Talk to almost anyone who has featured on the regular list of tax defaulters published by Revenue and they will tell you the bit that most upsets them is publication of their name along with details of their transgression.
Naming and shaming is a central element of the penalty imposed on tax defaulters.
But what about taxpayers who have not been caught gaming the system but are simply challenging a Revenue assessment of their tax liability?
While the default is that these challenges before a tax appeals commissioner are held in public, the appellant must be granted a private hearing if they request one, as invariably happens.
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The Government is ushering legislation through the Oireachtas that would fundamentally change this, leaving the decision to the discretion of the tax appeals commissioner hearing the case. And the outcome of those hearings will no longer be anonymous except in “special and limited circumstances”.
The Government claims its hands are tied on the back of a Supreme Court judgment in the case of Tomasz Zalewski versus the Workplace Relations Commission and others.
However, it appears to Government is going beyond the parameters of that Supreme Court ruling and, in so doing, is actively looking to dissuade taxpayers from challenging tax assessments.
In his decision, Judge Donal O’Donnell said it might “even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban” contained in the legislation.
“The terms of s41 (13) [of the 2015 Workplace Relations Act] require that all hearings shall be conducted otherwise than in public. It is appropriate to declare that provision repugnant to the Constitution. The effect is that the prohibition on public hearings is removed and proceedings may, but not must, be heard in public.”
But there is no such absolute ban on public hearings before the tax appeal commissioners; quite the opposite. And that “but not must” is important.
The Irish Tax Institute argues, not unreasonably, that people may well confuse named tax defaulters with named challengers of tax assessments, with clear negative connotations.
That prospect is likely to deter many from exercising their right to challenge a Revenue assessment they consider unfair or simply mistaken. And given that one in five of such challenges is successful, it is not a reach to argue that the incoming legislation is actively working against fairness and justice – and will almost certainly find itself subject to future appeal to the courts.
It looks like clear Government overreach.
