Keogh v Criminal Assets Bureau

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 17 May 2004
• Neutral Citation: [2004] IESC 32
• Court: Supreme Court
• Docket Number: [S.C. No. 204 of 2003]
• Date: 17 May 2004

KEOGH v. CRIMINAL ASSETS BUREAU (CAB) & ORS

BETWEEN

TERENCE KEOGH

APPLICANT

AND

CRIMINAL ASSETS BUREAU, REVENUE COMMISSIONERS

AND THE COLLECTOR GENERAL

RESPONDENTS

[2004] IESC 32

Keane C.J.

Denham J.

Murray J.

M ^cGuinness J.

Hardiman J.

204/03

THE SUPREME COURT

Synopsis:

- [2004] 2 IR 159 - [2004] 2 ILRM 481

Citations:

POLICE PROPERTY ACT 1897

PROCEEDS OF CRIME ACT 1996

TAXES CONSOLIDATION ACT 19971997 PART 41

TAXES CONSOLIDATION ACT 1997 S933

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

TAXES CONSOLIDATION ACT 1997 S957(2)(B)

TAXES CONSOLIDATION ACT 1997 S922

TAXES CONSOLIDATION ACT 1997 S997

TAXES CONSOLIDATION ACT 1997 S957(2)(A)

TAXES CONSOLIDATION ACT 1997 S933(6)(C)

CRIMINAL ASSETS BUREAU (CAB) V MCSWEENEY 2001 2 ILRM 81 2000/5/1636

TAXES CONSOLIDATION ACT 1997 S1082

TAXES CONSOLIDATION ACT 1997 S1084

TAXES CONSOLIDATION ACT 1997 S1086

TAXES CONSOLIDATION ACT 1997 S1078(2)(G)

TAXES CONSOLIDATION ACT 1997 S998

TAXES CONSOLIDATION ACT 1997 S933(1)(B)

TAXES CONSOLIDATION ACT 1997 S933(1)(C)

TAXES CONSOLIDATION ACT 1997 S933(1)

TAXES CONSOLIDATION ACT 1997 S933(1)(A)

TAXES CONSOLIDATION ACT 1997 S957(2)

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

FAKIH V MIN FOR JUSTICE 1993 2 IR 406

GUTRANI V MIN FOR JUSTICE 1993 2 IR 427

AG V CARLTON BANK 1899 2 QB 158

REVENUE CMSR V DOORLEY 1933 IR 750

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

TAXES CONSOLIDATION ACT 1997 S933(1)(D)(II)

WILEY V REVENUE CMSR 1994 2 IR 160

WEBB V IRELAND 1988 IR 353

AG HONG KONG V NG YUEN SHIU 1983 2 AC 629

GLENCAR EXPLORATION PLC V MAYO CO COUNCIL 2002 1 IR 112 2002 1 ILRM 481

1 17th day of May 2004 , by Keane C.J.

Keane C.J.

2 This is an appeal from a judgment and order of the High Court (M ^cKechnie J.) in which he refused to grant the applicant by way of judicial review orders of certiorari quashing certain assessments to income tax of the applicant and declarations that the assessments served on the applicant had not become final and conclusive and that the time for bringing an appeal against them had not commenced.

3 The factual background is as follows. The applicant was at the date the proceedings began thirty eight years of age and had worked as a sub-contractor carrying out bricklaying and general building work for a number of years. On the 13 ^th March, 1996 members of the Garda Síochána in the course of a search of his residence seized sums of IR£21,510.00 and £490.00. Detective Sergeant Philip Ryan, an officer of the first named respondent, said in an affidavit that a small piece of cannabis resin had also been found in the premises and that traces of brown material and powder adhering to or falling form the notes were found on analysis to be cannabis resin or cocaine.

4 The applicant having made an application under the Police Property Act, 1897, for the return to him of the sums of money, an application was made by Chief Superintendent Michael F. Murphy under the Proceeds of Crime Act, 1996, in respect of them. Those proceedings were struck out by consent, one of the terms being that the sums should be paid over forthwith to the first named respondents as sums on account in respect of a partial discharge of preliminary tax by the applicant for the years ending 5 ^th April, 1994, 5 ^th April, 1995, 5 ^th April, 1996 and 5 ^th April, 1997.

5 On the 23 ^rd February, 1998, the first named respondents wrote to the applicant informing him that, under Part 41 of the Taxes Consolidation Act, 1997(hereafter "the 1997 Act"), they would henceforth act as his Inspector of Taxes. On the same day, notices of assessment of income tax were issued by the first named respondents in respect of the applicant for the years ending 5 ^th April, 1994, 5 ^th April, 1995, 5 ^th April, 1996 and 5 ^th April, 1997. For each year, he was assessed for income tax in respect of what was described as "miscellaneous income" in the sum of IR£100,000.00.

6 On each of the notices of assessment, the following notice appeared:

" AAPPEALS

7 You have certain rights of appeal under the Tax Acts against the assessment or any item in it.

8 In most circumstances, unless you enter a valid notice of appeal and pay the appropriate tax within 30 days of the date of this notice, the assessment becomes final and conclusive.

9 If you do wish to appeal, you are strongly advised to seek professional guidance."

10 On the 20 ^th March, 1998, the applicant wrote to the first named respondents as follows:

"I wish to appeal the above assessments raised against me, which were issued by your bureau. The grounds for appealing are that they are overestimated and without fact.

I will have the returns for the years in question in your offices within 21 days."

11 The first named respondent replied to the letter as follows on the 26 ^th March:

"I am grateful for your letter of the 20 ^th March, 1998 received here on the 23 ^rd March, 1998."

12 That letter purports to be a notice of appeal pursuant to the Tax Acts. Please note that pursuant to s. 933 of the Taxes Consolidation Act, 1997, I am of the opinion that you are not entitled to make such an appeal as you have not complied with the requirements as set out in s. 957(2)(a)(II) of the Taxes Consolidation Act, 1997.

13 It is a matter for you to comply with the statutory provisions which arise out of the assessment made on you. Without prejudice to the foregoing, it is a prerequisite of any appeal that you deliver to me a return for the relevant year in the prescribed form and also that you pay the amount of tax as defined in s. 957(2)(a)(II) of the Taxes Consolidation Act, 1997. I would also respectfully draw your attention to provisions of s. 957(2)(b) of the Taxes Consolidation Act, 1997.

14 Kingly note that in default of compliance by you with the statutory obligations applicable to you within the relevant statutory time limits, the assessments will become final and conclusive."

15 The first named respondents wrote again to the applicant on the 2 ^nd April, 1998, acknowledging tax returns dated the 19 ^th March, 1998 which they said they had received on the 1 ^st April, 1998. The applicant was informed that these had been received too late to enable the appeal to be accepted and that, in addition, there had been no payment of the tax and interest due.

16 On the 28 ^th April, 1998 the first named respondent sent to the applicant demands dated the 28 ^th April, 1998 for the immediate payment of tax and interest stated to become due and payable in the sum of IR£84,007.53 for the year 1993/4, IR£75,555.55 for the year 1994/5, IR£67,337.18 for the year 1995/6 and IR£59,130.30 for the year 1996/7.

17 On the 30 ^th April, 1998, solicitors on behalf of the applicant wrote to the first named respondent stating that they had just received instructions in the matter and that, according to the returns submitted by their client, his liability to the Revenue was in the region of IR£32,000.00. They confirmed a suggestion they had made to the first named respondent that the matter should be regarded as finalised by the payment by their client of the balance admitted by him to be owing to the Revenue after giving credit for the sum of IR£22,089.93 seized by the Gardaí and a further sum of IR£5,671.14 already paid by him. Following a meeting with an officer of the first named respondents on the 19 ^th May, the applicant's solicitors wrote again to the first named respondent on the 30 ^th May offering to pay the sum of IR£9,000.00 "in settlement of our client's tax affairs". On the 5 ^th June, the first named respondents rejected that offer, stating that the applicant was unable to produce books and records or details of how the figure offered was arrived at. Further correspondence of a desultory nature ensued over a lengthy period, but the first named respondents maintained their refusal to accept this offer and declined to abandon their threat to institute the necessary enforcement procedures to recover the tax which they claimed was owing.

18 Ultimately, on the 27 ^th November, 2000, the applicant applied to the High Court for leave to institute these proceedings by way of judicial review, which was granted. A statement of opposition having been field, the High Court having given leave to the applicant to amend the grounds on which the original leave had been granted and an amended statement of opposition having been delivered, the matter came on for hearing before M ^cKechnie J. who, as already noted, dismissed the applicant's claim.

The proceedings in the High Court

19 The applicant relied on two grounds in the High Court in support of his claim.

20 The first grounded related to the statutory provisions relevant to appeals from assessments to income tax. The argument on behalf of the applicant was that the assessments had never become final and conclusive so as to entitle the Revenue to enforce payment of the sums allegedly due, because time only began to run against an applicant in relation to the bringing of an appeal from the time when he delivered his return accompanied by payment of the appropriate tax. Since the applicant had never delivered a return accompanied by the payment of tax, it followed that the limitation period for bringing an appeal had not expired. It was submitted on behalf of the first named respondents that the applicant had served a purported notice of appeal without delivering returns and paying the appropriate tax which was determined by the first named respondents in these circumstances to be an invalid notice of appeal and that no further notice had been served by the applicant of an appeal to the Appeal Commissioners from that determination of the Inspector with the result that the assessments became final and conclusive.

21 The second ground related to a document issued by the second named respondents and described as...