High Court dismisses appeal on points of law regarding Revenue Commissioners' power to modify draft case stated questions.

THE HIGH COURT REVENUE Record NO: H.R.2025.110 [2026] IEHC 488 IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949AQ OF THE TAXES CONSOLIDATION ACT, 1997, AS AMENDED

Between

O’SULLIVAN FABRICATIONS LIMITED

Appellant

-and-

THE REVENUE COMMISSIONERS

Respondent

JUDGMENT of Mr Justice Jordan delivered on the 17th day of July 2026.

1. These proceedings concern a case stated to the High Court at the request of the appellant from a determination of the Tax Appeals Commissioner, Commissioner Noone.

2. The Tax Appeals Commissioner issued his determination on 24 October 2024, following a hearing on 4 September 2024. Commissioner Noone upheld the Respondent's assessments raised upon the Appellant in respect the Employment Wages Subsidy Scheme (the 'EWSS') in the total amount of €348,496.50 relating to the periods September 2020 to August 2021.

3. On 3 December 2024, the Appellant sought to have a Case Stated to the High Court on points of law by way of a Notice pursuant to s.949AP TCA 1997 ( the 'Appellant's Notice').

4. Section 949AQ TCA governs the preparation of a Case Stated. Following circulation of the Commissioner's draft Case Stated dated 15 January 2025 both parties exercised their statutory entitlement to make representations within the prescribed 42-day period under s.949AQ(3) TCA.

5. By letter dated 24 February 2025 the Respondent made representations to the Commissioner regarding the draft Case Stated pursuant to s.949AQ(3) TCA and requested that the Commissioner consider its representations for the purpose of modification of the draft Case Stated. A copy of these representations was also furnished to the Appellant.

6. By letter dated 25 February 2025 the Appellant made it’s representations to the Commissioner under s.949AQ(3) in respect of the draft Case Stated. It expressly referred to the Respondent's representations dated 24 February 2025. The Appellant in its representations stated that it did not take issue with any of the seven proposed questions as drafted by the Commissioner. Although it had a copy of the Respondent's representations the Appellant did not comment upon or address the views of or the proposed amendments suggested by the Respondent.

7. On the 7 March 2025 the Commissioner completed and signed the Case Stated for the opinion of the High Court. It was transmitted to the High Court on the 20 March 2025.

8. This application on behalf of the appellant by way of Motion on Notice seeks ; –

(a) An order that the transcript of the oral evidence before the Appeal Commissioner in relation to the hearing on 4 September 2024 be admitted for the purposes of the hearing of the case stated.

(b) An order that the series of questions posed by the Appeal Commissioner be augmented and rephrased to reflect the issues in dispute in a neutral and balanced manner within a properly agreed, fair and transparent framework for the purposes of the hearing of the case stated.

9. The solicitor for the appellant, Michael Glynn, has sworn the grounding affidavit on behalf of the appellant. A solicitor with the Revenue Solicitors Office, Sally Brennan, has sworn a replying affidavit dated 4 December 2025. There is a second affidavit in reply of Michael Glynn sworn on 20 January 2026.

10. Along with the affidavits are various exhibits. In addition, the court has outline legal submissions of the appellant dated 5 May 2026 and outline legal submissions of the respondent dated 2 May 2026 – as well as the submissions made orally at the hearing.

11. While the court does have power to direct that the transcript be admitted for the purposes of the hearing of the case stated and does have power to amend the questions in the case stated an applicant seeking such relief from the court must establish grounds to warrant such relief being granted.

12. It is worth observing at the outset that the appellant does not anywhere contend that any of the findings of fact made by the Appeal Commissioner were made without evidence to support them. Nor does the appellant contend that no reasonable Commissioner could have reached the conclusions arrived at on the evidence presented at the hearing.

13. The legislation governing the preparation of a Case Stated [s.949AQ TCA] is clear in terms of the parties' entitlement to make representations and the time limits governing same. That is the procedure available to the parties to address any concerns about the draft case stated, the questions and the exhibits.

14. Interlocutory applications such as this arise in rare circumstances - where for example an Appeal Commissioner has chosen not to reflect in the signed case stated a question or an exhibit in respect of which the party had made representations for its inclusion.

15. The case stated was initiated by the appellant in circumstances where, as its solicitor averred to at para. 4 of the grounding affidavit, it was “dissatisfied with the determination as being erroneous on a point of law”. The case stated by the Appeal Commissioner sets out the factual background. It details the legislation and guidelines relevant to the case stated. It goes on to outline findings of material facts – which have not been challenged by the appellant.

16. The case stated outlines the arguments of the appellant and the respondent and the case law relied on by the parties. It then details the Appeal Commissioner’s determination and reason for the determination before setting out the points of law on which the opinion of the High Court is sought.

17. Insofar as the questions posed are concerned the Commissioner pointed out at para. 9 of the case stated that he had regard to the representations received and decided to delete the draft questions originally numbered 2 and 7 as he considered that they concerned findings of fact only. The court is satisfied that he was correct in this regard.

18. The Commissioner then went on to point out that he had amended question number 5 (previously 6) to provide that it was addressed solely to a question of law and had amended question 3 (previously 4) to clarify the point of law on which the opinion of the court was being sought. Again, the court is satisfied that this approach was correct.

19. The appellant has failed to establish any basis upon which the transcript of the oral evidence ought to be admitted for the purposes of the hearing of the case stated. The appellant has not challenged any of the Appeal Commissioner’s findings of fact and in those circumstances the transcript is simply not relevant to the hearing of the case stated.

20. Looking at the questions posed in the case stated and the input of the appellant and the respondent before it was finalised it is very difficult to understand what the appellant intends to convey by its request that the questions be augmented and rephrased in order to reflect the issues in dispute in a neutral and balanced manner and within a properly agreed, fair and transparent framework for the purposes of the hearing of the case stated (para. 6 of the grounding affidavit). The appellant asserts (at para. 7) that the questions contained in the case stated taken in their totality have been phrased in a presumptive manner with inferences in the questions prejudicial to the appellant, effectively predetermining some of the issues. It is asserted that the appellant did not have recourse to correct the phraseology and was not given any right Page of23

4 of response regarding the final version of the questions posed in the case stated. It is asserted that the appellant is disadvantaged because of the amendment of the questions as they will not allow the court the opportunity to dispose of the issues in dispute within a properly agreed, fair and transparent framework.

21. These are bare assertions which are extremely general in nature. Furthermore, the complaints of unfairness are misconceived in circumstances where the appellant had the full benefit of and participated in the procedure provided for in the legislation insofar as the formulation of the case stated is concerned. The Appeal Commissioner was entitled to take on board the representations of both parties and, having done so, finalise the case stated – as happened.

22. It is worth observing that the appellant’s notice dated 3 December 2024 requesting the case stated does not make any reference to any extracts from the transcript as such although the appellant did have a copy of the transcript at the time of preparation of this notice. Furthermore, the appellant’s notice sets out in detail the findings of fact of the Commissioner - which are not challenged.

23. It is also the position that the appellant did not make any representation concerning the inclusion of the transcript in the appendix to the case stated when making its representations concerning the draft case stated in its comprehensive letter of 25 February 2025. It was clear at that stage that the appendix to the draft case stated did not include the transcript. If the appellant felt it ought to have been included then one would have expected it to request that in its letter of 25 February 2025 – and it did not.

24. In its representations in the letter of 25 February 2025 the appellant did not make any express representations about the seven questions as drafted by the Commissioner in the draft case stated dated 15 January 2025.

25. In its representations concerning the draft case stated (dated 24 February 2025) the respondent argued that there were issues concerning several of the proposed questions in the draft case stated. It argued that several of these proposed questions did not satisfy the statutory requirements of s.949 AP (2) and (3) and s.949 AQ (1) TCA 1997 – in particular questions numbered 2, 4, 5 and 7 which the respondent argued did not amount to errors as to points of law. Furthermore, the respondent argued that the points of law raised at questions (i) and by extension the question (ii) pertained to arguments that were never made by the appellant and as such were never before the Commissioner at the hearing on

4 September 2024 and that there was no determination in respect of those arguments. The respondent also argued that several of the questions overlapped and as such could be consolidated in an attempt to properly focus the questions for consideration by the High Court.

26. If one looks at the questions in the final case stated it is obvious that the changes made by the Commissioner were influenced by the representations received.

27. There is no provision in the TCA 1997 for further representations to be made by the parties. Rather there is a procedure laid down and that procedure was followed correctly.

There was no breach of fairness or due process.

28. It does appear that the appellant desires the court on this application, and indeed at the hearing of the case stated, to revisit findings of fact which it is aggrieved by but which it has not challenged. This is a recurring theme at the heart of the appellant’s affidavits and arguments and is illustrated by its use of the adjectives “ neutral, balanced, fair and transparent”.

29. On the hearing of a case stated the court is not concerned with revisiting findings of fact which are unchallenged. Moreover, the appellant’s grievance as expressed in the sentence “… the questions contained in the case stated taken in their totality have been phrased in a presumptive manner with inferences in the questions prejudicial to the appellant, effectively predetermining some of the issues…”. appears to ignore the point that the questions posed were formulated after representations by both parties and against the backdrop of unchallenged findings of fact. It is hardly surprising that the appellant regards some of the questions, as formulated, prejudicial to it in circumstances where findings of fact made by the Appeal Commissioner were against the appellant. However, the questions contained in the case stated are grounded in the findings of fact made by the Appeal Commissioner which are recorded in the case stated and are unchallenged as findings of fact by the appellant.

30. In the affidavit sworn on 20 January 2026 the appellant's solicitor states that the purpose of issuing the notice pursuant to s.949 AP TCA 1997 dated 3 December 2024 has been to challenge the Commissioner's findings, analysis and determination in respect of the determination dated 24 October 2024. He goes on to say that the notice has outlined in detail where the Commissioner has erred in his findings, analysis, conclusions and determination.

31. However, when one looks at the notice dated 3 December 2024 the absence of a challenge to the findings of fact of the Commissioner is obvious. No finding of fact is asserted to have been made without evidence or contrary to uncontested evidence. Nor indeed is it stated that no reasonable Commissioner could have made any of the findings of fact.

32. The appellant's grievance in the notice dated 3 December of 2024 identifies what it asserts are “errors of law”.

33. The caselaw is clear regarding curial deference to findings of fact by expert tribunals. The Supreme Court in Ó'Culachain v. McMullen Brothers Limited [1995] 2 IR 217 confirmed the dicta of Kenny J. in Mara v Hummingbird [1982] ILRM 421.

Blaney J. summarised the Court’s position in Ó'Culachain v. McMullen Brothers Limited in the following terms:

“… it seems to me that when a court has before it a case stated seeking its opinion as to whether a particular decision was correct in law, the following principles apply:

(i) Findings of primary fact by the judge should not be disturbed unless there is no evidence to support them.

(ii) Inferences from primary facts are mixed questions of fact and law.

(iii) If the judge's conclusions show that he has adopted a wrong view of the law, they should be set aside.

(iv) 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.

(v) Some evidence will point to one conclusion, other evidence to the opposite: these are essentially matters of degree and the judge's conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying 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.”

34. The appellant submits that curial deference is now qualified. The appellant submits that the dicta concerning curial deference must be tempered in light of the dicta of Murray J. in Stanberry Investments Limited v Commissioner of Valuation [2020] IECA 33 at paras. 46 to 52, where he stated that curial deference does not apply in certain instances, outlined in detail at paras 49, 50 and 52 in the following terms : -

“49. Administrative tribunals, expert or otherwise, obtain no deference on pure issues of law. The remarks of Kelly J. in Premier Periclase Limited v. Commissioner of Valuation [1999] IEHC 8, make it clear that errors of fact simpliciter do not present any issue of curial deference either; “[w]hen conclusions are based on an identifiable error of law or an unsustainable finding of fact by a Tribunal, such conclusions must be corrected” (at para 25).

…..

“50. Indeed, I note that in Attorney General v. Davis [2018] IESC 27 the Court (at para. 58) suggests some skepticism as to whether deference has any role in the appeal on a point of law provided for in that case…. This reflects the analysis proposed by Charleton

J. in EMI Records (Ireland) Ltd. v. Data Protection Commissioner [2013] IESC 34 [2013] 2 IR 699 at para. 20:

“Curial deference does not aid such a specialist tribunal beyond according due respect for its expert factual assessment or decision on the balance of competing interests. Curial deference cannot extend to sanctioning breaches of the rules as to jurisdiction or the bypassing of the tribunal of the obligation to incorporate fair procedures.”

……… “52. …… Deference means that in those areas touching on the Tribunal's expertise, the Court should be slow to interfere with the Tribunal's reasoning. It does not mean that where the Tribunal's reasoning is unclear so that there are differing possible interpretations of its decision the Court must simply assume that it was correct in the

conclusion it reached. ”

34. These authoritative views on curial deference offer little in the way of support for the appellants arguments concerning the admission of the transcript or indeed the formulation of the questions in circumstances where the appellant does not challenge a finding of primary fact by the Commissioner and does not point to any unsustainable finding of fact.

35. In Glynn v Revenue [2021] IEHC 780, Stack J. expressed a view regarding the question of the admitting of the transcript of evidence before the Appeal Commissioners in the following terms : -

(27)Because this Court can only consider whether the determination of the Commissioners was erroneous on points of law, the evidence before the Commissioners, and therefore the transcript of that evidence, is generally not material to a consideration of the questions on which the opinion of the High Court is sought.

(28)However, as is clear from long-standing caselaw in this area, this does not mean that the evidence before the Appeal Commissioners is entirely irrelevant.

The types of legal issues which may be addressed in a case stated are comprehensively set out in judgments of the Supreme Court. In Mara v.

Hummingbird [1982] I.L.R.M. 421, at 426, that Court (per Kenny J.) stated:

“A case stated consists in part of findings on questions of primary fact, e.g. with what intention did the taxpayers purchase the Baggot Street premises. 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 court 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 a wrong view of the law, they should be set aside. If however they are not based on a mistaken 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. The ways of conducting business have become very complex and the answer to the question whether a transaction was an adventure in the nature of trade nearly always depends on the importance which the Judge or

Commissioner attaches to some facts. He will have evidence some of which supports the conclusion that the transaction under investigation was an adventure in the nature of trade and he will have some which points to the opposite conclusion. These are essentially matters of degree and his conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying the case) unless they are such that a reasonable Commissioner could not draw them or they are based on a mistaken view of the law.”

(29)In Ó Culacháin v. McMullan [1995] 2 I.R. 217 Blayney J. [outlined] ….. the following principles ………[quoted above] (30)……… (31)There is, however, no doubt but that this Court has in an appropriate case a jurisdiction to consider whether a primary finding of fact was made with no evidence to support it, and a transcript could obviously be relevant to that issue.

(32)That will only be the case, however, where primary findings of fact are challenged as being erroneous in law because there is no evidence to support them [emphasis added].

(33)Therefore, if a case is stated on the issue of whether there is an error of law in making any particular primary finding of fact in the absence of any evidence for that finding, then that portion of the transcript setting out the relevant evidence will be required by the High Court in order to determine the issue of law, and that portion of the transcript should then be included in the case stated. Alternatively, it may be necessary to include the entire transcript of the evidence of a witness or of all witnesses for the purpose of showing that there was no evidence to support a primary finding of fact. …..

(34)In general, therefore, where it is proposed to appeal on the basis that the Appeal Commissioners erred in law in making a primary finding of fact without any evidential basis, it will be appropriate to include the relevant portion of the evidence (such as the evidence of the relevant witness) in the document comprising the case stated, whether in the body of the case stated itself or, if more convenient, in a formal appendix to it as now provided for in s. 949AQ (7A). However, that will not be appropriate in appeals which do not seek to challenge primary findings of fact.[emphasis added]

36. In Byrne v. Revenue Commissioners [2021] IEHC 262, Twomey J. held that there was a high threshold facing an appellant in a case stated under the Taxes Consolidation Act.

He stated as follows -

"59. In considering this issue, it is important to bear in mind that this is an appeal on a point of law by way of Case Stated under s. 949AQ of the Taxes Consolidation Act, 1997 (as amended). As such the role of this Court is not to determine whether the Commissioner was right or wrong ...

60. This is because this is not an appeal and it is not the function of this Court to replace the view of the Commissioner with this Courts view, even if this Court were of the view that a connection with VAT fraud was not the only reasonable explanation for the purchase of the fuel by Mr Byrne. "

11. The High Court is bound by the Commissioner's findings of fact, unless those findings or some of them have been expressly identified and challenged.

12. S.949AP details the mechanism by which a determination of the Appeal Commissioners can be appealed by way of Case Stated. In particular, s.949AP(3) details the requirements to be included in the Appellant’s Notice as follows: "(3)The notice referred to in subsection (2) shall-

(a) state in what particular respect the party concerned is dissatisfied with the determination,

(b) state in what particular respect the determination is alleged to be erroneous on a point of law,

(c) be sent to the Appeal Commissioners within 42 days after the date of the notification of their determination under section 949AJ(l), and

(d) be sent to the other party when it is being sent to the Appeal Commissioners. "

13. After receipt of the Appellant's Notice, s.949AQ TCA is engaged and governs the process by which a Case Stated is prepared. The Commissioner sends a copy of the draft Case Stated to both parties no later than three months after receipt of the Appellant's Notice. Upon receipt of the draft Case Stated, s.949AQ(3) TCA provides the parties an opportunity to make representations to the Appeal Commissioner regarding the draft Case Stated within a period of 42 days.

14. An Appeal Commissioner has a statutory obligation to have regard to the representations received but is not bound by those representations. S.949AQ(4) TCA states as follows:

"(4)The Appeal Commissioners shall have regard to any representations so made and may, if they consider it appropriate to do so, modify the draft of the Case Stated before completing and signing it. "

The Appeal Commissioner must finalise the draft Case Stated within a period of 21 days of receiving the representations and must send the signed and completed Case Stated to the parties pursuant to s.949AQ(6) TCA.

RELIEF 1: TO APPEND TRANSCRIPT

15. The questions of law posed in the Case Stated are considered in the context of the material findings of fact, as determined by the Appeal Commissioner, where those material findings of fact have not been challenged by the Appellant.

16. The transcript is not required to be included in a Case Stated. The inclusion of excerpts of transcript evidence or the transcript in a Case Stated arises in limited circumstances, where questions posed in the Case Stated specifically challenge findings of fact, which is not the position here.

17. S.949AQ(7A) TCA provides the statutory basis for the party requesting the case stated to specifically detail the list of exhibits which ought to form part of the case stated.

Furthermore, in the context of s.949AQ(3) TCA the Appellant was entitled to make representations regarding the inclusion of the transcript or part of it in the case stated.

In its detailed Notice and in its representations to the Appeal Commissioner the Appellant never sought nor suggested that the transcript or part of it be included in the case stated.

18. I t i s n o t d i s p u t e d t h a t t h e f i r s t mention by the Appellant of the inclusion of the transcript was when the Respondent was seeking a hearing date for the substantive case in the Chancery List.

19. A case stated should form a single composite document from which the Court can determine the issues of law as set out in the case stated. The relevant documents are those in the List of exhibits along with the case stated - and w h i c h thereby

form part of the Case Stated. It is this document in its totality, including those exhibits, that is considered by the Court.

At paragraph 8 of the decision of Stack J in Glynn v The Revenue Commissioners, she agreed with the taxpayer that the case stated should form a single composite document and held as follows:

"I think this follows from the seminal decision of Blayney J in Mitchelstown Co-Op Society v. Commissioner for Valuation [1989] I.R. 210 at 212-213, where, after setting out the text of s. 5 of the Valuation Act 1988, pursuant to which certain decisions of the Valuation Tribunal could be appealed to this Court by way of Case Stated, and after stressing the importance of the Tribunal making the necessary findings of fact, Blayney J stated:

"This court should not be required to go outside the Case Stated to some other document in order to discover [the findings of fact of the Tribunal]. The same principle applies to the contentions of the parties; the inferences to be drawn from the primary facts, and the Tribunal's determination. All these must be found within the case, not in documents annexed. In the same way, the fact that the judgment of the Tribunal is annexed to the case does not dispense the Tribunal from setting out its determination in the case. This is a specific requirement of s. 5 of the Act of 1988. "

20. At paragraph 17, Stack J continues as follows:

"As already stated, the recent amendment of s. 949AQ by the insertion of subs. (7A) means that Emerson must be qualified, but only very slightly: the dictum of Blayney J in relation to cases stated should now be read as meaning that, in cases stated under section 949AP of the TCA, the court should find all that it needs in the Case Stated and the documents formally exhibited thereto. But the circumstances in which the evidence, as opposed to the findings of fact, should be set out, are explained in Emerson. "

21. Stack J states at paragraph 52 in Glynn v The Revenue Commissioners :-

"The problem with all of this is that the points of law for the opinion of this Court, as set out in the Case Stated, and in particular para. 121 (i) which is singled out by Revenue as dealing with this issue, does not state that the findings of fact were made without evidence to support them. There is reference to the findings of fact being ones no reasonable Appeal Commissioners could have made, but this appears to be a reference to the inferences made by the Commissioner from the primary findings of fact, rather than an attack on the primary findings of fact themselves. "

Stack J continued at paragraph 61 as follows:

"I entirely agree with the analysis at para. 52-58 of Byrne that those inferences are drawn from primary facts (which he had accepted were made on the evidence), but where I respectfully disagree with the approach in Byrne is that it does not seem to me that the question of whether an inference is properly drawn from the primary facts should be tested against the transcript. It seems to me that the Appeal Commissioner should put in the Case Stated all of the findings of primary facts from which he draws the necessary inferences and that the exercise of considering whether the inferences were ones which no reasonable Commissioner can draw is conducted by an analysis of the primary findings of fact as set out in the Case Stated and whether they support the inferences drawn from them. "

22. This court agrees with the approach and decision of Stack J in Glynn.

23. At paragraph 13 of the Appellant's submission, it relies upon the decision of Byrne v Revenue Commissioners [2021] IEHC 262. That case was different as the parties agreed that the transcript could be produced to the High Court de bene esse. The transcript is not here relevant to the questions posed in the case stated in the absence of a challenge to findings of primary fact. It was appropriate for the Commissioner to choose not to exhibit it. The Appellant expresses disagreement with the Commissioner's conclusions but has not identified any finding that was unsupported by evidence.

24. In response to paragraph 45, the Appellant asserts that admission of the transcript is necessary for transparency and fairness and to assess the "nature, character, flavour and weight of the sworn testimony". It is not for the Court to consider such matters when there is no challenge to a primary finding of fact. They are matters for the arbiter of fact to consider, the Appeal Commissioner.

RELIEF 2: TO VARY THE QUESTIONS

25. S.949AR(2) TCA confers a discretionary power on the High Court to remit a Case Stated to the Appeal Commissioners for amendments to any of the posed questions or the High Court itself may amend the questions itself. S.949 TCA provides as follows:

"(])The High Court shall hear and determine any question of law arising in a Case Stated and -

(a) shall reverse, affirm or amend the determination of the Appeal Commissioners,

(b) shall remit the matter to the Appeal Commissioners with its opinion on the matter; or

(c) may make such other order in relation to the matter as it thinks just,

and may make such order as to costs as it thinks fit.

(2)The High Court may send the Case Stated back to the Appeal Commissioners for amendment, in which case-

(a) the Appeal Commissioners shall amend the Case Stated accordingly, and

(b) the High Court shall, thereafter, proceed in one of the ways specified in subsection (1)."

26. The Court has the power to amend the questions in a Case Stated to more accurately reflect the legal issues which may arise in an appeal - as found in the decisions of Express Motor Assessors Limited (In liquidation) v Revenue Commissioners [2021] IEHC 420 and in O'Sullivan v Revenue Commissioners [2021] IEHC 118.

27. In O'Sulivan v Revenue Commissioners Sanfey J relied upon the decision of Untoy v GE Capital Woodchester Finance Ltd [2025] IEHC 557 and the statutory mechanism as found at s.949AR TCA. The decision of Sanfey J to amend the case stated questions was predicated on the case stated containing sufficient findings of fact for the point of law to be introduced by amendment to be determined. While Sanfey J exercised his discretion and amended the questions in O'Sullivan v Revenue Commissioners t h e case should be considered on its own facts. The crux of the case was not whether the amendments were necessary but rather, how the agreed amendments should be made, a feature entirely absent in the

present case. In addition, the situation there was that the Revenue's observations on the case stated had, as a result of an administrative error, not been considered at all.

28. The caselaw has cautioned against routine applications to amend the questions in a Case Stated. In Glynn v Revenue Commissioners, Stack J observed :

"73. Finally, while it is clear from O'Sullivan v. Revenue Commissioners that this Court has a power derived from s. 949AR (l)(c) TCA to amend a Case Stated, I do not think applications should be the norm as section 949AP seems to envisage that the process of formulating the questions is primarily a matter for the appellant who expresses dissatisfaction with the determination of the Appeal Commissioner and s.

949AQ (1) (b) provides that no additional or alternative points of law may be set out after the period set out in section 949AP (3) (b) (which I think must now be read as a reference to section 949AP (3)(c), as that is a re-enactment of section 949AP (3) (b)

within the meaning of s. 26 of the Interpretation Act 2005). The precise effect of that time limit and its interaction with the power of this Court under s. 949AR (l)(c) do not, however, fall for determination in this application. However, given the existence of the power of this Court as identified in O'Sullivan, presumably it will be appropriate to exercise it from time to time. In particular, where there has been a refusal to include a question of law which properly arises from the Appeal Commissioner's determination, the appropriate course would appear to be to apply to amend."

29. It is open to an Appeal Commissioner to reformulate or distil or consolidate questions of law as identified from a s.949AP Notice - provided the substance of the legal issues is captured. This was confirmed by Mulcahy J in Revenue Commissioners v Getty Images International ULC [2025] IEHC 268. Mulcahy J refused the majority of the amendments as proposed and reiterated the Commissioner's role in drafting the questions for a Case Stated. At paragraphs 72 to 74 he held as follows:

"72. As set out above, the identification of the grounds of appeal are a matter for the appellant (see Glynn and McNamara). Drafting of the Case Stated, however, is a matter for the Commissioner (s. 949AQ(2)). A draft of the Case Stated must be given to the parties and an opportunity afforded to make representations on that draft (s.

949AQ(3)). There is nothing in the legislation which suggests that it is impermissible for a respondent to a proposed Case Stated to make representations regarding the points of law identified in a draft Case Stated.

73. There was, therefore, nothing improper in Getty making the suggestions it did on the draft Case Stated. Nor was there anything improper in the Commissioner having regard to those representations. She was required to do so.

74. In those circumstances, I cannot identify any error of law by the Commissioner in modifying, as she did, the wording of questions III and IV in a manner which reflected some, though not all, of Getty's proposed amendments. The omission of the reference to error of fact in question III reflects that the issue raised can only be regarded as a question of law as accepted by Revenue. The addition of the statutory context may well reflect the Commissioner's belief that the questions as now framed better reflect the issues in dispute in the appeal and, in circumstances where the question posed reflects the point of law identified in the 949AP Notice, she was entitled to reframe the question as she did. In light thereof this would not be an appropriate case for the court to intervene by making the amendments sought in the notice of motion. "

30. The case stated captures the points of law identified in the Appellant's section 949AP Notice.

All questions contained in the case stated are sufficiently clear and appropriate. The distillation of the Appellant's seven questions into their current form is permissible under section 949AQ.

31. The deletion of two of the questions (ii) and (vii) from the draft Case Stated - and the reformulation of the questions - are explained. The reworking of the questions has not changed the substance of the points of law.

32. The questions have not been unfairly reformulated in the case stated. The Appeal Commissioner was entitled to do as he did so as to focus and consolidate the issues in light of the representations he received.

33. The questions in their present form accurately reflect the points of law which arise from the central issue of whether or not the Commissioner applied the correct principles of law to the facts and ultimately allowed the Revenue's assessments to stand. The Appellant seeks to revisit matters of fact which are not challenged both in

terms of the transcript being admitted and a reformulation of the questions posed. There is no entitlement to do so in a confined case stated on discrete points of law.

35.The appellant has not shown that the relief sought should be granted. The court is satisfied that it should not be granted and will dismiss the Motion. The court will hear from the parties in relation to any matters arising and costs at 10.30 a.m. on Wednesday 22 July 2026.