J (T) v Criminal Assets Bureau

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 01 May 2008
• Neutral Citation: [2008] IEHC 168
• Court: High Court
• Date: 01 May 2008

J (T) v Criminal Assets Bureau

JUDICIAL REVIEW

BETWEEN

T. J.

APPLICANT

AND

THE CRIMINAL ASSETS BUREAU

RESPONDENT

[2008] IEHC 168

No. 216 J.R./2006

THE HIGH COURT

REVENUE

Income tax

Self-assessment - Raising of notices of assessment - Appeal against assessment - Injunction sought requiring disclosure of information forming basis of assessment - Whether obligation to furnish documentation - Fair procedures - Legitimate expectation - Risk of allegations of criminal wrongdoing at hearing - Failure to establish prejudice - System of self-assessment - Entitlement to professional advice - Personal knowledge of income - Keogh v Criminal Assets Bureau [2004] 2 IR 159 and Glencar Exploration plc v Mayo County Council [2002] 1 IR 84 considered - Taxes Consolidation Act 1997 (No 39), ss 58, 922, 933, 934 and 954 - Application dismissed (2006/216JR - Gilligan J - 1/5/2008) [2008] IEHC 168

J(T) v Criminal Assets Bureau

Facts: The applicant sought by way of judicial review an order to require the respondent Inspector of taxes furnish the applicant with documents relating to tax assessments of the applicant obtained by him pursuant to the Criminal Assets Bureau Act 1996. The applicant contended inter alia that the refusal of the respondent to furnish the information was in breach of natural and constitutional justice.

Held by Gilligan J. that the applicant had failed to establish any entitlements to the reliefs sought. The applicant had no legitimate expectation that he would be provided with the information sought.

Reporter: E.F.

TAXES CONSOLIDATION ACT 1997 S922(3)

TAXES CONSOLIDATION ACT 1997 S954(5)

TAXES CONSOLIDATION ACT 1997 S58

TAXES CONSOLIDATION ACT 1997 S933

TAXES CONSOLIDATION ACT 19971997 PART 40

TAXES CONSOLIDATION ACT 1997 S934(1)

TAXES CONSOLIDATION ACT 1997 S934(3)

KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS 2004 2 IR 159 2004 2 ILRM 481 2004/26/6080

GLENCAR EXPLORATION PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

TAXES CONSOLIDATION ACT 1997 S58(1)

1 1. By order of this Court (Peart J.) as made on the 27 ^th day of February, 2006, the applicant was given leave to apply for judicial review for the following reliefs.

1 An Order by way of an injunction requiring the Respondent to furnish the Applicant with all details documents and information relating to the raising of income tax assessments by the Respondent in respect of the Applicant in relation to the tax years 1992/93 to 2003 inclusive

2 An Order by way of an interlocutory injunction restraining the Respondent from taking any role in the Applicant's appeal of the said assessments until such time as such details documents and information is disclosed

3 A declaration that the refusal on the part of the Respondent to furnish the information requested amounts to a breach of the Applicant's constitutional entitlement to natural justice and fair procedures and further infringes his entitlement to a fair hearing under Article 6 of the European Convention on Human Rights

4 An order of certiorari in respect of the Notices of Assessment delivered by the Respondent dated 21 ^st February 2005

5 Such further or other relief as the Court may deem meet.

6 The cost of and incidental to these proceedings

2 2. The factual background to the proceedings is that the respondent is the Inspector of Taxes appointed in respect of the applicant. During the course of his investigations into the tax affairs of the applicant the respondent obtained certain papers pursuant to statutory powers pursuant to the Criminal Assets Bureau Act 1996 from the offices of the applicant's accountant.

3 3. On the 21 ^st day of February, 2005, the respondent raised income tax assessments and amended assessments on the applicant for the years 1992/1993 through until the year 2003 inclusive, pursuant to s. 922(3) of the Taxes Consolidation Act 1997 as amended.

4 4. In accordance with s. 954(5) of the Taxes Consolidation Act 1997 as amended, there is no provision whereby a notice of assessment as raised has to set out or detail any particulars other than the amount of tax to be paid by the chargeable person and accordingly, in each of the assessments and revised assessments, the respondent set out the amount of income tax due under the heading Schedule D, Case IV- Miscellaneous Income, pursuant to s. 58 of the Taxes Consolidation Act 1997.

5 5. In accordance with s. 922(3) of the Taxes Consolidation Act 1997 as amended, the said notices of assessment and notices of amended assessment were assessed by the respondent on the basis of the Inspector's best judgment.

6 6. The applicant at all times was professionally advised by his accountant, and in March 2005, appealed against the assessments raised in relation to the income tax years 1992/1993 through until the year 2003 inclusive, pursuant to s. 933 of the Taxes Consolidation Act 1997 as amended. Once the applicant invoked the said appeal procedure the respondent functioned in accordance with the legislative appeal provisions contained within part 40 of the Taxes Consolidation Act 1997 as amended.

7 7. The applicant was notified by letter dated the 20 ^th of January, 2006, from the respondent that the appeal of the assessments was listed for hearing before the Office of the Appeal Commissioners on the 10 ^th of March, 2006.

8 8. By letter dated the 10 ^th of February, 2006, from the plaintiff's solicitors on behalf of the applicant, the applicant sought disclosure of all the information forming the basis of the assessments as made by the respondent in its capacity as the Inspector of Taxes appointed in respect of the applicant.

9 9. By letter dated the 13 ^th of February, 2006, the respondent offered to return all papers which were removed by the respondent from the offices of the applicant's accountants. These being the only papers furnished by, or on behalf of the applicant.

10 10. The case made out on behalf of the applicant through his solicitor is to the effect that the various assessments are round figures which have been assessed in respect of what is referred to as miscellaneous income. It is alleged that even the most cursory examination of the figures suggests that they are arbitrary. It is set out that the notice of assessments are not accompanied by any other documentation, and further that given the statutory remit on powers of the respondent, the applicant is entitled to assume that it is the respondent's position that the alleged income of the applicant arises from as yet unspecified criminal activity.

11 11. It is alleged on the applicant's behalf that he has made the necessary returns, accompanied by payment of certain specified monies and notices of appeal.

12 12. The applicant specifically requires to know the basis upon which the assessments had been made to a sufficient extent to enable him to comment upon the basis of the assessment, prepare a response to the assessments as made, and adduce whatever evidences required to satisfy the burden of proof that is thrown upon the applicant by the Statute.

13 13. The applicant's application for the basis of the assessments was met by a letter as dated the 13 ^th of February, 2006, on the respondent's behalf, wherein the applicant's solicitor was advised:-

"Your client has at all times had professional guidance and he was provided with full information on his right of appeal. The onus is on your client to prepare for appeal in accordance with the statute. He is entitled to the return of any tax papers which were removed from the office of Edward Clarke & Associates and I understand that there has been a written request from Mr. Clarke's office. This matter will be dealt with under separate cover."

14 14. The applicant's case is that effectively the respondent in its capacity as the applicant's designated Tax Inspector has refused to set out the basis for the assessment of income tax in relation to miscellaneous income covering the various periods of the assessments as raised.

15 15. The applicant makes the case that he has been put in an impossible situation, and effectively cannot deal with bare and unexplained assessments, that he has been denied the relevant information which would assist him and that it is anticipated by virtue of the respondents statutory functions that allegations of criminal wrong doing will be made against the applicant during the course of his appeal, of which he will have no notice.

16 16. Against this background the applicant makes the case that it is not possible for him to prepare for the appeal before the appeal commissioners in any meaningful sense, and further that the policy adopted in relation to the applicant amounts to an invidious and arbitrary discrimination.

17 17. The applicant's solicitor in a supplemental affidavit avers that it has been his experience in the course of a tax appeal when he was dealing directly with the Revenue Commissioners as opposed the Criminal Assets Bureau, that when documentation was sought from the Revenue Commissioners for the purpose of allowing the appellant to properly prepare for the appeal, such documentation was forthcoming.

18 18. In an affidavit as sworn on behalf of the respondent's, the Officer of the Revenue Commissioner refers to the general factual background and particularly avers that the figures contained within the notices of assessment are not arbitrary in nature, and that the assessments were prepared in accordance with the provisions of s. 922(3) of the Taxes Consolidation Act, 1997. Further the Officer of the Revenue Commissioner avers that there is no obligation on the respondent to furnish documentation with the notices of assessment, and this would not be the practise of the respondent or indeed the Revenue Commissioners.

19 19. In respect of the reference by the applicant to income arising...