Wednesday 28 September 2016

Lowry wants trial for alleged tax offences halted after 'vindication'

Published 13/01/2016 | 02:30

Mr Lowry claims that matters arose after the DPP made a decision to prosecute him that justify his prosecution being stopped. Photo: Gerry Mooney
Mr Lowry claims that matters arose after the DPP made a decision to prosecute him that justify his prosecution being stopped. Photo: Gerry Mooney

Independent TD Michael Lowry claims the DPP is pursuing an "improper policy" of prosecuting him over alleged tax and company law offences after he was "vindicated" by a ruling from the Office of the Revenue Appeals Commissioners (AC), which said he had no personal income tax liability.

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Mr Lowry, who wants the High Court to issue an order prohibiting his trial, claims that matters arose after the DPP made a decision to prosecute him that justify his prosecution being stopped.

The DPP has brought five separate counts against the former Fine Gael minister arising out of a payment the prosecution says was diverted in 2002 from Mr Lowry's refrigeration company Garuda Ltd to a trust in the Isle of Man held by property consultant Kevin Phelan.

However, Mr Lowry says that the alleged offences arose out of a €372,000 commission payment due to Garuda by Norpe OY, a Finnish company, that should have been treated for tax purposes in the company's 2002 accounts- but was "self-corrected" and declared in the 2007 accounts.

Mr Lowry, of Glenreigh, Holycross, Tipperary, is charged with a sole count of deliberately filing an incorrect income tax return in 2002 and three counts of filing incorrect returns in relation to corporation tax.

In November 2014, a new count under company law, relating to an alleged failure to keep proper books of account, was added by the DPP.

Mr Lowry's trial, set to proceed before a Circuit Criminal Court jury in Dublin rather than Tipperary - where the poll-topping TD wants to be tried if his prosecution is not halted - remains stayed pending the outcome of the High Court judicial review action.

The former Fine Gael Minister, who was present in court yesterday, claims his trial should not proceed because the Appeals Commissioners ruled last June that he has no personal income tax liability arising from the disputed €372,000 payment.

Mr Lowry, whom the High Court separately found yesterday had waived his right to privacy in respect of the AC's decision, a central plank in his judicial review action, also said that the commissioners found that Garuda had no PAYE or PRSI liability.

Liability

Moving the bid to halt Mr Lowry's prosecution, the TD's Senior Counsel Patrick Treacy said that the only outstanding liability is a surcharge corporate tax liability of almost €2,400.

Mr Treacy said Mr Lowry, who accepts there was an invoice recording the commission sales payment in December 2006, is being prosecuted for "self-declaring" the 2002 payment in the 2007 accounts.

Yesterday, Mr Justice Seamus Noonan heard that Mr Lowry had directed that the €372,000 payment be paid in 2007 and had paid tax on it.

Mr Treacy said the surcharge liability arose out of an underpayment in 2007 due to errors including the correct rate of conversion from Sterling.

If he does not succeed in halting his trial, Mr Lowry wants his prosecution postponed pending the outcome of an investigation into the alleged disclosure of information about his tax affairs as well as the completion of an inquiry by the Garda Fraud Bureau into a "dossier" compiled by a civil servant in respect of alleged non-prosecution of political figures for tax evasion.

Mr Lowry, who claims a decision to transfer his trial to Dublin amounts to a punishment for his popularity with voters in Tipperary, also wants an order quashing an earlier ruling directing his trial in the capital.

Mr Treacy yesterday set out four strands to Mr Lowry's challenge.

These include the trial transfer and the "unfair" and "unjust" decision by the DPP to continue the prosecution in circumstances where Mr Lowry was found, by the AC, to have no personal income tax liability.

Mr Treacy also claimed "irredeemable" harm as the result of an alleged "unparalleled and savage" media campaign led by the Sunday Independent on foot of a criminal complaint about Mr Lowry made by journalist Elaine Byrne to the Criminal Assets Bureau.

The State is set, separately, to appeal the AC's ruling.

The hearing continues.

Irish Independent

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