Note: This article was published in the October 2015 issue of Finance Dublin.
Following a commitment made by Michael Noonan to review the tax appeals process and a pre-legislative scrutiny process by the Oireachtas Joint Committee on Finance, Public Expenditure and Reform (the “Joint Committee”) the Finance (Tax Appeal) Bill 2015 (the “Bill”) was published on 17 July 2015. The Bill overhauls the tax appeals process in Ireland and it is likely to be signed into law towards the end of 2015.
The Bill provides for the establishment of a new body called the “Tax Appeals Commission”/“Commission”. The Commission will, in due course, replace the Office of the Appeal Commissioner. Some of the measures being introduced are new but others merely put on a statutory footing what was already the practice and procedure in the area. An analysis of all the changes in the Bill is beyond the scope of this article but some of the main areas of note include:
- Tax Appeal Hearings may be held in public or private
Under the current tax appeals process hearings before the Appeal Commissioners are held in private. The Draft Heads provided for tax appeals to be heard in public subject to extremely limited exceptions on grounds of public interest and security. In my submission to the Joint Committee in January 2015 I pointed out that the introduction of the public hearing of tax appeal cases would constitute a serious impediment to taxpayers appealing a tax matter on the basis that in a very small jurisdiction such as Ireland individuals and corporates wish to maintain privacy over their tax affairs and finances.
Although the default position in the Bill is that all hearings before the Commission will be held in public importantly the Bill permits the taxpayer to request a hearing (or aspects of it) to be held in private. This change from the Draft Heads is welcome. Tax appeals involving overriding issues of public order, national security, sensitive information, protection of a person’s right to respect for his or her private or family life and the interests of justice will automatically be held in private.
- Publication of decisions
Appeal Commissioners are not currently obliged to publish their decisions. The Bill requires publication of the determinations of the Commission on the internet within 90 days of notification of the determination. It also permits the Commissioner to provide copies of previous determinations (redacted) that dealt with “common or related issues” and (where the parties do not object) determine the appeal without a hearing.
The publication of decisions is positive and should both speed up the appeals process and also help taxpayers make an informed decision before embarking in tax litigation.
- Appeal to Circuit Court abolished
Under the existing tax appeal process a taxpayer who is aggrieved by the determination of an Appeal Commissioner can appeal to the Circuit Court for a full rehearing of the case, or to the High Court by way of case stated on a point of law. The Draft Heads proposed the removal of the right of appeal to the Circuit Court. I made representations to the Joint Committee that it should be retained and the report of the Joint Committee to the Department of Finance reflected stakeholders main concern about the removal of the Circuit Court from the appeals process. Unfortunately however the Bill only permits an appeal from the determination of the Commissioner by way of case stated on a point of law to the High Court (and then after that to the Court of Appeal). This is disappointing as it removes a fundamental safeguard to the taxpayer. An appeal by way of case stated is a very specific form of legal appeal, based solely on a point of law.
- Existing Tax Litigation – Transition from Old System to New System
The transitional provisions are the most complex contained in the Bill. Depending on the stage of the process the tax litigation may be deemed to be taken under the new system. Anyone currently in the existing appeals process needs to carefully examine the impact of the new regime.
Despite the overhaul of the existing regime the only clearly identifiable benefit of the new regime is the publication of decisions. While it is hoped that the ability of tax payers to request a private hearing for “first tier” tax appeals will retain existing confidentiality, losing the right to a full re-hearing of the case in the Circuit Court is a significant blow.
One of the main reasons propagated for the overhaul of the appeals process was to streamline the process and make it more time efficient. There was a perception, in certain quarters, that tax cases were taking too long to progress through the system. I don’t believe that the new appeals system will succeed in speeding up the process as, in the main, delays are experienced following the transition of tax cases from the Appeal Commissioners into the court system proper (i.e. on appeal to the High Court). Until a dedicated Tax Court is established at the level of the High Court, delays in the tax appeals process will unfortunately continue.