C.G. v The Appeal Commissioners

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IEHC 121
• Court: High Court
• Docket Number: [2004 No. 95J.R.]
• Date: 18 March 2005

G (C) v APPEAL COMMISSIONERS

BETWEEN

C. G.

APPLICANT

AND

THE APPEAL COMMISSIONERS

RESPONDENTS

AND

THE REVENUE COMMISSIONERS (CRIMINAL ASSETS BUREAU)

NOTICE PARTY

[2005] IEHC 121

[No. 95 JR/2004]

THE HIGH COURT

Income tax

Appeal against assessment - Procedure on tax appeal - Fair procedures - Stay of tax appeal- Concurrent civil and criminal proceedings in respect of same subject matter - Alleged failure to make tax returns for same years as appeal - Refusal to grant stay - Risk to fair trial - Privilege against self-incrimination -Whether appeal commissioner breached applicant's rights to constitutional justice -Whether appeal commissioners obliged to act judicially - Whether plaintiff exposed to risk of prejudice - State (Calcul International Ltd) v Appeal Commissioners (1986) 3 ITR254 distinguished - Taxes Consolidation Act1997 (No 39), s 957(6) - Certiorari granted but injunction refused

FINANCE ACT 1983 S94(2)(e)(i)

CONSTITUTION ART 38.1

CALCUL INTERNATIONAL & SOLATREX INTERNATIONAL, STATE v APPEAL COMMRS & REVENUE COMMRS 3 ITR 254

CONSTITUTION ART 34.1

CONSTITUTION ART 37

GALLAGHER v REVENUE CMSR 1991 2 IR 370

FLANAGAN v UCD 1988 IR 724

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

DILLON v DUNNES STORES LTD 1966 IR 397

JEFFERSON LTD v BHETCHA 1979 2 AER 1108

R v INSTITUTE OF CHARTERED ACCOUNTANTS OF ENGLAND & WALES PARTE BRINDLE 1994 BCC 297

R v PANEL ON TAKEOVERS & MERGERS EX-PARTE FAYED 1992 BCLC 938

NATIONAL IRISH BANKS LTD, RE 1999 3 IR 145 1999 1 ILRM 321

TAXES CONSOLIDATION ACT 1997 S957(2)(a)(i)

TAXES CONSOLIDATION ACT 1997 S957(6)

CHARLETON, MCDERMOTT & BOLGER CRIMINAL LAW 1999 131

1 Judgment of Ms. Justice Finlay Geoghegan delivered on the 18th day of March, 2005.

2 On the 9th February, 2004, O'Neill J. granted leave to the applicant to apply by way of judicial review for the following substantive reliefs:

3 1. An Order of Certiorari by way of an Application for Judicial Review of the Order of the Respondent dated 23rd day of January 2004 refusing the Applicant's application for an adjournment of his Appeal to the Respondents against the Income Tax Assessments made by the Revenue Commissioners (The Criminal Assets Bureau) pending the determination of criminal proceedings against the Applicant for failure to make tax returns.

4 2. An Injunction by way of an Application for Judicial Review restraining the Respondents from proceeding with the Applicant's Appeal to the Respondents against the Income Tax Assessments by the Revenue Commissioners (the Criminal Assets Bureau) pending the determination of criminal proceedings against the Applicant for failure to make tax returns.

Background facts.

5 On the 7th February, 2003, the applicant was assessed by the Criminal Assets Bureau (the notice party) to income tax in respect of each of the following years of assessment.

6 (a) The period ended 31st December, 2001;

7 (b) The year ended 5th April, 2001;

8 (c) The year ended 5th April, 2000;

9 (d) The year ended 5th April, 1999;

10 (e) The year ended 5th April, 1998;

11 (f) The year ended 5th April, 1997;

12 (g) The year ended 5th April, 1996;

13 (h) The year ended 5th April, 1995;

14 (i) The year ended 5th April, 1994.

15 On the 31st January, 2003, the applicant was charged with failing to deliver tax returns on or before the relevant specified date in respect of the years of assessment:

16 (a) The year ended 5th April, 1994;

17 (b) The year ended 5th April, 1995;

18 (c) The year ended 5th April, 1996;

19 In each case contrary to s. 94(2)(e)(i) of the Finance Act, 1983, as amended. The applicant was sent forward for trial to the Circuit Court on the said charges on the 3rd February, 2004.

20 The applicant appealed against the tax assessments raised on him by the notice party in respect of the 9 years referred to above. A hearing date for the appeal was fixed for the 21st January, 2004. On that date, the applicant applied to the Appeal Commissioner for an adjournment of the tax appeals pending the determination of the criminal proceedings. The Appeal Commissioner refused to grant the requested adjournment. He did grant a short adjournment to enable the applicant apply for leave to issue judicial review. On the application for leave, the applicant was also granted an order restraining the respondent from proceeding with the applicant's appeal pending the determination of the judicial review.

21 The application for judicial review has been opposed by the notice party who delivered a statement of opposition dated 30th March, 2004, and a verifying affidavit. The respondents have not participated in this application.

Application to Appeal Commissioner

22 The application made by the solicitor for the applicant to the Appeal Commissioner was for an adjournment of the appeal hearing until after the determination of the criminal proceedings. The transcript of the hearing has been exhibited in this application by Mr. Staines, solicitor for the applicant. It appears therefrom that at the commencement, the Appeal Commissioner was unaware of the criminal proceedings. Further, the application was made (and not disputed by counsel for the notice party) upon the basis that the criminal proceedings and the appeals before the Appeal Commissioner related to the same years of assessment. The application for an adjournment was essentially based upon the applicant's right under Article 38.1 of the Constitution to a fair trial and the applicant's right to silence and privilege against self incrimination.

23 The application was opposed by counsel for the notice party by submissions on the law relating to the constitutional rights asserted and also on the basis that there were two entirely separate issues in dispute before the Appeal Commissioner and the criminal court. It was submitted on behalf of the notice party that the Appeal Commissioner was concerned simply with assessments, the amount of any income and gains due in the relevant years and whether the assessment for each year had been properly raised; whether tax has been over assessed or under assessed. It was submitted that the issue before the criminal court was the failure to make returns.

24 Following the hearing of submissions the Appeal Commissioner gave his decision in the following terms:

"This is an appeal which was taken out by the taxpayer against assessments that were raised. The role of the Appeal Commission is to deal with that appeal. Our responsibilities and there are duties upon the taxpayer, which is really to — comes down to the Appeal Commissioner dealing with it to find out what is the right amount of tax payable in relation to each of the years on the assessments which are open before.

I am not satisfied that I should cause these proceedings to adjourn until such time as unconnected, that is to say, they are not dealing with the quantum of the assessment issues in another place, are resolved. However, if a decision is taken in another place to cause this not to proceed, I will, of course, need to take account of that instruction. In terms of how I see the duty and responsibility of the Appeal Commissioner, it seems to me I should proceed on this, unless I am advised I am not to by a court. I do not have that instruction to me. It is my decision that I should proceed on this case."

25 Mr. Staines then (following an unsuccessful application for a case stated) applied for an adjournment to allow him to apply to the High Court. This was not opposed on behalf of the notice party and the adjournment was granted.

Grounds

26 The applicant was granted leave to seek the order of certiorari and injunction set out above on 10 grounds. These may be summarised as follows:

27 (1) That the Appeal Commissioner in determining the application for an adjournment was under an obligation to act judicially.

28 (2) That in failing to consider the applicant's submissions concerning the alleged violation of his legal and constitutional rights to a fair trial and his privilege against self-incrimination should the appeal proceed the Appeal Commissioner failed to act judicially.

29 (3) That the failure of the Appeal Commissioner to adjourn the appeal is a violation of the applicant's constitutional right to a fair trial and his privilege against self-incrimination.

30 (4) That the Appeal Commissioner failed to act in accordance with law in refusing an adjournment by reason of the fact that the criminal proceedings were unconnected with the appeal and that it was his duty and responsibility to proceed.

31 The nature of the power and function of the Appeal Commissioners was considered by Barron J. in The State (Calcul International Limited and Solatrex International Limited) v. the Appeal Commissioners and the Revenue Commissioners, Unreported, High Court, 18th December 1986, in the context of a claim that they were exercising a judicial power and function other than the limited power and function permitted by Article 34.1 and Article 37 of the Constitution. In that case Barron J. determined that the essential function of the Appeal Commissioners "is to decide whether the assessment raised by the tax inspector should be reduced or increased". He decided that they were not exercising a judicial power.

32 Notwithstanding this, it is well established that there are circumstances in which a tribunal exercising administrative functions may be under an obligation to act judicially. It is not disputed on behalf of the notice party that the Appeal Commissioners are under an obligation to act judicially in hearing and determining appeals. It follows that an Appeal Commissioner must also be obliged to act judicially in any application in relation to the appeals including an application such as that at issue herein, namely, an adjournment...