With the unprecedented announcement that Budget Day has been brought forward, you may be interested to read our Pre-Budget submission which calls for all Appeal Commissioners’ determinations to be published as well as making recommendations on a range of measures to deal with the current economic environment.
Background
Around 250 cases are heard and decided by the Appeal Commissioners annually; yet only 32 determinations have been published to date. The Revenue Commissioners receive a record of all determinations but the taxpayers (taken as a single body) do not. This puts taxpayers at a considerable disadvantage in their dealings with the Revenue. Section 944A of the Taxes Consolidation Act 1997 provides for the publication of reports of determinations of the Appeal Commissioners applying to determinations after 27 March 1998.
This provision does not provide for a blanket publication of reports of all determinations but rather permits such of the determinations of the Appeal Commissioners “as they consider appropriate”.
Comptroller & Auditor General’s Report
According to the Annual Report of the Comptroller and Auditor General and Appropriation Accounts 2005, Revenue estimated that between 500 and 600 cases had been lodged with the Appeal Commissioners in 1999, and that approximately 250 cases were heard and decided annually. It should be noted that an approximation only is possible as the Report stated neither the Appeal Commissioners nor Revenue retained statistical or summary records. Appeal Commissioners’ Website The official website of the Appeal Commissioners (http://www.appealcommissioners.ie) provides details of those determinations that have been made public. Table 1(not in contains a list of the Appeal Commissioners’ determinations which has been reproduced from their website. In summary, just 32 determinations have been published, with 25 determinations relating to 2000; 5 to 2003; 1 for 2005 and 1 for 2007. As required by the Taxes Consolidation Act 1997, those determinations are anonymised to prevent the identification of any person whose affairs are dealt with in the determinations.
While the Appeal Commissioners are not required to publish reports of all their determinations, they are required (per TCA97 s934(7)) to record every determination of an appeal on a prescribed form and to forward to the Revenue
Commissioners within 10 days after the determination. There is no apparent requirement to forward a similar record to the taxpayer. This would appear to be an inequitable situation as both parties to the appeal do not have the same rights to a record of the determination. The Appeal Commissioners’ website states that the ‘Office of the Appeal Commissioners is not a tribunal of record’. It would appear to conclude from this that it is not required to and, consequently, does not retain a written record of its determinations, with the exception of those cases which are referred to the High Court by way of case stated. Nevertheless, if we are to follow the legal authorities, the Office of the Appeal Commissioners is indeed a tribunal. Freedom of Information Section 16 of the Freedom of Information Act 1997 requires the publication of decisions likely to be of precedential value. Based on points put forward by the Appeal Commissioners at the Public Accounts Committee in 2001, it has been suggested that the determinations of the Appeal Commissioners are not precedents.
However, in dealing with a point of law (as opposed to a point of fact) the Appeal Commissioner must and does apply the law, and inevitably in that process must follow precedent. It should be clear to all concerned that such determinations have precedential value.
While it is acknowledged that Appeal Commissioners’ determinations would not be legally binding on the Courts, the availability of such determinations would be helpful where other taxpayers are dealing with Revenue on a similar issue. If Appeal Commissioners’ determinations were available to taxpayers, then where those determinations were made in favour of the Revenue this might prevent taxpayers from
- interpreting legislation in a similar manner; or
- incurring costs in appealing against a decision which has already been decided upon.
Alternatively, where the determination was in favour of the taxpayer, the availability of such information could encourage taxpayers
- to interpret legislation in a similar manner; or
- to appeal against an assessment where Revenue have applied the law in a similar fashion.
In summary, the availability of additional information in the form of Appeal Commissioners’ determinations should facilitate the arrangement of taxpayers’ affairs in a tax efficient manner; and would put taxpayers on an equal footing in their dealings with the Revenue.
Situation in the UK
Currently, the UK has a similar wording to Ireland on the law governing their equivalent of the Appeal Commissioners. According to HM Revenue and Customs’ website:
- Special Commissioners’ decisions are published on the Finance and Tax Tribunals website.
- The full text of any decision by the
Commissioners may also be obtained on application from the Office of the Special Commissioners on payment of the appropriate fee.
- It is also possible to subscribe to receive copies of all the decisions. It is worth noting that the UK is in the process of modernising its tax appeals system.
Surely if Ireland is to compete as a location of choice for business, all information must be available. The publication of all appropriate determinations is integral to a fair, transparent and equitable tax system.
Such is the importance that ICAI subscribes to the publication of all determinations that in addition to including it in the Pre-Budget submission, it has written to the Appeal Commissioners as part of the Consultative Committee of Accountancy Bodies – Ireland (CCAB-I) to stress the importance of the publication of all determinations made by the Office of the Appeal Commissioners, and requested that more priority be assigned to their publication.
The Pre Budget Submission 2009 is available from the ICAI website at
www.icai.ieMary O’Brien, ACA is Senior Manager at the Taxation Department of the Institute of Chartered Accountants in Ireland.