Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

M^cGuinness J.

Hardiman J.

204/03

BETWEEN

TERENCE KEOGH

APPLICANT

AND CRIMINAL ASSETS BUREAU, REVENUE COMMISSIONERS AND THE COLLECTOR GENERAL

RESPONDENTS

JUDGMENT delivered the 17^th day of May 2004, by Keane C.J. [Nem Diss]

This is an appeal from a judgment and order of the High Court (M^cKechnie J.) in which he refused to grant the applicant by way of judicial review orders of certiorari quashing certain assessments to income tax of the applicant and declarations that the assessments served on the applicant had not become final and conclusive and that the time for bringing an appeal against them had not commenced.

The factual background is as follows. The applicant was at the date the proceedings began thirty eight years of age and had worked as a sub-contractor carrying out bricklaying and general building work for a number of years. On the 13^th March, 1996 members of the Garda Síochána in the course of a search of his residence seized sums of IR£21,510.00 and £490.00. Detective Sergeant Philip Ryan, an officer of the first named respondent, said in an affidavit that a small piece of cannabis resin had also been found in the premises and that traces of brown material and powder adhering to or falling from the notes were found on analysis to be cannabis resin or cocaine.

The applicant having made an application under the Police Property Act, 1897, for the return to him of the sums of money, an application was made by Chief Superintendent Michael F. Murphy under the Proceeds of Crime Act, 1996, in respect of them. Those proceedings were struck out by consent, one of the terms being that the sums should be paid over forthwith to the first named respondents as sums on account in respect of a partial discharge of preliminary tax by the applicant for the years ending 5^th April, 1994, 5^th April, 1995, 5^th April, 1996 and 5^th April, 1997.

On the 23^rd February, 1998, the first named respondents wrote to the applicant informing him that, under Part 41 of the Taxes Consolidation Act, 1997 (hereafter "the 1997 Act"), they would henceforth act as his Inspector of Taxes. On the same day, notices of assessment of income tax were issued by the first named respondents in respect of the applicant for the years ending 5^th April, 1994, 5^th April, 1995, 5^th April, 1996 and 5^th April, 1997. For each year, he was assessed for income tax in respect of what was described as "miscellaneous income" in the sum of IR£100,000.00.

On each of the notices of assessment, the following notice appeared:

"APPEALS

You have certain rights of appeal under the Tax Acts against the assessment or any item in it.

In most circumstances, unless you enter a valid notice of appeal and pay the appropriate tax within 30 days of the date of this notice, the assessment becomes final and conclusive.

If you do wish to appeal, you are strongly advised to seek professional guidance."

On the 20^th March, 1998, the applicant wrote to the first named respondents as follows:

"I wish to appeal the above assessments raised against me, which were issued by your bureau. The grounds for appealing are that they are overestimated and without fact.

I will have the returns for the years in question in your offices within 21 days."

The first named respondent replied to the letter as follows on the 26^th March:

"I am grateful for your letter of the 20^th March, 1998 received here on the 23^rd March, 1998.

That letter purports to be a notice of appeal pursuant to the Tax Acts. Please note that pursuant to s. 933 of the Taxes Consolidation Act, 1997, I am of the opinion that you are not entitled to make such an appeal as you have not complied with the requirements as set out in s. 957(2)(a)(II) of the Taxes Consolidation Act, 1997.

It is a matter for you to comply with the statutory provisions which arise out of the assessment made on you. Without prejudice to the foregoing, it is a prerequisite of any appeal that you deliver to me a return for the relevant year in the prescribed form and also that you pay the amount of tax as defined in s. 957(2)(a)(II) of the Taxes Consolidation Act, 1997. I would also respectfully draw your attention to provisions of s. 957(2)(b) of the Taxes Consolidation Act, 1997.

Kingly note that in default of compliance by you with the statutory obligations applicable to you within the relevant statutory time limits, the assessments will become final and conclusive."

The first named respondents wrote again to the applicant on the 2^nd April, 1998, acknowledging tax returns dated the 19^th March, 1998 which they said they had received on the 1^st April, 1998. The applicant was informed that these had been received too late to enable the appeal to be accepted and that, in addition, there had been no payment of the tax and interest due.

On the 28^th April, 1998 the first named respondent sent to the applicant demands dated the 28^th April, 1998 for the immediate payment of tax and interest stated to become due and payable in the sum of IR£84,007.53 for the year 1993/4, IR£75,555.55 for the year 1994/5, IR£67,337.18 for the year 1995/6 and IR£59,130.30 for the year 1996/7.

On the 30^th April, 1998, solicitors on behalf of the applicant wrote to the first named respondent stating that they had just received instructions in the matter and that, according to the returns submitted by their client, his liability to the Revenue was in the region of IR£32,000.00. They confirmed a suggestion they had made to the first named respondent that the matter should be regarded as finalised by the payment by their client of the balance admitted by him to be owing to the Revenue after giving credit for the sum of IR£22,089.93 seized by the Gardaí and a further sum of IR£5,671.14 already paid by him. Following a meeting with an officer of the first named respondent on the 19^th May, the applicant's solicitors wrote again to the first named respondent on the 30^th May offering to pay the sum of IR£9,000.00 "in settlement of our client's tax affairs". On the 5^th June, the first named respondent rejected that offer, stating that the applicant was unable to produce books and records or details of how the figure offered was arrived at. Further correspondence of a desultory nature ensued over a lengthy period, but the first named respondents maintained their refusal to accept this offer and declined to abandon their threat to institute the necessary enforcement procedures to recover the tax which they claimed was owing.

Ultimately, on the 27^th November, 2000, the applicant applied to the High Court for leave to institute these proceedings by way of judicial review, which was granted. A statement of opposition having been filed, the High Court having given leave to the applicant to amend the grounds on which the original leave had been granted and an amended statement of opposition having been delivered, the matter came on for hearing before M^cKechnie J. who, as already noted, dismissed the applicant's claim.

The proceedings in the High Court

The applicant relied on two grounds in the High Court in support of his claim.

The first ground related to the statutory provisions relevant to appeals from assessments to income tax. The argument on behalf of the applicant was that the assessments had never become final and conclusive so as to entitle the Revenue to enforce payment of the sums allegedly due, because time only began to run against an applicant in relation to the bringing of an appeal from the time when he delivered his return accompanied by payment of the appropriate tax. Since the applicant had never delivered a return accompanied by the payment of tax, it followed that the limitation period for bringing an appeal had not expired. It was submitted on behalf of the first named respondent that the applicant had served a purported notice of appeal without delivering returns and paying the appropriate tax which was determined by the first named respondent in these circumstances to be an invalid notice of appeal and that no further notice had been served by the applicant of an appeal to the Appeal Commissioners from that determination of the Inspector with the result that the assessments became final and conclusive.

The second ground related to a document issued by the second named respondents and described as a "Taxpayers' Charter of Rights". The text of the document is fully set out in the judgment under appeal, but, for the purposes of this judgment, it is sufficient to refer to part of it only, viz:

"In your dealings with the Revenue Commissioners, you are entitled to …

INFORMATION

To expect that every reasonable effort will be made to give you access to full, accurate and timely information about revenue law and your entitlements and obligations under it. So that they can do this, revenue staff are entitled to expect that you will give them all the facts and the full co-operation which they need to deal with your affairs."

While it was conceded on behalf of the applicant that he was unaware of this document at the relevant time, it was submitted that its adoption by the second named respondents indicated an acceptance by them of specific requirements as to fairness in their dealing with taxpayers which created a legitimate expectation that they would be met in the case of the applicant. It was submitted that the failure by the first named respondents, acting in their capacity as an Inspector of Taxes on behalf of the second named respondents, to inform the applicant as to his alleged obligation to deliver returns and pay the appropriate tax and the time limit for bringing an appeal from their refusal to treat his notice of appeal as valid constituted a breach of the practice adopted under the Charter. It was claimed on behalf of the respondents that any alleged failure to carry into effect the provisions of the Charter could not have the effect of altering the statutory regime established by the Oireachtas for the assessment and collection of taxes.

In relation to the first ground of challenge, the relevant provisions of the legislation should be set out.

Section 922 of the 1997 Act provides inter alia as follows:

"(2) Where the inspector does not receive a statement from a person liable to be charged to income tax, the inspector shall to the best of his or her information and judgment, but subject to section 997, make an assessment on that person of the amount at which that person ought to be charged under Schedule E.

(3) Where –

(a) a person makes default in the delivery of a statement in respect of any income tax under Schedule D or F, or

(b) the inspector is not satisfied with a statement which has been delivered, or has received any information as to its insufficiency,

the inspector shall make an assessment on the person concerned in such sum as according to the best of the inspector's judgment ought to be charged on that person."

Section 933 of the 1997 Act provides inter alia as follows:

"(1)(a) A person aggrieved by any 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.

(d) On receipt of an application under paragraph (c), the Appeal Commissioners shall request the inspector or other officer to furnish them with a copy of the notice issued to the person under paragraph (b) and, on receipt of the copy of the notice, they shall as soon as possible -

(i) refuse the application for an appeal by giving notice in writing to the applicant specifying the grounds for their refusal,

(ii) allow the application for an appeal and give notice in writing accordingly to both the applicant and the inspector or other officer, or

(iii) notify in writing both the applicant and the inspector or other officer that they have decided to arrange a hearing at such time and place specified in the notice to enable them determine whether or not to allow the application for an appeal …"

"(6)(a) In default of notice of appeal by a person to whom notice of assessment has been given, the assessment made on that person shall be final and conclusive …"

"(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 …"

Section 957(2)(a) of the 1997 Act – which appears in Part 41 under the heading "Self Assessment" – provides that

"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."

In that part of his judgment dealing with the first ground, the learned trial judge rejected the submission on behalf of the applicant that, where the return had not been delivered and the tax paid in accordance with s. 957(2)(a), the time for bringing an appeal did not commence and that, accordingly, there was no default in the service of a notice of appeal so as to result in the assessment being final and conclusive. He said that, in his view, while the latter part of s. 957(2)(a) lacked clarity, the provisions of that sub-section could be read "in full harmony" with s. 933. The trial judge said that he was of the view that to construe them as enabling the person on whom the liability to pay tax clearly rested to create a situation in which no time limit existed for the bringing of an appeal would result in an absurdity which could not have been intended by the legislature.

As to the second ground, the trial judge said that he was of the view that, if the applicant's submissions were well-founded, the Charter would in effect have amended the law by imposing a legal requirement on the Revenue to give the information in question, since it would make the provision of such information a pre-condition to the operation of the statutory process of assessment and collection of taxes. The trial judge added that, while he was satisfied that for the Revenue to have given the information in question in the notice of assessment and the letter of 26^th March, 1998 would not have been burdensome, their failure to do so could not have the result contended for when the procedures under consideration were required by statute: the situation might have been otherwise if the court was concerned with the exercise of an administrative discretion.

Submissions of the parties

(a) The first ground

On behalf of the applicant, Dr. Michael Forde S.C. submitted that, once the notice of appeal was served on the 20^th March, 1998, i.e. within the prescribed period of 30 days, the appeal remained in being unless and until it was determined by the Appeal Commissioners or, in a case such as the present, the Appeal Commissioners dismissed the appeal under s. 933(6)(c) because the returns had not been made.

Dr. Forde further submitted that, if the respondents were correct in claiming that no valid notice of appeal had been served, then, having regard to the express language of s. 957(2)(a), the time for bringing the appeal did not commence under the delivery of the returns and the payment of the tax. Accordingly, the time for bringing an appeal in the present case never began to run against the applicant and the assessments never became final and conclusive. He relied in support of this submission on the decision of the High Court in Criminal Assets Bureau –v- Patrick A. M^cSweeney, (unreported; the High Court; Kearns J.; judgment delivered 16^th November, 2001.)

Dr. Forde further submitted that the argument that this rendered the provisions of s. 957(2)(a) superfluous disregarded the fact that there were other sanctions open to the relevant authorities. He referred in support of that submission to the provisions of the 1997 Act providing for interest charges on overdue payments and late returns (ss. 1082 and 1084), the publishing of a person's name as a tax defaulter (s. 1086), the liability of a person in default to be prosecuted on indictment (s. 1078(2)(g)) and the power vested in the Minister for Finance by s. 998 to recover whatever tax is actually due.

On behalf of the respondents, Mr. Brian Murray S.C. submitted that the applicant's first argument wholly disregarded the provisions of s. 933(1)(b) which entitled the inspector to determine that the person who served such a notice was not entitled to appeal, and the fact that the first named respondent had made such a determination in the present case and that the applicant had not exercised his right of appeal from that determination under s. 933(1)(c). In such circumstances, no valid notice of appeal having been served, the assessments became final and conclusive at the expiration of the 30 day period.

As to the second argument relied on by the applicant, Mr. Murray submitted that the critical words in s. 957(2)(a) were that, where the returns have not been delivered and the tax paid, "no appeal shall lie" against the assessment. It followed that the legislature, in providing that the time for bringing an appeal was to be treated as commencing on the date when the returns had been delivered and the tax paid, clearly intended that the 30 day limitation period provided for by s. 933(1) should remain applicable, but that the person concerned would have to serve the notice of appeal within whatever was left of the 30 day period following the delivery of the returns and the payment of the tax. The entitlement of the applicant to appeal was conferred by s. 933(1)(a) and the only relevant effect of s. 957(2) in the present case was to add additional requirements for the bringing of a valid appeal in the case of a person subject to the self assessment provisions, i.e. the delivery of the return and the payment of the tax. He submitted that that view of the section was supported by observations of Murray J. in the decision of this court in Criminal Assets Bureau –v- M^cDonnell (unreported, judgments delivered 20^th December, 2000).

(b) The second ground

Dr. Forde submitted that by publishing what was described as the "Taxpayers' Charter of Rights", the Revenue must have intended that individuals would be afforded the protections it envisaged and that, accordingly, the Charter created a legal regime which the respondents were bound to observe and which could properly be described as creating a "legitimate expectation" that any discretion vested in the executive would be exercised reasonably. He submitted that the trial judge was in error in concluding that to hold that the Charter imposed an obligation on the Revenue to furnish the relevant information would be equivalent to a finding that the Charter had amended the law. He urged that there was nothing in the legislation to prevent this information being conveyed by the Inspector to the taxpayer.

On behalf of the respondents, Mr. Murray submitted that the notice which appeared prominently in the notice of assessment provided the taxpayer with all the information he might reasonably expect and, in addition, he was advised to seek professional guidance. Moreover, since the applicant accepted that he was unaware of the Charter of Rights, it was difficult to see how in his case it could have created a legitimate expectation that any particular procedure would be followed in relation to the giving of information to him. He also submitted that the trial judge was, in any event, correcting in concluding that the doctrine of legitimate expectations did not entitle the courts to establish a statutory regime where none existed: the situation was entirely different from that in cases such as In Re. Fakih [1993] 2 IR 406 and Gutrani [1993] 2 IR 427 where the Minister had established a specific extra-statutory procedure and it was held that he was obliged to apply it in all relevant cases.

Conclusions

(a) The first ground

In construing the relevant provisions of the 1997 Act, the duty of the court is, as stated by Lord Russell of Killowen C.J. in Attorney General –v- Carlton Bank [1899] 2 QB 158,

"to give effect to the intention of the legislature as that intention is to be gathered from the language employed, having regard to the context in connection with which it is employed"

a passage which was cited with approval by Kennedy C.J. speaking for the Supreme Court of Saorstat Éireann in Revenue Commissioners –v- Doorley [1933] IR 750.

It is true that, as pointed out in that and other authorities, where the court is considering whether a particular person is subject to a tax claimed to have been imposed by a statute, its sole task is to determine whether, having regard to the language used, the tax has been expressly imposed: the court cannot have regard, as might be possible in other contexts, to what might be assumed to be the intention or governing purpose of the Act, other than an intention to levy such tax as the statute imposes. We are here concerned with provisions in the 1997 Act which do not impose any tax but set out the machinery by which the taxpayer is to be assessed and the appropriate tax recovered and in construing those provisions the court must apply the normal principles of construction to which I have already referred.

The first submission advanced on behalf of the applicant, i.e. that the assessments never became final and conclusive because a notice of appeal had been served on behalf of the applicant within the 30 day period can be dealt with shortly. The first named respondent notified the applicant that he was not entitled to appeal because of his failure to deliver the returns and the appropriate tax. There was no appeal by the applicant to the Appeal Commissioners from that determination within the period of 15 days prescribed by s. 933(1)(c). I have no doubt that it was the intention of the legislature that the provision in s. 933(6)(a) that assessments become final and conclusive in default of a notice of appeal by the person concerned is applicable where a purported notice of appeal is of no legal effect. I see no reason for imputing to the legislature an intention that an assessment should be prevented from becoming final and conclusive by the giving of a notice of appeal which the person concerned was not entitled to give. That conclusion is unaffected by the somewhat imprecise use of the language in s. 933(1) where, as Murray J. pointed out in his judgment in Criminal Assets Bureau –v- M^cDonnell, the draftsman appears to have somewhat confusingly conflated the two concepts of giving notice of appeal on the one hand and making an "application for appeal" on the other hand.

As to the alternative argument based on s. 957(2)(a) – that a person in the position of the applicant could prevent the assessments from becoming final and conclusive by simply refraining from delivering returns and paying the appropriate tax – this rests on the proposition that time does not begin to run against the taxpayer in respect of the bringing of an appeal until the returns have been delivered and the tax paid.

However, the right of the applicant in this case to serve a notice of appeal did not derive from s. 957(2)(a). It derived solely from s. 933(1)(a). That provision expressly applies to any person "aggrieved by any assessment to income tax" and, accordingly, constituted the statutory entitlement of the applicant in this case to appeal from the notices of assessment served upon him. The only effect of s. 957(2)(a) was to impose on him specific constraints in relation to the bringing of such an appeal which would not arise in the case of a person who was not subject to the self-assessment procedures of Part 41 of the 1997 Act. Seen in that context, the intention of s. 957(2)(a) is, in my view, quite clear: it is to preclude a taxpayer in the position of the applicant from exercising his right of appeal under s. 933(1)(a) until he has delivered the return and paid the appropriate tax. Although clumsily worded, the concluding words of the sub-section were clearly intended to qualify the provisions set out in s. 933(1) by precluding the taxpayer from serving notice of appeal within the 30 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 returns and pay the tax until 15 days after the service of the notice of assessment, he would have only 15 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.

The construction of the provision urged on behalf of the applicant would mean that a taxpayer who was subject to the self-assessment procedure could ensure that the assessment served on him never became final and conclusive simply by refraining from delivering any return and paying any tax. That would make the whole of s. 957(2(a) entirely pointless. It is no answer to say that the taxpayer would still be subject to the various sanctions referred to in the applicant's submissions. They would be available to the appropriate authorities, whether or not s. 957(2)(a) existed. Unless the latter is to be read as prohibiting the bringing of an appeal within the 30 day period until the returns have been delivered and the tax paid, thereby providing a specific incentive to the taxpayer in default to meet his obligations, their enactment would constitute a meaningless absurdity. I am satisfied that the provision can be fairly read so as to avoid a result which the Oireachtas cannot have contemplated.

I have not overlooked the fact that in Criminal Assets Bureau –v- M^cSweeney, Kearns J. said:

"[Section 957(2)] clearly constitutes more than a mere description of the 'mechanics' of the appeals process. It provides clearly for the commencement of a 30 day appeals period 'at the earliest date on which both the return have been delivered and that amount of tax has been paid'. This appeal is not the appeal as specified in s. 933, and arises if, and only if, the Revenue Commissioners or its agents have decided not to issue proceedings on foot of the original assessment by the time the return is made and the tax paid on foot of the assessment. The tax authorities have, it seems to me, a discretion to allow an assessment to stand over before bringing proceedings, if it is felt that to do so would be a prudent course of action in a given case. The knowledge that a s. 957(2) appeal is open to a taxpayer can thus be characterised as an incentive for the non-compliant taxpayer to come forward and make a return without the opprobrium of legal proceedings being brought against him."

I am afraid that I cannot agree with that view of s. 957(2)(a). I am satisfied that the appeal referred to in s. 957(2)(a) is indeed the appeal provided for in s. 933. As I have already pointed out, s. 933 is of general application and includes cases of self-assessment and I have no doubt that the appeal referred to in s. 957(2)(a) is the appeal provided for in s. 933: s. 957(2)(a) confers no right of appeal but simply restricts the exercise of a right of appeal for which provision has already been made in the statute.

I would uphold the conclusion of the trial judge as to this ground.

(b) The second ground

If this case was solely concerned with the compliance or otherwise of the Notices of Assessment with the relevant provision of the Taxpayers' Charter of Rights, I would have no difficulty in upholding the conclusion of the trial judge. It seems to me that the notice, which I have already quoted, pointing out as it does in clear language that the taxpayer has a right of appeal, that it must be brought within 30 days and that it may involve the payment of tax, gave the essential information that a lay person would need, accompanied as it was by a reminder of the desirability of seeking professional advice.

That, however, cannot be said of the letter from the first named respondents of the 26^th March. The letter to which it was a reply indicating the applicant's wish to appeal and sent on the 20^th March was received, according to that letter, by the first named respondent on the 23^rd March, i.e. when the period of 30 days from the 23^rd February within which an appeal lay had still to expire. Yet three days were allowed to elapse before the first named respondents replied and that letter did not refer in any way to the right of the applicant to appeal within 15 days from the refusal of the first named respondent to accept the notice of appeal. That was at a stage when the applicant had already been credited with the payment of IR£21,510.00 and £490.00 as sums on account in respect of a partial discharge of preliminary tax by him. It must remain a matter of surmise whether, in the event of the applicant having appealed to the Appeal Commissioners and, in the interval, paid the further amount of tax required by s. 957(2)(a)(II), the Appeal Commissioners would have been entitled to "allow the application for an appeal" under s. 933(1)(d)(ii). It is sufficient to say that the applicant has sworn on affidavit that he was not aware that he was entitled to appeal from the Inspector's refusal and would have exercised that right if he was so aware. I agree with the view of the trial judge that the failure of the letter of the 26^th March to make any reference to his statutory right of appeal cannot be regarded as complying with the Revenue's undertaking in the Charter of Rights to give the taxpayer

"full, accurate and timely information about revenue law and [his] entitlements and obligations under it."

A question arises, accordingly, as to what were the consequences of what I am satisfied was a failure to comply with the requirements of the Charter. I cannot agree with the view of the trial judge that the doctrine of legitimate expectation can have no application in a case such as this, because that would mean, in effect, that the statutory scheme of assessments and appeals under the 1997 Act was to be treated as amended so as to impose additional obligations on the Revenue Commissioners. The fact, if it be the fact, that the operation of the doctrine in the present case would result in a finding that a legitimate expectation of the applicant to the receipt of certain information had not been met and that, he was in the result, entitled to specific relief, would be entirely reconcilable, in my view, with the proper operation of the statutory scheme established by the 1997 Act. It is beyond argument that the second named respondents and their agents, as public authorities, are bound to observe fair procedures in the exercise of the powers conferred on them by the tax code and, where an actionable breach of those requirements has been established, that does not mean that the statute has been in any way amended as a result of a decision to that effect by a court. That view would be impossible to reconcile, in my judgment, with the obligation of the courts to ensure that public authorities perform the functions entrusted to them by statute in accordance with the Constitution and the law.

That, of course, would be of no assistance to the applicant in this case if the step which he claims the first named respondents should have taken – of notifying him of his right to appeal – was ultra vires their powers as agents of the second named respondents. It cannot be said, however, that the furnishing of such information in a timely and accurate fashion would in any way have been beyond the powers of the first named respondents in the circumstances under consideration and the case is thus distinguishable from Wiley –v- Revenue Commissioners [1994] 2 IR 160, referred to in the judgment under appeal. It is clear from the judgment of Finlay C.J. in that case that the Revenue Commissioners did not have the statutory power to make the repayments which were the subject of the claim in that case.

It is generally accepted that the doctrine of "legitimate expectation" made its first appearance in our law in the decision of this court in Webb –v- Ireland [1988] IR 353. However, although in the course of his judgment in that case Finlay C.J. referred to the doctrine as an aspect of the already established concept of promissory estoppel, it was pointed out by O'Hanlon J. in Fakih –v- Minister for Justice that

"as the law has developed it has come to be applied in situations where the conventional plea of estoppel by conduct might not be available since the party seeking to rely on the plea of legitimate expectation may not be able to establish that he has been induced by the conduct of the other party to act to his own detriment."

That was a case where applicants for refugee status claimed that they were entitled to have their applications dealt with under the procedures set out in a letter by the Minister for Justice to a representative of the United Nations High Commissioner for Refugees (usually referred to as the "von Arnin" letter). As in this case, the applicants could not make the case that they had altered their position in reliance on the Minister's letter, but it was held that they had a legitimate expectation that their applications would be considered in accordance with the procedures accepted as proper by the Minister. O'Hanlon J. adopted the view of Lord Fraser of Tullybelton in Attorney General of Hong Kong –v- Ng Yuen Shiu [1983] 2 AC 629, giving the advice of the Privy Council in that case, that

"the principle that a public authority is bound by its undertakings as to the procedure it should follow, provided that they do not conflict with its duty, is applicable to the undertaking given by the government of Hong Kong to the applicant … that each case would be considered on its merits."

In the subsequent decision of Gutrani –v- The Governor of the Training Unit, Mountjoy Prison, M^cCarthy J., speaking for this court, while noting that the obligation was accepted to exist in that case to consider the applications for refugee status in accordance with the von Arnim letter, was of the view that

"it does not appear … to depend upon any principle of legitimate or reasonable expectation; it is, simply, the procedure which the Minister has undertaken to enforce."

In the many cases which have subsequently come before the High Court and this court dealing with applications for refugee status, it has been generally accepted that the applicants in such cases are entitled to have their applications dealt with under the von Arnim procedure, later replaced by the "Hope Hanlon" procedure. The judgments I have cited indicate some divergence of view as to whether that approach is properly regarded as an application of the doctrine of legitimate expectation or (as M^cCarthy J. preferred to put it) simply the recognition of a duty on the Minister to observe the procedures he had undertaken to apply. That may reflect the fact, noted by Fennelly J. in his judgment in this court in Glencar Exploration Plc. & Anor –v- Mayo County Council [2001] 1 IR 112, that the doctrine of legitimate expectation is a developing one and that its legal parameters cannot be regarded as having been definitively established as yet. For the purposes of this judgment, it is sufficient to say that, the respondents, having acknowledged that fair procedures required the furnishing to all the taxpayers with whom they had dealings of full, accurate and timely information, failed to observe those requirements in the case of the applicant.

It is undoubtedly the case that documents such as the Charter of Rights under consideration in the present case , whether so described or called a "Mission Statement" or given some other title, frequently contain what are no more than praiseworthy statements of an aspirational nature, designed to encourage the members of the organisation concerned to meet acceptable standards of behaviour in their dealings with the public and to give the latter some form of assurance that complaints as to discourtesy or other shortcomings on the part of the former will be seriously entertained. Some at least of the undertakings in the Taxpayers' Charter of Rights would fall into that category. Statements of that nature would not normally give rise to causes of action based on the legitimate expectations doctrine.

In this case, we are concerned with a specific undertaking to give taxpayers full, timely and accurate information as to the provisions of a notoriously opaque and difficult code. While it is manifestly not the function of the second-named respondents or their inspectors to give gratuitous advice in all circumstances to members of the public as to their legal position, it was not asking too much of them in the present case not to respond to a letter such as that from the applicant in a manner which they must have known could have left him in the dark as to his rights. That would seem to me to be at variance with both the letter and the spirit of the undertaking in the Charter. In the result, I am satisfied that the fair procedures which it was reasonable to suppose the respondents would observe were not applied in his case and that, in the light of the authorities to which I have referred, he was entitled to be placed in the same position as if they had been met.

I would, accordingly, allow the appeal from the finding of the trial judge as to the second ground. I would hear counsel as to the form of relief to which the applicant is entitled in these circumstances.