Gladney v McGregor Senior
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 06 October 2020 |
| Neutral Citation | [2020] IEHC 496 |
| Docket Number | [RECORD NO. 2016/78 R] |
| Court | High Court |
| Date | 06 October 2020 |
[2020] IEHC 496
Niamh Hyland J.
[RECORD NO. 2016/78 R]
THE HIGH COURT
Summary judgment – Debt – Arguable defence – Revenue Commissioners seeking to recover the sum of €1,716,811.26 on foot of a summary summons – Whether the defendant had established an arguable defence
Facts: The Revenue Commissioners sought to recover the sum of €1,716,811.26 on foot of a summary summons. The Revenue maintained that the sum identified in the Notice of Assessment was due and payable and that all the necessary proofs were before the High Court. The defendant, Mr McGregor, argued that the relief sought should not be granted given that no proof had been adduced that the plaintiff, Mr Gladney, was, in fact, the Collector-General. That argument was based exclusively on the decision of Clarke J in Criminal Assets Bureau v JMcN [2017] IESC 30. A further argument was made in the Written Submissions to the effect that the reference in the applicable legislation to “due and payable” was not sufficient to render the debt owing and that the words “final and conclusive” were required for this purpose. Further, the defendant made an argument that he was entitled to further particulars of the debt and discovery in respect of same, and that he was entitled to obtain same to ascertain whether he had an arguable defence.
Held by Hyland J that there is an explicit statutory basis authorising the Collector-General to bring proceedings to recover tax due and owing and it had been pleaded in the Summary Summons (and not controverted by the defendant) that Mr Gladney was the Collector-General. That plea was in her view a sufficient identification of Mr Gladney as the appropriate plaintiff and evidence was not required in that respect. Based on her analysis of the relevant statutory framework, she concluded there was no basis for arguing the words “final and conclusive” are required to render a debt due and payable. She held that the Collector-General was entitled to seek judgment for a debt that had been deemed due and payable. She held that the argument that the defendant was entitled to further particulars of the debt and discovery in respect of same, and that he was entitled to obtain same to ascertain whether he had an arguable defence did not withstand the very clear line of case law rejecting similar arguments, particularly the Supreme Court decision of Deighan v Hearne [1990] 1 I.R. 499.
Hyland J held that the amount in the Notice of Assessment became due and payable once the time to appeal expired. The defendant not having established an arguable defence, Hyland J held that the plaintiff was entitled to judgment in the sum of €1,716,811.26.
Liberty for summary judgment granted.
These proceedings concern the entitlement of the Revenue Commissioners to recover the sum of €1,716,811.26 on foot of a summary summons. A certain degree of confusion has attended these proceedings in circumstances where, as part of its application, the Revenue included two supplemental affidavits, one of Bernie Minihan sworn 10 July 2018 and one of David Quinn sworn 10 July 2018 both of which exhibited certificates issued pursuant to s.960J of the Taxes Consolidation Act 1997 (as amended). Those certificates certified that at the time of issue of the proceedings, an assessment to tax was duly made and a Notice of Assessment provided to the defendant, the assessment had become final and conclusive within the meaning of the Tax Acts, the sum of €1,712,253.55 in respect of arrears of tax and interest was due and outstanding and a demand had been made for the outstanding tax. Reliance on those certificates was maintained throughout the proceedings, including in the written submissions filed by the Revenue.
It was only on the morning of the hearing on 24 September 2020 that the Revenue withdrew its reliance upon the certificates and maintained that even without the certificates, the sum identified in the Notice of Assessment was due and payable and that all the necessary proofs were before the court. Much of the opposition of the defendant was based on the alleged unlawfulness of the certificates. Given the change of position in that respect by the Revenue, the defence narrowed down at the hearing to an argument that the relief sought should not be granted given that no proof had been adduced that Michael Gladney was, in fact, the Collector-General.
That argument was based exclusively on the decision of Clarke J. in Criminal Assets Bureau v. JMcN [2017] IESC 30, where he held, in the context of CAB legislation permitting an officer of the Revenue Commissioners to bring proceedings in his or her own name, that the proceedings could not be maintained as there was insufficient proof that the plaintiff was authorised to bring the proceedings.
I cannot agree that a similar requirement exists here where there is an explicit statutory basis authorising the Collector-General to bring proceedings to recover tax due and owing and where it has been pleaded in the Summary Summons (and not controverted by the defendant) that Mr. Gladney is the Collector-General. That plea is in my view a sufficient identification of Mr. Gladney as the appropriate plaintiff and evidence is not required in that respect.
A further argument was made in the Written Submissions to the effect that the reference in the applicable legislation to “due and payable” was not sufficient to render the debt owing and that the words “final and conclusive” were required for this purpose. Based on my analysis of the relevant statutory framework, I conclude there is no basis for arguing the words “final and conclusive” are required to render a debt due and payable. The Collector-General is entitled to seek judgment for a debt that has been deemed due and payable.
Further, the defendant made an argument that he was entitled to further particulars of the debt and discovery in respect of same, and that he was entitled to obtain same to ascertain whether he had an arguable defence. That argument did not withstand the very clear line of case law rejecting similar arguments, particularly the Supreme Court decision of Deighan v. Hearne [1990] 1 I.R.499.
On 29 July 2015 the Revenue issued a notice of assessment of tax payable (the “Notice of Assessment”) to the defendant in respect of Value Added Tax in the amount of €1,530,315.00 as identified in Column 4 of the Schedule to the Notice, being made up of an amount of €40,976 in respect of the period 1 September 2013 to 31 December 2013 and an amount of €1,489,339 in respect of the period 1 January 2014 to 31 December 2014. Column 4 is headed up “Balance of tax due and payable”. The Notice described the contents of Column 4 as follows:
“The balance of tax remaining due and payable in relation to each of the said periods is specified in column (4) of the said schedule”.
The Notice provided in respect of an appeal as follows:
“If you are aggrieved by the assessment you may appeal to the Appeal Commissioners by giving notice to me within a period of twenty-one days from the date of this notice and setting out the amounts or matters with which you are aggrieved and the grounds in detail of your appeal in relation to each amount or matter”.
…
Subject to the right of appeal, the Revenue Commissioners will proceed to recover the balance of tax set out in column (4) of the schedule.”
The supplemental Affidavit of David Quinn of 16 February 2017 avers to the fact that following an investigation by the Revenue into the defendant's activity as a motor dealer, the above Notice was issued to the defendant and his agent on 29 July 2015. He further avers that the defendant failed to lodge an appeal to the Appeal Commissioners against the assessments within the 21 day period allowed. This averment (not contested) is of considerable importance since as the review of the case law set out below shows, once no appeal is lodged, then the sum becomes due and payable.
Section 111 of the Value-added Tax Consolidation Act 2010 (as amended) sets out the procedure for recovery of VAT. Section 111(1) provides that where the inspector of taxes has reason to believe that an amount of tax is due and payable to the Revenue Commissioners by a person, the inspector may serve a notice on the person specifying the total amount so due and payable. Section 111(2), as it applied at the relevant time, is central to the Revenue's application:
(2) Where notice is served on a person under subsection (1), the following provisions shall apply:
(a) The person may, if he or she is aggrieved by the assessment on giving notice to the inspector or other officer within the period of 21 days from the date of the service of the notice, appeal to the Appeal Commissioners, and
(b) On the expiration of the said period, if no notice of appeal is received … the amount due … shall become due and payable as if the tax were tax which the person was liable to pay for the taxable period during which the period of 14 days from the date of the service of the notice under subsection (1) expired or the appeal was determined by agreement or otherwise, whichever taxable period is the later.
Section 119 of the same Act provides that the provisions of the Income Tax Acts relating to an appeal, including the extension of time for giving notice of appeal, shall apply to an appeal under s.111 subject to any necessary modifications.
The notion of a sum being “due and payable” is a critical one, since it is that which entitles the Collector-General to issue these proceedings and seek judgment for that sum.
Section 960C of the Taxes Consolidation Act 1997 provides:
Tax due and payable under the Acts shall be due and...
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