Sunday 21 January 2018

Michael Lowry urges High Court to halt alleged tax offences trial claiming his right to fair trial has been breached

Michael Lowry
Michael Lowry

Independent TD Michael Lowry has urged the High Court to halt his trial on alleged tax offences.

The case arose from a payment made by a refrigeration company of Michael Lowry to an Isle of Man Trust, lawyers for the DPP told Mr Justice Seamus Noonan today.

The former Communications Minister, who was at the Four Courts today, denies four charges of allegedly filing incorrect tax returns in 2003 and 2007. 

His trial, which remains stayed pending the outcome of the High Court challenge, was transferred from Co Tipperary to Dublin Circuit Criminal Court on the application of the DPP.

The TD claims his prosecution is “extraordinary” because it concerns a payment he had both declared and paid and in circumstances where a Revenue Appeals Commissioner had found last year he had no personal income tax liability.

He also alleges the decision to transfer his trial to Dublin breaches his rights and amounts to his being punished for being popular with voters in Co Tipperary.

A Revenue Appeals Commissioner found last summer Mr Lowry has no personal income tax liability, Mr Justice Seamus Noonan heard today.

The TD’s company Garuda, trading as Streamline Enterprises, was found to have no PAYE/PRSI liabilities. Garuda had a surcharge liability of some €2,400, the court heard.

Before formally opening the case for Mr Lowry, Patrick Treacy SC argued the DPP should not be entitled to exhibit the full determination and comments of the Appeals Commissioner on grounds the appeal was heard in private.

Counsel denied suggestions by Remy Farrell SC, for the DPP,  Mr Lowry was trying to “cherry pick” from the Commissioner’s finding.

Mr Farrell said the case relates to a payment diverted from Garuda to an Isle of Man Trust which had tax implications.

The first count related to income Mr Lowry took out of the company and three other counts related to the company’s corporation tax. The final count was a company law offence, failure to keep proper books of account, counsel said.

The Commissioner had found Mr Lowry had no liability to income tax and Garuda had a liability concerning corporation tax, counsel said.

Mr Lowry was suggesting, because of that ruling, the continuation of this prosecution is improper, counsel said. 

Tax appeals are heard in camera but that was for the benefit of the taxpayer, he said. In this case, as soon as the appeal ruling was given, Mr Lowry sought to make public statements about it.

The arguments made about the ruling sought to advance his victory concerning income tax but were silent about the balance of the charges concerning corporation tax issues. Mr Lowry wanted to “cherry pick” from the ruling and inform the public and potential jurors about what he perceives as his “vindication”, Mr Farrell argued.

His side had exhibited the ruling in its documents and could have sought production of the ruling if it did not have it, counsel said. No side was entitled to refer or rely on a document in a pleading without actually producing it.

After considering the arguments, Mr Justice Noonan said Mr Lowry relied on the appeal commissioner’s decision as a central plank of his judicial review. It was “extraordinary” for Mr Lowry to assert he could rely on that decision but the court could not see that decision in full, he held.

The judge ruled Mr Lowry had waived his right to privacy over the appeal commissioner’s decision and the full ruling could be exhibited.

Mr Treacy will begin his formal opening of the case, expected to last a number of days, later today.

In his proceedings, Mr Lowry, of Glenreigh, Holycross, Co Tipperary, says he has no outstanding tax liability and is being treated unfairly and selectively. He also contends he is entitled to prohibition orders on grounds of alleged prejudicial publicity and alleged wrongful release of taxpayer information into the public domain.

Among his grounds for judicial review, he alleges wrongful manipulation of the criminal justice process and claims his right to a fair trial has been breached.

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