O’Brien faced 55m tax claim
Mr O'Brien lost a Supreme Court application yesterday in which he sought to stop the public finding out about legal proceedings he was bringing to prevent the Sunday Business Post reporting that Revenue were seeking €55m in tax from him.
The tax bill is alleged to arise from Mr O'Brien's sale of Esat to British Telecom for approximately €292m three years ago. His residency in Portugal meant he did not have to pay the 20% Capital Gains Tax on his gross profits in the year of that sale.
However, the newspaper was to report that the Revenue were re-examining the tax agreement between Portugal and Ireland and Mr O'Brien was going to face a €55m tax bill.
The Supreme Court ruled that while the Sunday Business Post is prohibited from publishing the story, the media were free to report Mr O'Brien had sought to quash the article.
While the Sunday Business Post is prohibited from publishing the article, it is understood the newspaper intends to publish extensive material relating to its ongoing legal battle with Mr O'Brien in tomorrow's edition.
The Supreme Court was told yesterday that, since the Sunday Business Post article was written, there had been a hearing relating to Mr O'Brien's tax affairs before the Revenue Appeals Commissioners last month and a determination had been reached.
However, the Supreme Court was given no details of the appeal commissioner's findings. In other words, it remains unclear whether Mr O'Brien won or lost that appeal.
Yesterday's proceedings arose after the High Court, on September 30 last, refused Mr O'Brien's application for an interlocutory injunction restraining the Sunday Business Post from publishing an article relating to his tax affairs. The article was initially to have been published on September 17.
Mr Justice Abbott refused Mr O'Brien's application on that occasion. However, Mr O'Brien's counsel, Michael Cush SC, said he intended to appeal the injunction refusal to the Supreme Court.
Mr Justice Abbott said he would discharge an interim order restraining publication of the article, but would stay implementation of that discharge order for two weeks.
He also banned publication of any details of the court proceedings for two weeks.
When the matter came before the Supreme Court yesterday, Mr Cush asked that the court continue the ban against the Sunday Business Post and the ban against other media organisations publishing details of the case.
However, Ms Justice McGuinness, presiding, said the Supreme Court had determined it must be heard in public or be withdrawn.
This opened the way for all media to report what happened in the High Court on September 30.
On that date, the court heard the Sunday Business Post wanted to publish an article which stated Mr O'Brien was facing a claim for €55m by the Revenue Commissioners, who had launched a probe into the tax residency of Mr O'Brien in Portugal.
The High Court also heard on that date that the article made reference to "a detailed probe" which the paper claimed was being conducted by the Revenue into Mr O'Brien's tax residency in Portugal and stated that "informed sources" claimed the Revenue believed it could identify weaknesses in the tax agreement between Ireland and Portugal.
Eoin McCullough, for the newspaper, said the only significant difference between the proposed article and one published on May 24 last, and against which no attempt had been made to restrain publication, was that the proposed article stated a claim had been made against Mr O'Brien for about €55m.
The media had widely speculated he had moved to Portugal for tax purposes and no one had ever denied it, counsel said.
Mr Cush, for Mr O'Brien, is arguing a breach of confidentiality saying the newspaper is not entitled to publish any details of dealings between the Revenue and Mr O'Brien. The truth or otherwise of what was said in the article was irrelevant, he agreed.
Mr McCullough said he would be filing a cross-appeal against the High Court findings that there was an arguable issue in relation to confidentiality of dealings between the Revenue and Mr O'Brien and against the finding that the balance of convenience lay in preventing publication.
Ms Justice McGuinness said this was an issue of considerable constitutional importance, which might have to be determined by a five-judge court. Mr O'Brien had raised a serious and far-reaching issue regarding his civil rights in relation to his dealings with the Revenue, especially relating to the confidentiality of those dealings.
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