High Court allows refund claim by deeming information already held by Revenue as reasonably required.

THE HIGH COURT

IN THE MATTER OF THE CASE STATED

PURSUANT TO SECTION 949AQ OF THE TAXES CONSOLIDATION ACT 1997

AS AMENDED

[2025] IEHC 507

Record No. 2023/4R

BETWEEN

JOHN MCNAMARA (DECEASED)

APPELLANT

AND

THE REVENUE COMMISSIONERS

RESPONDENT

JUDGMENT of Mr Justice Liam Kennedy delivered on 20 October 2025.

1. This is an appeal by case stated under s.949AQ of the Tax Consolidation Act (“TCA”) 19971, as amended, from the Tax Appeal Commission’s determination dated 25 April 2022 (“the Determination”). The Determination rejected the taxpayer’s2 appeal from the Respondent’s’ refusal to refund overpaid income tax in the sum of €32,251.83 on the basis that the refund was claimed outside the four-year time limit prescribed by s.865(4). The refund

1 All statutory references below are to the TCA save as otherwise noted. The taxpayer was unfortunately deceased by the the Commission hearing accordingly, for brevity, the term Appellant in this judgment should be understood as encompassing both the taxpayer until his death and those responsible for his estate thereafter.

entitlement arises because, although the taxpayer was subject to PAYE deductions at the time, many of his employment duties were conducted abroad and much of his employment is outside the scope of Irish taxation. The parties agree that the Appellant’s employer deducted €40,892 from his income, of which only €8,642 of his income was chargeable to Irish income tax. The Appellant would accordingly have been entitled to a refund but for the issue as to the adequacy of his amended return. There is no dispute as to the fact that an online amended return (“the 30 December 2015 Return”) was made within the statutory four-year time limit. The issue is whether it met the statutory requirement to provide “all necessary information”. Two issues arose in that regard before the Tax Appeal Commissioner (“the Commissioner”), only one of which remains live.

2. The first issue concerns whether the Appellant’s advisor did convey the crucial information to the Revenue as part of the 30 December 2015 Return, including critical information in the “expression of doubt” field. For technical reasons explained below in the Commissioner’s findings, the Revenue’s online form would not permit the entry of relevant information in the more appropriate fields on the form. It seems that no issue as to the adequacy of the return would have arisen if the information had indeed been included, even in the “expression of doubt” field. However, while the advisor tried to insert the necessary information in the “expression of doubt” field in the application, for reasons which are unclear, that information did not appear in the version finally submitted to the Revenue. The advisor noted that his application may have been “corrupted”. In any event, the Commissioner found as a fact - and he was entitled to do so on the evidence - that the reference to the actual tax paid figure did not appear in the return as transmitted to the Respondent, whether in the "expression of doubt” field or elsewhere. That resolves the first issue.

3. The second issue essentially concerns whether, in the context of gauging compliance with the statutory requirement for a valid claim (which essentially requires the taxpayer to provide all information reasonably required by the Respondent to determine if a repayment was due to the Appellant), it is permissible to have regard to information already in the Revenue’s possession, albeit furnished by the taxpayer’s employer via the PAYE system in respect of the individual tax payer and his income and tax payments in the relevant period, or whether the application directly furnished by the taxpayer or his representative (coupled, presumably with any accompanying side letter or note or similar communication) must provide all necessary information (independently of any information separately or indirectly available to the Revenue via the employer’s PAYE returns).

4. This case thus hinges to a large degree on questions of what information Revenue reasonably requires to be provided with to carry out its duties.

The Case Stated

5. The Case Stated noted the reason for the refusal to refund the overpayment - the claim was outside the s.865(4) four-year time limit. The issue was whether the Appellant had, before the expiry of the 2015 tax year, provided all information reasonably required by the Respondent to determine what repayment was due. The Case Stated accepted that if all such information had been furnished then the Appellant had made a “valid claim” under s.865(i)(b).

The Commissioner’s Findings of Fact

6. The Commissioner’s material findings of facts were: “(a) In November 2012 the Appellant filed a Form 11 return for the tax year 2011, in which he assessed himself as having a liability of €168.40. In the same year, the Appellant received a gross salary of approximately €124,000 from his employer from which €40,892 in income tax was deducted under the PAYE system. It was not in dispute that this latter sum represented an overpayment of tax on the grounds that the Appellant was non-tax resident for this year and only exercised his duties in the State for 15 of 216 days. The parties were agreed that the total income subject to tax under PAYE should have been €8,642.

(b) On 30 December 2015, the tax agent for the Appellant filed an amended Form 11 return on the Appellant’s behalf for the tax year 2011 for the purpose of making a claim for the repayment of the overpaid tax. He did so by emailing a PDF copy of the return to the Appellant’s ‘My Enquiries’ address. This was necessary because the software that he was using to ‘health check’ the return prior to upload to Revenue’s Online Service (‘ROS’) informed him that it would not be accepted because the figure of €40,892 entered under the section headed ‘PAYE Tax Deducted/refunded’ was greater than the total PAYE income of €8,642 entered on the same return. To solve this problem, the Appellant’s tax agent decided to insert the figure of €8,641.90, ten cent less than the total income, into this section on the amended Form 11 return.

This was accompanied by a cover letter, which stated:-

‘To whom it may concern,

Please note that this email is for the attention of […]

We are unable to fill out client’s amended Income Tax return for 2011 on file.

Please find attached Form 11 amended for 2011. We have a copy of

the ROS message if required’

(c) While the Appellant’s agent gave evidence at hearing that the Form 11 return that he attempted to file for 2011 on or about 30 December 2015 contained a statement in the ‘expression of doubt’ box therein specifying the full amount of €40,892 deducted from his PAYE income for 2011, the Commissioner found as a fact that the version actually furnished by him to the Respondent contained no such statement. As a consequence of the submission of the amended Form 11 return for the tax year 2011, the Respondent issued an amended Notice of Assessment dated 6 January 2016 based on the Appellant having paid PAYE tax of €8,641.90. This assessed the Appellant as having overpaid tax in the amount of €15,109.64 for that year, which sum was repaid to him shortly thereafter. In December 2016 the Appellant’s agent made a claim by way of amended Form 11 return for a repayment of income tax overpaid for the year 2012. In so doing he encountered the same difficulty as the year before with regard to the upload of the return to ROS. On 22 December 2016 the Appellant’s agent revived the issue of overpaid income tax for the year 2011 by re-sending the return filed the previous year to the My Enquiries address and attaching the following cover letter:- ‘To whom it may concern, Please note that this email is for the attention of […] With regard to the 2011 and 2012 amended Form 11s that were filed please note

1.1. For 2011 the actual PAYE tax deducted was €40,892.83. However the ROS system will not allow the Form 11 to be filed unless the PAYE deducted is less than the actual Gross Salary. Therefore the PAYE figure entered on the Form is €8,641, €1 less than the taxable Gross salary of €8,642,2.

2. For 2012 the actual PAYE tax deducted was €44162.35. However the ROS system will not allow the Form 11 to be filed. ROS system will not allow the Form 11 to be filed unless the PAYE deducted is less than the actual Gross Salary. Therefore the PAYE figure entered on the Form is €26,511, €1 less than the taxable Gross salary of €26,512.’ In accordance with the above and the contents of the Form 11 tax returns, amended Notices of Assessment for the tax years 2011 and 2012 issued on 24 February 2017. As regards the tax year 2012, the Appellant was assessed as having made an overpayment, which was duly refunded by the Respondent shortly thereafter. In respect of the tax year 2011, the Appellant was assessed as having made an additional overpayment of €32,251.83. On 4 April 2017, a refund of the additional overpayment was refused on the grounds that the claim was made outside the four year time limit prescribed in section 865.’ Appellant’s arguments before the Tax Appeals Commission

7. The Appellant’s arguments are set out at paras. 15-17 of the Determination. The key argument before the Commissioner was that the Appellant sought repayment of overpaid PAYE income tax in the 30 December 2015 Return, albeit in the incorrect amount (due to the glitch in the Respondent’s form) and thus met the obligation to provide all information the Respondent reasonably required to enable it to determine the refund due. The Respondent had the employer’s PAYE return relating to the Appellant for the period, including details of the PAYE tax deducted. The fact that the “tax paid” figure in the 30 December 2015 Return (€8,641.90) virtually matched the total PAYE income figure (€8,642) shown on the same return

- a 99% PAYE deduction – should have been seen as anomalous, putting the Respondent on enquiry, an enquiry readily answerable by the obvious expedience of reference to the corresponding PAYE returns).

Respondent’s arguments before the Tax Appeals Commission

8. The Respondent submitted that the amended Form 11 return which the Respondent received did not set out sufficient information to constitute a valid claim. It did not set out correct details of the 2011 PAYE deduction. The Appellant was correctly assessed on the information provided on his behalf. PAYE returns are the employer’s, a separate taxpayer and are thus irrelevant. A taxpayer claiming a refund must supply all necessary information.

Determination and Reason for the Determination

9. The Case Stated noted the Commissioner’s conclusion that the refusal should stand because the Appellant’s 30 December 2015 Return did not provide all information reasonably required for the Respondent to establish that there had been an overpayment entitling him to the additional refund. Consequently, no valid claim was made within the prescribed period and repayment was prohibited. The Commissioner concluded that the Respondent’s independent possession of PAYE records relating to the Appellant did not mean that the Appellant had made a “valid claim” within the required period. The Respondent was not obliged to cross-reference the taxpayer’s return with PAYE records. In addition, the amended return was not inherently unusual or anomalous and the Respondent was entitled to expect that details provided therein reflected the true position and did not overstate the taxpayer’s liability by way of understatement of the PAYE tax deducted.

10. The Case Stated noted that the Appellant contends that the Determination was erroneous because all information reasonably required by the Respondent to establish his entitlement to the full repayment was provided on 30 December 2015, so a valid claim was made within time. Specifically, he contends that: - “…the main piece of information that would be required by Revenue was that [the Appellant] had Employment income from [his PAYE employer]. This information regarding the taxpayer's employment was included in the Tax return. Therefore the information on tax paid by the taxpayer provided by the tax agent while not complete was a reasonable provision of information to Revenue to ground a tax refund. There is no issue of cross referencing of tax, the appellant's tax was deducted by his employer (SAP) and was in the Revenue system simpliciter, the tax deducted per PAYE is the appellant's tax at all times. Therefore the information provided by the taxpayer in his income tax return was at a level which satisfied the reasonably required information threshold of a Taxpayer.”

Points of law on which the High Court’s opinion is sought

11. The Commissioner stated the following questions of law stated to the High Court:- “(a) Did the Commissioner err in his finding that the Appellant failed to provide the Respondent with all of the information it reasonably required to establish his entitlement to the repayment of the sum of €32,251.83 within four years after the end of the chargeable period to which the claimed3 related, namely the tax year 2011?

(b) Did the Commissioner err in his finding that the claim was outside the time-limit specified for the repayment of tax under s.865(4)?”

Legal Principles

“Claimed” should read “claim”. Nothing turns on this.

12. There was no great dispute about the legal principles other than as to their application and, in particular, the requirements of a valid s.865 claim. The relevant parts of s.865 provided as follows:

“ (1)(a) In this section and section 865A -

... 'valid claim' shall be construed in accordance with paragraph (b).

(b) For the purposes of subsection (3) -

(i) where a person furnishes a statement or return which is required to be delivered by the person in accordance with any provision of the Acts for a chargeable period, such a statement or return shall be treated as a valid claim in relation to a repayment of tax where - (I) all the information which the Revenue Commissioners may reasonably require to enable them determine if and to what extent a repayment of tax is due to the person for that chargeable period is contained in the statement or return, and (II) the repayment treated as claimed, if due - (A) would arise out of the assessment to tax, made at the time the statement or return was furnished, on foot of the statement or return, or (B) would have arisen out of the assessment to tax, that would have been made at the time the statement or return was furnished, on foot of the statement or return if an assessment to tax had been made at that time,

(ii) where all information which the Revenue Commissioners may reasonably require, to enable them determine if and to what extent a repayment of tax is due to a person for a chargeable period, is not contained in such a statement or return as is referred to in subparagraph (i), a claim to repayment of tax by that person for that chargeable period shall be treated as a valid claim when that information has been furnished by the person, …”

(2) Subject to the provisions of this section, where a person has, in respect of a chargeable period, paid, whether directly or by deduction, an amount of tax which is not due from that person or which, but for an error or mistake in a return or statement made by the person for the purposes of an assessment to tax, would not have been due from the person, the person shall be entitled to repayment of the tax so paid.

(3) A repayment of tax shall not be due under subsection (2) unless a valid claim has been made to the Revenue Commissioners for that purpose.

(4) Subject to subsection (5), a claim for repayment of tax under the Acts for any chargeable period shall not be allowed unless it is made -...

(c) in the case of claims made -

…

(ii) in relation to any chargeable period beginning on or after 1 January 2003, within 4 years, after the end of the chargeable period to which the claim relates”.

(5) …

(6) Except as provided for by this section, section 865A or by any other provision of the Acts, the Revenue Commissioners shall not -

(a) repay an amount of tax paid to them, or

(b) pay interest in respect of an amount of tax paid to them”.

The High Court’s jurisdiction in an Appeal by way of Case Stated

13. Mara (Inspector of Taxes) v Hummingbird Limited [1982] ILRM 421 at p.426 confirmed that on a case stated, the Courts should only set aside findings of primary fact if there was no evidence to support them. However, conclusions or inferences are mixed questions of fact and law. The Court may, if necessary, reverse such findings based on the interpretation of documents, as it is just as well placed to determine the meaning of documents. It should also set aside any conclusions from primary facts which no reasonable commissioner could draw, on the ground that he must be assumed to have mis-directed himself as to the law or made a mistake in reasoning. Finally, if his conclusions show that he has adopted a wrong view of the law, they should be set aside. However, the conclusions should not be set aside unless based on a mistaken view of the law or a wrong interpretation of documents, or unless no reasonable commissioner could draw such inferences from the primary facts. In Mac Cárthaigh, Inspector of Taxes v Cablelink Limited [2003] 4 IR 510 the Supreme Court considered the scope of an appeal by way of Case Stated from the Tax Appeals Commission.

Fennelly J, having cited Hummingbird, noted Blayney J’s summary in Ó'Culacháin v McMullan Brothers Limited [1995] 2 IR 217: “1. Findings of primary fact by the Judge should not be disturbed unless there is no evidence to support them.

2. Inferences from primary facts are mixed questions of fact and law.

3. If the Judge's conclusions show that he has adopted a wrong view of the law, they should be set aside.

4. If his conclusions are not based on a mistaken view of the law, they should not be set aside unless the inferences which he drew were ones which no reasonable judge could draw.

5. Some evidence will point to one conclusion, other evidence to the opposite; these are essentially matters of degree and the Judge's conclusion should not be disturbed (even if the Court does not agree with them, for we are not re-trying the case) unless they are such that a reasonable judge could not have arrived at them or they are based on a mistaken view of the law”.

Irish Cases dealing with the State’s obligation to repay tax overpayments

14. Two Irish authorities were cited dealing with the State’s obligation to repay tax overpayments, although both predated the current statutory provisions: a. In Dolan v Nelligan [1967] IR 247 (“Dolan”) an importer challenged the rate of import duty imposed him. The Supreme Court agreed, finding that the overpayments made by the importer were a result of the erroneous interpretation of the law by customs authorities and that if the importers claim had been considered under s.25 of the Customs Consolidation Act 1876 then the customs authorities would be under a duty to return the overpayments once the conditions of the section were satisfied. b. In Murphy v AG [1982] IR 241 (“Murphy”) a married couple successfully challenged provisions of Irish tax law which treated a wife’s income as part of her husband’s (which created a higher tax liability than for unmarried co-habitants) on the basis that it was an “invidious discrimination” against married couples, contrary to Article 41 of the Constitution.

Principles of Revenue Law

15. As Charleton J noted in Menolly Homes v Appeal Commissioners [2010] IEHC 49 (“Menolly Homes”) at para. 12: “Revenue law has no equity. Taxation does not arise by virtue of civic responsibility but through legislation. Tax is not payable unless the circumstances of liability are defined, and the rate measured, by statute. To import into taxation legislation any notion of general obligation is to return from the modern concept of precise obligation pursuant to defined legal rules into an era when feudal ties governed the relationship of those who served a monarch or lord and were in turn entitled to protection. How tax becomes payable, what exceptions avoid general liability as and when these genuinely arise, when payment is due, what records have to be maintained by taxpayers, which levels of taxation are applicable to what transactions or events and how the power of the tax collector is both defined and circumscribed are all precisely defined by modern legislation. In a similar way, what remedy that taxpayer has against a taxation demand is not general but specific. It is cut from the cloth whereby the precise liability is set by statute law and tailored individually by the legislature in the way that suits their perception of how an income tax, a corporation tax, a capital gains or acquisitions tax or a value added tax appeal should be set up as to the scope of appeal, the procedure on that appeal and the remedies available to the appellate body”.

16. Menolly Homes also confirmed that the burden of proof is on the taxpayer in the current context.

17. Kenny Lee v Revenue Commissioners [2021] IECA 18 confirmed that the Tax Appeals Commission’s jurisdiction, and by extension the Court’s, is confined to applying the charging provisions, or time limits, to the facts.

18. In Commissioners for HMRC v Raymond Tooth [2021] UKSC 17 (“Raymond Tooth”) UK HMRC sought to rely on the taxpayer’s submission of an incorrect return to reopen time limits on assessments. However, there were analogies with this case since the issue with the return was due to a revenue software issue - certain fields did not permit certain data to be entered, preventing the correct completion of the form. Noting that the Return should be construed as a whole like any other document, the Supreme Court judgment gave short shrift to Revenue’s contentions. Lord Briggs and Lord Sales observed at paras. 49-50 that: “It almost goes without saying that the meaning of particular words or phrases in a document of any kind is generally to be ascertained by a contextual approach, that is by appraising the critical passage in the light of its context as part of the document read as a whole. There is no reason in principle why the same should not be true of a tax return. But in this respect the sheet anchor of the Revenue’s case was the fact that, as the online tax return form clearly stated, the return would be read upon receipt at the Revenue by a computer rather than, initially at least, by a sentient, literate, human being. Computers, it was said, do not do contextual interpretation, but look at each part of, or box in, the return separately. This is, with respect, a very unattractive argument. A document written in the English language (or any language other than computer language) does not have a different meaning depending upon whether it is read by a human being or by a computer. A choice by the recipient of such a document to have it machine-read cannot alter its meaning”.

The Interpretation of Legislation, particularly tax legislation

19. McDonald J summarised the principles on the interpretation of tax legislation at paragraph 74 of his decision in Perrigo Pharma International DAC v McNamara [2020] IEHC

552 (“Perrigo”): “If the words of the statutory provision are plain and their meaning is self-evident, then, save for compelling reasons to be found within the Act as a whole, the ordinary, basic and natural meaning of the words should prevail;

Nonetheless, even with this approach, the meaning of the words used in the statutory provision must be seen in context. McKechnie J. (at para. 63) said that: ‘… context is critical: both immediate and proximate, certainly within the Act as a whole, but in some circumstances perhaps even further than that’; Where the meaning is not clear but is imprecise or ambiguous, further rules of construction come into play. In such circumstances, a purposive interpretation is permissible; Whatever approach is taken, each word or phrase used in the statute should be given a meaning as it is presumed that the Oireachtas did not intend to use surplusage or to use words or phrases without meaning. In the case of taxation statutes, if there is ambiguity in a statutory provision, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language; Nonetheless, even in the case of a taxation statute, if a literal interpretation of the provision would lead to an absurdity (in the sense of failing to reflect what otherwise is the true intention of the legislature apparent from the Act as a whole) then a literal interpretation will be rejected. Although the issue did not arise in Dunnes Stores v. The Revenue Commissioners, there is one further principle which must be borne in mind in the context of taxation statute. That relates to provisions which provide for relief or exemption from taxation. This was addressed by the Supreme Court in Revenue Commissioners v.

Doorley [1933] I.R. 750 where Kennedy C.J. said at p. 766:41

‘Now the exemption from tax, with which we are immediately concerned, is governed by the same considerations. If it is clear that a tax is imposed by the Act under consideration, then exemption from that tax must be given expressly and in clear and unambiguous terms, within the letter of the statute as interpreted with the assistance of the ordinary canons for the interpretation of statutes. This arises from the nature of the subject-matter under consideration and is complementary to what I have already said in its regard. The Court is not, by greater indulgence in delimiting the area of exemptions, to enlarge their operation beyond what the statute, clearly and without doubt and in express terms, excepts for some good reason from the burden of a tax thereby imposed generally on that description of subjectmatter. As the imposition of, so the exemption from, the tax must be brought within the letter of the taxing Act as interpreted by the established canons of construction so far as possible’.’

20. More recently, the Supreme Court re-examined the issue in Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43; [2022] 2 ILRM 313 (“Heather Hill”), noting (at para. 111) that a provision’s plain meaning, must itself be assessed by looking at the section in context, and having regard to the subject matter and objective of the legislation, rather than applying a dictionary definition out of context. Statutory interpretation is not a question of adopting a literal approach by giving words their plain meaning irrespective of context and purpose, and only adopting a purposive approach if the plain meaning leads to absurdity. Rather, the Court should, even when identifying the plain meaning, have regard to the legislation’s context, subject matter and objective. Murray J noted at para. 111 O’Donnell CJ ‘s observation at para. 7 of The People (DPP) v. AC [2021] IESC 74, [2021] 2 ILRM 305: “if, when viewed in context, having regard to the subject matter and the objective of the legislation, a single, plain meaning is apparent, then effect must be given to it unless it would be so plainly absurd that it could not have been intended”.

21. Mulcahy J applied these principles to a similar provision in Revenue Commissioners v Tobin [2024] IEHC 196 (“Tobin”), the s.955 “full and true” disclosure provisions: “47. Taking that as the meaning of the section when no regard is had to the wider context or purpose of the section, the question then becomes whether, when context and purpose are taken into account, a different interpretation of section 955(2) is necessitated, or, more specifically, whether the respondent’s interpretation, that ‘true’ means, in effect, “genuinely believed to be true” is the correct one. In asking that question, the caveat of Murray J in Heather Hill, cited above, bears emphasising: ‘However - and in resolving this appeal this is the key and critical point - the ‘context’ that is deployed to that end and ‘purpose’ so identified must be clear and specific and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.’

48. Put otherwise, do the context and purpose of section 955(2) compel an interpretation which differs from the apparent meaning of that section. Though the apparent meaning of the section is not without difficulties, I am unable to conclude that the context and purpose of the section require that that interpretation be displaced”.

The Statutory Scheme for the deduction of PAYE income tax

22. Before considering the parties’ submissions, it is important to note the statutory context in relation to the statutory PAYE regime. Although the Appellant noted that there was an agreed witness to guide the court through the Revenue System (ROS) to show the information flows in terms of the Appellant’s taxes, the Respondent objected that the Appellant went beyond the evidence in the case stated in respect of these issues. In any event, it acknowledged that the Court was entitled to have regard to the statutory provisions which were in force at the time and it did not appear to me that there was any real controversy as to what are, essentially matters of public record, having been features of Irish employment and tax law for generations. My understanding is, in broad terms, as follows: a. PAYE is a statutory withholding tax system dating from the 1960’s. It is central to the determination and collection of tax due from employees subject to the regime (including the Appellant). It ensures the payment of the income tax due from, in this case the appellant, by deduction from “Schedule E income” otherwise due to him, in this case his salary. b. Where tax is collected by PAYE deductions at source, individual taxpayers progressively pay tax over the year as they receive their salary etc. The system seeks to ensure that sufficient tax is deducted throughout the year to meet the individual’s annual tax liability, avoiding the year end tax bill experienced by non-PAYE taxpayers. PAYE generally removes the need for formal assessments on salaried employees as, absent complications (such as the refund entitlement due to the Appellant’s working outside the jurisdiction) the PAYE deducted during the year will generally match the annual tax liability. c. The PAYE system does not itself impose any tax charge - it is a collection system. Employers must deduct and remit tax at source from the “Schedule E” payments otherwise due to their employees and complete a return to revenue within fourteen days of each month-end. They must also file an annual return with the Revenue detailing, inter alia, the following information in respect of each employee:

• gross pay

• PAYE tax and PRSI deductions

• PRSA contributions

• Pension contributions by employer and employee. d. The Respondent and the Department of Social & Family Affairs use the Personal Public Service (PPS) Number, a unique identifying number for each individual. At the start of each year, the Respondent issues a Certificate of Tax Credits and Standard Rate Cut off Point in respect of each employee detailing their anticipated entitlements in terms of tax credits and reliefs. If the position changes or the employee the wishes to have the certificate amended during the tax year, he/she can apply and the Inspector may issue a revised certificate. e. The employer must: i. make appropriate deductions from the employee’s pay in accordance with the Revenue RPN;

ii. remit the deductions to the Collector Generals office

iii. review and, if necessary, correct, the Respondent’s monthly summary of payroll submissions to ensure that the monthly returns are correct. iv. make a payroll submission to the Respondent before paying the relevant employee; v. regularly (at least quarterly) check benefit-in-kind calculations (included as notional pay in calculating income tax, PRSI and USC deductions); vi. deduct income tax, PRSI and USC on payments made to employees, directors, and pensioners in accordance with the current RPNs; vii. review each month the Respondent’s summary of the previous month’s payroll information making any necessary adjustments by the 14th day of the current month; viii. remit the deductions - income tax, PRSI (including employer PRSI) and USC - to the Respondent by the due date; ix. request RPNs for new employees and notify Revenue of departing employees;

x. maintain a register of employees

f. notify the Revenue of details of new employees including changes of address.

The Appellant’s Submissions

23. The Appellant submitted that: a. His employer deducted Irish tax from his salary on his behalf. To ensure he paid the correct tax, he was required to lodge returns to Revenue. He duly did so. He had Rental Income and he was registered for Income tax. He provided all material information. On 30 December 2015, he filed an amended return for 2011, within the time limit. b. The Appellant’s PAYE information was furnished and at all times available to the Respondent via the PAYE System. There is “no entirely different taxpayer”. PAYE is simply a withholding tax system whereby the employer deducts income tax from the Appellant’s income and transmits it to the Revenue. Income tax deducted is the Appellant’s tax and in his name. c. The Appellant’s tax advisor (“the Agent”), by utilising My Enquires, was simply assisting Revenue in relation to information Revenue already had. The Respondent is in effect pleading its own failure to retrieve information from its own computer system. Revenue already possesses all tax information on their system in respect of the Appellant. There is no issue of Revenue requiring information - they had such information and it is unreasonable for them to contend otherwise. d. The amended return included all information Revenue could reasonably require because the Revenue could marry the return to the taxpayer’s PAYE information on their own system. It is routine in tax compliance processes, for the Revenue to check tax returns against information within its PAYE system and it would be surprising if it did not do so. e. The Appellant’s employer deducted full Irish tax from his salary and remitted it to the Respondent through PAYE. Because the Appellant undertook so much work abroad, he was not Irish Tax Resident in the relevant year. Accordingly, most of his employment income was not subject to Irish tax and he was entitled to a refund. He filed the necessary file Form 11, including details of Schedule E income that was taxable in Ireland.

f. There is no statutory definition of what constitutes a “true and full” return. However, one would expect the taxpayer to disclose all income and relevant details of tax credits, deductions, allowances, and reliefs. The phrase “valid claim” is central to s.865. Revenue Guidance states that a valid claim is one: “where the Revenue Commissioners have been provided with all the information to enable them establish the extent of the overpayment.” g. The Appellant had to file the Form 11 through ROS (although the Respondent noted that the use of ROS was only mandatory for later years).

His advisor perforce entered an incorrect figure in the Return because the Respondent’s Form 11 would not permit the entry of the correct figure in the appropriate field. The fault lay with the ROS automatic correction mechanism, a Revenue designed feature intended to prevent the entry of apparently anomalous or erroneous data which had unintended consequences on this occasion. The Respondent’s form did not allow the correct figure to be entered because, exceptionally, it would have exceeded the Irish income figure. As a work-around, the Agent inserted a “plug figure” of 10 cents less than the income, being the highest figure which ROS would permit him to enter. h.

The block on entering the correct figure was a systems weakness with the Respondent’s own system. The Respondent has since remedied the issue. i. In any case, Revenue had all information required. The return confirmed the Irish Schedule E income figure (€8,642) - the operative figure confirming his taxable income in Ireland. The revenue had access to the PAYE Income in the employer’s Form 11 and it knew how much tax had been deducted by the employer from the Appellant’s salary. j. Section 865 deals with the repayment of overpaid tax. In general, taxpayers are entitled to such refunds.

To claim them, they must amend their tax return, in accordance with s.959V, to correct the error or mistake. A repayment is only due when a valid claim is received within the stipulated period. k. Section 865 (3A)(a) authorises the Revenue Commissioners to make refunds “where, on the basis of the information available to them, they are satisfied that the tax so deducted, and in respect of which the person is entitled to a credit, exceeds the person’s liability for that year”. l. The Revenue Guidance offers the following commentary: “However, the Revenue Commissioners may, in the absence of a valid claim, repay tax deducted under PAYE in a case where they are satisfied that tax has been overpaid. [This does not apply in the case of Self-Assessment taxpayers with PAYE income as they continue to have to make a claim for any overpaid tax.” m.

The Appellant accepts that as a self-assessed taxpayer he was required to make a claim (and duly did so). However, it is interesting that the PAYE system allows for an automatic tax repayment in certain circumstances, obviously where the Revenue have sufficient information through the PAYE system. n. There is extensive Irish jurisprudence in respect of the taxpayers’ right under restitutionary principles to repayment of tax overpaid due to mistake of law or duress. Given the inequality between the State and citizen, the payment (which was made by the employer under the statutory PAYE scheme, not by the Appellant himself) could not be regarded as voluntary, a further basis for invoking the restitutionary jurisdiction.

Irish courts have interpreted these rules expansively to attain substantive justice. These cases combine public and private law elements and Ireland’s distinctive constitutional jurisprudence may justify a different approach to England. Dolan and Murphy are examples of the Irish courts’ liberal approach to facilitate recovery of overpaid taxes. The right to restitution from the State is recognised as a constitutionally protected property right per Re Article 26 and the Health (Amendment) (No.

2) Bill 2004 [2005] 1 IR 105. o. Revenue is effectively barring recovery by pleading its own error to justify unjust enrichment. Its retention of tax overpaid due to their own shortcomings is not supported by the authorities dating back to Justinian in 565 AD. p. In this case the Respondent had all information, including full details of the tax paid the Appellant. The information available to it included the PAYE system where the employer submits income tax on behalf of and in the employee’s name with corresponding information and the Appellant’s Form 11 submission which confirmed the portion of Sch E income that was taxable in Ireland. q.

The UK Supreme Court judgment in Raymond Tooth supports the view that Revenue cannot hide behind the computer in this case and that the Return should be construed as whole like any other document. Construing the return filed by the Appellant in context, it was obvious that the tax paid figure in the return at 10 cents less than income (equating to a tax rate of 99.99% was incorrect). When reviewed and cross checked against Revenue’s PAYE records for the Appellant, it should have been evident that a refund was due, there was no information deficit.

The tax refund is due to Appellant as of legal right.

The Respondent’s Submissions

24. The gist of the Respondent’s submissions before me was that: a. An amended return was submitted on the Appellant’s behalf on 30 December 2015, following which the Respondent issued an amended assessment on 6 January 2016 in accordance with the return submitted on the Appellant’s behalf, providing for a refund of €15,109.64 on that basis, which was duly paid.

b. On 22 December 2016, in the course of a claim for repayment of 2012 income tax, the Agent revived the issue of the 2011 overpayment, emailing to say that the 2011 return understated the PAYE income deducted. A Notice of Amended Assessment to income tax for 2011 issued on 24 February 2017, reflecting the €32,251.83 overpayment. However, the claim was outside the s.865 time limit. The Appellant had not included the correct figure for income tax deducted at source in the return. A self-assessment taxpayer claiming repayment of income tax must provide the necessary information on the return itself; it was not sufficient that the information was available on PAYE returns from his employer. c. The Commissioner determined that it was an express condition of s.865(1)(b)(i) that a taxpayer seeking repayment provide “all information” that the Respondent reasonably requires to establish whether an overpayment has occurred and if so, the extent of the overpayment, and must provide it “in the statement or return” furnished by the taxpayer (para. 25 of the Determination). There was no onus on the Respondent to cross-reference the return against PAYE returns, so the Revenue did not receive all information it reasonably required to establish the entitlement to and extent of the repayment. d. A valid repayment claim can be made in two ways. The person may furnish a statement or return with all required information (s.865(1)(b)(i)). Alternatively, they may furnish a statement or return and then supplement it with any further required information, in which case a valid claim will be deemed to be made when the further information is provided. The advisor’s 22 December 2016 My Enquiries message shows how such further information could be provided. e. Section 865 (1)(b)(ii) expressly defines a valid claim as being one in which:

“all the information which the Revenue Commissioners may reasonably require to enable them determine if and to what extent a repayment of tax is due to the person for that chargeable period is contained in the statement or return …, a claim to repayment of tax by that person for that chargeable period shall be treated as a valid claim when that information has been furnished by the person”. f. The wording is clear. All reasonably required information must be furnished, either in the return or separately furnished by the person. In this case, a credit was sought by the appellant for tax deducted and remitted by his employer.

It is reasonable for the Revenue Commissioners to require the taxpayer to include in the statement or return (or otherwise separately furnish) the amount of tax deducted and remitted by his employer, when claiming a credit under s.997. g. The Appellant’s submission that “all information” in s.865 should be interpreted to exclude information available to the Revenue Commissioners from returns furnished by the taxpayer’s employer under the PAYE system, effectively meant interpreting the provision to cover a situation where information is included which, if compared by the Respondent to other information furnished by another taxpayer (the employer), would flag to the Respondent that information furnished by the taxpayer himself must be incorrect.

This would put an onus on the Revenue Commissioners to compare the taxpayer’s statement or return against other information furnished by other taxpayers (such as employers) which is not consistent with the ordinary meaning of the words used (“all information” and “in the statement or return”). h. Even taken in context and in light of the subject matter and objective of the legislation, the intent is clear: to claim a refund, the taxpayer must identify and furnish the information which justifies the repayment. In this case, a credit was sought for tax deducted by the employer.

Therefore, the amount of tax deducted and remitted by the employer was reasonably required by the Revenue Commissioners to determine whether a credit applied which would give rise to a repayment, and how much that repayment might be. i. While the taxpayer might be aggrieved by the failure of the Revenue Online System to accept his Form 11, the problem arose because the Agent sought to amend the self-assessment by submitting a pdf return which included an incorrect figure for the tax deducted and remitted by the employer. The accompanying email message failed to flag the issue. j.

The Appellant may not rely on evidence beyond that contained in the Case Stated and the Determination. His description of the PAYE system goes beyond the evidence at hearing and in the Case Stated although it is accepted that s.865 can be interpreted in light of the statutory context, including statutory PAYE provisions, i.e. the applicable version of Chapter 4 of Part 42. k. Applying Heather Hill, having regard to the statutory PAYE regime, there is no clear and specific purpose, and no statutory context, of that regime which would displace the ordinary meanings of “all information”, “reasonably require”, “contained in the statement or return” and “furnished by the person” in the s.865 definition of “valid claim” so that a taxpayer, furnishing incorrect information in a return without flagging the issue, could be considered to have made a valid claim. l.

The Appellant was not obliged to file the amended return through ROS. He was not filing a tax return but was amending the return he filed in November 2012. The mandatory e-filing obligation did not apply to the Appellant’s amendment of his 2011 return - he could have amended it by hard copy or by emailing a form amended by hand.4 m. In summary, there was no error of law. The Commissioner correctly found that no valid claim had been made on 30 December 2015. The online return contained incorrect information without any expression of doubt to flag this.

The taxpayer did not furnish all information reasonably required.

Analysis

25. There is no suggestion that this taxpayer dishonestly sought to mislead or withhold information or to present false information so as to reduce his tax exposure or to obtain a refund he did not deserve; to the contrary, the issue arises in circumstances where the provision of the data which, according to the Respondent he was required to provide, would have undoubtedly been in his interest and the issue that arose was outside, or partially outside, his control and partly the Respondent’s responsibility.

26. There is no controversy as to the fact of the overpayment or the Appellant’s entitlement to a refund save for the issue as to whether a valid claim was submitted within time. Since the issue was at least partially caused by the flawed design of the Revenue form and, more importantly, since the figure deducted by the Appellant’s employer from his salary was already known to the Revenue at all relevant times, the Appellant says it would be unfair if his statutory entitlement to a substantial refund was jeopardised by his failure to tell the Revenue something they already knew. However, the Respondent says that that is the effect of the legislation. Before addressing the question of statutory interpretation certain observations may be apposite.

Although general mandatory e-filing was introduced by the Tax Returns and Payments (Mandatory Electronic Filing and Payment of Tax) Regulations 2014, it only applied to later tax periods.

27. Firstly, there has been no application to admit new evidence or to amend the Case Stated. I am confined to consideration of facts and matters as set out in the Case Stated. The Case Stated is not a re-hearing, but an enquiry into whether the Commissioner took a wrong view of the law, or drew inferences from the facts that no reasonable commissioner could draw.

28. While these points do not affect my decision, I am satisfied on the basis of undisputed evidence and the Commissioner’s findings on contentious issues that: a. The amended return was submitted on 30 December 2015, the eve of the statutory deadline, leaving no room to identify and address any issue. Ideally, last minute tax (or legal) filings should be avoided, if possible, to allow for complications. b. I accept the Respondent’s submissions that it may not have been obligatory for the refund claim to have been submitted online, or exclusively online. That said, even if it only technically became mandatory in respect of later tax years, the Respondent would presumably accept that it has actively encouraged online filing for many years, so the Appellant can scarcely be faulted for filing online, particularly since his Agent seems to have been under the impression that that was the correct route. c. At the relevant time (and, happily, the Respondent has since remedied the problem) the design of the ROS form – for which the Revenue is responsible – was flawed to the extent that it did not permit the entry of the correct data. Accordingly, the Revenue form prevented the direct entry of the correct figure in the most relevant and applicable field. Thus, the Revenue bears some responsibility for the issue. d. The Agent entered a “tax paid” figure which was only marginally less than the Appellant’s taxable income figure, being the highest figure he could enter in the field, but still less than the true figure. (I consider below whether the correlation between the two figures should have put the Revenue on notice of an anomaly, a puzzle which could have been quicky solved by recourse to PAYE data).

e. Fault is shared. Notwithstanding the flaw in the Respondent’s form, workarounds were available – the Appellant could have included text highlighting the issue in the form’s“expression of doubt” field. He sought to do so but, for whatever reason, the entry did not appear in the version actually transmitted. He could have noted the issue in a covering email or in a separate letter. Alternatively, he could have immediately employed the route he employed a year later, explaining the issue in the “My Enquires” field in ROS. Any of those routes could have been addressed the issue caused by the flaw in the design of the form.

29. Accordingly, I would only partly agree with the Appellant’s submission that the State was primarily responsible for the mistake of law as to the tax liability. It was responsible for the unfortunate design of the form; however, there were workarounds as I have noted. There is more force in the submission that the “missing information” was entirely within the Revenue’s knowledge via PAYE records to which it might reasonably have been expected to have regard when determining the appropriate refund following receipt of the amended return. Both parties share responsibility for the circumstances which led to the lower refund being approved on the basis of an incorrect “tax paid” figure. However, my role is not to apportion responsibility as if, for example, I was assessing the respective fault of joint tortfeasors. I must determine whether a valid claim was submitted. If so, the refund is payable; if not, then the Revenue are neither obliged nor permitted to pay it.

30. The terms of the various statutory provisions and the authorities dealing with statutory interpretation and with my role on a case stated are detailed above and are largely uncontroversial. My views on the particular provision, s.865 are as follows: a. Subsection (6) prohibits any tax refunds tax unless a “valid claim” has been made within the prescribed period (and there is no issue with the reckoning of that period, or the 31 December 2015 deadline).

b. Whether the amended return constituted a “valid claim” depends on whether, as the Respondent (and the Appeals Commissioner) concluded, the absence of the correct “tax paid” figure in that return, meant that the Appellant had failed to provide “all necessary information” which was “reasonably required” by the Respondent to determine the Appellant’s entitlement to a refund. If the Respondent’s interpretation is correct, the appeal must fail, because the correct figure was only submitted on the Appellant’s behalf almost a year later, in the course of preparation of the following year’s return. c. On the other hand, if the Appellant is correct, and the amended return contained all necessary information reasonably required by the Respondent and thus constituted a valid and timely claim, the refund would be payable. d. The essential issue is whether the obligation to provide “all necessary information” required the taxpayer to furnish information already known to the Respondent, including furnished by the Appellant’s employer through the PAYE system. There was no suggestion that the actual figure deducted by the employer from the Appellant’s salary in the relevant period was not already known to the Respondent, in its possession and readily available to it, nor would it be conceivable that the Respondent should advance such a case in view of the prescriptive requirements of the PAYE regime. e. Subsection (2) confirms the taxpayer’s right - subject to that section - to claim a refund of tax paid, directly or by deduction, which was not due or which, but for an error or mistake in a return or statement made by the person for the purposes of an assessment to tax, would not have been due from them. However, subsection (3) stipulates that no such repayment will be due “unless a valid claim has been made to the Revenue Commissioners for that purpose”.

f. Subsection (1)(b) defines a “valid claim”: “(i) … a statement or return shall be treated as a valid claim in relation to a repayment of tax where - (I) all the information which the Revenue Commissioners may reasonably require to enable them determine if and to what extent a repayment of tax is due to the person for that chargeable period is contained in the statement or return, and..,

(ii) where all information which the Revenue Commissioners may reasonably require, to enable them determine if and to what extent a repayment of tax is due to a person for a chargeable period, is not contained in such a statement or return as is referred to in subparagraph (i), a claim to repayment of tax by that person for that chargeable period shall be treated as a valid claim when that information has been furnished by the person, …”

(4) Subject to subsection (5), a claim for repayment of tax under the Acts for any chargeable period shall not be allowed unless it is made -...

(c) in the case of claims made -

…

(ii) in relation to any chargeable period beginning on or after 1 January 2003, within 4 years, after the end of the chargeable period to which the claim relates”.

(5) Where a person would, on due claim, be entitled to a repayment of tax for any chargeable period under any provision of the Acts other than this section, and –

(a) that provision provides for a shorter period, within which the claim for repayment is to be made, which ends before the relevant period referred to in subsection (4), then this section shall apply as if that shorter period were the period referred to in subsection (4), and

(b) that provision provides for a longer period, within which the claim for repayment is to be made, which ends after the relevant period referred to in subsection (4), then that provision shall apply as if the longer period were the period referred to in subsection (4).

(6) Except as provided for by this section, section 865A or by any other provision of the Acts, the Revenue Commissioners shall not -

(a) repay an amount of tax paid to them, or

(b) pay interest in respect of an amount of tax paid to them”.

31. The stipulation in subsection (3) to “all the information…” must be “contained in the statement or return” appears to support the Respondent’s position. However, that obligation is significantly qualified. The return need only include information “which the Revenue Commissioners may reasonably require to enable them determine if and to what extent a repayment of tax is due to the person for that chargeable period” is contained in the statement or return” The Appellant says that the Respondent could not “reasonably require” information which was already in its possession, including via the PAYE scheme – it had received independent confirmation of the amount of tax actually deducted from his salary on his behalf – indeed the employer would have remitted the payments in question to the Respondent. In terms of the context, plain words and presumed object of the section, one could make a plausible case for either interpretation as being consistent with the statutory framework and objects.

32. I agree with the Appellant’s submission that, in the absence of a statutory definition of what constitutes a “true and full” return, one would expect that all income to be disclosed along with other necessary details of credits, deductions, allowances, and reliefs, at least where this information was not already readily available and known to the Respondent. The Respondent insisted that the onus was on the Appellant to claim a refund and, in that context, to provide all information which Respondent required to assess his entitlement. The Respondent was not obliged to have recourse to information from other sources and the Appellant could not complain about the fact that his claim was duly processed on the (incorrect) assumption that all information he furnished was correct.

33. In considering the legislation in its statutory context in line with the principles laid down in, inter alia, Heather Hill, Perrigo, Tobin etc. the reason for requiring the taxpayer to provide all “necessary information” seems self-evident. The taxpayer can usually be expected to have more information than the revenue as to their income etc. so it is appropriate to require them to provide all such necessary information to allow the revenue to calculate the correct refund. The statutory obligation is thus intended to address the inherent asymmetry of information between the Respondent and the taxpayer.

34. However, any such asymmetry of information is greatly reduced in respect of PAYE taxpayers because the statutory regime not only requires employers to act on the Respondent’s behalf, collecting tax due from the employee by deducting it from their gross pay and remitting it to the state; it also places a statutory obligation on the employer to provide detailed information in respect of the employee including their salary, the tax deducted and other information required by the Respondent in order to determine the tax liability and refund entitlements of the individual employees (as well as those of the employer itself). Accordingly, the PAYE legislation requires employers to confirm to the Respondent detailed information about their employees’ income and tax affairs, including how much tax is deducted from each employee’s pay and remitted to the Revenue. There is no suggestion but that that information was readily available to the Respondent, including through the PAYE system. It would be extraordinary, and contrary to the presumed statutory intention, if that was not the case and if the Respondent was at any stage unaware of how much tax had been paid by or on the Respondent’s behalf in the particular tax year, by PAYE or otherwise. The Appellant accepts that he was obliged to confirm the correct figure for his Schedule E income, as that figure would not have been apparent from his employer’s returns, being dependent on his time outside the State during the relevant period. The issue is whether the Respondent also reasonably required him to confirm the actual tax he had paid notwithstanding the fact that it knew or should have known the actual tax paid, including by way of PAYE deductions. I am not convinced that it did reasonably require such information given it had the figure for his PAYE deductions from an authoritative source and, even more importantly, it had of course actually received payment via the PAYE scheme.

35. Notwithstanding the Commissioner’s findings, it would be remarkable if the Revenue failed to cross reference such amended returns to corresponding PAYE records to check that tax had been duly received by the Respondent, particularly given the surprising symmetry between the tax paid and taxable income figures as per the submitted form, an issue to which I will return. The Respondent was studiously reticent on this point, maintaining that required information had to be furnished by the taxpayer even if it was already in the Respondent’s possession but without explaining whether Revenue had recourse or would normally have recourse to PAYE data in assessing such returns.

36. It would be concerning if the Revenue failed to have regard to information readily available in respect of an employee from the PAYE system when determining the individual’s tax liabilities and refund entitlements. In my view, the onerous statutory obligation placed on employers to provide so much detail in respect of employees subject to PAYE is placed on them for a reason, namely, to ensure that the Respondent can avail of that information when determining the employee’s tax liabilities and entitlements. This makes it difficult to understand the contention that the Revenue needed confirmation of the tax paid to calculate the refund. It already knew the position, including the figure collected via the PAYE system. It was fully equipped to determine if and to what extent the Appellant enjoyed a statutory entitlement to a tax refund for the relevant period. While the Respondent might prefer to receive the information directly from the taxpayer in the form, it was not necessary that it should obtain details of the PAYE deductions as it had that information. The only information that was necessary was information which was not already in the Respondent’s possession. In my view, as of 30 December 2015 the Respondent had all information that it required to establish the full extent of the overpayment for the 2011 tax year. It follows that the amended return constituted a valid claim and the Appellant is entitled to a refund.

37. The Respondent submitted (and the Commissioner agreed) that the Respondent was not under a duty to the Appellant to cross-reference his Form 11 return with the PAYE records but the existence of any such duty is not the question. The issue is the application of a statutory test - whether it can truly be said that it was “necessary” for the Appellant to provide confirmation of the amount of tax remitted to the Revenue when it already had that information to hand through, inter alia, the PAYE returns. There is no controversy as to the fact that the employer would have had already:

(a) confirmed the figure in question in its statutory PAYE returns; and

(b) actually remitted the tax to the Revenue (to be credited against the Appellant’s tax liabilities since it was he, not his employer, who was paying the tax). The Revenue must surely have fully appreciated that it had the PAYE deduction figure at its fingertips from the employer’s returns (and also, presumably, from revenue’s own records of the allocation of PAYE received). In those circumstances, although the form might routinely ask taxpayers to confirm the tax paid, there is no evidence as to why it was necessary that that information should once again be provided if it was already in the respondent’s possession.

38. For completeness I should note my difficulty with one conclusion underpinning the Determination. The figures shown in the return for taxable income and for PAYE deductions were, surprisingly, virtually identical. As the Appellant’s submissions noted, this would imply that the employer had been deducting PAYE at a rate of approximately 99%. The Commissioner concluded that the amended return was not inherently unusual or anomalous, but he did not explain that finding. I do not understand the basis for that conclusion. I am as well placed to interpret the return as the Commissioner. As Lord Briggs and Lord Sales observed in Raymond Tooth, taxpayers are entitled to assume that the return would be read by “a sentient, literate, human being”. It should surely have been obvious to such a person on a cursory review of the return that there was an apparent anomaly if the two figures were identical. In those circumstances the Respondent was, or should have been on enquiry, an enquiry readily addressed by recourse to the PAYE data which would have confirmed the figure which the employer said it had deducted from the salary and also the figure which the Respondent actually received, were almost the same figure. In a private law context, one would describe the Respondent as clearly being on constructive notice of the true position.

39. I agree with the submission that, by utilising My Enquires, the Agent was simply referencing information the Respondent already had. It is a matter for the Respondent whether it used that information, but it can scarcely deny its knowledge of the amount of tax received from the Appellant including via the PAYE scheme. I agree with the Appellant’s observation that the Respondent cannot rely on its own failure to retrieve information from its own computer system. It knew it had access to the PAYE information. There is no issue of it requiring further information.

40. I also note that the Respondent’s interpretation (ignoring information available to it in respect of self-assessed PAYE taxpayers when determining what constituted “necessary information”) would be inconsistent with the approach adopted in respect of other PAYE taxpayers as reflected in the Revenue Guidance. It seems to me that in interpreting the legislation in accordance with principles of constitutional fairness I should avoid an interpretation which could unnecessarily, arbitrarily or unfairly discriminated between different classes of PAYE taxpayers for no obvious reason.

41. In construing s.865 is important to note that the definition of “valid claim” does not extend to all information which the Respondent may require. The definition is limited to the information which they "reasonably require". That qualification imposed by the Oireachtas is significant. The Respondent’s (and the Determination’s) construction of the definition of “valid claim” has focused overwhelmingly on the obligation for the return to contain all information which the Respondent may require. However, it is equally essential to have regard to the reasonableness of the requirement particularly where the information was already in the Respondent’s possession and readily available to it. There is no satisfactory evidence before the court in respect of whether the Respondent adopted the obvious expedient of checking what tax had actually been remitted in respect of the employee (or, if not, why it failed to do so).

42. I would have taken a different view if the information required to determine the refund entitlement was held by the Respondent in an entirely independent context and there was no obvious reason for the revenue to consider it when assessing the refund entitlement. For example, the Revenue would not be obliged to undertake a forensic exercise in respect of every return, comparing every return to counterparties’ returns. Here, however, there was every reason to check the PAYE records, because an employee subject to PAYE deductions was claiming a refund. The calculation of that refund depended on checking what tax had been paid via the PAYE system. The necessary information was certainly and very obviously in the respondent’s possession. It can hardly be controversial to note that one of the primary objects of the PAYE legislation is to ensure the efficient collection of tax from employees through the medium of the employer. To that end, the law compels the employer to provide detailed information to the Respondent in respect of each PAYE employee, including details of income salary and tax paid. The purpose of obtaining that information is threefold; (a) to use the PAYE system to collect from the employees the tax due on salaries etc; (b) to ensure that all such tax deducted is expeditiously remitted to the Revenue; and (c) to provide the Revenue with information as to the employee’s salary etc. so that they can determine their tax liabilities and entitlements (as well as those of the employer). Accordingly, the statutory intention of the sophisticated and complicated PAYE statutory regime must surely be that the Revenue can have appropriate regard to information provided in respect of employees through their employer’s PAYE returns when assessing the employee’s tax liabilities and entitlements. The only missing information was readily available to the Respondent via PAYE.

43. I accept the force of the Commissioner's observation that the Respondent was entitled to expect that details provided by the taxpayer in its 13 December 2015 Return were correct and that they did not overstate the taxpayer's liability by way of understating the PAYE tax deducted. An irony of this case is that while taxpayers can be criticised for understating their liabilities or for providing information which would have that effect, this taxpayer is accused of the opposite “sin”, against his own interest. As a result of the technical glitch in the revenue form, it is suggested that he understated the extent to which he was entitled to a refund and only confirmed the correct position outside the mandatory period. However, the Commissioner does not in my view have regard to the extent to which the inaccuracy and information provided was due to a flaw in the design of the revenue form which, presumably, the revenue was or should have been aware of.

44. I accept the Appellant’s submission that the fact that refunds can be granted by the Revenue to non-self-assessed taxpayers in the absence of a claim or return (as confirmed by revenue guidance) demonstrates Revenue’s ability to access the employee’s PAYE returns. It follows that it was equally open to the Revenue in this instance to have regard to the Appellant’s PAYE information when considering his refund entitlement (even though he was a selfassessed PAYE taxpayer and thus required to submit a return). It seems indisputable that the respondent could have done so if it wished and that it knew that it had such information. Accordingly, because the figure for the deductions from the Appellant’s salary was known and readily available to the respondent through the PAYE system it was not necessary for the employee to furnish details of that figure (even if the respondent found it expedient for him to do so). Necessity and convenience are different concepts.

45. As Raymond Tooth confirms, the return should be construed like any other document. When that approach is adopted, in considering whether the employee has provided the revenue with all necessary information, the plain meaning of the phrase in the statute would suggest that information which is already available to the revenue (having been furnished by the individual's employer with reference to his earnings and tax deductions) could not be regarded as information which was it was "necessary" that he should also furnish. My interpretation is informed by the approach to statutory interpretation outlined in Heather Hill, Perrigo, and Tobin. It seems to me that the plain words of the provision read in context would suggest that the taxpayer need only provide information which is reasonably necessary. There is nothing in s.865 which suggests to me that the return must be a stand-alone document or that the taxpayer must duplicate information which is (a) uncontroversial (b) known and readily available to the Respondent, being information which it was reasonable to expect the Respondent have regard to before approving a refund.

46. Whether or not the Respondent chose to have regard to such information, the detail of the Appellant’s actual tax payments was readily available to it having been provided by the Appellant's employer pursuant to a compulsory statutory scheme expressly designed to collect such tax from individuals such as the Appellant and also to collect information with regard to, inter alia, such individuals’ earnings and deductions. Since the information was or should have been known to the Respondent, I struggle with the suggestion that it was information which it was "necessary" that he should also provide. It may have been helpful for him to do so as the form envisaged but it is the Respondent’s fault that its form did not facilitate the correct entry of the information. But for that glitch in the form, the information would doubtless have been furnished, and no issue would have arisen.

47. Although the figure in the amended return referred to the "tax paid" by the Applicant, both parties’ submissions treated this as synonymous with the PAYE deduction figure - there was no suggestion that there were material tax payments by the Applicant other than via PAYE and; in any event if there had been the details should presumably have been equally accessible to the Respondent - its records should have informed it of the tax paid by the Applicant in the relevant year, by PAYE or otherwise, and the issue was whether the taxpayer was nevertheless required to include the correct figure in his amended return. The Applicant would argue that if the Respondent had checked either figure, it would have immediately confirmed to the Respondent the figure required by way of refund.

48. In its written submissions the Respondent stated that it was reasonable for it to require the taxpayer to furnish the amount of tax remitted by the employer when claiming a credit pursuant to s.997. However, it did not cite authority for that proposition or explain why it was the case in circumstances where the information was, by definition already readily available to the Respondent pursuant to the PAYE scheme.

49. Although not raised in submissions, I have considered whether the reference in s.865(1)(b)(ii) to information being “furnished by the person” implies that all information in respect of a claim must be furnished directly by the taxpayer. I do not think it does. Firstly, s.865 does not say that only information supplied directly by the taxpayer can be considered. Secondly, the effect of subparagraph (ii) is that if a return does not contain all reasonably required information, a valid claim will only be deemed to have been received once the outstanding information has been furnished. However, the subparagraph is simply confirming that a valid claim will be deemed to have been made when and only when all reasonably required information has been furnished. It does not determine what constitutes reasonably required information. It seems to me that the only guidance in respect of that phrase is the reference to all information which the revenue Commissioners may reasonably require to determine whether a payment is due). The section does not expressly indicate whether if they already have the necessary information to enable them to reach such a determination, it must still be furnished by the taxpayer within the prescribed period in order to give rise to a valid claim. It is difficult to avoid the conclusion that, if the respondent already has particular information from an authoritative source, and is aware of that fact, it does not reasonably need to be provided with it in order to assess the taxpayer’s liabilities. The fact that the provision twice uses the phrase quotes “reasonably require" underscores the Oireachtas’ determination to confine the obligation to such reasonably required information.

Responses to Questions of law

50. I would answer the questions of law stated to the High Court as follows- “(a) Did the Commissioner err in his finding that the Appellant failed to provide the Respondent with all of the information it reasonably required to establish his entitlement to the repayment of the sum of €32,251.83 within four years after the end of the chargeable period to which the claimed5 related, namely the tax year 2011?”

Answer: Yes. The Commissioner’s primary findings confirm that the Appellant did in fact provide to the Respondent all information which the Respondent reasonably required to establish his entitlement to the repayment of the sum of €32,251.83 within four years after the end of the chargeable period to which the claimed related, namely the tax year 2011.

“Claimed” should read “claim”. Nothing turns on this.

“(b) Did the Commissioner err in his finding that the claim was outside the time-limit specified for the repayment of tax under s.865(4)?”

Answer: Yes. The amended return submitted on 30 December 2011, within the statutory time-limit, represented a valid claim.

51. Accordingly, I would uphold the appeal by way of case stated. I will list the matter for final orders at the start of the new term on 29 October at 10.00am.

APPEARANCES

Mr. Mark Lonergan BL, instructed by Eamonn J Walsh & Co. Solicitors, for the Appellant. Mr. Kieran Binchy BL, instructed by the Revenue Solicitor, for the Respondent.