Sheridan Senior v Tax Appeals Commission
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 05 April 2019 |
| Neutral Citation | [2019] IEHC 266 |
| Docket Number | [2018 No. 600 JR] |
| Court | High Court |
| Date | 05 April 2019 |
AND
[2019] IEHC 266
[2018 No. 600 JR]
THE HIGH COURT
JUDICIAL REVIEW
Tax appeal – Failure to give reasons – Order of certiorari – Applicants seeking an order of certiorari quashing a series of decisions of an Appeal Commissioner of the respondent – Whether the Appeal Commissioner failed to give reasons for his decision
Facts: The applicants, the Sheridans, with an address given as Rathkeale, County Limerick, applied to the High Court seeking an order of certiorari quashing a series of decisions of an Appeal Commissioner of the respondent, the Tax Appeals Commission, which were all made on 26th April, 2018 in a tax appeal. The primary claim made in their appeal before the Appeal Commissioner by the Sheridans, who as members of the travelling community were nomadic workers, was that as such they were non-resident for tax purposes in Ireland ‘given that they stayed in their caravans at different locations abroad’ (para. 20 of the affidavit of Sheridan’s tax consultant, Mr Dolan, dated 16th July, 2018). The Sheridans claimed that they were not subject to the relevant provisions of the Taxes Consolidation Act 1997. In rejecting their appeal, the Sheridans said that the Appeal Commissioner did not give any reasons for his decision.
Held by Twomey J that, in all the circumstances, the Appeal Commissioner’s decision did provide reasonable information as to why the decision was made to an interested party, namely the Sheridans, who were at the hearing and were fully aware of their decision not to give any evidence of their residency while their counsel argued that they were not resident in Ireland.
Twomey J held that the order for certiorari of the Appeal Commissioner’s decision would not be granted.
Order refused.
This is a judicial review of a series of decisions of an Appeal Commissioner of the Tax Appeals Commission. The applicants, (‘the Sheridans’), with an address given as simply Rathkeale, County Limerick seek an order of certiorari quashing those decisions which were all made on 26th April, 2018 in a tax appeal. The Sheridans say that the critical issue in their case is the failure of the Appeal Commissioner to give any reasons for his decision.
The primary claim made, in their appeal before the Appeal Commissioner by the Sheridans, who as members of the travelling community are nomadic workers, was that as such they are non-resident for tax purposes in Ireland “ given that they stayed in their caravans at different locations abroad” (para. 20 of the affidavit of Sheridan's tax consultant, Mr. Eugene Dolan (‘Mr. Dolan’), dated 16th July, 2018). As nomadic workers, who spend a number of months each year in different European countries carrying out their tarmacadam business, the Sheridans claimed that they are not subject to the relevant provisions of the Taxes Consolidation Act, 1997 (the ‘1997 Act’). In rejecting their appeal, the Sheridans say that the Commissioner did not give any reasons for his decision.
Tax assessments for a number of years were raised by the notice party, the Criminal Assets Bureau (‘CAB’), in respect of members of the Sheridan family. These assessments were appealed on behalf of the Sheridans. Appeals in relation to certain years of assessment were considered by CAB and were held to be in order. However, appeals in relation to other years of assessment were disallowed by CAB because of the Sheridans' failure to file returns and pay the sums due on foot of the returns pursuant to the 1997 Act. CAB determined that the Sheridans were not entitled to make appeals in respect of certain years of assessment because of their failure to fulfil the statutory conditions for making an appeal, which are set out in ss. 933(1) and 959AH (which is similar in effect to s. 957(2), which applied to some of the years in question).
Section 933(1)(a)(b) of the 1997 Act states:
‘(a) A person aggrieved by any assessment to income tax or corporation tax made on that person by the inspector or such other officer as the Revenue Commissioners shall appoint in that behalf (in this section referred to as ‘other officer’) shall be entitled to appeal to the Appeal Commissioners on giving, within 30 days after the date of the notice of assessment, notice in writing to the inspector or other officer.
(b) Where on an application under paragraph (a) the inspector or other officer is of the opinion that the person who has given the notice of appeal is not entitled to make such an appeal, the inspector or other officer shall refuse the application and notify the person in writing accordingly, specifying the grounds for such refusal.’
Section 959AH states:
‘(1) Where a Revenue officer makes a Revenue assessment, no appeal lies against the assessment until such time as—
(a) where the assessment was made in default of the delivery of a return, the chargeable person delivers the return, and
(b) in all cases, the chargeable person pays or has paid an amount of tax on foot of the assessment which is not less than the tax which—
(i) is payable by reference to any self assessment included in the chargeable person's return, or
(ii) where no self assessment is included, would be payable on foot of a self 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.
(3) References in subsection (1) to an amount of 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, together with any costs incurred or other amounts which may be charged or levied in pursuing the collection of the tax contained in the assessment or the assessment as amended, as the case may be.
(4) The requirements of this section apply in relation to an assessment as amended by a Revenue officer as they apply to a Revenue assessment made by a Revenue officer.’
Prima facie therefore, before a person's appeal will be heard by the Appeal Commissioner, the “ chargeable person” must have filed a return in respect of that period and paid the sum due on foot of that return. CAB determined that since this was not done in respect of several of the years, the Sheridans were not entitled to appeal in respect of those years.
In relation to the “ chargeable person” provisions, section 58(1) of the 1997 Act provides that:
‘Profits or gains shall be chargeable to tax notwithstanding that at the time an assessment to tax in respect of those profits or gains was made—
(a) the source from which those profits or gains arose was not known to the inspector,
(b) the profits or gains were not known to the inspector to have arisen wholly or partly from a lawful source or activity, or
(c) the profits or gains arose and were known to the inspector to have arisen from an unlawful source or activity,
and any question whether those profits or gains arose wholly or partly from an unknown or unlawful source or activity shall be disregarded in determining the chargeability to tax of those profits or gains.’
Section 18(1)(a) of the 1997 Act provides that:
‘Tax under this Schedule shall be charged in respect of—
(a)the annual profits or gains arising or accruing to—
(i) any person residing in the State from any kind of property whatever, whether situate in the State or elsewhere,
(ii) any person residing in the State from any trade, profession, or employment, whether carried on in the State or elsewhere,
(iii) any person, whether a citizen of Ireland or not, although not resident in the State, from any property whatever in the State, or from any trade, profession or employment exercised in the State, and
(iv) any person, whether a citizen of Ireland or not, although not resident in the State, from the sale of any goods, wares or merchandise manufactured or partly manufactured by such person in the State’
It is to be noted that a person can be a “ chargeable person” under s. 18(1)(a)(iii) and s. 18(1)(a)(iv) even where that person is not resident in the State. Similarly, s. 58 of the 1997 Act, in providing that profits or gains are chargeable from lawful or unlawful activities, does not refer to residency as a condition for such a charge arising. Nonetheless, as noted hereunder, the Sheridans appealed the rejection by CAB of their appeal. That appeal was grounded on the basis that the statutory pre-conditions for appealing a tax assessment i.e. of filing a tax return and paying tax, did not apply to them since they were not tax resident in Ireland and thus they were not chargeable persons. This appeal to the Appeal Commissioner was rejected by him and the primary issue before this Court therefore is whether the decision of the Appeal Commissioner should be invalidated because of the failure of the Appeal Commissioner to give reasons for that decision.
To take Mr. John Sheridan Senior's appeals (although similar issues arise in relation to the other Sheridans), it is relevant to note that it was accepted by CAB (and indeed by the Appeal Commissioner) that he was entitled to appeal the years of assessment 2004-2007 and 2009-2011. However, he was not allowed by CAB to appeal the years of assessment 2008 and 2012-2014. The Sheridans then unsuccessfully appealed this refusal to the Appeal Commissioner. Thus, it is the decision of the Appeal Commissioner, to uphold the decision of CAB that the Sheridans were not entitled to appeal those particular years, that is the subject of this judicial review.
In essence, the Sheridans case before the Appeal Commissioner was that they were not tax resident in Ireland and...
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