Gerard Gaffney v Revenue Commissioners
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Ms. Justice Dunne |
| Judgment Date | 01 February 2013 |
| Neutral Citation | [2013] IEHC 651 |
| Date | 01 February 2013 |
[2013] IEHC 651
THE HIGH COURT
BETWEEN
AND
TAXES CONSOLIDATION ACT 1997 S1077E
TAXES CONSOLIDATION ACT 19971997 SCHED 29 COLUMN 1
TAXES CONSOLIDATION ACT 19971997 SCHED 29 COLUMN 3
TAXES CONSOLIDATION ACT 1997 S1077D(2)
TAXES CONSOLIDATION ACT 1997 S1077E(4)(A)
TAXES CONSOLIDATION ACT 1997 S1077E(7)(A)(I)
TAXES CONSOLIDATION ACT 1997 S1077E(4)(B)
TAXES CONSOLIDATION ACT 1997 S1077E(7)(B)(II)
TAXES CONSOLIDATION ACT 1997 S1077E(11)
TAXES CONSOLIDATION ACT 1997 S1077E(12)
TAXES CONSOLIDATION ACT 1997 S1077E(15)
LAWLOR v FLOOD 1999 3 IR 107
MCGRATH v MCDERMOTT 1988 IR 258
REVENUE COMMISSIONERS v DOORLEY 1933 IR 750
INSPECTOR OF TAXES v KIERNAN 1982 ILRM 13
DUNNE v DONOHOE 2002 2 IR 533
CROFTON v MIN FOR ENVIRONMENT UNREP HEDIGAN 10.3.2009 2009 IEHC 114 2009/10/2359
MISHRA v MIN FOR JUSTICE 1996 1 IR 189
SHERWIN v MIN OF THE ENVIRONMENT 2004 4 IR 279
WHELAN v KIRBY 2005 2 IR 30
MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701
HARRIS v QUIGLEY 2006 1 ILRM 401
TAXES CONSOLIDATION ACT 1997 S1077E(2)
TAXES CONSOLIDATION ACT 1997 S1077E(3)
TAXES CONSOLIDATION ACT 1997 S1077E(5)
TAXES CONSOLIDATION ACT 1997 S1077E(6)
TAXES CONSOLIDATION ACT 1997 S1077E(15)(A)
GARDA REPRESENTATIVE ASSOCIATION v MIN FOR JUSTICE UNREP CHARLETON 25.3.2010 2010/20/4951 2010 IEHC 78
REVENUE
Statutory interpretation
Application for judicial review - Denial of option of making qualifying disclosure - Construction of statutory provisions - Statutory interpretation - Interpretation of taxation statutes - Code of practice for revenue audit - Notification of investigation - Exercise of discretion - Whether refusal to allow prompted qualifying disclosure amounted to adoption of fixed policy and fettering of discretion - Whether discretion as to notification - Literal construction - Purposive interpretation - Whether decision and policy ultra vires - Exercise of discretion - Legitimate expectations - Whether obligation to afford opportunity to make prompted qualifying disclosure - Whether distinction between audit and investigation - Whether decision unreasonable or irrational - Lawlor v Flood [1999] 3 IR 107; McGrath v Dermott [1988] IR 258; Revenue Commissioners v Doorley [1933] IR 750; Inspector of Taxes v Kiernan [1982] ILRM 13; Dunne v Donohoe [2002] 2 IR 533; Re N A Solicitor (Unrep, Finlay P, 30/6/1980); Crofton v Minister for Environment, Heritage and Local Government [2009] IEHC 114, (Unrep, Hedigan J, 10/3/2009); Mishra v Minister for Justice, Equality and Law Reform [1996] 1 IR 189; Breen v Minister for Defence [1994] 2 IR 34; Sherwin v Minister of the Environment [2004] 4 IR 279; Whelan v Kirby [2004] IESC 17, [2004] IESC 66, [2005] 2 IR 30; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; Harris v Quigley [2005] IEHC 81, [2005] IESC 79, [2006] 1 ILRM 401 and Garda Representative Association v Minister for Justice [2010] IEHC 78, (Unrep, Charleton J, 25/3/2010) considered - Taxes Consolidation Act 1997 (No 39), s 1077E - Relief refused (2011/720JR - Dunne J - 1/2/2013) [2013] IEHC 651
Gaffney v Revenue Commissioners
Facts: In this case the applicant sought judicial review of a decision of the respondents dated the 8th March, 2011, denying the applicant the option of making a qualifying disclosure in respect of his tax affairs. This application concerned the construction of the provisions of s 1077E of the Taxes Consolidation Act 1997. The central issue before the Court was whether or not the Revenue had an obligation to afford the applicant an opportunity to make a prompted qualifying disclosure in the circumstances of the case.
Held by Justice Dunne in light of the submissions presented and the applicable legislative provisions that the applicant was not entitled to the relief claimed. Acknowledging that an investigation had already commenced into the liability to the tax affairs of the applicant prior to any disclosure being made by the applicant that having regard to the terms of s 15(a), the applicant was not someone to whom the opportunity of making a prompted qualifying disclosure was open. The Court reasoned that the terms of s 1077E were clear and they could not see any basis on which it could be said that there was a discretion conferred on the Revenue as to when a prompted qualifying disclosure could be made. Having regard to the view that the respondents were not obliged to afford the applicant an opportunity to make a prompted qualifying disclosure in the circumstances of this case, it followed that there was no unreasonableness or irrationality on the part of the respondents in not affording the applicant such opportunity. Consequently, Justice Dunne determined that the relief sought be refused.
JUDGMENT of Ms. Justice Dunne delivered the 1st day of February 2013
The applicant herein seeks judicial review of a decision of the respondents dated the 8 th March, 2011, denying the applicant the option of making a qualifying disclosure in respect of his tax affairs. This application concerns the construction of the provisions of s. 1077E of the Taxes Consolidation Act 1997 ("s. 1077E" and "the Act"). In order to understand the nature of the applicant's claim for judicial review in these proceedings it would be helpful to set out in full the provisions of s. 1077E of the Act:-
1. "The Acts" means the Tax Acts, the Capital Gains Tax Acts and Parts 18A and 18B of this Act;
"carelessly" means failure to take reasonable care;
"liability to tax" means a liability to the amount of the difference specified in subsection ( 11) or (12) arising from any matter referred to in subsection (2), (3), ( 5) or (6);
"period" means a year of assessment or accounting period [or a return period, as defined in section 530] 1, as the context requires;
"prompted qualifying disclosure", in relation to a person, means a qualifying disclosure that has been made to the Revenue Commissioners or to a Revenue officer in the period between -
(a) the date on which the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, and
(b) the date that the investigation or inquiry starts;
"qualifying disclosure", in relation to a person, means-
(a) in relation to a penalty referred to in subsection (4), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and Ml particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (4), and full particulars of all matters occasioning any liability to tax or duty that gives rise to a penalty referred to in section 116(4) of the Value-Added Tax Consolidation Act 2010, section 134A(2) of the Stamp Duties Consolidation Act 1999 and the application of subsection (4) to the Capital Acquisitions Tax Consolidation Act 2003, and
(b) in relation to a penalty referred to in subsection (7), a disclosure that the Revenue Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (7) for the relevant period under whichever of the Acts the disclosure relates to, made in writing to the Revenue Commissioners or to a Revenue officer and signed by or on behalf of that person and that is accompanied by -
(i) a declaration, to the best of that person's knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and
(ii) a payment of either or both of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty.
"Revenue officer" means an officer of the Revenue Commissioners;
"tax" means income tax, corporation tax, capital gains tax, income levy or parking levy;
"unprompted qualifying disclosure", in relation to a person, means a qualifying disclosure that the Revenue Commissioners are satisfied has been voluntarily furnished to them -
(a) before an investigation or inquiry had been started by them or by a Revenue officer into any matter occasioning a liability to tax of that person, or
(b) where the person is notified by a Revenue officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, before that notification."
2. Where any person -
(a) delivers any incorrect return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29 which contains a deliberate understatement of income, profits or gains or a deliberately false or overstated claim in connection with any allowance, deduction, relief or credit,
(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction, relief or credit and does so deliberately, or
(c) submits to the Revenue Commissioners, the Appeal Commissioners or a Revenue officer any incorrect accounts which contain a deliberate understatement of income, profits or gains or a deliberate overstatement of any claim in connection with any allowance, deduction, relief or credit, that person shall be liable to a penalty.
3. Where any person deliberately fails to comply with a requirement to deliver a return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29, that person shall be liable to a penalty.
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