High Court dismisses appeal against Tax Appeals Commissioner regarding third-party evidence admission and Charter rights.

THE HIGH COURT

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949AQ OF THE TAXES CONSOLIDATION ACT 1997 (AS AMENDED)

[2025] IEHC 627 Record No.: HR 2024 / 342

BETWEEN:-

PEADAR HAMILL APPELLANT AND

THE REVENUE COMMISSIONERS RESPONDENT

Judgment of Mr Justice Oisín Quinn delivered on the 14 day of November 2025

I. Introduction

1. This is an appeal by way of a Case Stated against a Determination of the Tax Appeals Commissioner (“TAC”) of 4 July 2024 (the “Determination”). The Case Stated seeks the opinion of the High Court on three questions pursuant to section 949AQ of the Taxes Consolidation Act 1997 as amended (the “TCA 1997”). The appeal was heard over the course of a day on 7 November 2025.

2. The three questions are:-

a) Did the TAC fail to protect the Appellant’s rights under Articles 41, 47 and 51 of the Charter of Fundamental Rights of the European Union and thus err in law?

b) Did the TAC err in law in permitting the admission of evidence procured by the Respondent from third parties?

c) Did the TAC fail to correctly apply the principles set out by the CJEU in Glencore?

3. In substance, these questions reflect the claim by the Taxpayer that he was treated unfairly in the process by which the taxation assessments were initially made because he was not provided with documents obtained by the Revenue from various third parties, together with his related complaint that these documents should not therefore have been admitted at the TAC appeal hearing.

II. Background

4. The Appellant (the “Taxpayer”) is a retired farmer. Following an audit, which included a drawn out process over several years which involved obtaining significant documents from various third parties, the Respondent (the “Revenue”) concluded that the Taxpayer had understated his income for the period from 2013-2015 and, in addition, had not charged VAT on agricultural products sold by him in both 2013 and 2015. The total amount assessed for income tax was €247,283.80 and the total amount assessed as due for VAT was €154,427.30.

5. These assessments were appealed to the TAC by the Taxpayer. The appeals were consolidated and were heard over three days on 11 December 2023, 28 May 2024 and 29 May 2024.

6. The Taxpayer gave three different explanations for the discrepancies between the income declared by him and the lodgements that appeared in his various bank accounts. The first was that his only income was from the sale of cattle and a small amount of fertiliser contract work.

The second explanation was that he had allowed his accounts to be used by others. The third explanation was that he was a bulk buyer and distributor of agricultural products for other farmers. In relation to the VAT, the Taxpayer contended that the transactions in question did not attract VAT as in reality they were transactions between another individual to whom the Taxpayer was merely providing “Euro banking facilities” and a UK company.

7. All of the Taxpayers arguments and explanations were rejected by the TAC and none of those conclusions, or the findings upon which they were based, are challenged or appealed by the Taxpayer in the Case Stated.

8. During the appeal the Revenue stated that it had miscalculated the figures due for both VAT and income tax, and the total figures due were consequently reduced to €237,551.48 for income tax and to €126,963.97 for VAT.

9. Aside from those reductions, the appeals of the Taxpayer were rejected and the assessments in those total amounts was upheld.

10. At the conclusion of the appeal hearing before the TAC, the solicitor for the Taxpayer made submissions that the process was legally invalid as documents had been obtained from various third parties to both support the assessments to tax and then to support the Revenue’s position at the appeal, but that these documents had not been disclosed to the Taxpayer during the process prior to the assessments and, in addition, they should therefore have been excluded from the appeal hearing.

11. These arguments were rejected by the TAC in the Determination. In summary, the TAC found firstly that such arguments cannot be considered by the TAC and are more appropriate for a judicial review type challenge to the process. Aside from that, the TAC found that “[i]n any event [the TAC] did not consider that there was any evidence of the [Revenue] acting in a manner that was unfair to the [Taxpayer]”. The TAC also found that the documents in question were ultimately the Taxpayer’s own documents, even if obtained by the Revenue from third parties (for example bank statements from the Taxpayer’s own accounts that he had failed to disclose, or receipts issued by him to third parties). Finally, the TAC found that the process of obtaining the documents from third parties had arisen due to the failure of the Taxpayer to engage with the Revenue during the audit. The findings of fact made by the TAC relating to these issues were not challenged as part of the Case Stated. Nor did the Taxpayer challenge the Revenue’s legal entitlement to obtain the documents in question from the third parties.

III. The TAC’s Determination

(a) The Material Facts

12. The key material facts found by the TAC are not in dispute and are not challenged in the Case Stated. They are set in paragraph 76 of the Determination as follows:-

“76.1. The Appellant is a retired farmer. The Respondent had contended that he had undeclared income for the years 2013 – 2015, and had purchased and sold plastic silage wrap and other agricultural supplies in the State on which he had not charged VAT.

76.2. In 2013, the Appellant had declared income of €101,812.00, but had total lodgements to his three bank accounts of €971,112.73, and total expenditure of €915,697.24.

76.3. In 2014, the Appellant had declared turnover of €140,319.00, but had total lodgements to his three accounts of €481,401.00 and total expenditure of €506,080.26.

76.4. In 2015, the Appellant declared turnover of €251,312.00, but had total lodgements of €544,246.00 and total expenditure of €413,013.28.

76.5. The Appellant provided three different explanations for the difference between his declared income and lodgements to his accounts. The first explanation was that his only income was from the sale of cattle, with a small amount of fertiliser contract work in 2015. The second explanation was that he allowed his bank account to be used by two individuals as a “facilitation arrangement”, from which he obtained no pecuniary benefit. The third explanation was that he was a bulk buyer and distributor of agricultural supplies for other farmers.

76.6. None of the three explanations provided by the Appellant explained the very significant difference between his declared income and the lodgements to his accounts.

76.7. The Appellant had not disclosed two bank accounts held by him (Ulster Bank and NI Bank of Ireland) to the Respondent, despite the Respondent’s request that he provide details of all accounts held as part of its investigation of the Appellant. The Appellant had not cooperated with the Respondent’s investigation, which obligated the Respondent to procure relevant evidence by way of third parties.

76.8. The Appellant’s agent had previously provided a “reconciliation” of his accounts to the Respondent, on which certain items income and expenditure were labelled facilitation expenses and facilitation receipts. However, many of these lodgements and withdrawals were for the Appellant’s own benefit and concerned living/farming expenses. The Appellant was unable to provide an explanation for this.

76.9. The Respondent had contacted nine farmers who stated that the Appellant had supplied wrap and other agricultural supplies to them. Five of them provided receipts/invoices given to them by the Appellant. The Appellant had previously told the Respondent that he did not provide receipts/invoices.

76.10. The Appellant had purchased plastic wrap from Tama UAT Ltd (Tama) in Cork. The wrap was delivered to an address in Northern Ireland that had previously been associated with the Appellant. The wrap was then sold in the State by the Appellant, together with other individuals, for profit. The average price of a bale of wrap sold by the Appellant was approx. €71. The wrap was supplied on a zerorated basis by Tama. The Appellant did not charge VAT on the wrap when he sold it.”

(b) The TAC’s Reasons for rejecting the ‘process’ arguments

13. The TAC set out a number of reasons for rejecting the arguments on behalf of the Taxpayer that the process was unfair and contrary to the Taxpayer’s legal rights. These are contained in paragraphs 93-98 of the Determination:-

“93. The Commissioner acknowledges that the Appellant’s solicitor was placed in a difficult position by the failure of the Appellant to attend the second and third days of the hearing. Nevertheless, the Commissioner considers it notable that, in his cross examination of the Respondent’s witness, the Appellant’s solicitor did not challenge the factual evidence put forward by the Respondent. Rather, his questioning seemed aimed to show that the Respondent had been procedurally unfair to the Appellant in its investigation.

94. The Commission has no supervisory jurisdiction over the Respondent, and does not have any jurisdiction in Irish law to consider allegations of unfairness or errors in procedure on the part of the Respondent in its investigations of taxpayers. In Lee v Revenue Commissioners [2021] IECA 18, Murray J stated that

“The Appeal Commissioners are a creature of statute, their functions are limited to those conferred by the TCA, and they enjoy neither an inherent

power of any kind, nor a general jurisdiction to enquire into the legal validity of any particular assessment… That means that the Commissioners are restricted to inquiring into, and making findings as to, those issues of fact and law that are relevant to the statutory charge to tax. Their essential function is to look at the facts and statutes and see if the assessment has been properly prepared in accordance with those statutes. They may make findings of fact and law that are incidental to that inquiry.”

95. Consequently, the Commissioner is satisfied that he cannot consider allegations of procedural errors or unfairness on the part of the Respondent. Any such allegations could only be addressed by way of judicial review proceedings in the High Court. In any event, the Commissioner did not consider that there was any evidence of the Respondent acting in a manner that was unfair to the Appellant. On the contrary, the Respondent, through Officer Kirwan, carried out an extremely thorough and careful investigation into the affairs of the Appellant, during which it provided numerous opportunities to him to explain his position. Furthermore, in calculating the assessments, Officer Kirwan’s evidence was that he ensured that he did not double count the Appellant’s income, and he allowed deductions expenses that had not been claimed by the Appellant.

96. The Appellant’s solicitor contended that the Appellant was at an “evidential deficit”

compared to the Respondent, and argued that the Appellant’s right to defence under EU law had been breached. In this regard, the Appellant’s solicitor sought to rely on the CJEU’s judgment in Glencore. Firstly, the Commissioner notes that the attempt to rely on Glencore was raised for the first time during closing submissions, and that there was no allegation of a breach of the right to defence at an earlier stage of the proceedings. No good reason was put forward as to why the matter had not been raised previously, and it seemed to the Commissioner that it was an attempt to ambush the Respondent at a very late stage of the proceedings.

97. In any event, Glencore was concerned with allegations of missing trader VAT fraud, while the Respondent countered that there was no allegation of fraud against the Appellant herein. The Commissioner is satisfied that the circumstances under consideration in this appeal, where the Respondent alleged that the Appellant purchased wrap which he then sold without charging VAT, are very different to those pertaining to Glencore. Furthermore, the Commissioner accepts the submission of the Respondent that it was obliged to carry out a wide-ranging investigation into the Appellant’s tax affairs because of his refusal to cooperate with it. The Commissioner is satisfied that the evidence procured by the Respondent, such as the Appellant’s own bank account statements, invoices/receipts provided by him to purchasers of wrap and other agricultural supplies, and copy cheques drawn on his account, were

all items to which the Appellant himself had access. In this regard, the Commissioner notes the comments of Gilligan J in TJ v Criminal Assets Bureau [2008] IEHC 168 (as quoted in Menolly Homes) that “it has to be borne in mind that since an assessment can only relate to the applicant’s own income and gain, any materially relevant matter would have to be or have been in the knowledge and in the power procurement and control of the applicant.”

98. Consequently, the Commissioner does not agree that the right to defence under EU law is engaged in this appeal. Even if it was, given his non-cooperation with the Respondent’s investigation, the Commissioner would not agree that the Appellant’s right to defence had been breached. The Commissioner does not consider that the Appellant was at an “evidential deficit” as claimed by him, in circumstances where he refused to engage with the Respondent, which was therefore obliged to utilise other methods of procuring the evidence to allow it to properly review and analyse the Appellant’s tax affairs.”

(c) The TAC’s Conclusion

14. Having rejected the other arguments on behalf of the Taxpayer based on, inter alia, his explanations for the discrepancies and his arguments about the VAT (see paragraphs 79-92 and 99), the TAC concluded by confirming the Revenue’s assessments, as varied following the amendments due to the Revenue’s miscalculations described above.

IV. The Case Stated

15. The Taxpayer has appealed the Determination by way of a Case Stated and the basis of the appeal has been confined to the ‘process’ arguments.

16. Accordingly, the Case Stated contains the following three questions of law for the opinion of the High Court at paragraph 32 thereof:-

a) Did the TAC fail to protect the Appellant’s rights under Articles 41, 47 and 51 of the Charter of Fundamental Rights of the European Union and thus err in law?

b) Did the TAC err in law in permitting the admission of evidence procured by the Respondent from third parties?

c) Did the TAC fail to correctly apply the principles set out by the CJEU in Glencore?

V. Applicable Legal Principles

(a) General approach of the High Court to reviewing the decisions of the TAC on a Case Stated

17. The overarching principles applicable to a Case Stated pursuant to the TCA are helpfully summarised in the decision of the Supreme Court in Mara v Hummingbird [1982] ILRM 421 where at page 426 Kenny J states in the fourth paragraph thereof as follows:

“A case stated consists in part of findings on questions of primary fact… These findings on primary facts should not be set aside by the courts unless there was no evidence whatever to support them. The commissioner then goes on in the case stated to give his conclusions or inferences from these primary facts. These are mixed questions of fact and law and the court should approach these in a different way. If they are based on the interpretation of documents the courts should reverse them if they are incorrect for it is in as good a position to determine the meaning of documents as is the commissioner. If the conclusions from the primary facts are ones which no reasonable commissioner could draw, the court should set aside his findings on the ground that he must be assumed to have misdirected himself as to the law or made a mistake in reasoning. Finally, if his conclusions show that he has adopted the wrong view of the law or a wrong interpretation of documents, they should not be set aside unless the inferences which he made from the primary facts were ones that no reasonable commissioner could draw.”

(b) General approach to ‘process’ complaints

18. Occasionally complaints are made about the manner in which either the Revenue or the TAC have conducted the process or exercised their statutory powers. The authorities indicate, for the reasons described hereunder, that these type of complaints, if they are to be pursued, should in general be made by way of judicial review proceedings and not through a Case Stated.

19. So, as referred to by the TAC in his Determination at para 94, in Lee v The Revenue Commissioners [2022] 1 IR 388 the Court of Appeal considered the scope of the jurisdiction of the TAC and the scope of the Circuit Court when hearing appeals against assessments to income tax pursuant to respectively sections 933 and 942(1) of the TCA 1997. At paragraphs [33] to [39] Murray J. in Lee considers what are called the older cases, he then turns to consider the newer cases and in particular Aspin v Estill [1987] STC 732, Menolly Homes Limited v Appeals Commissioner and Another [2010] IEHC 49 and Stanley v Revenue Commissioners [2017] IECA 279; [2018] 1 ILRM 397 and states at para 76:-

“[T]he Commissioners are restricted to inquiring into, and making findings as to, those issues of fact and law that are relevant to the statutory charge to tax. Their essential function is to look at the facts and statutes and see if the assessment has been properly prepared in accordance with those statutes. They may make findings of fact and law that are incidental to that inquiry. Noting the possibility that other provisions of the TCA may confer a broader jurisdiction and the requirements that may arise under European Law in a particular case, they do not in an appeal of the kind in issue in this case enjoy the jurisdiction to make findings in relation to matters

that are not directly relevant to that remit, and do not accordingly have the power to adjudicate upon whether a liability the subject of an assessment has been compromised, or whether Revenue are precluded by legitimate expectation or estoppel from enforcing such a liability by assessment, or whether Revenue have acted in connection with the issuing or formulation of the assessment in a manner that would, if adjudicated upon by the High Court in proceedings seeking Judicial Review of that assessment, render it invalid.”

20. This jurisprudence explains how the function of the Appeals Commissioners is essentially restricted to enquiring into and making findings as to issues of fact and law relevant to the statutory charge to tax, albeit noting as Murray J. does in Lee, the possibility that other provisions of the TCA may confer a broader jurisdiction and allowing for requirements that may arise under European Law in a particular case. Nonetheless, the Appeals Commissioners do not have any quasi inherent powers to declare any aspect of the process or outcome of the Revenue Commissioners void or invalid, akin to the powers the High Court might have in a judicial review hearing.

21. However, the precise boundary between a legal point that should properly be made in judicial review proceedings and one that properly arises for consideration by the TAC at an appeal hearing does not require to be determined in this case. That is so as the TAC in this case decided (see para 95 of the Determination cited above), notwithstanding the invocation of the jurisprudence described in Lee, to deal substantively with the Taxpayers ‘process’ arguments in the Determination, and it is the TAC’s decision and reasoning in that regard that is the subject of the questions raised in the Case Stated.

(c) The Glencore principles

22. The third question in the Case Stated specifically invokes the principles in the decision of the CJEU in the case of Glencore Agriculture Hungary Kft v Nemzeti Adóés Vámhivatal Fellebbviteli Igazgatósága Case C-189/18 (“ Glencore”) C-189/18. This decision was helpfully considered by Ms. Justice Siobhán Phelan in Quigley v The Revenue Commissioners & Another [2023] IEHC 244. At para.s 83 and 84, Ms. Justice Phelan refers to Glencore as follows:-

“83. Similarly, in [Glencore] it was maintained that the tax authorities had breached the right to a fair hearing, to equality of arms and rights of the defence in that Glencore did not have access to the file relating to criminal proceedings brought against the suppliers (and to which Glencore was not a party) and the tax authorities did not make available to Glencore either the file relating to the inspections carried out with respect to those suppliers, in particular the documents on which the tax authorities' findings were based, or its report, or the administrative provisions which it adopted, but merely communicated a part of them, which it selected according to its own criteria.

84. In its judgment in Glencore, the CJEU stated, inter alia, that the rights of the defence is a general principle of EU law which applies where the authorities adopt a measure which would have the effect of adversely affecting an individual. In such circumstances the said individual must be placed in a position that would facilitate their views being given in relation to the information that the authority intends to base their decision on. Considered integral to the rights of the defence is the right to be heard. Affected persons required to be afforded the opportunity to “make known their view effectively during an administrative procedure” and prior to the adoption of any decision which would affect the individual adversely. The Court continued (at para 43) to state that the rights of the defence is not an unfettered prerogative but may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the measure in question and do not constitute, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights thus guaranteed. The Court considered (at para. 51) that the principle of respect for the rights of the defence has as a corollary the right of access to the file.”

23. In summary, these principles are in essence no more than a specific iteration of an aspect of the rights to fair procedures that flow from our Constitution, placed in a particular taxation context. As Phelan J. states at para 86 in Quigley:-

“I am satisfied that the principles of fair procedures protected under the common law concept of fair procedures and as a component of the requirements of constitutional justice reflect the requirements of EU law. As a means by which EU procedural rights are protected in the State these principles also fall to be interpreted in a manner which seeks to respect the requirements of EU law. They may therefore be informed as to their scope by the requirements of EU law as found by the CJEU [in Glencore]. It is clear from the case-law of the CJEU as summarised above that while there is now a substantial body of case-law which may be drawn on to assist in decision making in relation to the requirements of fairness in taxation proceedings, it is also manifest that the right of access to documentation which is acknowledged through this case-law is not unfettered, just as there is no absolute right of access to documents as a matter of domestic law. Insofar as the right of access to information is conceived of as part of a right of defence under EU law it seems clear that it arises in circumstances where there is an imputation against the tax-payer of a nature that gives rise to an entitlement to such access in order to respond to and defend against that imputation. This is not a novel proposition. Such a requirement is aligned in my view with the requirements of fair procedures and constitutional justice as developed over decades in domestic jurisprudence.”

24. It was accepted on behalf of the Taxpayer in this case that he was not being accused of fraud.

(d) Relevant Provisions of the Charter of Fundamental Rights of the European Union

25. The Case Stated refers to Articles 41, 47 and 51 of the Charter of Fundamental Rights of the European Union (the “Charter”). These Articles provide:-

Article 41

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

2. This right includes:

(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

(c) the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.” (underlined for emphasis)

Article 47 Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Article 51

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

VI. Submissions

(a) Summary of the Taxpayers Submissions

26. Mr. Neil Manley solicitor appeared on behalf of the Taxpayer and provided helpful written and oral submissions.

27. Firstly, he confirmed that there was no challenge to any of the findings of fact made by the TAC. Next, he brought the court through the various documents and categories of documents that the Revenue had obtained from various third parties. This exercise was done by reference to extracts from the transcripts of the appeal hearing.

28. Mr. Manley confirmed that there was no challenge to the lawfulness or methodology by which the Revenue had obtained this material. He did not dispute that these documents were or would have been in the possession or procurement of the Taxpayer. He also confirmed that he was not challenging the findings that indicated that the Taxpayer had not cooperated with the Revenue during the relevant audit.

29. While an assertion in the written submissions was made that this was a case where fraud was alleged, in oral submissions in reply, Mr. Manley very properly conceded (taking on board the submissions of Counsel for the Revenue) that this was in fact not a case in which the Taxpayer was accused of fraud. He also accepted in reply that the ‘process’ arguments now made were made ‘late in the day’.

30. Mr. Manley also referred to the CJEU decision in the case of WEBMINDLICENSES, Case C 419/14 where the CJEU states at para 91 that:-

“It is incumbent upon that court, furthermore, to verify whether, in accordance with the general principle of observance of the rights of the defence, the taxable person had the opportunity, in the context of the administrative procedure, of gaining access to that evidence and of being heard concerning it.”

31. Finally, Mr. Manley referred to another tax appeal decision of the same TAC (ref.: 31TACD2023)

where these principles were applied by the TAC and he contended these principles should also have been applied here.

32. In summary, Mr. Manley’s submission was that it was a breach of the legal obligations that he submitted flowed from Articles 41, 47 and 51 of the Charter and the CJEU decision in Glencore that the materials obtained from third parties were not disclosed to the Taxpayer prior to the Revenue’s assessments. He also added that the TAC should have consequently excluded these materials from the evidence at the appeal hearing. These failures made the process unfair he contended.

(b) Summary of the Revenue’s Submissions

33. Mr. Conor Bourke, SC (with James Byrne, BL) made helpful oral and written submissions on behalf of the Revenue.

34. Mr. Bourke, SC took the court carefully through relevant aspects of the findings of the TAC in the Determination and also to some of the relevant aspects of the evidence contained in the transcripts which together indicated, he submitted, that the TAC had made clear findings of fact which were open to the TAC to the effect that the Taxpayer had not been treated unfairly.

He pointed out that the evidence showed that the Taxpayer had been sent a letter from the relevant Revenue official informing him that the Revenue had obtained cheques from two undisclosed accounts of the Taxpayer (see Day 2, page 172, answer to question 860). The Taxpayer had been offered meetings, at least twice, but had failed to respond or indicate he wished to attend (Day 2, page 173, answer to question 866). When the Revenue official was asked in cross examination whether he considered whether the Taxpayer had been given a “fair opportunity to defend himself prior to the making of the assessments”, he replied that “I would, yes” (Day 2, page 174, question 868). Attention was drawn to the transcript where the Revenue official gave evidence that he had engaged with the Taxpayer “throughout, as you can see from the correspondence, for over, possibly, a two-year period to try and establish the correct position” (Day 2, page 186, answer 918). Attention was also drawn to the extract which disclosed that the Taxpayer’s accountant had written to the Revenue on the 23 October 2017 essentially shutting down communication and stating: “In the absence of any indication as to the direction of your investigation, Mr. Hamill is not prepared to continue his assistance or cooperation in the matter” (Day 2, pages 163-164). Mr. Bourke, SC also pointed out that the ‘process’ argument had been made at the end of the appeal hearing after the evidence was given and that had it been made initially, he would have spent more time adducing direct evidence of the fairness of the process.

35. Mr. Bourke, SC submitted that none of this evidence was seriously challenged and it formed a sufficient basis for the findings of the TAC in the Determination that the Taxpayer had not been treated unfairly on the facts of this case in relation to the process.

36. In addition, Mr. Bourke, SC pointed out that all of the documents referred to by the Taxpayer as having been obtained from third parties which it was now said should be disclosed, were documents that were or had been in the possession of the Taxpayer.

37. In addition it was pointed out that Glencore concerned a case of alleged fraud, unlike this case and that the CJEU acknowledged in Glencore at para. 44 that “the question whether there is a breach of the rights of the defence must be examined by reference to the specific circumstances of each case, including the nature of the act at issue, the context in which it was adopted and the legal rules governing the mater in question”.

38. Mr. Bourke, SC submitted that the process here met the requirements identified in WEBMINDLICENSES as the Taxpayer did have the “opportunity” to access the information and was given the opportunity to be heard.

39. Finally, the other TAC decision (ref.: 31TACD2023) was distinguishable, it was submitted, as in that case the TAC found at para. 49 of the determination that:-

“As the Commissioner has found that the Appellant was not given access to any evidence, or given an opportunity to be heard, prior to the Respondent deciding to raise an assessment against it, it follows that he is obliged to disregard all of the evidence proffered by the Respondent in this case.”

VII. Decision

40. This case raises three questions. At the heart of these questions is the claim by the Taxpayer that he was treated unfairly in the process by which the taxation assessments were initially made because he was not provided with the documents obtained by the Revenue from various third parties, together with the related complaint that these documents should not therefore have been admitted at the TAC appeal hearing.

41. As a preliminary observation it is not necessary to consider whether or not a challenge of this sort should have been brought by way of judicial review as, for the reasons explained above in para. 21, the TAC decided, notwithstanding the principles set out and explained in Lee, to deal substantively with the Taxpayers ‘process’ arguments. Accordingly, it is the TAC’s decision and reasoning in that regard that is the subject of the questions raised in the Case Stated.

42. Turning then to the substantive issues that arise in this Case Stated, the legal principles referred to above indicate that in the context of such complaints the full circumstances relevant to the charge to tax and the process must be examined. The specific requirements of the principles of fair procedures should always be seen and considered in context. Irish jurisprudence makes that clear and the decision in Glencore itself makes this clear; see para

44 where the CJEU states “the question whether there is a breach of the rights of the defence must be examined by reference to the specific circumstances of each case”.

43. Firstly, the documents in question here were the Taxpayer’s own documents. They included for example, bank statements from the Taxpayer’s own bank accounts that he had failed to disclose, cheques drawn by the Taxpayer on those accounts, and receipts and invoices issued by the Taxpayer to third parties. At paragraph 97 of the Determination, the TAC makes a finding that "The Commissioner is satisfied that the evidence procured by the Respondent, such as the Appellant’s own bank account statements, invoices/receipts provided by him to purchasers of wrap and other agricultural supplies, and copy cheques drawn on his account, were all items to which the Appellant himself had access”. This finding was not challenged.

This distinguishes this case from cases like Glencore where there was an allegation of fraud and documents were being relied upon that were not necessarily documents that would have been in the prior possession of the taxpayer, namely for example, the file relating to criminal proceedings brought against the suppliers and to which Glencore was not a party.

44. Next, perhaps because they were his own documents, at no point was it made clear what substantive unfairness or actual problem was alleged to have been created for the Taxpayer by not having received the documents from the Revenue.

45. This failure to identify any real substantive problem perhaps also explains why these points of procedural unfairness were only formally raised at the conclusion of the hearing and after the evidence had been given. The TAC concluded that this was essentially an “ambush” (see para.

96 of the Determination), a finding that was not challenged in the Case Stated.

46. In addition, the manner in which this situation arose, was due to the Taxpayer’s failure to cooperate with the enquiries of the Revenue. The TAC’s reasoning at paragraph 98 of the Determination, explains this, where the TAC finds: “given his non-cooperation with the Respondent’s investigation, the Commissioner would not agree that the Appellant’s right to defence had been breached. The Commissioner does not consider that the Appellant was at an “evidential deficit” as claimed by him, in circumstances where he refused to engage with the Respondent, which was therefore obliged to utilise other methods of procuring the evidence to allow it to properly review and analyse the Appellant’s tax affairs”. This conclusion was not challenged and, in any event, there was clearly evidence to support it.

47. In other words, the deliberate actions of the Taxpayer necessitated the Revenue tracking down this information from third parties. The Taxpayer did not dispute that the manner in which the Revenue had obtained the information was lawful and he also accepted that he had failed to co-operate with the Revenue.

48. Against that background, the transcript extracts that the Court was taken to by both sides representatives did not substantiate any deficit of information or unfairness in process. See for example the following extracts:-

(i) the Taxpayer had been sent a letter from the relevant Revenue official informing him that the Revenue had obtained cheques from two undisclosed accounts (see Day 2, page 172, answer to question 860);

(ii) the Taxpayer had been offered meetings, at least twice, but had failed to respond or indicate he wished to attend (Day 2, page 173, answer to question 866);

(iii) when the Revenue official was asked in cross examination whether he considered whether the Taxpayer had been given a “fair opportunity to defend himself prior to the making of the assessments”, he replied that “I would, yes” (Day 2, page 174, question 868); and

(iv) the Revenue official gave evidence that he had engaged with the Taxpayer “throughout, as you can see from the correspondence, for over, possibly, a two-year period to try and establish the correct position” (Day 2, page 186, answer 918).

49. Added to this are the various factual conclusions reached by the TAC that were not challenged.

For example, at paragraph 95 of the Determination, the TAC states that "In any event, the Commissioner did not consider that there was any evidence of the respondent acting in a manner, which was unfair to the appellant." This finding was not explicitly challenged. If it were necessary to do so (and the argument was not advanced in this way) I am satisfied that there was evidence before the TAC to justify this conclusion; see the examples in para. 48 above.

50. Even when the solicitor for the Taxpayer brought the Court to the transcripts of the cross examination of the Revenue official who gave evidence at the appeal hearing, these extracts did not establish a failure on the part of the Revenue to provide information. In fact, quite the contrary, the extracts indicated that offers were made to the Taxpayer to access the information which were not taken up (see Day 2, page 173).

51. In summary therefore, the facts as identified in the evidence and as found by the TAC, both on their own terms and when viewed in the overall context of the process, do not demonstrate that the Taxpayer was treated unfairly in relation to the documents. He was told that information was being obtained by third parties and he was written to it about it. This situation arose due to his own failure to co-operate with the audit. He was offered the opportunity to attend meetings. He declined to attend the meetings. It is not suggested that he requested the meetings to be arranged on alternative dates. What is more, his accountant wrote essentially asking not to be contacted any further about the matter.

52. These findings of fact confirm that the Taxpayer was given appropriate (bearing in mind these were documents that he had or, at one time, had) and sufficient opportunities to gain access to the information and to be heard about the information; this meets the test as set out in WEBMINDLICENSES at para 91, referred to above.

53. The facts indicate therefore that the requirements of the Articles of the Charter as set out in Glencore and WEBMINDLICENSES and as applied in the other TAC determination (Ref.:

31TACD2023) were met. There is therefore no substance to the complaint that he was treated in some way unfairly.

54. In conclusion, whilst there may be a superficial attraction to the claim that a process was unfair by virtue of certain documents not having been delivered, that criticism melts away when the complainant had the material in question themselves, was told that the decision maker was assembling this information and then refused to co-operate with the information gathering exercise or attend meetings to discuss the issues.

VIII. Conclusion

55. Accordingly, I am satisfied that the requirements contained in the Articles of the Charter and as set out further in the principles referred to in Glencore and the jurisprudence were met and properly considered and applied by the TAC to the facts of this case. In addition, it was not consequently an error of law to admit the documents at the appeal hearing.

56. Accordingly for the foregoing reasons the questions raised are answered as follows:-

a) Did the TAC fail to protect the Appellant’s rights under Articles 41, 47 and 51 of the Charter of Fundamental Rights of the European Union and thus err in law?

Answer: No.

b) Did the TAC err in law in permitting the admission of evidence procured by the Respondent from third parties?

Answer: No.

c) Did the TAC fail to correctly apply the principles set out by the CJEU in Glencore?

Answer: No.