Tax Appeals Commission determination 28TACD2021 regarding Capital Gains Tax, 2021

• Administrative Decision Number: 28TACD2021
• Year: 2021
• Date: 01 September 2014
• Subject Matter: Capital Gains Tax

28TACD2021

APPELLANT

(as executor of REDACTED deceased)

APPELLANT

V

REVENUE COMMISSIONERS

RESPONDENT

DETERMINATION

Introduction

1. This appeal (‘preliminary appeal’) relates to a preliminary matter in advance of an

appeal (‘substantive appeal’) against an assessment to capital gains tax (‘CGT’).

2. The substantive appeal concerns a notice of assessment to capital gains tax (‘CGT’),

in the sum of €138,372, for the year ended 31 December 2006. The assessment,

dated 2 August 2013, was raised on the Appellant in relation to the disposal of a

property at REDACTED (‘the property’) which sold on 6 June 2006 for a sum of

€970,000.

3. The Appellant submits that the deceased, THE DECEASED, on whom the assessment

was raised, was not the sole and beneficial owner of the property and also that she

was not responsible for the payment of the CGT (‘substantive issue’).

4. A hearing was held by the Tax Appeals Commission (‘TAC’) on 2 February 2017. At

the hearing, the Appellant submitted that the assessment was raised out of time

(‘time limit ground of appeal’). The Appeal Commissioner requested further

submissions in relation to whether the CGT assessment under appeal was out of

time in accordance with S.955 (2) (a) TCA 1997 and whether the Appellant was

entitled to rely on this time limit argument, in the substantive appeal. At the hearing

the Respondent agreed that if the time limit argument put forward by the Appellant

is correct then the substantive appeal would be successful.

5. The Appellant’s notice of appeal which was delivered by letter on 20 December 2013

had not raised the time limit ground of appeal. The agreed form AH1 dated 1

September 2014 submitted as part of the appeal makes no reference to the time

limit ground of appeal.

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6. The Respondent contends that the time limit ground of appeal is one which could

reasonably have been included in the notice of appeal and in accordance with S.949I

(6) TCA 1997, it is not now possible to allow the Appellant to rely on this ground of

appeal.

7. On 19 November 2020, at a remote Case Management Conference held at the TAC,

the parties agreed that, before proceeding to the substantive appeal, the

‘preliminary issue’ of whether or not to accept the time limit ground of appeal

should be determined by the Appeal Commissioner at a preliminary appeal.

8. By agreement of the parties, the preliminary issue which is the subject of this

preliminary appeal is adjudicated without a hearing in accordance with S.949U TCA

1997.

Background Facts

9. The Appellant’s notice of appeal which was delivered on 20 December 2013, did not

contain a ground of appeal in relation to the time limit issue. Subsequently, the

agreed form AH1 dated 1 September 2014, made no reference to the time limit

ground of appeal.

10. The Respondent, by letter dated 5 September 2014, requested submissions from the

Appellant in advance of a proposed hearing. This letter drew the Appellant’s

attention to S.957 (5) and (6) TCA 1997. The Appellant’s submission was made on

30 October 2014 and made no reference to the time limit ground of appeal.

11. The Respondent, by letter dated 22 May 2015, requested the “full written

submissions” from the Appellant in advance of a proposed hearing. This letter again

drew the Appellant’s attention to the exclusion provisions contained in S.957 (6)

TCA 1997. The Appellant’s full written submission was made on 21 July 2015 and

again made no reference to the time limit ground of appeal.

12. The Appellant did not seek to raise the time limit ground of appeal until it was raised

at the hearing held on 2 February 2017.

Submissions

Submissions made by the Appellant and the Respondent are set out in Appendix 1.