Conor Kennedy

Law LibraryFour Courts

Dublin 7.

December 2012

Types of AppealConventional –

S.933 – Assessment is excessiveSpecific -

S.955 - Time limitsS.195 - ArtistsS.531 - Sub-contractors (Also Reg 25)S.604 – Principal ResidenceS.948 – Sch ES.811 – Anti-Avoidance GeneralS.817 – Anti-Avoidance – Share Disposals

Procedure – Section 934Produce lawful evidenceUnique TribunalBurden of Proof

“otherwise …. the assessment shall stand” “he who asserts must prove”

Inspector must give effect to decision unless Appeal to the circuit court Case stated to the High Court

Powers Precepts

Orders to furnish information Summoning and Examining Witness

Give evidence about another taxpayer Penalty for failing to attending or obstructing

Further Appeals Case stated to High Court

Express Immediate Dissatisfaction Pay €25 fee to the Clerk Losing party prepares case stated Procures agreement from parties

Circuit Court Appeal 10 days after Appeal Commissioner's decision Case heard again Same statutory procedures apply Case stated to the High Court

Practical issues Advance submissions 2 Commissioners Rooms Seating & standing Stenographer Appellant/taxpayer opens Summarises the issues Witnesses Cross examination Submissions Opportunity to challenge Revenue’s submissions

Written SubmissionsUsually requiredUsually exchanged in advanceContents

IntroductionIssuesLawApplicationConclusion

Fair Procedures Revenue can refuse to provide initial evidence Evidence will be adduced during hearing Futile & costly procedure ? Dry run for the circuit court Fair Procedures

Dellway Investments v National Asset Management Agency [2011] IESC 14

Kiely v Minister for Social Welfare [1977] IR 267 TJ v Criminal Assets Bureau [2008] ITR 119

EvidenceLaw of evidence

The law of evidence encompasses the rules and legal principles that govern the proof of facts in legal proceedings. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation.

Illegally obtained evidenceUK ACT - Section 1(1) of the Civil Evidence Act

1995 “as a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated”

Hearsay EvidenceEvidence admitted in accordance with the

lawHearsay evidence not in accordance with the

lawCullen v Clarke [1963] IR 368Kiely v Minister for Social Welfare [1977] IR

267 Borges v Fitness to Practice Committee of the

Medical Council [2004] 1 IR 103 Moloney v Jury's Hotel plc Supreme Court

12th November 1999 Exceptions

WitnessesAdvice on proofsExamination in Chief

Identify key issuesNo leading questions

questions which subtly prompts the respondent to answer in a particular way.

WitnessesNO COACHING WitnessesWitness preparationRe-ExaminationRevenue’s Witnesses

Cross ExaminationUsually Revenue OfficialsExpert witnesses

SubmissionsHave 3 copies of all materialSummarise case lawCite relevant aspects of judgementCompare issue with those judgements with

your caseDistinguish unfavourable cases with yours

Cost Same preparation as for High Court Most taxpayers unable to bear that cost Commissioners are experts in the law of taxation Code of Conduct – Pro Bono

Conclusion Burden of proof Trial by ambush Fair procedures Prepare