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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Doyle v. An Taoiseach [1985] IESC 1; [1986] ILRM 693 (29th March, 1985) URL: http://www.bailii.org/ie/cases/IESC/1985/1.html Cite as: [1985] IESC 1, [1986] ILRM 693 |
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1. This
is an appeal by the defendants against the order of Barrington J which, in
effect, held invalid a 2% levy on live bovine animals imposed for the period
between May and December 1979. In the comprehensive and careful judgment of
Barrington J, which followed on a reference by him under Article 177 of the
Treaty of Rome to the Court of Justice of the European Communities, all
relevant aspects of the case, under both Community and domestic law, were dealt
with. The arguments addressed to this Court were not so wide and fell under
three main headings:-
2. Because
of the conclusion I reach as to (2), I do not find it necessary to express an
opinion as to the
ultra
vires
arguments
under (1). I assume for the purposes of this judgment that the statutory
instruments were not
ultra
vires
in
any of the respects alleged. I treat them, without necessarily so holding, as
having been duly made in exercise of the powers expressly delegated by the
relevant sections of the Finance Act 1966.
3. Again
because of the conclusion I reach as to (2), I do not intend to express an
opinion as to the submissions made under (3). In my judgment the dispute
between the parties is susceptible of a conclusive determination under the
domestic law of this State. I consider that a decision on a question of
Community law as envisaged by Article 177 of the Treaty of Rome is not
necessary to enable this Court to give judgment in this case. Just as it is
generally undesirable to decide a case by bringing provisions of the
Constitution into play for the purpose of invalidating an impugned law when the
case may be decided without thus invoking constitutional provisions, so also,
in my opinion, should Community law, which also has the paramount force and
effect of constitutional provisions, not be applied save where necessary for
the decision in the case.
4. The
arguments put forward by the plaintiffs under (2), both in the High Court and
in this Court, rest on the admitted fact that this levy was introduced as a tax
on the prime producer of live cattle, the farmer. The levy of 2% on the value
of an animal was expressed to be payable (with exceptions which are not
relevant) as an excise
duty whenever an animal was slaughtered in the State or exported from the
State. In the case of slaughtered animals, the levy was payable on the day of
slaughter by the proprietor of the slaughter-house. In the case of exported
animals, the levy was payable by the exporter, usually as of the day of export.
In no case was the farmer, on whom the levy was intended to fall as a tax, made
primarily liable. This anomaly led to an unfair and oppressive operation of the
levy, particularly in the case of exporters.
5. It
would seem that if the levy had been made payable at the place and time when
the farmer sold the animal for slaughter or for export, the unfair impact of
the levy on exporters would not have arisen. The levy could have been made
deductible from the sale price at the point of sale. But in the case of
exporters, the sale price was not the basis of the levy; it was the value of
the animal at the pier-head. This value might be, and frequently was, higher
than the sale price. The exporter, therefore, became directly liable for a levy
of an amount which he could not recover in full from the farmer, because he
could not identify the seller of the animal; or, even when he could, because it
would not be practical to seek to recover the full amount of the levy; or
because it was not possible for the exporter to assess at the time of purchase
what the amount of the levy would be when the animal would arrive at the
pier-head.
6. As
I read the evidence given in the High Court, it amply bore out the conclusion
of Barrington J that exporters (and, to a lesser extent, butchers) found it
impossible to pass the amount of the levy on to the prime producer, for whom
the levy was intended as a tax, regardless of whether they purchased at a mart
or by private treaty. Barrington J held that this incidence of the levy was
unreasonable to such an extent as to make the statutory instruments imposing
the levy invalid on the application of the test of reasonableness set out in my
judgment in
Cassidy
v Minister for Industry and Commerce
[1978] IR 297.
7. I
have no doubt that this conclusion was the correct one. Because the delegated
legislation purported to impose a levy as a tax on the prime producers of live
cattle, and because the ordinary operation of the levy in the context of market
forces and other commercial realities had the effect that the prime producer
frequently escaped liability for the levy, in whole or in part, so that it fell
to that extent on the exporter or butcher, such a result was so untargeted,
indiscriminate and unfair, so removed from the primary policy of the levy, that
the delegated legislation must be deemed to have been made in excess of the
impliedly intended scope of the delegation. In that sense, it was
ultra
vires
and
therefore void.
8. Counsel
for the defendants has submitted that any invalidity affecting SI No. 152 of
1979 was cured when it was expressly confirmed by s.79 of the Finance Act 1980.
There might be force in that submission if the period of the operation of the
levy came after the passing of that Act. However, the levy was expressed to
operate only from May to December 1979. S. 79 of the 1980 Act must be read
subject to the presumption that it was intended to operate prospectively and
not retrospectively: see the judgments of this Court in
Hamilton
v. Hamilton
[1982] IR 466. If it were to be held to operate retrospectively, it would have
the effect of making,
ex
post facto,
non-payment
of the levy in 1979 an infringement of the law. Such a result would make s. 79
invalid having regard to Article 15.5 of the Constitution. However, there is
nothing in the 1980 Act that would justify the attribution to Parliament of an
intention that the section was to operate unconstitutionally. In my opinion, s.
79 should be treated as having only prospective effect and therefore having no
application to this case.