Dáil Éireann debate -
Friday, 11 Dec 2015

Vol. 900 No. 3

Finance (Tax Appeals) Bill 2015: Report and Final Stages

Deputy Michael Lowry

I move amendment No. 1:

In page 19, to delete lines 10 to 28.

I refer to section 29(9) of the Bill, which provides that the High Court may direct that an appeal may be reheard by the new Appeal Commissioners in circumstances where a case stated is completed and signed by one of the incoming Appeal Commissioners. This does not make any sense. The very same commissioners who completed and signed the case stated are being asked to rehear the appeal. If the High Court has a problem with a case stated, there is an existing remedy which is to remit it to the Appeal Commissioners for amendment, not rehearing. This is the normal procedure and it is catered for in the proposed section 949AR(2). The Minister of State should understand that appeal hearings are hugely time consuming and take months and sometimes years of preparation. They are hugely expensive for the taxpayer and the Revenue alike. As such, section 949AR(2) already provides for the appropriate mechanism for the High Court to remit a case stated without the requirement to restart the whole process again. The Bill should not expose the taxpayer to the time and cost of having an appeal reheard in circumstances where the appeal has already been determined. The principal point is that any appeal determination already made should stand and not be capable of being reversed whether it was won or lost under any circumstances. Appeals that have been adjudicated on and in respect of which determinations have been made should not, under any circumstances, be reversed. I ask for confirmation that it is the intention of the Bill that this situation remains the same. In other words, where an appeal is still in the process but has been adjudicated upon by the outgoing commissioners, the decision should stand and not be impacted by the measures within the Bill.

It is all very fine for the Revenue Commissioners, with the huge resources at their disposal, to wish to undertake an appeal rehearing but the imposition on the taxpayer is enormous. Anyone who has had any dealings with an appeal, whether a business, private entity or anyone else, will understand that the process is hugely expensive. It is fine for the Revenue Commissioners who are, in effect, dealing with public money but individuals and companies must find their own resources and that can be an enormous imposition on them. Once a decision has been made by the Appeal Commissioners, it should be sacrosanct. Section 29(8) and section 29(9) should be deleted from the Bill.

Minister of State at the Department of Finance (Deputy Simon Harris)

I thank Deputy Lowry. Part 3 of the Bill contains provisions on the arrangements for transitioning from the old appeals process to the reformed appeals process. Provision has been made for the treatment of appeals that have already been made and are at various stages of the process when the new appeals process comes into operation. An additional matter which has had to be taken into account has been the coinciding of the Bill with the retirements of both current Appeal Commissioners and the appointment of new commissioners following a competitive process conducted by the Public Appointments Service. Deputy Lowry's amendment relates to one of those transitional arrangements. He proposes an amendment to section 29 of the Bill which contains provisions relating to situations where the necessary steps have not been taken in respect of appeals to the High Court on a point of law against determinations of the Appeal Commissioners. The current procedure for an appeal to the High Court is by way of an arrangement called a "case stated". The latter is a statement of the facts as found by the Appeal Commissioners and the point of law on which the opinion of the High Court is sought. The practice adopted to date has been for both parties to the appeal to agree the contents of the case stated before it is signed by the Appeal Commissioner who determined the appeal. Due to the unsatisfactory way in which this procedure has operated, there are some unfinished case stated proceedings outstanding on the retirement of the current Appeal Commissioners. The Bill seeks to provide for this situation.

As a mechanism to facilitate the more expeditious resolution of appeals, the Bill provides that a case stated may be completed by a different Appeal Commissioner where the Appeal Commissioner who had heard the appeal had ceased to hold office before the completion of the case stated. In the interests of justice and as a safeguard for the parties, both parties can agree to a complete rehearing of the appeal by a new Appeal Commissioner instead of proceeding directly to the High Court. I emphasise that this is where both parties are in agreement. Where both parties are not in agreement, the new Appeal Commissioner may proceed to complete and sign the case stated for the High Court. As an additional safeguard, the High Court is given the discretion to refer the matter back for a rehearing by the new Appeal Commissioners where it considers in the particular circumstances that justice would not be served by the High Court proceeding to deal with the appeal.

The effect of the Deputy's amendment would be that the High Court could not order that such appeals be reheard by new Appeal Commissioners.

The Bill endeavours to strike a balance between the expeditious resolution of appeals and ensuring that the parties to an appeal are treated fairly in the unusual situation where a case stated is required for the High Court but cannot be completed by the same Appeal Commissioner who determined the appeal. Some of the unfinished cases stated have been outstanding for some considerable time and it is not desirable at this stage that they should have to start at the beginning of the re-appeal process again. The transitional provisions I have outlined were inserted into the Bill on the advice of the Attorney General’s office, which considered that provisions intended to ensure the expeditious resolution of appeals should be subject to the approval of the High Court which is best placed to ensure the interests of justice are not prejudiced by other considerations. This is a very reasonable approach and for that reason the Minister for Finance is not in a position to accept Deputy Lowry’s amendment.

Deputy Michael Lowry

There are unusual circumstances here where one Appeal Commissioner has retired and the other is due to do the same this week. There are several cases before those outgoing Appeal Commissioners which have been determined and dealt with. It is obvious that the outgoing Appeal Commissioners will have left office before the case stated is agreed between the parties. In that circumstance, I presume the incoming commissioner can sign the case stated based on the hearing that has taken place and on the findings of fact. In other words, the new commissioner cannot adjust the facts. The evidence is there, the facts are established and findings of fact are made. Can the Minister of State confirm that in those circumstances the integrity of that appeal decision stands?

Deputy Simon Harris

I can confirm that is the case.

Deputy Michael Lowry

Can the Minister of State confirm that when a case stated goes before the High Court, the only reason for that court to refer it to the new Appeal Commissioners would be in circumstances where it requires amendment because there has not been agreement between the two parties?

Deputy Simon Harris

The High Court will have the discretion to refer it back to the new Appeal Commissioners where it feels that there are circumstances in which justice is best served by it doing so.

Deputy Michael Lowry

The norm heretofore has been that the High Court has the jurisdiction to make the decision but if it is not satisfied or if there is some gap in the finding, it can refer it for amendment rather than a full rehearing. Is that still possible under this Bill?

Deputy Simon Harris

This refers purely to transitional measures whereby, as the Deputy correctly says, both parties have not agreed to the case stated, the Appeal Commissioner has signed off on the case stated and referred it to the High Court and the High Court feels justice is best served by sending that back to the Appeal Commissioner for a hearing. It gives the High Court that flexibility, which is fair in the interests of natural justice, to refer a case back where the case stated has not been agreed by both parties but the Appeal Commissioner has signed off on it to refer it to the High Court. It is a discretion we are giving the High Court because of the pretty unique transitional situation in which we find ourselves.

Amendment put and declared lost.

An Ceann Comhairle

Amendments Nos. 2 and 3 form a composite proposal and may be discussed together by agreement.

Deputy Peadar Tóibín

I move amendment No. 2:

In page 34, line 2, to delete “Subject to subsections (2) and (3), every” and substitute “Every”.

Transparency is the ally of a citizen and in most cases involving central, local government or tax affairs where there is transparency, it usually results in better behaviour by all involved. The purpose of these amendments is to remove the rules which to all intents and purposes mean that appeals will be heard in private. I understand the arguments for this change but in the round we believe it is important to have transparency in this system. This trend within the Bill runs counter to the trend elsewhere regarding openness and transparency and is not necessary to protect the rights of taxpayers. A decision was made on this on Committee Stage but the Government is going further than what was suggested with regard to the level of transparency that is necessary. As it is worded, the Bill brings in private hearings and transparency will be lost as a result.

Deputy Simon Harris

I thank the Deputy. There were differing views on this matter on Committee Stage. Deputy Michael McGrath had a view very different from that held by Deputy Pearse Doherty and the Minister listened carefully to what was quite a robust debate.

These amendments concern the holding of public hearings in respect of tax appeals. Part 4, chapter 4, section 949Y of the Bill provides for a default position of public hearings. This is subject to the right of a taxpayer to a private hearing on the request to the Appeal Commissioners. It is also subject to the Appeal Commissioners' discretion on whether to hold a hearing or part of a hearing in private where they consider that the circumstances specified in subsection (2) of the new section 949Y Taxes Consolidation Act 1997 apply. These circumstances include the need to maintain the confidentiality of sensitive information, to protect a person’s right to respect for his or her private or family life, or in the wider interests of justice and the public interest. The effect of Deputy Tóibín's and Deputy Pearse Doherty’s amendments would be that all appeal hearings, without exception, would be held in public, with no allowance for Appeal Commissioners' discretion or the wider interest of justice and the public interest as outlined.

The proposal for public hearings was contained in the Revenue Commissioners’ submission to the Minister’s public consultation on the reform of the tax appeals system. The reason given for the proposal was that it would ensure transparency and accountability, issues the Deputy raises, and enhance public confidence in the tax system. The public would see that the tax system was being administered in an even-handed way by Revenue and subject to an oversight by the independent and impartial Tax Appeals Commission. Such a move would also have been in keeping with some examples of international practice and with other Irish administrative appellate fora where public hearings are the norm. Revenue also referred in its submission to the fundamental principle of our law enshrined in the Constitution that court proceedings should be held in public. While justice must be done it is also important for justice to be seen to be done. When the Minister published the Bill, he did so being persuaded of the merits of these views and decided to legislate for a system of public hearings that would contain the necessary safeguards to ensure that certain matters were not in the public domain.

During the pre-legislative scrutiny of the Bill by the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, conflicting views on the matter were expressed by various members from a variety of political parties and none and by other stakeholders also. Support for public hearings was also expressed by Deputy Pearse Doherty and Revenue but other parties, including the Irish Tax Institute and several committee members, expressed strong views against public hearings citing reasons such as the reluctance of taxpayers to take an appeal if hearings were to be held in public and the impact on business of the release of commercially sensitive information. Ultimately, while allowing for the possibility of public hearings, the committee stated in its report to the Minister that it would prefer to give an appellant discretion in the choice of a public or private hearing and the Minister’s decision to accept the committee’s recommendation was influenced by the strong views expressed at its hearings. The Minister sees the potential benefit of public hearings and would like and does intend to keep the matter under review as the new appeals system becomes established. For the reasons I have outlined, however, and following the discussion on Committee Stage and the views presented to the Minister, I am not in a position to accept the amendment.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 3:

In page 34, to delete lines 4 to 25.

Amendment put and declared lost.

An Ceann Comhairle

Deputy Fleming is substituting for Deputy Michael McGrath. Is that agreed? Agreed. Amendments Nos. 4 to 7, inclusive, and 9 to 18, inclusive, are related and may be discussed together.

Deputy Sean Fleming

I move amendment No. 4:

In page 39, line 19, after “appealed to” to insert “the Circuit Court or”.

I welcome the opportunity to move the amendment, which my colleague, Deputy Michael McGrath, submitted. Of the 14 amendments in this group of amendments, six are in the name of Deputy Michael McGrath. When we have dealt with them, only one amendment will remain to be dealt with. This is the biggest element of the debate. Amendment No. 4 is to allow an appeal to the Circuit Court, and I will give the reasons it is proposed and then deal with each of the amendments in Deputy Michael McGrath's name.

We generally support the thrust of the Bill in updating the legislation. We all know from experience and records that 26% of tax appeals in 2012 and 2013 were decided in favour of the taxpayer. This means there is a need for the Appeal Commissioner. The Oireachtas Joint Committee on Finance, Public Expenditure and Reform, which considered the matter last year, was told there is sometimes up to €800 million in question where assessment has been made but collection deferred pending a resolution. I welcome the fact that, as the Minister of State said, the legislation will require the Appeal Commissioners to publish a written determination for each case within 90 days rather than just announcing a decision. It is very important and will help bring certainty to the tax system, given that people will see how decisions were arrived at. In due course, it will lead to a reduction in appeals going to the system. Practitioners who are dealing with cases can see how similar cases were decided in the past and what the outcome was, and potential appellants can use the information to decide whether they want to make an appeal. Without the written determinations, taxpayers might not know a similar case had been decided previously.

It is important the names are not published, and I agree that an element of confidentiality for the taxpayer must be maintained. We gave an example of two supermarkets on the main street of a town. If the owner of one supermarket makes an appeal and has to put every detail of his or her margins out in public at an appeals hearing, the competitor will be very interested. It would not have been right to do this. The Minister of State acknowledged that there were divergent views at the committee. My view was that taxpayers should not have to bare all to deal with their tax affairs.

I am surprised that the right to an appeal to the Circuit Court is being removed from the legislation. The essence of the amendments on which I am speaking is to reinstate the appeal to the Circuit Court which is provided for in the legislation. I am disappointed and feel it is unnecessary to remove this option. I strongly argue that the amendments be accepted. The wording of the amendments is specific regarding the Circuit Court. The only alternative provided for in the legislation is to appeal on a point of law to the High Court, and we all know how expensive it is to do so. It does not deal with the substance, full facts or interpretation of the case, and something can be amiss. Just dealing with a point of law is a very narrow approach to allow an appeal to the High Court. While the Government will claim that a right of appeal continues to exist, it will be a very narrow, discrete right of appeal. It is only on a point of law and has nothing to do with the tax issue at hand. We are wrong to remove the option of the Circuit Court. We are possibly straying into difficulty by giving Appeal Commissioners too much power in terms of making determinations that should be a matter for the courts. I am concerned about this measure.

Two concerns have been expressed about the Circuit Court, including the lack of specialist judges with expert knowledge in some cases. While some judges would not have the expertise, others would. It is not beyond the wit of the Courts Service to identify Circuit Court judges who could take responsibility for hearing tax cases. Given that there are not many cases, one would not need many judges, and they would not need to be dedicated judges for this purpose but judges who happen to have a particular interest or expertise. This could have been facilitated and dealt with well. It should be taken into account today.

Another concern about the Circuit Court is the fact there are delays in it. If there is a delay, it should be dealt with. The answer is not to abolish the right of appeal to the Circuit Court. It is almost like solving the long queues for an accident and emergency service by closing the service. It is a nonsense philosophy. In society the impression is sometimes given that if one gets rid of the hospital, one has solved the problem, whereas the problem has just been moved somewhere else.

We discussed the Circuit Court in the committee hearings we had before the legislation was drafted, which were very helpful. The committee was informed that in 2013, only 14 cases were appealed to the Circuit Court and in the five years from 2010 to 2014, only 46 cases were appealed to the Circuit Court. The Circuit Court option is a safety valve that has not been over-used or abused. It is important, and for the sake of the dozen cases per year, the option should remain. I do not understand why the Department of Finance and Parliament would go to so much trouble to amend legislation to remove a safety valve that allows a taxpayer to go to court and let a judge decide. Nobody is saying all the appeals will be successful. We are going to enormous trouble to remove the small safety valve that would make the legislation better. I do not understand the philosophy. There was no problem with ten or 12 cases per year going to the Circuit Court. I do not understand why we are trying to solve a problem that does not exist.

Many cases have been decided in the Circuit Court in favour of Revenue. The taxpayer will not win all the cases. It gives greater certainty for the future process if a Circuit Court decision backs up the decision of an Appeal Commissioner. It would strengthen the process and lead to more certainty and a reduction in the number of appeals. A tax adviser would be able to consider cases that had come before an Appeal Commissioner, see which decisions had been backed up by the Circuit Court, and determine whether to bring similar appeals forward. It would give greater certainty to the taxpayer, the Revenue Commissioners and tax practitioners. One of Deputy McGrath's amendments specifies that, in the case of the appeal to the Circuit Court being reinstated, hearings would be held in the circuit where the taxpayer resides rather than bringing everybody to Dublin. As it stands, people in west Cork have to travel to Dublin for their High Court hearings. It would be better if justice could be dealt with locally.

I have given the background, but it would be wrong not to discuss the individual amendments. Amendment No. 4 proposes, in page 39, after “appealed to” to insert “the Circuit Court or”. This page of the Bill states, "The Revenue Commissioners shall give effect to any determination made by the Appeal Commissioners unless the determination has been appealed to the High Court". I want to change it to "unless the determination has been appealed to the Circuit Court or the High Court". Amendment No. 6 is on a similar situation in a subsequent subsection. Again, it proposes to change the provision to "unless the determination is appealed to the Circuit Court or to the High Court". It should be included in this subsection dealing with the Revenue Commissioners giving effect to the determination.

Amendment No. 7 in the name of Deputy Michael McGrath, which would insert "or a notice of appeal to the Circuit Court was served" in page 40, line 35, moves on to the section on the publication of the results. They should be published in accordance with what is provided in the legislation, that is, where appealed to the High Court under Chapter 6, but include the Circuit Court.

Amendment No. 8 is a slightly larger amendment that inserts a new paragraph on page 41. It deals with the publication of determinations. A report on determinations should be amended by the Appeal Commissioners to state: "the result of any appeal to the Circuit Court or the High Court arising out of the determination, together with the result of any subsequent appeal from such a decision of the High Court to the Court of Appeal." There should be a clear reference in the report of a case having been taken to the Circuit Court, as there is already a reference to the High Court.

Amendment No. 9 is large and substantially on the same topic. It deletes lines 19 to 38 on page 41. This section deals with appealing against determinations. The amendment contains a few provisions that the Minister of State has seen in previous amendments. It goes without saying that each of these amendments permits the right to appeal to the Circuit Court and not just the High Court. The mechanics of how that right would be transposed into legislation are contained in amendment No. 9. The first paragraph deals with appeals to the Circuit Court and High Court and the second paragraph states: "A party may by notice in writing appeal a determination to the Circuit Court." That appeal must be lodged within 21 days. The amendment proposes to confer appeal jurisdiction on the Circuit Court in order to avoid dragging people from Donegal to Dublin. People will understand this. The next paragraph states: "An appeal to the Circuit Court shall be heard as a de novo rehearing of the appeal." That is to say, it should not be dealt with as a review, but as a new case. If an appeal of a decision is not served within a particular time, the matter can be stated to the High Court. Under the next paragraph, an appeal can be brought to the Circuit Court as well.

Paragraph (9) deals with the mechanics involved after a case has gone to the Circuit Court and is then before the High Court, as the legislation does not provide for this. Either the appellant or the Appeal Commissioners would retain the right to go to the High Court after going to the Circuit Court. The final paragraph states: "The Circuit Court’s decision in respect of an appealable matter shall be final and conclusive but this is without prejudice to the provisions of this Chapter concerning appeals to the High Court." The Circuit Court can give a determination on whether a matter that has been dealt with by it is appealable to the High Court.

Amendment No. 17 is on the section under which the Revenue Commissioners give effect to decisions of the High Court or the Court of Appeal and the Supreme Court. It goes without saying that a person can take a case to the Supreme Court, as the legislation provides for that, but we want to delete "the High Court that is appealed to the Court of Appeal under section 949AS". Some technocrat somewhere understands what this means, but we are inserting "Circuit Court". That is in amendment No. 18, which is the final one in Deputy Michael McGrath's name in this group. I ask the Minister of State to respond.

Deputy Peadar Tóibín

This is the opposite of what happened with the previous amendment, when the Government moved in respect of a view of the committee. This time, it has decided not to move. I am curious to know why the Minister is travelling down this road. It is not particular to this Bill, as a pattern has developed across a number of Bills in recent times. The Customs Act 2015 springs to mind. The new normal seems to be a narrowing of the opportunity for an individual to access an appeal. The difference between access to the Circuit Court and access to the High Court is significant in terms of distance, funding, timing, etc. Why has this become the new normal? As Deputy Sean Fleming stated, it must be an important part of the right of any citizen to appeal to the courts, and not just on questions of law. If someone is aggrieved with a judgment, it should then be decided upon. We would reject wholeheartedly any effort to limit or make more expensive the rights of citizens in this regard.

Deputy Simon Harris

I thank the Deputies. I partook in this discussion on Committee Stage with their respective party spokespersons. I accept that we have different views on the matter, so I will outline our rationale for proposing this.

The current appeals process allows for an appeal by a taxpayer against a determination of the Appeal Commissioners to a judge of the Circuit Court. This Circuit Court stage is a complete rehearing of the appeal and the proceedings do not take any account of what may have transpired at the Appeal Commissioners stage. It is the determination of the Circuit Court judge that prevails. A complete rehearing can only be justified if there are reasons to suppose there were poor decisions on matters of fact or a particular problem with the Appeal Commissioners. No Deputy is suggesting that this is the case.

Prior to taking a matter to the Appeal Commissioners, all taxpayers who have a dispute with Revenue have the option of seeking a review of its decision. This would be done by a Revenue officer who was not involved in the decision or by an independent external person who had appropriate expertise.

As I did on Committee Stage, I strongly refute the assertion made by Deputy Pearse Doherty on Second Stage that there was a policy pattern of the Government trying to remove the right of access to the Circuit Court for citizens and that the intention behind the proposal was to prohibit people from appealing. Rather, the Minister is not persuaded of the necessity of having an appeal to the Circuit Court and considers that the disadvantages significantly outweigh the advantages. This Bill is about ensuring that we have a modern and expeditious, but fair, process in place. The reforms contained in the Bill will ensure a more robust, transparent and streamlined procedure under which a route of appeal to the Circuit Court is not required and is not one over which the Minister can stand. The Appeal Commissioners are specialist expert tax tribunals and the Minister is determined that this status be acknowledged and, where possible, strengthened by the Bill. Under the new appeals regime, the Public Appointments Service, PAS, selects candidates for appointment as Appeal Commissioners based on the specific requirements of the job and looks for appropriate tax and legal experience and qualifications. This is not a reflection on the expertise and skills of current and former Appeal Commissioners, merely a statement of the strengthened provisions to ensure that appellants continue to get high levels of professional service. A Circuit Court judge may encounter a tax case only infrequently. It may seem rather peculiar to establish an expert tribunal only to allow an appeal by way of a full rehearing at a forum that does not have and, in fairness to the Circuit Court, does not profess to have the same expertise in tax matters.

The Bill contains provisions that will underpin this specialist expertise with fair and impartial appeal proceedings and a clear independence from Revenue. The reform is intended to produce a better resourced, more efficient and transparent Appeal Commissioners stage. It will see more flexible and active case management by Appeal Commissioners, publication of written determinations and a streamlining of the case stated procedures, which I discussed with Deputy Lowry, for appeals to the High Court. In contrast, the modus operandi of Circuit Court rehearings appears anomalous and the continuation of the Circuit Court stage of the appeals process has the potential to undermine much of the proposed reform.

Our tax appeals system has remained largely unchanged since 1853.

Rather than taking the view that it has stood the test of time, we should accept that it requires a significant and long overdue overhaul. At that time, a taxpayer could appeal a decision to the special commissioners - the predecessors of the Appeal Commissioners - and to the county court judge. However, these special commissioners did not have the same independence from the Revenue Commissioners as the current Appeal Commissioners. It was reasonable, in the circumstances which obtained in 1853, to provide for an independent avenue of appeal for taxpayers.

Furthermore, the current tax appeals process is out of step with the procedures of other expert appellate tribunals. For example, some decisions made by public bodies can only be appealed by way of an appeal to the High Court on a point of law. This is an issue I presume Deputies Sean Fleming and Michael McGrath agreed with when they were on this side of the House. Examples of the bodies to which I refer are An Bord Pleanála, the Financial Services Ombudsman, the Information Commissioner, the Irish Financial Services Appeals Tribunal, the Labour Court, the Refugee Appeals Tribunal, the Rent Tribunal, the Social Welfare Appeals Office, the tenancies tribunal of the Private Residential Tenancies Board and the Valuation Tribunal in respect of commercial rates. Unfair dismissal cases were appealable from the Employment Appeals Tribunal to the Circuit Court but this has now ceased following the recent establishment of the Workplace Relations Commission. Deputy Tóibín asked a very valid question as to why this is the case. Why is it that successive Governments have put in place expert tribunals to try to develop an expertise and specialisation to ensure citizens and, in this case, taxpayers have the right to access that expertise and have their situation reviewed by experts? I refer the House to the Supreme Court judgment in the 1997 case of Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare, which is particularly relevant. In that case, the Supreme Court Justice said:

I believe it would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.

That is why, as governments have done in the past, this Government is putting in place those expert tribunals to hear such appeals.

The other issue to which reference has been made is cost. I accept that going to the High Court is costly. I am not sure it is as costly as some of the figures that have been put on the record of the House during the debate on this Bill. It must be remembered that even if the Circuit Court stage was retained, it would clearly remain open to Revenue to appeal the Circuit Court determination against it so taxpayers might find themselves before the High Court in any event. The suggestion, therefore, that by removing the Circuit Court we are putting all these High Court costs on people does not stand up to scrutiny. At present, even with the Circuit Court stage, it is open to Revenue to appeal to the High Court.

It appears that a series of the proposed amendments, particularly those tabled by Deputy Tóibín, are intended to completely replace the current High Court stage of the appeal process with an appeal to the Circuit Court. While, at face value, such a move might appear to have merit - as it might prove to be a less costly avenue of appeal - I contend that it would give rise to serious disadvantages. Many tax appeals involve substantial potential tax liabilities and very complex technical tax issues. They may also involve the determination of matters, the outcome of which might go beyond the immediate appellant and be of relevance to a wide body of taxpayers. High Court judgments clearly carry much more authority than those of the Circuit Court and can have significant value in terms of setting precedent in determining how our tax system is to be administered. The need for certainty on the administration of our tax system is paramount and the High Court plays a crucial role in providing this certainty in terms of points of law. Such a restricted avenue of appeal would have the effect of seriously compounding the problems associated with a deficit of specialist expertise that I have already outlined. Furthermore, many appeals currently bypass the Circuit Court and it is likely that problems being experienced with the capacity of some Circuit Courts to process tax appeals would be even more pronounced were it to be the only appellate forum after the Appeal Commissioners, although I accept the point made by Deputy Fleming in this regard.

This Bill is an honest attempt to provide for an efficient expert tribunal to address disputes that arise between taxpayers and the Revenue Commissioners. I believe it achieves that. There will be a more robust structure in place after the passage of this Bill. Retaining the Circuit Court stage in a reformed, streamlined and better-resourced process is not a position over which the Minister can stand. The appeals process is one of a range of avenues of redress open to taxpayers who feel aggrieved either by decisions made by Revenue officials or by the behaviour of such officials. Taxpayers also have access to Revenue's internal and external review processes as well as avenues such as judicial review and to the courts, up to and including the European Court of Justice in relevant cases. By providing for the recruitment and selection of suitable experts and for streamlined procedures for the making and hearing of appeals, the Bill aims to ensure an efficient, cost effective use of public resources and of the costs incurred by a taxpayer in bringing an appeal. The proposal to allow rehearings before the Circuit Court runs contrary to this objective and ignores the fact that the expertise lies within the Appeal Commissioners in this area. Retaining the Circuit Court stage of the appeals system has the potential to unnecessarily and inadvertently undermine the reforms being introduced. For those reasons, I am not in a position to accept these amendments.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 5:

In page 39, line 19, to delete “High Court” and substitute “Circuit Court”.

Amendment put and declared lost.

Amendments Nos. 6 and 7 not moved.

Deputy Sean Fleming

I move amendment No. 8:

In page 41, between lines 16 and 17, to insert the following:

“(5) A report shall subsequently be amended by the Appeal Commissioners to state the result of any appeal to the Circuit Court or the High Court arising out of the determination, together with the result of any subsequent appeal from such a decision of the High Court to the Court of Appeal.”.

I am moving this amendment on behalf of Deputy Michael McGrath. I do not understand why it was not part of the group of amendments we have just discussed because, as a lay person, it appears to be germane to it. Amendment No. 8 briefly proposes the insertion of a new paragraph on page 41, after lines 16 and 17. This section relates to the publication of decisions by the Appeal Commissioners. Subsection (4), after which the provision in the amendment would be inserted, provides that "A report shall be published in a way that, in so far as it is possible, does not reveal the identity of any person whose affairs were dealt with on a confidential basis during the proceedings concerned (being proceedings that were not held in public)." We have disposed of that matter and I propose to add that "A report shall subsequently be amended by the Appeal Commissioners to state the result of any appeal to the Circuit Court or the High Court arising out of the determination, together with the result of any subsequent appeal from such a decision of the High Court to the Court of Appeal." Perhaps the Minister of State will confirm that he understands the purpose of including the Circuit Court. There is merit in what he said and I accept it. However, my point is that where the Appeal Commissioner have made a determination to publish its report, it seems that the outcome of a subsequent appeal to the courts would not be included in the publication of the determinations. Will the Minister of State explain that? I understand that it is a different legal process. The publication of the report, which is specifically provided for in this section, will only be available on the Internet. There will be no hard copies available. If those decisions are subsequently reversed in court, it should be recorded in those reports, perhaps the report of the next year or whenever the decision is made. Is provision made in this regard?

The Minister of State referred earlier to An Bord Pleanála and the final decisions it issues. Sometimes in such cases that is not the end of the matter because it might be referred to the High Court and then be sent back again. The Minister of State has referred to a number of expert bodies with technical knowledge, all of which issue annual reports. Those reports are not completely helpful if they contain decisions that are subsequently appealed to a higher court and ultimately reversed. The reports might meet statutory requirements but they do not give the full picture.

Can a mechanism, through which the full details of the outcome of cases on the conclusion of the process would be published, be put in place such that a person does not have to check the High Court records to get that information?

Deputy Simon Harris

The Minister and I understand what the Deputy is trying to achieve by this amendment. While we do not disagree in principle with what is proposed - I had exchanges with Deputy Michael McGrath on this issue on Committee Stage - I am unable to accept the amendment for the following reasons.

As Deputy Fleming will be aware, one of the key reforms being introduced is that the Appeal Commissioners will be required to publish on the Internet a report of all their determinations. This report will have to state whether an appellant has requested that a statement of the case be prepared by the Appeal Commissioners in regard to the making of an appeal to the High Court against the Appeal Commissioners' determination. This will provide an indication to all that determinations may have been revised by the courts at a later stage. As stated, while I can see the potential benefit of the Deputy's proposal in regard to making the full and final outcome for each appeal available, I am of the view that it would be impractical to implement and would be an onerous burden on the Appeal Commissioners. The Appeal Commissioners are responsible for their own stage of the appeals process. With the limited exception of whether the High Court might refer an appeal back to them for determination, they cease to have any involvement in an appeal after it has been determined by them. In fact, it may take several years for an appeal to be finally determined by the courts. The parties to any court proceedings are the taxpayer and the Revenue Commissioners rather than the Appeal Commissioners. The Appeal Commissioners are not a notice party to a subsequent appeal to the courts and will not be aware of any subsequent court proceedings or decisions if the parties settled the matter by agreement among themselves. There is no obligation on the courts to notify the Appeal Commissioners of their judgment. It is not appropriate that they would be required to do so.

In the normal course of events, court decisions are published by the Courts Service and the public has access to the decision at that stage. While I am not in a position to accept the Deputy's amendment, I reiterate that an Appeal Commissioner in publishing a determination will have to indicate therein that he or she has been asked by the Appeal Commissioners to prepare a case to make an appeal to the High Court and so it should be flagged at that stage for the citizen or any interested party that there is potential for the case to be moved on to the High Court. For the reasons I have outlined, it is not possible for the Appeal Commissioners, who are not a notice party, to be aware of what is going on in the High Court. Given their independence from Revenue and taking into account the independence of the courts, I am not sure it would be desirable for that to be the case.

Deputy Sean Fleming

I understand what the Minister of State said and I am sure he understands the point I make. I accept it will not be dealt with specifically in this legislation. I acknowledge that paragraph (c) provides that the Appeal Commissioners must indicate in their statement if a case has been referred to the High Court. I accept that some of the cases that proceed to the High Court will be between the taxpayer and the Revenue Commissioners and that, as the Minister of State said, the Appeal Commissioners might have no involvement in that regard. Perhaps it could be provided for somewhere in the system that the Revenue Commissioners in a report each year would publish the details of the outcome of cases in which they were involved. As these cases will have been heard by the High Court, confidentiality will not be an issue. What I am proposing would be useful.

The mentality in public life is such that each silo, on the conclusion of a process, is required to publish only details of that process that are relevant to it, but such information would not be the full picture. I accept that it is possible to access the full details of cases on the High Court website. However, in terms of public administration generally and in the interests of the citizen, it would be helpful if, for example, the Revenue Commissioners would publish these details annually in a report. Perhaps they already do so. If not, perhaps a provision which would meet the spirit of what I am proposing could be introduced in the future.

Deputy Simon Harris

I do not disagree with the Deputy that we should ensure that as much information as possible is available in an easy to digest way for the public. I am sure that is something on which all of us in this House can agree. I am informed by Revenue that they do refer to and provide data on High Court cases in their annual report. Perhaps the Deputy would reflect on that and if he comes up with a way of improving that process, we can discuss it on a further occasion.

Amendment, by leave, withdrawn.

Amendments Nos. 9 to 18, inclusive, not moved.

Bill received for final consideration and passed.