Revenue seeks to strike out O’Brien tax appeal

Revenue wants the High Court to strike out an appeal by telecoms owner Denis O’Brien related to a finding that his tax return 14 years ago was insufficient due to being compiled in a negligent manner.

The court heard that in 2010, an inspector of taxes sought answers about Mr O’Brien’s returns for 1999 to 2000. In particular, the inspector asked about the exchange of Mr O’Brien’s holding of shares in Esat Telecom for certain loans in BT Hawthorn, Brian Murray, for the Revenue Commissioners said.

While the raising of such questions is limited by a bar of four to six years, this limit is not applicable if the inspector believes the returns are insufficient due to being compiled in a negligent manner, counsel said. The inspector in this case made such a finding.

Mr O’Brien appealed and an appeals commissioner found Mr O’Brien had not established the inspector did not have reasonable grounds for his finding, counsel said.

Mr O’Brien exercised his right to appeal the decision of the appeals commissioner to the Circuit Court. He also separately sought to have a case stated, on a point of law related to the Taxes Consolidation Act 1997, to the High Court.

However, the case stated was not brought within the permitted time and the Revenue applied for, and was granted, an order that it be struck out, said Mr Murray. Shortly afterwards, the Circuit Court appeal, which was in abeyance pending the case stated, came before Judge Jacqueline Linnane.

She refused to list the appeal for hearing after the Revenue successfully argued Mr O’Brien had elected to have the matter dealt with by way of case stated in the High Court and it was not possible to run both cases.

Mr O’Brien appealed that decision to the High Court but Revenue are now asking that it too be struck out.

The Revenue contended Mr O’Brien was not permitted to appeal under Section 31.2 of the Courts of Justice Act 1936 which provides there cannot be an appeal of a Circuit Court decision in relation to a tax matter such as this. It was their case that the High Court has no power to entertain such an appeal but has inherent power to strike it out.

Mr O’Brien opposed the application. His counsel Martin Hayden said the Circuit Court never heard the substantive appeal but only dealt with whether the case could be listed. Mr Justice Bernard Barton said he would give his decision in due course.