Tobin v Criminal Assets Bureau
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] IEHC 825 |
| Docket Number | [2017 No. 84 R] |
| Court | High Court |
| Date | 19 December 2017 |
[2017] IEHC 825
THE HIGH COURT
REVENUE
O'Connor Tony J.
[2017 No. 84 R]
Revenue – Practice & Procedure – S. 933(7) of the Taxes Consolidation Act 1997 – Question of law – Ejusdem generis – Other reasonable cause – Admission of late appeal – Case stated
Facts: The present case came by way of a case stated by the Circuit Court for the opinion of the High Court. The Circuit Court had stated a question for determination before the High Court as to whether the learned judge of the Circuit Court was correct in upholding the refusal of the respondent to admit the appellant's late appeal pursuant to s. 933(7) of the Tax Consolidation Act. The appellant contended that the word ‘other reasonable cause’ must be read ejusdem generis with the words ‘absence’ and ‘sickness’ and his late appeal should be covered under the word ‘other reasonable cause’. The respondent refused the admission of the appellant's late appeal. The respondent contended that no appeal lied against an assessment until such a time that the chargeable person delivered the return and had paid the tax and interest.
Mr. Justice Tony O'Connor held that it was not correct to relate the ‘other reasonable cause’ to either ‘absence’ or ‘sickness’. The Court also held that the appellant might establish facts not related to absence and sickness before the final determination for the admission of late appeal. The Court opined that if the legislature wanted to ensure that ‘absence or sickness’ was the genus for ‘other reasonable cause’ in all circumstances to be applied, it could have inserted a word or words to that effect.
In this case stated by Judge O'Donoghue of the Circuit Court, this Court is asked whether he was correct to uphold the refusal of the respondent ( ‘CAB’) to admit the appellant's late appeal pursuant to s. 933(7)(a) of the Taxes Consolidation Act 1997 ( ‘ TCA’). This section allows for an appeal against an income tax assessment for a particular income tax year, not filed within the prescribed 30-day time period after the date of issue of the income tax assessment, to be admitted once certain conditions are met.2. Judge O'Donoghue held that he ‘was bound by the judgment in CAB v. K.D.’ (unreported judgment of Finnegan P. delivered on 19 th March, 2002) ( ‘ K.D.’) whereby it was held that the term ‘other reasonable cause in s. 933(7)(a) of TCA had the same meaning as sickness and absence’. Judge O'Donoghue found that ‘the appellant failed to adduce any evidence which would have enabled him to come within the term “other reasonable cause” in s. 933(7)(a) and accordingly, the respondent was entitled to refuse the admission of the appellant's late appeal’.
S. 941(6) TCA provides:-
‘The High Court shall hear and determine any question or questions of law arising on the case, and shall reverse, affirm or amend the determination in respect of which the case has been stated, or shall remit the matter to the Appeal Commissioners with the opinion of the Court on the matter, or may make such other order in relation to the matter, and may make such order as to costs as to the Court may seem fit.’
The appellant contended at the hearing before this Court that a more expansive interpretation of the relevant section should have been adopted and relied on the earlier judgment of Kearns J. (as he then was) in CAB v. P. McS. (unreported judgment delivered on 19 th March, 2002) ( ‘ P. McS.’) which took into account ‘the inevitable delays associated with Christmas holidays and the notorious vagaries of the postal system at that time’. It seemed to Kearns J. in the circumstances of that case that ‘an inspector must consider whether reasonable cause exists to satisfy him that the notice actually given should be regarded as having been appropriately given’.
At this juncture, a chronological summary of the relevant facts may assist in understanding the context for this appeal:-
12.12.2012 The respondent raised income tax assessments on the appellant for the income tax years 2004 to 2010 (emphasis added by this Court) in the sum of €129,943.00. The notice included a legend that in order to appeal, the taxpayer must enter a valid notice of appeal, file an income tax return and pay the appropriate tax and interest due in respect of that tax, all within 30 days of the date of the notice, as per ss. 933(1)(a) and 957(2) TCA.
07-09.01.2013 Returns were filed via the Revenue Online Service ( ‘ROS’) for the appellant by an accountant declaring a total liability of €1,731.51. 09.01.2013 Payment of this sum of €1,731.51 without any interest was effected by electronic transfer to the relevant account of CAB and the appellant notified his appeal of the assessments.
16.01.2013 CAB wrote to the appellant's accountant emphasising that no appeal lies against an assessment until such a time that the chargeable person delivers the return and has paid the tax and interest (emphasis added by this Court) due and payable under s. 1080 TCA. The letter further explained that the application for an appeal was therefore refused and CAB drew attention to the late appeal provisions of s. 933(7) TCA. The assessments which where the subject of the appeal were identified as those issued on 12 th December, 2012. It was clarified that assessments which were generated following the ROS filings between 7 th – 9 th January, 2013 had been issued in error and were vacated.
24.01.2013 Payment of €854 for statutory interest was effected on behalf of the appellant which ought to have been paid according to the appellant's submissions to Judge O'Donoghue on or before 11 th January, 2013 and was, therefore, ‘just 13 days later’. 28.01.2013 The accountant for the appellant wrote a four-page letter to the Income Tax Appeal Commissioner appealing the refusal to allow notices of appeal in respect of the assessments raised on 12 th December and taking issue with the vacating of the assessments on 7 th, 8 th and 9 th January, followed by an expression of an understanding of ‘the complexity of the position the Appeal Commissioner may be left with…’.
28.06.2013 The Appeal Commissioners upheld the inspector's decision to refuse the appeal.
02.07.2013 The appellant applied under s. 933(7)(a) TCA for an admission of a late appeal against the assessments. This occurred ‘within 12 months after the date of the notice of assessment’.
26.05.2015 The Appeal Commissioners refused to admit the late appeal.
18.02.2016 The matter came before Judge O'Donoghue by way of an appeal under s. 942 TCA.
Judge O'Donoghue identified the question for his determination as being:-
‘Whether [ CAB's] refusal to accept an application made under s. 933(7)(a) TCA for the admission of a late appeal against income tax assessments should be upheld.’
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