as hereinafter appears, now this indenture witnesseth that the said James Donohoe in consideration of the natural regard and affection which he hath and beareth for his cousin the said Andrew O'Donohoe and of the covenants on the part of the said Andrew O'Donohoe hereinafter contained hereby assigns unto the said Andrew O'Donohoe all that farm of land with the dwelling house and buildings thereon and appurtenances thereunto belonging, forming part of the townland of Walderstown, in the Barony of Kilkenny West, and County of Westmeath, held by the said James Donohoe as yearly tenant on the Wellington Gray Estate at the yearly rent of forty-two pounds and now subject to the provisions of the Land Act, 1923, to hold the same unto the said Andrew O'Donohoe his executors administrators and assigns for all the estate, tenant right, and interest therein of the said James Donohoe subject however to the right of the said James Donohoe to the exclusive use of a room in the dwellinghouse upon said lands, together with the use in common with the said Andrew O'Donohoe of the kitchen and passages of the said house and to the right of his support therein which is to include all necessary fuel at the expense of the said Andrew O'Donohoe and to the use of a donkey and trap when required by him, and also subject to the said yearly rent of forty-two pounds and to the covenants and conditions relating to the said tenancy and on the tenant's part to be observed and performed, and this indenture also witnesseth that for the consideration aforesaid the said James Donohoe hereby assigns unto the said Andrew O'Donohoe all that the household furniture, farm implements and other chattels and effects now upon the said lands and all that the live stock set out in the schedule hereto to hold the same unto the said Andrew O'Donohoe, his executors, administrators and assigns, and it is hereby declared that this deed shall not be revocable by the said James Donohoe, and the said Andrew O'Donohoe hereby for himself and his assigns covenants with the said James Donohoe that he the said Andrew O'Donohoe will permit the said James Donohoe to have the exclusive use of a room and the use in common with him the said Andrew O'Donohoe of the kitchen...