"AS CHAIRMAN of the Revenue Commissioners, you presided over the biggest tax settlement in the history of the State with the Bailey brothers of Bovale. Do you find it difficult to deal with people who have a history of cheating the taxpayer?"
That's a question I asked Nama chairman Frank Daly when I interviewed him in July of last year for the Sunday Independent.
To be fair to Frank Daly, he wasn't evasive in his answer. He said: "Of course, I would have met some of the people who are in Nama in my previous life. Again it's back to an assessment, where are they now, in their minds, in their attitudes, their level of cooperation."
Where precisely Tom and Mick Bailey are with Daly's agency today in view of Ms Justice Mary Finlay Geoghegan's ruling last Monday that they should be disqualified as directors for seven years is another question altogether.
Nama may justify its decision to work consensually with, and support the development activities of Bovale and its associated companies in the interests of getting the best return for the taxpayer, but it is now faced with a serious conundrum on the level of involvement the Bailey brothers should be allowed to have in that process in the future, or whether they should be involved at all.
For even though Ms Justice Finlay Geoghegan reduced the Meath-based developers period of disqualification from 14 to seven years, accepting amongst other mitigating factors that their fraud in relation to the Revenue Commissioners had taken place 15 years ago and that they have been tax compliant since 2001, she was positively scathing in her judgment of their misconduct.
In her findings, the judge noted, for instance, how the Baileys had, as officers of Bovale, been: "guilty of fraud ... by reason of the systematic scheme of false accounting and failure to account in its payroll records for remuneration to the respondents and associated PAYE/PRSI liabilities in respect of the two years ended June 30, 1998. The understated gross remuneration in the two years exceeded IR£6m (€7.6m)."
In arriving at her decision, she also noted the conclusions of chartered accountant Peter Lacy, a managing partner in PWC and head of the PWC team appointed by the Director of Corporate Enforcement to carry out an examination of Bovale's affairs for the two years in which the revenue fraud had taken place.
Having conducted that investigation, Lacy said of the Bailey brothers' misconduct: "During my career in public accounting in Ireland over the past 35 years, I have not encountered a failure to maintain proper books of account that compares with the extent and gravity of the failures in respect of Bovale for the two years ended June 30, 1998."
Following disclosures in December 2000, Bovale and the Bailey brothers reached a tax settlement with the Revenue Commissioners, which ultimately resulted in a record settlement in 2006 of €22.17m, of which €12.5m was tax and the remainder interest and penalties.
Potentially, it could have been worse had the Director of Corporate Enforcement been permitted by the courts to consider "wrongdoing covering the entirety of the period from 1998 to 2000" when his office took its original civil law case in 2006 in which it sought to have the Baileys disqualified as directors.
The brothers objected to much of the evidence from that period being considered on the basis that it was hearsay or opinion, which was based in part on the findings of the planning tribunal which could not be used against them in court. The dispute on the matter and the obtaining of a warrant which had been used to search Bovale's offices went all the way to the Supreme Court which ruled in their favour in July 2011.
While there is little point now in dredging up the findings of the planning tribunal against the Bailey brothers, it is, however, worth recalling that in its interim report in 2002, the tribunal found that Mick Bailey had made a corrupt payment to former Fianna Fail minister Ray Burke, and in 2005 that he had made a corrupt payment to Dublin assistant city and county manager George Redmond.
The Baileys' settlement with the Revenue Commissioners in 2006 is a separate matter. When looking at this, it is worth remembering that this settlement -- the largest in the history of the State -- was agreed during Frank Daly's tenure as chairman of the Revenue Commissioners. The decision not to prosecute the Bailey brothers was also taken on Daly's watch.
Defending his and the Revenue's actions in the matter before the Dail's Public Accounts Committee on November 9, 2006, Daly said: "In general, it is our policy in a case of this scale to prosecute. Nobody should doubt this. We would collect the money after prosecution or at the same time if possible. While I cannot talk in detail about a particular case, cases of that scale, even in the past, would always have been examined with a view to prosecution. However, one would have regard to when the evasion took place, the timeframe, the length of time that has elapsed, the evidence available and the likelihood of getting people to co-operate in the prosecution process."
Given the obstacles in the way of any prosecution cited by Daly then, the Revenue's reluctance to pursue the Baileys through the courts may well be understood, or even excused by some.
In his latest incarnation as chairman of Nama, Frank Daly is now faced with a fresh -- though not unrelated -- dilemma when it comes to the Bailey brothers.
While Ms Justice Finlay Geoghegan accepted in her judgment last Monday that one of the unusual features of the application from the Director of Corporate Enforcement to have the Baileys disqualified was the delay in having it heard, that delay did not make it any less serious a matter in her eyes.
Notwithstanding the Baileys' compliance with Revenue for the past 12 years, she noted the primary purpose of an order for disqualification was "not to punish the individual but to protect the public against future conduct of companies by persons whose past record has shown them to be a danger to creditors and others".
Daly and his colleagues at Nama should give that statement careful consideration before deciding whether or not they should row in behind the Bailey brothers' application on January 20 to limit the court's orders against them so they can continue to deal with the State-owned agency.
While it's already been reported that the absence of support from Nama would see the Baileys' businesses in Ireland and the UK facing the threat of collapse, there's nothing to prevent the agency from continuing to finance Bovale's activities without Tom and Mick at the helm.