THE HIGH COURT
REVENUE
[2025] IEHC 182
[Record No. 2023/388R]
IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949 AQ OF THE TAXES CONSOLIDATION ACT 1997 AS AMENDED
BETWEEN
VAL CLARKE
APPELLANT
AND
THE REVENUE COMMISSIONERS
RESPONDENT
JUDGMENT of Mr. Justice Cregan delivered on the 12th day of March 2025
Introduction
1. This is an appeal by way of a case stated from the Tax Appeals Commission ("the TAC").
2. The point of law for consideration by the High Court is stated to be as follows:
"1. Did the Commissioner err in law, having regard to the evidence adduced including both documentary and oral evidence and the facts proved or admitted before her, in concluding that the quarry business was not transferred from the appellant to CRT, with effect from 28th February 2007, such that it was the appellant who was carrying out the trade in relation to the quarry and not the company?"
Background
3. Mr. Val Clarke has been in business in the west of Ireland since the 1960s as a publican, shopkeeper, haulier, undertaker and the owner and operator of a quarry. Until February 2007, he had undertaken these activities as a sole trader and had filed income tax returns in his own name.
4. In 2006, Mr. Clarke was advised to set up a limited company for the operation of the quarry business for the purposes, apparently, of succession planning. In or about February 2007, Mr. Clarke incorporated a limited company called Coiléar Rosmuc Teoranta ("CRT" or "the company"). Mr. Clarke, and his wife, Mrs. Ann Clarke, were the founding directors and the owners of the entire issued share capital of €100, in equal shares.
5. The company was registered for corporation tax on or about 10th December 2007, with effect from 23rd February 2007. The company was registered for VAT with effect from 1st April 2007 and for Relevant Contracts Tax (RCT) with effect from 1st June 2007. The company was also registered as an employer for PRSI purposes with effect from 1st January 2009, on 19th February 2009.
6. Mr. Clarke's accountant during this time was O'Boyle and Associates in Galway. For the period 2007 to 2013, the annual accounts and the annual returns to the Companies Registration Office for CRT were prepared by Mr. Clarke's accountants. The same firm of accountants also completed Mr. Clarke's personal tax returns.
7. In May 2013, Mr. Clarke and his company were advised of a revenue audit. As a result of that audit, amended assessments to income tax for the years ending 31st December 2007, 31st December 2008 and 31st December 2009 were raised by the Revenue Commissioners.
8. The amended assessments were as follows:
1. 2007 - €168,601.
2. 2008 - €238,804.
3. 2009 - €58,843.
9. These assessments were raised on the basis that the income from the quarry was that of Mr. Clarke personally - and not that of the company, CRT, because the quarry itself (or the business operated on it) were never transferred to CRT and because most of the invoices issued in relation to the quarry business were issued by Mr. Clarke personally. These invoices were raised on the basis that it was Mr. Clarke who was trading, and not the company.
10. Mr. Clarke then appealed these amended assessments to the Tax Appeals Commission. In his notices of appeal Mr. Clarke stated that the income in question had accrued to the company and not to him personally.
11. The Revenue Commissioners were also of the view that even if the business were transferred in 2007, it was transferred at an overvalue and that this would have other tax consequences. However this issue does not arise in this appeal and therefore I will not comment on it any further. It is only of relevance to the issue of the goodwill in that it appears that Mr. Clarke transferred the goodwill in the quarry to the company stating that the goodwill was worth €650,000.
12. It appears Mr. Clarke fell ill while the appeal was pending which delayed the hearing.
13. The appeal before the Tax Appeals Commission proceeded by way of oral hearing on 14th April 2023 in the appellant's absence. The appellant's wife, Mrs. Ann Clarke, and his sister Ms. Róisín Clarke gave evidence at the hearing.
The determination of the Tax Appeals Commission
14. The Tax Appeals Commission, having heard the evidence issued its determination ("the determination") on 21st August 2023. The Commission held that Mr. Clarke had not transferred the business of the quarry to the company for reasons which are set out in its decision. It held that, as a matter of fact, the business of the quarry was not transferred from Mr. Clarke personally to the company CRT in 2007, that the trade in the relevant years was carried out by Mr. Clarke personally and that Mr. Clarke was therefore liable to income tax on that trade for those years as assessed.
The case stated
15. Mr. Clarke, being dissatisfied with this decision, asked the Tax Appeals Commission to state a case to this court. The question which the Commission stated for the High Court is set out above in this judgment.
16. The position of Mr. Clarke is that the Tax Appeals Commission erred in law or in fact in coming to the conclusion that he had not transferred the business of the quarry to the company. The Revenue Commissioners submit that the decision of the Tax Appeals Commission is correct and, that on the facts as found by the Commission, there was no transfer by Mr. Clarke of his quarry business to the company in 2007.
17. The question therefore which this court has to consider is whether or not there was a transfer by Mr. Clarke of the business of the quarry to the company CRT in or around 2007.
Principles of law applicable to such cases stated
18. The jurisdiction of the High Court in an appeal by way of case stated was set out by the Supreme Court in Mara (Inspector of Taxes) v. Hummingbird Limited [1982] ILRM 421. Mr. Justice Kenny (at page 426 of the report) set out the basis upon which a Court should approach a Case Stated as follows: –
"A Case Stated consists in part of findings on questions of primary fact, e.g. with what intention did the taxpayers purchase the Baggot Street premises. These findings on primary facts should not be set aside by the Courts unless there was no evidence whatever to support them. The Commissioner then goes on in the Case Stated to give his conclusions or inferences from these primary facts. These are mixed questions of fact and law and the Court should approach these in a different way. If they are based on the interpretation of documents, the Court should reverse them if they are incorrect for it is in as good a position to determine the meaning of documents as is the Commissioner. If the conclusions from the primary facts are ones which no reasonable Commissioner could draw, the Court should set aside his findings on the ground that he must be assumed to have misdirected himself as to the law or made a mistake in reasoning. Finally, if his conclusions show that he has adopted a wrong view of the law, they should be set aside. If however they are not based on a mistaken view of the law or a wrong interpretation of documents, they should not be aside unless the inferences which he made from the primary facts were ones that no reasonable Commissioner could draw."
19. In Ó Culacháin (Inspector of Taxes) v. McMullan Brothers Ltd. [1995] 2 IR 217 the Supreme Court applied the decision of Mara v. Hummingbird and Blayney J. stated:
"1. Findings of primary fact by the judge should not be disturbed unless there is no evidence to support them.
2. Inferences from primary facts are mixed questions of fact and law.
3. If the judge's conclusions show that he has adopted a wrong view of the law, they should be set aside.
4. If his conclusions are not based on a mistaken view of the law, they should not be set aside unless the inferences which he drew were ones which no reasonable judge could draw.
5. Some evidence will point to one conclusion, other evidence to the opposite: these are essentially matters of degree and the judge's conclusion should not be disturbed (even if the Court does not agree with them, for we are not retrying the case) unless they are such that a reasonable judge could not have arrived at them or they are based on a mistaken view of the law."
20. This was quoted with approval by Fennelly J. in the Supreme Court decision of MacCarthaigh (Inspector of Taxes) v. Cablelink Ltd. [2003] IESC 67.
21. It is clear therefore that these are the relevant principles applicable to appeals by way of cases stated. An appeal by way of case stated is not a re-hearing of the tax appeal, but an enquiry into whether the appeal commissioner, found facts with no evidence to support them, drew inferences or conclusions from the facts that no reasonable appeal commissioner could draw or took a wrong view of the law.
22. It is also clear that as a matter of law, the burden of proof at a tax appeals is on a taxpayer; see Menolly Homes Ltd. v. Appeal Commissioners and Revenue Commissioners [2010] IEHC 49 and O'Sullivan v. Revenue Commissioners [2021] IEHC 118.
Decision of Tax Appeals Commission
23. In considering the question of law stated for the High Court, it is necessary to consider the determination of the Tax Appeals Commission dated 21st August 2023. This decision runs to some 29 pages. In the course of its decision, the Tax Appeals Commission set out the background to the case, the legislation and guidelines, the appellant's evidence, the appellant's submissions and the respondent's submissions. Having considered these matters the Commission (at page 17 of its determination) set out at paragraph 22 (and following) the "material facts as found by her" and the analysis of the issues. It then goes on to consider the jurisdiction of the Tax Appeals Commission, the substantive issue in this matter and her conclusion.
24. It is of some importance in this appeal to set out the material facts as found by the Commissioner.
Material facts
25. At paragraph 22 of her Determination, the Appeals Commissioner sets out her material findings of fact, which include the following:
"22.1. Since the 1960s, the Appellant has been in business as a publican, shopkeeper, haulier, undertaker and owner and operator of a quarry, chiefly supplying aggregates to Galway CoCo.
22.2. In February 2007, a limited company, was incorporated.
22.3. The Appellant and his spouse were the founding company directors and owners of the entire issued share capital of €100.00, in equal shares of the company.
22.4. The sole purpose of the incorporation of the company in February 2007, was to take on the quarry business.
22.5. The Appellant continued as a sole trader as respects his shop, pub and undertaking business.
22.6. During 2014, quarry operations ceased, arising from an environmental law dispute involving another quarry and Galway CoCo.
22.7. On 10 December 2007, the company was registered for corporation tax, with effect from 23 February 2007, for VAT with effect from 1 April 2007 and for RCT with effect from 1 June 2007. On 19 February 2009, the company was registered as an employer for PRSI purposes with effect from 1 January 2009.
22.8. During the relevant years, the appellant had the advice of the appellant's accountant and the appellant's book-keeper in relation to both his personal and company accounts
22.9. The Appellant has instigated proceedings against the Appellant's accountant in relation to the advices received around the incorporation of the quarry business.
22.10. The business at issue was quarrying, which encompasses entering the land, extracting the stone, processing stone, selling stone and the means of doing so such as, the land itself, the quarry, the stone, the machinery and the transport.
22.11. The quarry licence remained at all times in the name of the Appellant, who was the licensed operator of the quarry.
22.12. In or around 2007, the Appellant was advised by Galway CoCo that it could only accept invoices from him personally.
22.13. The assessments were raised on the basis that the income or profit from the quarry was that of the Appellant and not of the company.
22.14. It is uncontested that ownership of the quarry itself remained vested in the Appellant personally.
22.15. It is uncontested that ownership of the relevant machinery remained vested in the Appellant himself.
22.16. It is uncontested that all trucks doing quarry business were the Appellant's own personal property, leased to him personally and were financed with the Appellant's own personal loans.
22.17. There exists no documentary evidence of a transfer of the quarry business such as a deed or certificate of transfer of ownership.
22.18. There exists no grant of a lease or licence over the quarry lands by the Appellant to the company.
22.19. The Appellant personally traded with the quarry's principal customer, Galway CoCo. The Appellant issued invoices personally to Galway CoCo quoting his own personal VAT number and received payments personally from Galway CoCo, as opposed to the company.
22.20. Approximately 20% of the quarry business was accounted for by local firms, with the remaining 80% being attributed to Galway CoCo.
22.21. When proceedings were brought by the local authority in relation to the operation of the quarry, the Defendant in those proceedings was the Appellant, not the company.
22.22. On 15 June 2018, the Appellant paid an amount of €59,052 to the Respondent.
25.23. The evidence does not establish that the Appellant was acting in the capacity of an undisclosed agent for the quarrying business, in relation to the company."
26. It is clear, looking at the findings of material fact made by the Commission, that almost all of these are findings of material fact which were agreed to by Mr. Clarke, save for one or two exceptions. It is also clear that there was sufficient evidence to allow the TAC to make these findings of material fact.
27. There appears to be a dispute about the material fact at paragraph 22.17 which states that "There exists no documentary evidence of the transfer of the quarry business such as a deed or certificate of transfer of ownership."
28. There also appears to be a disagreement about a second material fact at paragraph 22.23 which states that
"The evidence does not establish that the appellant was acting in the capacity of undisclosed agent for the quarry business in relation to the company."
29. It is now necessary to consider, in the light of the above, the central issue in this appeal i.e. whether there was a transfer of the business from Mr. Clarke to the company.
Was there a transfer of the business from Mr. Clarke to the company?
(i) The 'EGM resolution' argument.
30. Counsel for Mr. Clarke submitted that there were three separate documents which indicated that there had been a transfer by Mr. Clarke of his quarry business to the company. These three documents were:
1. A notice of the EGM dated 28th February 2007.
2. The wording of an ordinary resolution passed by the EGM.
3. The minutes of the EGM showing that a resolution had been passed.
31. I will deal with each of these in turn.
(1.) The notice of the EGM
32. On 28th February 2007, the company gave notice that an EGM of the company would be held at Rosmuc, County Galway on 28th February 2007 at 10am for the purpose of considering, and if thought fit, passing the following ordinary resolutions. The wording of the resolution was then set out therein.
33. However counsel for the appellant accepted that this notice of the EGM on its own did not provide any proof of the transfer of the business by Mr. Clarke to the company.
(2.) The wording of the ordinary resolutions
34. The wording of the ordinary resolutions put to the EGM were as follows:
"That in accordance with the provisions of Part III of the Companies Act, 1990 the proposed transaction between the company and the business known as Clarkes Quarry be and is hereby approved".
And also
"That the company acquire the goodwill of the business known as Clarkes Quarry or any part or parts thereof as the Board may determine in consideration of such sum, if any, and subject to such terms and conditions as the Board may think fit.
By order of the Board
Director
Dated this 28th February, 2007".
35. Again however, counsel for the appellant accepted that the wording of this ordinary resolution put to the EGM would, on its own, not provide any evidence of a transfer of the business.
(3.) The minutes of the EGM
36. Counsel for the appellant placed some reliance on the third item, the minutes of the EGM of 28th February 2007. These stated as follows:
"Minutes of an extraordinary meeting
Held at Rosmuc, County Galway
On 28th February 2007
Present at the meeting
Valentine Clarke (Chair)
Ann Clarke
Philip Clancy
ACQUISITION OF THE BUSINESS KNOWN AS CLARKES QUARRY
The chairman referred to the ordinary resolution passed at the Extraordinary General Meeting held earlier today authorising the company to acquire the goodwill of the business known as Clarkes Quarry or any part or parts thereof, as the Board may determine, in consideration of such sum, if any, and subject to such terms and conditions as the Board may think fit and it was resolved that in consideration of the following:
1. The transfer of the company of the business known as Clarkes Quarry valued as follows:
Goodwill - €650,000
2. The company will collect the debtors and discharge the creditors of the business and the balance is to be charged to the accounts as a loan repayable to the owners of Clarkes Quarry.
This concludes the business of the meeting.
Val Clarke signature
Chairman
Dated 28th February 2007."
37. Counsel for the appellant submitted that these minutes showed that the EGM adopted the resolution before it and that it authorised the company to acquire the goodwill of the business known as Clarkes Quarry. He said this is therefore written documentary proof of the transfer of the business from Mr. Clarke to the company.
38. However I do not agree with this submission for a number of reasons. First, the resolution and the minutes simply show that the company was authorised to acquire the goodwill of the business known as Clarkes Quarry; however it does not evidence any actual transfer of the quarry or its business or goodwill to the company. In other words, it is evidence that the company agreed that it would purchase the business of the quarry but there is no evidence that Mr. Clarke transferred the business or the goodwill of the quarry to the company. In other words there is evidence that the transferee (i.e. the company) was willing to take over the business, but there is no evidence that the transferor (i.e. Mr. Clarke) actually transferred the business to the company.
39. Secondly, this resolution should be interpreted as just an enabling resolution - which would be followed by an actual deed of sale (and/or purchase) and other transfer documents. Thus the resolution itself, in its own express terms, states that the company was authorised to acquire the goodwill of the business "or any part or parts thereof, as the Board may determine in consideration of such sum if any, and subject to such terms and conditions, as the Board may think fit". It was therefore a conditional approval by the shareholders authorising the Board of the company to acquire the company - on such terms and conditions as the Board might think fit. There is however no sale or purchase agreement (or transfer agreement) which shows that the Board took any further steps to sign a sale or purchase agreement.
40. I am satisfied therefore that these three documents (either on their own or collectively) are not evidence for what the appellant contends them to be i.e. they do not constitute (either individually or collectively) evidence of a transfer of the business of the quarry from Mr. Clarke to the company.
41. In my view, the above documentation on its own falls well short of what would be required to establish to anyone's satisfaction that the quarry had in fact been transferred by Mr. Clarke to the company.
(ii) The appellant's income tax returns argument.
42. Another submission made by counsel for the appellant was that Mr. Clarke's income tax returns for the years 2007, 2008, 2009 and 2010 only refer to his income as a grocer, haulier and undertaker and do not refer to any income which he received from the quarry.
43. However, in my view, this argument is circular and begs the question at issue in these proceedings. It is clear that the appellant did not return his quarry income for those years in his personal tax returns. The position of the Revenue Commissioners is that he should have done so because he had not transferred the quarry business to the company. In those circumstances, relying on his personal income tax returns is not evidence that he transferred the quarry business to the company.
(iii) The Company's Accounts argument.
44. The appellant's third argument is that when one looks at the company's abridged accounts for the years ended 31st March 2007, 31st March 2008, 31st March 2009 and 31st March 2010 one sees figures for debtors in the sum of €194,000 (approximately), €459,000 (approximately), €536,000 (approximately), and €619,000 (approximately) for each of these years respectively. Counsel for the appellant submitted that these figures, as well as other figures such as corporation tax returns, VAT returns, PAYE liabilities, etc, all show a company which was trading in the quarry business.
45. There are a number of difficulties with this argument. First, it is clear from the evidence that 80% of the stone extracted from the quarry was sold to Galway County Council. It is also clear that Galway County Council insisted that all invoices had to be sent to them in the name of Mr. Clarke because the licence was in his name. It is clear therefore that Mr. Clarke in selling the stone from the quarry to Galway County Council based on these invoices and his VAT number, was personally trading with Galway County Council. He was personally selling the stone extracted from the quarry to Galway County Council, in his own name; he also received VAT in respect of these sales and he remitted the VAT to the Revenue Commissioners through his own personal VAT returns in the normal way. These matters are all indicative of the fact that Mr. Clarke was continuing to trade personally with Galway County Council and are evidence that there was no valid transfer of the quarry business from Mr. Clarke to the company.
46. Moreover the evidence before the TAC is that Mr. Clarke received monies from Galway County Council in respect of these purchases, that he lodged these cheques to his own personal account and, then, subsequently over a period of time made some payments from his own personal account to the company account. However the Commission found (at para. 51 of its determination)
"that the evidence does not establish the transfer of the business to the company nor does the evidence establish that payments made to the appellant by the main customer of the quarry were transferred to the company."
47. I am of the view that whilst the company's abridged statutory accounts show that it had debtors and creditors (including corporation tax, VAT and PAYE) and that these accounts show that the company was trading in respect of the quarry, they do not show that Mr. Clarke had in fact actually transferred the quarry business to the company. In other words this argument - using the statutory accounts as proof of transfer - is also a circular argument. Certainly it shows that the company might have thought the quarry business had been transferred to it but it is not evidence that Mr. Clarke had in fact transferred the quarry business to the company.
48. The fact that the company received money from contractors in respect of 20% of its business and paid some bills in respect of the quarry is certainly evidence that the directors of the company might have thought that the company was trading in respect of the quarry business but, in the absence of a proper transfer, that was a misconception on the part of the directors and the company.
49. Likewise, the fact that there was activity in the company's account under creditors, and movements in its profit and loss account and payment of VAT and Corporation Tax are certainly evidence that the directors of the company might have thought that the company was trading in respect of the quarry business but, in the absence of a proper transfer, that was a misconception on the part of the directors and the company
(iv) No conveyance or transfer of land or quarry.
50. There are also other problems with the evidence from the appellant's point of view. First, it is clear that there was no conveyance by Mr. Clarke of the land on which the quarry was situated to the company. This is accepted by the appellant. It is also uncontested that the ownership of the quarry itself, both legal and beneficial remains vested in Mr. Clarke personally. There is therefore no documentary evidence of a transfer or a conveyance of the quarry from Mr. Clarke to the company.
51. Secondly, even if, as counsel for the appellant submitted, that what was in fact transferred could be characterised as "a licence" to go onto the quarry lands, to excavate stone from the quarry and to sell that stone for a profit, there is no document which shows that Mr. Clarke entered into such a licence agreement with the company to allow it to do that.
(v) Licence in name of Mr. Clarke.
52. It is also clear that the licence for the quarry was at all times in the name of Val Clarke personally. It is also clear that Galway County Council issued proceedings in 2014 against Mr. Clarke personally to close down the quarry for environmental reasons. It would therefore be necessary to establish by some form of documentary or other evidence that Mr. Clarke either transferred the licence to CRT or granted CRT some form of licence to come onto the lands and to extract the stone from the quarry. There is no such evidence.
(vi) Mr. Clarke continued to trade in his own name.
53. Fourthly, Mr. Clarke's main customer for the stone extracted from the quarry was Galway County Council. At all material times up to 2007, Mr. Clarke supplied this stone to Galway County Council in his own name. However it is clear even after 2007 (i.e. after the date of the alleged transfer of the quarry to the company) Galway County Council refused to accept invoices from the company and insisted that all invoices in respect of the stone be invoiced by Mr. Clarke personally. It is the case therefore (and it was accepted by counsel for the appellant) that all of the invoices in respect of stone extracted from the quarry, and sold to Galway County Council, from 2007 until 2014, were all invoices submitted by Mr. Clarke, using invoices in his own name to Galway County Council. As Galway County Council was the main purchaser of the stone from the quarry and accounted for 80% of the quarry sales, it is clear that Mr. Clarke personally was the person who was selling the stone from the quarry and he was the person was trading with Galway County Council.
54. Mr. Clarke, when issuing invoices to Galway County Council correctly added VAT to the invoice. However he used his own personal VAT number and not the VAT number of the company. Again this is indicative of the fact that it was Mr. Clarke personally who was trading with Galway County Council and not the company, CRT.
(vii) No evidence of payment by the company for the quarry.
55. Moreover although it appears to be the appellant's case that he transferred the quarry business to the company for a consideration of €650,000, this sum of €650,000 does not appear anywhere in the accounts of the company. In other words, there is no evidence that a sum of €650,000 (or any sum) was paid by the company to Mr. Clarke to acquire the quarry and there is no evidence that Mr. Clarke received the sum of €650,000 (or any sum) from the company for the asset. There is no evidence that the company, which was incorporated in 2007 and which was a shelf company, had acquired funds of €650,000 whether by investment or otherwise in order to acquire this asset.
56. Moreover, the sum of €650,000 does not appear anywhere in the company accounts as a debt due and owing to Mr. Clarke for the purchase of the company. Again these are all matters which indicate that there has been no valid transfer of the business by Mr. Clarke to the company.
(viii) Company's use of contractors.
57. It appears that the company operated primarily using self-employed contractors who provided blasting, loading, hauling, crushing and screening services to the company. It also appears that all the contractors were paid from the company's bank account. It also appears to be the case that approximately 20% of the company's business turnover was accounted for by local construction firms with 80% being accounted for by Galway County Council. It also appears to be the case that invoices in respect of non-Galway County Council sales were issued by the company and payments received were lodged to the company bank account. That is all consistent with the company carrying on a quarry business. However it is not evidence that Mr. Clarke had validly transferred the quarry business to the company. Indeed the fact that the licence was in his own name and the fact that Galway County Council insisted that the only person who could carry out the business of quarrying was Mr. Clarke and who insisted that all invoices be issued by Mr. Clarke personally, are all indicative of the fact that Mr. Clarke did not transfer the business to the company.
58. Indeed it appears as if Mr. Clarke was trying to ride two horses simultaneously. On the one hand, he was continuing to trade the quarry business in his own name and selling stone to Galway County Council, issuing invoices in his own name and using his own VAT number. On the other hand, Mr. Clarke was purporting to transfer the business of the quarry to the company for some purported retirement tax plans and to use the company for sales to other construction firms representing 20% of the business. However it is clear that Mr. Clarke did not complete a proper valid transfer of the business from himself to the company.
(ix) The plant and machinery argument.
59. It is also clear that all of the plant and machinery used in connection with the quarry were in Mr. Clarke's personal name and all of the leasing agreements with the bank were leasing agreements with Mr. Clarke personally. Mr. Clarke submitted that the accounting value of these plant and machinery was negligible as they had all been written down over time because of depreciation. That however is not really the point. The fact is that no plant and machinery which were owned by Mr. Clarke and which were used in the quarrying business were ever transferred to the company. Instead Mr. Clarke continued to use this plant and machinery for the extraction of stone from the quarry which was sold to Galway County Council using invoices in his own personal name and using his own personal VAT number. This again is indicative of the fact that Mr. Clarke did not transfer the quarry business to the company.
(x) The undisclosed agent argument.
60. Counsel on behalf of the appellant submitted in his written legal submissions, and oral submissions before the court, that Mr. Clarke was acting in the capacity of an undisclosed agent for the quarrying business in relation to the company.
61. However it is clear that there is no evidence either before the TAC or before this court that Mr. Clarke was ever appointed as an agent of the company by the company and therefore any argument that he was an undisclosed agent of the company is, in my view, without substance.
(xi) Other arguments.
62. The appellant submitted that the TAC had "erred in law" in holding that there was no transfer of the company.
63. However, in my view, this submission is misconceived. The issue of whether there was a transfer of the quarry business from the appellant to the company is a question of fact, not a question of law. In the alternative, it is a matter of inference drawn from the material facts. It is not, per se, on the facts of this case, a question of law.
64. I am satisfied that the TAC had sufficient evidence to arrive at these findings of material fact. I am also of the view that any inferences, which the TAC drew, from these facts, to arrive at a conclusion that there was no transfer, are reasonable and justifiable.
65. The appellant further submitted that no curial deference should be given by the Court on issues of law. As was stated by Murray J. in Stanberry Investments v. Commissioner of Valuation [2020] IECA 33 at para. 49: "Administrative tribunals, expert or otherwise, obtain no deference on pure issues of law."
66. That is, of course, true. However, as stated above, I am of the view that the issue of whether there was a transfer of the business is a question of fact or inferences from the facts. It is not, on the issues which arise in this case, an issue of law. As such, this Court would, under the principles of law set out above, not set them aside unless there is no evidence whatsoever to support them. Likewise, insofar as there are inferences drawn, I am of the view that the inferences drawn are reasonable and are not inferences "which no reasonable commissioner would draw" as per Kenny J. in Hummingbird.
Burden of Proof
67. The appellant submitted, in the light of the documentary and other evidence, that the burden of proof shifted to the respondent to demonstrate that the transfer did not take place. I do not accept the submission. In my view, the evidence establishes that no transfer took place and therefore the burden of proof remains with the appellant.
68. It was also submitted by the appellant that the TAC failed to have regard to the principles of fairness and reasonableness in accordance with the Finance (Tax Appeals) Act 2015, the Constitution, the EU Charter of Fundamental Rights and the European Convention on Human Rights. Again, I disagree. I do not see any unfairness or unreasonableness in the TAC's approach, findings of fact, inferences, or conclusions.
Conclusion
I would therefore conclude as follows:
(i) there was sufficient evidence before the TAC to justify the findings of material facts and these should not be set aside by this Court;
(ii) any inferences which the TAC drew from the findings of material facts were reasonable;
(iii) the TAC did not make any error of law in its assessment of this matter;
(iv) I am satisfied that the TAC's finding - that the business was not transferred by Mr. Clarke to the company - was correct in fact and in law;
(v) in the circumstances the answer to the case stated is that the Commissioner did not err in law in concluding that the quarry business was not transferred from the applicant to Coiléar Rosmuc Teoranta with effect from 28 February 2007.
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