Revenue fails to stop O’Brien tax return appeal

The Revenue Commissioners have failed to stop an appeal by businessman Denis O’Brien relating to a finding that a tax return from him 14 years ago was insufficient due to its being completed in a negligent manner.

The High Court decision means Mr O’Brien can proceed with a case arguing the Circuit Court should fully hear his appeal against that finding by a tax inspector relating to his return for 1999-2000.

Mr Justice Bernard Barton ruled Mr O’Brien was entitled to appeal a Circuit Court decision of July last year on the matter. The Circuit Court had refused to list his appeal for hearing after the Revenue argued Mr O’Brien had elected to have the matter dealt with via case stated in the High Court and it was not permissible to run the same case in both the Circuit and High Courts.

Mr Justice Barton said the Circuit Court ruling, by Judge Jacqueline Linnane, was not a decision on the appeal within the meaning of the law but an order on “a procedural application”. Mr O’Brien was therefore entitled to have his appeal on this matter heard by the High Court, the judge said, dismissing the Revenue’s motion to strike out his appeal against the Circuit Court order.

Martin Hayden SC, for Mr O’Brien, said he would seek to have the matter remitted to the Circuit Court when it next comes before the High Court.

The case concerned questions raised in  2010 by an inspector of taxes, who asked about the exchange of Mr O’Brien’s holding of shares in Esat Telecom for certain loans in a company, BT Hawthorn.

While the raising of such questions is limited by a time bar of four to six years, this is not applicable if an inspector believes the returns were insufficient due to being completed in a negligent manner, Brian Murray SC, for the Revenue, said.

The inspector in this case made such a finding. Mr O’Brien appealed through the Revenue system and an appeals commissioner found Mr O’Brien had not established the inspector did not have reasonable grounds for his finding.

Mr O’Brien exercised his right to appeal the decision to the Circuit Court. He separately sought to have a case stated, on a point of law related to the Taxes Consolidation Act 1997, to the the High Court. The case stated was not brought within the permitted time and that matter was struck out on consent between the parties.

Shortly afterwards, the Circuit Court appeal came before Judge Linnane, who accepted Revenue’s arguments Mr O’Brien could not run what were effectively the same appeals in the High and Circuit Courts and refused to list the matter for hearing.