Tax Policy & Reps Bulletin – Did you Know

13 May 2019

Tax Appeals Procedures

In the second bulletin of our “Did You Know?” series on topical tax administration issues, we focus on some common questions on the tax appeals process and procedures.

The answers are primarily based on Parts 40A and 41A TCA 1997, which contains the legislative provisions governing the Appeal Commissioners’ conduct and management of appeals and material available on the website of the Tax Appeals Commission (the TAC). We include the related references where relevant.

All of the published TAC determinations are freely available to members on TaxFind, as part of their membership subscription.

1. I am unclear of the basis for Revenue’s assessment. I will not be able to conduct a full review to determine whether an appeal is warranted, within the 30-day deadline for submitting an appeal. Can I submit a Notice of Appeal and subsequently withdraw the appeal, if the client decides not to proceed?

A taxpayer has 30 days after the date of the Notice of Assessment to lodge an appeal (section 959AF). An appellant can submit a Notice of Appeal and subsequently withdraw that appeal, by giving notice, in writing, to the Appeal Commissioners, at any time before a determination is made (section 949G).

On receipt of the Notice of Appeal, the TAC examines the date on the copy of the assessment/decision (which must be appended to the Notice of Appeal) to determine whether the appeal has been lodged within the requisite timeframe.

In certain limited circumstances, the Appeal Commissioners may accept a “late appeal” outside of the usual 30 day period. Section 949O outlines the conditions to be met. For example, the Appeal Commissioners must be satisfied that the appellant was prevented by absence, sickness or other reasonable cause from making the appeal within the required period, and the appeal is made thereafter without unreasonable delay.

2. To what extent are Appeal Commissioners’ determinations precedential?

Appeal Commissioners determinations do not constitute formal legal precedents. However, in making a determination, the Appeal Commissioners may have regard to a previous determination in an appeal that considered common or related matters (section 949AN). If the Appeal Commissioners propose to apply a previous determination to an appeal, it is up to the appellant to outline the reason why the facts and circumstances of their case differs and why a hearing (or adjudication) is required.

3. Does the appellant have to attend the hearing or can their adviser appear on their behalf?

The general position is that the appellant must attend the hearing unless the Appeal Commissioners excuse the appellant from attendance. If the appellant fails to attend, the appeal will be treated as withdrawn. The withdrawal of the appeal may be set aside, if the appellant was prevented from attending due to absence, illness or another reasonable cause and a written application is made to the Appeal Commissioners without unreasonable delay (section 949AA).

4. Do the Appeal Commissioners distinguish between the level of detail and legal argument to be provided in straightforward and low value cases, as compared to more complex cases?

The TAC has a simplified administration procedure for “simple cases”. Generally, these relate to appeals in which the amount in dispute is less than €5,000 or the appeal involves a single or net point with straightforward evidence. If an appeal is a “simple case”, the appellant will not be required to submit a separate Outline of Arguments. However, the Statement of Case should include the legal arguments the appellant wishes to present in respect of their appeal.

The TAC has published an 11-page Guidance Note on the Statement of Case, which contains general guidelines on completing a Statement of Case and information on the “simple case” procedure.

5. I have received a notification that the Appeal Commissioners want to decide my client’s appeal without a hearing. Can we insist on a hearing?

The Appeal Commissioners may decide a case without a hearing if they consider it appropriate. They must notify the parties involved of their intention to do so. If the Appeal Commissioners do not receive a response within 21 days requesting a hearing, the Appeal Commissioners can proceed to adjudicate the appeal without a hearing (section 949U).

The Appeal Commissioners can overrule a request for a hearing, if they are not persuaded that it would be appropriate to disregard a previous determination in an appeal on a common or related issue (section 949AN).

6. I have received a notification to attend a case management conference (CMC). What is the purpose of the CMC and what does it involve?

As part of their pre-hearing procedures, the TAC may direct that a party attends a case management conference (CMC). Section 949T TCA 1997 outlines the purpose of the CMC. In general, it is intended to help progress the case in an expeditious and fair manner, to review progress made so far and actions required, clarify matters and to give directions to the parties involved.

In practice, a CMC may be an opportunity for an appellant to raise any outstanding issues on Revenue’s assessment, which may need to be clarified. For example, to request that the Appeal Commissioners direct Revenue to address an uncertainty regarding the basis for the assessment, if it is unclear to the appellant.

7. I would like Revenue to explain how they arrived at the figures in the Notice of Assessment. Revenue has not responded to my request for clarification on the matter. Can I ask the Appeal Commissioners to request that Revenue provides me with this information?

The Appeal Commissioner may on their own initiative or on the application of a party give directions on the conduct of appeal. The matters on which the Appeal Commissioners can give a direction include; requiring a party to provide documents, statements, explanations and other items or information the Appeal Commissioners consider relevant to the adjudication of the matter under appeal (section 949E).

A party seeking a direction may submit a written request to the Commissioners or make an oral request during a hearing (or a CMC) and must include the reason for seeking the direction. The party requesting a direction must send a copy of the application to the other party.