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Taxation and the Right to Property: An analysis of the case law, doctrines and jurisprudential theory justifying taxation as a limit upon the property right.

Taxation and the Right to Property: An analysis of the case law, doctrines and jurisprudential theory justifying taxation as a limit upon the property right.

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An essay for the 2011 Undergraduate Awards Competition by Kieran O'Sullivan. Originally submitted for Revenue Law at University College Cork, with lecturer Dr. Bénédicte Sage-Fuller in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Kieran O'Sullivan. Originally submitted for Revenue Law at University College Cork, with lecturer Dr. Bénédicte Sage-Fuller in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
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10/27/2013

 
Taxation and the Right to Property: An analysis of the case law, doctrines and jurisprudential theory justifying taxation as a limit upon the property right.
Introduction
 The modern concept of taxation, and its justification, is a matter whichphilosophers and, indeed, the judiciary have grappled with since antiquity. It iscommonly postulated that a ‘good’ tax system is one which balances theproperty rights of the taxpayer with the duty of the State, and indeed thetaxpayer himself, to promote justice in society. The corollary of this is that a taxsystem which does not achieve social justice must constitute an invalidinfringement of the property rights protected by Bunreacht na hÉireann. In thispaper, I shall first look to the legal approach to this matter, with reference to jurisprudence and doctrinal arguments. I will then apply legal theory to explainthe origins of the State’s duty. Before setting on this course however, I must firstidentify the provisions which set out the extent of the property right.
Property Rights in Bunreacht na hÉireann
 The right to property is set out in the Constitution in Article 40.3 and Article 43.Article 40.3 of the Constitution provides that:“1° The State guarantees in its laws to respect, and, as far as practicable,by its laws to defend and vindicate the personal rights of the citizen.1
 
2° The State shall, in particular, by its laws protect as best it may fromunjust attack and, in the case of injustice done, vindicate the life, person,good name, and property rights of every citizen.”For its part, Article 43 provides that:“1° The State acknowledges that man, in virtue of his rational being, hasthe natural right, antecedent to positive law, to the private ownership of external goods....2. The State recognises, however, that the exercise of the rightsmentioned in the foregoing provisions of this Article ought, in civil society,to be regulated by the principles of social justice.2° The State, accordingly, may as occasion requires delimit by law theexercise of the said rights with a view to reconciling their exercise with theexigencies of the common good.”What is clear from the foregoing is that the property right is a qualified one,subject as it is to “the principles of social justice” and “the exigencies of thecommon good”. Indeed, the equality provision is itself qualified, as was pointedout by Justice Barrington in the High Court case of 
Brennan v Attorney General
1
.
1
[1983] ILRM 449 [High Court]; [1984] ILRM 355 [Supreme Court] [hereinafter
Brennan
]
2
 
Plainly then, if taxation is to constitute an excusable infringement upon theproperty rights protected by the Constitution, its justification must fall within thesomewhat nebulous confines of the principles of social justice and the exigenciesof the common good. As will be illustrated, it is necessary to take account of bothcase law and theory in order to understand the nature and extent of thesedoctrines.
The balance between Property Rights and Taxation in Irish Case Lawand Doctrine
 The
Brennan
case and the case of 
Madigan
 
v Attorney General
2
are two leadingcases which illustrate the interaction between taxation and property rights. In
Brennan
, a number of Wexford farmers sought to challenge the rating systembased on “
the Griffith valuation
” which was conducted over 14 years from 1852.As farming patterns had changed since the valuation, it was no longer reflectiveof actual land value. In fact, as land values had been inflating over the period inwhich the valuation was taking place, it was scarcely reflective of lands valued inthe early stages of the process by the time it had been completed.Before ruling that this valuation system was inconsistent with the Constitution,Barrington J noted,
obiter 
, that “so far as revenue and fiscal statutes areconcerned I would agree that the Courts should be extremely slow to interfere”
3
.He ruled however, that the “the whole system [was] shot through with
2
[1986] ILRM 136 [hereinafter
Madigan
]
3
 
Brennan
[High Court] at 478
3

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