Doyle v Judge Hickson
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] IECA 251 |
| Date | 25 July 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 251 [2016 No. 277] |
AND
[2018] IECA 251
Neutral Citation Number: [2018] IECA 251
[2016 No. 277]
THE COURT OF APPEAL
Order of certiorari – Preliminary application – Judicial review – Appellant seeking to challenge the refusal to accede to the preliminary application by way of judicial review – Whether the decision of the Circuit Court judge ought to be quashed by way of judicial review
Facts: The appellant, Mr Doyle, appealed to the Court of Appeal from a decision of the High Court (Barr J) of 6th May 2016 refusing an order of certiorari in respect of a decision of the first respondent, Judge Hickson, sitting in the Circuit Court in Wexford of 9th April 2014. The underlying proceedings concerned an appeal to the Circuit Court against the decision of the Revenue Appeals Commissioners. Immediately before the opening of the substantive appeal, counsel on behalf of the appellant made a preliminary application to the judge, seeking the dismissal of the amended assessments that were in issue, they being those in respect of Income Tax for the tax years ending 5th April 1992 and 5th April 1994. The appellant sought to challenge the refusal to accede to the preliminary application by way of judicial review.
Held by Birmingham P that while the Circuit Court judge’s reasoning may have been flawed, he was entirely correct when he decided to reject the preliminary application which was an application based on a clear misinterpretation of s. 5 of the Waiver of Certain Tax, Interest and Penalties Act 1993. Birmingham P held that there could be no possible justification for quashing the decision of the Circuit Court judge by way of judicial review.
Birmingham P held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal from a decision of the High Court (Barr J.) of 6th May 2016 refusing an order of certiorari in respect of a decision of Judge Barry Hickson sitting in the Circuit Court in Wexford of 9th April 2014. The underlying proceedings concerned an appeal to the Circuit Court against the decision of the Revenue Appeals Commissioners. Immediately before the opening of the substantive appeal, counsel on behalf of the appellant made a preliminary application to the judge, seeking the dismissal of the amended assessments that were in issue, they being those in respect of Income Tax for the tax years ending 5th April 1992 and 5th April 1994. The appellant has sought to challenge the refusal to accede to the preliminary application by way of judicial review.
By way of background, on 18th May 2005, the appellant submitted a Notice of Intention to Make a Qualifying Disclosure in relation to tax defaults to the Revenue Commissioners Underlying Tax (Insurance Products) Project. The disclosure was made in circumstances where Mr. Doyle had invested IR£57,000 on 1st July 1991 and a further IR£42,775 on 28th February 1994. The defaults were indicated to be in respect of earnings between 1954 and 1980. For completeness, it should be noted that Mr. Doyle's accountants subsequently informed the Revenue Commissioners that the funds invested had been earned from farming activity prior to 1980, at a time when the appellant was not liable to pay Income Tax in respect of farming income. Mr. Doyle had been a farmer all his life, he is now aged 77 years and currently farms 164 acres in County Waterford.
By letter dated 18th October 2006, the appellant was informed that his case had been selected for examination in accordance with the provisions of the Code of Practice for Revenue Auditors. Revenue was not satisfied with Mr. Doyle's explanations and amended Notices of Assessment were raised on 22nd October 2010 in respect of undeclared income in respect of the tax years ended 5th April 1992 and 5th April 1994. The appellant appealed the amended assessments and a hearing took place before the Appeal Commissioners who dismissed the appeal and confirmed the assessments. The appellant remained dissatisfied and determined to appeal to the Circuit Court pursuant to the provisions of s. 942 of the Taxes Consolidation Act 1997. The matter was listed in June 2013, but not reached in the Court list, and ultimately it came on for hearing on 9th April 2014. At that stage, counsel on behalf of the appellant indicated that there was a preliminary issue that he wished to raise. The point he wished to canvass arose from the fact that Mr. Doyle had availed of the so-called tax Amnesty or the provisions of the Waiver of Certain Tax, Interest and Penalties Act 1993, to give it its full name. Counsel said that a Waiver Certificate had issued to his clients in accordance with the statutory provisions and that his client had produced the Certificate to the Revenue Commissioners in May/June 2001. Moreover, having done so, by virtue of that fact, the Revenue was precluded by statute from carrying on any further enquiries.
In response to the application, counsel on behalf of the Revenue Commissioners, placed reliance on s. 955 of the Taxes Consolidation Act 1997. Section 955(2) provides as follows:
‘(2)(a) Where a chargeable person has delivered a return for a chargeable period and has made in the return a full and true disclosure of all material facts necessary for the making of an assessment for the chargeable period, an assessment for that period or an amendment of such an assessment shall not be made on the chargeable person after the end of 4 years commencing at the end of the chargeable period to which the return is delivered and
(i) no additional tax shall be payable by the chargeable person after the end of that period of 4 years and
(ii) no tax shall be repaid after the end of a period of 4 years commencing at the end of the chargeable period for which the return is delivered by reason of any matter contained in the return.
(b) Nothing in this subsection shall prevent the amendment of an assessment—
(i) where a relevant return does not contain a full and true disclosure of the facts referred to in paragraph (a),
(ii) to give effect to a determination on any appeal against an assessment,
(iii) to take account of any fact or matter arising by reason of an event occurring after the return is delivered,
(iv) to correct an error in calculation, or
(v) to correct a mistake of fact whereby any matter in the assessment does not properly reflect the facts disclosed by the chargeable person,
and tax shall be paid or repaid (notwithstanding any limitation in section 865(4) on the time within which a claim for a repayment of tax is required to be made) where appropriate in accordance with any such amendment, and nothing in this section shall affect the operation of section 804(3).’
He submitted that the Revenue's position was that Mr. Doyle had not made a full and true disclosure in respect of the IR£100,000 invested and that the position of the Revenue was, and had been from the outset, that this represented suppressed or undeclared income. He pointed out that the onus was on the taxpayer, in this case Mr. Doyle, to show how the income arose. Counsel on behalf of the appellant continued to assert that the effect of the Amnesty provisions was to preclude or cut off any enquiries by Revenue. In response, counsel for the Revenue said that there were statutory provisions in the Amnesty legislation in s. 4(1)(b) which mirrored in some way the wording of section 955. He said that the Amnesty provisions and s. 955 were mutually independent. Judge Hickson then ruled as follows, and it is this ruling which the appellant has sought to challenge by way of judicial review:
‘[w]ell, I do not need to consider the Amnesty. The correct and true construction of the section has to be read in conjunction with whatever is set out in 955.2(a) but also in 2(b):
“Nothing in the subsection shall prevent the amendment of an assessment where a relevant return does not contain a full and true disclosure of the facts referred to in paragraph (a) and to give effect to the determination in any appeal against an assessment or to take account of any fact or matter arising by raising an event after the return is delivered”.
If a full and true disclosure of the facts has not been made, then I am I satisfied section 955.2(b) is relevant to this case and I am not holding with your application.’
Then, in response to a query from counsel for the appellant, the judge confirmed that his ruling applied in relation to s. 955 and also in relation to the Amnesty point.
In the judicial review proceedings, the applicant sought the following reliefs:
‘(i) An order of certiorari by way of judicial review quashing the decision/order of the Circuit Court dated 9th April 2014 determining that the applicant was indebted to the Revenue Commissioners in the sum of €30,991 plus interest and penalties thereon.
(ii) A declaration that there is no jurisdiction for either the respondent or any other party in any form to hear and determine, or carry out any enquiry, or make any order relating to the payment or non-payment of taxes for a relevant period where there is in...
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