Further to a lengthy consultation on the reform of the tax appeals system carried out by the Irish government and the Revenue Commissioners (the "Revenue”), the new Finance (Tax Appeals) Act, 2015 (the "Act”) came into effect on 21 March 2016. The Act provides for an independent statutory body, the Tax Appeals Commission, which replaces the former Office of the Appeals Commissioners. The function of the newly established Commission is to provide enhanced transparency surrounding the appeals process in conjunction with a cost-effective appeal structure for tax cases. There are currently two Commissioners appointed.
The Act introduces extensive reform to the appeals system including enhanced case management conference procedures where, with the consent of the parties, the Tax Appeal Commissioner (the "Commissioner”) may determine the appeal without holding a hearing. Annual reporting obligations are placed on the Commissioner and the Commissioner has discretion to make determinations based on written submissions in certain circumstances, subject to the agreement of the parties. Further, there is a provision that the Commissioner may have regard to previous determinations that dealt with common or related issues and determine the new appeal in light of the previous determination without a hearing, subject to the agreement of the parties.
In relation to existing appeals, there are transitional measures in place. The general rule is that where one or more procedural steps under the old appeal process remains to be taken by 21 March 2016, the analogous steps under the new appeal process should be taken. There are, however, exceptions to this general rule where hearings have commenced before 21 March 2016 and in circumstances of late appeals.
Some of the principal reforms are as follows:
Appeal Directly to the Commission
Previously, it was the responsibility of Revenue to decide whether an appeal against an assessment raised by them was valid. The Act now provides that a taxpayer shall appeal in writing directly, in the first instance, to the Tax Appeals Commission and that the Commissioner will consult with Revenue as to whether an appeal is valid or not. This departure from the previous appeal process is a welcome development which should enhance the transparency and independence of the appeals process.
The Right of Appeal
The right to appeal to the Circuit Court for a full rehearing has been removed. Previously, a taxpayer could make an appeal before the Circuit Court, where there was a right to a full rehearing. Now, the decision of the Commissioner will be final. An appeal to the High Court is permissible only in circumstances where either party considers that there has been an error in the determination, in relation to a point of law. The loss of the right to appeal to the Circuit Court is a significant departure from previous legislation and removes a taxpayer safeguard, in the form of a full rehearing of the appeal, where there is a dispute as to the determination of a Commissioner.
Appeal hearings will now, by default, be heard in public. Under the previous appeals system, hearings were held in private. The purpose of this reform is to align Ireland’s tax appeal process with other jurisdictions and to ensure that the appeals process is transparent. There was a concern that a public appeal hearing may result in a reluctance of taxpayers in bringing appeals. However, the significance of this development is questionable, as there is a provision in the Act whereby if a taxpayer requests, within the relevant timeframe, that a hearing or part of a hearing be held in private, it is automatically held in private.
The Commissioner may give a direction that a hearing or part of a hearing be held in private if it is considered necessary, i.e. if:
- it is in the interests of the public;
- it is necessary to maintain confidentiality of sensitive information; or
- it is necessary to protect an individual’s right to privacy
In practice, it is unlikely that this function of the Commissioner will be invoked often as it would be expected that the taxpayer would initially request that the hearing be held in private. Further, the Commissioner may exclude any person from the hearing who they consider is likely to prevent another person from giving evidence freely or is likely to disrupt the hearing.
The Commission is required to publish a report of each of their determinations online, within 90 days of notifying the parties of the determination. Where an appeal was held in private, the report must ensure to protect the privacy of the taxpayers involved. Previously it was at the discretion of the Commissioner, in circumstances where it was deemed appropriate, whether to publish the details of a determination. This is a helpful advancement in creating transparency in the appeal process and providing information and guidance to assist taxpayers in deciding whether to submit an appeal.
The focus on independence and transparency should benefit the taxpayer. Further, the right of the taxpayer to request a private hearing should achieve the balance between the right to privacy and the importance of transparency in the appeals process. However, the withdrawal of the right of the taxpayer to appeal to the Circuit Court is of significance and will impede the taxpayers access to an appeal where there is a dispute regarding a determination. Also of note are the burden of high legal costs that will be imposed on any taxpayer who chooses to embark down the High Court route.