Wiley v Revenue Commissioners

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.,McCarthy J.,O'FLAHERTY J.
Judgment Date01 January 1994
Neutral Citation1992 WJSC-SC 1204
Docket Number[S.C. No. 222 of 1989]
Date01 January 1994
WILEY v. REVENUE COMMISSIONERS
MICHAEL WILEY
Applicant/
Appellant

and

THE REVENUE COMMISSIONERS
Respondents/

1992 WJSC-SC 1204

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

222/89

THE SUPREME COURT

Synopsis:

WORDS AND PHRASES

"Legitimate expectation"

Benefit - Withdrawal - Continuation - Expectancy - Disabled motorist - Refund of excise duty made on two occasions - Refund refused on third occasion - Evidence of extent of disability - Better evidence demanded by authorities on third occasion - Applicant not qualified to benefit from scheme - (222/89 - Supreme Court - 9/4/92) - [1994] 2 I.R. 160 - [1993] ILRM 482

|Wiley v. Revenue Commissioners|

ACTION

Cause

Benefit - Withdrawal - Continuation - Expectancy - Disabled motorist - Refund of excise duty made on two occasions - Refund refused on third occasion - Evidence of extent of disability - Better evidence demanded by authorities on third occasion - Applicant not qualified to benefit from scheme - Imposition of Duties (No. 236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order, 1979 (S.I. No. 57), article 12 - Finance Act, 1968, s. 43 - (222/89 - Supreme Court - 9/4/92)

|Wiley v. Revenue Commissioners|

Citations:

IMPOSITION OF DUTIES (NO 236) (EXCISE DUTIES ON MOTOR VEHICLES TELEVISIONS & GRAMOPHONE RECORDS) ORDER 1979 SI 57/1979 PARA 12

FINANCE ACT 1968 S43(1)

FINANCE (EXCISE DUTIES) (VEHICLES) ACT 1952 S1

KEEGAN & LYSAGHT, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

BREEN V MIN FOR DEFENCE UNREP SUPREME 20.7.90 1990/6/1437

PINE VALLEY DEVELOPMENTS V MIN FOR THE ENVIRONMENT 1987 IR 23

WEBB V IRELAND 1988 IR 353

COMMISSION OF EC V COUNCIL OF EC 1973 ECR 575

AG HONG KONG V NG YUEN SHIU 1983 2 AC 629

R V IRC EX PARTE FEDERATION OF SELF-EMPLOYED 1982 AC 617

AG (NEW SOUTH WALES) V QUINN 1990 170 CLR 1

FINANCE ACT 1968 S43

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

STAFF REGS OF EC ART 65

1

JUDGMENT delivered on the 9th day of April 1992by FINLAY C.J. [Hederman J. conc. Egan J. agr]

2

This is an appeal brought by the Applicant against the order of the High Court dated the 11th May 1989, made by Blayney J., dismissing an application for an order of certiorari quashing a decision of the Respondents wherein they purported to decide that the Applicant was not entitled to a repayment of excise duty under the provisions of section 12 of the Imposition ofDuties (No. 236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order 1979 in respect of the purchase of a motor car, registration number 87D.22555 by reason of the terms of the sheme for the repayment of excise duty and value-added tax on new motor vehicles for disabled drivers. A declaration was also sought and refused that the applicant was entitled to the repayment of the excise duty in respect of that motor car.

3

Whilst the original liberty to the Applicant to apply for judicial review was granted on a number of alternative grounds, the sole ground argued in the High Court, and again on appeal in this Court, was that the decision made by the Respondents was made "contrary to and in frustration of the legitimate expectation of the Applicant that he would be entitled to such repayment under the said section by reason of the provisions of the said scheme."

The facts
4

The scheme in question is one introduced by the Revenue Commissioners pursuant to the powers vested in them by paragraph 12 of the Imposition of Duties (No. 236) (Excise Duties on Motor Vehicles on Televisions and Gramophone Records) Order 1979 (S.I. No. 57 of 1979), which reads asfollows:

"Whenever the Minister for Finance so thinks proper, the Revenue Commissioners may, subject to such conditions as they may think fit to impose, authorise any person to take delivery of or import goods to which the duty of excise imposed by paragraph 4 of this order applies, either without payment of the said duty or, on payment of the duty, at less than the rate ordinarily chargeable, or where the said duty has been paid, to repay the duty in whole or in part."

5

The power therein contained is, of course, extremely wide, and it was pursuant to that power that the Respondents introduced the scheme for the repayment of excise duty in certain cases in respect of motorvehicles adapted for driving and use by disabled persons. The introduction of the scheme and its terms are set out in the affidavit of Colm O'Herlihy, filed on behalf of the Respondents, and there is no dispute as to the accuracy of that description. Mr. O'Herlihy having referred to the power vested in the Revenue Commissioners, pursuant to paragraph 12 of the order of 1979, stated as follows:

"The specific concessionary relief treatment applied by virtue of the said paragraph to certain motor vehicles for use by disabled drivers is based on the criteria of the Department of the Environment provisions relating solely to exemption from road tax, viz. section 43(1) of the Finance Act 1968.The legal basis for the excise duty repayment is separate and distinct from that for road tax or VAT relief, and repayment of motor vehicle excise duty would not be contingent on the grant of relief in such other areas. Such excise duty repayment is dependent on the Commissioners being satisfied that the applicant is inter alia"whollyor almost wholly without the use of each of his legs". Originally entitlement to excise duty repayment was assessed by reference to theinformation contained in the application forms completed and submitted by the Applicants and supported by a certificate of road tax exemption as evidence that the qualifying medical and other criteria had beenmet."

6

Section 43 of the Finance Act 1968, at subsection (1) reads as follows:

"Where a person shows to the satisfaction of the Licensing Authority that in consequence of injury, disease or defect he is wholly or almost wholly without the use of each of his legs, the duty imposed by section 1 of the Finance (Excise Duties) (Vehicles) Act 1952, shall not be charged or levied in respect of a vehicle specially constructed or adapted for use by the person as driver and used by him either as driver or passenger."

7

The duty referred to in this subsection is what is ordinarily known as road tax, and is, of course, collected by and administered by the local authority in the relevant area.

8

Mr. O'Herlihy at paragraph 3 of his affidavit indicates the change which took place in 1986 in themethod by which the Revenue Commissioners were administering the scheme under paragraph 12 of the 1979 order. He states as follows:

"However, some time subsequent to the implementation of the scheme and after a number of cases came to light where applicants were clearly ineligible, it became clear that it would be not only desirable but also necessary to have sight of evidence from the Applicant's medical advisors in order that the Commissioners could be fully satisfied as to the Applicant's entitlement to a repayment of excise duty under the provisions of the scheme, considering the high level of Exchequer revenue involved. In this case £13,482 excise duty alone isinvolved."

9

At paragraph 4 he states as follows:

"Therefore, from in or around the month of September 1986 an applicant became obliged to provide a copy of the medical certificate submitted to the Road Tax licensing authority or some alternative medical evidence to support any claim for excise duty repayment under the scheme. Requiring sight of such medical evidence did not alter in any way any criteria governing the entitlement to repayment, including the underlyingrequirement that an applicant should be in consequent (sic) of injury, disease or defect, wholly or almost wholly without the use of each of (his) legs."

10

The Applicant in his affidavit stated that he applied for the repayment of excise duty under paragraph 12 of the order of 1979, in August 1987, in respect of a Mercedes motor car which he had purchased for the sum of£52,447.60, of which £24,947.60 was made up of excise duty and value-added tax.

11

At paragraph 3 of his affidavit he states as follows:

"My reason for making such application for repayment of excise duty and value-added tax was that I had received such a repayment of excise duty and value-added tax under the scheme in respect of the purchase of my previous two motor cars, on or about the 28th July 1983 and on or about the 31st July 1985. When I purchased the new Mercedes motor car in the month of August 1987 I did so on the basis and with the clear expectation that I would be able to obtain arepayment of excise duty and value-added tax under the disableddrivers" scheme. In each year since 1983 I have been exempted from the payment of road tax in respect of my motor vehicle by the relevant local authority, which is Dublin Corporation, pursuant to the provisions of section 43(1) of the Finance Act 1968."

12

When the Applicant's application in August of 1987 for repayment of excise duty was refused, correspondence ensued between him on his own and through his solicitor with the Revenue Commissioners. By letter dated 10th March 1988 the Reveneue Commissioners in the course of a letter to the Applicant's solicitors, stated as follows:

"Mr. Wylie's claim for refund of excise duty has been reviewed but the medical evidence furnished does not indicate that his disability is such as would correspond to the criteria for allowing repayment, and accordingly a repayment does not fall to be made."

13

It is confirmed that Mr. Wylie was accorded an excise repayment about two years ago. At that time it had been the practice to take Road Tax Exemption Certificates as underwriting conformitywith the description of disability contained in the saidsection."

14

It was conceded in the High Court and again at the hearing of this appeal that the Applicant does not come within the description of a person who was "wholly or almost wholly without the...

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