O'Rourke v Appeal Commissioners

CourtSupreme Court
JudgeMr Justice Charleton
Judgment Date02 June 2016
Neutral Citation[2016] IESC 28
Docket Number[S.C. No. 273 of 2010],Record number: 2009/1254JR Appeal number: 2010/273 [2016] IESC
Date02 June 2016

[2016] IESC 28

An Chuirt Uachtarach

The Supreme Court

Charleton J.

Record number: 2009/1254JR

Appeal number: 2010/273

[2016] IESC

Clarke J

Dunne J

Charleton J

Brendan O'Rourke
The Appeal Commissioners
The Revenue Commissioners
Notice Party

Income tax – Rights of appeal – Taxpayers – Appellant seeking to appeal a preliminary ruling on liability – Whether appellant has a right of appeal

Facts: The notice party, the Revenue Commissioners, in February 2006, issued income tax assessments over 16 years to the appellant, Mr O?Rourke, covering returns for the tax years 1985/6 through to 2001. The claimed cumulative liability to tax amounted to about ?15 million. By letters dated 27th February 2006, the appellant appealed all of the assessments. For the self-assessment years, the notices of appeal to the respondent, the Appeal Commissioners, asserted that the assessments were not made within the time limit of s. 955 of the Taxes Consolidation Act 1997 and were accordingly void. In addition, the appellant asserted that he was not chargeable to tax under s. 58 of the 1997 Act; he was not in receipt of or entitled to the assessed miscellaneous income or any miscellaneous income; that he was not in receipt of or entitled to income in the sum of IR£1,500,000; and that the amounts were excessive in all the circumstances. Commissioner O?Callaghan, on the 25th March 2009, ruled in favour of the Revenue Commissioners, holding that in the circumstances of the case the relevant inspector of taxes had not been barred by the applicable time limits from issuing assessments to taxation in the relevant years. The appellant then sought to appeal that preliminary ruling on liability to the Circuit Court. Commissioner O?Callaghan ruled against the appellant holding that there was one appeal from the determination and that it was not possible to adjourn with a view to facilitating a fragmented appeal. The appellant then informed the Appeal Commissioners that judicial review was contemplated. Leave was granted in that regard by Peart J on 7th December 2009. The appellant sought a declaration that the ruling by the Appeal Commissioners that the assessments under appeal were valid under s. 955 of the 1997 Act was a determination from which the appellant had a right of appeal pending the hearing of the other grounds of appeal. Hedigan J ruled against the appellant?s contention as to the availability of any interim appeal to the Circuit Court prior to the complete disposal of all issues in respect of which the taxpayer had appealed to the Appeal Commissioners.?The appellant appealed to the Supreme Court contending that the trial judge?s reference to ?the efficient administration of tax appeals? was an inappropriate consideration since a literal construction of the 1997 Act was required. This literal construction, it was claimed, intends that a self-assessed taxpayer has a right to appeal and challenge the validity of any assessment made outside the statutory four years.

Held by Charleton J that, an appeal from the Appeal Commissioners to the Circuit Court is open to a taxpayer in respect of whom an adverse finding in respect of the time for the making of an assessment by an inspector of taxes has been made and where final liability to taxation has been decided. Charleton J held that this appeal will not be open at the point at which any intermediate finding is made, but only when the appeal is determined; an appeal is not determined by a ruling that an inspector of taxes has validly made an assessment outside the statutory time limits, because for instance a tax return does not contain all relevant information. Charleton J held that an appeal is only determined by the Appeal Commissioners where there is a final decision by them as to liability to pay and as to the amount of tax for which the taxpayer is liable; once that determination is made, an appeal may be taken within the relevant time limits by the taxpayer to the Circuit Court on any ground open to the taxpayer under the 1997 Act.

Charleton J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr Justice Charleton delivered on Thursday the 2 nd day of June 2016

This appeal centres on the proper construction of the rights of appeal by a taxpayer from a decision of the Appeal Commissioners. In particular, the issue is raised as to whether a taxpayer may appeal a ruling which establishes liability to pay tax, but in circumstances where the amount to be paid is yet to be determined. Here the question for this Court may be put thus: is an appeal to the Circuit Court open to a taxpayer after a ruling by the Appeal Commissioners that in principle the taxpayer is liable to pay tax on income during a particular year, consequent on a ruling of failure of complete disclosure by the taxpayer, but where the determination of the quantum of tax due is not yet made?


In raising this issue, both the appellant taxpayer, Brendan O'Rourke, and the notice party, the Revenue Commissioners, the effective respondent on the appeal, the Appeal Commissioners not having participated at any stage of this judicial review, have urged reference to various sections of the Taxes Consolidation Act 1997. These are of both direct and peripheral relevance. Both sides have also asserted the applicability of various canons of statutory construction. Reference has been made to the need for a purposive construction on the part of the taxpayer whereas the Revenue Commissioners have argued for the need to avoid anomalous consequences in the interpretation of the relevant legislation. As the hearing proceeded it became apparent that no such resort was necessary in this analysis. Instead, it is appropriate to restate that a statute is to be construed according to its plain meaning and that such emerges from the text of the relevant provision, considered within its proper context. In another decision of this Court on the entitlement of taxpayers to appeal an assessment to taxation, Keogh v Criminal Assets Bureau [2004] 2 IR 159 at 170, Keane CJ stated the applicable rule of statutory construction thus:

In construing the relevant provisions of the 1997 Act, the duty of the court is, as stated by Lord Russell of Killowen C.J. in Attorney General v. Carlton Bank [1899] 2 Q.B. 158, at p. 164:-

?to give effect to the intention of the legislature as that intention is to be gathered from the language employed, having regard to the context in connection with which it is employed.?

a assage which was cited with approval at pp. 763 to 764 by Kennedy C.J. speaking for the Supreme Court of Saorstat Éireann in Revenue Commissioners v. Doorley [1933] I.R. 750.

It is true that, as pointed out in that and other authorities, where the court is considering whether a particular person is subject to a tax claimed to have been imposed by a statute, its sole task is to determine whether, having regard to the language used, the tax has been expressly imposed; the court cannot have regard, as might be possible in other contexts, to what might be assumed to be the intention or governing purpose of the Act, other than an intention to levy such tax as the statute imposes. We are here concerned with provisions in the Taxes Consolidation Act 1997 Act which do not impose any tax but set out the machinery by which the taxpayer is to be assessed and the appropriate tax recovered and in construing those provisions the court must apply the normal principles of construction to which I have already referred.


Consequently, the task of a court is one of analysis only. It is not the substitution of a court's own views as to what provision ought to be made regarding taxation or exemption from liability; McGrath v McDermott [1988] IR 258. The basic and ordinary rules of statutory construction apply in determining the meaning of any taxation statute, which are to give each section its ordinary meaning within its relevant context and to consider exemptions from taxation, against the backdrop of the ordinarily applicable liability, with a view to analysing if that exception applies; Revenue Commissioners v Doorley [1933] IR 750 and Harris v Quigley [2006] 1 IR 165.


Here, the relevant section requiring analysis is s. 955 of the Act of 1997. This section gives an inspector of taxes the entitlement to raise an assessment and sets a time limit for that once the taxpayer has submitted an apparently valid income tax return. The temporal limitation on this power is coupled with an exception extending the time for raising an assessment indefinitely, but only where it can be established that there is some want in proper disclosure by the taxpayer. While this must be analysed within its proper context, the text thereof operates as the fundamental provision which determines the question in issue on this appeal. Section 955 reads:

(1) Subject to subsection (2) and to section 1048, an inspector may at any time amend an assessment made on a chargeable person for a chargeable period by making such alterations in or additions to the assessment as he or she considers necessary, notwithstanding that tax may have been paid or repaid in respect of the assessment and notwithstanding that he or she may have amended the assessment on a previous occasion or on previous occasions, and the inspector shall give notice to the chargeable person of the assessment as so amended.

(2) (a) Where a chargeable person has delivered a return for a chargeable period and has made in the return a full and true disclosure of all material facts necessary for the making of an assessment for the chargeable period, an assessment for that period or an amendment of such an assessment shall not be made on the chargeable person after the end...

To continue reading

Request your trial
2 cases
  • Kenny Lee v The Revenue Commissioners
    • Ireland
    • Court of Appeal (Ireland)
    • 28 January 2021
    ...that the second question has now been conclusively resolved by the decision of the Supreme Court in O'Rourke v. Appeal Commissioners [2016] IESC 28, [2016] 2 IR 615. There, the Court decided that an appeal from the Appeal Commissioners to the Circuit Court was not open at the point at which......
  • Lee v Revenue Commisioners
    • Ireland
    • High Court
    • 31 January 2018
    ...Analysis 46 The parties acknowledge that the second question raised is now superfluous because, in O'Rourke v Appeal Commissioners [2016] 2 IR 615, the Supreme Court ( per Charleton J; Clarke and Dunne JJ concurring) has held that an appeal under s. 955(3) of the TCA is only determined - an......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT