1. The
Plaintiffs claim in these proceedings against the Defendant is for the sum of
£2,570,186.93 for tax and interest due by the Defendant to the Minister
for Finance for the benefit of the Central Fund, payment of which sum was
demanded prior to the commencement of proceedings. The Plaintiff is a Bureau
officer appointed to the Criminal Assets Bureau pursuant to Section 8 of the
Criminal Assets Bureau Act 1996. The Plaintiff is also an officer of the
Revenue Commissioners nominated by the Revenue Commissioners to exercise the
powers and functions of the Collector General. The Plaintiff brings the
proceedings under S. 966 of the Taxes Consolidation Act, 1997 in the name of
the Criminal Assets Bureau pursuant to the provisions of Section 10 of the
Criminal Assets Bureau Act, 1996.
2. The
tax claimed is in respect of 4 years, which are the 12 months ending on the 5th
April, 1992, 5th April, 1993, 5th April, 1994 and 5th April, 1996.
3. In
his grounding affidavit, Chief Superintendent Michael F. Murphy of the Criminal
Assets Bureau deposes that the profits or gains of the Defendant which are
being charged to tax and which are the subject matter of the proceedings arise
from or follow an investigation by the Criminal Assets Bureau into the
identification of the Defendants assets which are suspected to derive directly
or indirectly from criminal activity and which have thus been charged under
Case IV of Schedule D as miscellaneous income.
4. In
respect of each of the 4 years, other than 1996, the Defendant made returns and
payments prior to the raising of assessments which, in respect of all 4 years,
were raised on the 25th November, 1997. This and other dates are of critical
importance to this case.
5. By
letter dated 22nd December, 1997, the Defendant’s Solicitors, Messrs.
Donal T. McCarthy & Co, 19 South Mall, Cork, wrote to the Plaintiffs (by
fax and registered post) a letter in the following terms:-
6. It
is common case that this letter was dispatched by registered post on the 22nd
December, 1997, being the date of the letter itself. The Plaintiff claims
however, that this letter was not received until the 30th December, 1997. The
fax of the letter dated 22nd December was received on the 29th December, 1997.
A further faxed message (which has now become lost) which was also received on
the 30th December, 1997 apparently stated,
7. On
the 7th January, 1998, an officer of the Criminal Assets Bureau wrote to the
Defendants Solicitors in the following terms:-
9. The
Summary Summons launching the proceedings on behalf of the Plaintiff was issued
on the 22nd January, 1998.
10. The
Plaintiff, having established all formal proofs on affidavit and by
certificate, contends that the Defendant, being a person who has been assessed
to tax, has failed to appeal the assessments made on the 25th November, 1997 as
a result whereof the assessments have become final and conclusive.
11. The
Defendant for his part maintains that he did appeal within time and that, in
the case of the 1996 return, the time for bringing his appeal did not begin to
run until such time as he had made his return and paid the tax, neither of
which had occurred in respect of that particular year.
12. The
Defendant further maintains that there were certain defects in the certificates
of both the Tax inspector and collector which were relied upon by the
Plaintiffs, which fell short of the statutory requirements for validity. He
also challenges the
locus
standi
of the Plaintiff to bring the proceedings.
13. While
constitutional issues were raised in the Defence (and Notice pursuant to Order
60 of the Rules of the Superior Courts was duly given to the Attorney General,)
no constitutional arguments were advanced during the hearing before this Court,
nor were any arguments advanced to support further contentions that some of the
statutory provisions relied upon by the Plaintiff were repugnant to the
European Convention of Human Rights. The Defence is a purely technical one,
alleging non-compliance by the Plaintiff with the requirements of various
sections of the Taxes Consolidation Act, 1997 to which I will shortly refer.
14. The
only oral evidence in the hearing before this Court was the evidence of Chief
Superintendent Felix McKenna, Chief Bureau Officer of the Plaintiffs, who
sought an order under Section 10 of the Criminal Assets Bureau Act, 1996 for
anonymity for the inspector of Taxes and the collector of Taxes who had signed
the two certificates in the name of the Criminal Assets Bureau. Chief
Superintendent McKenna told the Court that it was his belief that in the event
of the identity of the two officers becoming known, it would hinder the work of
the Bureau in the general sense that other enquiries would be affected if the
people in question were known. He said it would be difficult to get a suitable
applicants to come and work in the Bureau if their identity was not protected.
He further gave evidence of his belief that the Defendant was a person
suspected of drug dealing in Cork, an activity which by its very nature was
likely to pose safety and security risks to Bureau officials if their identity
became known, although he was not aware of any specific threats in the instant
case. He based his belief on information supplied to him by Drug Squad
Officers from Cork and investigations carried out in the Bureau since 1996.
15. He
further identified the handwriting of the particular inspector and collector,
stating that he had frequently seen each individual sign documents in his
presence over a period of 5 years. Each officer signed his respective
certificate in the name of the Criminal Assets Bureau.
16. I
ruled at that stage of the proceedings, following submissions to which I will
later refer, that I would grant anonymity to the two officers under Section 10
of the Criminal Assets Bureau Act, 1997 on the basis that I was satisfied,
having heard the evidence of Chief Superintendent McKenna, that there were
“
reasonable
grounds in the public interest
”
to do so, as required by Section 10(7) of the Criminal Assets Bureau Act, 1996.
17. The
ruling was without prejudice to the separate arguments advanced by Mr. Corrigan
in relation to the validity of the two certificates to which I will shortly
return. In proceeding now to address the other issues argued, I propose for
convenience to refer exclusively to the up to date statutory code, which, both
sides agree, replicates the pre-existing statutory provisions in all areas
relevant to this case.
19. Mr.
Corrigan submits that no particular form of appeal is set out in the Act. He
further submits that it is clear from the Plaintiffs letter dated 7th January,
1998 that Mr. McCarthy’s letter of 22nd December, 1997 had been treated
as a valid “notice in writing” for the purpose of bringing an
appeal, because the Plaintiffs letter expressly purported to refuse the appeal
on the sole ground that it was not received within the prescribed time. If
time ran from the date of posting of Mr. McCarthy’s letter, then the
appeal was clearly bought within time and the inspector was not entitled to
reject the appeal on the basis stated. Insofar as the section required only
the “giving” of notice, a taxpayer need only show that he did
everything necessary in the ordinary way to act within time, as had occurred in
this case, when he posted his appeal within time by registered post.
20. By
way of illustration of his submission, Mr. Corrigan referred to Section 15(2)
of the 1998 Finance Act, which provides an appeal procedure for a different
purpose but which states:-
21. The
use of the past tense in the Finance Act underlines, he submits, the
requirement that the notice under that Act must have been
received
by the inspector within 30 days. However, the provision at Section 933(1)(a)
is solely referable to the taxpayer
giving
notice within 30 days.
22. Mr.
Corrigan’s second point was that, regardless of the grounds of refusal,
there then existed a further period of 15 days to appeal against the refusal by
notice in writing to the Appeal Commissioners from the date of issue by the
inspector of the notice of refusal.
23. The
refusal letter is dated the 7th January, 1998. It was received by the
Defendant’s Solicitors on the 9th January. The Defendant, he submits,
could hardly be expected to commence an appeal under Section 933(1)(c) without
been told or knowing that his appeal under ss. (1)(a) had been refused and this
consideration alone was a very strong argument suggesting that “the date
of issue” should itself be excluded from the computation of the period of
15 days. At the time of the refusal, the Plaintiffs were well aware that an
appeal was both intended and had been notified.
25. Mr.
Corrigan draws the Court’s attention to Order 122 R.10, of the Superior
Court Rules where it is provided:-
26. He
submits that where time runs from an act, as distinct from a specified day or
date, the time should always be regarded as being exclusive of the day of the
act (
Williams
v. Burgess
(1840) 10 LG, QB p. 11).
27. Mr.
Corrigan’s alternative argument in relation to time for appeal is
referable to the provisions of ss. (7)(a) of s. 933. Mr. Corrigan submitted
that it must surely constitute “reasonable cause” for extending the
time for a late appeal to demonstrate that the letter constituting the appeal
had been posted on the 22nd December, at a time when delays might reasonably be
expected in the postal system due to the pressures of Christmas and Christmas
holidays on the postal system and where, in fact, it had been received before
any refusal . The fax of 29th December, 1997 had to be regarded, Mr. Corrigan
submitted, as an application that the appeal would be admitted late, or,
alternatively had to be seen as ‘reasonable cause’ for extending
the time.
28. In
the instant case, all appeal routes were closed to the Defendant by the issue
of proceedings on the 22nd January until such time as the proceedings were
determined. Absolutely no period of grace of any sort was allowed for the
bringing of a late appeal, notwithstanding the advice that the Defendant
consider a late appeal as set out in the Plaintiffs letter dated 7th January,
1998. Mr. Corrigan argued that the behaviour of the Plaintiffs was clearly
oppressive having regard to the fact that the Plaintiffs had in place at the
relevant time a Mareva injunction over the Defendants assets. No reasonable
period which the Defendant might legitimately expect would have been allowed
was allowed for a late application. In the events which had occurred, the
Defendant’s letters and faxes were being treated as non-existent.
29. In
reply, Mr. Nesbitt argued that the real issue in relation to any appeal was to
enquire whether or not there was an unresolved appeal in existence when
proceedings were commenced. He submitted that the letter of 22nd December,
1997 could not be construed as a Notice of Appeal. Further, no evidence had
been adduced to show that this document, even if it was a Notice of Appeal, was
communicated to or received by the inspector within 30 days as mandated by
Section 933(1)(a). No paper was in the possession of the Plaintiffs until the
29th December at the very earliest. The 30 day appeal period had expired on
the 24th December, which meant that no valid appeal within the prescribed time
limits was ever made. This case had to be differentiated from
CAB
v. McDonnell
(Judgment of the Supreme Court delivered the 20th December, 2000), which in
effect determined only that an appeal brought within time should inure until
the whole appeal process was determined.
30. Mr.
Nesbitt further pointed out that had there been a refusal of an appeal that had
been made within time, the appropriate procedure would then have been a right
of appeal within 15 days. This had not happened and what the officer had quite
properly done in his letter was to suggest to the taxpayer that he consider the
right of late appeal under ss. (7). This was the appropriate thing to say where
an appeal was out of time. No application was made under ss. (7). Accordingly,
he submits, there was a default of notice of appeal in the events which had
occurred which rendered the assessments final and conclusive.
31. In
computing the 15 day period for bringing an appeal from the refusal of the
appeal on the 7th January, Mr. Nesbitt submitted that the date of issue, i.e.
the 7th, had to be
included
when computing the period. Mr. Nesbitt submitted that the Interpretation Act,
1937 indicated clearly how periods of time in statutes are to be computed.
32. Mr.
Nesbitt submitted that the only possible interpretation of S. 933(1)(c) of the
Act is that which includes the first day in the 15 day period. This in effect
meant that the time for an appeal ended on the 21st and the Revenue were free
to issue on the 22nd.
33. Mr.
Nesbitt further relied on
McGuinness
v.
Armstrong
Patents Limited
[1980] IR 289 and to p. 292 of the judgment of McMahon J. where he stated:-
34. Having
then cited Section 11(h) of the
Interpretation
Act, 1937
,
the learned judge went on to say (again at p. 292/3):-
35. Mr.
Nesbitt further submitted that the Rules of the Superior Courts had no
relevance to this issue of interpretation, given that the Court was concerned
with a statutory construction.
36. Mr.
Nesbitt submitted that there was no scope in the instant case for the
application of any principle of legitimate expectation. No evidence had been
led of any standard procedures used by the Plaintiffs which would suggest that
a period of grace was regularly provided once the time for an appeal had
expired. No evidence had been led by or on behalf of the Defendant to suggest
he was within the category of persons addressed by ss. (7)(a). The Revenue had
an obligation to collect tax and a right to sue when the same was due and
owing. This was not the usual form of exercise of discretionary powers by
public bodies as understood within judicial review cases. Further, in
Pesca
SCA Valentia v
.
The Minister for Fisheries
[1985] IR 193, Keane J. (as he then was) stated (at p. 323):-
37. In
the instant case, the contrary had been established because the evidence
reveals that the letter was received on the 30th December.
38. In
the event of a finding by the Court that the appeals under S. 933 were out of
time, Mr. Corrigan on behalf of the Defendant further contends that in
relation, specifically, to the 1996 assessment in respect of which no return or
payment was made, that the appeal period couldn’t have commenced at all
by virtue of Section 957(2) of the Taxes Consolidation Act, 1997.
39. Mr.
Corrigan argued that, having regard to the requirement to interpret any fiscal
statute strictly, this provision can only mean that the appeal period does not
even commence until the taxpayer makes his return and pays what he says is due
where the inspector has made an assessment in accordance with the
aforementioned sections. This point had been touched upon by McCracken J. in
Criminal
Assets Bureau v
.
K.B
.
(Judgment delivered the 15th May, 2001), where McCracken J. stated (at p. 6-7):-
40. In
the course of his submissions, Mr. Corrigan himself accepted (Day 2 page 39)
that such an interpretation could well be seen as an entirely “absurd
proposition”, but if it was a possible interpretation, and if there was
an anomaly in the Act, then his client was entitled to the benefit of a strict
construction in his favour. The argument was not developed beyond this basic
assertion.
41. Mr.
Nesbitt pointed out that such an interpretation has the rather unreal
connotation that the Defendant is to be regarded, if Mr. Corrigan’s
submission is correct, as being in a stronger position in relation to the year
in which he made no payment or return than in respect of years where returns
and payments were made. Mr. Nesbitt contended that Section 957(2) must be read
in conjunction with the time limits for bringing an appeal prescribed by
Section 933. He submits that the time reference in Section 957(2) refers
merely to the actual mechanics for processing an appeal before the Appeal
Commissioners. That process cannot commence prior to the making of the return
and the payment of the appropriate tax. Section 957(2) does not remove from
the taxpayer the effects of a failure to appeal under Section 933(1) and (6).
At all times the taxpayer must get his appeal within the time limits prescribed
by Section 933.
43. In
effect, the Court was being invited to interpret Section 957(2) in isolation
without regard to the clear intent of the provisions set out at Section 933.
Default of Notice of Appeal under Section 933 leads to an assessment becoming
final and conclusive. Section 933 is the source of the right of appeal.
45. Mr.
Nesbitt further submits that Section 957(2) is not a provision imposing a
liability to tax; that liability is imposed by other sections. Consequently,
one is not involved in ascertaining the intention of the legislature to impose
or not impose a tax. However, the result one arrives at, if one accepts the
interpretation put forward by the Defendant is that despite the clear
imposition of a liability to tax, that tax is not recoverable unless and until
the chargeable person makes a return and pays the appropriate tax. If the Act
imposes a liability to tax then clearly there can be inferred an intention on
the part of the legislature that that tax is collectable and payable. It would
be quite wrong to give to Section 957(2) an interpretation which would lead to
or produce the very absurdity conceded by Counsel on behalf of the Defendant.
46. Mr.
Corrigan contended, firstly, that there was no proof before the Court that the
unidentified anonymous Plaintiff was authorised in the first instance to sue in
his own name as required under Section 966 of the Taxes Consolidation Act, 1997
which provides:-
47. He
submitted secondly, that the certificates did not on their face state that the
sums sought to be recovered were sought “as a debt due to the Minister
for Finance for the benefit of the Central Fund”.
48. Thirdly,
Mr Corrigan submitted that the certificates did not comply with S.10 of the
Criminal Assets Bureau Act, 1996. Accepting that an officer of the Revenue is
also a Bureau officer and exercising powers or duties of the Bureau, and
accepting that under S.10(4) of the Act he may do so in the name of the Bureau,
Section 10(5) specifically excludes from its ambit any document to be adduced
in evidence in respect of which subsection (7) is to apply.
49. Mr.
Corrigan submits that where a document is used for the purposes of evidence,
directions may be sought which include the deletion from certificates of the
name and address of any Bureau officer. This can only mean, Mr. Corrigan
submits, that it is thereby presupposed that the original certificate to be
tendered in evidence is signed personally by the Bureau officer. Otherwise the
provisions for deletion contained in ss. (7) would be quite meaningless and
superfluous. Section 10(5) provides that if a document is to be used in any
proceedings the identity of the Bureau officer shall not be revealed. However,
a different situation exists under subsection (7), which relates to the
situation where such a document is adduced in evidence. It is only then that
the provision for deletion exists, and in the instant case there was no name to
delete. Accordingly, he submits the certificates adduced in evidence were
non-compliant with the requirements of the statute.
50. In
reply, Mr. Nesbitt submitted that both certificates which had been produced in
Court purported to issue under the provisions of Section 966 of the Taxes
Consolidation Act, 1997. Mr. Nesbitt points out that the only manner in which
the signatory to the certificate can be duly authorised is because he is in
fact authorised to take the proceedings under Section 488 of the old Act or
under Section 966 of the new Act. This was duly deposed to at par. 6 of the
Affidavit of Michael Murphy. The certificate clearly states that he is the
Collector General duly authorised to collect the sum due for tax
in
the proceedings
.
No evidence was led to rebut the contents of the certificate or certificates
which must therefore prevail unless or until such evidence is adduced. Mr
Nesbitt further relied upon the presumption of regularity, as O’Sullivan
J. had done in
Criminal
Assets Bureau
v.
Craft
& Anor
(Unreported Judgment, delivered the 12th of July 2000). In that case counsel
for the Defendant claimed that the Plaintiff had failed to prove the
appointment of the Revenue Bureau Officers by the Minister for Justice
“with the consent of the Minister for Finance” as required by
Section 8(1)(a)(ii) of the Act of 1996. At p.21 O’Sullivan J. stated:-
51. On
Mr. Corrigan’s second point Mr. Nesbitt submitted that the proceedings
couldn’t be clearer and set out the claim as “being for monies due
by the Defendant to the Minister for Finance for the benefit of the Central
Fund.” That was what Section 966 required, i.e. that the monies be
claimed as a debt due to the Minister for Finance for the benefit of the
Central Fund. This had been done.
52. It
was not correct to maintain that these certificates must be signed in the
individual names of the inspector or collector. Section 10(4) makes it
mandatory for a Bureau officer to exercise his powers or duties in the name of
the Bureau.
53. Further,
any document relating to proceedings must not reveal the identity of the
particular Bureau officer.
54. However,
a situation could arise where the Court might take the view that although the
certificates had been signed “Criminal Assets Bureau” as required
by law, the Court might wish, for some reason which had arisen in the course of
evidence, to determine precisely who that individual was.
55. Subsection
(7) cannot be interpreted in such a way as to deprive the previous sections of
meaning. In particular, ss. (7) cannot be interpreted in such a way as to
negative ss. (4).
56. It
was entirely possible that a Bureau officer who was in the witness box might
need to produce a certificate of the appointment of some person for some
purpose which might or might not be signed by an officer of the Criminal Assets
Bureau but which would still be signed under the Revenue Acts. In such
circumstances a certificate might be produced which would have an appropriate
name which might require to be deleted. Alternatively, the identity of a
particular officer might have become known through other means, so that the
certificate produced by him, even though in the name of the Criminal Assets
Bureau, might require to be amended or deleted in some way to avoid the
possibility that the person signing as the Criminal Assets Bureau might
nonetheless be identifiable.
57. Mr.
Corrigan on behalf of the Defendant contended that the Plaintiff had failed to
establish
locus
standi
to obtain the relief sought. The Plaintiff, he asserts, is an unidentified tax
inspector who asserts he was entitled to bring these proceedings in the name of
the Criminal Assets Bureau.
58. Any
evidence tendered in relation to the Defendants alleged criminal involvement
was purely hearsay evidence. There was, he submitted, no admissible evidence
that the assets in respect of which the assessments were to be made and on foot
of which the proceedings are based stand directly or indirectly from criminal
or suspected criminal activity. Accordingly, Mr. Corrigan submitted that the
Plaintiff had produced no evidence to bring himself within the objectives of
the Bureau. He further submitted that similar considerations applied to at
least portion of Chief Superintendent McKenna’s evidence on the issue of
anonymity sought in this case for Bureau officers under S. 10 of the Criminal
Assets Bureau Act, 1996.
59. In
reply, Mr. Nesbitt argued that the Plaintiff had
locus
standi
conferred by statute but that the Defendant had no
locus
standi
.
He had led no evidence to put in issue any of the steps taken by the
Plaintiffs. Any attack on the Plaintiff was based solely on the Defendants own
failure to vindicate his rights. He should have appealed when he had the
opportunity to do so or appealed from a refusal when that opportunity arose.
He had given no evidence as to the correctness or otherwise of the amounts set
out in the various certificates. In this regard, Mr. Nesbitt referred to the
unreported decision of O’Sullivan J. in
Criminal
Assets Bureau v
.
John Kelly
(decision 13th April, 2000) where a taxpayers failure to invoke the rights
available to him led the trial judge to accept the submission of the Criminal
Assets Bureau that the Defendant had no
locus
standi
to challenge the validity of impugned sections of certain statutes referred to
in the proceedings. Chief Superintendent McKenna had given direct evidence for
the issue of anonymity under S. 10, but the Court could in addition received
hearsay evidence as the only requirement was to establish reasonable grounds in
the public interest under S. 10(7) of the 1996 Act.
60. The
interpretation of section 933 of the Taxes Consolidation Act 1997 is fraught
with difficulty. Some of these difficulties were considered by the Supreme
Court in
Criminal
Assets Bureau .v. McDonagh
(unreported judgment delivered the 20th day of December 2000).
62. It
is quite clear in that case that no issue arose as to whether or not the appeal
was brought within 30 days, but the case is nonetheless important from the
point of view of the present case, given that the import of the decision was
that the appeal process must be exhausted before the assessments become final
and conclusive.
65. Mr.
Corrigan accordingly submits on behalf of the Defendant that the appeal process
must
be seen as a continuum and I agree with that view. While Mr. Nesbitt suggested
that the true question was to enquire whether or not there was an
“unresolved appeal at the time proceedings were commenced”, I think
the more appropriate test is to enquire whether or not all rights of appeal
under Section 933 have been, in the events which have taken place,
66. This
brings me to Mr. Corrigan’s first submission to the effect that the
Defendant had complied with the requirements of Section 933(1)(a) by
“giving”
notice in writing within 30 days. I accept Mr. Corrigan’s submission
that there is a clear distinction in meaning between the requirement of a
statute which demands the
“giving”
of notice, as distinct from a statute which contains a
“notice
given”
provision. In the latter case, the emphasis is on the date of receipt of the
notice. In the former case, the emphasis is on the deed whereby
“giving”
takes place. Given that the letter was posted within time by registered post
and should, in the ordinary course, have arrived also within time, I hold that
the Defendant did give notice in writing within 30 days of the notice of
assessments as required by s. 933(1)(a).
67. It
can hardly be disputed that Mr. McCarthy’s letter sent on the 22nd
December 1997 constituted a Notice of Appeal. It was treated as such by the
Plaintiffs which, in my view, effectively precludes them
from
now arguing that it is not to be seen as such. In this regard, I also accept
Mr. Corrigan’s submission that the section does not require a Notice of
Appeal to be in any particular format.
68. I
then must consider, having held that the Defendant got himself within the 30
day period, following which his application was refused, the proceedings were
thereafter commenced prior to the expiration of the 15 day period of the date
of issue by the inspector of the notice of refusal.
69. On
consideration of Section 933(1)(c), one is immediately struck by the fact that
in this case, at least, there is no evidence to indicate what the date of issue
of the notice of refusal by the inspector might have been. There is only the
letter of the 7th January which, having regard to the fact that its contents
could not have been communicated to the Defendant prior to the following day if
posted in the ordinary way, had the effect in real terms of truncating the 15
day period for bringing an appeal under the section against the refusal.
70. Be
that as it may, it seems to me that the Court can only take the date of the
letter as being the date of issue by the inspector of the notice of refusal.
The question is whether that date is to be included or excluded in the
computation of the 15 day period.
71. It
seems to me that Mr. Nesbitt’s submission on this point must be correct,
namely, that this issue essentially falls to be determined under Section 11 of
the Interpretation Act 1937. While the issue of a notice of refusal is an act,
the computation period is expressed in the Section to commence with a date
which clearly is a particular day (in this instance the date of issue) and that
being so, I must hold that when proceedings were launched on the 22nd January
1998, the 15 day period had expired.
72. That
does not, however, conclude the matter because there then remains Section
933(7)(a). The terminology of this sub-section is important:-
73.
When
the refusal in this case issued on the 7th January, 1998, what possible view
could the inspector have had of the Defendant’s intentions other than
that he intended to appeal? The inspector had in his possession a registered
envelope postmarked the 22nd of December 1998 which contained Mr.
McCarthy’s letter. He had received a fax on the 30th December 1998
stressing that this letter was to be treated as a Notice of Appeal. He had
received a fax of the letter the previous day.
74. It
seems to me that in such circumstances, and in informing the exercise of his
discretion, an inspector must consider whether reasonable cause exists to
satisfy him that the notice actually given should be regarded as having been
appropriately given. On the facts of this case, it seems to me that, had he
given the matter due consideration, he could only have concluded that
reasonable cause did exist, taking into account the date of posting and the
inevitable delays associated with Christmas holidays and the notorious vagaries
of the postal system at that time. To hold otherwise is to treat the letter of
appeal as though it had never existed or been sent at all, or had fallen
through cracks in the pavement.
75. This
seems to me a fair procedures point, rather than a legitimate expectation
point, or an estoppel point, which is I note also pleaded in the defence. The
inspector in his letter of refusal suggested that the Defendant consider a
late appeal, but no reasonable period was then allowed for him to do so. Where
reasonable cause can be shown to exist, as I believe to be the case here, a
reasonable period for a late appeal must be allowed under Section 933(7)(a).
It seems to me, on the facts of this particular case, that the Plaintiffs
should have deemed it an appropriate case in which to hold there was
“reasonable cause” within Section 933(7)(a) so as to regard the
Notice of Appeal as having been given within the time limited by ss. (1)(a),
and I so hold. It goes without saying that even if I am incorrect in holding
that the Defendant gave notice in writing within 30 days as required by S.
933(1)(a), the facts of this case are still such as to bring the Defendant
within the “reasonable cause” saver contained at S. 933(7)(a).
76. In
relation to the case argued in relation to Section 957(2) which only, of
course, arises if the appeals under S. 933 are seen to be out of time, I accept
Mr. Nesbitt’s primary submission that the ordinary rights of appeal
derive under Section 933. I further accept his contention that the two
sections should not be construed in such a manner as would totally frustrate
the operation and scheme of the Act. It is quite clear under the Act that the
time scale for appeals runs from the date of the assessment, and that the tax
authorities are entitled to issue proceedings after thirty days when no valid
appeal against the assessment has been lodged.
77. Mr.
Nesbitt’s submissions with regard to the construction of Section 957(2)
are less satisfactory. This section clearly constitutes more than a mere
description of the “mechanics” of the appeals process. It provides
clearly for the commencement of a thirty day appeals period “at the
earliest date on which both the return has been delivered and that amount of
tax has been paid”. This appeal is not the appeal as specified in
Section 933, and arises if, and only if, the Revenue Commissioners or its
agents have decided not to issue proceedings on foot of the original assessment
by the time the return is made and the tax paid on foot of the assessment. The
tax authorities have, it seems to me, a discretion to allow an assessment to
stand over before bringing proceedings, if it is felt that to do so would be a
prudent course of action in a given case. The knowledge that a Section 957(2)
appeal is open to a taxpayer can thus be characterised as an incentive for the
non-compliant taxpayer to come forward and make a return without the opprobrium
of legal proceedings being brought against him.
78. In
the instant case, and for the purpose of this argument only, the tax
authorities chose to issue proceedings on the assessment relating to the year
for which the Defendant had failed to make a tax return more than thirty days
after such assessment. The assessment (
sans
appeal under S. 933) was final and conclusive for the purposes thereof. The
fact that an appeal under S. 957 would have been open to the Defendant had the
Plaintiff not sought final judgment prior to the Defendant making a tax return
and paying the tax thereon would be of no assistance to the Defendant in such
circumstances.
79. I
accept Mr. Nesbitt’s submissions in relation to the certificates which I
am satisfied conform to all the requirements required by statute. I also
accept that the presumption of regularity applies in the absence of evidence of
want of authorisation. I believe and hold that the provisions of Section 10(7)
of the Criminal Assets Bureau Act 1996 merely provide an additional measure for
the protection of Bureau Officers where anonymity is required in the context of
giving evidence or producing documents in evidence. I do not believe that ss.
(7) can be interpreted only to mean that the certificate in respect of which
the deletion is sought must be one containing the actual name of the officer in
question.
80. I
find absolutely no basis for the contention that the Plaintiff lacks
locus
standi
to bring these proceedings. It is quite clearly within their statutory
obligation and remit to do so. The objection, it seems to me, is an evidential
one, rather than any true objection by way of
locus
standi
.
As the Defendant has confined his challenge in these proceedings to the
application only of various sections of the Taxes Consolidation Act 1997 to his
particular circumstances, I hold equally that he had
locus
standi
to argue those points.
On
the issue of anonymity, Chief Superintendent McKenna gave direct evidence of
his opinion that the efficient functioning of the Bureau required anonymity for
Bureau officers and I accepted his evidence on this point. I therefore did not
need to rely on the separate ground advanced by Chief Superintendent McKenna
for granting anonymity, namely, his belief derived from contact with members of
the Drug Squad that the Defendant is actively involved in drug dealing, an
activity which of its nature suggests safety concerns for Bureau officers whose
identity is not protected. I should say, however, and in my ruling so held,
that for the limited purpose of S. 10(7) of the 1996 Act and bearing in mind
that the objectives of the Bureau extend to “suspected” criminal
activity, that hearsay would be admissible to establish “reasonable
grounds in the public interest” where no evidence to the contrary was led.