The High Court has dismissed Denis O’Brien’s appeal against a Circuit Court decision refusing to list his tax appeal for rehearing. It held that he had made a binding choice to pursue a case stated in the High Court, although that case was later struck out because it was lodged outside the statutory time limit.
The dispute arose after an Appeal Commissioner ruled in July 2011 that a tax inspector could make enquiries about O’Brien’s 1999/2000 tax return. O’Brien gave notice within the required periods that he wanted both a case stated for the High Court and a rehearing in the Circuit Court. The legislation did not specify when or how a taxpayer must choose between those routes.
The case stated was signed and sent to O’Brien’s solicitors in November 2012. They lodged it in the High Court on 30 November, after the seven-day deadline. Revenue later applied to strike it out. In July 2013, Laffoy J. granted that application for failure to meet the statutory transmission deadline.
While that application was pending, O’Brien asked the Circuit Court to list his rehearing appeal. The Circuit Court judge refused, finding that he had chosen the case stated procedure by pursuing it and transmitting it to the High Court. O’Brien appealed that refusal.
The High Court held that the two procedures could not run in parallel because each court’s jurisdiction would conflict with the other’s. It said the binding choice arose when a taxpayer took a step incompatible with the alternative procedure. Drafting, agreeing or signing a case stated did not, by itself, reach that point; lodging it in the High Court did.
The judge did not decide whether an out-of-time case stated could ever proceed. She said that question had not been argued. For this appeal, she proceeded on the basis that the case stated had been lodged with the intention of invoking the High Court’s jurisdiction. Its later strike-out did not erase the choice from the outset or restore the Circuit Court’s jurisdiction.
The ruling was limited to the circumstances before the court, where the taxpayer had carriage of the case stated and had lodged it in the High Court. The appeal was dismissed.