O'Callaghan v District Judge Clifford

• Jurisdiction: Ireland
• Judge: DENHAM J.,Finlay C.J.
• Judgment Date: 01 April 1993
• Neutral Citation: 1993 WJSC-SC 1155
• Docket Number: 166/92,[S.C. No. 166 of 1992]
• Court: Supreme Court
• Date: 01 April 1993

O'CALLAGHAN v. CLIFFORD

BETWEEN/

THOMAS O'CALLAGHAN

Applicant/Appellant

and

DISTRICT JUSTICE JOHN P. CLIFFORD AND THE DIRECTOR OFPUBLIC PROSECUTIONS

Respondents

and

THE ATTORNEY GENERAL

Notice Party

1993 WJSC-SC 1155

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

166/92

THE SUPREME COURT

Synopsis:

DISTRICT COURT

Jurisdiction

Adjournment - Discretion - Exercise - Defendant - Appearance - Failure - Conviction in absence of defendant - Defendant served with summons - Sentence of imprisonment imposed - Attendance of defendant's counsel - Income Tax Act, 1967, ss. 172, 500 - Finance Act, 1980, s. 57 - Finance Act, 1983, s. 94 - Constitution of Ireland, 1937, Article 38 - (166/92 - Supreme Court - 1/4/93) - [1993] 3 I.R. 603

|O'Callaghan v. Clifford|

EVIDENCE

Official

Certificate - Effect - Taxpayer - Income - Inspector - Requirement - Return of income - Delivery not effected within period specified in requirement - Criminal offence - Prosecution - Proofs - (166/92 - Supreme Court - 1/4/93) - [1993] 3 I.R. 603

|O'Callaghan v. Clifford|

NATURAL JUSTICE

Fair procedures

Adjournment - Application - Refusal - Offence - Trial - District Court - Summons served - Defendant's failure to appear at trial - Conviction and imprisonment ordered in absence of defendant - Defendant's counsel present - (166/93 - Supreme Court - 1/4/93)

|O'Callaghan v. Clifford|

PRACTICE

Adjournment

Discretion - Exercise - Offence - Trial - District Court - Summons served - Defendant's failure to appear at trial - Conviction and imprisonment ordered in absence of defendant - Defendant's counsel present - (166/93 - Supreme Court - 1/4/93)

|O'Callaghan v. Clifford|

REVENUE

Income tax

Inspector - Requirement - Compliance - Absence - Taxpayer - Return of income - Delivery not effected within period specified in requirement - Criminal offence - (166/92 - Supreme Court - 1/4/93) - [1993] 3 I.R. 603

|O'Callaghan v. Clifford|

Citations:

FINANCE ACT 1983 S94(2)(e)

INCOME TAX ACT 1967 S172

INCOME TAX ACT 1967 S500

INCOME TAX ACT 1967 S501

INCOME TAX ACT 1967 S500(4)

FINANCE ACT 1980 S57

FINANCE ACT 1983 S94(9)

HEALY, STATE V DONOGHUE 1976 IR 325

FINANCE ACT 1983 S94

INCOME TAX ACT 1967 S128(4)

INCOME TAX ACT 1967 S501(3)

INCOME TAX ACT 1967 S502(3)

INCOME TAX ACT 1967 S506

INCOME TAX ACT 1967 S507

VALUE ADDED TAX ACT 1972 S26(6)

VALUE ADDED TAX ACT 1972 S27(7)

CAPITAL GAINS TAX ACT 1975

CORPORATION TAX ACT 1976

INCOME TAX ACT 1967 S172(1)

FINANCE ACT 1983 S94(2)

1 JUDGMENT delivered on the 1st day of April 1993by DENHAM J.

2 This is an appeal from a decision of the High Court on the 20th May, 1992 wherein judicial review proceedings brought by the applicant/appellant (hereinafter referred to as the appellant) seeking to quash three convictions in the District Court were refused.

3 The appellant was convicted by the first-namedrespondent of three offences contrary to s. 94(2) (e) of the Finance Act, 1983at Cork District Court on the 27th January, 1992 and sentenced to six months imprisonment in respect of each offence, the sentences to runconcurrently.

4 Section 172 Income Tax Act, 1967empowers an Inspector of Taxes to require of an individual by notice a return of income within a limited period. By sections 500 and 501 of the Act of 1967 civil penalties were provided for failure to comply and for wrongful compliance with this request.

5 This civil matter was rendered a criminal offence by s. 94(2) Finance Act, 1983which states, inter alia:

6 (2) "A person shall, without prejudice to any other penalty to which he may be liable, be guilty of an offence under this section if, after the date of the passing of this Act, he -

7 (e) knowingly or wilfully fails to comply with any provisions of the Acts requiring -

8 (i) the furnishing of a return of income, profit or gains, or of sources of income, profits or gains, for the purposes of any tax,..."

9 A procedure for proving the failure to make a return was set out in s. 500(4) Income Tax Act, 1967, inserted by s. 57 Finance Act, 1980, which states:-

"(4) In proceedings for recovery of a penalty incurred under this section or under section 501-"

(i) a certificate signed by an officer of the Revenue Commissioners which certifies that he has examined his relevant records and that it appears from them that a stated notice or precept was duly given to the defendant on a stated day shall be evidence until the contrary is proved that that person received that notice or precept in the ordinarycourse,

(ii) a certificate signed by an officer of the Revenue Commissioners which certifies that he has examined his relevant records and that it appears from them that, during a stated period, a stated notice or precept has not been complied with by the defendant shall be evidence until the contrary is proved that the defendant did not, during that period, comply with that notice or precept,

(iii) a certificate signed by an officer of the Revenue Commissioners which certifies that he has examined his relevant records and that it appears from them that, during a stated period, the defendant has failed to do a stated act, furnish stated particulars or deliver a stated account in accordance with any of the provisions specified in column 3 of Schedule 15 shall be evidence until the contrary is proved that the defendant did so fail,

(iv) a certificate certifying as provided for in subparagraph (i), (ii) or (iii) and purporting to be signed by an officer of the Revenue Commissioners may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by suchofficer."

10 S. 94(9) Finance Act, 1983applied the provisions of s. 500 (4) Income Tax Act, 1967to criminal proceedings under s. 94. The subsection states:-

"(9) The provisions of sections 128(4), 500(4), 501(3), 502(3), 506 and 507 of the Income Tax Act, 1967, and sections 26(6) and 27(7) of the Value-Added Tax Act, 1972, shall, with anynecessary modifications, apply for the purposes of this section as they apply for the purposes of those provisions, including, in the case of such of those provisions as were applied by the Capital Gains Tax Act, 1975, the Corporation Tax Act, 1976, or Part VI, the purposes of those provisions as so applied."

11 Thus, the failure, knowingly or wilfully, to make a return of income within a limited time, as required by notice from the Inspector, is an offence, which may be proved by certificate.

12 One of the summonses to the applicant stated:-

"Whereas a complaint has been made to me that you the said Defendant, having your address at Ingleside, Buxton Hill, Sunday's Well, Cork, within the Court Area and District aforesaid, and having been required by notice under section 172 Income Tax Act, 1967, dated the 7th day of June, 1991, to prepare and deliver to James M. Sheehan, Inspector of Taxes, Cork No. 1 District, Government Buildings, Sullivan's Quay, Cork, within the period specified in said notice a return of income and claim for allowances in the prescribed form in respect of the year 1985/6 asrequired by the said section 172 did fail to comply with such notice contrary to section 94(2) (e) Finance Act, 1983."

13 This is to command you to appear as defendant on the hearing of the said complaint at the District Court at the Courthouse, Washington Street in the city of Cork in the said Court Area and District, on the 27th day of January, 1992 at 2 o'clock p.m. to answer the saidcomplaint".

14 It was signed by a judge of the District Court. The other two summonses differed only in that they referred to tax years 1986/7 and 1987/8.

15 One of the certificates of the Inspector of Taxes produced by the second-named respondent stated:-

"District Court Area of Cork City. District No. 19. Prosecutor: The Director of Public Prosecutions Accused; Thomas O'Callaghan, of Ingleside, Buxton Hill, Sunday's Well, Cork."

16 I, James M. Sheehan of Government Buildings, Sullivan's Quay in the city of Cork, Inspector of Taxes for the Cork No. 1 District, hereby certify that I have examined my relevant records and it appears from them that:-

17 (1) A notice was served on the Accused on the 7th day of June 1991 requiring him to prepare and deliver to me, within twenty-one days from that date, a return in the prescribed form as required by section 172(1) Income Tax, 1967 in respect of the year of assessment 1985/1986.

18 (2) During the period commencing on the 7th day of June, 1991 and ending the 28th June, 1991 that return was not furnished by theAccused.

19 Dated this 22nd day of November 1991."

20 It was signed by James M. Sheehan, Inspector of Taxes. The other two certificates differed only in that they referred to tax years 1986/87 and 1987/88.

21 In the District Court the first-named respondent accepted as evidence sufficient to convict the applicant the said...