Michael Gladney v Adriano Taglienti

JurisdictionIreland
JudgeMs. Justice Faherty
Judgment Date10 November 2021
Neutral Citation[2021] IECA 300
Docket NumberAppeal Number: 2018/293
Year2021
CourtCourt of Appeal (Ireland)
Between/
Michael Gladney
Plaintiff/Respondent
and
Adriano Taglienti
Defendant/Appellant
Michael Gladney
Plaintiff/Respondent
and
Samantha Kavanagh
Defendant/Appellant

[2021] IECA 300

Donnelly J.

Faherty J.

Pilkington J.

Appeal Number: 2018/293

Appeal Number: 2018/292

THE COURT OF APPEAL

Summary judgment – Assessments – Time limit – Appellants seeking to challenge assessments in a motion for summary judgment – Whether it was open to the appellants to challenge the assessments in circumstances where the assessments had become final and conclusive

Facts: The defendants/appellants, Mr Taglienti and Ms Kavanagh, appealed to the Court of Appeal. Both appeals arose on foot of orders made by Noonan J on 6 July 2018 that the plaintiff/respondent, Mr Gladney (Revenue) recover the sum of €170,813.84 from the first appellant and €75,751.95 from the second appellant, together with costs in each case when taxed and ascertained. The central issue in the appeals was whether it was open to the appellants to challenge either the factual basis for, or the validity of, the assessments raised by Revenue in October 2014 in the context of Revenue’s application for summary judgment on foot of a summary summons which issued after the time limit provided for the statutory appeal of the assessments had expired and where the summary proceedings had been brought to enforce assessments which became “final and conclusive” in the absence of any appeal by the appellants to the Taxation Appeal Commissioner (TAC). Revenue’s position in the High Court, and the position it maintained in the appeals, was that pursuant to s. 933(6)(a) of the Taxes Consolidation Act 1997, as amended, and s. 111(2) of the Value Added Tax Consolidation Act 2010, as amended, it was not open to the appellants to challenge the assessments in a motion for summary judgment in circumstances where the assessments had become final and conclusive. The appellants contended that: the trial judge’s reliance on Deighan v Hearne ([1986] IR 603 and [1990] 1 IR 499) and Gladney v Di Murro [2017] IEHC 100 was in error; judicial review was an inadequate remedy; an appeal to the TAC was inappropriate; Revenue’s Customer Services Charter (RCSC) and the Code of Practice for Revenue Auditors (CPRA) were breached; and Revenue failed to comply with the time limits provided for in s. 955 of the 1997 Act.

Held by Faherty J that: she was not persuaded by the appellants’ submission that the trial judge erred or that he somehow failed to exercise his inherent jurisdiction in determining the applications for summary judgment; the appellants had not advanced any persuasive argument that judicial review would not have been an appropriate remedy; the appellants could not cry foul vis-a vis the assessments and assert that an appeal to the TAC would have been inappropriate, in circumstances where they themselves did not use the appropriate avenue (judicial review) to challenge the validity of the assessments; the alleged failure of Revenue to comply with either the CPRA or the RCSC could not give rise to a defence to a claim for summary judgment in circumstances where the appellants had not sought to impugn the validity of the assessments by way of judicial review unlike the position in the case (Keogh v Criminal Assets Bureau [2004] 2 I.R. 159 (at paras. 33-42) upon which the appellants placed reliance; and the time bar issue sought to be ventilated was at the wrong end of the spectrum to which O’Donnell J referred in Lough Swilly Shellfish Growers Co-op Society Limited v Bradley [2013] 1 I.R. 227.

Faherty J dismissed the appeals of the first appellant and the second appellant. Faherty J held that the Revenue should be entitled to its costs.

Appeals dismissed.

UNAPPROVED

Judgment of Ms. Justice Faherty dated the 10 th day of November 2021

1

. There are two appeals before the Court. Both arise on foot of Orders made by Noonan J. on 6 July 2018 that the plaintiff (hereinafter “Revenue”) recover the sum of €170,813.84 from Mr. Taglienti (hereinafter “the first appellant”) and €75,751.95 from Ms. Kavanagh (hereinafter “the second appellant”), together with costs in each case when taxed and ascertained.

The first appellant: background and procedural history
2

. Proceedings were commenced against the first appellant by way of a summary summons which issued on 8 December 2016. The special indorsement of claim sets out the claim for €170,813.84 as comprising income tax for the year ending 31 December 2007, PAYE, PRSI, USC and LPT for the year ending 31 December 2015 and VAT for 1 November 2007 to 31 December 2007. The first appellant entered an Appearance on 1 st June 2017.

3

. By notice of motion dated 4 July 2017, Revenue sought liberty to enter final judgment in the sum of €170,813.84.

4

. The application was grounded on the affidavit of Evelyn Donegan of Revenue sworn on 29 June 2017. At para. 2, she avers that Revenue's claim is for €95,313.35 in respect of tax and the sum of €75,500.49 in respect of interest by way of arrears of income tax, PREM Annual and VAT. At para. 3, she avers that on 14 October 2014, Revenue raised an amended assessment of €28,420.00 in respect of tax and €25,895.91 in respect of interest (total €54,315.91) for VAT for the period November and December 2012. She avers at para. 4 that Revenue called upon the first appellant to discharge the sum of €170, 813.84 but that he failed, refused or neglected to discharge the said sum. She further avers that the first appellant has no bona fide defence at law or on the merits on the case.

5

. The first appellant swore a replying affidavit on 4 October 2017. Therein, he takes issue with Revenue's claim in respect of tax and interest due in respect of VAT for the period November and December 2012, stating that no reference is made to the year 2012 in the summary summons. At para. 4, he avers that he is a stranger to the alleged liability of €170,813.84. He avers that his position is set out in a letter of 7 December 2016 which his solicitors sent to Revenue's solicitors. In that letter, his solicitors advised Revenue that notwithstanding a telephone call and letter from a Mr. John O'Leary of Revenue to the first appellant requesting a meeting for an audit to take place on 30 March 2010 no such meeting (or audit) ever took place in 2010, or subsequently. He avers that although he received a document entitled “Income Tax Assessments and VAT Assessments for …. 2007” no explanation has been given to him for the figures set out therein despite requests made to Ms. Margaret Malone and Ms. Martha Byrne of Revenue at a meeting on or about 17 June 2016. The first appellant avers that at the meeting of 17 June 2016, Ms. Malone promised to send him proof of the origin of the figures used in the assessments but same were never sent to him. He further avers that he received a tax clearance certificate from Revenue on 20 May 2010 which said his “tax affairs are in order”. He states that that representation was made to him without qualification and that same constitutes an estoppel from which Revenue cannot lawfully be permitted to resile.

6

. The first appellant claims that there is grave uncertainty regarding the nature and extent of the alleged tax liabilities and that pursuant to Revenue's Customer Services Charter (“RCSC”), he is entitled to clarification regarding his outstanding liabilities (if any). He asserts that Revenue's failure to advise him of his statutory right of appeal (save regarding a claimed VAT liability), and the estoppel to which the tax clearance certificate gives rise, are legal issues appropriate for the High Court to determine and are not matters appropriate for the statutory appeals process. He thus avers that he has a bona fide defence to the proceedings.

7

. On 2 November 2017, Ms. Donegan swore a Corrective and Supplemental Affidavit exhibiting therein an amended summary summons. She seeks to withdraw paragraph 4 of her grounding affidavit in its entirety due to what she claimed were “clerical errors”. In summary, she states that what she should have averred to in her previous affidavit is as follows:

  • • On 8 October 2014, Revenue raised an assessment of €28,420 regarding VAT for 1 January 2007 to 31 December 2007 which was sent to the first appellant and his Accountants, Seamus Walsh & Co.

  • • On 14 October 2014, Revenue raised an amended assessment in respect of income tax for the year end 31 December 2007 in the sum of €65,217. This too was sent to the first appellant and his Accountants.

8

. Ms. Donegan avers that both notices informed the first appellant of his entitlement to appeal and the manner of such appeal. She states that he failed to appeal and accordingly the assessments became final and conclusive under the Taxes Consolidation 1997 Act, as amended (“the 1997 Act”). She avers that as of 26 November 2016, the sums due and owing in respect of 2007 tax liabilities were as follows: €114,676.82 in respect of income tax for the year ended December 2007; €1,821.11 in respect PAYE/PRSI/USC and LPT for 2015; and €54,315.92 in respect of VAT for 2007, being a total of €170,813.84.

9

. In response to the first appellant's averment that no audit took place in 2010, Ms. Donegan says that his claim in this regard is irrelevant as it is not open to him to defend the proceedings as he did not embark on the statutory appeals process.

10

. In any event, Ms. Donegan goes on to aver that Mr. O'Leary carried out an audit on 30 March 2010 at the offices of the first appellant's then agent Mr. Brendan Cosgrove during which “records were examined, notes were taken, and copies of working papers were taken by Mr. O'Leary”. In this regard, Ms. Donegan exhibits a document said to be a contemporaneous note of Mr. O'Leary's interview with Mr. Cosgrove. The note records that the first appellant, Mr. Cosgrove and Mr. O'Leary were present on 30 March...

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1 cases
  • Howley v Moorehouse
    • Ireland
    • High Court
    • 10 November 2023
    ...judgment amended in the appropriate manner. 51 . It was submitted that insofar as there were dicta of Faherty J. in Gladney v. Taglienti [2021] IECA 300, where at paras. 52 and 107, the court seemed to indicate that a taxpayer could proceed with a late appeal while enforcement proceedings a......

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