Michael Lowry loses bid to stop trial on mainly tax-related charges

Outgoing Independent TD Michael Lowry has lost his bid to stop his trial on mainly tax-related charges.

Mr Lowry’s case was based on many “ingenious and even superficially attractive” arguments which were “in truth, devoid of any substance and ultimately built on a foundation of sand”, Mr Justice Seamus Noonan said in the High Court yesterday.

The Tipperary TD has already indicated he intends to appeal the High Court decision.

Mr Justice Noonan found Mr Lowry had “conspicuously declined” to engage with the €372,000 transaction of 2002 at the heart of the case.

He also disagreed with Mr Lowry’s argument a 2015 Appeal Commissioners determination of his tax appeal was a “vindication” of him in light of which continuation of the tax prosecution was oppressive.

The Appeal Commissioners found “clear evidence” Mr Lowry “misappropriated” monies of his company Garuda, the judge noted.

There was also no authority for the proposition one “can buy immunity” by paying arrears of tax due.

Rejecting further complaints about the TD’s trial being moved to Dublin Circuit Criminal Court from Co Tipperary, the judge said he could not see how that decision “could conceivably amount to oppression”.

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The five charges against Mr Lowry arise from a 2002 transaction involving a €372,000 payment due to Garuda being diverted to an Isle of Man trust account nominated by Mr Phelan, an accountant from Omagh.

Mr Lowry is charged with filing incorrect income tax returns for the year 2002 and conniving in alleged delivery by Garuda of incorrect corporation tax returns for the years ending 2002 and 2006. He is also charged, under the Companies Acts, of wilfully causing a company to fail to keep proper books of account between August 28, 2002, and August 3, 2007.

In his legal challenge, Mr Lowry argued he self-declared and self-corrected the matter in 2007, the Appeals Commissioner in 2015 found he had no personal income tax liability, Garuda ultimately paid €38,000 corporation tax and the only outstanding issue was a disputed surcharge liability of €2,410.

In the circumstances, he argued, continuation of his prosecution was unfair and disproportionate and he was also prejudiced by “savage” media articles about the Lowry tapes.

The DPP rejected the claims and argued the tax matter was significantly more serious than Mr Lowry maintained.

Mr Justice Noonan yesterday dismissed Mr Lowry’s case. Costs issues will be addresed later. Mr Lowry was not in court but, in a statement, indicated he intended to appeal.

In his judgment, Mr Justice Noonan said Mr Lowry relied heavily in this challenge on the determination of the Appeal Commissioners on his tax appeal.

That determination issued in 2015 after this prosecution was initiated and the issue before the Commissioner was whether the €372,000 payment, diverted on instructions of Mr Lowry to an Isle of Man account, was liable to income tax.

The Appeal Commissioners accepted “very clear evidence” the monies were misappropriated from Garuda but ruled the payment could not be classified as an “emolument” rendering Mr Lowry liable to income tax, the judge said.

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