Criminal Assets Bureau v P.S.

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 19 October 2004
• Neutral Citation: [2004] IEHC 351
• Court: High Court
• Docket Number: [1997 No. 38
• Date: 19 October 2004

[2004] IEHC 351

THE HIGH COURT

[2004] IEHC 351

1997 No. 38R

CRIMINAL ASSETS BUREAU (CAB) v S (P)

BETWEEN

THE CRIMINAL ASSETS BUREAU

PLAINTIFF

AND

P. S.

DEFENDANT

FINANCE ACT 1983 S19

INCOME TAX ACT 1967 S416

FINANCE ACT 1988 S17(4)

INCOME TAX ACT 1967 S478

RSC O.60

CONSTITUTION ART 40.1

CONSTITUTION ART 34

CRIMINAL ASSETS BUREAU ACT 1996 S10(2)

CRIMINAL ASSETS BUREAU ACT 1996 S10(4)

CRIMINAL ASSETS BUREAU ACT 1996 S10(6)

CRIMINAL ASSETS BUREAU ACT 1996 S10(7)

CRIMINAL ASSETS BUREAU ACT 1996 S8(5)

CRIMINAL ASSETS BUREAU ACT 1996 S8(6)(D)

CRIMINAL ASSETS BUREAU ACT 1996 S8(7)

EUROPEAN CONVENTION OF HUMAN RIGHTS ART 6

EUROPEAN CONVENTION OF HUMAN RIGHTS ART 14

CONSTITUTION ART 38

CONSTITUTION ART 40.3

EUROPEAN CONVENTION OF HUMAN RIGHTS ART 13

TAXES CONSOLIDATION ACT 1997 S933(6)

TAXES CONSOLIDATION ACT 1997 S966(3)

TAXES CONSOLIDATION ACT 1997 S966(4)

TAXES CONSOLIDATION ACT 1997 S966(5)

TAXES CONSOLIDATION ACT 1997 S966(6)

TAXES CONSOLIDATION ACT 1997 S1080(4)

CRIMINAL ASSETS BUREAU (CAB) v HUNT 2003 2 IR 168 2003/10/2095

INCOME TAX ACT 1967 S148(13)

INCOME TAX ACT 1967 S148(14)

INCOME TAX ACT 1967 S184

FINANCE ACT 1988 S15

FINANCE ACT 1988 S13(2)

FINANCE ACT 1988 S13(3)

KEOGH v CRIMINAL ASSETS BUREAU (CAB) 2004 2 ILRM 481

TAXES CONSOLIDATION ACT 1997S933

TAXES CONSOLIDATION ACT 1997 S957

FINANCE ACT 1988 S17

TAXES CONSOLIDATION ACT 1997 S933(1)

TAXES CONSOLIDATION ACT 1997 S957(2)

TAXES CONSOLIDATION ACT 1997 S957(4)

TAXES CONSOLIDATION ACT 1997 S957(5)

TAXES CONSOLIDATION ACT 1997 S957(6)

TAXES CONSOLIDATION ACT 1997 S933(1)(B)

TAXES CONSOLIDATION ACT 1997 S18(4)

TAXES CONSOLIDATION ACT 1997 S18(5)

TAXES CONSOLIDATION ACT 1997 S933(1)(C)

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)(D)

TAXES CONSOLIDATION ACT 1997 S933(7)

TAXES CONSOLIDATION ACT 1997 S933(9)

TAXES CONSOLIDATION ACT 1997 S961(1)

TAXES CONSOLIDATION ACT 1997 S958(2)

TAXES CONSOLIDATION ACT 1997 S958(3)

TAXES CONSOLIDATION ACT 1997 S961

TAXES CONSOLIDATION ACT 1997 S957(2)(A)

FAKIH v MIN FOR JUSTICE 1993 2 IR 406

TAXES CONSOLIDATION ACT 1997 S954

TAXES CONSOLIDATION ACT 1997 S998

TARA PROSPECTING LTD v MIN FOR ENERGY 1993 ILRM 771

CRIMINAL ASSETS BUREAU (CAB) v MCS (P) UNREP KEARNS 16.11.2001 2001/4 /912

TAXES CONSOLIDATION ACT 1997 S966

CRIMINAL ASSETS BUREAU ACT 1996 S8(2)

CRIMINAL ASSETS BUREAU ACT 1996 S4

CRIMINAL ASSETS BUREAU ACT 1996 S5(1)(B)

CRIMINAL ASSETS BUREAU ACT 1996 S5(2)

PHIPSON ON EVIDENCE 14ED PARA 18.02

PHIPSON ON EVIDENCE 14ED PARA 16.01

CRIMINAL ASSETS BUREAU ACT 1996 S10

CONSTITUTION ART 40

QUINNS SUPERMARKET v AG 1972 IR 1

FINANCE ACT 1983 S19(1)

GOODMAN INTERNATIONAL v HAMILTON (NO 1) 1992 2 IR 542

CONSTITUTION ART 34.1

INCOME TAX ACT 1967 S488

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

MAHER v AG 1973 IR 140

ROAD TRAFFIC ACT 1968

ROAD TRAFFIC ACT 1961 S49

KIELY v MIN SOCIAL WELFARE 1977 IR 279

DEIGHAN v HEARNE 1990 1 IR 499

INCOME TAX ACT 1967 S184(2)

INCOME TAX ACT 1967 S1416(6)

CRIMINAL ASSESTS BUREAU ACT 1996 S8(8)

EQUAL STATUS BILL 1997, RE 1997 2 IR 387 1998/18/6878

Abstract:

Revenue - Assessment for tax - Demand for payment - Whether demand valid - Defendant's right of appeal - Constitutional issues - Criminal Assets Bureau - Whether appropriate to give judgment for amount claimed - Taxes Consolidation Act 1997 - Criminal Assets Bureau Act 1996

Following an investigation the plaintiff made an assessment for tax on the defendant. The defendant purported to appeal the assessment. The plaintiff made a demand for payment on foot of the assessment and thereafter claimed against the defendant a sum in respect of income tax and interest in respect of the year of assessment 1994/95.

The defendant denied the plaintiff's claim and contended that: the assessment was unreasonable; the defendant had validly appealed and the assessment had not become final; in refusing to admit the appeal the plaintiff acted for the improper motive of frustrating the defendant's right of appeal; the demand was invalid; the demand could only be made after the expiration of the period for appealing; and the demand could not be made once the notice of appeal was given. The defendant also raised constitutional issues contending that: the statutory provisions enabling the plaintiff to avail of anonymity were unconstitutional; the proceedings were a stratagem to avoid the ordinary process of the criminal law; the plaintiff's proofs were unconstitutional; and certain provisions of the Taxes Consolidation Act 1997 were unconstitutional.

The defendant further raised issues in relation to estoppel/ legitimate expectation; an appeal under s. 933(7); the Criminal Assets Bureau's power to maintain proceedings in its own name; the admissibility of proceedings in the name of the Criminal Assets Bureau in absence of admissible evidence of criminal activity; and whether the certificate pursuant to Taxes Consolidation Act 1997 could be signed in the name of the Criminal Assets Bureau.

Held by Finnegan P. in giving judgment for the amount claimed that: the assessment was not ultra vires; the assessment had become final and conclusive; no evidence was led or elicited in cross examination to substantiate the bald assertion that an improper motive existed for refusing to admit the defendant's appeal; a valid demand had been made; and the plenary summons was issued after the expiration of the period allowed for an appeal and the claim was therefore admissible.

The provisions for anonymity were constitutional; the defendant had failed to satisfy the Court that the proceedings were in essence criminal; the provision permitting evidence by way of certificate did not infringe the Constitution; and each of the submissions of the defendant that the Criminal Assets Bureau Act 1996 were unconstitutional failed.

The defendant had no legitimate expectation arising from the information given on the assessment; the defendant was allowed a reasonable period in which to avail of the right of appeal; the proceedings were properly maintained in the name of the Criminal Assets Bureau.

Reporter: R.W.

1 Finnegan P. delivered on the 19th day of October 2004

2 By Plenary Summons issued on the 14 ^th April 1997 the Plaintiff claimed against the Defendant the sum of £1,623,067.45 for income tax and interest in respect of the year of assessment 1994/95. Following an investigation and enquiries a Bureau Officer of the Plaintiff who is also an Officer of the Revenue Commissioners made an assessment for tax on the Defendant in respect of the Tax Year 1994/95 pursuant to section 19 of the Finance Act 1983as amended. The assessment was served on the Defendant on the 25 ^th February 1997. By letter dated the 25 ^th March 1997 the Defendant inter alia purported to file a Notice of Appeal against the said assessment in the following terms-

"This letter is to be regarded as a Notice of Appeal of the said assessment in any event."

3 By letter dated 27 ^th March 1997 the Plaintiff replied in the following terms-

"Your letter purports to be a "Notice of Appeal" pursuant to the Taxes Acts, please note section 416 of the Income Tax Act 1967as amended. I am of the opinion that this letter is not a Notice of Appeal, as it has not complied with the requirements as set out in section 17(4) of the Finance Act 1988as amended. I am therefore not admitting your appeal."

4 On the 1 ^st April 1997 a demand for payment on foot of the assessment was made on the Defendant pursuant to the Income Tax Act 1967section 478 as amended.

5 A Statement of Claim having been delivered the Defendant delivered a Defence and Counterclaim on the 1 ^st August 1997. Apart from denials putting the Plaintiff to proof the Defence raised the following issues:

6 1. The assessment was unreasonable, irrational, arbitrary, and capricious, was made for improper purposes, and is ultra vires the statutory powers in accordance with which it was purportedly made, invalid, null and void.

7 2. The Defendant validly appealed the assessment and it has not become final and conclusive.

8 3. On the 24 ^th February 1997 Officers of the Plaintiff seized papers the property of the Defendant from the Offices of his Solicitor, the Offices of his Accountant and his dwelling house and by reason thereof the Plaintiff is estopped from contending that the Notice of Appeal failed to comply with the provisions of the Finance Act 1988section 17(4). In refusing to admit the appeal the Plaintiff acted for the improper motive of frustrating the Defendant's right of appeal.

9 4. The demand is invalid, null and void the assessment upon which it was based being itself invalid, null and void.

10 5. The demand is invalid, null and void in that such demand can only be made after the expiration of the period for appealing the assessment upon which it is based.

11 6. The demand is invalid, null and void because demand may not be made once the Notice of Appeal has been given.

12 The Counterclaim seeks an Order directing the Plaintiff to return to the Defendant all documents seized by the Plaintiff. The documents have already been returned and this issue is moot save and except in respect of such costs of the counter claim as might be awarded. A Reply and Defence to Counterclaim was delivered: the Defence to Counterclaim denies the Defendant's plea that by reason of the seizure of documents the Defendant was unable to comply with the requirements for a valid appeal.

13 I will refer to the foregoing issues as the non constitutional issues. In addition constitutional issues arise as follows. The Defendant served on the Attorney General a notice pursuant to the Rules of the Superior Courts Order 60. The...