The High Court has granted five anonymised applicants leave to seek judicial review of a Tax Appeals Commissioner’s decision on who bears the burden of proof in their tax appeals. It also stayed those appeals for the applicants only until the judicial review is determined.
Mr Justice Conleth Bradley ruled on 1 November 2023 that the applicants’ challenge to the Commissioner’s decision of 1 December 2022 was arguable. The ruling was made at the leave stage, where the question was whether the claim was stateable. It did not decide whether the Commissioner’s approach to the burden of proof was lawful.
The applicants argue that, when tax residency is disputed in an appeal against an assessment, Revenue must establish that the person is chargeable in Ireland. They say the Commissioner erred in placing the burden on them to prove they were not resident in the State. The Commissioner had reached that position in a decision on 13 October 2022 and, on 1 December, declined to vary it after considering further submissions and two additional authorities.
The notice party, the Criminal Assets Bureau, argued that the challenge was out of time because the grounds first arose from the October decision. It submitted that asking the Commissioner to revisit that decision did not restart the three-month period for seeking judicial review.
The judge distinguished the case from earlier decisions concerning a decision-maker’s later repetition of an earlier ruling. Here, after the October decision, the Commissioner agreed to consider further legal authorities, allowed submissions from both sides and undertook to issue an updated decision. The judge held that the applicants were in time to challenge the December decision. The substantive hearing will assess the consequences, if any, of that challenge.
The court also considered whether the tax appeals should continue while the judicial review is pending. Applying the agreed test of where the greatest risk of injustice lay, the judge granted a stay under Order 84, rule 20(8) of the Rules of the Superior Courts. The stay covers references 184/16 to 188/16 and is expressly limited to these applicants; it lasts until the judicial review is determined.
The court reserved the question of costs of the leave application and asked the applicants to notify the Commissioner of the ruling.