The case of Burden v UK, which was decided last month in the European Court of Human Rights, involved a challenge to UK tax legislation. Two sisters sought to apply the same Inheritance Tax exemptions available to married couples and couples in civil partnerships to co-habiting siblings, but failed in their attempt.

The siblings in question, the Burden Sisters took their challenge to the European Court of Human Rights. The recently issued judgment found against the objections of the UK Government as to the sisters' victim status and claims that the sisters had not exhausted domestic remedies. However the main claim by the sisters, that there was a violation of their human rights as a result of not being treated the same as married couples and Civil Partnership coupled for IHT purposes was also dismissed by the Court.

This case was about whether siblings who live together all their lives should have inheritance tax relief as with married couples and civil partnerships. The case centred on the claim that it was unfair that the sisters have to pay this tax when married couples or partners under the Civil Partnership Act are granted an exemption. They claimed that this was a violation of their right to peaceful enjoyment of their possessions, under Article 14 of the EHCR, taken in conjunction with Article 1 of the First Protocol.

An attempt by the House of Lords to insert an amendment into the legislation including family members over the age of thirty who have lived together for more than 12 years within the exemption was rejected by the House of Commons.

It is interesting that the European Court of Human Rights did rule against the UK Government's claim that the Burden Sisters had not exhausted all domestic remedies to the alleged breach. The Court noted that it was aware of the subsidiary nature of its role and that the object and purpose underlying the Convention that rights and freedoms should be secured by the Contracting State within its jurisdiction would be undermined, along with its own capacity to function, if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress. The rule of exhaustion of domestic remedies obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. However in this case, the Court found that the sisters had exhausted all domestic remedies and were within their rights to bring the case before the European Court of Justice.

The sisters lost their case on the judgment by the Grand Chamber that as co-habiting sisters, they could not be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there had been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1.

It is unlikely that such a case would need to be taken in the Irish context by virtue of CATCA s86, which affords the kind of relief the Burden Sisters had sought.

Full details available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=16&portal=hbkm&action=html&highlight=&sessionid=7354776&skin=hudoc-en and a summary Case Report is available in the “Report of Tax Cases” Section of this tax.point.