The High Court refused an application by the Revenue Commissioners to strike out Dennis O’Brien’s appeal against a Circuit Court order refusing to list his tax appeal for hearing. It held that the Circuit Court order was procedural and did not fall within the statutory restriction on appeals from decisions made after a rehearing of a tax appeal.
The dispute arose after the Appeal Commissioners determined in July 2011 that a Revenue inspector was not precluded from continuing an inquiry into O’Brien’s 1999–2000 tax return. The inquiry concerned whether the return was insufficient because it had been completed negligently, including in connection with an exchange of shares in ESAT Telecom for loan notes issued by BT Hawthorn Limited.
O’Brien invoked two routes to challenge the determination: a case stated to the High Court on a point of law and a rehearing before the Circuit Court. The case stated was later struck out by consent after it was transmitted outside the statutory seven-day period. The parties disputed whether O’Brien had elected to proceed by case stated and so could no longer pursue a Circuit Court rehearing.
In July 2013, Circuit Court Judge Linnane refused O’Brien’s application to have the rehearing listed. O’Brien appealed that order to the High Court. The Revenue Commissioners argued that section 31(2) of the Courts of Justice Act 1936 barred the appeal because the Circuit Court had made a decision in proceedings concerning a tax appeal. O’Brien’s position was that the Circuit Court had dealt only with a procedural application and had not reheard or determined the underlying tax appeal.
Mr Justice Barton found that section 31(2) applies to decisions made by the Circuit Court upon a rehearing of the subject matter of the tax appeal. The Circuit Court had not received the prescribed form recording the Appeal Commissioners’ determination, and no rehearing had been arranged. The order refusing to list the appeal therefore was not a decision on the appeal within the meaning of the statutory bar.
The High Court refused the Revenue Commissioners’ application to strike out O’Brien’s appeal. It did not decide the merits of the appeal against the Circuit Court’s refusal to list the rehearing, nor the underlying tax dispute. The judge said he would discuss with counsel the form of the final orders required.