O'Brien -v- The Revenue Commissioners, [2016] IEHC 2 (2016)

Docket Number:2013 144CA
Party Name:O'Brien, The Revenue Commissioners
 
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THE HIGH COURT [2013 No. 144 CA]

BETWEEN

DENIS O’BRIEN APPELLANTAND

THE REVENUE COMMISSIONERS RESPONDENT

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 12th day of January 2016

Introduction

  1. The issue between the parties in this case arises from the steps taken by the appellant to challenge an adverse decision made by the Appeal Commissioners in July, 2011. After the decision, the appellant notified the respondent in writing that he wished to state a case to the High Court under s. 941 of the Taxes Consolidation Act 1997 (“the Act”). He also gave notification of an intention to appeal to the Circuit Court, as provided for in s. 942 of the Act. Both notices were given within the respective prescribed periods.

  2. It is common case that it is a standard practice to initiate both procedures, and that the taxpayer must make an election at some stage as to which remedy he or she intends to pursue. However, the Act does not stipulate how or when the election is to be made, or how or to whom it should be communicated.

  3. Ultimately, a case stated was prepared and lodged in the Central Office of the High Court. However, it was lodged by the appellant outside the time set by the Act, and was struck out of the High Court list on the application of the respondent. Before that application was heard the appellant attempted to progress an appeal to the Circuit Court by bringing a motion to fix a date for hearing. The learned Circuit Court judge before whom the motion came refused to list the matter, on the basis that the evidence showed that the appellant had elected for the case stated and could not, therefore, proceed in the Circuit Court. This is the appeal against that decision.

  4. In brief, the appellant submits that the High Court was never seised of the case stated, while he had never withdrawn his notice of appeal to the Circuit Court. He says that in the circumstances he retained the option to proceed in the Circuit Court.

    Background facts

  5. In 2010, an inspector of taxes sought certain information in respect of the appellant’s tax return for the tax year 1999/2000. The appellant contested the inspector’s right to make the enquiries and appealed to the Appeal Commissioners, pursuant to the provisions of s. 956 of the Act.

  6. An Appeal Commissioner determined the issue in favour of the respondents on 20th July, 2011, and decided that it was lawful for the enquiries to be made.

  7. The appellant expressed dissatisfaction with the determination of the Appeal Commissioner, in accordance with the relevant statutory provisions of the Act and, on the 28th July, 2011, requested him to state a case for the opinion of the High Court.

  8. Either party to a hearing before the Commissioner may request a case stated on a point of law. Pursuant to s. 941(4) of the Act, the case stated must be transmitted to the High Court within seven days of receipt of the signed case from the Appeal Commissioner. There is no provision for an extension of time.

  9. By letter of the same date, the appellant’s solicitors sent to the inspector of taxes a notice of the appellant’s request to appeal the matter by way of a rehearing in the Circuit Court, pursuant to s.942 of the Act.

  10. Such an appeal is a full de novo hearing. The inspector of taxes does not have the right to seek a rehearing before a judge of the Circuit Court, but does have certain obligations imposed where there is an appeal by the taxpayer. Under s. 942(2), it is incumbent on the inspector, or other authorised officer of the Revenue, to transmit the prescribed form with the decision of the Appeal Commissioner to the Circuit Court at or before the time of the rehearing by the judge of that Court.

  11. The Circuit Court Rules do not make any specific provision for the listing of such appeals. It appears that, as a matter of practice rather than statute, the matter is normally put into the list on the initiative of the Revenue. However there is, it is agreed, nothing to prevent the taxpayer from taking steps to have it listed.

  12. It appears that the letter of the 28th July, 2011, requesting an appeal was misdirected within the respondent’s offices and was not received by the inspector. No step was taken in relation to bringing any appeal before the Circuit Court. However on the 2nd August, 2011, a copy was sent by email to the Revenue’s solicitor.

  13. On the 5th September, 2011, there was a telephone conversation between the Revenue’s solicitor, Ms. Croasdell, and the appellant’s solicitor, Mr. Doorly of William Fry Solicitors.

  14. According to Ms. Croasdell’s note of the conversation, she asked Mr. Doorly whether the request for a case stated had been put in just to stop time running, or if it was intended to proceed with it. Mr. Doorly confirmed to her that it was going ahead and that he hoped to have the first draft by the end of October. It had not yet been discussed with counsel. Ms. Croasdell said that she anticipated that she would be under pressure to keep the matter to a schedule. It was agreed that the appellant would present a draft which both sides could then work on. They discussed the possibility that the case might be listed with another case stated being conducted on behalf of the appellant – this discussion was on the basis that neither of them had instructions as yet on that issue.

  15. Mr. Doorly has averred that he does not recall that part of the discussion dealing with the question whether the case stated had been requested only to stop time running and his own note does not refer to it. However he says that he is “very clear” that he did not, in either that or any other communication with the respondent, expressly or impliedly withdraw the Circuit Court appeal. He had yet to discuss the matter with counsel and had no instructions to make any such withdrawal.

  16. Correspondence relating to the case stated was exchanged over the following months. For the most part, this consists of reminders and requests for presentation of a draft from the respondent. In July 2012, in the absence of a draft from the appellant, the respondent forwarded a copy of its own draft. This was returned by the appellant’s solicitor with some amendments. Both sides subsequently made further amendments.

  17. On the 19th November, 2012, the case stated was sent by the respondent to the Appeal Commissioner. By letter dated the 22nd November, 2012, the office of the Appeal Commissioners sent the signed case stated by hand to the appellant’s solicitors, for transmission by the appellant to the High Court in accordance with the provisions of section 941(4) of the 1997 Act. The Revenue Solicitor was also sent a copy of the letter, by post, and received it on 23rd November, 2012.

  18. The question of law posed for determination by the High Court was whether the Appeal Commissioner was correct in holding that the inspector was not precluded from making enquiries of the appellant by reason of subsection 1(c) of s.956 of the Act.

  19. The appellant’s solicitor transmitted the case stated to the High Court on 30th November, 2012. Having regard to the relevant dates, this should have been done by the 28th November (if it was received on the 22nd) or the 29th November at the latest (if it was received on the 23rd).

  20. The respondent’s solicitor wrote to the appellant’s solicitors on 5th December, 2012, stating that it was the understanding of the Revenue Commissioners that the requirements of section 941(4) of the 1997 Act had not been complied with, in that there had been a failure to transmit the case stated to the High Court within time. The appellant’s solicitor did not initially respond to this. He wrote to Ms. Croasdell to say that the matter had been listed in error for mention in the High Court on the 17th December, 2012, and had been taken out of that date. The Central Office had informed him that they could apply for a hearing date in due course. She was asked to provide a range of dates suitable to her counsel, and it was suggested that the hearing be deferred until after the other case stated had been determined. Mr. Doorly subsequently wrote to say that it was not accepted that the case stated was out of time.

  21. Ms. Croasdell responded by proposing that the two cases be heard together, and suggesting that the question whether the time limit had been complied with should be dealt with as a preliminary issue. Mr. Doorly replied that he was not consenting to the matters being run together.

  22. By letter dated 15th April, 2013, the Revenue Solicitor notified the appellant’s solicitor that an application would be brought to strike out the case stated. A motion was issued on the 2nd May, 2013, returnable for the 10th June, 2013, seeking an order pursuant to the inherent jurisdiction of the Court striking out the proceedings, on the grounds that the case stated was...

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