Irwin v Grimes

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 04 April 2008
• Neutral Citation: [2008] IEHC 86
• Docket Number: [No. 53R/2005]
• Court: High Court
• Date: 04 April 2008

[2008] IEHC 86

THE HIGH COURT

[No. 53R/2005]

Irwin v Grimes

(REVENUE)

BETWEEN

LIAM J. IRWIN

PLAINTIFF

AND

MICHAEL GRIMES

DEFENDANT

TAXES CONSOLIDATION ACT 1997 S933

TAXES CONSOLIDATION ACT 1997 S942

TAXES CONSOLIDATION ACT 1997 S942(1)

TAXES CONSOLIDATION ACT 1997 S962

TAXES CONSOLIDATION ACT 1997 S957

TAXES CONSOLIDATION ACT 1997 S919(4)

TAXES CONSOLIDATION ACT 1997 S922

TAXES CONSOLIDATION ACT 1997 S933(1)(a)

TAXES CONSOLIDATION ACT 1997 S933(7)(c)

TAXES CONSOLIDATION ACT 1997 S933(7)

TAXES CONSOLIDATION ACT 1997 S933(9)

TAXES CONSOLIDATION ACT 1997 S933(6)(a)

Abstract:

Revenue - Income tax - Assessments - Appeals - New circumstances - Taxes Consolidation Act 1997, s. 933

Facts: The Collector General of the Revenue Commissioners brought proceedings by way of summary summons claiming sums due for arrears of income tax payable by the defendant. The defendant raised a preliminary point, namely that that the Plaintiff’s proceedings were premature and misconceived on the basis that there were appeals in being in respect of each of the tax years in question which had not been dealt with and accordingly, the assessments raised in respect of each tax year were not conclusive.

Held Edwards J. in determining the issue against the defendant that in default of valid appeals having been filed the assessments for each of the tax years in question were final and conclusive by virtue of s. 933(6)(a) of the Taxes Consolidation Act 1997. While, strictly speaking, the defendant might be correct in stating that there was nothing in the legislation precluding the taxpayer from applying a second or third or more times to have a late appeal considered, there was no obligation on an inspector of taxes to entertain such an application, or indeed respond to it, unless some new circumstances were advanced.

Reporter: R.W.

Judgment of

Mr. Justice John Edwards

1 delivered on the 4th day of April, 2008.

2 These proceedings are brought by way of summary summons by the Collector General of the Revenue Commissioners against the defendant claiming the sum of €96,576.28 as being the total sum due for arrears of income tax payable by the defendant in respect of the income tax years 1978/1979, 1979/1980, 1980/1981, 1981/1982, 1982/1983, 1983/1984 and 1989/1990. The matter came before me by way of a motion brought by the plaintiff seeking liberty to enter final judgment for the said sum. The plaintiff was represented by solicitor and counsel. The defendant represented himself. At the commencement of the proceedings the defendant indicated that he wished to raise a preliminary objection. He contended that the plaintiff's proceedings were premature and misconceived on the basis that there were appeals in being in respect of each of tax years in question which had not been dealt with. Accordingly, assessments raised in respect of each tax year were not conclusive. Counsel for the plaintiff indicated that he had no objection to this point being dealt with by way of preliminary issue and accordingly both sides presented their respective submissions on the point raised. I determined the preliminary issue against the defendant and I indicated that I would give my reasons for doing so at a later date in written judgment. I now give my reasons.

3 Before recounting in detail the evidence relevant to the preliminary issue, and the basis of the defendant's argument on the preliminary issue, I think it is necessary to set out the relevant legislative provisions.

4 Those portions of section 933 of the Taxes Consolidation Act,1997, relevant to the issue that I have had to decide, are in the following terms.

5 a (1) (a) A person aggrieved by any assessment to income tax or corporation tax made on that person by the inspector or such other officer as the Revenue Commissioners shall appoint in that behalf (in this section referred to as "other officer" (shall be entitled to appeal to the Appeal Commissioner on giving, within 30 days after date of the notice of assessment, notice in writing to the inspector or other officer.

6 (b) Where on an application under paragraph (a) the inspector or other officer is of the opinion that the person who has given the notice of appeal is not entitled to make such an appeal, the inspector or other officer shall refuse the application and notify the person in writing accordingly, specifying the ground for such refusal.

7 (c) A person who has had an application under paragraph (a) refused by the inspector of other officer shall be entitled to appeal against such refusal by notice in writing to the Appeal Commissioners within 15 days of the date of issue by the inspector or other officer of the notice of refusal.

8 (d) On receipt of an application under paragraph (c), the Appeal Commissioners shall request the inspector or other officer to furnish them with a copy of the notice issued to the person under paragraph (b) and, on receipt of the copy of the notice, they shall as soon as possible -

9 (i) refuse the application for an appeal by giving notice in writing to the applicant specifying the grounds for their refusal, and

10 (ii) allow the application for an appeal and give notice in writing accordingly to both the applicant and the inspector or other officer, or

11 (iii) notify in writing both the applicant and the inspector or other officer that they have decided to arrange a hearing at such time and place specified in the notice to enable them determine whether or not to allow the application for an appeal.

…

12 (4) All appeals against assessment to income tax or corporation tax shall be heard and determined by the Appeal Commissioners, and their determination on any such appeal shall be final and conclusive, unless the person assessed requires that that person's appeal shall be reheard under section 942 or unless under the Tax Acts a case is required to be stated for the opinion of the High Court.

…

13 (6) (a) In default of notice of appeal by a person to whom notice of assessment has been given, the assessment made on that person, shall be final and conclusive.

…

14 a (7) (a) A Notice of Appeal not given within the time limit by subsection (1) shall be regarded as having being so given where, on an application in writing having been made to the inspector or other officer in that behalf within twelve months after the date of the notice of assessment, the inspector or other officer, being satisfied that owing to absence, sickness or other reasonable cause the applicant was prevented from giving notice of appeal within the time limited and that the application was made thereafter without reasonable delay, notifies the applicant in writing that the application under this paragraph has been allowed.

15 (b) Where on an application under paragraph (a) the inspector or other officer is not so satisfied; he or she shall by notice in writing inform the applicant that the application under this paragraph has been refused.

16 (c) Within 15 days after the date of a notice under paragraph (b) the applicant may by a notice in writing require the inspector or other officer to refer the application to the Appeals Commissioners and, in relation to any application so referred, paras. (a) and (b) shall apply as if for every reference in those paragraphs to the inspector or other officer there were substituted a reference to the Appeals Commissioners.

17 (d) Notwithstanding paragraph (a) an application made after the expiration of the time specified in that paragraph, which but for that expiration would have been allowed under para. (a) maybe allowed under that paragraph if at the time of the application -

18 (i) there has been made to the inspector or other officer a return of income or, as the case may be, a return under section 884, statements of profits and gains and such other information as in the opinion of the inspector or other officer would enable the appeal to be settled by agreement under subsection (3), and

19 (ii) the income tax or corporation tax charged by the assessment in respect of which the application is made has been paid together with any interest on that tax chargeable under section 1080.

20 (e) Where on an application referred to in paragraph (d) the inspector or other officer is not satisfied that the information furnished would be sufficient to enable the appeal to be settled by agreement under subsection (3) or if the tax and interest mentioned in paragraph (d) (ii) have not been paid, the inspector of other officer shall by notice in writing inform the applicant that the application has been refused.

21 (f) Within 15 days after the date of a notice under paragraph (e) the applicant may by notice in writing require the inspector or other officer to refer the application to the Appeals Commissioner and, in relation to an application so referred, if -

22 (i) the application is one which but for the expiration of the period specified in paragraph (a) would have been allowed under paragraph (c) if the application had been referred to the Appeals Commissioners under that paragraph,

23 (ii) at the time the application was referred to the Appeals Commissioners the income tax or corporation tax charged by the assessment in respect of which the application is made, together with any interest on that tax chargeable under section 1080, has been paid, and

24 (iii) the information furnished to the inspector or other officer is such that in the opinion of the Appeal Commissioners the appeal is likely to be determined on the first occasion on which it comes before them for hearing, the Appeals Commissioner may allow the application

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25 a (9) (a) Where action for the recovery of income tax or corporation tax charged by an assessment has been taken, being action by means of the institution of proceedings in any court or the issue of a...