Autolink Ltd; Cullen v Feehily

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 12 December 2008
• Neutral Citation: [2008] IEHC 397
• Court: High Court
• Date: 12 December 2008

[2008] IEHC 397

THE HIGH COURT

348 JR/2008

L.C. Autolink Ltd & Cullen v Feehily & Ors

JUDICIAL REVIEW

BETWEEN

L. C. AUTOLINK LTD. AND

LEE CULLEN

APPLICANTS

AND

JOSEPH FEEHILY, DAVID WARD, BRIAN HARKIN, REVENUE COMMISSIONERS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003

FINANCE ACT 1992 S131

FINANCE ACT 1992 S130

FINANCE ACT 1992 S140

FINANCE ACT 1992 S141

FINANCE ACT 1992 S14O(1)

FINANCE ACT 1992 S140(3)

FINANCE ACT 2001 S140(4)

FINANCE ACT 2001 S136(5)

FINANCE ACT 2001 S143(2)

FINANCE ACT 2001 S127(3)

FINANCE ACT 2001 S125

FINANCE ACT 1992 S139(6)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

INSPECTOR OF TAXES v KIERNAN 1981 IR 117

R v NORTHUMBERLAND COMPENSATION APPEALS TRIBUNAL 1952 1 KB 1952 1 AER 122

BANNON v EMPLOYMENT APPEALS TRIBUNAL 1993 1 IR 500

DPP v KEMMY 1980 1 IR 160

CONSTITUTION ART 40.5

SIMPLE IMPORTS LTD & ANOR v REVENUE CMRS 2000 2 IR 243

CUSTOMS CONSOLIDATION ACT 1876 S205

DPP v COLLINS 1981 ILRM 447

FINANCE ACT 2001 S142(1)

KEOGH v CRIMINAL ASSETS BUREAU 2004 2 IR 159

DEIGHAN v HEARNE 1990 1 IR 499

REVENUE

Vehicle registration tax

Vehicles detained and seized - Breach of law relating to vehicle registration tax and value added tax - Detention - Seizure - Forfeiture - Condemnation - Statutory powers - Law relating to vehicle registration tax - Exemptions - Nature of vehicles - Special purpose vehicles - Procedural steps - Manner in which powers exercised - Inaccuracies on notices of detention and seizure - Whether defects errors on record which go to jurisdiction - Whether provisions construed mandatory directory or discretionary - Whether technical or substantive errors - Inspector of Taxes v Kiernan [1981] IR 117, R v Northumberland Compensation Appeal Tribunal [1952] 1 KB 338, Bannon v Employment Appeals Tribunal [1993] 1 IR 500 and Director of Public Prosecutions v Kemmy [1980] 1 IR 160 considered; Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243 distinguished - Whether seizure unlawful - Admissions - Appeals procedure - Discretion of court - Ownership - Whether want of candour bar to relief - Failure to avail of appeals procedure - Parameters of appeal - Whether revenue acted reasonably in light of information available - O'Keefe v An Bord Pleanála [1993] IR 39 applied - Whether vehicles liable to VRT - Whether judicial review would serve useful purpose - Whether Revenue acted lawfully and within jurisdiction - Whether denial of natural justice - Whether any breach of fair procedures - Director of Public Prosecutions v Collins [1981] ILRM 447 distinguished; Keogh v Criminal Assets Bureau [2004] IESC 32, [2004] 2 IR 159 and Deighan v Hearne [1990] 1 IR 499 applied - Finance Act 1992 Act (No 9), ss 130, 131 and 139(6) - Finance Act 2001 (No 7), ss 127, 140, 141, 142, 143, 145 and 146 - Application for judicial review refused (2008/348JR - MacMenamin J - 12/12/2008) [2008] IEHC 397

LC Autolink Ltd v Feehily

Facts: The applicant was in the motor sales and import business and sought judicial review of determinations made by the Revenue Commissioners to detain and seize motor vehicles. The Revenue took the view that there had been a breach of the law as to inter alia VRT. The applicants claimed that the determinations which were made were erroneous, ultra vires and unlawful.

Held by MacMenamin J. that there were no errors on the face of the record going to jurisdiction. The respondents acted lawfully and within jurisdiction on this issue. The errors on the notices of seizure did not form an element to the proofs required under statute and did not thus go to jurisdiction. There was no evidence as to the deprivation of any right. The determination made could have been appealed. The procedures in question did not involve an administration of justice. There was no breach of fair procedures in the actions of the respondent. The application for judicial review would be declined.

Reporter: E.F.

1 JUDGMENT of Mr. Justice John MacMenamin delivered on the 12th day of December, 2008.

2 1. The first named applicant L.C. Autolink Ltd. ("Autolink") is a motor sales and import business. The second named applicant Lee Cullen ("Mr. Cullen") is the principal in that firm. Both applicants seek judicial review of a number of determinations made by the first four named respondents who are officials of the Revenue Commissioners, to detain and seize four Mitsubishi Lancer motor cars. These determinations were made in December, 2007, and January, 2008. The procedures followed a visit to Autolink's premises which took place on 12 ^th December, 2007. On that date, a team of Revenue officers went to Autolink's garage at Saggart, Co. Dublin. Autolink had traded from there for a number of months and previously at another premises. The Revenue officers carried out an examination of available records and a physical examination of the stock. The majority of vehicles stored there were part of Autolink's stock. But along with vehicles which were part of Autolink's stock-in-trade, the Revenue officers found four Mitsubishi Lancer Evolution motor cars. These four vehicles were not registered. They were not recorded as part of Autolink's stock. They did not appear in any of that company's records. The Revenue officials took the view that there had been a breach of the law relating to vehicle registration tax (VRT) and value added tax (VAT) and that they were entitled to detain and later seize the vehicles.

3 2. The determinations made by the Revenue officials were made under powers as defined in the Finance Act 2001. The applicants claim that the determinations which were made were ultra vires and unlawful.

4 3. This judgment is divided into the following sections:-

5 a (A) A brief description of the relevant law relating to vehicle registration tax.

6 b (B) Outline of the statutory powers of the Revenue to detain, seize, forfeit and apply for condemnation of vehicles and the claimants appeals procedure.

7 c (C) What occurred on and after the date of detention.

8 d (D) The procedures subsequently followed, the claims of the applicants, and consideration of that evidence.

9 e (E) Findings and decisions on discretionary issues.

10 f (F) The nature of the vehicles.

11 g (G) The validity of the notices and determinations made by the Revenue Commissioners.

12 h (H) Denial of natural justice.

Parts of claim withdrawn

13 4. Leave to seek judicial review was granted by this Court on 31 ^st March, 2008. Then, the claim made by the applicants was far broader. The issues included assertions that the statutory provisions under which the Revenue Commissioners had proceeded were invalid, having regard to the Constitution of Ireland 1937 and incompatible with the European Convention on Human Rights Act 2003. These broader claims were abandoned at the outset of the hearing and the questions for determination by the Court are now confined to those arising in this judgment.

(A) Brief outline of the laws relating to vehicle registration tax

14 5. In order to understand the actions of the respondents and the claims made by the applicants, it is necessary to outline briefly the law relating to vehicle registration tax. In summary the applicants claimed that the vehicles are "special purpose vehicles" and therefore not liable to this tax.

15 6. Vehicle registration tax was introduced in 1992. By virtue of s. 131 of the Finance Act of that year (the 1992 Act), the owner of a vehicle is obliged to register it for VRT when such a vehicle is first imported into the State. Failure to do so involves serious penalties. Vehicles are to be registered and the VRT paid by the end of the next working day following the arrival of a vehicle into the State. Delay may result in the imposition of penalties including forfeiture of the vehicle and prosecution. Detention and seizure are preliminary procedures prior to forfeiture. The actual level of tax to be levied in any particular instance depends on the category of vehicle concerned. There are exemptions for certain categories of vehicle.

16 7. The starting point for this short consideration is the statutory characterisation of a "mechanically propelled vehicle". Such a vehicle is designed fundamentally for the purpose of carriage of persons or goods. Section 130 of the Finance Act 1992 contains the following definition of such vehicle as being:-

"…intended or adapted for propulsion by mechanical means, including û"

(a) bicycle, tricycle or quadricycle propelled by an engine or motor or with an attachment for propelling it by mechanical power, whether or not the attachment is being used, a moped, a scooter and an autocycle, and

(b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical,

17 but not including a tramcar or other vehicle running on permanent rails or a vehicle as respects which the Commissioners are satisfied that it is designed or constructed for off-road use (other than racing vehicles, scrambling vehicles or other sporting vehicles)" (emphasis added).

18 8. Certain forms of vehicle are however exempt from VRT. One is relevant in these proceedings. It is that for vehicles designed or adapted for off road use (see s. 130 of The Act of 1992). Such a vehicle is "a special purpose vehicle", defined under s. 130 of the Finance Act 1992, as being:-

"a vehicle which is designed, constructed or adapted solely or mainly for a purpose other than for the carriage of persons or goods".

(B) Outline of the statutory powers of the Revenue Commissioners to detain seize and forfeit vehicles

19 9. It is necessary next to outline certain powers now vested in the Revenue Commissioners inter alia by the Finance Act 2001 (the Act of 2001). While these powers are generally...