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Cite as: [2009] 3 IR 9, [2004] IEHC 351

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[2004] IEHC 351

THE HIGH COURT

1997 No. 38R

BETWEEN

THE CRIMINAL ASSETS BUREAU

PLAINTIFF

AND

P. S.

DEFENDANT

Judgment of Finnegan P. delivered on the 19th day of October 2004

By Plenary Summons issued on the 14^th April 1997 the Plaintiff claimed against the Defendant the sum of £1,623,067.45 for income tax and interest in respect of the year of assessment 1994/95. Following an investigation and enquiries a Bureau Officer of the Plaintiff who is also an Officer of the Revenue Commissioners made an assessment for tax on the Defendant in respect of the Tax Year 1994/95 pursuant to section 19 of the Finance Act 1983 as amended. The assessment was served on the Defendant on the 25^th February 1997. By letter dated the 25^th March 1997 the Defendant inter alia purported to file a Notice of Appeal against the said assessment in the following terms –

"This letter is to be regarded as a Notice of Appeal of the said assessment in any event."

By letter dated 27^th March 1997 the Plaintiff replied in the following terms –

"Your letter purports to be a 'Notice of Appeal' pursuant to the Taxes Acts, please note section 416 of the Income Tax Act 1967 as amended. I am of the opinion that this letter is not a Notice of Appeal, as it has not complied with the requirements as set out in section 17(4) of the Finance Act 1988 as amended. I am therefore not admitting your appeal."

On the 1^st April 1997 a demand for payment on foot of the assessment was made on the Defendant pursuant to the Income Tax Act 1967 section 478 as amended.

A Statement of Claim having been delivered the Defendant delivered a Defence and Counterclaim on the 1^st August 1997. Apart from denials putting the Plaintiff to proof the Defence raised the following issues:

1. The assessment was unreasonable, irrational, arbitrary, and capricious, was made for improper purposes, and is ultra vires the statutory powers in accordance with which it was purportedly made, invalid, null and void.

2. The Defendant validly appealed the assessment and it has not become final and conclusive.

3. On the 24^th February 1997 Officers of the Plaintiff seized papers the property of the Defendant from the Offices of his Solicitor, the Offices of his Accountant and his dwelling house and by reason thereof the Plaintiff is estopped from contending that the Notice of Appeal failed to comply with the provisions of the Finance Act 1988 section 17(4). In refusing to admit the appeal the Plaintiff acted for the improper motive of frustrating the Defendant's right of appeal.

4. The demand is invalid, null and void the assessment upon which it was based being itself invalid, null and void.

5. The demand is invalid, null and void in that such demand can only be made after the expiration of the period for appealing the assessment upon which it is based.

6. The demand is invalid, null and void because demand may not be made once the Notice of Appeal has been given.

The Counterclaim seeks an Order directing the Plaintiff to return to the Defendant all documents seized by the Plaintiff. The documents have already been returned and this issue is moot save and except in respect of such costs of the counter claim as might be awarded. A Reply and Defence to Counterclaim was delivered: the Defence to Counterclaim denies the Defendant's plea that by reason of the seizure of documents the Defendant was unable to comply with the requirements for a valid appeal.

I will refer to the foregoing issues as the non constitutional issues. In addition constitutional issues arise as follows. The Defendant served on the Attorney General a notice pursuant to the Rules of the Superior Courts Order 60. The pleadings however were not amended. The Attorney General instructed Solicitor and Counsel on record for the Plaintiff to represent his interest and in order to facilitate the resolution of all issues between the parties it was agreed that I should deal with the constitutional issues if the Plaintiff succeeds on the issues raised by the Defence. The constitutional issues were particularised in the days preceding the commencement of the hearing as follows -

"The statutory provisions enabling the Plaintiff to avail of anonymity and his witness to avail of the anonymity are repugnant to the Constitution and the European Convention and are invalid."

Article 40.1 of the Constitution guarantees equality before the law. Article 34 guarantees that, save in such special and limited cases as may be prescribed by law, justice shall be administered in public. Sections 10(2), (4), (6) and (7) of the Criminal Assets Bureau Act. 1996, offend both rights guaranteed to the Defendant in that

(a) he is being treated in a manner, which is unequal compared with that of other taxpayers and citizens; and

(b) the special and limited exceptions to the right to the administration of justice in public does not extend to Revenue proceedings.

Further, if it arises, the Defendant will contend that sections 8(5), 8(6)(d), and 8(7) of the Criminal Assets Bureau Act, 1996 are invalid having regard to the provisions of the Constitution if it is determined that these subsections and each of them permit an exception to the proposition in that no basis exists or is laid, nor is any or any proper and/or admissible evidence before the High Court on foot of which a claim to anonymity can otherwise be made on the ground that to so permit such exception is contrary to the rights to equality guaranteed in Article 40.1 and is contrary to the right to the administration of justice in public, not covered by the "special and limited exception" in Article 34.

The Defendant will also contend in similar terms that these subsections are contrary to Articles 6 and 14 of the European Convention on Human Rights and are invalid.

"These proceedings are in surplus to prosecution of the Criminal Offences and a Stratagem to avoid the ordinary process of the criminal law and are repugnant to the Constitution and the European Convention and are invalid and ought to be dismissed."

Article 38 of the Constitution provides that "No person shall be tried on any criminal charge save in due course of law". The Defendant asserts the right implied therein that no person shall be tried on any criminal charge without recourse to and the availability of such safeguards and procedures as are applicable to the trial of a criminal charge. The instant proceedings are in form "Revenue" proceedings. In substance however, particularly if, as anticipated, the Plaintiff seeks reliance on the provisions of the Criminal Assets Bureau Act, 1996 in the prosecution of same, they are criminal proceedings. Thus, it is asserted, the very proceedings are in breach of Article 38 of the Constitution.

If the Plaintiff contends that the within proceedings are not criminal in nature but are mere Revenue proceedings, the Defendant will again assert his right to equality under Article 40.1 and contend that the very proceedings breach such right.

The Defendant will also contend in similar terms that these subsections are contrary to Articles 6 and 14 of the European Convention on Human Rights and are invalid.

"The requisite proofs of the plaintiff in the plenary action cannot be in the form of certificates as such proofs are repugnant to the Constitution and the European Convention and are invalid."

Article 38 of the Constitution provides that "No person shall be tried on any criminal charge save in due course of law." The Defendant asserts that this right carries with it the implied right to cross-examine.

The Defendant further contends that the right to fair procedures, which is grounded in Article 40.3 of the Constitution, including but not restricted to the rules of natural justice, and in particular, audi alteram partem, is an implied right under the Constitution and is applicable to the within proceedings and incorporates the above right to cross-examine.

The Defendant contends that recourse to and the availability of the use of certificates offends against these principles in that he is denied the opportunity to test the evidence raised against him.

The Defendant will also contend that the use of certificates to prove the substance of the case against the Defendant is in breach of the separation of powers enshrined in the Constitution.

The Defendant will also assert that the use of certificates in the manner anticipated is contrary to the principles in Article 6, 13 and 14 of the European Convention on Human Rights.

"The Taxes Consolidation Act, 1997, in particular s 933(6) section 966(3),(4),(5),(6) and 1080 (4) and the Criminal Assets Bureau Act, 1996, in particular section 8)(5)(6)(d) and (8)(7) and certain other provisions thereof as amended are unconstitutional and void for the following reasons: [ etc…]."

The Defendant contends that the above provisions are repugnant to the fair procedures provisions of the Constitution set out in particular in Article 40.3 in that they deny the Defendant the right to fair procedures contained therein. Furthermore the said provisions are inconsistent with the separation of powers doctrine.

The Defendant further and particularly repeats his contentions concerning the above mentioned provisions of the Criminal Assets Bureau Act, 1996 as set out at paragraph 1. above.

In the first non constitutional ground the Defendant claims that the assessment was unreasonable, irrational, arbitrary and capricious. I have regard to the decision of the Supreme Court in Criminal Assets Bureau –v- Sean Hunt & Others The Supreme Court Keane C.J. 19^th March 2003. Under the statutory provisions an inspector is entitled to form an opinion in the light of such information as is available to him as to the amount of tax due subject to the right of the taxpayer to dispute the same. It was open to the Defendant to lead evidence to support this contention. The Defendant did not give evidence or lead evidence to do so. Nothing was led in evidence to suggest that the amounts assessed were unreasonable, irrational, arbitrary or capricious and this contention of the Defendant must fail. However a detailed argument is made in written submissions and which were relied upon without elaboration in oral argument that the assessment was ultra vires. The Plaintiff's argument is that the provisions of the Finance Act 1988 enable an Inspector to make an assessment in accordance with the return or if no return or an insufficient return in accordance with the Income Tax Act 1967 section 148 (section 13) and also to make an amended assessment (section14) but that an Inspector has no power to make an original assessment save in accordance with the return or under section 184 of the Income Tax Act 1967. The assessment on the Defendant, it is argued, purported to have been made under the Finance Act 1988 section 15 on the basis that the Inspector believed the Defendant's return to be incorrect. The Defendant accordingly argues that the inspector purported to make an original assessment under section 15 of the 1988 Act a provision under which he had no power to make an original assessment and the assessment is accordingly ultra vires and void.

The Finance Act 1988 section 13(2) provides that an assessment should be made by the Inspector by reference to the particulars contained in the chargeable persons return. Section 13(3) provides that in default of a return or the Inspector, not being satisfied with the return or having received any information as to its insufficiency, can make an assessment in accordance with the provisions of the Income Tax Act 1967 section 184: this is characterised by the Defendant as an original assessment. The Finance Act 1988 section 14 allows an Inspector at any time to amend an assessment: this is characterised as an amended assessment. Section 15 in its terms enables an Inspector for the purpose of making an assessment or amending an assessment to accept in whole or in part any statement or other particular contained in a return and goes on to provide that the making of an assessment or the amendment of an assessment by reference to the return shall not preclude the Inspector from making such enquiries or taking such actions within his powers as he considers necessary to satisfy himself as to the accuracy or otherwise of the return and shall not preclude him from amending or further amending the assessment in such manner as he considers appropriate. Thus in its terms section 15 does not empower the Inspector to make either an original or an amended assessment but merely elaborates on the powers conferred upon him by sections 13 and 14. If it is indeed the case that the Inspector purported to make the assessment under section 15 there is substance in the Defendant's submission. The Defendant's submission turns upon the construction of the Inspector's letter to the Defendant dated 27^th March 1997 which states –

"The assessment has been made on the basis that I believe your client's returns to be incorrect (s.15 Finance Act 1988)".

I am satisfied that the reference to section 15 in the letter is merely to indicate to the Defendant that the Inspector is not accepting the return: it is not a statement that the assessment is being made pursuant to powers conferred upon the Inspector by section 15. The assessment is in fact an original assessment and the power to make such an assessment is conferred by section 13 and the extract from the letter of 27^th March 1997 does not suggest to me that the assessment was made otherwise than under section 13 of the 1988 Act and in accordance with the Income Tax Act 1967 section 184. Being so satisfied I find that the assessment was not ultra vires.

In relation to the second non-constitutional ground in the period between the hearing of the action and the delivery of judgment the second ground of defence mentioned above has been considered by the Supreme Court in Terence Keogh v Criminal Assets Bureau and Others (Unreported) Keane C.J. 17^th May 2004. In that case the Court reconciled the apparent contradiction between section 933 and section 957 of the Taxes Consolidation Act 1997 dealing with the time within which an appeal must be taken. The sections in the 1997 Act restate the provisions of the Income Tax Act 1967 section 416 as amended and the Finance Act 1988 section 17 as amended. Throughout the hearing although the relevant provisions are those of the 1967 and 1988 Acts as amended the parties referred to sections 933 and 957 of the 1997 Act which restated those provisions and for convenience and I propose to do the same in this judgment. Section 933(1) provides as follows –

933.-(1) (a) A person aggrieved by an assessment to income tax or corporation

tax made on that person by the inspector or such other officer as the

Revenue Commissioners shall appoint in that behalf (in this section referred

to as other officer") shall be entitled to appeal to the Appeal Commissioners

on giving, within 30 days after the date of the notice of assessment, notice in

writing to the inspector or other officer.

( b ) Where on an application under paragraph (a) the inspector or other officer is of the opinion that the person who has given the notice of appeal is not entitled to make such an appeal, the inspector or other officer shall refuse the application and notify the person in writing accordingly, specifying the grounds for such refusal.

( c ) A person who has had an application under paragraph (a) refused by the inspector or other officer shall be entitled to appeal against such refusal by notice in writing to the Appeal Commissioners within 15 days of the date of issue by the inspector or other officer of the notice of refusal.

Section 957(2) provides in relation to a person subject to the self assessment regime as follows –

957.—(1) No appeal may be made against-

( a ) a notice of preliminary tax under section 953,

( b ) the amount of any income, profits or gains or, as respects capital gains tax, chargeable gains, or the amount of any allowance, deduction or relief specified in an assessment or an amended assessment made on a chargeable person for a chargeable period, where the inspector has determined that amount by accepting without the alteration of and without departing from the statement or statements or the particular or particulars with regard to income, profits or gains or, as respects capital gains tax, chargeable gains, or allowances, deductions or reliefs specified in the return delivered by the chargeable person for the chargeable period, or

( c ) the amount of any income, profits or gains or, as respects capital gains tax, chargeable gains, or the amount of any allowance, deduction or relief specified in an assessment or an amended assessment made on a chargeable person for a chargeable period, where that amount had been agreed between the inspector and the chargeable person, or any person authorised by the chargeable person in that behalf, before the making of the assessment or the amendment of the assessment, as the case may be.

( 2 ) ( a ) Where—

(i) a chargeable person makes default in the delivery of a return, or

(ii) the inspector is not satisfied with the return which has been delivered by a chargeable person, or has received any information as to its insufficiency,

and the inspector makes an assessment in accordance with section 919(4) or 922, no appeal shall lie against that assessment until such time as—

(I) in a case to which subparagraph (i) applies, the chargeable person delivers the return, and

(II) in a case to which either subparagraph (i) or (ii) applies, the chargeable person pays or has paid an amount of tax on foot of the assessment which is not less than the tax which would be payable on foot of the assessment if the assessment were made in all respects by reference to the statements and particulars contained in the return delivered by the chargeable person,

and the time for bringing an appeal against the assessment shall be treated as commencing at the earliest date on which both the return has been delivered and that amount of tax has been paid, and references in this subsection to an assessment shall be construed as including references to any amendment of the assessment which is made before that earliest date.

The Supreme Court held that the right of appeal arises under section 933. Section 957 applies to the self assessment procedures under the 1997 Act and so to the Defendant. At page 23 of the judgment Keane J. said –

"The only effect of s. 957(2)(a) was to impose on him (i.e. the chargeable person) specific constraints in relation to the bringing of such an appeal which would not arise in the case of a person who is not subject to the self assessment procedures in Part 41 of the 1997 Act. Seen in that context, the intention of section 957(2)(a) is in my view quite clear: it is to preclude the taxpayer in the position of the Applicant from exercising his right of appeal under section 933(1)(a) until he has delivered the return and paid the appropriate tax. Although clumsily worded the concluding words of the subsection were clearly intended to qualify the provisions set out in section 933(1) by precluding the taxpayer from serving notice of appeal within the thirty day period until such time as he has delivered the returns and paid the appropriate tax. Thus, in a case where the taxpayer did not deliver the return and pay the tax until fifteen days after service of the notice of assessment, he would have only fifteen days left within which to serve a notice of appeal, since the period within which he could serve a notice of appeal did not commence until the date on which he had delivered the returns and paid the tax."

Having regard to this decision of the Supreme Court it is necessary to consider whether a valid notice of appeal was served within the 30 day period allowed. The requirements for a notice of appeal are set out in the Finance Act 1988 section 17 (as amended) and now set out in the Taxes Consolidation Act 1997 section 957. The section sets out the following requirements in subsections (4),(5) and (6) –

"(4) Where an appeal is brought against an assessment made on a chargeable person for any chargeable period, the chargeable person shall specify in the notice of appeal –

(a) each amount or matter in the assessment or amended assessment with which the chargeable person is aggrieved, and

(b) the grounds in detail of the chargeable person's appeal as respects each such amount or matter.

(5) Where, as respects an amount or matter to which a notice of appeal relates, the notice does not comply with subsection (4), the notice shall, in so far as it relates to that amount or matter, be invalid and the appeal concerned shall, in so far as it relates to that amount or matter, be deemed not to have been brought.

(6) The chargeable person shall not be entitled to rely on any ground of appeal that is not specified in the notice of appeal unless the Appeal Commissioners, or the judge of the Circuit Court, as the case may be, are or is satisfied that the ground could not reasonably have been stated in the notice.

I have set out above the terms in which the appeal relied upon by the Defendant was couched in his Solicitor's letter of the 25^th March 1997. However it is desirable that I should set out that letter in full and it is as follows –

Dear Sirs,

We confirm we act on behalf of the above named.

Our client has requested us to write to you in relation to the following:-

He requires the immediate return of all Title Documents, seized by the Criminal Assets Bureau from our office on the 24^th February, 1997;

A written account of all the documentation taken;

He has handed us the Notice of Assessment for the year ending 5^th April, 1995 dated 25^th February, 1997;

We are instructed that returns have already been made for that period but there is an on-going audit and the manner in which documents and papers were seized from our client's Accountant John Twomey, Kinsale, Co. Cork we submit was manifestly unfair and it is denying our client the opportunity to adequately and properly defend himself against the Assessment.

We are instructed to ask on what basis this Assessment has been made given that Returns as stated have been filed.

This letter is to be regarded as a Notice of Appeal of the said Assessment in any event.

Our client regards the Assessment as unfair in all these circumstances and deserves his right to issue proceedings for breach of his constitutional rights such as he may be advised.

We await hearing from you.

Yours faithfully

Treating the letter as an appeal I am satisfied that –

It does not comply with section 957 in that it does not set out the amount or matter in the assessment with which the Defendant is aggrieved. And

It does not set out the grounds in detail of the appeal as respects such amount or matter in the assessment with which the Defendant is aggrieved.

The assessment itself contains a number of amounts or matters, specifically, an amount for miscellaneous income, an amount for Case IV interest, an amount for personal allowances, an amount for payments made under deduction of tax, a calculation of tax based on the sums aforesaid, amounts for PRSI and levies and a surcharge for late submission of returns. Subsection (4) requires that each amount in the assessment with which the person chargeable is aggrieved should be specified. Also the grounds in detail of his appeal as respects each such amount or matter are required to be specified. The only part of the letter of the 25^th March 1997 which could be said to address the requirements of subsection (4) at all is numbered paragraph 4. of the same: I am satisfied that this is an inadequate compliance with the requirements of subsection (4). Even if "unfairness" is taken as the ground there is no setting out of the amount or matter in the assessment with which the Defendant is aggrieved. Further the audit referred to was an investigation by an Inspector of Taxes and no evidence was led as to how this adversely affected the Defendant in prosecuting an appeal and no submission was made as to how this could invalidate the assessment.

There was a further non compliance with the statutory requirements in that no amount was paid in respect of tax on foot of the return made: however as this was not relied upon by the Plaintiff as a ground for rejecting the appeal in the Plaintiff's letter of the 27^th March 1997 that letter relying only on section 17(4) of the Finance Act 1988 (now section 957(4) of the 1997 Act) I do not have regard to this non compliance.

The Notice of Appeal was refused, or more precisely not admitted: section 933(1)(b) enables the Inspector to do this where he is satisfied that the person who has given Notice of Appeal is not entitled to make such an appeal. The Defendant takes issue with the terms of the letter of 27^th March 1997 written in response to the purported Notice of Appeal of 25^th March 1997 and which reads as follows –

"Your letter purports to be a 'Notice of Appeal' pursuant to the Taxes Acts, please note section 416 of the Income Tax Act 1967 as amended. I am of the opinion that this letter is not a Notice of Appeal, as it has not complied with the requirements as set out in section 17(4) of the Finance Act 1988 as amended. I am therefore not admitting your appeal."

It is submitted on behalf of the Defendant that the letter is ambiguous and could mean either that there was no valid appeal or that there was an appeal which was refused. I am satisfied that the letter of 27^th March 1997 is sufficiently clear. The Finance Act 1988 as amended section 18(4) and (5) is restated in the Taxes Consolidation Act 1997 section 957(4) and (5). The effect of the latter subsection is that where there is non compliance the appeal shall be deemed not to have been brought. In these circumstances there was no valid appeal within the statutory period and the Inspector was entitled to refuse (or in terms of the letter of 27^th March 1997 not to admit) the appeal. I see no basis for reading section 933(1)(b) as restricted to cases where there is no right of appeal. I am satisfied that the provision applies equally where the appeal is out of time or non compliant.

It follows from the foregoing that the Defendant had under section 933(1)(c) an appeal against the refusal by the Inspector. Section 933(6)(a) provides –

"In default of notice of appeal by a person to whom notice of assessment has been given the assessment made on that person should be final and conclusive."

An "appeal" in section 933(6)(a) does not distinguish between an appeal against the assessment under section 933(1)(b) and an appeal against non admission of an appeal under section 933(1)(c) and it seems to me that the most appropriate construction to be given to the provision is that an assessment does not become final and conclusive until such time as the time limits in each case that is the thirty day period and the fifteen day period have elapsed.

The tax code provides for one further appeal in section 933(7)(a) which provides as follows –

(7) (a) A notice of appeal not given within the time limited by subsection (1) shall be regarded as having been so given where, on an application in writing having been made to the inspector or other officer in that behalf within 12 months after the date of the notice of assessment, the inspector or other officer, being satisfied that owing to absence, sickness or other reasonable cause the applicant was prevented from giving notice of appeal within the time limited and that the application was made thereafter without unreasonable delay, notifies the applicant in writing that the application under this paragraph has been allowed.

Subsection (7)(d) allows for applications to be made after the expiration of the 12 month period. If the non availability of documents as a result of their seizure prevented a notice of appeal being given in time it may well be that this would amount to "other reasonable cause" within the meaning of the subsection. However it is not necessarily so as it may be necessary to construe that phrase ejusdem generis with absence and sickness. The availability of an appeal under section 933(7) does not affect the operation of section 933(6) whereby an assessment becomes final and conclusive in default of notice of appeal having regard to the view which I take as to the meaning of "appeal" in section 933(6)(a) as referring to section 933(1)(b) and (c).

Section 933(9) provides that once action is commenced for the recovery of tax or a certificate under section 962 of the Act issues section 933(7) shall not apply in relation to the assessment until the action has been completed. Proceedings were issued on the 14^th April 1997. Accordingly there is no right of appeal in existence under section 933(7). Accordingly the assessment has become final and conclusive.

The third non constitutional issue relates to the seizure of papers the property of the Defendant. The Defendant's papers were seized on the 24^th February 1997. It is to be noted that the Defendant did not give evidence. Evidence on his behalf was given by Mr. McCarthy his solicitor at the relevant time to the effect that he had been informed by the Defendant that he had not retained copies of bank statements which were required for the purposes of appeal. None of the other documents which were seized, on the evidence, were required for the purposes of the appeal. The evidence is hearsay. I have no evidence that any attempt was made to obtain bank statements which in the ordinary course one would expect to have available from the bank in question. In these circumstances it seems to me that I have no admissible evidence or even if admissible satisfactory evidence that bank statements were unavailable to the Defendant or even necessary for the appeal. The Defendant has failed to establish in evidence the basis for a claim that the Defendant by reason of the seizure of documents is estopped from maintaining these proceedings. No evidence was led or elicited in cross examination to substantiate the bald assertion that an improper motive existed for refusing to admit the Defendant's purported Notice of Appeal.

The non constitutional issues raised at 4 and 5 may be considered together. As to the fourth issue I have held the assessment to be valid. Further there having been default of appeal under both section 933(1)(a) and 933(1)(b) at the expiration of the 30 and 15 day periods the assessment became final and conclusive.

Having regard to the view which I take as to when the assessment became final and conclusive it is necessary to consider the effect of a demand having been made prior to that date. In this case the demand was made on the 1^st April 1997 within the fifteen day period within which an appeal lay against the decision of the Inspector not to admit the appeal and the Defendant contends that a demand cannot be made until the assessment has become final and conclusive. The Taxes Consolidation Act 1997 section 961(1) provides as follows –

"When income tax becomes due and payable the Collector General shall make demand of the respective sums given to him or her in charge to collect from the persons charged with those sums or at the places of their last abode, or on the premises in respect of which the tax is charged as the case may require."

As to when taxes become "due and payable" section 958(2) of the Taxes Consolidation Act 1997 provides that preliminary tax shall become due and payable on or before the first day of November in the year of assessment. Section 958(3) provides in relation to tax specified in an assessment that it shall become due and payable where the assessment is made before the due date on or before the due date and where the assessment is made on or after the due date on or before the specified due date for the year of assessment. The due date for preliminary tax in the present case is the 1^st November 1994 and the specified date is the 30^th April 1996. The actual date of demand was the 1^st April 1997 that is after the tax in question became due and payable. There is nothing in section 961 to suggest that a demand cannot issue until the assessment becomes final and conclusive. Accordingly I am satisfied that a valid demand has been made and accordingly the requirement that demand be made prior to the institution of proceedings for recovery has been complied with: see Criminal Assets Bureau v Sean Hunt & Others The Supreme Court 19^th March 2003. It follows, it seems to me that on the expiration of the fifteen day period allowed for an appeal against the Inspector's decision section 933(1)(b) the assessment became final and conclusive. The Plenary Summons herein was issued on the 14^th April 1997 after the expiration of that fifteen day period and the claim is therefore maintainable.

The effect of the foregoing is the Defendant having failed on the issues raised at 2. the assessment has become final and conclusive. On the issue raised at 4. that demand is invalid and 5. that the demand cannot be made until after the expiration of the period for appealing the assessment the Defendant also fails.

In dealing with the non constitutional issues a number of further matters were raised by the Defendant in the course of argument and I now propose to deal with these.

1. Estoppel/Legitimate Expectation

In the course of argument on behalf of the Defendant it was urged that I should have regard to information contained on the rear of the assessment in relation to the requirements for an appeal. The information given is as follows –

"Appeals

If you wish to appeal in respect of any item that is not in accordance with your return or agreed with the Inspector you must specify the matter in dispute and the grounds of appeal. If you are a chargeable person an appeal cannot be made unless you have paid the tax (including interest) due on the basis of the return and the time limit for appeals is 30 days after the date of this notice or the satisfying of the payment condition whichever is later. Otherwise the time limit is 30 days after the date of this notice."

It is submitted that this reflects the construction placed by the Defendant on sections 933 and 957 – the time for appeal does not run until the requirements of section 957(2)(a) as to the making of a return and the payment of tax have been complied with. It seems to me that this is indeed the case. It was then argued that this creates an estoppel or a legitimate expectation that the Defendant in this case would be allowed a reasonable period within which to bring an appeal pursuant to section 933(7) before proceedings were instituted. Further Mr. Twomey the Accountant to the Defendant gave evidence that late appeals were generally if not invariably allowed.

Mr. S did not give evidence. There was no evidence that he was aware of or relied upon this information. In these circumstances having regard to the decision in Fakih v Minister for Justice 1993 2 I.R. 406 estoppel does not arise. However to rely on the plea of legitimate expectation it is not necessary to establish that one has been induced by the conduct of the other party to act to his own detriment in order to rely upon assurances as to the procedure to be followed. Clearly the Plaintiff had the entitlement to issue proceedings pursuant to the tax code at any time after the assessment became final and conclusive and the issue is whether having regard to the information given with the assessment the principles in Fakih apply so as to prevent them so doing. In that case the Defendant had given assurances as to the procedure which he would follow in clear and explicit terms but did not in that case follow those procedures. The procedures in that case were clearly and explicitly set out in a letter to the United Nations High Commissioner. In this case however the information provided was not a setting out of procedures which would be followed but rather an interpretation of the provisions of section 933 and section 954 of the Act. The Act in section 998 provides that every sum due in respect of income tax may be sued for and recovered by action. At the date of issue of these proceedings the sum claimed was due and payable and the entitlement to sue had arisen at the date of the institution of these proceedings. Accordingly what I am concerned with is not an entitlement to fair procedures as in Fakih but rather an entitlement to have the Plaintiff restrained from exercising a statutory discretion. In Tara Prospecting Limited v Minister for Energy (1993) I.L.R.M. 771 Costello J. held that in cases involving the exercise of a discretionary statutory power in which an explicit assurance had been given which gives rise to an expectation that a benefit will be conferred no enforceable, equitable or legal right to the benefit can arise as the person exercising the discretion cannot estop himself from exercising the discretionary power in the manner prescribed by the legislature at the time it is being exercised. This being the law I hold that the Defendant here has no legitimate expectation arising from the information given on the assessment that he would be afforded a period of time within which to appeal in excess of that to which he was entitled by statute.

2. Anticipation of An Appeal under section 933(7)

A further submission was made on behalf of the Defendant arising out of statements made obiter by Kearns J. in the Criminal Assets Bureau v P McS the High Court 16^th November 2001 and in which it is suggested that where it is clear to the Revenue that the taxpayer intends to appeal and the appeal does not arrive within time then on the facts of the particular case it should have been considered that there was "reasonable cause" within section 933(7) and, the appeal not being received in time, a reasonable period should have been allowed for an appeal under section 933(7) before proceedings were instituted. The Defendant here had a period from 28^th March 1997 to 14^th April 1997 between the expiration of the 30 day appeal period and the issue of proceedings. It is not necessary for me to determine whether the obiter statements are correct as in this case an attempt to appeal was made within the 30 day period although by reason of non compliance with statutory requirements it was ineffective and the 15 day period for an appeal from the decision of the Inspector had also elapsed without any indication from the Defendant of an intention to exercise that right of appeal. On the facts, and without deciding whether the Defendant was affected by "absence, sickness or other reasonable cause", having regard to the lapse of time from the 28^th March to the 14^th April 1997 the date of issue of proceedings the Defendant was allowed a reasonable period in which to avail of the further right of appeal.

3. The Criminal Assets Bureau has no Power to Maintain the Proceedings in its own Name.

The Taxes Consolidation Act 1997 section 966 provides that without prejudice to any other means by which payment of sums due in respect of income tax may be enforced an Officer of the Revenue Commissioners authorised by them for the purposes of that section may sue for the same in his or her own name as a debt due to the Minister for Finance for the benefit of the Central Fund. The Criminal Assets Bureau Act 1996 section 8(2) provides that the powers and duties vested in a Bureau Officer for the purposes of the Act shall be the powers and duties vested in the Bureau Officer by virtue of the Revenue Acts and the exercise or performance of any power or duty shall be exercised or performed by him in the name of the Bureau. The effect of these provisions is that if the Officer of the Revenue who is an Officer of the Bureau who gave evidence before me was entitled to maintain the proceedings in his own name he was obliged to maintain them in the name of the Bureau. His evidence was that he was nominated by the Revenue Commissioners to act on behalf of the Collector General. Further he was nominated by the Revenue Commissioners to bring proceedings including proceedings under the Taxes Consolidation Act 1997 section 966. In these circumstances I am satisfied that the proceedings are properly maintained in the name of the Criminal Assets Bureau. The relevant statutory provisions are fully set out hereafter in the context of constitutional issue 1.

4. Proceedings are not Maintainable in the Name of the Criminal Assets Bureau pursuant to the Criminal Assets Bureau Act 1996 in the absence of Admissible Evidence of Criminal Activity

The Defendant contends that having regard to the statutory objectives of the Criminal Assets Bureau set out in section 4 of the Criminal Assets Bureau Act 1996 that in the absence of admissible evidence of criminal activity these proceedings are not within the objectives of the Bureau and that accordingly the Bureau cannot sue in its own name. Section 4 provides as follows –

—Subject to the provisions of this Act, the objectives of the Bureau shall be—

( a ) the identification of the assets, wherever situated, of persons which derive or are suspected to derive, directly or indirectly, from criminal activity,

( b ) the taking of appropriate action under the law to deprive or to deny those persons of the assets or the benefit of such assets, in whole or in part, as may be appropriate, and

( c ) the pursuit of any investigation or the doing of any other preparatory work in relation to any proceedings arising from the objectives mentioned in paragraphs (a) and (b).

Further section 5(1)(b) provides as follows –

—(1) Without prejudice to the generality of section 4, the functions of the Bureau, operating through its bureau officers, shall be the taking of all necessary actions—

( b ) under the Revenue Acts or any provision of any other enactment, whether passed before or after the passing of this Act, which relates to revenue, to ensure that the proceeds of criminal activity or suspected criminal activity are subjected to tax and that the Revenue Acts, where appropriate, are fully applied in relation to such proceeds or activities, as the case may be.

Subsection (2) of the section provides as follows –

(2) In relation to the matters referred to in subsection (1), nothing in this Act shall be construed as affecting or restricting in any way—

( a ) the powers or duties of the Garda Síochána, the Revenue Commissioners or the Minister for Social Welfare.

In Criminal Assets Bureau –v- Sean Hunt & Ors the Supreme Court Keane C.J. 19^th March 2003 the same submission was dealt with in the following terms –

"I am satisfied that the submission on behalf of Mr Hunt and Mrs Hunt that the proceedings were ultra vires because there was no evidence before the High Court that the assets in question represented the proceeds of crime and the Bureau were only entitled to institute proceedings in pursuance of their statutory objectives under section 4 of the 1996 Act where the assets were derived from criminal activity is not well founded. One of the functions of the Bureau under section 5(1)(b) is to ensure that the proceeds of "suspected criminal activity" are subjected to tax and there was ample evidence before the Court that the assets which were the subject matter of these proceedings were suspected by the Offices of the Bureau to be the proceeds of criminal activity i.e. the illegal importation of tobacco and fireworks into the State. I have also no doubt, assuming it was required, there was also evidence in which the Trial Judge was entitled to conclude that those suspicions were reasonably entertained by the Bureau Officers."

In this case I had the evidence of Chief Superintendent McKenna that the Defendant was suspected of involvement in criminal activity. On the basis of that evidence the Defendant's submission is not well founded. Insofar as that suspicion was based on information obtained from Gardai prior to the formation of the Criminal Assets Bureau in which circumstance section 8(5) of the Criminal Assets Bureau Act 1996 could not be relied upon the witness was entitled to give evidence of having that suspicion. It is well settled that where character is directly in issue evidence of the same may be given: see Phipson on Evidence Fourteenth Edition paragraph 18.02 and cases there cited. See also Phipson at 16.01 –

"Witnesses may speak directly as to what were their own feelings, motives, intentions, opinions, knowledge, belief, health and the like at any given time."

See cases there referred to. The evidence of the witness is admissible as to the existence of his state of mind – suspicion of criminal activity.

5. The Certificate pursuant to the Taxes Consolidation Act 1997 (Restating the Income Tax Act 1967 section 488 as amended) may not be Signed in the name of the Criminal Assets Bureau

This point was considered by Kearns J. in Criminal Assets Bureau –v- P.McS the High Court 16^th November 2001 and I accept his reasoning therein set forth and concur with his decision. It is permissible and indeed required that the certificate should be so signed.

I now deal with the several Constitutional issues raised by the Defendant.

1. Anonymity for witnesses.

The provisions for anonymity are contained in section 10 of the Criminal Assets Bureau Act 1996 and provide as follows

10.—(1) Notwithstanding any requirement made by or under any enactment or any other requirement in administrative and operational procedures, including internal procedures, all reasonable care shall be taken to ensure that the identity of a bureau officer, who is an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare or the identity of any member of the staff of the Bureau, shall not be revealed.

(2) Where a bureau officer who is an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare may, apart from this section, be required under the Revenue Acts or the Social Welfare Acts, as the case may be, for the purposes of exercising or performing his or her powers or duties under those Acts, to produce or show any written authority or warrant of appointment under those Acts or otherwise to identify himself or herself, the bureau officer shall—

( a ) not be required to produce or show any such authority or warrant of appointment or to so identify himself or herself, for the purposes of exercising or performing his or her powers or duties under those Acts, and

( b ) be accompanied by a bureau officer who is a member of the Garda Síochána and the bureau officer who is a member of the Garda Síochána shall on request by a person affected identify himself or herself as a member of the Garda Síochána, and shall state that he or she is accompanied by a bureau officer.

(3) Where, in pursuance of the functions of the Bureau, a member of the staff of the Bureau accompanies or assists a bureau officer in the exercise or performance of the bureau officer's powers or duties, the member of the staff shall be accompanied by a bureau officer who is a member of the Garda Síochána and the bureau officer who is a member of the Garda Síochána shall on request by a person affected identify himself or herself as a member of the Garda Síochána, and shall state that he or she is accompanied by a member of the staff of the Bureau.

(4) Where a bureau officer—

( a ) who is an officer of the Revenue Commissioners exercises or performs any of his or her powers or duties under the Revenue Acts or any provision of any other enactment, whether passed before or after the passing of this Act, which relates to revenue, in writing, or

( b ) who is an officer of the Minister for Social Welfare exercises or performs any of his or her powers or duties under the Social Welfare Acts in writing,

such exercise or performance of his or her powers or duties shall be done in the name of the Bureau and not in the name of the individual bureau officer involved, notwithstanding any provision to the contrary in any of those enactments.

(5) Any document relating to proceedings arising out of the exercise or performance by a bureau officer of his or her powers or duties shall not reveal the identity of any bureau officer who is an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare or of any member of the staff of the Bureau, provided that where such document is adduced in evidence, subsection (7) shall apply.

(6) In any proceedings the identity of any bureau officer who is an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare or of any member of the staff of the Bureau other than that he or she is a bureau officer or the member of such staff, shall not be revealed other than, in the case of a hearing before a court, to the judge hearing the case, or in any other case the person in charge of the hearing, provided that, where the identity of such a bureau officer or member of the staff of the Bureau is relevant to the evidence adduced in the proceedings, subsection (7) shall apply.

(7) In any proceedings where a bureau officer or a member of the staff of the Bureau may be required to give evidence, whether by affidavit or certificate, or oral evidence—

( a ) the judge, in the case of proceedings before a court, or

( b ) the person in charge of the proceedings, in any other case,

may, on the application of the Chief Bureau Officer, if satisfied that there are reasonable grounds in the public interest to do so, give such directions for the preservation of the anonymity of the bureau officer or member of the staff of the Bureau as he or she thinks fit, including directions as to—

(i) the restriction of the circulation of affidavits or certificates,

(ii) the deletion from affidavits or certificates of the name and address of any bureau officer or member of the staff of the Bureau, including the deponent and certifier, or

(iii) the giving of evidence in the hearing but not the sight of any person.

(8) In this section "member of the staff of the Bureau" means a member of the staff of the Bureau appointed under section 9.

Insofar as the Notice pursuant to the Rules of the Superior Courts Order 60 relies on the European Convention on Human Rights Counsel for the Defendant accepted that the Convention not being part of domestic law could not be relied upon. Insofar as the Constitution is concerned he relied upon Article 34 which provides as follows –

"Justice shall be administered in Courts established by law by Judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law shall be administered in public."

In addition the Defendant draws on Article 40.1 which provides as follows –

"All citizens shall, as human persons, be held equal before the law".

There is no absolute constitutional bar to the granting of anonymity to witnesses. The Constitution permits the Legislature to prescribe in special and limited cases for anonymity. In relation to the Criminal Assets Bureau Act 1996 section 10 anonymity may be afforded by the Judge in the course of proceedings before a Court on the application of the Chief Bureau Officer if satisfied that there are reasonable grounds in the public interest to do so. I heard evidence of Chief Superintendent McKenna as to why it was appropriate that anonymity should be accorded to the Officer of the Revenue Commissioners who gave evidence before me. In summary his evidence was that if anonymity was not afforded he had a concern for the safety of that Officer. The Defendant in that witness's belief is involved with persons involved in organised crime and if he became aware of the identity of the Officer he could transmit it to other persons. One of the traits of organised crime is that they utilise intimidation of witnesses. Such intimidation would hinder the gathering of evidence against persons involved in organised crime. The Defendant did not lead evidence to contest the existence of the belief. There is a public interest that crime should be investigated and criminals punished: there is a public interest in persons who derive assets from criminal activity being deprived of the benefit of the same. The Defendant could have led evidence as to the source of his assets but he declined to do so. In order for anonymity to be granted the Judge to whom the application is made must be satisfied that there are reasonable grounds in the public interest to do so. A Judge would have to balance any effect which his Order might have on the Defendant in proceedings taken pursuant to the 1996 Act in presenting his Defence. On the basis of Chief Superintendent McKenna's evidence I am satisfied that it was reasonable to grant anonymity and that there was no impediment to the Defendant presenting his Defence resulting from the anonymity and indeed no such impediment was urged upon me. I am satisfied that the provisions of the 1996 Act section 10 operate in special and limited cases within the meaning of the Constitution. There is the safeguard of the provisions of section 10(7) that the Judge must be satisfied that there were reasonable grounds in the public interest before granting anonymity. It is conceivable that in a particular case the grant of anonymity might work an injustice: however the fact that the operation of the section might work an injustice does not render the provision unconstitutional and a Defendant has the safeguard that in the event that the operation of the section worked an injustice then the operation of the section, although not the section itself, would be unconstitutional. The Court in considering the constitutionality of a statutory provision will assume that the same will be operated in a constitutional manner. No evidence was led before me that the operation of the section worked an injustice or operated unfairly in relation to this particular Defendant. I am satisfied that the provisions of the Criminal Assets Bureau Act 1996 section 10 do not infringe Article 40 of the Constitution.

The Defendant also seeks to impugn the grant of anonymity as unconstitutional having regard to Article 40.1 of the Constitution. The requirement for equality is qualified by the phrase "as human persons". Thus in Quinns Supermarket –v- Attorney General 1972 I.R. 1 Walsh J. said –

"This provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any equalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. The list does not pretend to be complete, but it is merely intended to illustrate the view that this guarantee refers to human persons of what they are in themselves …."

The award of anonymity in a case such as the present results in the Defendant being treated differently before the law: however that treatment it seems to me cannot in any way be related to the Defendant's dignity as a human person in the sense outlined in Quinns Supermarket –v- Attorney General. Accordingly I am satisfied that the provisions of the 1996 Act section 10 do not infringe Article 40.1 of the Constitution.

2. The Proceedings are in surplus to Prosecution of the Criminal Offences and a stratagem to avoid the Ordinary Process of the Criminal Law

Again Counsel for the Defendant did not seek to rely on the European Convention on Human Rights. However the Defendant relies on Article 38 of the Constitution which provides as follows –

"No person shall be tried on any criminal charge save in due course of law".

The Finance Act 1983 section 19(1) as amended rendered chargeable to tax profits or gains arising from an unlawful source or activity and the tax payable is recoverable in like manner to tax payable in respect of any other profits or gains. Clearly the activity giving rise to those profits and gains if it also constituted a criminal offence would render that taxpayer liable to prosecution under the criminal law. This consequence of engaging in criminal activity is separate and distinct from the liability to income tax and proceedings to recover income tax due are civil proceedings and independent of any criminal proceedings which the activity may attract. Proceedings to recover tax bear none of the hallmarks of a criminal trial. In Goodman International –v- Hamilton (No. 1) 1992 2 I.R. 542 Finlay C.J. said at page 588 –

"The essential ingredient of a trial of a criminal offence in our law, which is indivisible from any other ingredient, is that it is had before a court or a judge which has got the power to punish in the event of a verdict of guilty. It is of the essence of a trial on a criminal charge or a trial on a criminal offence that the proceedings are accusatorial, involving a prosecutor and an accused, and that the sole purpose and object of the verdict, be it one of acquittal or of conviction, is to form the basis for either a discharge of the accused from the jeopardy in which he stood, in the case of an acquittal or for his punishment for the crime which he has committed, in the case of a conviction."

The Defendant contends that insofar as the Plaintiff seeks to rely on any provisions of the Criminal Assets Bureau Act 1996 this converts these proceedings into criminal proceedings and that the Defendant therefore is entitled to the benefit of the Constitution Article 38 which provides that no person should be tried on any criminal charge save in due course of law. The Plaintiff did indeed rely on the Criminal Assets Bureau Act 1976 section 10 and on the powers conferred by that Act upon the Criminal Assets Bureau to take certain steps in its name. Having regard to the dicta of Finlay J. I am satisfied that such reliance cannot convert proceedings which are clearly civil into criminal proceedings. The provisions in question relate merely to the manner in which the Plaintiff in any proceedings shall be identified and in accordance with the Constitution Article 34.1 regulate the manner in which evidence may be given anonymously. The Defendant failed to satisfy me that the proceedings are in essence criminal or that by virtue of reliance on the Criminal Assets Bureau Act 1996 have de facto been converted from civil to criminal proceedings.

3. The Use of Certificates is Unconstitutional

The Defendant contends that the use of certificates pursuant to the Income Tax Act 1967 section 488 as amended is unconstitutional. The first basis for this contention is that the proceedings are criminal and that the provision accordingly infringes Article 38 of the Constitution. I have held that the proceedings are not criminal and accordingly this contention fails. It is further contended that the provision infringes the Constitution Article 40.3 –

"The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen".

I accept that this constitutional provision, as contended by the Defendant, entitles the Defendant to natural justice and in particular that audi alteram partem applies.

In the present case the certificate established prima facie evidence of the following –

The raising of the assessment.

The assessment having become final and conclusive.

The issue of a demand for payment.

The non payment of the amount in the assessment.

The computation of interest and its non payment.

Viva voce evidence was given in relation to the matters at 3, 4 and 5. Further as to the matters at 1 and 2 a central issue in the case was the Defendant's contention that the assessment was invalid, that he had validly appealed the assessment and that the assessment had not become final and conclusive and in these circumstances it is difficult to see that the Defendant was prejudiced by the giving of evidence by way of certificate. As a matter of law however I am satisfied that there is in the present case no objection to such evidence being given by certificate where that evidence is prima facie evidence only. In In Re Article 26 and the Employment Equality Bill 1996 (1997) 2 IR 321 at 379 Hamilton J. said –

"Whereas viva voce evidence is the norm in the majority of cases, proof by written statement is allowed in certain circumstances but with the consent of the accused, and, in other cases certificates may provide prima facie evidence of specific issues of a scientific or technical nature. Such limitation of viva voce evidence is reasonable in circumstances where the nature of the evidence is, for example, technical and by its form appropriate in a certificate, as such form means that, for example many technicians and officials are not required to be called to court in each case. A reasonable balance is obtained."

This passage recognises that it is permissible to shift the evidential burden from the Plaintiff to the Defendant and that is the effect of the provision which the Defendant in this case seeks to impugn. The position would of course be different if it were provided that the certificate should be conclusive evidence. In Maher v Attorney General 1973 I.R. 140 the Court considered a provision of the Road Traffic Act 1968 which provided that a certificate that a specimen of a person's blood contained a specified concentration of alcohol should be conclusive evidence on a prosecution under section 49 of the Road Traffic Act 1961. At page 146 Fitzgerald C.J. said –

"If the word 'conclusive' had not been in the paragraph, it would not be open to the objection which is now being taken. By giving the certificate this evidential quality the Oireachtas had invalidly impinged upon the exercise of the judicial power and to that regard the statutory provision is invalid having regard to the provisions of the Constitution."

On the basis of these authorities I am satisfied that there is in the present case no objection to the use of certificates in the manner envisaged by the statute. The effect of according the certificate the status of prima facie evidence is to dispense with the requirement for oral evidence on the part of the party relying on the certificate on the issue in question. However once the facts sought to be proved by the statement are controverted by probative evidence to the contrary the statement ceases to be prima facie evidence and ceases to be admissible and the fact requires to be proved by admissible evidence. See Kiely –v- Minister for Social Welfare 1977 I.R. 279.

Upon the basis of these decisions I am satisfied that the provision permitting evidence by way of certificate the same to be prima facie evidence do not infringe the Constitution.

4. Further the Taxes Consolidation Act 1997 section 933(3)(4)(5)(6) and section 1080(4) and the Criminal Assets Bureau Act 1996 section 8(5)(6)(d)(7)(8) are unconstitutional in that they deny the right to fair procedures contained in the Constitution in Article 40.3.

This issue was elaborated on in written submissions. The Defendant contends that

the right of appeal conferred by section 933 is unreasonably circumscribed by onerous conditions and by the provisions of section 933(6) whereby an assessment in default of Notice of Appeal becomes final and conclusive and that these provisions are contrary to fair procedures and infringe the separation of powers. In Deighan –v- Hearne 1990 1 I.R. 499 the Supreme Court considered a constitutional challenge to the Income Tax Act 1967 section 184(2) and section 1416(6). These sections correspond with the Taxes Consolidation Act 1997 section 954 and 933(6). The Supreme Court held that having regard to the importance of the revenue of the State within the constitutional framework, the right of the taxpayer to appeal within a certain time and the availability of judicial review in the event of arbitrary or capricious conduct, neither the power conferred on the Inspector of Taxes to make an assessment, nor the provision that it should become conclusive in default of appeal nor the power given to an Inspector to extend time for appeal nor the power given to the Collector General to certify sums in default were unduly harsh. A challenge that the carrying out by the Inspector of the functions conferred by the section was an administration of justice failed. It seems to me that the decision in this cases disposes of the Defendant's objections.

The Defendant did not rely upon the Criminal Assets Bureau Act 1996 section 8(5)(6)(7). No issue arises in relation to these provisions in these proceedings. The Plaintiff did however rely on section 8(8) which provides inter alia that an Officer of the Revenue Commissioner who is a Bureau Officer notwithstanding his or her appointment as such shall continue to be vested with and may exercise or perform the powers or duties of an Officer of the Revenue Commissioners for purposes other than purposes of the Criminal Assets Bureau Act 1996. The submission that this provision is unconstitutional refers to Meagher –v- the Attorney General (1973) I.R. 140, Re the Employment Equality Bill 1986 (1997) 2 I.R.321 and Re the Equal Status Bill (1997) 2 I.R. 387. I can find nothing in any of these cases to suggest that the exercise by an Officer of the Revenue Commissioner while an Officer of the Bureau of his powers as an Officer of the Revenue Commissioners infringes the Constitution.

In summary then on each of the submissions of the Defendant that the Criminal Assets Bureau Act 1996 is unconstitutional I hold against him.

In these circumstances it is appropriate that I should give judgment for the amount claimed. I will hear submissions from Counsel as to the form in which my Order should take in relation to interest.

Approved by Finnegan P.