Stanley v Revenue Cmrs
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 07 August 2015 |
| Neutral Citation | [2015] IEHC 546 |
| Court | High Court |
| Date | 07 August 2015 |
[2015] IEHC 546
THE HIGH COURT
BETWEEN
AND
Revenue – S. 49 of Capital Acquisitions Tax Consolidation Act 2003 – Relevant tax – Jurisdiction of Courts – Assessment of tax
Facts: The applicant sought an order of certiorari for quashing the notice of assessment sent by the respondent. The applicant also sought various declarations to the effect that the notice of assessment was issued without jurisdiction and that the applicant had delivered a ‘correct relevant return’. The applicant contended that the respondents had been conferred unfettered powers under s. 49 of Capital Acquisitions Tax Consolidation Act 2003 (CATCA) to raise an assessment at any time they considered that an incorrect return had been made and thus, the exceptions provided under said s. 49 would be redundant.
Mr. Justice Hedigan refused to grant an order of certiorari to the applicant. The Court held that the scheme of CATCA was neither ambiguous nor obscure. The Court held that the statute stated that if a notice of assessment might be issued beyond the prescribed four-year limitation if it was found to be incorrect and if the tax payer believed it to be correct, he could appeal to the Appeal Commissioners. The Court observed that the determination of the correctness of the tax was not the function of the Court and it being a question of mixed fact and law must be decided by the Appeal Commissioners.
JUDGMENT of Mr. Justice Hedigan delivered on the 7th day of August, 2015
1. In these proceedings the applicant seeks the following orders;
(i) An order of certiorari quashing the notice of assessment;
(ii) A declaration that notice of assessment was issued without and/or in excess of the respondents jurisdiction and without any basis in law;
(iii) A declaration that the notice of assessment is vitiated by error of law;
(iv) Without prejudice to the above, a declaration that the applicant did not fail to deliver a "correct relevant return" within the meaning of s.46 of the Capital Acquisitions Tax Consolidation Act 2003 (CATCA) by reason of having claimed a capital gains tax credit pursuant to s.104 CATCA in his November 2007 CAT return;
(v) In consequence of (iv) above, a declaration that the applicant was not guilty of "neglect"within the meaning of s.46 (7B) (b) and, accordingly, the notice of assessment was made outside the time limit specified in s.49 (6A) of CATCA and is thus null and void and without effect in law; (vi) An order staying the statutory appeal pending before the Appeal Commissioners in respect of the impugned notice of assessment; (vii) Such further or other order;
(viii) The costs of this application.
2. The applicant bases his claim essentially on one core issue. It was argued in the hearing as the key issue in the case. Section 49 of CATCA confers on the Revenue Commissioners the power to raise assessments to Capital Acquisitions Tax (CAT). This power however is expressly subject to s.49 (6A) which provides that:
"For the purposes of subsection (6) an assessment, a correcting assessment or additional assessment made in connection with or in relation to a relevant return may not be made after the expiry of four years from the date that the relevant return is received by the Commissioners."
(b) In this subsection 'relevant return' means … a return or an additional return within the meaning of section 46."
3. Section 49 (6B) provides however:
2 "(6B) The time limit referred to in subsection (6A) shall not apply where the Commissioners have reasonable grounds for believing that any form of fraud or neglect (within the meaning given in section 46(7B) (b)) has been committed by or on behalf of any accountable person in connection with or in relation to any relevant return (within the meaning given in subsection (6A)) which is the subject of assessment."
No issue of fraud arises so the real question is as to what "neglect" means. Section 46 (7B) (b) provides that
"'neglect' means negligence or a failure to deliver a correct relevant return (within the meaning given in section 49(6A) (b))."
The applicant argues that the correct interpretation of that expression is the core issue in these proceedings.
4. There is no dispute but that the notice of assessment the subject of these proceedings issued outside the four year time limit prescribed by s.49(6A). By a letter of the 30 th of December 2013, the respondents acknowledge that the...
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Stanley v Revenue Commissioners
...Revenue Commissioners' assessment was in error and his earlier return had been correct such that the four-year time limit applied (see [2015] IEHC 546). The applicant appealed to the Court of Appeal. Held by the Court of Appeal (Finlay Geoghegan, Peart and Hogan JJ.), in allowing the appeal......