O'Sullivan v A Company (No.1)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 22 June 2020 |
| Neutral Citation | [2020] IEHC 335 |
| Date | 22 June 2020 |
| Court | High Court |
| Docket Number | [2020 No. 85 MCA] [2020 No. 87 MCA] [2020 No. 88 MCA] |
IN THE MATTER OF S. 902A TAXES CONSOLIDATION ACT 1997 AND IN THE MATTER OF REGULATIONS 12 AND 14 OF THE EUROPEAN UNION (ADMINISTRATIVE COOPERATION IN THE FIELD OF TAXATION) REGULATIONS 2012 (S.I. NO. 549 OF 2012) AND COUNCIL DIRECTIVE 2011/16/EU RE: EXCHANGE OF INFORMATION REQUEST DATED 26TH DECEMBER, 2016 FROM FRANCE
IN THE MATTER OF S. 902A TAXES CONSOLIDATION ACT 1997 AND IN THE MATTER OF THE AGREEMENT BETWEEN IRELAND AND THE FEDERAL REPUBLIC OF GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL RE: EXCHANGE OF INFORMATION REQUEST DATED 19TH APRIL, 2016 FROM GERMANY
IN THE MATTER OF S. 902A TAXES CONSOLIDATION ACT 1997 AND IN THE MATTER OF THE MULTILATERAL CONVENTION ON MUTUAL ADMINSTRATIVE ASSISTANCE IN TAX MATTERS RE: EXCHANGE OF INFORMATION REQUEST DATED 4TH MARCH, 2019 FROM THE REPUBLIC OF KOREA
IN THE MATTER OF S. 902A TAXES CONSOLIDATION ACT 1997 AND IN THE MATTER OF THE CONVENTION BETWEEN IRELAND AND THE REPUBLIC OF ICELAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL AND IN THE MATTER OF THE MULITALTERAL CONVENTION ON MUTUAL ADMINSTRATIVE ASSISTANCE IN TAX MATTERS RE: EXCHANGE OF INFORMATION REQUEST DATED 24TH APRIL, 2019 FROM THE REPUBLIC OF ICELAND
(No. 1)
[2020] IEHC 335
Richard Humphreys J.
[2020 No. 85 MCA]
[2020 No. 86 MCA]
[2020 No. 87 MCA]
[2020 No. 88 MCA]
THE HIGH COURT
Financial affairs – Information – Taxes Consolidation Act 1997 s. 902A – Applicant seeking orders against the respondent to obtain information relevant to the financial affairs of foreign taxpayers – Whether the jurisdictional prerequisites under s. 902A of the Taxes Consolidation Act 1997 in terms of the statutory architecture had been met
Facts: The Revenue Commissioners acting on behalf of foreign tax authorities sought orders against the respondent, an Irish-based company, to obtain information relevant to the financial affairs of foreign taxpayers. The applicant, Mr O’Sullivan, was an official of the Revenue Commissioners acting on their behalf. The notice of motion in each case sought “an order pursuant to s. 902A(4) [of the] Taxes Consolidation Act 1997 (as amended) that the respondent do furnish the applicant within such time as the court may direct the information contained in the schedule hereto”, with the schedule setting out specific information regarding the financial affairs of certain categories of taxpayers in foreign countries. The precise contours of the information sought had also been refined in subsequent evidence. The four applications related respectively to France, Germany, the Republic of Korea and Iceland. Ms Keirse B.L. for the applicant submitted that there were a number of matters that the High Court must be satisfied of before making an order under s. 902A: (i) that the jurisdictional prerequisites under s. 902A in terms of the statutory architecture have been met; (ii) that the applicant is an authorised officer of the Revenue Commissioners; (iii) that the applicant has the consent in writing of a Revenue Commissioner; (iv) that the authorised officer was acting on reasonable grounds in forming the opinion referred to in s. 902A(3); (v) that there are reasonable grounds for the application being made; and (vi) that it is appropriate to exercise the court’s discretion in favour of making the order.
Held by Humphreys J that he would dispense with any requirement for the applicant to amend the notice of motion either by reference to the heading which should have been “Originating Notice of Motion” or as to the reliefs in terms of the variation as to the precise information sought. Humphreys J made an order that the respondent would have liberty to refer to the existence, but not the terms, of the order for the purpose of responding to queries raised by individuals or entities whose information was obtained by competent authorities and in response to queries by regulators or law enforcement authorities. Being satisfied of the jurisdictional basis for the order and the other prerequisites and being satisfied that the order was appropriate having regard to all of the circumstances, Humphreys J made orders under s. 902A in the terms sought by the applicant as adjusted by the later affidavits and the oral evidence in each case. It was agreed that the respondent would have until 14th August, 2020 to furnish the information sought. Given the complications in the evolving wording of the information sought, Humphreys J requested the applicant to prepare the draft orders in each case incorporating the amendments to the reliefs sought contained in:(a) the subsequent filed affidavits of the applicant; (b) the oral evidence of the applicant regarding the amended schedule concerning Germany; (c) the oral evidence of the applicant affirming the contents of the unfiled affidavits; and (d) the oral evidence of the applicant regarding correction of the error concerning the word “annual” in relation to the Republic of Korea.
Humphreys J held that he would hear the parties on any issues regarding redaction of this judgment, adjourn the question of costs to the 3rd July, 2020 and direct that if possible the substantive orders be perfected in the meantime.
Orders granted.
In these cases, the Revenue Commissioners acting on behalf of foreign tax authorities seek orders against an Irish-based company to obtain information relevant to the financial affairs of foreign taxpayers. The notice of motion in each case seeks “an order pursuant to s. 902A(4) [of the ] Taxes Consolidation Act 1997 (as amended) that the respondent do furnish the applicant within such time as the court may direct the information contained in the schedule hereto”, with the schedule setting out specific information regarding the financial affairs of certain categories of taxpayers in foreign countries. The precise contours of the information sought have also been refined in subsequent evidence.
The four applications relate respectively to France, Germany, the Republic of Korea and Iceland. A further application was instituted [2020 No. 89 MCA] regarding Australia, but that was struck out by consent with no order.
I have received helpful submissions from Ms. Alison Keirse B.L. for the applicant (who is an official of the Revenue Commissioners acting on their behalf) and from Ms. Bernadette Quigley B.L. (with Mr. Frank Mitchell S.C.) for the respondent.
An application to the court for information from a third-party in relation to the affairs of a taxpayer of the type launched here must be made in camera: s. 902A(7) of the Taxes Consolidation Act 1997. Prior to instituting the present applications, the Revenue Commissioners obtained orders from Meenan J. on 13th May, 2020 entitled in intended actions, the first one being 2020 No. 33 IA, to anonymise the pleadings.
While Murphy J. commented obiter in Carey v. A Company [2019] IEHC 90 (Unreported, High Court, 16th January, 2019), that if the respondent was on notice of the application there might be no basis from departing from the general rule that justice is administered in public, that was more in the nature of an observation as to a hypothetical, whereas here there has been more full argument on this particular point. Ms. Keirse submits here, and I accept, that the reason for the in camera order is not to protect the rights of the respondent as such, but to preserve the integrity of the investigative process in relation to the taxpayers whose affairs are ultimately the subject of inquiry. The fact that the respondent is on notice of the present application in no way dilutes the need for the in camera order, because the taxpayers whose activities are under investigation should not be alerted to the application.
Ms. Quigley did invite me, if I was to be satisfied to makes orders in favour of the Revenue, to make an order clarifying the extent of the respondent's obligations having regard to the in camera nature of the proceedings and having regard to what she saw as the inevitability of enquiries from the taxpayers and regulators abroad. She sought an order that the respondent would have liberty to refer to the existence of any order, but not the terms of the order, as well as to the in camera nature of the proceedings, for the purposes of replying to queries from individuals and entities whose information had been furnished, and from regulatory and law enforcement authorities. The parties here agreed that such an order was appropriate; what the parties were also agreed on is that such an order doesn't give the respondent an entitlement to make public statements and the like, as opposed to answering individual or regulatory queries.
For the avoidance of doubt, Ms. Keirse has also sought an order to allow the applicant to keep the relevant competent authorities abroad fully abreast of the proceedings. That is not necessary seeing as the applicant is acting on behalf of the Revenue Commissioners who in turn are acting in effect on behalf of foreign tax authorities; and the in camera rule does not preclude full communication with one's own client or entities on whose behalf one acts. So it cannot be said to preclude full communication with those foreign tax authorities. But, if it's felt advantageous to state expressly what is implicit by including such a clause in the order, I would be prepared to facilitate that as long as it's clear that such communication is legitimate even without an express order.
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O'Sullivan v A Company
...– Parties seeking costs – Whether the applicant was entitled to costs of the proceedings Facts: In O’Sullivan v A Company (No. 1) [2020] IEHC 335 (Unreported, High Court, 22nd June, 2020), Humphreys J made orders under s. 902A of the Taxes Consolidation Act 1997 requiring the respondent com......