The Supreme Court has ruled that a taxpayer cannot appeal to the Circuit Court midway through a tax appeal, after the Appeal Commissioners decide that Revenue was entitled to assess tax outside the ordinary time limits. The taxpayer may appeal once the commissioners have made a final decision on liability and the amount of tax due.
The ruling arose from assessments issued in February 2006 to Brendan O’Rourke for 16 tax years, from 1985/86 to 2001. Revenue claimed a cumulative liability of about €15 million. O’Rourke had lodged returns for the years concerned, but Revenue questioned their accuracy.
O’Rourke appealed the assessments on several grounds. These included that they were out of time, that he was not resident or domiciled in Ireland for the relevant years, and that he had not received or been entitled to the income assessed. Those were grounds raised in the tax appeal; the Supreme Court was not deciding the final tax liability or the amount payable.
In March 2009, an Appeal Commissioner ruled that the assessments were not barred by time limits because the returns had not made full and true disclosure of material facts. The commissioner said that ruling addressed only the time-limit issue and left the other grounds available. When O’Rourke sought to appeal that ruling immediately, the commissioner held that there was one appeal, to be taken after the full tax appeal was determined.
The High Court dismissed O’Rourke’s judicial review challenge in 2010. He then appealed to the Supreme Court, seeking to establish a right to go to the Circuit Court before the other grounds were decided.
Delivering judgment on 2 June 2016, Mr Justice Charleton said the tax legislation provides for an appeal after the Appeal Commissioners’ determination of the assessment. They can affirm, reduce or increase the assessed liability. A ruling on whether Revenue could issue an assessment outside the relevant time limit is an intermediate finding: it does not determine the appeal while questions about liability and the amount of tax remain.
The Court dismissed the claim to an interim appeal. It held that a taxpayer may appeal to the Circuit Court after the commissioners make a final decision on liability and the amount of tax, and may then rely on any ground available under the Taxes Consolidation Act 1997. The Court did not decide whether the assessments in this case were actually within time, or resolve the outstanding grounds concerning residence, income or the amount claimed.