State's own version of Catch-22

Sometimes a phrase becomes a cliche because it is true. Wrapped up in an all-too-familiar formula of words is a reality to which we have become glumly resigned. So it is with the notion that in Ireland there is one law for the strong and another for the weak. Those who care about democracy must do to such political cliches what good writers do to literary ones, reanimate them with living detail.

This is what the Ombudsman, Mr Kevin Murphy, and his staff have been doing. Last week, in a little noticed report, they put flesh on the bones of how a key part of the State, the Revenue Commissioners, take different attitudes to different kinds of people.

The report doesn't mention Ansbacher Cayman, or bogus non-resident accounts, or Goodman International, or National Irish Bank, or any of the other array of big-time tax scams for which no one paid a heavy price. But if you read it with those in mind, its dry, careful language takes on outrageous tones.

It opens in the west of Ireland in March 1997. A man referred to as Mr Smith (all names have been changed) looks after his severely disabled daughter at home. She has recently suffered a mental breakdown and is on medication. It has been recommended that she spend some time in a local nursing home. Her parents regularly take her out for day trips in the car, adapted for her use.

Out of the blue, Mr Smith gets a terrifying letter from the Revenue. It demands that he hand over £6,000 within a fortnight and warns that his car is "liable to seizure". Mr Smith had a few months earlier been exempted from taxes on the specially-adapted car.

Intrepid investigations have uncovered the fact that his daughter is not actually living at home, although in fact she still spends much of her time there. Thus he has become, as far as the Revenue is concerned, a tax-evader.

The 1989 Finance Act allowed drivers with disabilities to buy or adapt a car for their own use without having to pay car taxes (VAT and Vehicle Registration Tax). In 1994 new regulations extended the scheme to family members who bought or adapted a car for the use of a person with disabilities, provided they were "residing with and responsible for the transportation of that disabled passenger".

The qualification about residency was put in for fear someone might adapt their car for disabled use while not in fact using it for a disabled passenger, a possibility that seems rather remote when the cost of the adaptations is taken into account. We might know how realistic such fears really are if this clause had been debated in the Oireachtas.

But it wasn't. This is yet another example of legislation being substantially altered by the addition of regulations for which there is no democratic mandate. The relevant Act, the Finance Act of 1989, says nothing about residency. So the rule that the Revenue Commissioners started to apply with such severity to people like Mr Smith is one created by civil servants themselves.

Even the official who sent the threatening letter to Mr Smith clearly did not believe that the poor man was doing anything wrong. He pointed out in an internal memo that the Revenue had the power to use its discretion about the residency requirement, that Mr Smith actually "transported his daughter fairly regularly", and that it was not unreasonable for Mr Smith to have given his own home as his daughter's place of residence on the application forms since he would regard it as her family home.

YET the common sense and humanity displayed in this memo had no place in the scheme of things for little people like Mr Smith. The truly Kafkaesque twist, however, was still to follow.

When he appealed to the Revenue Appeals Commissioner, pointing out that the Revenue were given discretionary powers in exceptional cases, he was turned down on the basis that the use of a discretionary power could not be appealed.

When the Ombudsman asked the Revenue what exceptional circumstances they would take into account, he was told that "by their very nature exceptional circumstances were circumstances that do not arise on a regular basis and as such cannot be made the subject of predetermined criteria". Here is our very own version of Catch-22: we can't tell you what exceptional circumstances are because if we knew what they are they wouldn't be exceptional.

As it turned out, Mr Smith was not alone, and the Ombudsman's report details a number of similar cases. In most, the unfortunate people involved were threatened with having their cars seized and with being prosecuted. The bitter irony, of course, is that the very issue on which these people were snagged, residency, is precisely the one on which people in very different circumstances were getting an easy ride.

That people like Mr Smith's daughter were being defined essentially as bogus non-residents is one of the reasons satire has no chance in Ireland. And while people with disabilities were losing the benefits of residency while they were away in hospitals or nursing homes, millionaire tax exiles can spend 183 days a year in Ireland without being regarded as resident. Long live the Republic.

fotoole@irish-times.ie