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Aidan Fahy |
Greg Lockhart |
On March 21 2016, a new tax appeals system was implemented in Ireland.
Since that date, a new statutory body, the Tax Appeals Commission, has been established to hear appeals against assessments and determinations made by the Irish Revenue Commissioners (Revenue).
The Tax Appeals Commission replaces the Office of the Appeal Commissioners. Similar to that forum, it does not have the status of a court of law and is designed to permit taxpayers to appeal tax matters in a relatively cheap and informal way. Two officers (Appeal Commissioners) have been appointed to hear the appeals under the new system.
Reform of the process for appealing tax matters has been under consideration for 15 years in Ireland and has been the subject of reports issued by Government committees, a review by Ireland's Law Reform Commission and, more recently, a public consultation. Much of the reform implemented in the Finance (Tax Appeals) Act 2015 (the Act) is based on those reviews.
In addition to the establishment of a new body to hear appeals, some other changes have been made to the Irish appeals system:
A new default rule will require all appeals to be held in public. However, taxpayers have a right to request that their appeal is held in private and provided the request is made in time, the request for a private hearing must be granted. Under the old system, all appeals were held in private.
Taxpayers may only appeal decisions of the Tax Appeals Commission on points of law. Under the old system, taxpayers (but not, in general, Revenue) had a right to a full re-hearing of the case in the Circuit Court. As a result of this change, it will be important for taxpayers to ensure that they are very well prepared for the hearing so that all matters of fact are accurately and clearly explained before the Tax Appeals Commission. Save in limited cases, findings of fact by the Tax Appeals Commission cannot be overturned by the Irish courts.
The new system formalises in legislation the procedure that generally applied to appeals under the old system. For example, under the new system the Tax Appeals Commission will direct either the taxpayer or Revenue or both to prepare a 'statement of case' summarising each parties position and this will be exchanged in advance of the hearing. Although the statement of case is a new requirement, it effectively formalises the practice followed under the old system.
The Tax Appeals Commission will be required to issue written decisions and to record its oral decisions. In addition, each (anonymised) decision must be reported on-line within 90 days. This change will be welcomed by taxpayers. Under the old system, the main written records of decisions were forms AS1 which were retained by Revenue and generally only a handful of these decisions were actually published or reported on.
Taxpayers wishing to make an appeal must issue a notice of appeal to the Tax Appeals Commission. Previously, notices of appeal were issued to the Revenue, a system that was perceived to negatively affect the independence of the appeals process.
Extensive transitional provisions are included in the Act for cases that were under appeal before March 21 2016 and for cases that were heard by now retired Appeal Commissioners (the Appeal Commissioners that presided over the old regime have also recently retired after more than 20 years' service). In general terms:
If a notice of appeal issued before March 21 2016 and the hearing has not commenced, the appeal will be heard under the new regime.
If the hearing commenced before March 21 2016 or the hearing was held before that date and no decision has issued, the old regime continues to apply.
If the presiding Appeal Commissioner has vacated office after a hearing but before a decision was issued, a new Appeal Commission will decide either to re-hear the appeal in full or to issue a determination without rehearing the matter – the Appeal Commissioner is permitted to make this decision without reference to either party to the appeal.
The Irish Minister for Finance anticipates that the new appeals process "will enhance arrangements for an independent, efficient, well-defined, clear and transparent system for appeals", developments that certainly will be welcomed by Irish taxpayers.
Aidan Fahy (aidan.fahy@matheson.com) and Greg Lockhart (greg.lockhart@matheson.com)
Matheson
Website: www.matheson.com
