Thomas McNamara v The Revenue Commissioners

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 12 July 2021
• Neutral Citation: [2021] IEHC 485
• Court: High Court
• Docket Number: [2020 No. 968 SS]

Between

Thomas McNamara

Applicant

and

The Revenue Commissioners

Respondent

[2021] IEHC 485

[2020 No. 968 SS]

THE HIGH COURT

Revenue – Capital Gains Tax – Assessment – Amended notice of assessment – Sale of department store and related lands – Case stated under Taxes Consolidation Act 1997

Facts: The appellant had disposed of a department store and related property. This gave rise to a chargeable gain, which was the subject of an assessment. An amended assessment was raised by the respondent in 2014. The Tax Appeals Commission had issued a determination in 2020 in respect of that amended assessment. The appellant sought to challenge this determination and requested that the Commission state a case for the High Court under s 949AP of the Taxes Consolidation Act 1997. A case was stated accordingly, and the matter now came before the High Court.

Held, that the case stated in the within proceedings was to be sent to the Tax Appeal Commissioners for amendment. The Court considered the relevant jurisprudence and legislation and was satisfied that the case stated did not comply with the requirements of s 949AQ of the 1997 Act.

Submissions on costs were invited.

Summary

This is a successful application for an order pursuant to s.949AR(2) of the Taxes Consolidation Act 1997 (as amended) directing that the case stated in the within proceedings be sent to the Tax Appeal Commissioners for amendment. This summary forms part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 12 ^th July 2021 .

I

The Case Stated

1 . This case arises ultimately out of an amended notice of assessment to CGT for the year 2007, notice of which issued on 7 ^th August 2014. The assessment relates to a chargeable gain realised by the appellant on the disposal of the ‘Texas’ department store and other associated land and buildings in Tullamore, County Offaly. The Tax Appeals Commission (the ‘TAC’) issued a determination on 16 ^th January 2020 in respect of an amended assessment raised by the respondent in August 2014.

2 . Except where a provision of the Tax Acts provides that a determination of the Commissioners is to be final and conclusive, a party who is dissatisfied with a determination of the Commissioners as being erroneous on a point of law may by notice in writing require the Commissioners to state and sign a case stated for the opinion of the High Court. The notice must specify the particular respect in which the determination is alleged to be erroneous in law. The statutory right to request that the TAC sign and state a case for the opinion of the High Court and for the High Court to hear the said case stated on receipt of same, arises from s.949 ^AP of the Taxes Consolidation Act 1997 (the ‘ TCA 1997’). By letter of 5 ^th February 2020, on the instructions of Mr McNamara, his solicitors requested the TAC to state and sign a case for the opinion of the High Court. That letter comprises the s.949AP(2) notice for the purpose of these proceedings.

3 . Following on the issuance of that s.949AP(2) notice, a Tax Appeals Commissioner has stated and signed a case for the opinion of the High Court in accordance with s.949 ^AQ of the TCA 1997. The questions of law stated for the court in that case stated are the following:

• “ I. Whether, upon the facts provide [ sic – it is not clear whether ‘proved’ or ‘provided’ is intended, most likely ‘proved’] or admitted, I was correct in law in my determination that the sale of the property on 4 July 2007, constituted a sale of development land in accordance with section 648 TCA 1997.

• II. Whether, upon the facts provide [ sic] or admitted, I was correct in law in determining that the statutory requirements of section 949I(6) of the Taxes Consolidation Act 1997 were not met and that the Appellant was thereby not entitled to rely on the additional ground of appeal.

• III. Whether, upon the facts provide [sic] or admitted, I was correct in law in my determination that the Appellant's return in respect of the tax year of assessment 2007 contained a number of errors and therefore did not contain ‘a full and true disclosure of the facts’ in accordance with s.955(2)(b) TCA 1997, and that the amended assessment was not out of time.”

4 . By notice of motion of 4 ^th August 2020, Mr McNamara comes seeking the following principal reliefs:

“ 1. An order pursuant to section 949AR(2) of the Taxes Consolidation Act 1997 (as amended) directing that the case stated in the within proceedings be sent [ i.e. remitted] to the Tax Appeal Commissioners for amendment, in the following manner:

• (a) That the first question submitted in the case stated should be amended to state as follows:

  “Whether having regard to the evidence given and the issues raised thereupon as addressed in the notice seeking the case stated, I was correct in law in my determination that the sale of the property on 4 ^th July 2007 constituted a sale of development land in accordance with section 648 TCA 1997.”

• (b) That the second question submitted in the case stated should be amended to state as follows:

  “Whether I was correct in determining that the statutory requirements of section 949I(6) of the Taxes Consolidation Act 1997 were not met and that that the Appellant was thereby not entitled to rely on the additional ground of appeal and whether I sufficiently addressed the legal issues raised and provided adequate reasons in determining the legal arguments made thereto (the issues thereupon as addressed in the Notice seeking the case stated).”

• (c) That the third question submitted in the case stated should be amended by its substitution by the following questions:

  “(iii) Whether I was correct in holding that the Appellant did not make a true and full disclosure in his tax return.

  (iv) Whether I was correct in dismissing the Appellant's submission that. where a taxpayer has brought all relevant matters to the attention of his professional tax advisor, he should be considered to have taken due care in the preparation of their return.

  (v) Whether I was correct to dismiss the Appellant's submission that although and error may have been made in the return, professional advice had been relied upon in filing the return and the error could not amount to a failure of the Appellant to make a full and true disclosure of all material facts.

  (vi) Whether I was correct in finding that the amended assessment was not statute-barred.

  (vii) Whether I was correct in the sufficiency and adequacy of the reasons given in dismissing the Appellant's arguments on the applicability of the time bar and provide adequate reasons for the dismissal of these points.”

• (d) That the case stated be amended by the inclusion of the transcripts of the proceedings before the Tax Appeals Commission as exhibits to the case stated and forming part of the case stated.”

5 . One difficulty that presents is that the court does not see that the questions set out in the case stated properly or fully reflect the points of law as set out in Mr McNamara's s.949AP(2) notice of 5 ^th February 2020, i.e. the court does not see that the point/s of law contained in the case stated in these proceedings are the points of law “ as set out in the notice referred to in section 949AP(2)”. To show that this is so, the court, in the compares hereafter the points of law identified in Mr McNamara's s.949AP(2) notice and the points of law identified in the case stated.

6 . The Appeal Commissioners appear in the case stated to distil the eight points listed hereafter (which feature in Mr McNamara's s.949AP(2) notice) into the single question listed as Question I in the case stated. The eight points in the s.949AP(2) notice are as follows:

• “ (1) The Commissioner was incorrect in determining that the expert evidence and report of Savills on behalf of the Respondent was capable of being relied on, given the errors found in the methodology and substance of same, including that the expert witness [a long list of various purported errors are then identified] ….

• (2) The Commissioner was incorrect to determine that no expert evidence had been given by the Appellant and to determine the case on this basis.

• (3) The Commissioner was incorrect in determining that the fact that the expert evidence given on behalf of the Appellant was not contained in a Report meant it was not expert evidence.

• (4) The Commissioner was incorrect to find the methodology and substance of the Expert Report produced by the Respondent to be correct given the errors therein and outlined herein.

• (5) On the basis of the evidence given, the Commissioner was incorrect in law in determining that the Appellant had not satisfied the onus or burden of proof placed on him of proving that the sum paid for the land was less than or equal to the current use value at the time of the sale.

• (6) There was no reliable evidence before the Commissioner to justify the findings of fact made by the Commissioner as against the Appellant.

• (7) On the basis of the primary facts as found, the findings were not capable of supporting the inferences drawn from them.

• (8) The evidence given was inconsistent with and contradictory to the determination of the Commissioner.”

7 . Question I of the Case Stated is as follows:

“ I. Whether, upon the facts provide [ sic] or admitted, I was correct in law in my determination that the sale of the property on 4 July 2007, constituted a sale of development land in accordance with section 648 TCA 1997.”

8 . Mr McNamara makes complaint that the present wording of this Question I has as its starting point “ the facts provide or admitted”, rather than the evidential basis for those findings which, it is clear from point (1) of the s.949AP(2) notice is the central thrust of the issues raised in this regard by the notice of appeal. That this is so, is clear from points (1)-(8) of the...