Express Motor Assessors Ltd ((in Liquidation)) v Revenue Commissioners

JudgeMs. Justice Stack
Judgment Date21 June 2021
Neutral Citation[2021] IEHC 420
Docket Number[Record No. 2020/89R]
CourtHigh Court
Express Motor Assessors Limited (In Liquidation)
Revenue Commissioners

[2021] IEHC 420

[Record No. 2020/89R]



JUDGMENT of Ms. Justice Stack delivered on the 21st day of June 2021.


This is an application by the appellant for an order pursuant to s.949AR of the Taxes Consolidation Act, 1997, (“the TCA”) amending the case stated dated 13 July, 2020, whereby Appeals Commissioner Phelan referred a case stated to this court on a point of law. This application was brought by notice of motion dated 10 November, 2020, which cited s.949AF. However, this typographical error was corrected by application to amend at the commencement of the application.


The two questions sought to be added to the case stated are as follows:

Question 1 asks if the Commissioner was correct in law “in proceeding to continue with the hearing in ignoring the irregularities of the Revenue Audit process in which the Liquidator's view was that Revenue acted unlawfully in the conduct of the audit, in obtaining information and documentation and in holding interview/meetings with persons who did not represent the company”. Question 2 asks if the Commissioner was correct in law “in allowing the Respondent to be in a position to object to any sworn evidence before hearing or seeing the evidence”.


It is common case that the jurisdiction of this Court is set out in s. 949AR of the TCA. This provides:

  • “(1) The High Court shall hear and determine any question of law arising in a case stated and—

    • (a) shall reverse, affirm or amend the determination of the Appeal Commissioners,

    • (b) shall remit the matter to the Appeal Commissioners with its opinion on the matter, or

    • (c) may make such other order in relation to the matter as it thinks just, and may make such order as to costs as it thinks fit.

  • (2) The High Court may send the case stated back to the Appeal Commissioners for amendment, in which case—

    • (a) the Appeal Commissioners shall amend the case stated accordingly, and

    • (b) the High Court shall, thereafter, proceed in one of the ways specified in subsection (1).”


Before turning to the legal issues that fall to be decided, it is necessary to refer to the Determination of the Appeals Commissioner and to the terms of the case stated itself. In his Determination of 30 April, 2020, Commissioner Phelan specifically referred at paras. 77–81 of his Determination to certain objections that the Appellant had made to the Revenue audit and investigation of its affairs, given that it was in voluntary liquidation at the time of the audit. The Liquidator, who represented the appellant at the hearing before the Commissioner, had objected to the lawfulness of the Revenue audit giving rise to the relevant assessments to tax. The unlawfulness was said to arise by reason of the fact that the Appellant was in voluntary liquidation and therefore could only be properly represented by the Liquidator rather than the Directors. The Appellant relied on s. 677 of the Companies Act, 2014. It was submitted by the Liquidator, who represented the appellant at the hearing before the Appeals Commissioner, that it was unlawful on the part of Revenue to communicate directly with the Directors of the appellant as they no longer had power to represent it.


Objection was also made to the fact that a former director had provided books and records of the appellant to Revenue officials and had attended meetings with Revenue without the permission of the Liquidator and in the absence of the Liquidator. One of the complaints made to the Commissioner in the course of the appeal was that the Liquidator had not been properly notified of meetings with the Revenue, and this position was maintained in the application before me. As noted by the Commissioner at para. 78 of his Determination, the Revenue disputed the allegation that the Liquidator had not been notified and, similarly, maintained that position in the hearing of the application before me.


While noting the stance of the Revenue at para. 78 of his Determination, the Commissioner however, made it clear that he did not feel that he had jurisdiction to deal with the complaint at all. He continued:

“79. The Determinations that can be made by an Appeal Commissioner are those delineated in ss. 949AK and 949AL of TCA 1997. Those provisions confine the Appeal Commissioners to making a Determination in relation to the assessments, decisions, determinations or other matters which are the subject matter of the appeal actually before the Appeal Commissioners. The jurisdiction of the Appeal Commissioners is confined to interpreting tax legislation and ensuring that the Revenue Commissioners have complied with that legislation. The Appeal Commissioners do not have the jurisdiction to determine whether a legislative provision is discriminatory or unfair or otherwise unlawful, we are not empowered by statute to apply the principles of equity or to grant declaratory relief.

80. Accordingly, I am satisfied that it would be ultra vires for me to embark upon a consideration of, or to make a finding or determination in relation to, the issue of whether the conduct of the Revenue investigation in this case is, as argued by the Appellant, discriminatory or unfair or otherwise unlawful. I must therefore decline to consider this argument or to make any finding in relation thereto.

81. I do not consider that the jurisdiction of the Tax Appeal Commissioner extends to decide on matters of criminal import.”


It is clear, therefore, from the Determination, that the Appeals Commissioner determined that he did not have jurisdiction to entertain the complaints and therefore made no findings of fact whatsoever as to what had occurred in the course of the audit, or whether the Revenue had, as they contended, in fact put the Liquidator on notice of the various meetings. He also declined to make any findings on the alleged unlawfulness of the Revenue officials who carried out the investigation and audit of the appellant's affairs.


In the course of preparing the case stated, various submissions were made to the Appeals Commissioner by the appellant as to the inclusion of questions additional to the one which was ultimately included. The two questions now sought to be included in this appeal by way of amendment were in fact first formulated by Appeals Commissioner Phelan to reflect the submissions made by the appellant as to what should be included in the case stated, albeit that he declined to include them. Instead, he stated a case on a single question and the appeal on that point is awaiting the outcome of this application.


As regards the first question, the Commissioner found at para. 26.I, that he did not have the jurisdiction to determine whether the actions of the Revenue Commissioners were unlawful in conducting investigations that arise at the assessments under appeal, as his jurisdiction was determined by ss. 949AK and 949AL, TCA, as amended. In other words, he repeated his finding, previously made in his Determination, that he had no jurisdiction to consider the matter and it was therefore inappropriate to state a case on that question of law for the High Court.


In para. 26.II of the case, the Commissioner rejected the application to include the second question, stating as follows:

“I do not consider that there is any point of law raised in this question in relation to an objection raised by the Respondent in relation to any sworn evidence. In fact, I adjourned the appeal for a short time to allow for discussions. On resumption I noted the objection and overruled it on the basis of s. 949AC TCA 1997.”

Issues arising on this Motion

Three issues arise for determination. First, Revenue submits that any amendment should be done by this Court rather than returning the case stated to the Appeals Commissioner for amendment. Secondly, there is a dispute between the parties as to whether the questions ought to be introduced into the case stated by amendment. Thirdly, Revenue submits that it was not necessary to bring a motion and the application to amend could and should be dealt with at the hearing of the substantive case stated in this Court.

(i) Whether this Court should amend the case stated or send it back for amendment

Counsel for the Appellant submits that subsection (2) is a stand-alone provision which envisages that the power of amendment is separate from the powers of the High Court set out in subsection (1), and therefore provides that only the Appeal Commissioner should amend the case stated. He relied on the principle expressio unius est exclusio alterius for the proposition that the explicit power of amendment for the Appeal Commissioner in subs. (2) indicated that this Court enjoyed no power of amendment pursuant to subs. (1). In the course of the hearing, this position was refined in light of the recent decision of Sanfey J. in O'Sullivan v. Revenue Commissioners [2021] IEHC 118, and counsel for the Appellant expressed the view that he would be satisfied for this Court, if it thought it appropriate to include the additional questions, to amend the case stated itself.


By contrast, counsel for Revenue relied heavily on O'Sullivan to argue that it would be unnecessary and inappropriate to send the matter back to the Appeals Commissioner for amendment. In that case, the parties agreed that the High Court had power to amend the questions in the case stated to reflect more accurately the legal issues which arose in that appeal. Sanfey J. referred to the previous decision of O'Malley J. in Untoy v. GE Capital Woodchester Finance Ltd [2015] IEHC 557, in which this Court had recast the questions in a case stated by the District Court pursuant to s.2 of the Summary Jurisdiction (Ireland) Act, 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act,...

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2 cases
  • Thomas McNamara v The Revenue Commissioners
    • Ireland
    • High Court
    • 12 July 2021
    ...[2021] IEHC 262, O'Sullivan v. Revenue Commissioners [2021] IEHC 118, and Express Motor Assessors Ltd v. Revenue Commissioners [2021] IEHC 420. From that statute and case-law, the following points/principles emerge (the points/principles are stated in Bold text; the application of them to t......
  • Niall Glynn, Colm McDonnell and Kevin Sheehan v The Revenue Commissioners
    • Ireland
    • High Court
    • 14 December 2021
    ...the question of whether an amendment is appropriate differs from that at issue in Express Motor Assessors v. Revenue Commissioners [2021] IEHC 420, there are some similarities. In that case, the question was whether the proposed legal issue was within the jurisdiction of the Appeal Commissi......

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