Sunday, February 12 2012

Analysis

No written record of Taoiseach's 'informal' tax advice

While Bertie Ahern does not have a tax clearance cert, he isn't non tax compliant, writes Jody Corcoran

LETTERS FROM THE TAXMAN: The Revenue Commissioners wrote to Taoiseach Bertie Ahern after his interview with Bryan Dobson on RTE's Six One News

LETTERS FROM THE TAXMAN: The Revenue Commissioners wrote to Taoiseach Bertie Ahern after his interview with Bryan Dobson on RTE's Six One News

Sunday January 20 2008

On May 13, 2007, during the General Election, the Taoiseach provided written answers to a series of questions from the Sunday Independent relating to his finances.

At the time, I was aware Mr Ahern was in ongoing contact with the Revenue Commissioners, so I posed a specific question in relation to that. In fact, at that stage, Mr Ahern had been in discussion with the taxman for almost nine months.

In reply, he revealed for the first time that he had made a provisional payment to the Revenue Commissioners to cover any liability which could arise in relation to funds -- loans and gifts -- he had received from friends and associates, in Dublin and Manchester, in 1993 and 1994.

It was a significant admission; it meant that in the midst of seeking a third term, the Taoiseach had acknowledged that he might not be tax compliant. The alternative Government, therefore, knew even then, by and large, what it knows now.

But in May 2007, Fine Gael and Labour effectively ignored the revelation, unsure what to do.

If the Opposition was in the kind of bullish form then that it is now, it would have sought political advantage from the disclosure.

They weren't, they didn't; they bottled it, and Mr Ahern won the day.

In recent weeks, Fine Gael and Labour have returned to the issue.

For the record, this is what the Taoiseach told the Sunday Independent on May 13, 2007: "As I explained last September I was professionally advised on possible tax issues relating to the payments.

"To avoid any ambiguities or misinterpretations, I have ensured that an independent tax adviser on my behalf has provided all details to the Revenue.

"Indeed, on his advice, I made a provisional payment to cover any liability which could arise. I understand this was accepted by the Revenue pending final agreement as to such liability."

Nothing new, then, to this current controversy, you may think. And you would be right, up to a point...

But, alas, the "ambiguities and misinterpretations" that Mr Ahern had sought to avoid are still very much in evidence, emanating from Fine Gael and Labour as much as from himself. But that's politics, folks.

So let us try to bring some clarity.

I intend to concentrate only on the issue of payments received by Mr Ahern in 1993 and 1994, and to leave aside other matters under discussion with the Revenue, such as the tax implication, if any, of his use of St Luke's as a home for a period in the early Nineties.

To do so, I will have to disclose, for the first time, further content of some of Mr Ahern's correspondence with the Revenue Commissioners.

The conclusion I come to is that while the Taoiseach does not have a tax clearance certificate, he is not non tax compliant.

The upshot, I believe, is that Mr Ahern will eventually get a certificate -- not in time to meet the deadline next month -- and, perhaps, have returned to him a hefty chunk of the €70,000 he has placed on account with Revenue.

It seems unlikely, too, that the Standards in Public Office Commission will find grounds to censure the Taoiseach, on the basis of a complaint lodged by Fine Gael yesterday, effectively, that Mr Ahern was not tax compliant when he declared he was after the 2002 General Election.

On October 10, 2006, Caoimhin MacGearraidh, district manager of the Revenue Commissioners, wrote to the Taoiseach at his home in Drumcondra, following Mr Ahern's interview with RTE's Bryan Dobson and subsequent Dail statement.

He said: "During the course of the Dail debates you mentioned that you had sought the advice of a tax adviser. As I have no record of any such adviser acting on your behalf..."

But there is no reason why Mr MacGearraidh should, necessarily, have a record of an adviser acting on behalf of Mr Ahern. Mr Ahern's advice was then, and is now, that there was no tax liability in relation to the funds he received in 1993 and 1994 and, therefore, he believed, there was no reason to contact the Revenue Commissioners.

Mr MacGearraidh then addressed the Manchester payment.

He wrote: "During the course of the Dail Debate on the issue on 27 September last you stated that 'I dealt with this properly in terms of taxes'. Later during the course of the same debate you stated 'In Manchester as I said, I dealt with a range of issues ... namely my taxes'. I can find no record of this issue having been addressed previously and would ask you to let me know how and when the taxation aspect of this payment was dealt with."

Again, it is worth noting that no such record exists because, at that stage, Mr Ahern and his tax advisers did not believe there was a liability.

The taxman continued: "During the course of the Dail debates you stated that 'The funds were from persons based in the Manchester area who are not based in Ireland and therefore the sums are not chargeable to Gift Tax'.

Mr MacGearraidh said: "I am not clear as to what the phrase 'based in Manchester' has for taxation purposes. Perhaps you would elaborate on that also."

Having raised a doubt, therefore, over Mr Ahern's belief that no tax was owed on the Manchester gifts, Mr MacGearraidh went on to seek information in relation to the circumstances surrounding the payment.

Then he turned his attention to the other payments received by Mr Ahern, the sums of £22,500 and £16,500, from his 'dig out' pals in Dublin.

The taxman began: "Again, during the course of the Dail Debate on the 27 September last you stated that you 'checked the matter... with the tax authorities long ago'. I can find no record of the taxation issues or otherwise having been raised with the Revenue."

On this issue, then, Mr Ahern is on less certain ground. The ambiguity of his language is exposed.

It is true he said he had checked with the "tax authorities", and the tax authorities are universally understood to mean the Revenue Commissioners.

Therefore, Mr Ahern told the Dail on September 27, 2006, that he had sought the advice of a "tax adviser" in relation to the Manchester payment, and that he had checked with the "tax authorities" in relation to the Dublin payments.

Clearly, the Taoiseach had made no such checks with the tax authorities.

Is it possible, though, considering the Taoiseach's unique ability to mangle the English language, that he had meant to say he had consulted with "authorities on tax", ie, his tax advisers, in relation to the Dublin 'dig outs'?

It is difficult to understand why would he tell the Dail on September 27, 2006, that he had sought the advice of a "tax adviser" in relation to the Manchester payment, and in the same speech, say he had sought the advice of the "tax authorities" in relation to the Dublin payments, or loans.

Ambiguities, indeed...

In his October 6, 2006, letter, Mr MacGearraidh went on to seek further details on the circumstances of the Dublin payments.

Perhaps, crucially, he sought details of written and/or verbal agreements in relation to the schedule of repayments, time limits and the rate of interest payable of what Mr Ahern had said were loans.

Eleven days later, Mr Ahern's accountant, Des Peelo, wrote in reply, attaching a memorandum to his covering letter.

In relation to the Manchester gifts, he said the exact amount of sterling £'s was not known. He said that at the then sterling/punt exchange rate of 0.9883, the sterling equivalent of Irish £7,936.49 was circa sterling £7,485.61.

Mr Peelo said: "To the best of Mr Ahern's recollection the gifts were cash sterling £'s, though there may have been some cheques included."

He said that Mr Ahern did seek personal financial and tax advice from time-to-time. "For example, tax advice was sought in the context of his marital legal separation agreement concluded in early December '93."

In relation to the Dublin loans, Mr Peelo said: "As already explained elsewhere, at that time (ie December '93), Mr Ahern was initially offered a fundraising dinner by his friends. On refusing this offer, his friends expressed wishes to instead give him money, which he also declined. On being pressed on the matter, he finally accepted loans totalling £22,500 from eight friends on the firm understanding that the monies were loans repayable with interest.

"The independent tax advice given to Mr Ahern at this time (ie Dec '93) was that there was no tax liabilities re such loans, such advice including the proviso that the loans should be repaid with interest.

"In October '94, additional loans totalling £16,500 from four friends were accepted on the same basis. These amounts were also unsolicited and represented loans from friends towards building-up Mr Ahern's personal finances re the possible purchase of a house. This £16,500 was lodged together with the gifts totalling £7,938 from the Manchester function. Somebody, unknown and unsolicited by Mr Ahern, had apparently told the Manchester people attending the function of his straitened financial circumstances.

"Mr Ahern was concerned at the time re the additional loans and re the gifts from the Manchester function. He sought independent personal financial advice at this time re his general financial position (also bearing in mind the political uncertainty of that time, ie, circa Nov '94 to Dec '94) and the question of tax was again considered in that context. The then gift tax position was generally known to Mr Ahern and was confirmed to him at the time by the independent tax advice. Gifts from outside the State were not normally taxable and there was the individual £500 exemption, as well as the general gift threshold of £10,000 (indexed then to over £11,000). It was in the foregoing contexts in which Mr Ahern made the comments reported elsewhere re his tax position. There was no intention by Mr Ahern to mislead or to give incomplete information in this regard. The reference to 'tax authorities' was intended to mean authorities on tax (ie, his tax advisers)."

On the potentially crucial issue of intended repayment of the Dublin loans, Mr Peelo stated: "Verbal agreements to repay with interest. No specific terms."

(At the end of 2006 -- 13 years after they were received -- Mr Ahern did repay these loans with interest. He says he had tried by repay them earlier, but his 'dig out' pals would not accept repayment.)

On November 10, 2006, Mr MacGearraidh wrote again to Mr Peelo, and there followed a meeting between the various parties on November 20.

In his letter, the taxman was still querying the significance in terms of taxation or otherwise of the phrase "people based in Manchester"; he revealed that he intended to examine the Internal Revenue Audit of the two deceased donors who had given Mr Ahern a 'dig out', and he also attached a Gift Tax return in respect of gifts received by Mr Ahern's daughters in 2005 and 2006, stating that it was due on August 11 that year and was, therefore, three months overdue.

On December 15, 2006, Mr Peelo replied, anxious to place the following on record: "We confirm again, on behalf of our client, that full and prompt co-operation in all respects will be provided."

But as is the case in relation to all of Mr Ahern's financial affairs at this time, the use of ambiguous language was again evident from Mr Peelo's second letter.

In October, 2006, Mr Ahern's accountant told the Revenue that the Taoiseach had received "independent tax advice", and "independent personal financial advice". In May, 2007, Mr Ahern had told the Sunday Independent: "I was professionally advised on possible tax issues relating to the payments."

Now, however, Mr Peelo explained that the tax advice received by Mr Ahern was "informal".

Therefore, no written record exists; furthermore, the taxman was told, there was no documentary evidence in relation to the 'dig outs' as this matter was also handled in an "informal" manner.

It seems, then, that the Revenue Commissioners are in a very similar position to the Mahon tribunal.

Without evidence to the contrary, Mr Ahern's account of the Dublin loans and Manchester gifts still hangs together.

Whatever about the findings Judge Mahon may be minded to make -- and, at this stage, that's anybody's guess -- it seems likely the taxman, without evidence to the contrary, must accept the Taoiseach's account, and take his pound of flesh accordingly, if indeed such a pound is owed.

 
 
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