The Supreme Court has dismissed Ronan McNamee’s appeal against a Revenue notice of opinion concerning transactions linked to his and his wife’s capital gains tax liability. The court upheld the High Court’s decision, finding no error in its conclusions on notification timing, alleged bias or fair procedures.
The notice, issued on 24 August 2011 under section 811 of the Taxes Consolidation Act 1997, concerned transactions with Schroders. The judgment records that the Revenue Commissioners said the arrangements produced an allowable foreign exchange loss of about €25.6 million, alongside a gain on Irish government gilts, and that the claimed tax advantage was €5,121,107.60. The taxpayer’s account and the Revenue’s understanding of the transactions differed. The Supreme Court stressed that the transactions’ nature and tax treatment were for the Appeal Commissioners to decide; those factual matters were not decided in this judicial review appeal.
McNamee challenged the notice on three grounds. He argued that Revenue had formed its opinion well before 24 August 2011 and failed to notify him immediately, that the nominated officer was affected by pre-judgment, and that refusing to provide the report and expert material submitted to that officer made the process unfair.
On timing, the court found the High Court was entitled to conclude that Revenue’s investigation was still developing until mid-2011. It referred to correspondence showing that officials were seeking to understand how the currency and gilt transactions were connected, and to expert reports that were completed shortly before the final stage. The nominated officer received the report on 22 August 2011, formed his opinion on 24 August and arranged for the notice to issue that day. The Supreme Court said the nearly two-year investigation was conducted to assess the particular transactions and that the High Court’s finding of immediate notification was supported by the evidence.
The court also rejected the bias challenge. It found no evidence that the nominated officer had formed an earlier view or that the notice was tainted by actual or apparent bias. The judgment described the section 811 assessment as an administrative stage followed by an appeal process, rather than a tribunal hearing.
On procedure, the court held that section 811 did not require Revenue to provide its report or expert material before the opinion was formed. The taxpayer had been invited to make a written submission, though Revenue declined to provide the report requested by his advisers. The court said the statutory appeal to the Appeal Commissioners allowed relevant facts, including matters not known when the opinion was formed, to be considered. Further appeals were available to the Circuit Court and, on a point of law, the High Court.
The appeal was dismissed. The Supreme Court did not determine whether the transactions were tax avoidance transactions or whether the claimed tax advantage was correctly calculated; those issues remained for the statutory appeal process.