Wednesday 13 December 2017

High court backs Denis O'Brien's case against Revenue

Denis O'Brien
Denis O'Brien

Tim Healy

THE Revenue Commissioners have failed in the High Court to stop an appeal by businessman Denis O'Brien relating to a finding that a tax return from him 14 years ago was insufficient due to it being completed in a negligent manner.

Mr O'Brien can now go ahead with his case, in which he says the Circuit Court should fully hear an appeal he has brought against that finding by an inspector of taxes. The case relates to a tax return for 1999-2000.

Yesterday, Mr Justice Bernard Barton ruled that Mr O'Brien was entitled to appeal a Circuit Court decision of July last year on the matter.

The Circuit Court had refused to list his appeal for hearing after the Revenue successfully argued Mr O'Brien had also elected to have the matter dealt with by way of a case stated in the High Court and it was not permissible to run the same case in both the Circuit and High Courts.

Mr Justice Barton said the Circuit Court ruling, by Judge Jacqueline Linnane, was not a decision on the appeal within the meaning of the law but rather an order on "a procedural application".

Mr O'Brien was therefore entitled to have his appeal on this matter heard by the High Court and he dismissed the Revenue's motion to strike out his appeal against the Circuit Court order.

Martin Hayden SC, for Mr O'Brien, said he would now be seeking to have the matter remitted back to the Circuit Court when the matter next comes before the High Court.

The case concerned questions raised in 2010 by an inspector of taxes about Mr O'Brien's returns for 1999-2000.

While the raising of such questions is limited by a time bar of four to six years, this limit is not applicable if an inspector believes the taxpayer's returns were insufficient due to being completed in a negligent manner, Brian Murray SC, for the Revenue, said.

The inspector in this case made such a finding. Mr O'Brien appealed through the Revenue's own appeals system and an Appeals Commissioner found Mr O'Brien had not established the inspector did not have reasonable grounds for his finding.

Mr O'Brien then exercised his right to appeal that (Appeals Commissioner) decision to the Circuit Court. He also separately sought to have a case stated, on a point of law related to the Taxes Consolidation Act 1997, to the the High Court.

However, the case stated was not brought within the permitted time and that matter was struck out on consent between the parties.

Shortly afterwards, the Circuit Court appeal, which was in abeyance pending the case stated, came before Judge Linnane who accepted Revenue's arguments that Mr O'Brien could not run what were effectively the same appeals in the High and Circuit Courts.

She refused to list the matter for hearing.

In seeking to strike out the High Court appeal, the Revenue contended Mr O'Brien was not permitted to appeal under Section 31.2 of the Courts of Justice Act 1936, which provides there cannot be an appeal of a Circuit Court decision in relation to a tax matter such as this.

Mr O'Brien's lawyers argued the Circuit Court never actually heard the substantive appeal but only dealt with whether the case could be listed.

Irish Independent

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