CRIMINAL ASSETS BUREAU (CAB) v McS (P)

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date16 November 2001
Neutral Citation[2001] IEHC 162
CourtHigh Court
Docket Number1998 No. 13 R
Date16 November 2001

[2001] IEHC 162

THE HIGH COURT

1998 No. 13 R
CRIMINAL ASSETS BUREAU (CAB) v. McS (P)
REVENUE

BETWEEN

THE CRIMINAL ASSETS BUREAU
PLAINTIFF

AND

PMCS
DEFENDANT

Citations:

CRIMINAL ASSETS BUREAU ACT 1996 S8

TAXES CONSOLIDATED ACT 1997 S966

CRIMINAL ASSETS BUREAU ACT 1996 S10

TAXES CONSOLIDATED ACT 1997 SCHEDULE D CASE IV

INCOME TAX ACT 1967 S416(1)(B)

INCOME TAX ACT 1967 S416(7)(A)

FINANCE ACT 1988 S17(4)

FINANCE ACT 1988 S17(2)(II)

RSC O.60

CRIMINAL ASSETS BUREAU ACT 1996 S10

CRIMINAL ASSETS BUREAU ACT 1996 S10(7)

TAXES CONSOLIDATION ACT 1997 S933(1)(A)

TAXES CONSOLIDATION ACT 1997 S933(1)(B)

TAXES CONSOLIDATION ACT 1997 S933(1)(C)

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)(A)

FINANCE ACT 1998 S15(2)

RSC O.122 r10

WILLIAMS V BURGESS 1840 10 LR QB 11

CRIMINAL ASSETS BUREAU (CAB) V MCDONNELL UNREP SUPREME 20.12.2000 2000/5/1609

TAXES CONSOLIDATION ACT 1997 S933(7)

MCGUINNESS V ARMSTRONG PATENTS LTD 1980 IR 289

RADCLIFFE V BARTHOLOMEW 1892 1 QB 161

INTERPRETATION ACT 1937 S11(H)

PESCA VALENTIA V MIN FOR FINANCE 1985 IR 193

INTERPRETATION ACT 1937 S18

TAXES CONSOLIDATION ACT 1997 S957(2)

TAXES CONSOLIDATION ACT 1997 S933

CRIMINAL ASSETS BUREAU (CAB) V B (K) UNREP MCCRACKEN 15.5.2001

TAXES CONSOLIDATION ACT 1997 S933(1)

TAXES CONSOLIDATION ACT 1997 S933(6)

MCGRATH V MCDERMOTT 1988 IR 257

REVENUE COMMISSIONERS V DOORLEY 1933 IR 750

PARTINGTON V AG 1869 LR 4 HL 100

AG V CARLTON BANK 1899 2 QB 158

TAXES CONSOLIDATION ACT 1997 S966

CRIMINAL ASSETS BUREAU ACT 1996 S10(4)

CRIMINAL ASSETS BUREAU ACT 1996 S10(5)

INCOME TAX ACT 1967 S488

CRIMINAL ASSETS BUREAU (CAB) V CRAFT 2001 1 IR 121

CRIMINAL ASSETS BUREAU ACT 1996 S8(1)(A)(II)

MCCLEA, RE 1950 IR 180

DEIGHAN V HEARNE 1990 1 IR 499

CRIMINAL ASSETS BUREAU ACT 1996 S10(6)

CRIMINAL ASSETS BUREAU ACT 1996 S4

CRIMINAL ASSETS BUREAU (CAB) V KELLY UNREP O'SULLIVAN 13.4.2000 2000/4/1587

INTERPRETATION ACT 1937 S11

TAXES CONSOLIDATION ACT 1997 S957

Synopsis:

REVENUE

Income tax

Practice and procedure - What constitutes a valid appeal - Validity of certificates - Locus standi - Proceeds of crime - Criminal Assets Bureau Act, 1996 - Taxes Consolidation Act, 1997 sections 933, 957 - Interpretation Act, 1937 section 11 - Rules of the Superior Courts, 1986 Order 122, rule 10 (1998/13 R - Kearns J - 16/11/01)

Criminal Assets Bureau v McS (P)

Facts: The plaintiff as a member of the Criminal Assets Bureau had claimed that a sum of £2,570,186.93 was due and owing from the defendant. The plaintiff brought the present proceedings under the Taxes Consolidation Act, 1997. The plaintiff claimed that the defendant's assets were derived from criminal activity. The defendant contested the assessment and contended that he had filed a valid appeal against same. The plaintiff disputed this assertion and claimed that as no valid appeal had been filed that the assessment had become final and conclusive. In reply the defendant contended that if an appeal under section 933 of the Taxes Consolidation Act, 1997 was out of time that by virtue of section 957(2) of the same Act the appeal period had even commenced. An order of anonymity was also sought in respect of the two officers who had signed the relevant documents on behalf of the Criminal Assets Bureau ("the Bureau"). Evidence was given that if the identity of the officers in question became known it would hinder the work of the Bureau. The defendant challenged the locus standi of the plaintiff and also challenged the certificates raising the assessment on various technical grounds.

Held by Mr. Justice Kearns in making the following orders. There were reasonable grounds in the public interest pursuant to section 10 of the Criminal Assets Bureau Act, 1996 for the grant of the order of anonymity sought. The letter from the defendant was posted within time and should have in the ordinary course also arrived within time. The defendant had given notice within time as required by section 933 of the Taxes Consolidation Act, 1997. Furthermore section 933(7) of the 1997 Act containing the 'reasonable cause' provision appeared to lend weight to the view that the defendant had validly appealed against the assessment. The certificates of taxation conformed with the relevant statutory requirements.

1

Mr. Justice Kearns delivered the 16th day of November, 2001

BACKGROUND
2

The Plaintiffs claim in these proceedings against the Defendant is for the sum of £2,570,186.93 for tax and interest due by the Defendant to the Minister for Finance for the benefit of the Central Fund, payment of which sum was demanded prior to the commencement of proceedings. The Plaintiff is a Bureau officer appointed to the Criminal Assets Bureau pursuant to Section 8 of the Criminal Assets Bureau Act 1996. The Plaintiff is also an officer of the Revenue Commissioners nominated by the Revenue Commissioners to exercise the powers and functions of the Collector General. The Plaintiff brings the proceedings under S. 966 of the Taxes Consolidation Act, 1997in the name of the Criminal Assets Bureau pursuant to the provisions of Section 10 of the Criminal Assets Bureau Act, 1996.

3

The tax claimed is in respect of 4 years, which are the 12 months ending on the 5th April, 1992, 5th April, 1993, 5th April, 1994 and 5th April, 1996.

4

In his grounding affidavit, Chief Superintendent Michael F. Murphy of the Criminal Assets Bureau deposes that the profits or gains of the Defendant which are being charged to tax and which are the subject matter of the proceedings arise from or follow an investigation by the Criminal Assets Bureau into the identification of the Defendants assets which are suspected to derive directly or indirectly from criminal activity and which have thus been charged under Case IV of Schedule D as miscellaneous income.

5

In respect of each of the 4 years, other than 1996, the Defendant made returns and payments prior to the raising of assessments which, in respect of all 4 years, were raised on the 25th November, 1997. This and other dates are of critical importance to this case.

6

By letter dated 22nd December, 1997, the Defendant's Solicitors, Messrs. Donal T. McCarthy & Co, 19 South Mall, Cork, wrote to the Plaintiffs (by fax and registered post) a letter in the following terms:-

"Dear Sirs,"

7

We refer to the notice of assessments issued by you dated 25th November,1997 for the years ending 5th April, 1992, 5th April, 1993, 5th April, 1994 and 5th April, 1996.

8

Our clients instructions are that he has already filed tax returns in respect of these years.

9

Our client further instructs us to write and say that the magnitude of the assessments now made is completely at variance with his disclosed income and he does not accept that there are any grounds for raising assessments of this size which he claims are completely and unjustly excessive.

10

On our clients behalf we have written on numerous occasions seeking a return of our clients tax papers, seized from his former accountant but access to the originals or copies have not been forthcoming.

11

This has completely hindered our client in meeting the case against him and he is now further hindered in relation to the present assessments.

12

In addition, we refer you in particular to our letter to you dated the 3rd inst.wherein we referred to the affidavit of Mr. Barry Galvin sworn on the 24th September, 1997 and the exhibits attached thereto and a number of schedules purporting apparently to analyse various bank accounts.

13

A number of these are virtually illegible and neither we nor our client have been able to read same.

14

This is further hindering our client and we must insist on being furnished with versions which are blown up to enable both our client and his advisors to properly peruse same. Please note our instructions are that we are to write and say that unless same are furnished to us forthwith, our client will make whatever application may be necessary to the Court to compel the delivery of same and we will exhibit this letter in evidence.

15

Yours faithfully."

16

It is common case that this letter was dispatched by registered post on the 22nd December, 1997, being the date of the letter itself. The Plaintiff claims however, that this letter was not received until the 30th December, 1997. The fax of the letter dated 22nd December was received on the 29th December, 1997. A further faxed message (which has now become lost) which was also received on the 30th December, 1997 apparently stated,

"This letter (i.e., the letter of December 22) is to be regarded as a Notice of Appeal against the assessments".

17

On the 7th January, 1998, an officer of the Criminal Assets Bureau wrote to the Defendants Solicitors in the following terms:-

"Dear Sirs,"

18

I refer to your letter of December 22, 1997 and your subsequent fax. of December 29, concerning the notice of assessment issued to your client for the years ended April 5 1992, April 5 1993, April 5 1994, and April 5 1996. In your faxed message (also received by post on December 30) you state that This letter (your letter of December 22) is to be regarded as a Notice of Appeal against the assessments". I am refusing admittance of your appeal in accordance with S. 416(1) (b) of the Income Tax. Act, 1967on the grounds that no valid appeal was received within the prescribed time limits. The tax is therefore now due and payable.

19

Your client may wish to apply to have a late appeal admitted pursuant to S. 416(7) (a) of the Income Tax Act, 1967. If your client wishes to so give an application he may do so setting out the grounds for consideration by me. Please note that, in any event S. 17(4) of the Finance Act. 1988requires that the chargeable person shall specify in the Notice of Appeal each amount in the assessment with which he is...

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