The High Court has sent a tax appeal case back to the Tax Appeals Commissioners for amendment, finding that the legal questions prepared for the court did not properly or fully reflect the points raised by Thomas McNamara.
Mr Justice Max Barrett made the order on 12 July 2021 under section 949AR(2) of the Taxes Consolidation Act 1997. The court did not decide whether the underlying tax assessment was correct. It directed that the case stated be amended and said the transcript of the proceedings before the Appeal Commissioner should be appended.
The dispute concerns an amended capital gains tax assessment for 2007, issued in August 2014. It relates to a gain on the 2007 sale of the Texas department store and associated land and buildings in Tullamore, County Offaly. The Tax Appeals Commission issued its determination on 16 January 2020.
McNamara sought the High Court’s opinion on points of law. The case stated prepared by the Commission set out three questions: whether the sale was a sale of development land; whether statutory requirements for an additional ground of appeal had been met; and whether errors in the tax return meant it lacked a full and true disclosure, leaving the amended assessment within time.
McNamara applied to have those questions amended, arguing that they left out issues raised in his notice seeking the case stated. These included challenges to the expert evidence and findings about the land, the Commission’s reasons for refusing an additional appeal ground, reliance on professional tax advice, and the time limit for the assessment.
The court agreed that the three questions did not adequately capture the points of law in the notice. It said the mismatch was extensive enough that the case stated would need to be reformulated, and that the court should not amend it itself. The judge also concluded that, given the breadth and detail of McNamara’s criticisms, fairness and efficiency required the hearing transcript to be included.
The court’s order returns the case to the Commissioners for amendment. The judgment does not resolve the tax appeal or determine the correctness of the assessment. The court said it would hear the parties on costs.