Supreme Court dismisses appeal on tax assessment appeal procedures and freezing order access issues.

THE SUPREME COURT

Record No: 189/00

Keane, C.J.

Denham, J.

Murphy, J.

Murray, J.

Hardiman, J.

BETWEEN

THE CRIMINAL ASSETS BUREAU

Plaintiff/Respondent

AND

JOHN KELLY

Defendant/Appellant

Judgment delivered the 11th day of October, 2002 by Murray, J.

In these proceedings the Plaintiff/Respondent (hereafter the Respondent) has obtained summary judgment against the

Defendant/Appellant (hereafter the Appellant) for the sum of £378,522.76 (€480,624.76) being income tax and interest due by

him on foot of certain assessments for income tax in respect of various years which were claimed to have become final and

conclusive. In the proceedings before the High Court it was common case that the Respondent had established all the

necessary matters entitling it to a judgment for the said amount subject to the determination of two issues of law raised by the

Appellant. The first concerns the interpretation of section 957 (2)(a) in conjunction with section 922 of the Taxes Consolidation

Act, 1997. The second concerns a question as to whether the combined effect of certain provisions of the Criminal Assets

Bureau Act 1996, the Proceeds of Crime Act, 1996 and the Taxes Consolidations Act, 1997 deprived the Appellant of access to

certain monies and assets which were the subject of a ‘freezing order’ pursuant to Section 2(1) of the Proceeds of Crime Act

1996 for the purpose of paying an amount of income tax which was a pre-condition to the Appellant’s right of appeal against

the aforementioned assessments. In turn it was contended that in being prevented access to those monies for that purpose the

Appellant was prevented from pursuing an appeal against those assessments in consequence of which his constitutional rights

were breached.

The learned High Court judge decided both questions in favour of the Respondents and ordered that judgment be entered in

favour of the Respondent against the Appellant for the amount claimed.

The Appellant has appealed against the rulings on these two questions of law.

First issue: Section 957(2)(a) in conjunction with section 922

This question can be dealt with briefly since the Appellant, although he did not abandon his appeal on this point, did not

actively pursue it. The point in issue was whether the assessments to income tax made in respect of the Appellant could be

considered as having being made pursuant to Section 922 of the Taxes Consolidation Act 1997, a necessary precondition for

the application of Section 957 (2)(a) governing the appeal procedures to be followed by the Appellant, or whether the

assessments made must be deemed to have been made pursuant to Section 58 of that Act. Counsel for the Appellant

acknowledged that this question was governed by the decision of this court in the Criminal Assets Bureau -v- Thomas

McDonnell (the Supreme Court unreported 20th December 2000) in my judgment and that of Geoghegan, J. In that case the

court, in addressing the very same question, decided that as regards assessments of the nature in issue in this case they must

be considered as assessments pursuant to Section 922 of the 1997 Act and accordingly Section 957 (2)(a) applied to taxpayers

so assessed. Moreover, the decision of O’Sullivan, J. on this question in this case was cited with approval in those judgments.

Since the decision of the court in that case clearly applies to the position of the Appellant in this case, this ground of appeal

should be dismissed.

Background

The issue concerning a right of access to his own monies to enable him to appeal arose in the following context. In May, 1997

in distinct proceedings brought by Michael F. Murphy against the Appellant an order of the High Court was made pursuant to

section 2(1) of the Proceeds of Crime Act, 1996 prohibiting the Appellant from disposing or otherwise dealing with or diminishing

the value of a dwelling house in Dublin, a motorcar owned by him and monies totalling £88,465.25 (€112,327.70) standing to his

credit in two building societies on the grounds that those assets were the proceeds of crime.

Independently of those proceedings the Criminal Assets Bureau raised the aforementioned tax assessments for certain years in

respect of the Appellant as a tax on profits of unlawful activities referred to in section 58 of the Taxes Consolidation Act 1997.

The Appellant sought to appeal against those assessments having, after assessment, submitted tax returns for amounts less

than those assessed. The appeal was refused on the grounds that the amount of tax admitted to be due on foot of those

returns had not been paid with the appeal. Section 957 (2)(a) of the Taxes Consolidation Act 1997 provides that no appeal shall

lie against such an assessment unless, inter alia, the taxpayer pays an amount of tax which is not less than the amount of tax

which would be payable on foot of the his own tax returns. The Appellant responded, through his accountant, that he was

unable to pay the amount of tax admitted to be due because of the order pursuant to section 2(1) of the Proceeds of Crime

Act 1996 freezing the monies standing to his account. The failure of the Appellant to lodge a valid appeal against the

assessment to tax led to the assessment becoming conclusive and the initiation of these proceedings for the recovery of the

amount due.

In these proceedings, pursuant to order of the High Court made on the 26th February, 1999, the Appellant delivered pleadings

described as “points of claim” setting out the grounds upon which he contested the entitlement of the Respondent to proceed

to judgment on foot of the summary summons. In point 5 of that pleading the Appellant claimed that the Criminal Assets Bureau

Act 1996 and the Proceeds of Crime Act, 1996 taken together with section 933 (1)(b) and 957 (2)(a) of the Taxes

Consolidation Act, 1997 were, in there effect and operation, “unconstitutional and in particular in violation of the Defendant’s

rights under Article 34(1), 37(1), 40(1), (2) and (3) and Article 4 of Bunreacht Ná hÉireann because the effect has been to

allow the Plaintiff to deny the Defendants right of access to the appeals procedure and the court through its action in

depriving him of access to his assets.”

The sequence of events giving rise to the situation of which the Appellant complains is set out with great clarity in the

judgment of O’Sullivan, J. in these proceedings and are as follows: -

“On the 29th May, 1997 in separate proceedings brought by Michael F. Murphy against the Defendant in the matter of

The Proceeds of Crime Act, 1996, I made an Order pursuant to Section 2 of that Act prohibiting the Defendant from

disposing or otherwise dealing with or diminishing the value of freehold property in Country Dublin, a Ford Fiesta

motorcar, and substantial amounts of money standing to his credit in two building societies.

On the 5th August, 1997 the Plaintiff issued assessments for tax and surcharge for late submission of returns for the tax

years ended 5th April, 1989 to 5th April, 1996 inclusive and these were received by the Defendant on the 7th August.

The statutory thirty day time limit within which the Defendant was entitled to appeal these assessments expired,

accordingly, on 4th September, 1997. On the 14th August, 1997 the Defendant’s then Solicitor wrote to the Plaintiff

indicating an intention to appeal.

On the 25th August, 1997 the Plaintiff replied to the Defendant’s Solicitor enclosing copy of the same date of their letter

to the Defendant pointing out in effect that no appeal could be made unless a return was made by the Defendant

accompanied by payment of the amount of tax admitted due and that in default of compliance the assessments would

become final and conclusive within the relevant statutory time limits. By letter of 2nd September, 1997 the Defendant’s

accountant wrote to the Plaintiff appealing the assessment enclosing returns of income for each of the relevant years

which acknowledged total income tax liability of £106,668.98. In that letter the Defendant’s accountant stated:

“Your office is presently holding monies on my client, which have been used to remit his tax liability as per returns.

Effectively, unless you allow my client to use above monies as payment of his tax liability, this appeal will be

invalid. Please let me know what course of action you propose to take.”

By letter of the 9th September, 1997 the Plaintiff replied acknowledging receipt of the accountant’s letter, noting that

the Plaintiff did not “hold” any money of the Defendant, pointing out that money was held pursuant to an order under

The Proceeds of Crime Act, 1996 and that a remedy might be available to him under Section 6 of the Act.

The letter further pointed out that a valid appeal must be accompanied by the admitted amount due submitted within

thirty days of the notice of assessment and also pointing out that statutory provisions existed for admission of a late

appeal. It concluded by stating that no valid appeal had been lodged and that the assessments “have now become final

and conclusive”, and that arrangements were being made for service of demands on the Defendant.

By letter of the 19th September, 1997 the Defendant’s accountant appealed against the refusal to accept his appeal

pursuant to the relevant statutory provisions on the grounds that their refusal to accept the Defendant’s notice of

appeal dated 2nd September, 1997 “having regard to the particular circumstances of this client, is contrary to law”.

By letter of the 22nd September, 1997 the Plaintiff acknowledged this letter and pointed out that any relevant

application should be addressed to the offices of the Appeal Commissioners.

This letter was in turn acknowledged by the Defendant’s accountant by letter of 22nd September, 1997.

By letter of the 27th April, 1988 the Appeal Commissioners advised the Appellant and Plaintiff (as respondent) of the

date, time and place of the hearing being the 25th June, 1998.

On that date there was no attendance by or on behalf of the Appellant (the Defendant) and by letter of 3rd July, 1998

the Plaintiff wrote to the Defendant pointing out to him that as there was not attendance by him or on his behalf his

appeal against the refusal of the inspector to admit his appeal “is now gone by default”. On the 13th of October, 1998

these proceedings were commenced by the issuing of a summary summons out of the Central Office of the High Court.”

The Judgment of the High Court

In declining to accede to the submissions of Counsel for the Appellant in the High Court, the learned High Court judge concluded

that the Appellant could have at any time between the 29th May, 1997, the date of the section 2(1) order and the institution

of the present proceedings on the 13th October, 1998 applied for a discharge of that order. Accordingly, he held that it was the

failure of the Plaintiff to apply to have that order suspended that resulted in his not having access to funds for the purpose of

making a valid appeal against the assessments. This conclusion was reached on the basis that the position adopted by the

Appellant in the High Court was to all intents and purposes that the monies in question were not the proceeds of illegal activity

on his part. The learned High Court Judge then went on to hold that even if the monies of the Appellants were treated as the

proceeds of crime it is still open to him to make an application under section 6 of the Proceeds of Crime Act 1996 to ask the

court to allow the said money to be paid out as “necessary expenses” within the meaning of that section. On that basis the

learned High Court judge concluded that the inability of the Appellant to avail of the appeal procedures pursuant to Section

957(2)(a) was attributable to his own failure to apply for an order suspending the “freezing order” or for an order paying out

the monies pursuant to Section 6 of the aforesaid Act.

Accordingly the learned High Court judge rejected the argument that the combined effect of the impugned Acts was to deprive

him of a right of appeal. There was to be found within the relevant statute the avenues by which he could have had access to

the monies the subject of a “freezing order” for the purpose of enabling his appeal against the assessment to tax proceedings.

It was only after having so found that the learned trial judge went on to express the view that the Appellant “had no locus

standi” to challenge the validity of the impugned sections of the Statutes referred to. For this view he cited the decision of

McCracken J. in Coughlan v Ireland and the Attorney General and Others (the High Court, unreported, 12th July 1995).

Submission of the Appellant

On this second issue the Appellant first of all appeals on the ground that the learned High Court Judge erred in holding that he

had no locus standi to challenge the constitutionality of the impugned statutory provisions. He seeks an order remitting this

matter to the High Court for adjudication upon the constitutional validity of the said provisions. As regards the learned trial

judge’s finding that the Applicant could have applied to the High Court under Section 2(3) of the 1996 Order seeking to

discharge or vary it, it was submitted that the learned High Court judge failed to have regard to the short period of time within

which it was open to the Appellant to make such an application after the notification of the assessments for income tax to the

Appellant and the last day for the filing of an appeal against the assessment. An application under Section 2(3) would have had

to be made in the context of the “tight 30 day deadline” within which tax returns had to be filed, the income tax admitted to be

due paid and the notice of appeal lodged.

The learned trial judge also erred in concluding that the onus was on the Appellant to make an application to the court when it

was open to the Criminal Assets Bureau to apply to have the order discharged in order to facilitate the release of funds to the

Defendant which ‘the Criminal Assets Bureau’ had itself assessed to tax.

It was also submitted that it is inconsistent with the raising of assessments of the type raised by the Respondent in these

proceedings that a person in the position of the Appellant should be required to demonstrate to a Court that the property did

not represent the proceeds of crime so as to avail himself of the Section 2(3) remedy. The Appellant further contended that the

learned trial judge erred in holding that he could alternatively have availed himself of an application pursuant to section 6 of the

Proceeds of Crime Act 1996 whereby the court may permit access to funds for the purpose of enabling the person, the subject

of such an order “to discharge reasonable living and other necessary expenses.” This provision should not be interpreted as

encompassing tax liabilities. If it had, the section would have expressly said so. In any event, such an interpretation of the

section would not have been immediately obvious to any legal advisor and any such application would have to be made within

the short time limit available under the 1997 Act for appealing against an assessment for income tax. On the facts of this case

the Plaintiff was informed on the 25th August, 1997, some nine days before the 30 day time limit expired, that his appeal would

not be accepted unless the returns were submitted and tax paid.

Submissions of the Respondent:

On behalf of the Respondents it was submitted that the assessments to tax were raised on 5th August, 1997 and the Appellant

was at all material times aware that in order to appeal against such assessments he was required by statute to deliver a notice

of his intention to appeal, make returns of the income which he claimed he had earned during the relevant periods and pay the

amount of tax and interest due by reference to those returns. He failed to pay the sum of income tax due on foot of his own

returns within the time for appeal. Accordingly the inspector properly refused his notice of appeal against the assessment. The

Appellant appealed against that refusal but failed to proceed with the appeal.

The Appellant had failed to avail himself of the remedy pursuant to Section 2(3) whereby he could have sought to set aside the

order made pursuant to Section 2 on the grounds that the monies lodged to his credit in the building societies were not the

proceeds of crime. Alternatively, he could have applied to the court pursuant to Section 6 of the 1996 for the payment out of

the necessary monies as constituting necessary expenses within the meaning of that section.

Having regard to the procedures which were available to the Appellant pursuant to Section 2(3) and/or Section 6 of the 1996

Act, he is incorrect in his contention that the combined effect of the relevant statutory provisions was to deprive him of access

to the monies in question.

The locus standi issue

It seems to me that a misconception has arisen concerning the notion of locus standi in this case. In my view the Appellant

clearly had locus standi in respect of the second issue in these proceedings including the constitutional dimension to his

arguments. It is quite clear from the facts and circumstances of the case that he was adversely affected by the application of

the relevant provisions of the Acts concerned. Whether the Acts adversely affected him in a manner which infringed his

constitutional rights is another matter. In Cahill -v- Sutton [1980] I.R. 269 at 286 Henchy, J. stated “The primary rule as to

standing in constitutional matters is that the person challenging the constitutionality of the statute, … must be able to assert

that, because of the alleged unconstitutionality, his … interests had been adversely affected …” (emphasis added).

However, in the High Court the Appellant made substantial submissions as to why the relevant sections of the impugned Acts

should be interpreted as having the effect of denying him access to his monies and assets, the subject of the freezing order. In

his judgment the learned High Court Judge gave full consideration to these submissions and concluded that there was no such a

denial of access but that the relevant statutory provisions provided various procedures by which he could have done so. In

short he dealt with the substance of the Appellant’s case and the Appellant was in substance accorded locus standi to the

extent necessary to argue the second issue in this matter. My reasons for coming to that conclusion are as follows.

The second issue in these proceedings in respect of which the Appellant claims locus standi falls into two parts, namely: -

(i) Whether the combined effect of the Acts impugned is to deprive him of access to his monies, the subject of the

freezing order, and,

(ii) if that is correct in law whether as a consequence there is a constitutional right which has been infringed.

If the Appellant is wrong in his first contention as to the combined effect of the relevant Acts, the second part of the issue

does not arise. If he is correct in his basic premise as to the effects of the Acts then an issue arises as to whether being

denied access to the monies and assets, which the High Court in separate proceedings had ruled were the proceeds of crime,

for the purpose of paying the relevant tax on lodging his notice of appeal against assessment, constituted a breach of

constitutional rights. It would not automatically follow that because he had been denied access to such monies and assets, the

subject of such a High Court Order, that there was necessarily a breach of his constitutional rights. That would be a separate

matter to be considered and determined by the Court if it arose. It seems to me abundantly clear that if the Appellant fails to

establish that the provision in question have the effect of depriving him of access to his assets to the extent alleged, then the

preliminary premise fails and the question as to the constitutionality of the Acts does not arise.

That premise is the first and essential concrete issue in the case.

As has already been seen the judgment of the High Court interpreted Section 2(3)(a) and Section 6 of the Proceeds of Crime

Act 1996 (one of the Acts whose provisions are impugned) as providing to the Appellant a means of access to his monies and

assets. Hence the first and basic premise of the Appellant’s case was dismissed on the merits of the argument advanced.

Having so concluded no other issue arose in relation to the Appellant’s defence to the Plaintiff’s claim and in particular the basis

on which he could raise a question as to the constitutionality of the impugned Acts was not established.

In substance the learned High Court judge decided the issue and the Appellant was not limited or in any way affected by any

supposed lack of locus standi in making his arguments.

Of course, if the learned High Court judge had held that the provisions in question had the effect of denying him access to his

assets then, at least hypothetically, other issues could have arisen such as identification of the precise right alleged to have

been infringed and whether in fact it had been so infringed. But no such issues could arise once the substantive arguments

concerning the Appellant’s basic premise had been dismissed.

It was only after making his substantive finding that the learned High Court judge went on to conclude that he accepted the

Respondent’s submission that the Defendant had no locus standi and in this regard he expressly relied upon the decision of

McCracken J. in Coughlan v Ireland and the Attorney General and Others (cited above) which he stated had been opened to

him by counsel for the Respondent.

In this Court also counsel for the Respondent relied upon that decision of McCracken J. as authority for the proposition that the

Appellant in this case should be considered to have no locus standi.

In my view to interpret the judgment of McCracken J. in that case as supporting such a proposition is to misunderstand its

content and effect. Coughlan v Ireland was a case in which the Plaintiff challenged the constitutionality of Section 65 of the

Courts of Justice Act 1936 on the grounds that he could not afford to pay the sum of £40 for the purpose of lodging his notice

of appeal in respect of the relevant orders made in the High Court in those proceedings. I do not think it is necessary to go into

the details of that case except to refer to some salient points. At page 2 of his judgment McCracken J. noted “as a preliminary

point, the Defendants claim that the Plaintiff has no locus standi, as he was in fact in a position to make the payments at the

relevant time.” His conclusion on that point is to be found at page four where he states “accordingly I find that the Plaintiff

does have locus standi to bring these proceedings, in that he would appear to have been impecunious at the relevant time.”

On the merits of the Plaintiff’s claim he went on to find that legal aid was available to the Plaintiff and if he satisfied the

relevant criteria he would have had access to the Courts. He concluded his judgment in the following terms:

“In my view, as the means were provided by the State whereby he could, under controlled circumstances, have access

to the Courts, I do not think he is entitled [either] to challenge the constitutionality of the section of the Courts of

Justice Act...I am not satisfied that he has in fact been deprived of access to the Courts in those circumstances.”

On any view I do not consider that the latter passage can be interpreted as denying locus standi to the Plaintiff in that case.

The phrase “I do not think that he is entitled to challenge [either] the constitutionality of the section...” is not open to the

interpretation, even in its own particular context, that he was denying locus standi to the Plaintiff. To my mind McCracken J.

was simply expressing a view that the Plaintiff, on the merits, had failed to establish his preliminary premise on which his ground

for raising an issue as to the constitutionality of the section was based.

In the instant case, although the learned High Court judge headed the part of his judgment dealing with the merits of the

Appellant’s arguments with the words “locus standi” and concluded, after dealing with the substance of the arguments of the

Appellant, with a finding that he had no locus standi I am of the view that the substantive meaning and effect of the judgment

of the High Court in this case is that the Appellant was accorded locus standi to the extent necessary so that his argument on

the preliminary premise was fully adjudicated upon.

The substance and effect of the learned High Court Judges’ judgment is essentially the same as that of McCracken J. in

Coughlan -v- Ireland namely that having failed in his basic premise any question concerning the constitutionality of the Acts no

longer arose. For these reasons I do not consider that the Appellant’s contentions regarding his locus standi in the High Court

are grounds for allowing the appeal.

I will now turn to the substantive issue as to whether the learned High Court Judge was correct in ruling that the combined

effect of the Acts in question was not such as to deprive the Appellant of access to the monies and assets, the subject of the

freezing order in the manner contended.

Second issue: Access to assets the subject of the ‘freezing order’

The Appellant, in an affidavit sworn by him on the 25th February, 1999 in these proceedings averred at paragraph 4, for the

purpose of setting out the level of his indebtedness to the Revenue Commissioners, as follows: -

“I say that I have certain income from my activities as a street trader for the years in question, as detailed in Mr

Shine’s submissions, but it was nothing like the kind of estimated income underlining the assessments made by the

Bureau in this case.”

Mr Shine is the Appellant’s accountant who submitted returns of income tax for him to the Revenue Commissions in respect of

the years with which the assessments were concerned.

As the learned High Court judge correctly points out in his judgment, it was incumbent on the Appellant “ when making a return

to disclose all his income and in the present case none is disclosed as being the proceeds of crime.” The assessments to tax

concerning the Appellant were made for the years of assessment 1988-1989 to 1995-1996 inclusive. Subsequent to the issuing

of those assessments by the inspector the Appellant, within the 30 days limit for an appeal against those assessments,

submitted his own tax returns through his accountant for those years disclosing a total gross income over those years of

slightly in excess of £200,000 (€253,947.62). On foot of those returns the Appellant’s accountant assessed his income tax

liability for those years as amounting to a figure in the region of £106,000 (€134,592.24). All of this income is stated to be

income from the Appellants activities as a street trader.

As appears from the learned High Court judge’s judgment the order pursuant to Section 2(1) of the 1996 Act restraining the

Appellant from having access to the monies mentioned in that order had been made because the court was satisfied that the

said monies were the proceeds of crime involving dealing in illicit drugs.

On the facts before the High Court I am satisfied that the learned High Court judge was correct in concluding that as far as the

Appellant himself is concerned all his income over the years concerned derived from the lawful activity of street trading and not

from dealing in illicit drugs. That is the position which he has adopted in these proceedings.

It is not contested that Section 2(3) of the 1996 Act entitles a person who has been the subject of an order under to Section

2(1) to apply to the court to discharge or vary the order if it is shown to the satisfaction of the court that the property

concerned, or a part of it, is not property which is directly or indirectly the proceeds of crime within the meaning of the Act.

It was open to the Appellant at any time after the making of the order pursuant to Section 2(1) on 29th May, 1997 to apply to

the court to have the said monies released to him on the grounds that they were not the proceeds of crime.

Before the High Court it was suggested by Counsel that the Appellant did not have a licence to engage in street trading which

might constitute a bar to a successful application pursuant to Section 2(3). Although this argument was not pursued in the

appeal, I am satisfied that the learned High Court judge was correct in his conclusion that such a factor (of which there

appears to have been no actual evidence) would not have been a bar to the making of such an application in order to seek

access to the monies which were the subject of the Section 2(1) Order.

Nor do I consider that the time constraints complained of by the Appellant were such as to unduly restrict his right to seek

access to his monies pursuant to Section 2(3) in the circumstances of this case. As previously noted the Section 2(1) Order

was made on the 29th May, 1997 and the Appellant knew, or must have known, at all times that he had tax liabilities to the

Revenue Commissioners in respect of his earnings over the years concerned. He was under a duty to discharge those liabilities

and to be in a position to discharge those liabilities. He could have made the appropriate Section 2(3) application at any time

from the making of the Section 2(1) Order. In addition he had 30 days from the raising of the assessments on 25th August,

1997 to appeal the inspectors’ assessments. He could have made such an application promptly in that period. The requirement

that he pay the tax due on foot of his own income tax return was not something which was sprung upon him at the last

moment or in the last few days of the period for appealing by the tax inspector. That requirement is a statutory one of long

standing in the appeals procedure concerning assessments to tax. Furthermore, I am satisfied that the Appellant had a

reasonable opportunity to seek access to the monies in question pursuant to an application under section 2(3) for the purpose

of prosecuting his appeal against the inspectors assessments to tax. There are in any case two other factors to be taken into

account. Firstly, the Appellant having appealed to the Appeals Commissioners against the refusal of the inspector to accept his

appeal was informed that the hearing of his appeal against such refusal would take place on the 25th June, 1998. Again, he had

a very long period during which he could have sought access to the monies in question pursuant to section 2(3) but he failed to

avail of that procedure. Had he successfully done so he would have been in a position to avail of that appeal procedure to ask

the Appeals Commissioners to exercise their discretion and overturn the refusal on the grounds that he was then in a position to

pay the necessary income tax due. He did not do so and did not turn up for his appeal. As a consequence it was treated as

having gone by default. Secondly, section 933(7)(a) contains provisions for a late notice of appeal within 12 months of the date

of the Notice of Assessment where the taxpayer concerned, for “reasonable cause” was prevented from giving notice of appeal

within the time limited. If the Appellant had moved with reasonable diligence to make an application pursuant to Section 2(3),

there is no reason to conclude that it would not have been dealt with so as to allow him to appeal within the relevant period.

But if he had made such an application in a reasonably diligent fashion and, for reasons outside his control, there had been

some delay which prevented a proper lodging of his appeal in time, it is clear that he would have had open to him the option of

seeking to lodge his appeal after the time formally specified.

In the circumstances I am satisfied that the combined effect of the statutory provisions concerned was not such as to deny

him access to his funds so as to prevent him exercising his right of appeal under the Taxes Consolidation Act, 1997 and on this

ground alone he must fail.

His contention that he should not have been put in a position to have to resort to a Section 2(3) application in order to seek

access to the monies in question is not well founded. As already stated, that order was made because the High Court was

satisfied that it represented the proceeds of unlawful dealing in illicit drugs. He was in the best position to demonstrate where

the monies had come from. He had the option to demonstrate, as he contends, that the monies are not the proceeds of crime

but he did not exercise it. If that left him in the position of not being able to use the monies in question for other purposes it

was of his own making. At all times the onus is on the taxpayer to be in a position to fulfil his statutory obligations and to take

such steps as he may consider it necessary or appropriate to do so.

As regards Section 6 of the 1996 Act pursuant to which the High Court may permit an order under Section 2(1) to be varied “At

anytime ... if it considers it essential to do so for the purpose of enabling ...” the person concerned “... to discharge the

reasonable living and other necessary expenses ... incurred or to be incurred ...” I am of the view that this was also an

application which could have been made by the Appellant for access to the monies in question for the purposes of discharging

his admitted liabilities to income tax. This is on the assumption that the Appellant had no other means of paying the income tax

admitted to be due, which is the basis on which he has made his case and appears to have been accepted by the Respondent,

at least for the purpose of these proceedings.

Section 6 falls to be considered in a somewhat different context. The Appellant was restricted by an order of the High Court

from dealing with or diminishing the assets in question because it had been satisfied that they were the proceeds of crime. That

order was obtained on the application of an agency of the State. At the same time he is under a statutory obligation to

discharge his tax liabilities to the State and for the purpose of exercising his statutory right of appeal he was required by

statute to pay the amount of tax which he had admitted to be due. This section refers to “reasonable living and other

necessary expenses”. Self evidently “necessary expenses” refers to matters other than “reasonable living expenses”. Although

the phrase “necessary expenses” is somewhat ambiguous, it clearly must include, in the context of this case, monies due and

payable to the State pursuant to a statutory obligation. Assuming that the Appellant was unable or failed to satisfy the court

under a Section 2(3) application that the monies in question were not the proceeds of crime, there is no reason why he should

not have concurrently with the Section 2(3) application, or as an alternative, sought an order under Section 6 of the Act. Also

having regard to the time factors already mentioned in relation to a possible section 2(3) application, the Appellant must be

considered to have had ample opportunity to pursue the procedure laid down in section 6.

Having had sufficient opportunity to pursue the remedies available to him under section 2(3) and/or section 6 of the 1996 Act,

it cannot be said that the combined effect of the impugned provisions was to deprive him of access to his monies and assets in

the manner alleged by the Appellant.

The Appellant having failed to establish that the statutory provisions in question restricted him from having access to the

monies and assets in question for the purpose of prosecuting his appeal before the Appeals Commissioners, no further issue,

constitutional or otherwise, arises and the appeal should be dismissed.