The High Court quashed an Appeal Commissioner’s refusal to adjourn a taxpayer’s appeals against nine income tax assessments, but refused to stop those appeals until related criminal proceedings are determined.
In a judgment delivered on 18 March 2005, Ms Justice Finlay Geoghegan held that the Appeal Commissioner had not considered submissions that proceeding with the tax appeals could affect the applicant’s right to a fair trial and privilege against self-incrimination. She remitted the matter to the Appeal Commissioner for a fresh determination.
The Criminal Assets Bureau assessed the applicant to income tax for nine assessment periods, from the year ended 5 April 1994 through the period ended 31 December 2001. The applicant faced three charges of failing to deliver tax returns, relating to the years ended 5 April 1994, 1995 and 1996. He had been sent forward for trial to the Circuit Court on those charges.
The applicant sought an adjournment of all nine tax appeals until the criminal proceedings concluded. The Appeal Commissioner refused, describing the criminal proceedings as unconnected to the assessment issues and saying he should proceed unless a court directed otherwise. The High Court found that he was required to consider the claimed constitutional risk before deciding whether to proceed.
The court nevertheless refused the requested injunction. It said there was no absolute rule requiring civil proceedings, including tax appeals, to wait for a criminal trial. The applicant had to establish a real risk of prejudice or injustice on the facts.
For the three years covered by the charges, the notice party conceded that the same factual question—whether the applicant had income that made him a chargeable person—would arise in both forums. But the court found no evidence that the applicant would need to give self-incriminating evidence in the tax appeals. His stated grounds were that he had no taxable income in those years, and the judgment records that he had not proposed to rely on other grounds.
The court also noted the parties’ agreement that evidence given in the tax appeal would not lead to further lines of investigation into other evidence or witnesses in the criminal case. It said different facts could require the Appeal Commissioner to reconsider the risk, while admissibility at any criminal trial would be for the trial judge to decide.
The court therefore made an order of certiorari quashing the refusal, refused the injunction, and remitted the adjournment matter to the Appeal Commissioner. It did not order the tax appeals to be adjourned.