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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Coleman -v- The Revenue Commissioners [2014] IEHC 662 (25 November 2014)
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Cite as: [2014] IEHC 662
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Judgment
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Neutral Citation: [2014] IEHC 662 THE HIGH COURT REVENUE [2013 No. 863 R] SHANE COLEMAN APPELLANT AND
THE REVENUE COMMISSIONERS RESPONDENTS JUDGMENT of Ms. Justice Donnelly delivered the 25th day of November 2014 Introduction 2. The respondents (“the Revenue Commissioners”) decided that this work did not qualify for what is commonly known as the artist’s exemption from income tax provided by s.195 of the Taxes Consolidation Act 1997 (“the Act of 1997”). That exemption is governed by guidelines drawn up by An Comhairle Ealaíon (The Arts Council) and the Minister for Arts, Heritage, Gaeltacht and the Islands with the consent of the Minister for Finance in accordance with the provisions of s.195 (12) of the Act of 1997 (“the Guidelines”). 3. Mr. Coleman appealed that decision on a ground that is no longer at issue in these proceedings. On the 15th February, 2008, the Appeal Commissioner determined the appeal in Mr. Coleman’s favour by holding that he was entitled to the artist’s exemption on the ground that his book came within the category of biography. 4. It is against that determination of the Appeal Commissioner that the Revenue Commissioners have appealed by way of case stated. There was a lengthy procedural delay before the case stated was finally signed on the 18th October, 2013. The case stated was duly transmitted to the High Court and was heard on the 9th October, 2014. Understandably, Mr. Coleman queried the length of time it had taken to reach the High Court. It is undoubtedly true that the time taken for the case to be stated was excessive. It is incumbent on all involved, including the Appeal Commissioners, to ensure that cases stated are drafted and signed within a reasonable time. As the issue was not directly before me, I express no view as to whether and possibly more to the point, on what basis, a taxpayer would be entitled to prohibit the stating of a case on the grounds of excessive delay. As it came before me on a case stated, it appears I am required to proceed to determine the case in accordance with the statutory provisions. The question of law
6. Section 195 of the Act of 1997 is less than straightforward in the manner in which it is drafted. Nonetheless, the relevant parts can be distilled. Subsection 1 defines “work” as meaning an “original and creative work” within certain defined categories, one of which is a book or other writing. Subsection 2 details that the exemption from income tax provided by the section applies to a “work” which has “cultural or artistic merit”. The Guidelines drawn up under subs.12 (a) of the Act of 1997 are for the purposes of determining whether a work is original and creative and whether it has or is generally recognised as having cultural or artistic merit. Subsection 13 (a) provides that the Revenue Commissioners shall not determine that a work is original and creative or has, or is generally recognised as having, cultural or artistic merit unless it complies with the Guidelines for the time being in force under subsection 12. Subsection 13(b) provides that subs. 13 (a) shall with any necessary modifications, apply to, inter alia:-
(ii) to the extent necessary, to the determination by the High Court of any question of law arising and specified in the statement of a case for the opinion of the High Court, by the Appeal Commissioners 8. Paragraph 9 of the Guidelines provide as follows:-
(i) it comes within one of the categories cited in Appendix A (emphasis added), and (ii) the essence of the work is the presentation of the author's own ideas or insights in relation to the subject matter, and the ideas or insights are of such significance that the work would be regarded as a pioneering work casting new light on its subject matter or changing the generally accepted understanding of the subject matter.”
1. The following categories of literature (and any combination thereof) coming fully within the terms of reference of the Arts Council encompassing the subjects of fiction writing, drama, music, film, dance, mime or visual arts, and related commentaries by bona fide artists: Arts criticism; Arts history; Arts subject works; Arts diary; Autobiography; Belles-lettres essays; Biography; Cultural dictionary; Literary translation; Literary criticism; Literary history; Literary diaries” The basis for the Appeal Commissioner’s determination
19. I indicated that I have a general policy that what happens in one case is really of no great relevance to another case; one taxpayer’s affairs are different to another’s. The decisions that Revenue make in a particular case are not binding on me, they are not binding on them. I took the view that the Appellant was entitled to consistent treatment and that I should apply an approach which I believed to be similar to that adopted by the Revenue. 20. In this regard, I was satisfied that I had to apply the terms of the Taxpayers Charter as published by Revenue a copy of which is annexed to and forms part of this case stated (Appendix 4). While I understood the position adopted by the Respondents in relation to Mr. Fergus Finlay’s book Snakes and Ladders, I believed it involved a fairly free interpretation of the guidelines. In that regard I do not consider that it was any more of a stretch, and in fact, I considered it to be less of a stretch for me to take the view that the Appellant’s book Foot in Mouth - Famous Irish Political Gaffes comes within the category of biography. I was satisfied that, at the very least, the Appellant’s book is a set of mini biographies. Adopting a similar approach to the Appellant’s case as I believe Revenue had adopted in the case of Mr. Finlay’s book, I was satisfied that a reasonable construction of the category of biography in paragraph 1 of Appendix A enable me to hold that the Appellant’s book is biography and I so determined. 21. With regard to the requirements of paragraph 9(ii) of the guidelines, bearing in mind Revenue’s approach to the matter and while it was a close enough call, I took the view that readers of the Appellant’s book would be given insights that they might not have had before, that people who are not political buffs might be informed by it and that the book, therefore, satisfied the requirements of paragraph 9(ii) of the guidelines.” 13. In his case stated, the Appeal Commissioner included in an Appendix:-
The role of the High Court in a case stated
(2) Inferences from primary facts are mixed questions of fact and law. (3) If the judge's conclusions show that he has adopted a wrong view of the law, they should be set aside. (4) If his conclusions are not based on a mistaken view of the law, they should not be set aside unless the inferences which he drew were ones which no reasonable judge could draw. (5) Some evidence will point to one conclusion, other evidence to the opposite: these are essentially matters of degree and the judge's conclusions should not be disturbed (even if the Court does not agree with them, for we are not retrying the case) unless they are such that a reasonable judge could not have arrived at them or they are based on a mistaken view of the law.” Statutory Interpretation - The natural and ordinary meaning of words
17. Counsel for the Revenue Commissioners in written and oral submissions relied upon the law as set out above. Counsel submitted that the Appeal Commissioner had determined the appeal correctly at para. 18 and in accordance with law that the appellant’s book was not a biography in the normal sense of the word having regard to the requirement to give words their ordinary meaning. It was submitted that this was a finding of primary fact by the Appeal Commissioner based upon evidence and that this finding of fact should not be disturbed as per dictum 1 above in Ó Culacháin v. McMullen Brothers. Thus, they submit, the book does not come within any category as set out in Appendix A. 18. The Revenue Commissioners submitted that the plain meaning of the statute must be applied. The Revenue Commissioners also relied on the dictum of Kennedy C.J. in the case of Commissioners of Inland Revenue v. Doorley [1933] 1 IR 750 at p. 766 as follows:-
19. The Revenue Commissioners further contended that having made a finding, the Appeal Commissioner then adopted a mistaken view of the law in going on to reach conclusions which set the aforementioned finding at nought and contradicted it. They argued that:-
(ii) The Taxpayer’s Charter is a Revenue Commissioners’ practice statement and is not binding upon and has no application to the discharge of the statutory functions of the Appeal Commissioners; (iii) In basing his determination on an assumed position of the Revenue Commissioners in circumstances where there was no evidence before him that the Revenue Commissioners had adopted “a fairly free interpretation” of the Guidelines in relation to Mr. Finlay’s book, and at the same time ignoring the submission that the Revenue Commissioners adhered strictly to the terms of s.195 and the Guidelines; (iv) By basing his determination on a non-existent category in Appendix A viz mini-biographies and equating this non-existent category with biography; (v) By purporting to enlarge the exemption for biography between statute and the Guidelines; (vi) By failing to base his determination solely on the evidence adduced by the parties and on consideration of Mr. Coleman’s book by reference to the Guidelines.
(ii) That it was a mistaken view of the law for the Appeal Commissioner to believe he could depart from the principle of giving words their plain meaning as per the Supreme Court in Kiernan; (iii) That it was unreasonable and/or a mistaken view of the law for the Appeal Commissioner to adopt a “stretch” (para. 20, case stated) to take the view that Mr. Coleman’s book comes within the category of biography when he had found as a fact that it did not (para.18, case stated); (iv) That the Appeal Commissioner's departure from consideration of Mr. Coleman’s book by reference to the terms of the Guidelines in favour of a comparison with the assumed evaluation of another book (Mr. Finlay's) by the respondents is unreasonable and/or a mistaken view of the law; (v) That the Appeal Commissioner's conclusion that he had to apply the terms of the Taxpayers Charter rather than the established principle of giving words their ordinary meaning, as per Kiernan, is unreasonable and/or a mistaken view of the law; (vi) On any reasonable reading of the book it consists of a series of political gaffes or blunders and the author’s comments on them - it cannot reasonably be considered to be biographical in nature or content. 22. The Revenue Commissioners indicate that although the case stated does not address the second leg of the test for artists exemption, i.e. the question whether the book has cultural or artistic merit, it appears that the Appeal Commissioner had ruled in the appellant’s favour on that and it is not in issue. Mr. Coleman’s case 24. Mr. Coleman argued that the book was both “original and creative” and had “cultural or artistic merit”. His arguments as to artistic or cultural merit are unnecessary to recite as this had been determined in his favour and was not at issue in this appeal. Mr Coleman argued that it was original in that the type of book had not been written before. He said that it required extensive research of Dáil debates going back to the foundation of the State, newspaper files from the 1920s onwards and research of archives and biographies. I think it fair to observe that it was not contested that a large amount of research had gone into the book. Mr. Coleman submitted that it was creative especially as it brought humour and lightness to what was at times very heavyweight material. He argued that the goal was to draw in readers who might only have a passing interest in politics and political history. Mr. Coleman referenced the lay out of the book in terms of background, gaffe and impact which, he said, was designed to make it accessible to readers. He further submitted that the book was a combination of fact, anecdote and analysis aimed at giving the reader an enjoyable and accessible account of the major “gaffes” committed by the country’s politicians since the foundation of the state. 25. Mr. Coleman argued that the Appeal Commissioner’s finding that this book was a “set of mini-biographies” was correct. He contended that if there was a survey of people not many of them would be able to identify some or all of the characters he referenced, for example: “Ernest Blythe, Joe Jacob, John Jinks, Patrick Connolly, Paddy Donegan, Jim Tully, Gerry Collins, Oliver J. Flanagan or Peter Brooke”. He submitted that these people had played roles of varying importance in Irish political history. 26. Mr. Coleman argued that the book did not offer a traditional biography of these people and the other 37 politicians featured. He said that it didn’t talk of place of birth and upbringing but that each chapter, each mini-biography, does provide context and background that establishes their import to the political set-up of the day. He referenced the “background” chapter on Ernest Blythe. This gave certain detail of Blythe’s role in the activities of the Irish Volunteers and his subsequent ministerial roles as well as his later service in the Seanad and his significant career with the Abbey Theatre. 27. Mr. Coleman argued strongly that his book was pioneering as there was no generally accepted understanding of the subject matter. As an example, he queried how many people, even those active in politics, were aware that just one vote had prevented the leader of the Labour Party from becoming President of the Executive Council (Taoiseach in today’s terms) in 1927. He further argued that the book is pioneering because it introduces understanding of the subject matter to an audience that would not have had access to that information in any practical matter. He finally submitted that that was genuinely “ground breaking”. Conclusion 29. The approach the High Court must take to that task has been laid down by the Supreme Court in Ó Culacháin v. McMullen Brothers. I must respect a finding of primary fact unless there is no evidence to support it. This case is unusual in so far as the Appeal Commissioner made a finding of fact which he subsequently set aside in favour of another “reasonable construction”. At para. 18 of the case stated, the Appeal Commissioner correctly quoted the law, i.e that words are to be given their ordinary meaning. He then held that the book was “not an actual biography in the normal sense of the word”. 30. If one regards the above finding, i.e. it is not a biography in the normal sense of the word, as a finding of primary fact, then the Appeal Commissioner must be incorrect in law in holding that it was a biography within the meaning of the Guidelines then in force. In considering whether it is a finding of primary fact it is necessary to consider the overall approach the Appeal Commissioner adopted in reaching his conclusion that the book was biography. The Appeal Commissioner said that this finding of fact was on “a strict view” of the Guidelines. Despite this he went on to make his determination by reference to “a fairly free interpretation of the guidelines” that he believed the Revenue Commissioners had taken in another case. On the basis of the decision in Doorley, the Appeal Commissioner was obliged to give effect to the clear and express terms of the legislation in considering the artist’s exemption from income tax. The liability to income tax having been established, that exemption must be brought within the letter of the Act of 1997 and the Guidelines made thereunder as interpreted by the established canons of construction. There was no basis in law for adopting any other approach to the interpretation of the Act and the Statutes. 31. In adopting his “reasonable construction” test by perceived comparison, the Appeals Commissioner did not apply any established method of statutory interpretation. Instead the Appeal Commissioner sought to apply s.195 and the Guidelines to Mr. Coleman’s book on the basis that the appellant was entitled to consistent treatment from the Revenue Commissioners and that he, as Appeals Commissioner, had to apply the Taxpayers’ Charter (more properly the Revenue Commissioner’s Customer Service Charter) to Mr. Coleman. 32. The Taxpayers’ Charter says that the Revenue Commissioners will administer the law fairly, reasonably and consistently. Obligations of the Revenue Commissioners with respect to the Taxpayers’ Charter were considered in the case of Keogh v. Criminal Assets Bureau [2004] IESC 32, [2004] 2 IR 159. In that case the Supreme Court observed that the Revenue Commissioners had specifically accepted that fair procedures required that full, accurate and timely information was given in respect of a notoriously difficult code. In the circumstances, the Supreme Court held that there was a failure of fair procedures in failing to inform the taxpayer of his statutory right of appeal. Importantly, the Supreme Court noted that the Charter contained many praiseworthy statements of an aspirational nature and that statements of that nature would not normally give rise to rights. In the Keogh case it was held that the Revenue Commissioners had taken on a duty to inform taxpayers of certain matters but had not complied with it. It was in that sense that the Taxpayers’ Charter was applicable to the matter at issue in that case. 33. Undoubtedly the Revenue Commissioners should apply the law in a fair, reasonable and consistent manner. That will be the result of applying the relevant statutory provisions as to tax due or exemption applicable. In my opinion, a commitment to fair, reasonable and consistent application of the law does not permit the clear provisions of a statute to be disregarded in favour of perceived consistency. Thus, the focus must always be on the implementation of the statutory code rather than a comparative analysis of cases. Otherwise, the result is endless comparison of cases in a heedless pursuit of supposed consistency and reasonableness to the exclusion of the actual implementation of the statutory code. Taxpayers’ rights will be fully protected in a decision-making system which applies the law regarding the duty to pay tax or the right to avail of exemptions as set out in the statutory code. 34. In this case, the Revenue Commissioners and Appeal Commissioner were bound by the provisions of s. 195 of the Act of 1997 to apply the section and the Guidelines made thereunder. To disapply the clear and ordinary meaning of the words therein in favour of something called a “similar approach” that it was believed by the Appeal Commissioner that the Revenue Commissioners had taken with respect to Mr. Finlay’s book, is wrong in law. In this case, the comparator book was not even one which had been viewed as biography - that book had been viewed as fiction. It was the decision to determine that Mr. Finlay’s book was fiction that the Appeal Commissioner viewed as “a fairly free interpretation” of the Guidelines. Neither that book, nor any other book except Foot in Mouth, was before the Appeal Commissioner for determination as to qualification for the artist’s exemption. His only function was to consider whether Foot in Mouth qualified under s.195 of the Act of 1997 and the Guidelines. 35. Mr. Coleman urged upon the Court that the finding that the book was a set of mini-biographies was a correct one. The Revenue Commissioners appeared to dispute whether any book which dealt with more that one person could ever be a biography. The Revenue Commissioners argument does not appear to take into account that biography as a concept could encompass in-depth biographical writing about a number of persons from perhaps a particular era. Similarly, s.18 (1) of the Interpretation Act 2005, provides that a word importing the singular shall be read as importing the plural. That being said, the Appeal Commissioner’s reference to the book being mini-biography was made in the context of a paragraph where he was making a comparison with Mr. Finlay’s book. In particular, he said that by adopting a similar approach to Mr. Finlay’s book as he believed the Revenue Commissioners had, he was satisfied that “a reasonable construction of the category was of biography.” It is clear that his construction of the book as mini-biography is based upon his view of the approach the Revenue Commissioners had taken elsewhere, i.e. the Revenue Commissioners had “a fairly free interpretation of the guidelines”. Thus, even if there was to be a finding that the ordinary meaning of the word biography, could include a book dealing with more than a single person it would not dispose of the issue here. The problem lies in the manner in which the Appeal Commissioner disapplied his finding of fact that this was not biography in the normal sense. 36. In my opinion, the Appeal Commissioner’s original clear finding of fact, to wit, that Foot in Mouth, was not an actual biography in the normal sense of that word must stand. It is a primary finding of fact. There is nothing else in the statutory scheme that raises even a doubt as to any other possible interpretation that might be placed upon the word biography. The plain and ordinary meaning of biography is as a matter of law the correct interpretation. The Appeal Commissioner was not entitled to expand or alter the meaning of biography by reference to what he perceived as free interpretations of the statutory code by the Revenue Commissioners in another taxpayer’s case. The Revenue Commissioners’ commitment in the Taxpayers’ Charter to fairness, reasonableness and consistency cannot be applied in a manner which overrides their duty and the Appeal Commissioner’s duty to give effect to the plain meaning of a word in a statutory code which restricts an exemption from tax. 37. It may well be that the Appeal Commissioner believed that his approach would prevent arbitrariness of application of the statutory code. On the contrary, for an Appeal Commissioner to apply a test of “consistency” on the basis of an approach it is “believed” that the Revenue Commissioners took, over the application of the clear and ordinary terms of the statutory code, would produce the very arbitrariness that law and justice abhor. 38. On the basis of the primary finding of fact of the Appeal Commissioner that Mr. Coleman’s book is not a biography, it is clear that it was incorrect in law for him to then hold that Mr. Coleman was entitled to an artist’s exemption on the basis of the book being biography under Appendix A of the Guidelines. In light of my determination, it is not necessary to consider whether the Appeal Commissioner was correct in law in holding that the book was a pioneering work as outlined in paragraph 9 (ii) of the Guidelines. 39. In light of the foregoing, the answer I give to the question of law posed by the Appeal Commissioner for the determination of this Court is no. |