Keogh v CAB and Revenue Commissioners

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date20 December 2002
Neutral Citation2003 WJSC-HC 6875
CourtHigh Court
Docket Number[No. 764 J.R./2000]
Date20 December 2002

2003 WJSC-HC 6875

THE HIGH COURT

[No. 764 J.R./2000]
KEOGH v. CRIMINAL ASSETS BUREAU (CAB) & ORS
JUDICIAL REVIEW

BETWEEN

TERENCE KEOGH
APPLICANT

AND

CRIMINAL ASSETS BUREAU, REVENUE COMMISSIONERS AND THE COLLECTOR GENERAL
RESPONDENTS

Citations:

TAXES CONSOLIDATION ACT 1997 S933(1)(A)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)(11)

TAXES CONSOLIDATION ACT 19971997 PART 41

TAXES CONSOLIDATION ACT 1997 S933

TAXES CONSOLIDATION ACT 1997 S957(2)(B)

TAXES CONSOLIDATION ACT 1997 S957

PROCEEDS OF CRIME ACT 1996

TAXES CONSOLIDATION ACT 19971997 PART 40

INCOME TAX ACT 1967 S416

TAXES CONSOLIDATION ACT 1997 S933(1)

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)(B)

TAXES CONSOLIDATION ACT 1997 S933(7)(C)

TAXES CONSOLIDATION ACT 1997 S884

TAXES CONSOLIDATION ACT 1997 S933(3)

TAXES CONSOLIDATION ACT 1997 S933(7)(F)

TAXES CONSOLIDATION ACT 1997 S957(1)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)(2)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)(11)

FAKIH V MIN JUSTICE 1993 2 IR 406

GUTRANI V MIN JUSTICE 1993 2 IR 427

ANISIMOVA V MIN JUSTICE 1998 1 IR 186

CRIMINAL ASSETS BUREAU (CAB) V B (K) UNREP MCCRACKEN 15.5.2001 2001/4 /901

REVENUE CMSR V DOORLEY 1933 IR 750

MCGRATH V MCDERMOTT 1988 IR 258

TEXACO (IRL) V MURPHY 1991 2 IR 449

KEARNS V DILLON 1997 3 IR 287

HONG KONG V NG YUEN SHIU 1983 2 AC 629

PESCA VALENTIA LTD V MIN FISHERIES 1990 2 IR 305

NOVA MEDIA SERVICES V MIN POSTS 1984 ILRM 161

CRIMINAL ASSETS BUREAU (CAB) V MCS (P) UNREP KEARNS 16.11.2001 2001/4/912

WEBB V IRELAND 1988 IR 353

COUNCIL FOR CIVIL SERVICES UNION V MIN CIVIL SERVICE 1985 1 AC 374

DUGGAN V AN TAOISEACH 1989 ILRM 710

WILEY V REVENUE CMSR 1989 IR 350

LATCHFORD & SONS LTD V MIN INDUSTRY 1950 IR 33

BRADLEY JUDICIAL REVIEW 2000 ACP 15

TARA PROSPECTING LTD V MIN ENERGY 1993 ILRM 771

IMPOSITION OF DUTIES (NO 236) (EXCISE DUTIES ON MOTOR VEHICLES TELEVISIONS & GRAMOPHONE RECORDS) ORDER 1979 SI 57/1979 ART 12

PESCA VALENTIA V MIN FISHERIES (NO 2) 1990 2 IR 323

KEARNS V DILLON 1997 3 IR 287

PARKINGTON V AG 1869 LR 4 HL 100

TENNANT V SMITH 1892 AC 150

CRIMINAL ASSETS BUREAU (CAB) V MCDONOUGH UNREP SUPREME 20.12.2000 2000/5/1609

Synopsis:

JUDICIAL REVIEW

Income tax

Assessment - Appeals from assessment - Time limits - Criminal Assets Bureau - Whether assessments have become final and conclusive - Legitimate expectations - Whether Taxpayer's Charter of Rights gives taxpayer enforceable legitimate expectation that its provisions would be followed (2000/764 - McKechnie J - 20/12/2002)

Keogh v CAB

Statutory interpretation - Taxing statute - Principles of construction - Schematic and contextual approach - Phrase “default of notice of appeal” - Whether taxpayer had defaulted in lodging valid appeal within time limit provided by Act - Taxes Consolidation Act 1997 sections 933 and 957.

the applicant was granted leave to quash assessments to income tax made on him and issued by the first respondent and the refusal of the first respondent to entertain his appeal against those assessments on the grounds that the first respondent failed to inform him of the requirement that a taxpayer had to deliver tax returns within a 30 day time limit referred to in the assessments so as to validly appeal therefrom and that from its refusal of his appeal he had a further right of appeal to the Appeal Commissioners. The applicant grounded his challenge firstly, by reference to the Taxpayer’s Charter of Rights which he said raised a legitimate expectation that its terms would be adhered to by the respondents and the respondent’s purported non-adherence thereto and secondly, to the interpretation of sections 933 and 957 of the Act of 1997 which involved the determination of the issue as to whether the assessments had become final and conclusive. It was urged by the applicant that until the outstanding return had been delivered and the tax paid, the time for bringing an appeal had not commenced and consequently the period in which an appeal could be brought had not expired. The respondents denied that they were under any obligation to inform the applicant that he had to, for the purpose of a valid appeal, deliver tax returns within a specified period or that he had a further right of appeal to the Appeal Commissioners against the respondent’s refusal to entertain his appeal and that the correct interpretation of the relevant sections could not lead to the granting of the relief sought by the applicant.

Held by McKechnie J in refusing the relief sought that, where an impugned decision is taken pursuant to the exercise of a statutory discretionary power, even where some representation had been made or some assurance given which might, in other circumstances, give rise to an expectation of conferring a benefit, no enforceable legal right would necessarily result as a recipient of such power can not prevent himself from truly exercising this discretionary power in the manner or within the parameters dictated by the Oireachtas. As section 957 of the Act of 1997 provides that a person could not appeal against an assessment until he had delivered the required return and paid the required amount of tax, there was no valid appeal submitted within the time limit as these requirements had not been complied with and the doctrine of legitimate expectation could not have the effect of nullifying such a revenue process. As to the second ground advanced by the applicant, sections 933 and 957 of the Act of 1997 should be interpreted in a schematic and contextual manner so as to avoid a result which would frustrate the operation and scheme of the Act. As the phrase “default of notice of appeal” by the taxpayer in section 933(6)(a) of the Act of 1997 relates back to section 933(1)(a) and not section 957, once default is made by the taxpayer in validly appealing the assessments, they become final and conclusive and interpreting the Act in the manner urged by the applicant would lead to an absurd conclusion.. Accordingly, once the 30 day period set out in the Act had expired and no valid appeal lodged against the assessment, it become final and binding.

1

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 20th day of December 2002.

2

1. On the 27 th November 2000, the applicant in the above entitled proceedings was granted leave by this court (O'Sullivan (J.) to seek a variety of reliefs on certain grounds specified in the said order. Both the reliefs and the grounds therefor were enlarged upon, by reason of and pursuant to a further order, this time made Mr. Justice Kelly on 21 st May 2001. In the resulting amended Notice of Motion Mr. Keogh was permitted to seek the following:

3

(1) An order of certiorari by way of judicial review quashing the Assessments to Income Tax made on the applicant for the years ending 5 th April 1994, 5 th April 1995, 5 th April 1996 and 5 th April 1997; all such assessments being issued by the first named respondent on 23 rd February 1998,

4

(2) An order of certiorari by way of judicial review quashing the refusal of the first named respondent to entertain the applicant's appeal against the said assessments,

5

(3) A declaration that the assessments served on the applicant are not yet final and conclusive, and

6

(4) A declaration that the time for bringing an appeal against the said assessments has not yet commenced.

7

The grounds upon which these said orders are sought can briefly be summarised as follows:-

8

(a) That the first named respondent failed to inform the applicant -

9

(i) of the requirement that he, the applicant, must also deliver tax returns within the time limit referred to in the assessments so as to validly appeal thereupon, and

10

(ii) that from its refusal of his appeal he had a further right of appeal to the Appeal Commissioners within a specified time:

11

all such failures being in breach of the provisions of the Taxpayer's Charter of Rights, and

12

(b) that there has been no "default in the service of Notice of Appeal" as envisaged in section 933 (1) (a) of the Taxes Consolidation Act 1997, because, by virtue of section 957 (2) (a) (11) of that Act, the applicant was in "default in the delivery of his return", in consequence of which the time for making an appeal had not yet commenced to run, so that the only default within the terms of the Act relates to the return: until the time for appealing starts to run there can Be no "default of Notice of Appeal because any such notice would be otiose."

13

2. In their amended statement of opposition, the respondents deny that the Criminal Assets Bureau was under any obligation to inform the applicant that he must, for the purpose of valid appeal, also deliver tax returns within a specified period or that he had a further right of appeal to the Appeal Commissioners against that respondent's refusal to entertain his appeal or that it should have specified to him a time limit within which such further appeal could be taken. In addition they assert that at all material times Mr. Keogh was or ought to have been aware of or with reasonable diligence could have discovered what the precise requirements were, for the making of a valid appeal against the assessments above mentioned and for the taking of a further appeal within the specified period from the first named respondent's refusal to entertain his appeal against the said assessments. Moreover they allege that he has failed to demonstrate any legal basis for asserting the claims which he has made and furthermore that at all times the respondents have afforded to him a fair and reasonable opportunity of regularising his tax affairs. This, it is said he has not taken. In addition to raising a general denial of the other allegations as made, the respondents also expressly claim that the correct interpretation of the relevant sections could not...

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1 cases
  • Iatan and Others v Commissioner of on Garda Síochána and Others
    • Ireland
    • High Court
    • 2 February 2006
    ... ... ACT 1996 S18(2) REFUGEE ACT 1996 S18(5) REFUGEE ACT 1996 S18(3)(B)(i) KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS UNREP MCKECHNIE 20.12.2002 2003/29/6875 WEBB v IRELAND ... 48 2 6.1 In Keogh v. CAB and the Revenue Commissioner (High Court, Unreported, McKechnie J. 20th December, 2002) this court had to consider ... ...

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