Judicial review dismissed; amnesty certificate must be produced for each new enquiry, not just the first.

Neutral Citation Number: [2016] IEHC 281

THE HIGH COURT

[2014 No. 709 J.R.]

BETWEEN

JAMES DOYLE

APPLICANT

AND

JUDGE HICKSON AND THE REVENUE COMMISSIONERS

RESPONDENTS

JUDGMENT of Mr. Justice Barr delivered on the 6th day of May, 2016

1. This case concerns the operation of the Waiver of Certain Tax, Interest and Penalties Act, 1993. The central issue arising for the

court’s determination is whether, pursuant s. 5 of the 1993 Act, the production of a certificate issued by the Chief Special Collector

under s. 2(4)(a) of the 1993 Act (“the certificate”) in response to a particular enquiry by the Revenue Commissioners, within 30 days

of the commencement of such enquiry, precludes all further enquiries in respect of the period covered by the certificate; or whether

further enquiries may be commenced by the Revenue Commissioners, thereby necessitating the holder of the certificate to produce

the certificate in response to each subsequent enquiry. As such, this case comes down to a net point of statutory interpretation.

Extension of time

2. Before turning to the substantive issues raised by the applicant, it is necessary to first deal with his application to extend time

within which to initiate these proceedings.

3. The ruling of the Circuit Court which is impugned by the applicant in this case was made on 9th April, 2014; the applicant’s ex

parte application for leave to seek judicial review, however, was not made until 24th November, 2014. This was outside the three

month time limit laid down by Order 84, rule 21, of the Rules of the Superior Courts (as amended by S.I. No. 691 of 2011) which

provides as follows:

“21. (1) An application for leave to apply for judicial review shall be made within three months from the date when

grounds for the application first arose.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding,

the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction

or proceeding.

(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an

application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied

that:—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in

sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.”

4. The applicant avers that the reason for his delay in bringing the within application was due to the deterioration of his relationship

with his solicitor following the Circuit Court hearing on 9th April, 2014. He stated that in June 2014 his son, Neil Doyle, collected the

relevant file from the applicant’s former solicitors. This file of papers contained advices of counsel dated 10th April, 2014, which

informed the applicant of his right to bring a judicial review of the decision of the Circuit Court and the time limits within which to

bring such an action. However, the applicant stated that by the time he had read these advices, he was out of time to bring an

application for judicial review. The applicant averred that he always had the intention of appealing and reviewing the decision of the

Circuit Court but that due to “mistakes and errors and miscommunications, as set out above and not predominantly due to fault by

myself, the time expired…” He therefore asked the court to grant an extension of time.

5. The respondents opposed the applicant’s application for an extension of time. It was submitted that the applicant failed to proffer

any explanation for the delay in progressing matters from the time he received the advises of counsel in June 2014 until November

2014, when the proceedings were finally instituted. The respondent submitted that it was clear from the observations in the textbook,

“Civil Procedure in the Superior Courts”, 3rd ed., by Delaney and McGrath, that the new rules require much stricter adherence to time

limits for judicial review and that even where the court, on an ex parte application, has granted an extension of time, as happened in

this case, it is still a proper matter for the court on the application for judicial review to consider and have regard to. The learned

authors state as follows at para. 30-36:

“Even if leave is granted on the basis that any delay is not such as to disentitle the applicant from seeking judicial

review, the issue of delay may still be raised at the hearing of the substantive application and may debar an applicant

from obtaining relief at this stage.”

6. In this regard, reference was made to the judgment of Hederman J. in O’Flynn v. Midwestern Health Board [1991] 2 IR 223 where

he stated, at p. 236:

“Even if leave is granted at the ex parte stage, nonetheless, when the trial judge comes to hear the matter he must

adjudicate upon whether the delay was reasonable and such as may be excused or not.”

7. Order 84, rule 21(3) makes it clear that the court shall only grant an extension of time if it is satisfied that there is good and

sufficient reason for doing so, and that the circumstances which resulted in the failure to make the application within the time limits

were either outside the applicant’s control or could not reasonably have been anticipated by the applicant.

8. In this regard, I note the dictum of Costello J. in O’Donnell v. Dún Laoghaire Corporation [1991] ILRM 301 at p. 315:

“The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in

considering whether or not there are good reasons for extending the time I think it is clear that the test must be an

objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she

was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order

84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for

the delay.”

9. I am of the view that the applicant has provided a justifiable excuse for the delay that occurred from the point at which he avers

to having received the file containing the advices of counsel in June 2014, and his eventual initiation of proceedings in November

2014, some seven months after the decision of the Circuit Court.

10. In circumstances where the applicant had received an adverse finding against him in the Circuit Court and where he subsequently

fell out with the solicitor who represented him at that hearing, I accept his excuse that he had corresponded with the Appeals

Commissioners in relation to bringing an appeal against the Circuit Court decision and was told that he could proceed by way of an

application for a case stated or proceed by way of judicial review. He submitted his own handwritten application to the County

Registrar seeking to have a case stated on 24th April, 2014. Thus I am satisfied that the applicant did not sit back and do nothing.

11. While the applicant did receive his file from his former solicitor in June 2014, he was essentially a lay litigant at that stage. I

accept that he did not retain the services of his present solicitor, Mr Brannigan, until 7th October, 2014. It was only then that the

applicant became aware of the difficulties in proceeding by way of judicial review. He acted with considerable speed in retaining the

services of counsel to draft the necessary documentation. The ex parte application was moved on 24th November, 2014.

12. I am satisfied that in these circumstances, the applicant has established good and sufficient reason for extending the time within

which he be allowed to bring this application. I am further satisfied that after the breakdown of relations with his former solicitor, it

was essentially beyond the applicant’s control to institute the within proceedings within the statutory time limit.

13. Accordingly, I think that it is reasonable to extend the time up to and including 24th November, 2014, to bring this application for

judicial review.

Background to the substantive claim

14. The applicant was born on 3rd June, 1941. He has been a farmer all his life, and currently farms 164 acres of land in Co Waterford.

He availed of the so-called tax amnesty under the 1993 Act and obtained a certificate on 1st July, 1994, from the Chief Special

Collector under s. 2(4)(a) of the 1993 Act. The applicant averred that this applies to all taxes up to and including 1991/1992. The

certificate is in the following terms:

“No. 033568

CERTIFICATE

(Under section 2(4)(a) of the Waiver of Certain Tax, Interest and Penalties Act, 1993)

I CERTIFY THAT

In relation to JAMES DOYLE

of BAYLANDS, CAMOLIN, COUNTY WATERFORD

(1) I have received the declaration and the settlement amount referred to in section (2)(3) of the Waiver of Certain

Tax, Interest and Penalties Act, 1993;

(2) The settlement amount paid was £124.20

(amount in words) One hundred and twenty four pounds and 20 p

(3) The respective amounts of the declared amounts were:

Income £828.00

(amount in words) Eight hundred and twenty eight pounds only.

[Signed] Susan Cummins

PP (Special Collector)”

15. In response to a telephone call from the applicant, the Revenue Commissioners, by letter dated 25th May, 2001, informed the

applicant of the arrears of tax on his record for the years 1985-1999. Having set out the relevant figures, the letter states:

“I note that you referred to the amnesty in your telephone conversation. If you made a return to the Chief Special

Collector you should have received a form of evidence for production to the Collector General in respect of all years to

1991/92 inclusive. Please clarify this matter.”

16. The applicant averred that he was threatened with legal action by the Revenue Commissioners in respect of arrears of tax from

the years 1985/1986 and 1998/1999, but that on production of the amnesty certificate, which was accepted by the Revenue

Commissioners, and the payment of €4,000.00, the matter was fully settled. It should be noted that the respondents deny that the

applicant produced the amnesty certificate in 2001. In any case, on 2nd August, 2001, the applicant received a further letter from

the Revenue Commissioners acknowledging receipt of a cheque for the sum of £4,000.00 in full and final settlement of income tax

arrears from 1991/1992 to 1996/1997. The May 2001 investigation was therefore concluded.

17. It is common case that in 2005 the Revenue Commissioners launched an investigation into life assurance products. As part of that

investigation, an incentive disclosure was offered to taxpayers whereby voluntary disclosure by the taxpayer gave rise to certain

benefits, including reduced penalties.

18. On 18th May, 2005, the applicant submitted a qualifying disclosure in respect of tax defaults to the Revenue Commissioners’

Underlying Tax (Insurance Products) Project. These defaults were stated to be in respect of earnings between 1954 and 1980, which

amounted to around £100,000.00, and which had been invested in a life assurance product. It is common case that £57,000.00 was

invested on 1st July, 1991, and a further £42,775.00 was invested on 28th February, 1994. The applicant’s accountants informed the

Revenue Commissioners that this income had been earned from farming activities prior to 1980, at a time when the applicant was not

liable to pay income tax in respect of farming income.

19. By letter dated 18th October, 2006, the applicant was informed that his submission under the Life Assurance Product(s) Qualifying

Disclosure Scheme had been referred to the Revenue Commissioners and had been selected for examination in accordance with para.

10.2 of the Code of Practice for Revenue Audits.

20. Following the examination and audit, the Revenue Commissioners did not accept the applicant’s explanations in relation to the

sources of this additional sum of money, and amended notices of assessment were issued to the applicant on 22nd October, 2010, in

respect of undeclared income for the tax years ended 5th April, 1992, and 5th April, 1994. The applicant appealed the amended

notices of assessment and proceeded to an appeal hearing before the Appeal Commissioners, who upheld and confirmed the

assessments. The applicant appealed the decision of the Appeal Commissioners to the Circuit Court pursuant to s. 942 of the Taxes

Consolidation Act 1997, as amended.

21. In June 2013, the applicant produced the amnesty certificate of 1st July, 1994, to the Revenue Commissioners. A preliminary

application was made at the commencement of the hearing before His Honour Judge Hickson in the Circuit Court to the effect that,

when the applicant produced the amnesty certificate to the Revenue Commissioners in 2001, they were required to apply to the

Appeal Commissioners if they wished to challenge the veracity of the declaration on foot of which the certificate was obtained;

because they had not done so, the applicant submitted that the Revenue Commissioners were precluded from continuing their

enquiry. Judge Hickson refused the applicant’s application, stating that: “I don’t need to consider the amnesty. The correct and true

construction of the section has to be read in conjunction with whatever is set out in 955.2(a) but also 2(b).” The learned judge

stated that he was refusing the applicant’s preliminary application in respect of the amnesty. It is against the determination of the

preliminary point that the present application for relief by way of judicial review is brought.

22. The applicant’s case is that, having produced the amnesty certificate in 2001, the Revenue Commissioners are precluded from

enquiring or investigating into the tax affairs of the applicant covered by the amnesty, without invoking the procedure of applying to

the Appeal Commissioners; in other words, once the amnesty certificate was produced, the Revenue Commissioners were obliged to

respect its validity unless there was reason to doubt that the declaration made was true. The applicant contends that an application

must be made to the Appeal Commissioners that there are reasonable grounds to indicate that the declaration made to the Chief

Special Collector in relation to the tax amnesty is not true.

23. It is the Revenue Commissioners’ case that the 2001 investigation was different to that commenced in 2006. The Revenue

Commissioners contend that there is an obligation to produce the certificate within 30 days of the commencement of an enquiry by

the Revenue Commissioners, on each occasion on which the Revenue Commissioners seek to make an enquiry.

24. The applicant contends that no such obligation exists and that, while there is a distinction between the office of the Special

Collector and the Revenue Commissioners, once the amnesty certificate has been produced, the Revenue Commissioners are on notice

of it and are bound by the provisions of s. 5 of the 1993 Act.

25. The present application only impugns the correctness of the decision of the learned Circuit Court judge in refusing to accede to

the preliminary application made on behalf of the applicant. The Revenue Commissioners contend that the application under the

amnesty to the Circuit Court was misconceived, that the veracity of the applicant’s declaration under the amnesty is disputed, and

that this application for judicial review should therefore be refused.

The Reliefs Sought

26. The applicant is seeking the following reliefs:

(i) An order of certiorari by way of judicial review quashing the decision/order of the Circuit Court dated 9th April, 2014,

determining that the applicant was indebted to the Revenue Commissioners in the sum of €30,991.00 plus interest and

penalties thereon.

(ii) A declaration that there is no jurisdiction for either the respondent or any other party in any forum to hear and

determine, or carry out any enquiry, or make any Order, relating to the payment or non-payment of taxes for a relevant

period where there is in place an authorised and valid certificate for that relevant period, pursuant to s. 2(4) or s. 3(6)(c)

of the Waiver of Certain Tax, Interest and Penalties Act 1993.

(iii) A declaration that there is no jurisdiction for either respondent in any forum to hear and determine, or carry out any

enquiry, or make any order, relating to the payment or non-payment of taxes for the relevant period, where there is in

place for the relevant period, an authorised and valid certificate pursuant to s. 2(4) or s. 3(6)(c) of the Waiver of Certain

Tax, Interest and Penalties Act 1993, in circumstances where the Revenue Commissioners have not first applied to the

Appeal Commissioners as required, and where the said Commissioners have not satisfied themselves that there are

reasonable grounds to indicate that the declarations made, on which the aforesaid certificate was authorised, did not

contain a full and true statement of the declared amounts contained therein.

(iv) A declaration that the second named respondent is precluded from continuing with or commencing any enquiries

relating to the payment or non-payment of taxes or arrears of taxes for the relevant period for which an authorised and

valid certificate applies pursuant to s. 2(4) or s. 3(6)(c) of the 1993 Act, unless and until the Chief Special Collector of

the Revenue Commissioners first applies to the Appeal Commissioners, showing to the satisfaction of those Commissioners

that there are reasonable grounds which indicate that the relevant declarations made by the applicant did not contain a

full and true statement of the declared amounts upon which the certificate was authorised.

(v) An order of prohibition by way of judicial review, prohibiting the second named respondent from continuing with or

commencing any proceedings relating to, or connected with the recovery of monies or taxes for the period covered by the

certificate furnished to the applicant by the respondent on 1st July, 1994, unless and until the Chief Special Collector of

the second named respondent first applies to the Appeal Commissioners, showing to the satisfaction of those

Commissioners that there are reasonable grounds which indicate that the relevant declarations made by the applicant did

not contain a full and true statement of the declared amounts upon which the certificate was authorised.

(vi) An order extending the time granted to the applicant for liberty to seek leave and make an application for the judicial

review of the decisions of the respondents herein.

The Statutory Scheme

27. The Waiver of Certain Tax, Interest and Penalties Act, 1993 introduced a statutory scheme that became known as “the tax

amnesty”. The Act provides for what is essentially a two-tier amnesty, with different concessions accorded to each level. The first

amnesty, colloquially known as the “incentive” amnesty, provided for a 15 per cent tax write-down to cover Income Tax, Capital

Gains Tax and levies relating to income and gains accruing for the period to 5th April, 1991. This is the amnesty which the applicant

availed of in the present case. The second amnesty created under the Act, which was known as the “general amnesty”, was aimed

at taxpayers who had arrears of tax of which the Revenue Commissioners were aware, and is not relevant for present purposes. The

salient provisions of the 1993 Act are set out below.

28. Section 2(2) provides:

“(2) This section applies to an individual who, for the relevant period, was in receipt of income or had chargeable gains in

respect of which any tax (referred to in this Act as “relevant tax”) due and payable by him in accordance with any

provision of the Acts has not been paid…”

29. Section 1 provides that “the relevant period” means “any period ending on or before the 5th day of April, 1991…”

30. Section 2(3) provides that:

“(3) An individual to whom this section applies shall—

(a) within the specified period give a declaration in writing to the Chief Special Collector which—

(i) is made and signed by the individual,

(ii) is in a form prescribed by the Revenue Commissioners and approved of by the Minister,

(iii) contains, in relation to the individual, a full and true statement of the respective amounts (referred to in this

Act as “the declared amounts”) of—

(I) the income, and

(II) the chargeable gains…”

31. Section 2(4) provides:

“(4) On receipt by him of the declaration referred to in subsection (3) and the settlement amount, the Chief Special

Collector shall give to the individual concerned—

(a) a certificate, in a form prescribed by the Revenue Commissioners and approved of by the Minister, stating, in

relation to that individual—

(i) his name and address,

(ii) the settlement amount paid by him, and

(iii) the respective amounts of the declared amounts…”

32. Section 2(5) provides:

“(5) Notwithstanding any other provision of the Acts but subject to section 4, where an individual to whom this section

applies complies with the provisions of subsection (3)—

(a) his liability to relevant tax in respect of the declared amounts—

(i) shall be deemed to be satisfied by the settlement amount, and

(ii) shall not be arrears of tax…”

33. Section 4 of the Act provides:

“(4)(1) The provisions of sections 2 (5) and 3 (4) shall not apply, and those provisions shall be deemed never to have

applied, to a person where—

(a) such person fails—

(i) if he is an individual, for the year of assessment 1992-93, or

(ii) in any other case, for any accounting period ending in the year beginning on the 1st day of

January, 1993, and ending on the 31st day of December, 1993,

to duly deliver a return of income on or before the specified date in relation to that return, or

(b) (i) a declaration given by such person to the Chief Special Collector under subsection (3) (a) of section 2 —

(I) did not contain a full and true statement of the kind referred to in subparagraph (iii) of the said

subsection, or

(II) is proven to be false in so far as the requirements of subparagraph (iv) of the said subsection are

concerned,

or

(ii) a declaration given by him to the Chief Special Collector under subsection (6) (b) of section 3 did not contain a

full and true statement of the kind referred to in subparagraph (III) of the said subsection, or

(c) the amount paid or remitted by him in respect of arrears of tax was less than the arrears of tax due and

payable by him,

and any certificate issued to that person pursuant to section 2 (4) or section 3 (6) (c) shall be null and void.”

34. Section 5 of the 1993 Act provides:

“5.(1) Where, in relation to any liability to tax (within the meaning of section 2 or 3 , as the case may be) of an

individual for the relevant period, being tax which has been remitted to the Chief Special Collector, an inspector or other

officer of the Revenue Commissioners commences to make such enquiries, or take such action, as are within his

powers, or gives a notice in writing to an individual of his intention to make such enquiries or take such action in relation

to such liability to tax and the individual produces to the inspector or other officer, not later than 30 days from the

commencement of the said enquiries or the taking of the said action, or the giving of the notice as aforesaid, a

certificate referred to in section 2 (4) or 3 (6) (c), as the case may be, in respect of such liability to tax given to him by

the Chief Special Collector, the inspector or other officer shall, on production to him of the said certificate and on

validation of that certificate in accordance with the provisions of paragraph (a) of the proviso to section 7 (4), be

precluded from continuing with or commencing the said enquiries or continuing with or commencing the said action

unless, on application by him to the Appeal Commissioners, he shows to the satisfaction of those Commissioners that—

(a) enquiries made or action taken in relation to the liability to tax (within the aforesaid meaning) of the individual

for any period commencing on or after the 6th day of April, 1991, indicate, or

(b) there are other reasonable grounds which indicate,

that a declaration made by the individual to the Chief Special Collector under section 2 (3) (a) or 3 (6) (b) did not

contain a full and true statement of the declared amounts or the amount of value-added tax comprised in the

arrears of tax, as the case may be.

(2) (a) An application by the inspector or other officer under subsection (1) shall be made by him by notice in

writing to the Appeal Commissioners within 30 days of the receipt by him from the individual concerned of the

certificate referred to in section 2 (4) or 3 (6) (c), as the case may be, given to that individual by the Chief

Special Collector, and a copy of the application shall be furnished as soon as practicable by the inspector or other

officer to the individual concerned.

(b) An application under subsection (1) shall, with any necessary modifications, be heard by the Appeal

Commissioners as if it were an appeal against an assessment to income tax.

(c) Any action required to be taken by the individual and any further action proposed to be taken by the inspector

or other officer pursuant to the inspector's or other officer's enquiry or action shall be suspended pending decision

by the Appeal Commissioners on the application.

(d) Where, on the hearing of the application by an inspector or other officer under subsection (1), the Appeal

Commissioners—

(i) decide that there are no reasonable grounds to suggest that the declaration made by the individual

to the Chief Special Collector under section 2 (3) (a) or 3 (6) (b) did not contain a full and true

statement of the declared amounts or the amount of value-added tax comprised in the arrears of tax,

as the case may be, then the individual shall not be required to take any action pursuant to the

inspector's or other officer's enquiry or action and the inspector or other officer shall be prohibited

from pursuing his enquiry or action, or

(ii) decide that there are such reasonable grounds, then the inspector or other officer may continue

with his enquiry or action.

35. In her judgment in The Comptroller and Auditor General v. Ireland [1997] 1 IR 248, Laffoy J. provided the following useful

overview of the provisions of the 1993 Act:

“Section 2 of the Amnesty Act identified the taxes to which the incentive amnesty applied — primarily, income tax and

capital gains tax. Section 2 also identified the persons eligible to avail of the incentive amnesty, namely, individuals who

owed tax on declared or undeclared income or gains in respect of any period ending on or before the 5th April, 1991, but

there was a proviso to s. 2, sub-s. 2 which, in broad terms, excluded from the scope of the incentive amnesty the

following persons and taxes:

(a) individuals who were subject to audit or investigation before 25th May, 1993;

(b) tax which was subject to specified enforcement procedures before 25th May, 1993; and

(c) tax in respect of income or chargeable gains which arose from or by reason of an illegal source or activity.

In effect, that proviso imposed certain eligibility pre-conditions to participation in the incentive amnesty.

The inducement to participate in the incentive amnesty was threefold. First, tax at a concessionary rate of 15 per cent

was accepted in satisfaction of outstanding tax. Secondly, any interest due on the outstanding tax was waived and

penalties forgiven. Thirdly, the incentive amnesty was to be administered by a special collection unit staffed by the chief

special collector and special collectors who were bound by a declaration of confidentiality so as to ensure confidentiality

and anonymity for the participating taxpayers.

The incentive amnesty operated on a self-assessment basis. A participating individual was required to give to the chief

special collector by the 30th November, 1993, a full and true declaration of all income and chargeable gains in respect of

which tax was unpaid embodying a statement that the declared amounts did not arise from or by reason of an unlawful

source or activity. He was further required, either contemporaneously with the signing of the declaration or, in any

event, not later than 14th January, 1994, to remit to the chief special collector an amount equal to 15 per cent of the

declared amounts. By s. 2, sub-s. 4 the special collector was required to issue to each participating individual two

documents: a certificate setting out his name and address, the settlement amount paid by him and the respective

amounts of the declared amounts; and evidence that such a certificate had been given.”

36. The learned judge went on to state at p. 255:

“Section 4 provided that the benefits accruing to a person who participated in the incentive amnesty would be

withdrawn ex post facto by the waiver of interest and penalties being cancelled and the settlement amount being

treated as a payment on account of tax due in the circumstances outlined in that section, for example, in the case of

an individual who failed to deliver a return of income for the year of assessment 1992/1993, by the 31st January, 1994,

or where a declaration submitted to the chief special collector in accordance with s. 2 did not contain a full and true

statement of income and chargeable gains.”

37. As regards s. 5, Laffoy J. observed:

“Section 5 was designed to preclude any inquiry or action by an inspector or other officer of the Revenue Commissioners

in relation to liability to tax for a period in respect of which an individual participated in the incentive amnesty. If an

individual produced a certificate issued by the chief special collector under s. 2, sub-s. 4 and that certificate was

validated by the chief special collector, the inspector or other officer was precluded from continuing with his inquiry or

action unless, on application by the inspector or other officer to the Appeal Commissioners, the Appeal Commissioners

were satisfied that there were reasonable grounds to suggest that the declaration made by the individual to the chief

special collector under s. 2 did not contain a full and true statement of income and chargeable gains as required by

section 2.”

The submissions of the applicant

38. The applicant submitted that the learned Circuit Court judge erred in law in holding on the preliminary hearing, either expressly or

by implication, that the Revenue Commissioners were entitled to commence an enquiry pursuant to s. 922(2)(b) or otherwise, without

considering the consequences and effect of an amnesty certificate previously produced to the Revenue Commissioners in respect of

the years in issue.

39. It was submitted that the judge erred in fact and in law in accepting the Revenue Commissioners’ submission that the burden of

proof was on the applicant, and that the principles enunciated in Mennolly Homes Ltd v. Appeal Commissioners [2010] IEHC 56

applied. In this regard, it was submitted that s. 5 of the 1993 Act shifts the burden of proof to the Revenue Commissioners by

operation of statute and, therefore, the Mennolly Homes decision had no application in this instance.

40. The applicant submitted that the appropriate interpretation of s. 5 is that the legislature was acutely aware of the necessity to

ensure fair procedures and the protection of the rights of an individual enshrined under Article 40 of the Constitution are not

breached, when a body such as the Revenue Commissioners asserts and accuses a person of making an untruthful declaration which

could attract a criminal sanction. It was submitted that where such an assertion is made, no enquiry may proceed or commence into

matters which cover the period of the certificate at any subsequent stage, in circumstances where the individual has previously

produced an amnesty certificate within the correct time period in accordance with law, except by way of an application to the

Appeals Commissioner as prescribed.

41. The applicant submitted that the expression “precluded from continuing with or commencing said enquiries” in s. 5(1) means

precluded, and refers to all such enquiries subsequent to the production of the amnesty certificate. The applicant contended that if

that was not the correct interpretation of the legislation, it would set at nought the benefit and purpose of the amnesty, because the

Revenue Commissioners could continually make new enquiries and require that the certificate be produced on multiple occasions. It

was submitted that that was neither the meaning nor the intention of the legislation.

42. The applicant submitted that the learned Circuit Court judge was wrong to dismiss that issue without considering the legal effect

of the amnesty certificate. He proceeded to hear the case on its merits, without considering whether the investigation itself was

valid, having regard to the 1993 Act. The applicant submitted that he was thereby denied the opportunity of having that matter

considered; it was further submitted that the decision of the Circuit Court was wrong in law, unfair and should be quashed.

The submissions of the respondent

43. The respondent submitted that the applicant had not furnished an amnesty certificate to the Revenue Commissioners within 30

days of the Revenue Commissioners commencing enquiries as required by s. 5. The respondent stated that the applicant accepted

that the enquiries, the subject of the present proceedings, commenced in 2005, and the applicant received notification of further

enquiries on 18th October 2006. The enquiries culminated in the raising of amended assessments in respect of the applicant on 22nd

October, 2010. The applicant appealed these assessments.

44. The respondents submitted that despite this, the amnesty certificate was produced on behalf of the plaintiff for the first time on

27th June, 2013, when the applicant’s appeal was listed for hearing before the Circuit Court.

45. The respondents submitted that in making his application to the Circuit Court, counsel for the applicant relied only upon the

production of the certificate to the Revenue Commissioners in 2001 in support of the contention that the applicant had produced the

certificate at all. The respondents submitted that the earlier enquiry was fully settled and closed on 2nd August, 2001. It was

submitted that, accordingly, referring to a notification of the certificate made in the context of that matter, could not avail the

applicant in relation to enquiries commenced in 2006, and culminating in an amended assessment in 2010 and an appeal hearing

thereafter. The later enquiry was entirely independent of that concluded in 2001; moreover, it arose from new information, not known

in 2001, which was derived from the applicant’s own voluntary disclosure made in May 2005, that he had invested £57,000.00 in a

single premium insurance policy in July 1991, being a year in which he returned taxable income of £6,241.00.

46. The respondents submitted that the learned trial judge was therefore correct to refuse the applicant’s preliminary submission that

the Revenue Commissioners were obliged under s. 5 of the 1993 Act to apply to have the certificate set aside and/or that the appeal

should be stayed to permit this to happen. It was submitted that it was a necessary precondition for such a submission that the

certificate in question had been produced “to the inspector or other officer, not later than 30 days from the commencement of the

said enquiries or the taking of the said action…”

47. The respondents submitted that since this had not been done, and no evidence was adduced by the applicant that it had been

done, the learned Circuit Court judge was correct not to accede to the application and to conclude that he did not need to consider

the amnesty certificate as a preliminary point.

48. The respondents stated that no application was made for an adjournment to allow the Circuit Court’s preliminary ruling to be

reviewed by this court; instead, the appeal proceeded and no complaint was made in relation to the fairness thereof, or that the

learned Circuit Court judge acted in a biased or prejudicial manner.

49. In conclusion, the respondent submitted that the Circuit Court was asked to determine whether the production of the certificate

required the suspension of the hearing pending an application being made by the Revenue Commissioners under s. 5(1) of the 1993

Act. The respondent added that in light of the date upon which enquiries commenced, the date of the amended assessment and the

failure to rely upon any event (other than an event in 2001) in support of the contention that the certificate had been produced

within the thirty days provided for under s. 5(1) of the 1993 Act, the learned Circuit Court judge had correctly refused the preliminary

application, and correctly decided the case based on the applicable provisions of the Taxes Consolidation Act 1997.

50. Finally the respondent submitted that if the Circuit Court judge was in error in the manner in which he dealt with the preliminary

issue raised on behalf of the applicant in relation to the 1993 Act, such error did not deprive him of jurisdiction to hear the appeal or

determine the applicant’s liability on foot of the assessment to tax, which was the subject matter of the appeal.

Decision

51. The central issue arising for the determination of the court in this case is a net point of statutory interpretation: was the

applicant required to produce the amnesty certificate with which he had been issued by the Chief Special Collector pursuant to s.

2(4)(a) of the Waiver of Certain Tax, Interest and Penalties Act, 1993, on each occasion on which the Revenue Commissioners

commenced an enquiry into his tax affairs; or was the production of the certificate in 2001 sufficient to preclude all future enquiries

into the applicant’s tax liabilities in respect of the period covered by the amnesty, i.e. up to 4th April, 1991? While it is contested

between the parties as to whether the applicant did in fact produce the amnesty certificate in 2001, it is not necessary for the court

to make a determination on that issue, unless I find that that production of the certificate in 2001 precluded all subsequent enquiries

by the Revenue Commissioners into tax liabilities covered by the certificate, including the enquiry commenced in 2006, which is the

subject matter of the present proceedings.

52. Section 5 of the 1993 Act provides that where an inspector or other officer of the Revenue Commissioners “commences to make

such enquiries or take such action, as are within his powers” in relation to liability to tax of an individual for the period before 5th

April, 1991, and the individual produces an amnesty certificate to the inspector, within 30 days of the commencement of the said

enquiries, the inspector shall be precluded from commencing or continuing with the enquiries, unless he satisfies the Appeal

Commissioners that there are reasonable grounds which indicate that the declaration made by the individual, on foot of which the

amnesty certificate was obtained, did not contain a full and true statement of the declared amounts. The burden of proof in this

regard rests on the inspector.

53. The inspector’s application to the Appeal Commissioners must be made within 30 days of his receipt of the individual’s amnesty

certificate. If the Appeal Commissioners decide that there are no reasonable grounds to suggest that the declaration made by the

individual did not contain a full and true statement of the declared amount, then “the inspector or other officer shall be prohibited

from pursuing his enquiry or action…” If, however, the Appeal Commissioners decide that there are such reasonable grounds, then

the inspector “may continue with his enquiry or action.”

54. The applicant has submitted that the expression “precluded from continuing with or commencing the said enquiries” in s. 5(1)

means precluded on a permanent basis, and refers to all such enquiries subsequent to the production of the amnesty certificate. The

applicant has contended that if this interpretation was not correct, it would set at nought the benefit and purpose of the amnesty

because the Revenue Commissioners could continually make new enquiries and require that the certificate be produced on multiple

occasions.

55. If the applicant’s construction were accepted, however, it would mean that where an inspector or other officer of the Revenue

Commissioners commenced enquiries in respect of an individual, and that individual produced an amnesty certificate, unless the

inspector had sufficient evidence at that time to satisfy the Appeal Commissioners that there were reasonable grounds to indicate

that the declaration made by the individual to the Chief Special Collector under s. 2(3)(a) on foot of which the amnesty certificate

was obtained, did not contain a full and true statement of the declared amounts, then the enquiry would be precluded, and indeed

the Revenue Commissioners would forever thereafter be precluded from commencing enquiries into the tax liabilities of the individual

covered by the amnesty certificate.

56. This would mean that even if reasonable grounds for believing that the individual had not made a full and true declaration arose

after the original enquiry had been commenced, and then terminated by the production of an amnesty certificate, the Revenue

Commissioners would nevertheless be precluded from commencing an enquiry into these matters.

57. It seems to me that the effect of such a construction would be to afford improper protection to individuals who provided false

declarations to the Chief Special Collector and obtained amnesty certificates on foot thereof. Such an individual, having successfully

produced his certificate in response to an enquiry by the Revenue Commissioners on one occasion, when the Revenue Commissioners

had insufficient information upon which to satisfy the Appeal Commissioners that there were reasonable grounds for believing that the

individual’s declaration was not full and true, would be protected in perpetuity, even in circumstances where, for example, new and

compelling evidence subsequently emerged which indicated that his declaration was not full and true.

58. The 1993 Act, however, is predicated on a full and true declaration having been made. Section 5 cannot therefore be construed

in such a way as to protect individuals who have breached the provisions of the Act and dishonestly obtained an amnesty certificate.

Indeed, s. 4 makes it clear that if the declaration was not full and true, then the amnesty certificate obtained on foot thereof was

null and void.

59. In giving s. 5(1) its true construction, it is necessary to have regard to the section as a whole. Section 5(2)(d) provides that

where the Appeal Commissioners decide that there are no reasonable grounds to indicate that the individual’s declaration was not full

and true, the inspector “shall be prohibited from pursuing his enquiry or action”; if, however, the Appeal Commissioners find that

there are such reasonable grounds, then the inspector “may continue with his enquiry or action.”

60. A careful reading of these provisions leads to the conclusion that the terms of s. 5 are confined to the singular enquiry or action

commenced by the inspector at the particular time – the references in s. 5(2)(d) are to “his enquiry or action” [Emphasis added]. It

seems to me, therefore, that even where an inspector has commenced enquiries, has been met with the production of an amnesty

certificate, and has applied unsuccessfully to the Appeal Commissioners, with the result that “his enquiry or action” is prohibited in

accordance with s. 5(2)(d)(ii), that does not preclude other separate enquiries being commenced in the future. The wording of s. 5(2)

(d)(i) is quite clear in this regard: the particular inspector “shall be prohibited from pursuing his enquiry…” There is nothing to suggest

that the Revenue Commissioners are thus precluded from commencing enquiries in perpetuity, as has been contended for by the

applicant.

61. The wording of s. 5(1) seems to me to be similarly clear: it provides that where, in relation to any liability to tax, an inspector or

other officer of the Revenue Commissioners commences to make enquiries in relation to the tax liabilities of an individual for the period

before 5th April, 1991, and the individual produces an amnesty certificate, the inspector shall be precluded from continuing with or

commencing the said enquiries unless he satisfies the Appeal Commissioners that there are reasonable grounds to suspect that the

declaration on foot of which the certificate was obtained was not full and true; in other words, the inspector who commenced the

enquiries shall be precluded from proceeding with them. There seems to me to be nothing in the wording of s. 5(1) that suggests that

the Revenue Commissioners would be forever precluded from commencing enquiries in respect of the individual; the wording seems to

be limited to the preclusion of the particular enquiries commenced by the particular inspector at the relevant time.

62. Accordingly, I am of opinion that the true construction of s. 5 is that the taxpayer is obliged to produce the amnesty certificate in

response to each enquiry that may be initiated by the Revenue Commissioners. This enables the inspector or other officer of the

Revenue Commissioners, in circumstances where they may have received new information, to commence enquiries, and if an amnesty

certificate is produced, to apply to the Appeal Commissioners for authorisation to continue. If the individual has made full and true

declarations in order to obtain a certificate, then he has nothing to fear. If, however, the individual has made false declarations and

has obtained a certificate on foot thereof, that certificate shall be deemed to be void in accordance with s. 4(1) of the 1993 Act.

63. In this case, even if I were to accept that the applicant produced his amnesty certificate in respect of the 2001 enquiry, that

would not assist him: on the true construction of s. 5, the applicant was in fact required to produce the certificate in response to the

2006 enquiry if he wished to avail of the protection which it affords. He did not do so; indeed he delayed doing so until 2013, when

the present proceedings were listed before the Circuit Court. This clearly was outside of the 30 day time limit laid down by s. 5.

Accordingly, I am satisfied that the learned trial judge was correct in determining that he did not need to consider the amnesty

certificate as the applicant had not produced the certificate in respect of the enquiry which was under consideration, and which

forms the subject matter of the present proceedings.

Conclusion

64. For the reasons set out above, the applicant’s application for judicial review is refused.