A. S. v Criminal Assets Bureau
| Jurisdiction | Ireland |
| Judge | Finnegan P. |
| Judgment Date | 10 October 2005 |
| Neutral Citation | [2005] IEHC 318 |
| Court | High Court |
| Docket Number | No. 805/ J.R./2001 |
| Date | 10 October 2005 |
[2005] IEHC 318
THE HIGH COURT
AND
TAXES CONSOLIDATION ACT 1997 S933
TAXES CONSOLIDATION ACT 1997 S957
TAXES CONSOLIDATION ACT 1997 S957(2)(A)(i)
TAXES CONSOLIDATION ACT 1997 S957(2)(A)(ii)
TAXES CONSOLIDATION ACT 1997 S957(2)(B)
TAXES CONSOLIDATION ACT 1997 S1080
TAXES CONSOLIDATION ACT 1997 S951
TAXES CONSOLIDATION ACT 1997 S877
TAXES CONSOLIDATION ACT 1997 S879
TAXES CONSOLIDATION ACT 1997 S933(1)(A)
TAXES CONSOLIDATION ACT 1997 S933(1)(B)
TAXES CONSOLIDATION ACT 1997 S933(1)(C)
TAXES CONSOLIDATION ACT 1997 S933(6)(A)
TAXES CONSOLIDATION ACT 1997 S962
CRIMINAL ASSETS BUREAU ACT 1996 S8
TAXES CONSOLIDATION ACT 1997 S933(7)
TAXES CONSOLIDATION ACT 1997 S1002
TAXES CONSOLIDATION ACT 1997 S961
CRIMINAL ASSETS BUREAU ACT 1996 S8(2)
CRIMINAL ASSETS BUREAU ACT 1996 S8(8)
CRIMINAL ASSETS BUREAU ACT 1996 S4(B)
CRIMINAL ASSETS BUREAU ACT 1996 S4
CRIMINAL ASSETS BUREAU ACT 1996 S5
CRIMINAL ASSETS BUREAU ACT 1996 S10(1)
CRIMINAL ASSETS BUREAU ACT 1996 S10(4)
CRIMINAL ASSETS BUREAU ACT 1996 S10
TAXES CONSOLIDATION ACT 1997 S1002(2)
TAXES CONSOLIDATION ACT 1997 S950
TAXES CONSOLIDATION ACT 1997 PART 41
TAXES CONSOLIDATION ACT 1997 S1082
TAXES CONSOLIDATION ACT 1997 S924(2)
TAXES CONSOLIDATION ACT 1997 S924
DEIGHAN v HEARNE & ORS 1986 IR 603 3 ITR 253 1986/5/268
TAXES CONSOLIDATION ACT 1997 S933(7)(A)
KEOGH v CRIMINAL ASSETS BUREAU & ORS 2004 2 IR 159 2004 2 ILRM 481 2004/26/6080 2004 IESC 32
CRIMINAL ASSETS BUREAU (CAB) v S (P) UNREP FINNEGAN 19.10.2004 2004/11/2381 2004 IEHC 351
REVENUE:
Enforcement
Jurisdiction - Certiorari - Criminal Assets Bureau - Whether Bureau officer can enforce revenue judgment not connected to proceeds of crime - Attachment of debts - Whether Revenue can attach debts due to taxpayer which he is obliged to pay to another - Proceeds of Crime Act 1996 (No 30), ss 4, 5, 8 and 10 - Taxes Consolidation Act 1997 (No 39), ss 962 and 1002 - Claim dismissed (2001/805JR - Finnegan P - 10/10/2005) [2005] IEHC 318
S (A) v Criminal Assets Bureau
REVENUE:
Taxation
Assessment - Appeal - Whether assessment arbitrary and unreasonable - Requirement to deliver tax returns prior to appealing - Deighan v Hearne [1986] IR 603 and Keogh v Criminal Assets Bureau [2004] ILRM 481 followed - Taxes Consolidation Act 1997 (No 39), ss 933, 950, 951, 957 and 1082 - Application dismissed (2001/805JR - Finnegan P - 10/10/2005) [2005] IEHC 318
S (A) v Criminal Assets Bureau
Facts: the applicant was assessed for income tax in respect of three years between 1993 and 1996 by the respondent and took enforcement action on foot of those assessments. The applicant purported to appeal that assessment which the respondent refused to entertain as it claimed that the assessment was final. The applicant was given leave to apply for judicial review of the respondent’s decisions. He contended, inter alia, that, in availing of a process of execution, an officer of the respondent could only execute against assets which derived or were suspected to derive from criminal activities; that he was not a chargeable person for the years in question and was accordingly under no legal obligation to submit or furnish tax returns and; that the assessment was arbitrary and unreasonable.
Held by Finnegan P in refusing the applicant the relief sought that it was unnecessary, having regard to sections 962 and 1002(2) of the Taxes Consolidation Act 1997, that the assets in question be the proceeds of crime where the assessment was made on the basis of criminal activity. That, as the assessment was made under section 1082 of the Act of 1997 which in its terms did not require a return, it was unnecessary that the applicant be a chargeable person. That on the balance of the evidence, the applicant had failed to satisfy the court that the assessments raised were arbitrary or excessive.
Reporter: P.C.
In July 2001 the Applicant was assessed for income tax in respect of the years of assessment 1993/94, 1994/ 95 and 1995/96 each of the assessments being dated the 27th July 2001. By letter dated 23rd August 2001 the Applicant's solicitors wrote to the Respondent in the following terms û
"Further to your letter of the 27th inst., with which you enclose notice of assessment to income tax for years ending 5th April 1994 to 5th April 2000 inclusive.
Our client instructs us to appeal against these assessments on the grounds that they are estimated and excessive.
Our client is particularly surprised to have received the aforementioned assessments given that he had a revenue audit in May 2000 and was entitled to a refund as a consequence.
We await hearing from you."
The Respondent replied to that letter on the 29th August 2001 in the following terms û
"I refer to your letter dated 23rd August 2001."
Your letter purports to be a notice of appeal pursuant to the Taxes Consolidation Act1997.
Years of assessment 1993/94, 1994/ 95 and 1995/96.
Please note that pursuant to section 933 of the Taxes Consolidation Act1997 I am of opinion that your client is not entitled to make such an appeal as he has not complied with the requirements as set out in section 957 of the Taxes Consolidation Act 1997. I hereby refuse the application for an appeal in respect of these years. The grounds of my refusal are û
(a) Your client has not delivered a return for each of the relevant years as required by section 957(2)(a)(i) which states that
"No appeal shall lie against that assessment until such time as … the chargeable person delivers the return".
(b) Your client has not complied with the requirements set out in section 957(2)(a)(ii) of the Taxes Consolidation Act1997 which states that
"No appeal shall lie against that assessment until such time as … the chargeable person pays or has paid an amount of tax on foot of the assessment which is not less than the tax which would be payable on foot of the assessment if the assessment were made in all respects by reference to the statements and particulars contained in the return delivered by the chargeable person".
Section 957(2)(b) of the Taxes Consolidation Act1997 states that "tax shall be construed as including any amount of interest which would be due and payable under section 1080 on that tax at the date of payment of the tax.
Without prejudice to the foregoing:
It is a prerequisite of any appeal that your client deliver to me a fully completed return for the relevant years in the prescribed form. You are referred to the provisions of section 951 of the Taxes Consolidation Act in relation to your client's obligation to make a return. You are particularly referred to sub-section (1) of that section which incorporates the provisions of section 877 and 879 of the Act."
By letter dated 25th September 2001 the Respondent wrote to the Applicant as follows û
"Your letter of the 23rd August 2001 purported to be a notice of appeal pursuant to section 933(1)(a) of the Taxes Consolidation Act1997. My letter of the 29th August 2001, pursuant to section 933(1)(b) of the Taxes Consolidation Act 1997 refused your application in respect of the years 1993/94, 1994/ 95 and 1995/96 and detailed the grounds for so doing.
No notice of appeal against my refusal, pursuant to section 933(1)(c) of the Taxes Consolidation Act1997 was received in the office of the Appeal Commissioners within the specified period from the date of refusal. In default of notice of appeal the assessments made on your client are, pursuant to the provisions of section 933(6)(a) of the Taxes Consolidation Act 1997, final and conclusive."
By order made on the 30th November 2001 the Applicant was given leave to apply by way of Judicial Review for the following reliefs û
1. A declaration that the Respondent had unlawfully abused its powers and acted ultra vires in
(a) Raising tax assessments on the Applicant in respect of the years 1993 – 1996 inclusive.
(b) Refusing to accept his appeal of 23rd November 2001 regarding the assessments for those years.
(c) Taking enforcement action on foot of those assessments in particular attaching money payable by the North Eastern Health Board for services provided by the Applicant's hackney business and authorising seizure inter alia of his business assets.
2. An Order of Certiorari quashing the said assessments and also attachment notices sent to several of the Applicant's debtors and the section 962 certificate sent to the Sheriff.
3. An interim interlocutory injunction restraining all or some of those enforcement measures.
4. An enquiry as to damages for inter alia abuse of power/misfeasance in public office.
5. Costs.
The grounds upon which the Applicant was granted relief are as follows û
1. On or after 1982, the Applicant has not committed any crime nor has he been involved in any crime, and such property as he has is not nor cannot reasonably be suspected to be the proceeds of crime, inter alia the money due to him by the Health Board and the assets of his business; all of the steps taken by the Respondent exceeds its vires as defined in section 4 of the Criminal Assets Bureau Act1996.
2. Throughout 1993 û 1996 inclusive (until June 1996) the Applicant was unemployed and had no taxable income, and was not engaged in any other economic activity nor in crime; he should never have been assessed for income tax and those assessments are so manifestly extravagant and unsustainable as to constitute an abuse of power and a misfeasance.
3. The twelve month statutory period for appealing has not expired and not alone are there no special circumstances to warrant taking enforcement measures at this juncture but as those were initiated following the Respondent...
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