Fianna Fáil TD Mr Michael Collins may not face the prospect of criminal charges for producing a false tax clearance certificate because a prosecution was not launched in time, the Standards in Public Office Commission believes.
The commission is pessimistic that the Statutory Declarations Act, 1938, can be used against the Limerick West TD, reliable sources have told The Irish Times.
The Revenue Commissioners revealed in September that Mr Collins had paid €130,000 in back taxes and penalties earlier this year to settle debts built up since the 1980s.
Mr Collins submitted a tax clearance certificate to the commission in June 2002 claiming his tax affairs were in order. Lawyers have now advised the commission that a prosecution should have been launched within six months of its submission because it is a summary, rather than indictable, offence.
"It's bizarre. He submitted his certificate quickly, so a prosecution would have had to have been launched before the time for submissions finished," said one source.
The commission has advised the Minister for Finance that the problem will require the Government to change the legislation, which was introduced in 1997 and amended in 2001. However, any changes could not apply retrospectively to Mr Collins.
The commission, chaired by High Court judge Mr Justice Matthew P. Smith, referred Mr Collins's file to the Director of Public Prosecutions last week. In its letter, the commission is understood to have asked the DPP whether a prosecution could be launched using the 1938 legislation, or whether Mr Collins could be charged with any other offence.
The commission said in a public statement last week it was sending "the tax clearance documentation provided by Deputy Collins" to the DPP. It could not, it said, itself investigate whether Mr Collins had breached the ethics legislation, because it had powers to deal only with the conduct of ministers and other office-holders.
Mr Collins is facing investigation by the Committee of Members' Interests of Dáil Éireann, following the commission's decision to refer his case to the Oireachtas body.
In May 2000, ex-Fianna Fáil Kerry North TD, Mr Denis Foley, was suspended from the Dáil for 14 days after the Oireachtas committee investigated his possession of an Ansbacher account. The committee, chaired by Fianna Fáil Tipperary South TD Mr Noel Davern, has the power to conduct hearings in public or private, to compel witnesses and to seek discovery of documents.