Falkenthal v Revenue Commissioners - Tax Appeal Case

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  Falkenthal v The Revenue Commissioners (Approved) [2026] IECA 41 (20 March 2026)

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APPROVED

NO REDACTIONS NEEDED

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THE COURT OF APPEAL?

CIVIL??

Pilkington J.???????????????????????????????????????????????????????????????????????????? Court of Appeal no: 2025/149????

O'Moore J.???????????????????????????????????????????????????????????????????????? Neutral Citation no: [2026] IECA 41

McDonald J.? ?????????????????????????????????????????????????????????? ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

?????????????????????????????????????????????????????????????????????????????????

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949AQ OF THE

TAXES CONSOLIDATION ACT 1997, AS AMENDED

BETWEEN:

GUNTER FALKENTHAL

????????????????????????????????????????????????????????????????????????????????????????????????????? APPELLANT

AND

THE REVENUE COMMISSIONERS

???????????????????????????????????????????????????????????????????????????????????????????????????????? RESPONDENT

JUDGMENT of Mr. Justice McDonald delivered on 20 th March 2026

Introduction

1. This is an appeal from a very careful and considered judgment of the High Court (Mulcahy J.) delivered on 7 th March 2025 ([2025] IEHC 122) in which he determined that a Tax Appeal Commissioner was correct in upholding a decision of the Revenue Commissioners to refuse the appellant's attempt to pursue an appeal under a number of provisions of the Taxes Consolidation Act 1997 in respect of an amended notice of assessment issued under s. 811 of that Act.

2. In order to understand the issues, it is necessary to first say something about the relevant facts which, regrettably, have a long and tortuous history.

Background

3. Although this is very recent appeal, the underlying case before the Tax Appeal Commission ("the TAC") is alarmingly old. In fact, the case predates the establishment of the TAC in 2016 and dates back to its predecessor, the Appeal Commissioners whose role was taken over by the TAC on ?21 st March 2016. The tax year at issue is 1996/1997 and the relevant notice of opinion under s. 811 of the Taxes Consolidation Act 1997 ("the 1997 Act") was issued as long ago as 12 th November 1998. In the intervening period, almost all of the relevant legislative provisions which have been raised in argument by the parties have been amended, repealed or replaced. Thus, for example, the appellant has raised arguments in relation to ss. 950, 955 and 956 of the 1997 Act but those provisions were deleted by s. 129 of the Finance Act 2012. However, s. 129(5) of the 2012 Act makes clear that these provisions continue to apply to chargeable periods prior to the 2013 year of assessment. Accordingly, they continue to apply to this appeal.

4. The amount of tax in issue is relatively modest but it appears that the appellant is one of a number of taxpayers in a similar position such that the overall amount at stake is higher. No matter how modest the amount at stake, it is disquieting to come across a case which has been afflicted by so much delay. There have been at least two periods of paralysis when very little appears to have happened, namely the period between 2004 and 2012 and the period between 2016 and 2023. There was also a lengthy period which elapsed between the date of issue of the s. 811 notice on 12 th November 1998 and 27 th October 2004 when an appeal to the Circuit Court in respect of the notice was ultimately disposed of. To the extent that there is information available to the Court, I deal with those periods at a later point in this judgment. Before I do so, it is necessary to go back to what occurred in 1998 when the s. 811 notice of opinion was issued to the appellant in respect of losses claimed by him in his tax return for the 1996/1997 tax year.

The notice of opinion under s. 811

5. On 12 th November 1998, an authorised officer of the Revenue Commissioners issued a notice to the appellant under s. 811(6) of the 1997 Act informing him that she had formed the opinion that a series of steps undertaken by him which gave rise to a loss of IR?65,110 constituted a tax avoidance transaction within the meaning of s. 811. The loss in question represented the appellant's share of the losses of a partnership called Albany Partners which was involved in the acquisition, distribution and licensing of films. The notice informed the appellant that the authorised officer had determined the tax advantage amounted to the sum of IR?31,252.80. That sum represented the extent of the tax relief that the appellant had claimed in respect of his share of the partnership losses (at the rate of 48% of the share of losses). The notice informed the appellant of the availability of an appeal under s. 811(7) and further stated:

"I have determined that, should this opinion become final and conclusive and should the loss relief be claimed by Gunther Falkenthal it will be disallowed."

The appellant's appeal under s. 811(7)

6. Under s. 811(7), a person aggrieved by an opinion formed under s. 811 was given a right of appeal to the Appeal Commissioners on any of the grounds specified in paras. (a) to (d) of that subsection. Those grounds are examined in more detail below but, for example, they allowed the taxpayer to challenge the opinion on the basis that the transaction specified in the notice of opinion was not a tax avoidance transaction and they also permitted the taxpayer to argue that it would not be just and reasonable to withdraw or deny the tax advantage specified in the notice.

7. The appellant appealed to the Appeal Commissioners. The appeal was heard over a number of days in 2001 and 2002 but was ultimately unsuccessful. He then appealed to the Circuit Court where his appeal was heard by His Honour, Judge Matthews. The hearing in the Circuit Court lasted a total of 9 days over the course of 2003 and 2004. The judge delivered a detailed and comprehensive written judgment on 27 th October 2004 in which he expressed the view that the weight of the evidence supported the view that the transaction was undertaken or arranged for the primary purpose of giving rise to a tax advantage. He held that the Revenue Commissioners were entitled to take the view that the transactions undertaken by Albany Partners were tax avoidance transactions and that, accordingly, the Revenue Commissioners were entitled to invoke the provisions of s. 811. The judge dismissed the appeal and determined that the s. 811 opinion of the Revenue Commissioners should stand. There was an interval of almost 6 years between the date of the s. 811 notice and the decision of the Circuit Court. However, the materials available to the Court do not provide any detail as to what happened during that period or explain why it took almost 6 years to process the appeal to the Appeal Commissioners and the subsequent appeal to the Circuit Court. While it appears from the judgment of Judge Matthews that extensive evidence was given at the hearing of the latter appeal, it is nonetheless difficult to fathom why the process took almost 6 years from the date of the notice.

8. The decision of Judge Matthews was, in turn appealed by the appellant to the High Court by way of case stated. Other than the settlement mentioned below, the materials in that case stated were not before this Court. However, it is clear from the 2010 record number assigned to the case stated that the case was not transmitted to the High Court until that year. There is nothing in the papers which explains why it took such a long period of time to prepare the case stated after the detailed and very comprehensive judgment delivered by the Circuit Court judge in October 2004. Regrettably, that was not the only long period of delay in this case. As I will presently explain, a further lengthy period of inactivity followed between 2016 and 2023.

The settlement of the appellant's challenge to the s. 811 notice of opinion

9. The High Court appeal was due to be heard on 16 th October 2012 but, on that morning, the appellant entered into a settlement with the Revenue Commissioners under which the case stated was withdrawn. The settlement was executed in writing and stated that the appellant (together with a number of other parties) agreed "to be bound by the judgment of the Circuit Court (His Honour Judge Joseph Matthews) delivered in the proceedings the subject matter of this appeal on the 27th of October 2004, and his consequent determination of these proceedings." **** It should be noted that the settlement agreement was entered into subsequent to the enactment of section 130 of the Finance Act 2012 which amended s. 811 of the 1997 Act to insert a new sub-s. 5A. As I describe in more detail below, the Revenue Commissioners have sought to rely on that subsection as against the appellant.

The dealings between the parties subsequent to the settlement

10. Following the settlement, there was an exchange of correspondence between the parties as follows:

(a) On 10 th April 2013, the Revenue Commissioners wrote to the appellant referring to the settlement and stating that, as a result, the opinion as set out in the notice of opinion dated 12th November 1998 was now final and conclusive in accordance with section 811(5)(e). That subsection provided that a s. 811 opinion will become final and conclusive as and when all appeals have been finally determined. The letter concluded as follows:

"The share of the partnership loss claimed by you in the amount of ?82,672... that gave rise to a tax advantage of ?34,670. (IR?27,304) as specified in the Notice of Opinion, is now due and payable. Accordingly, I now withdraw the loss relief claimed in respect of the year 1996/ 97..."

(b) In response, in an email dated 8th May 2013, the appellant contested the power of the Revenue Commissioners to withdraw relief and he also maintained that the Revenue Commissioners were precluded by ss. 955 and 956 from taking further action in respect of the 1996/1997 year. Under s. 955(2)(a), an inspector of taxes was not permitted to issue an assessment or an amendment of an assessment where more than 4 years had passed from the end of the chargeable period in which the taxpayer had delivered a tax return in which a full and true disclosure of all material facts had been made. It is accepted in this case that the appellant had made such a disclosure in his return for the 1996/1997 chargeable period. For completeness, it should be noted that, at the time the return was made, the relevant period was 6 years but that was reduced to 4 years by s. 17(h) of the Finance Act 2003 which came into operation on 1 st January 2005 in relation to any assessments or amended assessment made after that date. At the time of this email, an amended assessment had not yet been made.

(c) In their letter of 22nd May 2013 in reply, the Revenue Commissioners maintained that, as a consequence of the settlement, the opinion had become final and conclusive and they referred to the steps that were open to the Revenue as a consequence including the steps provided for in s. 811(5)(a) and s. 811(5)(b) which empower the Revenue to do a number of things including disallowing a deduction or denying relief. It was also noted in the letter that the appellant had been informed in para. (iii) of the notice of opinion that, should it become final and conclusive, the loss relief would be withdrawn. On that basis, the writer refuted the appellant's suggestion that the relief could not be withdrawn. The writer also suggested that an appeal under s. 956(2)(a) did not arise as the inspector did not make any enquiries or take action to satisfy himself as to the accuracy or otherwise of the 1996/1997 return. In so far as the appellant relied on ss. 955 and 956, the Revenue Commissioners also highlighted the provisions of s. 811(5A) and contended that it had the effect of disapplying the time limits prescribed by Part 41 of the 1997 Act (in which ss. 955 and 956 are to be found). At the hearing of the appeal, there was considerable debate about the meaning and effect of S. 811(5A). That provision is examined in more detail at a later point in this judgment. At this point, it is sufficient to note that the subsection was inserted into the 1997 Act by s. 130 of the Finance Act 2012 ("the 2012 Act"). In the context of s. 811 opinions, it purports to disapply any time limit imposed by Part 41 of the 1997 Act.

(d) On 29 th May 2023, the Revenue Commissioners issued an amended notice of assessment to the appellant in respect of the 1996/1997 tax year for ?34,583.70. The notice was dated 28 th May 2013. The assessment shows that the calculation was first carried out in Irish pounds and then converted into euro. The liability in Irish pounds was stated to be IR?27,236.70 which is less than the sum specified in the notice of opinion (IR?31,252.80). There is no explanation of that discrepancy in the papers before the Court but it appears from the terms of the amended assessment that, in assessing the tax due as a consequence of the withdrawal of relief, the inspector applied a lower rate of tax to part of the sum in issue. That element was taxed at 27% while the balance was taxed at the standard rate of 48%.

(e) On 21 st June 2013, the appellant responded indicating a desire to appeal. In that letter, he relied on two matters:

(i) He invoked s. 955(3), on the grounds that he considered that the Revenue Commissioners were precluded from making the amendment to the assessment by reason of s. 955(2) which imposed the 4 year period described above. Under s. 955(3), a taxpayer "who is aggrieved by an assessment or the amendment of an assessment" **** was given a right to appeal to the Appeal Commissioners.

(ii) He also relied on s. 956(2)(a) on the grounds that he considered that the Revenue Commissioners were precluded by reason of s. 956(1)(c) from making any enquiry or taking any action in respect of the tax year ended 5th April 1997. Under the latter subsection, an inspector of taxes was not entitled to make enquiries or take action to check the accuracy of a tax return after the expiration of a 4-year period from the end of the relevant chargeable period. In turn, s. 956(2)(a) gave an aggrieved taxpayer a right to appeal to the Appeal Commissioners against any such enquiry or action where the taxpayer believed that the inspector was precluded by s. 956(1)(c) from taking such steps.

(f) The Revenue Commissioners replied on 26 th June 2013 in which they reiterated the points made in their letter of 22 nd May 2013 in relation to s. 956(2)(a) and s. 811(5A). In addition, they drew the appellant's attention? to s. 811(5)(d) which they suggested precludes a right of appeal "against the necessary adjustments that arise where an opinion of the Nominated Officer becomes final and conclusive ...". At a later point in this judgment, it will be necessary to consider s. 811(5)(d). It is sufficient to note, at this point, that the Revenue Commissioners argue that it displaces any rights of appeal provided for in Part 41 of the 1997 Act (in which both s. 955 and s. 956 are to be found).

(g) In circumstances where the Revenue Commissioners were making the case that the appellant did not have a right of appeal, the appellant wrote to the Appeal Commissioners on 10 th July 2013 in which he stated that the Revenue Commissioners had notified him of their refusal to admit his "appeal against an amended assessment ... dated 28 th May 2013". His letter concluded: "In accordance with s. 933(1)(c) T.C.A. 1997, I wish to appeal this refusal". The reference to s. 933 should be noted. Under s. 933(1)(a), a person aggrieved by an income tax assessment was entitled to appeal to the Appeal Commissioners within 30 days from the date of the assessment by giving written notice to the inspector of taxes. In turn, s. 933(1)(b) provided that, where the inspector was of opinion that the taxpayer was not entitled to make the appeal, the inspector "shall refuse the application" and was also required to give written notice of the refusal to the taxpayer "specifying the ground for such refusal". Thus, the scheme of Part 41 of the 1997 Act envisaged that the inspector of taxes had a role in deciding on the availability of an appeal. However, s. 933(1)(c) allowed the taxpayer to appeal the inspector's refusal to the Appeal Commissioners within 15 days of the refusal and s. 933(1)(d) dealt with the role of the Appeal Commissioners thereafter. Section 933(1)(c)provided that, following receipt of such an appeal, the Appeal Commissioners could refuse or allow the appeal or they could, under s. 933(1)(d)(iii), notify the parties that they had decided to convene a hearing.

(h) On 15 th August 2013, the Appeal Commissioners notified the parties that they had decided to convene "a hearing in accordance with Section 933(1)(d)(iii)? ... to determine whether the Appellant has a right to an appeal hearing" which they ?initially listed for 2 nd October 2013. It is important to keep in mind that, while the arguments of the parties appear to have traversed a broader ground, this was the sole issue which the Appeal Commissioners were minded to address at that point.

The hearing before the Appeal Commissioner to determine whether the appellant had a right of appeal

11. A hearing subsequently took place on 20 th December 2013 at which both parties were represented by counsel. A transcript of the hearing is appended to the case stated and it is clear from the transcript that the parties' arguments concentrated on the provisions of ss. 811(5)(d), ?811(5A), 933, 950 and 956 of the 1997 Act. There was also some discussion of s. 957 which was raised by the Revenue Commissioners as an additional ground for suggesting that there was no right of appeal. Under s. 957, there was no right of appeal where the amount specified in the assessment had been agreed between the inspector of taxes and the taxpayer. The Revenue Commissioners argued that the settlement of 16 th October 2012 was an agreement within the meaning of s. 957.

12. A subsequent hearing also took place on 9 th April 2014 at which the parties were again represented by counsel. The transcript of that hearing is also appended to the case stated. Consistent with the terms of the notification described in para. 10(h) above, it is clear from the transcript that the Appeal Commissioner identified that the purpose of the hearing was to enable him to determine whether "to allow the application for an appeal". At that hearing, counsel for the appellant argued that s. 811(5)(d) does not disapply the provisions of ss. 955 and 956. There was also further discussion of s. 811, more generally, and ss. 933, 950, 952, 953, 956 and 957. At the conclusion of that hearing, the Appeal Commissioner directed the parties to provide further written submissions.

The outcome of the appellant's application to the Appeal Commissioners to determine whether he had a right of appeal

13. On 1 st May 2015, the Appeal? Commissioner delivered an ex tempore ruling in which he determined that there was no right of appeal available to the appellant. I should explain that, while there is now a statutory requirement (namely ss. 949AF and 949AJ of the 1997 Act as inserted by s. 34 of the Finance (Tax Appeals) Act 2015) that the determinations the Tax Appeal Commission ("the TAC") must be set out in writing, that was not the position prior to the establishment of the TAC on 21 st March 2016. Under the law as it stood at the time, the Appeal Commissioner was perfectly entitled to give his decision orally. In cases where this was done, there was usually a shorthand writer employed to take a note of the decision. In his ruling, the Appeal Commissioner addressed all of the arguments made to him notwithstanding that he had earlier made it clear that the sole issue was whether there was a right to an appeal. He first found that the assessment made in May 2013 was covered by s. 811(5A) such that the time limits prescribed in Part 41 of the 1997 Act did not apply. He also held that s. 957 applied. The Appeal Commissioner then addressed the effect of s. 811(5)(d), at p. 6 of the transcript, as follows:

"In my view, That is quite clear. The only issue of an appeal arising under subsection 7, which narrows the grounds in which an appeal can be advanced against an actual 811 opinion, are as prescribed in subsection 7 and derived from the existence of an opinion against which the taxpayer has appealed, to state the blindingly obvious, but insofar as that applies, then the section goes on and says: 'No right or further right of appeal shall lie under the Acts'. Now 'the Acts' is clearly a reference to matters outside - well,? it could include Section 811 ... but it also obviously extends to other ... appeal provisions under the Taxes Acts and it seems to me *it is very clear in what it is saying that insofar as you are a Section 811 class of person who has a right to appeal, as a consequence of that has the right to appeal under subsection (7), then no other right or further right of appeal shall lie under the Acts against that adjustment*..." (emphasis added).

The appellant's request for a case to be stated to the High Court

14. Immediately following that ruling, the appellant expressed his dissatisfaction with it. The transcript records that he said: "I know it is debatable whether there is an appeal or not possible, but I would like to record dissatisfaction because if I don't do that then the road is shut for sure." At that time, an expression of dissatisfaction was a necessary prerequisite for an appeal by way of case stated to the High Court. Section 941(1) made that clear. In turn, s. 941(2) of the 1997 Act provided that the party seeking to appeal "having declared his or her dissatisfaction, may within 21 days after the determination by notice in writing addressed to the Clerk to the Appeal Commissioners require the Appeal Commissioners to state and sign a case for the opinion of the High Court on the determination." ." It should be noted that this subsection did not explicitly require the party seeking the case stated to identify the point of law on which the opinion of the High Court should be sought. However, s. 941(1) plainly envisaged that the expression of dissatisfaction should be in respect of a point of law. It required the party seeking the case stated to express dissatisfaction where that party was "dissatisfied with the determination as being erroneous *in point of law*..." (emphasis added). When the appellant expressed his dissatisfaction orally, he did not make any attempt to identify why he believed that the decision was erroneous in point of law.

15. The appellant followed this up with a written request on 20 th May 2015 requiring the Appeal Commissioners to state a case to the High Court but, again, he did not identify the issue of law that required a determination from the court. As noted above, ?a written request for a case stated had to be made within 21 days after the date of the determination. The Revenue Commissioners then contested the availability of a case stated in cases where, as here, the Appeal Commissioners had determined that there was no right of appeal. However, on 13 th October 2015, the parties were notified that the Appeal Commissioners had determined that, subject to the appellant identifying the point of law, the application for a case stated would be allowed. That was followed by correspondence asking the appellant to identify the point of law. On 22 nd January 2016, the appellant apologised for his delay in dealing with the matter and said that he would "ensure that at the latest within 2 weeks the outstanding matter will have been dealt with." Notwithstanding that promise, nothing was done. In the meantime, the 2015 Act came into operation on 21 st March 2016. That gave rise to a number of developments: The TAC took over the role previously carried out by the Appeal Commissioners; the Appeal Commissioner who made the determination in issue vacated his office and the TAC now functioned under a new statutory scheme contained in Part 40A of the 1997 Act as inserted by s. 34 of the 2015 Act. However, s. 29(4) of the 2015 Act expressly addressed what was to happen where an Appeal Commissioner had vacated office in circumstances where any of the steps required to finalise a case stated had not been completed by 21 st March 2016. In such cases, the TAC was required to serve a notice on the parties to the appeal requesting them to state whether they wished the TAC to rehear the appeal or whether they wished the case stated to proceed. If both parties did not agree on the course of action to be taken, s. 29(7) required the TAC to comply with s. 30 of the 2015 Act and to "complete the case stated and sign it in accordance with that section."

16. While I appreciate that the TAC was a newly appointed body and while I have no doubt that it was faced with a considerable workload, the period of paralysis which followed in relation to progressing the case stated is extraordinary.

The period of paralysis that followed between 2016 and 2023

17. ? On 14 th December 2016, the Revenue Solicitor wrote to the TAC asking that the matter be addressed under s. 29(4) of the 2015 Act. Reminders were sent on 8 th May 2017, 26 th January 2018, 27 th June 2018 and 12 th December 2018. Eventually, on 10 th January 2019, the TAC wrote to the appellant asking whether he wished to have a rehearing or to have the case stated proceed. Remarkably, that letter was not addressed or copied to the Revenue Solicitor notwithstanding that s. 29(4) expressly required the TAC to give such notice to both parties. A response was sent by the appellant on 6 th February 2019 requesting a rehearing. Yet, the TAC did not write to the Revenue Solicitor until 23 rd October 2019, enclosing a copy of the letter of 10 th January and seeking a response. A response was sent on 1 st November 2019 indicating that the Revenue Commissioners wished the case stated to proceed and highlighting the Appeal Commissioners' letter of 13 th October 2015 requesting the appellant to identify the point of law for determination by the High Court. As noted in para. 15 above, the fact that the parties did not agree on the course of action to be taken had the effect of triggering the TAC's obligation under s. 29(7) of the 2015 Act to proceed with the case stated. That did not happen. A reminder was sent by the Revenue Solicitor on 16 th June 2020. Further reminders were sent on 17 th September 2020, 21 st October 2020, 19 th November 2020, 22 nd February 2021(which also indicated a willingness to attend a case management conference "if this would assist in progressing matters") and 30 th March 2021. Ultimately, on 9 th June 2021, the TAC responded for the purpose of setting up a case management conference. It is unclear from the material attached to the case stated whether the parties followed up on that suggestion.

18. On 24 th May 2022, the TAC wrote to the parties advising that the appeal be would be listed for hearing. The Revenue Solicitor responded on 9 th June 2022 enclosing the transcript of the ex tempore decision of 1 st May 2015 and reminding the TAC that the Revenue Commissioners had previously indicated that they did not consent to a re-hearing. The Revenue Solicitor also suggested that the TAC direct the appellant to provide a first draft of the case stated for consideration by the TAC. On 31 st August 2022, the TAC requested the appellant for comments on the Revenue Solicitor's correspondence. On 28 th September 2022, the Revenue Solicitor sent a reminder to the TAC enquiring whether a response had been received from the appellant. In turn, the TAC sent a reminder to the appellant on 3 rd October 2022 which resulted in a response on 7 th October 2022 indicating that the appellant had been in communication with the Revenue Solicitor and expressing the hope that this would facilitate the finalisation of the case stated. Thereafter some attempt appears to have been made to settle the underlying dispute between the parties. The Revenue Solicitor sent emails to that effect to the TAC on 17 th February 2023 and on 21 st March 2023. Sensibly, by email dated 23 rd March 2023, the TAC indicate that the matter would be stayed until 30 th April 2023 to facilitate discussions. On 10 th May 2023, the TAC wrote again to the parties seeking an update. The Revenue Solicitor responded on 15 th May 2023 to say that it had not been possible to resolve the dispute. Curiously, notwithstanding the Revenue Commissioners' earlier refusal to agree to a re-hearing, the Revenue Solicitor also requested the TAC to list the appellant's case "for hearing". On foot of that request, a hearing was then scheduled for 31 st August 2023 but, on 31 st July 2023, the TAC rescheduled the hearing for 19 th September 2023 and gave directions for the delivery of submissions and books of materials. On 3 rd August 2023, the Revenue Solicitor responded and again enclosed a copy of the transcript of 1 st May 2015 and contended that the hearing on 19 th September 2023 should be limited to a consideration of the issue as to whether the "Appellant's application is one which is capable of appeal by way of case stated." That prompted the TAC to vacate the hearing date and to request observations from the appellant.

19. On 1 st September 2023, a more detailed letter was sent to the TAC by the Revenue Solicitor in which two issues were raised. First, the Revenue Solicitor repeated the request made in the communication of 3 rd August 2023 that the TAC should refuse the appellant's application for a case stated. However, in making that request, the Revenue Solicitor acknowledged that the Appeal Commissioners had previously held that, subject to the appellant identifying the point of law, the application for a case stated would be allowed. The Revenue Solicitor highlighted that the appellant had never identified a point of law and requested that the application should be dismissed as being without merit. Second, the Revenue Solicitor requested that, should the TAC be prepared to grant the application, the case stated should be prepared. In the latter context, the Revenue Solicitor referred to s. 949AQ(2) of the 1997 Act which provides that the TAC is responsible for drafting the case stated.

20. On 12 th October 2023, the appellant's solicitors, Sherwin O'Riordan responded to the Revenue Solicitor's letter of 1 st September 2023, explaining that the appellant had been debilitated for a period of time and emphasising that it was not his responsibility to prepare a case stated. They also identified that the decision of the Supreme Court in Revenue Commissioners v. Droog [2016] IESC 55 and the then pending decision of the Court of Appeal in? Hanrahan v. the Revenue Commissioners [2024] IECA 113 would be relevant to the case.

The formulation of the case stated for the opinion of the High Court

21. Subsequently, on 30 th November 2023, the TAC circulated a draft case stated to the parties for their consideration in which the following question was posed: "Did Appeal Commissioner O'Callaghan err in law in upholding the decision of the Respondent to refuse the Appellants appeal? As discussed further below, the format of the case stated is unconventional.

22. The Revenue Solicitor provided observations on 19 th December 2023 in which the point was made that that the question posed did not disclose how the Commissioner erred on a point of law and it was submitted that it would not normally be appropriate to frame a question in this way for the purposes of a case stated. Nonetheless, the writer made clear that the Revenue Commissioners had no formal comments to make on the draft case stated. The appellant took a similar approach. In his solicitors' letter dated 11 th January 2024, a number of criticisms were made of the approach taken in the draft case stated but no objection was voiced suggesting that the draft case stated did not comply with the basic statutory requirements set out in a. 949AQ of the 1997 Act. In that letter, Sherwin O'Riordan stated:

"As a general point, it is clear that this case stated has not been presented to the High Court in a manner that reflects the normal contents of a case stated. That is to say, the case stated does not outline all the relevant facts, the legal arguments put forward by each of the parties and the consideration of the various authorities and relevant legislative provisions upon which the appeal commissioner reached his final determination .

Although it is accepted that this is an unusual circumstance, it is clear to us that the transcript of the case stated provided to the High Court does not detail the rationale for the commissioner's decision in a clear and legislatively definitive way . It will therefore be a very unusual case for the High Court to consider and deal with . This situation would not ha v e occurred if the Revenue had agreed to a full rehearing of the case, which we had requested."

23. Notwithstanding the criticisms of the form of the case stated made by them, the solicitors for the appellant duly transmitted the case stated to the High Court as required by s. 949AQ(7) of the 1997 Act. In accordance with O. 62, r. 5, they also signed and served the notice of transmission of the case stated on 9 th February 2024.

24. Nor was any issue with the validity of the case stated taken by the appellant in the detailed written submissions delivered by his legal team in advance of the High Court hearing. It was made clear in para. 2.1 of those submissions, that the net issue for determination by the High Court was whether the appellant is entitled to pursue an appeal under s. 933(1)(c) which provided for a right of appeal where an inspector of taxes had determined that the party seeking to appeal to the Appeal Commissioners was not entitled to appeal. It was contended in that paragraph that, in the event that the appellant was successful in his appeal of the refusal by the inspector in this case, "he is entitled to a hearing by the Appeal Commissioner in relation to his underlying appeal against the issuing of the amended notice of assessment and/or the demand for payment of tax being out of time in accordance with s. 955." The submissions then addressed the case made by the Revenue Commissioners in respect of s. 811(5)(d), the appellant's contention that s. 955 has "primacy" over s. 811, the effect of s. 811(5A) and the Revenue's attempted reliance on s. 957(1)(c). Given the extraordinary delay which had occurred prior to the formulation of the case stated, this was, obviously, a sensible course for the appellant to adopt. Any attempt to challenge the form of the case stated would heap more delay on the delay which had already dogged this case. However, the appellant, nonetheless, changed course on this issue at the hearing.

The appellant's belated challenge to the form of the case stated

25. When it came to opening the appellant's case at the hearing before Mulcahy J. in the High Court on 30 th January 2025, the first point sought to be made by counsel, then retained on behalf of the appellant, was that the case stated did not comply with the requirements of s. 949AQ and was "fundamentally flawed". Counsel submitted that the case stated should be sent back to the TAC under s. 949AX(5) of the 1997 Act which permits the High Court to send a case stated back to the TAC if it is of opinion that it would not, by reason of the relevant circumstances, be consistent with the due administration of justice, to deal with the case stated. Counsel for the appellant also suggested that there should be a rehearing before the TAC even though, as the High Court judge highlighted on p. 17 of the transcript, the first thing the TAC would have to decide, at any such rehearing, would be whether the appellant had an entitlement to appeal. As the judge astutely observed, "So whatever way a Tax Appeals Commissioner decides that issue in the event, if the matter were remitted, it will inevitably come back before this Court as a case stated on whether the Tax Appeals Commissioner was right or wrong in either allowing or not allowing your client to appeal.." The judge refused the application.

26. The High Court judge later addressed the issue in his written judgment where he explained that he could see no useful purpose in remitting the matter to the TAC. He also made the following very pertinent observations at paras. 25 to 27 of his judgment:

" 25 *.** The first basis upon which remittal was sought, for the purpose of a 'full' appeal was, in effect, an application that the case stated be resolved in the appellant's favour. The court could not possibly have remitted the case to the TAC for a full hearing without first deciding whether the appellant was entitled to such a hearing, the very issue in the case stated.*

26 *.** Nor did any purported infirmity in the form of the case stated justify remittal, simply for the purpose of having a new case stated on the same issue. Although not precisely in a form which mirrors the terms of section 949AQ, the inclusion of the transcript with the case stated means that more than sufficient information was provided to enable the court to determine the legal issue in the case stated. If remitted, the first issue which the TAC would have to decide was whether the appellant has a further right of appeal. No useful purpose could be served by further delaying a matter of significant antiquity, by sending it back to the TAC with this question unanswered.*

27 *.** Clearly the court has jurisdiction to refuse to proceed with a case stated where proceeding would not be in the interests of justice, but I could see no injustice in proceeding in this case. The appellant had not been prevented by any purported infirmity in the case stated from filing legal submissions, nor did he identify any prejudice. I indicated that the appellant could renew his application if an issue arose which made that appropriate. No further application was made."*

27. It is clear from those paragraphs that, contrary to the argument made by counsel for the appellant on the hearing of the appeal, the High Court judge did not rely solely on the absence of prejudice to the appellant. It is very clear from para. 26 of his judgment that the judge was satisfied that the exhibits accompanying the case stated provided more than enough information for the purposes of s. 949AQ(1)(a). The judge's reference to the absence of prejudice was made to highlight the fact that he had expressly informed the appellant that, if in the course of the hearing of the appeal, some prejudice arose as a consequence of the form of the case stated, the application to remit the matter to the TAC could be renewed. It is striking that no such prejudice emerged during the course of the hearing.

28. The appellant did not accept the finding by the High Court judge on the issue of compliance with s. 949AQ(1)(a). His first ground of appeal in the notice of appeal comprises an assertion that the judge erred in law by proceeding with the case stated in circumstances "where the mandatory statutory provisions contained in Sections 949AQ(1)(a)(i) to 949AQ(1)(a)(v) ... were clearly not complied with." In fairness to the appellant, it was clear from the manner in which his counsel addressed the issue at the hearing of the appeal that the appellant is no longer strongly pressing this ground of appeal. Nonetheless, counsel for the appellant did not abandon the ground entirely. Counsel argued that the case stated did not comply with the requirements of s. 949AQ and he highlighted that, although s. 949AQ(8) expressly provided that the High Court should not decline to hear a case stated where the requirements of ss. 949AQ(6) and (7) were not complied with, there was no similar provision in respect of a breach of s. 949AQ(1). He also submitted that in rejecting the appellant's argument at the hearing, the High Court judge had relied solely on an absence of prejudice on the part of the appellant. He further argued that, in any event, there was obvious prejudice to the appellant, namely "the loss of an opportunity to properly articulate his argument before another Appeals Commissioner". In my view, that is an unstateable argument. It presupposes that there was a right to have the matter remitted. So, unless the appellant could establish such a right, no prejudice could be said to arise. Moreover, the submission ignores the fact that counsel for the appellant had already made extensive submissions over ?the course of two days before the Appeal Commissioner in December 2013 and April 2014. The appellant had, accordingly, had every opportunity to articulate his argument.

29. Counsel for the appellant also maintained that the TAC did not have jurisdiction to state a case. This argument was advanced on the basis that, under s. 949AX the TAC could only step into the shoes of an Appeal Commissioner for the purposes of stating a case where (a) there had previously been an omission to do so by the relevant Appeal Commissioner and (b) the omission to state the case is due to the fact that the relevant Appeal Commissioner had vacated office. It was submitted that it could not be said that the vacation of office was the reason here. Instead, it was suggested that: "the omission was caused by the Appeal Commissioner requiring the appellant to prepare the case stated [which the appellant failed to do] but which, as a matter of law, was a function exclusively vested in the Appeal Commissioner himself." I am again of the view that this is an unstateable argument. The omission to state the case plainly arose as a consequence of the fact that the relevant Appeal Commissioner had vacated his office in 2016. If he had not vacated his office, there is nothing to suggest that the relevant case would not have been stated by him. There is no evidence to suggest that, had he remained in office, he would have continued to maintain the position that the appellant had an obligation to identify a point of law. Prior to leaving office, the appellant had not advanced any argument to him that he was not under an obligation to identify the point of law in issue. On the contrary, his email of 22 nd January 2016 (addressed in para. 15 above) gave the impression that he would comply with the Appeal Commissioner's request.

30.?Turning to the arguments on the form of the case stated, there is, in my view, no plausible basis to suggest that the High Court judge was in error in respect of this aspect of his judgment. It is true that the format of the case stated is unusual but, as the High Court judge held, it provides, through Exhibits 1 to 5, all of the material necessary to equip the High Court with the material required by s. 949AQ of the 1997 Act.

31.?Section 949AQ(1)(a) came into operation on 21 st March 2016 following the making of a commencement order under s. 1(2) of the 2015 Act. There was no equivalent to s. 949AQ(1)(a) in Part 40 of the 1997 Act. The subsection sets out 5 requirements for a case stated from the TAC to the High Court. These are set out as follows in the subsection:

"A case stated shall contain -

(i) the Appeal Commissioners' material findings of fact,

(ii) an outline of the arguments made by the parties,

(iii) the case law relied on by the parties,

(iv) the Appeal Commissioners' determination and the reason for the determination, and

(v) the point of law as set out in the notice referred to in section 949AP(2) on which the opinion of the High Court is sought."

32. In this case, the TAC explained in the body of the case stated that a hearing had taken place before Appeal Commissioner O'Callaghan on 1 st May 2015 in the course of which he had given his decision to refuse to admit the appellant's appeal. A copy of the transcript of that day was attached as Exhibit 1. In my view, it was not good practice for the TAC to draft the case stated in that way. I believe that the High Court is entitled to expect that the TAC would summarise the main elements of the determination in the body of the case stated. While I am very strongly of the view that the approach taken by the TAC in this case was sub-optimal, I nevertheless believe that the provision of the transcript of 1 st May 2015 meant that the High Court was provided with the relevant determination and the reasons for it. Thus, the requirement specified in s. 949AQ(1)(a)(iv) was complied with.

33. In so far as findings of fact are concerned, the TAC stated in para. 20 of the case stated that there were no material findings of fact. In many cases, it would be a serious matter for a case stated from the TAC to omit findings of fact. It is clear from Mara v. Hummingbird [1982] ILRM 421, that such findings are ordinarily crucial. But, here, it is clear from the transcripts of the hearings before the Appeal Commissioner in December 2013 and April 2014 (which are contained within Exhibit 3 to the case stated) that there was no conflict between the parties on the facts; the conflict between them related to the effect of a relatively small number of provisions of the 1997 Act. There was no conflict about the following facts (a) that a s. 811 notice of opinion was served within a 4-year period from the relevant year of assessment or (b) that the notice of opinion had been appealed or (c) that the appeals had been unsuccessful before both the Appeal Commissioners and the Circuit Court or (d) that the subsequent appeal by way of case stated had been settled between the parties or (e) that the appellant had agreed in the settlement that he was bound by the outcome in the Circuit Court or (f) that the inspector of taxes had subsequently issued an amended notice of assessment.

34. In giving his determination on 1 st May 2015, the Appeal Commissioner plainly proceeded on the basis that there was no dispute about any of these facts. He was concerned solely to determine the legal issues which he believed arose. In the very particular circumstances of this case, I can see no breach of the requirements of s. 949AQ(1)(a)(i).

35. Nor can I see any breach of the requirements of s. 949AQ(1)(a)(ii). While the TAC took an unsatisfactory approach in not summarising the arguments of the parties in the body of the case stated, the arguments are apparent from a reading of the transcripts contained within Exhibit 3 to the case stated. While it is not appropriate that the High Court should have to trawl through the pages of the transcripts to find the arguments made by the parties, the arguments are recorded in detail in the transcripts and, as the High Court judge made clear in para. 26 of his judgment, there was more than sufficient information contained in the exhibits to the case stated to enable the court to understand the arguments that had been made by the parties before the Appeal Commissioners. The transcripts also recorded any relevant case law on which the parties relied such that there was also compliance with the requirements of s. 949AQ(1)(a)(iii).

36. I have already addressed the requirement in s. 949AQ(1)(a)(iv) that the case stated should contain the determination and the reasons for it. That leaves the requirement in s. 949AQ(1)(a)(v) to identify a point of law for determination by the High Court. As noted previously, the point of law identified in the case stated is in the following terms:

"Did Appeal Commissioner O'Callaghan err in law in upholding the decision of the Respondent to refuse the Appellant's appeal?"

37. The form of that point of law was criticised by both sides principally on the basis that it does not identify any alleged error on the Appeal Commissioner's part. ?However, in my view, it is entirely understandable why the TAC took this course. The TAC received no assistance from the parties in relation to the identification of the question. Moreover, the TAC was operating under a provision which does not take account of the previous regime which was in force at the time the appellant gave notice of his dissatisfaction in May 2015. In this context, it is important to have regard to the language of s. 949AQ(1)(a)(v)which provides that the case stated should identify the point of law "as set out in the notice referred to in s. 949AP(2) on which the opinion of the High Court is sought." It is therefore necessary to have regard to s. 949AP. Like s. 949AQ, it came into force on 21 st March 2016. Subsection 949AP(2) provides that a party who is dissatisfied with a determination of the TAC may by notice in writing require a case to be stated for the opinion on the High Court. In turn, s. 949AP(3) requires the appellant to state in the notice "in what particular respect the determination is alleged to be erroneous on a point of law". That was never done by the appellant here but, as noted above, the commencement of the operation of s. 949AP postdates the appellant's email of 20 th May 2015 requiring the Appeal Commissioners to state a case for the opinion of the High Court. Moreover, as noted in para. 14 above, s. 941(2) of the 1997 Act did not explicitly require the party seeking the case stated to identify the point of law on which the opinion of the High Court should be sought. Although s. 941(1) plainly envisaged that the expression of dissatisfaction should be in respect of a point of law, and although it may well have implicitly required the appellant to identify such a point of law, it was, at least open to argument that, at the time of the appellant's request for a case to be stated, he was under no statutory requirement (similar to s. 949AP(3)) to identify the question of law giving rise to his dissatisfaction. While it would have been both sensible and helpful for the appellant to have done so and while it is fair to say that it was the practice at that time for an appellant to do so, I do not believe that the legal position was clear.

38. Where does that leave the requirement in s. 949AQ(1)(a)(v) to identify the point of law "as set out in the notice referred to in s. 949AP(2)"? Given (a) that s. 949AP had not been commenced at the time the appellant gave his written notice in May 2015, (b) that the appellant had not identified any point of law in that notice and (c) that it was unclear as to whether there was a statutory requirement on the appellant at that time to identify a point of law, I am of the view that the TAC was not in a position to comply with the specific requirement in s. 940AQ(1)(a)(v) to identify a point of law in the case stated by reference to the appellant's notice. It did the best it could in the circumstances. It asked whether the Appeal Commissioner erred in law in upholding the inspector's decision to refuse the appellant's appeal. That question must be read in context. The context was that the inspector of taxes had refused the application to appeal and that, in response to that refusal, the appellant had, as noted in para. 10(g) above, written to the Appeal Commissioners stating that "In accordance with s. 933(1)(c), I wish to appeal this refusal". As counsel for the appellant succinctly stated in para. 2.1 of his written submissions in advance of the High Court hearing, the question then was whether the appellant was entitled to appeal under s. 933(1)(c). That is the straightforward question which arose. This was plainly understood by both sides. In addressing that question, it would, of course, be necessary to also address any relevant argument which had been advanced by the Revenue Commissioners as to why an appeal did not lie under that provision. Again, that was obvious and was also understood on both sides. Thus, while the question posed lacked the degree of granularity that one ordinarily sees in a revenue case stated, the question nevertheless fulfilled its purpose. In the circumstances, I can see no basis for the appellant's contention that the requirements of s. 949AQ(1)(a)(v) were not satisfied in this case. It follows that the decision of the High Court judge on this issue must be upheld.

39. The remaining issues raised before the High Court related to:

(a) The effect of s. 811(5)(d); The Revenue Commissioners relied on this subsection in support of their submission that, once a s. 811 opinion becomes final and conclusive, an appeal under Part 41 of the 1997 Act is not available to a taxpayer;

(b) The effect of the 4-year period prescribed by s. 955. As the High Court judge observed, the appellant argued that s. 955 trumped s. 811(5)(d);

(c) The effect of s. 956 which the appellant also invoked with a view to trumping s. 811(5)(d);

(d) The effect of s. 811(5A) on which the Revenue Commissioners sought to rely;

(e) The effect of s. 957(1)(c) on which the Revenue Commissioners also sought to rely. The High Court judge decided that issue against the Revenue Commissioners and they have not sought to cross-appeal in respect of the issue. For that reason, it is unnecessary for this Court to address it.

40. In addition to those issues debated before the High Court, the appellant has also sought to raise an issue on this appeal as to whether the amended assessment issued by the Revenue Commissioners on 29 th May 2013 fell outside the ambit of the statutory scheme by reason of the fact that it was for a lesser sum than the amount specified in the notice of opinion. In this context, it will be recalled that, as explained in para. 10(d) above, the amount specified in the notice of opinion was IR?31,252.80 while in the amended notice of assessment, the amount specified was the lower sum of ?34,583.70 which equates to IR?27,236.70. The Revenue Commissioners maintained that this was not raised in the course of the proceedings before the High Court and they have strongly contested the appellant's entitlement to raise it for the first time on appeal. In my view, the objection of the Revenue Commissioners must be upheld. The issue is not raised in the appellant's notice of appeal and it cannot therefore be pursued.

41. It seems to me that the issues relating to s. 811(5)(d), s. 955 and s. 956 can all be addressed under the umbrella of the effect of s. 811(5)(d). The remaining issues can then be addressed to the extent that it is appropriate to do so. In the latter context, I have a concern that to embark on a consideration of the effect of s. 811(5A) may stray beyond the narrow ambit of the case stated. It is necessary to recall that, while the arguments of the parties may have addressed a relatively wide range of provisions of the 1997 Act, the issue before the Appeal Commissioners was confined to the question as to whether there was a right of appeal to them against the refusal of the Revenue Commissioners to entertain the appeal under s. 933(1)(c).

The effect of s. 811(5)(d) and the interplay between that subsection and ss. 933, 955 and 956 of the 1997 Act

42. As noted previously, the issue which arises in respect of s. 811(5)(d) is whether it has the effect of displacing, in those cases falling within its terms, any of the provisions of Part 41 of the 1997 Act which gave taxpayers a right of appeal. There are a number of ?provisions of Part 41 which created rights of appeal to the Appeal Commissioners (i.e. the predecessor to the TAC). Those rights must be read in light of the provisions of s. 950(2) which made clear that Part 41 applied unless there was express provision to the contrary. Section 950(2) provided as follows:

" *Except insofar as otherwise expressly provided*, this Part shall apply notwithstanding any other provision of the Tax acts or the Capital Gains Tax Acts." (emphasis added)

43. For present purposes, the relevant provisions of Part 41 include s. 933(1)(c) which applied where an inspector of taxes had refused to entertain an appeal from a "person aggrieved by an assessment to income tax". In such circumstances, s. 933(1)(c) gave the aggrieved taxpayer an entitlement to "appeal against such refusal by notice in writing to the Appeal Commissioners within 15 days of the date of issue by the inspector... of the notice of refusal." As outlined in para. **** 10(g) above, that is the section which the appellant invoked when he submitted his appeal to the Appeal Commissioners on 10 th July 2013 in respect of the amended assessment issued on 28 th May 2013.

44. In addition, as noted in para. 10(e) above, the appellant in his letter of 21 st June 2013 had earlier signalled to the Revenue Commissioners that his purpose, in seeking to appeal the amended assessment, was to invoke s. 955(3) under which a taxpayer "who is aggrieved by an assessment or the amendment of an assessment" **** was given a right to appeal to the Appeal Commissioners. In the same letter, he made the case that the Revenue Commissioners were precluded from making the amendment to the assessment by reason of s. 955(2) which imposed a 4 year period for raising an assessment following the making of a tax return in which a full and true disclosure of all material facts had been made. In the same letter, the appellant also sought to invoke s. 956(2)(a) on the grounds that he considered that the Revenue Commissioners were precluded by reason of s. 956(1)(c) from making any enquiry or taking any action in respect of the tax year ended 5th April 1997. As explained in para. 10(e) above, s. 956(1)(c) had the effect that an inspector of taxes was not entitled to make enquiries or take action to check the accuracy of a tax return after the expiration of a 4-year period from the end of the relevant chargeable period. In turn, s. 956(2)(a) gave the taxpayer a right to appeal to the Appeal Commissioners against any such enquiry or action where the taxpayer believed that the inspector was precluded by s. 956(1)(c) from taking such steps.

45. It seems to me that s. 956 has no application to the facts of this case. It was concerned with steps which are preliminary to the raising of an assessment or amended assessment, as the case may be. It covered the ability of a tax inspector to make enquiries or take any other steps which the inspector considered were necessary in order to be satisfied that the matters disclosed in a tax return were true and accurate. That is not what occurred here and, for that reason, s. 956 is not relevant.

46. Even if s. 956 were relevant, its provisions do not add anything of significance to the issue which arises as to whether s. 811(5)(d) has the effect of displacing any rights of appeal which may have been available under any provision of Part 41. Each of the appeal provisions identified in paras. 43 to 45 above are contained in Part 41. Accordingly, if the Revenue Commissioners are right as to the effect of s. 811(5)(d), this will cover any rights of appeal that the appellant may otherwise have had under any of ss. 933, 955 or 956.

47. Before turning to the specific terms of s. 811(5)(d), it is necessary to consider the provisions of s. 811 as a whole and the structure or scheme which it created. Given the legislative changes which have taken place since the events in issue, I will use the past tense, when considering the relevant provisions of the section. Under s. 811(2), the Revenue Commissioners were empowered to form the opinion that a transaction was a tax avoidance transaction in certain prescribed circumstances. In broad terms, the subsection empowered the Revenue Commissioners to do so where, having regard to the results of the transaction, its use as a means of achieving those results or any other means by which the results could have been achieved, the transaction gave rise to a tax advantage and it was not undertaken or arranged "primarily for purposes other than to give rise to a tax advantage." The breadth of that provision was narrowed somewhat by the terms of s. 811(3) which provided that the Revenue Commissioners should not regard a transaction as? tax avoidance where they were satisfied that the transaction was undertaken or arranged with a view to the realisation of business profits and was not undertaken or arranged primarily to obtain a tax advantage. Section 811(3) also mandated a similar result where the Revenue Commissioners were satisfied that the transaction was undertaken or arranged for the purpose of obtaining the benefit of any tax relief available under the Taxes Acts and did not result in an abuse of the purposes for which the relief was provided.

48. Section 811(4) dealt with the steps which the Revenue Commissioners should take where they formed the opinion that a transaction was a tax avoidance transaction within the meaning of ss. 811(2) and 811(3). In addition to the formation of the opinion, s. 811(4) required the Revenue Commissioners to calculate the tax advantage which arose and to calculate the amount of any relief from double taxation that might be appropriate and also to determine "the tax consequences which they consider would arise in respect of the transaction if their opinion were to become final and conclusive in accordance with subsection 5(e) ...". It should also be noted that the subsection stated that the Revenue Commissioners could take the step of forming the opinion "at any time". That aspect of the provision was subsequently the subject of the judgments of the High Court and Supreme Court in Revenue Commissioners v. Droog [2011] IEHC 142 and [2016] IESC 55. Those judgments informed a significant element of the appellant's argument in this appeal and will be considered in more detail below.

49. The next step to be taken by the Revenue Commissioners, after formation of the opinion and calculation of the relevant tax advantage and tax consequences, was set out in s. 811(6)(a). It required that ? written notice should be given "immediately" to "any person from whom a tax advantage would be withdrawn or to whom a tax advantage would be denied ...". The subsection required that a number of matters be set out in the notice of opinion, including a description of (a) the transaction in issue, (b) the tax advantage which would be withdrawn, (c) the tax consequences for the recipient of the notice and (d) details of any relief against double taxation that might apply. The notice of opinion in this case followed that format. Under s. 811(12), the Revenue Commissioners were empowered to nominate an officer to discharge their functions under s. 811. That is what occurred in the case of the appellant. The formation of the opinion and the giving of notice to the appellant were done by an authorised officer.

50. The recipient of a notice under s. 811(6) was given a right of appeal to the Appeal Commissioners under s. 811(7) on four specific grounds. The subsection made clear that the appeal was limited to those grounds. It provided that an appeal could be taken within 30 days from the date of the notice "on the grounds and, notwithstanding any other provision of the Acts, only on the grounds that, having regard to all of the circumstances ... -

(a) the transaction specified ... in the notice of opinion is not a tax avoidance transaction,

(b) the amount of the tax advantage ... specified ... in the notice of opinion ... is incorrect,

(c) the tax consequences specified ... in the notice of opinion ... would not be just and reasonable in order to withdraw or to deny the tax advantage ... or

(d) the amount of relief from double taxation which the Revenue Commissioners propose to give ... is insufficient or incorrect."

51. It will therefore be seen that s. 811 had its own inbuilt appeal provision and that the legislature prescribed the specific grounds on which an appeal might be taken by a taxpayer against a notice of opinion issued under the section. In this context, it is important to bear in mind that the appellant availed of this right to appeal under s. 811(7) against the s. 811 notice of opinion. As noted above, his appeal was unsuccessful following a full hearing, on evidence, before the Appeal Commissioners and a subsequent full re-hearing, on evidence, before the Circuit Court. He then availed of the ability to further appeal on a point of law by means of a case stated from the Circuit Court to the High Court. The appeal process ultimately concluded in the settlement agreement executed on 16 th October 2012 under which the appellant withdrew his appeal to the High Court and agreed to be bound by the judgment of the Circuit Court. As noted in para. 7 above, the Circuit Court judge dismissed the appeal and determined that the s. 811 opinion of the Revenue Commissioners should stand. Thus, from the date of the settlement of the High Court case stated on 16 th October 2012, his appeals were finally concluded. The fact that the appeal was finally concluded in this way is significant in the context of s. 811(5).

52. Having set out, in ss. 811(4) and 811(6), the methodology to be followed where a s. 811 opinion was formed, s. 811(5), then addressed what occurred where a s. 811 opinion became final and conclusive. For this purpose, s. 811(5)(e) provided that an opinion became final and conclusive where (i) no appeal was taken under s. 811(7) within the relevant 30 day period or where (ii) an appeal had been taken and the appeal had been finally concluded against the taxpayer. On that basis, the notice of opinion in this case became final and conclusive on 16 th October 2012. However, the appellant contends that, by that date, the notice of opinion was no longer enforceable as more than 4 years had passed since the end of the 1996/1997 chargeable period in respect of which he had made a full and true return. He has sought to rely on the 4-year period prescribed by s. 955(2) and on the decision of the Supreme Court in Revenue Commissioners v. Droog. I will address that decision presently.

53. Section 811(5)(a) envisaged that, after a notice of opinion became final and conclusive, a number of steps could then be taken by the Revenue Commissioners to ensure that the tax advantage resulting from the tax avoidance transaction could be withdrawn. In this context, it is clear from the terms and the structure of s. 811, that it was only after? the notice of opinion became final and conclusive that the obligation to pay the additional tax, contemplated by the notice of opinion, became operative. For that purpose, under s. 811(5)(a), the Revenue Commissioners were empowered "notwithstanding any other provision of the Acts", to "make all such adjustments and do all such acts as are just and reasonable (in so far as those adjustments and acts have been specified ... in the notice of opinion ...) ...". The subsection did not explicitly require the Revenue Commissioners to issue an amended assessment to give effect to the notice of opinion but that would be a well-recognised step utilised by inspectors of taxes to give effect to an adjustment in a taxpayer's liability. The wide terms of s. 811(5)(a) were supplemented by s. 811(5)(b) which identified, without prejudice to the generality of s. 811(5)(a), a number of specific steps that could be taken by the Revenue Commissioners. These were:

(a) They could allow or disallow in whole or in part any deduction which is relevant in computing the tax payable;

(b) They could allocate or deny any deduction, loss, abatement, relief, allowance, exemption, income or other amount;

(c) They could also recharacterize for tax purposes the nature of any payment.

54. Furthermore, in circumstances where the Revenue Commissioners made any adjustment under s. 811(5)(a) or s. 811(5)(b), they were required under s. 811(5)(c), to also afford relief from any double taxation which they considered would arise by virtue of any such adjustments. The Revenue Commissioners maintain that, in issuing the amended assessment issued in this case on 28 th May 2013, they were taking steps of the kind envisaged and permitted under ss. 811(5)(b) and 811(5)(c).

55. Ordinarily, the taxpayer in receipt of an amended tax assessment, prior to the coming into force of the changes made by the 2015 Act, would have had a right to appeal the assessment to the Appeal Commissioners under s. 933(1)(a) within a period of 30 days. However, in this case, as I have previously mentioned, the appeal was rejected by the Revenue Commissioners who had a role in filtering appeals under the applicable legislation governing this case. As explained in para. 10(g) above, an inspector of taxes was empowered under s. 933(1)(b) to refuse to process an appeal where the relevant inspector was of the opinion that the taxpayer was not entitled to make the appeal. One of the arguments made by the Revenue Commissioners is that, by virtue of s. 811(5)(d), there was no right of appeal. The text of that subsection is set out in para. 56 below. The Revenue Commissioners argued that it is clear from the terms of the subsection that it is intended to prevent a further appeal in respect any adjustments made by the Revenue Commissioners pursuant to s. 811(5)(a) or s. 811(5)(b) to a s. 811 opinion which has become final and conclusive either because (a) there has been no appeal against it or (b) because any appeal has been finally determined against the taxpayer.

56. As counsel for the Revenue Commissioners stressed, s. 811(5)(d) is a key provision for present purposes. The Appeal Commissioner relied on it in reaching his decision that no appeal lay against the refusal of the Revenue Commissioners to process the appellant's attempted appeal against the amended assessment issued in May 2013 after the s. 811 notice of opinion became final and conclusive in October 2012. A crucial issue is whether s. 811(5)(d) went so far as to disapply the provisions of s. 933(1)(a) and s. 955(3). Section 811(5)(d) provided as follows:

" *Notwithstanding any other provision of the Acts*, where ?

(i) Pursuant to subsection (4)(c), the Revenue Commissioners determine the tax consequences which they consider would arise in respect of a transaction if their opinion that the transaction is a tax avoidance transaction were to become final and conclusive., and

(ii) Pursuant to that determination, they specify or describe in a notice of opinion any adjustment or act which they consider would be, or be part of, those tax consequences,

Then, *insofar as any right of appeal lay under subsection (7) against any such adjustment or act so specified or described, no right or further right of appeal shall lie under the Acts against that adjustment or act when it is made or done in accordance with this subsection*, or against any adjustment or act so made or done that is not so specified or described in the notice of opinion but which forms part of the final determination of any appeal made under subsection (7) against any matter specified or described in the notice of opinion." (emphasis added).

57. It seems to me that s. 811(5)(d) had the following features: First, as the opening words made clear, the subsection was intended to apply notwithstanding any other provision of "the Acts". The definition of ? in s. 811(1)(a) expressly includes the Tax Acts which, in turn, include the 1997 Act. I will consider further below whether the opening words are sufficient to disapply the provisions of Part 41 of the 1997 Act. Second, the language of paras. (i) and (ii) indicate that it was a prerequisite of the application of the subsection that a determination has been made under s. 811(4)(c) and that a notice of opinion to that effect has issued specifying an adjustment to the taxpayer's liability to tax. Third, the subsection then provided that, in so far as any right of appeal lay under s. 811 against the s. 811 notice, there was no further right of appeal under (inter alia) the Tax Acts in respect the adjustment where it is made under s. 811(5). As outlined in paras. 52 **** to 54 above, once the notice of opinion became final and conclusive, there were a number of adjustments or steps which the Revenue Commissioners were empowered to take to ensure that the tax advantage identified in the notice was withdrawn. In other words, there was no further right of appeal against the adjustments made by the Revenue Commissioners under s. 811(5) to give effect to a final and conclusive notice of opinion.

58. The Revenue Commissioners argue that the words which I have highlighted in para. 56 **** above plainly demonstrate that, in the context of any steps taken under s. 811(5) to give effect to a notice of opinion that has become final and conclusive, the legislative intention was to disapply any legislative provisions which might otherwise give rise to a right to an appeal. They rely in particular on the words "Notwithstanding any other provision of the Acts" to disapply Part 41 and they argue that this is strongly reinforced by the words "no right or further right of appeal shall lie under the Acts against that adjustment or act when it is made or done in accordance with this subsection". In contrast, the appellant maintains that the approach taken by the Supreme Court in ? Revenue Commissioners v. Droog applies equally here and that the language used in s. 811(5)(d) is insufficient to disapply the appeal provisions on which he relies.

59. That brings me to a consideration of the decision in Droog. In contrast to this case, the notice of opinion had not become final and conclusive in Droog at the time the various appeals in that case were addressed, first by the Appeal Commissioners and, later, by the courts. The issue in Droog was whether the Revenue Commissioners were entitled to form a s. 811 opinion after the 4-year period prescribed by s. 955(2) had already expired. Unlike this case (where the s. 811 notice of opinion was given in 1998 very soon after the end of the 1996/1997 chargeable period), the notice of opinion in Droog was not issued until February 2007 in respect of the same 1996/1997 chargeable period. However, the Revenue Commissioners argued in that case that the opening words of s. 811(4) had the effect of disapplying the 4-year limitation period. As noted in para. 48 above, the opening words of that subsection expressly stated that the Revenue Commissioners could form a s. 811 opinion "at any time". That argument of the Revenue Commissioners was rejected by each of the Appeal Commissioner (where the appeal was heard by the same Commissioner who determined the appellant's application in 2015), the High Court and the Supreme Court. In para. 7.2 of his judgment in the Supreme Court, Clarke J. (as he then was) addressed the type of language that would have been necessary in order to disapply Part 41 of the 1997 Act (in which s. 955(1) was housed):

"7.2 There was some debate at the hearing as to whether there could be an express contrary provision which did not actually mention Part 41 or any specific provision of same such as ss.955 and 956. It does not appear to me that there is an absolute requirement that there be a specific mention of the fact that Part 41 or any aspect of it is being expressly disapplied once the language of the relevant other aspect of the Taxes Acts is sufficiently clear to make it obvious that a particular provision of Part 41 is being disapplied."

60. Importantly, it is clear from that passage that the Supreme Court did not consider that Part 41 had to be disapplied by express reference to it. It was sufficient once the language of the relevant disapplying provision was sufficiently clear to make it obvious that the legislature intended Part 41 to be disapplied.

61. At para. 7.8 of his judgment, Clarke J. identified that the issue to be decided was very net namely, whether the use of the phrase "at any time" in s. 811 (4) amounted to "a sufficiently clear and express exclusion of the time limits set out in s.955 so as to disapply those time limits ...". In that context, he drew attention to the provisions of s. 950(2) of the 1997 Act which expressly provided that Part 41 would apply unless it was expressly excluded. As noted previously, the opening words of that subsection were: "Except in so far as otherwise expressly provided, this Part shall apply notwithstanding any other provision of the Tax Acts ...". Having regard to that language, Clarke J. observed in para. 7.10 of his judgment that any dis-application of the provisions of Part 41 would have to be expressed in clear and unambiguous language. He described the test in the following way:

"It is important to recognise that s.950 does not merely require that it be 'otherwise provided' but goes on to require that any such provision must be express. It certainly follows that there cannot be an implied exclusion of the effect of Part 41. Likewise it seems to me that an unclear or potentially ambiguous or debatable potential dis-application provision could not meet the requirement that it be stated in express terms."

62. Against that backdrop, the Supreme Court had to consider whether the use of the phrase "at any time" could meet the test identified by Clarke J. in para. 7.10. Clarke J. explained in para. 7.11 that a court faced with a requirement to interpret legislation is required to lean heavily against the view that language has been included in legislation for no purpose. He suggested that, if the phrase "at any time" could not be said to give rise to any meaning other than to dis-apply the time limits specified in Part 41 then it would be very difficult to argue that the phrase did not amount to an express dis-application. However, over the course of paras. 7.12 to 7.14 of his judgment, he came to the conclusion that ?the words "at any time" had more than one potential meaning. He noted that the same language appears in s. 955(1) under which an inspector is permitted to amend an assessment at any time and he highlighted that it was clear from s. 955(2) that the words "at any time" in s. 955(1) were plainly not intended to override the 4-year period prescribed by s. 955(2). In para. 7.12, he suggested that the use of that phrase in s. 955(1) may well have been designed to exclude the possibility that a taxpayer might argue that, by making a return, having an assessment raised based on that return and having paid tax based on that assessment, the relevant tax affairs of the taxpayer concerned for the fiscal period in question were irrevocably finalised.

63. In para. 7.13, Clarke J. held that a similar analysis could be applied to the use of "at any time"? in section 811. He observed that it would almost invariably follow that an opinion under section 811 will be issued after a taxpayer has (a) made a return, (b) had an assessment raised and (c) paid the relevant tax. He took the view that the phrase "at any time" is designed to ensure that a taxpayer could not argue that his or her tax affairs for the relevant period had been irrevocably finalised by the payment of all taxes said to be due as a result of that process. He stated that, in a similar way to s. 955 in respect of assessments, completed tax affairs can be re-opened under section 811 notwithstanding the earlier payment in full of the tax which Revenue initially assessed as being due. It was to that end that the phrase "at any time"?was used in s. 811(4). In those circumstances, Clarke J. came to the conclusion that the words "at any time" used in s. 811(4) could not be said to have been intended to have the effect of ousting the application of Part 41. They could not be said to clearly and unambiguously disapply Part 41.

64. The Supreme Court reached that decision notwithstanding an argument made by counsel for the Revenue Commissioners in that case (as summarised by Clarke J. at paras. 7.5 to 7.6 of his judgment) that there would be significant practical consequences if the Supreme Court concluded that the 4-year period in s. 955 was not disapplied by the use of the words "at any time" in s. 811(4). The practical issue raised on behalf of the Revenue Commissioners in that case was that, because the appeal process was likely to take some time, the relevant 4-year period could well expire before the notice of opinion became final and conclusive. That was acknowledged by Clarke J. in para. 7.7 of his judgment where he said:

"... No obligation to pay additional tax arises under section 811 unless and until the relevant opinion becomes final and conclusive which point of time can only be reached when any appellate process invoked has been exhausted. There is, thus, a difference between the point in time when tax becomes initially due as a result of the raising of an assessment, on the one hand, or as a result of the forming of a section 811 opinion, on the other. That difference in time could, of course, have a significant effect if s.955 operates to preclude the charging of extra tax in certain cases under section 811 outside the four year period because the charging of the tax under section 811 does not occur until after the appellate process has been exhausted."

65. In this case, the appellant has made the case that the decision in Droog governs the circumstances of his case. However, it is crucial to keep in mind that Droog was solely concerned with the words "at any time" in s. 811(4). The issue under s. 811(5)(d) which arises in this case was not addressed in Droog. Crucially, s. 811(5)(d) was neither cited nor considered in that case. The issue did not arise because, unlike the present case, the relevant notice of opinion in Droog never became final and conclusive.

66. Moreover, neither the Revenue Commissioners nor the Appeal Commissioners relied in this case on the use of the words "at any time". Instead, they relied on the specific language of s. 811(5)(d) which I have highlighted in para. 56 above. The issue which arose in the High Court and which arises again in this Court is whether, in contrast to the words used in s. 811(4), the language of s. 811(5)(d) is sufficiently clear and unambiguous to disapply the relevant provisions of Part 41 of the 1997 Act.

67. In my view, the language used in s. 811(5)(d) is much more specific than the phrase "at any time" in s. 811(4). . The first thing to note is that the subsection begins with the words "Notwithstanding any other provision of the Acts". The High Court judge took the view that, in light of Droog, those words would not, by themselves, constitute sufficiently clear and unambiguous language to disapply Part 41. I would not go so far. It is true that, in para. 7.10 of his judgment in Droog, Clarke J. emphasised that any disapplication of Part 41 would have to be in clear and unambiguous terms. He expressed that view having regard to the use of the phrase "Except as otherwise expressly provided ..." in s. 950(2) and the use of the words "at any time" in s. 811(4) which he held were capable of more than one meaning. In contrast, it seems to me that the use of the phrase "Notwithstanding any other provision of the Acts" in s. 811(5)(d) is a clear and unambiguous provision expressly providing otherwise. Those words are unambiguous. They seem to me to plainly demonstrate an intention on the part of the legislature to disapply any conflicting provision in the Taxes Acts. Part 41 of the 1997 Act contains conflicting provisions including ss. 931(1)(c), 955(3) and, if it were relevant, s. 956(2)(a). In my view, there is a significant difference between the use of that phrase and the use of the words "the Revenue Commissioners ... may at any time ..." in s. 811(4). As outlined above, Clarke J., in paras. 7.12-7.14 of his judgment, explained that ?the words "may at any time" had a particular meaning in the 1997 Act and were not intended to disapply Part 41. The same cannot be said for the phrase "Notwithstanding any other provision of the Acts". That is express language which, in my view, is sufficiently wide to disapply Part 41. It is true that Part 41 is not expressly identified but the words "any other provision of the Acts" plainly captures Part 41 along with all of the other Parts of the 1997 Act. It is clear from para. 7.2 of his judgment that Clarke J. did not consider that there was any "absolute requirement" that Part 41 be specifically mentioned.

68. Even if I am wrong in the view which I have offered in para. 67 above, it seems to me that the balance of s. 811(5)(d) makes it very clear that, in cases where an adjustment or act is undertaken by the Revenue Commissioners under s. 811(5) (i.e. an adjustment or act within the meaning of s. 811(5)(a) or s. 811(5)(b) following a s. 811 opinion becoming final and conclusive), no right of appeal or further right of appeal can arise in respect of the act or adjustment in question. I agree fully with the view expressed by the High Court judge in para. 74 of his judgment where he observed that the express language of the subsection that there would be no " right or further right of appeal under the Acts ", could not be clearer without expressly referencing Part 41. As the High Court judge noted, ? Droog makes clear that express reference to Part 41 is not a prerequisite so long as it is clear that Part 41 is intended to be excluded. In my view, the High Court judge was right to conclude that this very clear language was sufficient to disapply all of the appeal provisions of Part 41 including those available under s. 933(1)(c) and s. 955(3). As the High Court judge noted, the case made by the appellant would require the subsection to be read as "no right or further right of appeal *other than the rights of appeal contained in Part 41*** " (emphasis added). In the course of the appeal, the appellant was unable to put forward any convincing argument as to why this element of the High Court decision was erroneous.

69. In my view, for all of the above reasons given by the High Court judge, it is very clear that appeals under ss. 933, 955 and 956 of the 1997 Act are disapplied by s. 811(5)(d) in cases (such as this) which fall within the ambit of s. 811(5) (i.e. cases where the notice of opinion has become final and conclusive).

Additional arguments advanced by the appellant

70. However, at the hearing of the appeal, counsel for the appellant sought to argue ?that a time point under s. 955(2) did not fall within any of the grounds on which an appeal could have been brought under s. 811(7) such that it could not be said that this case fell within the ambit of the words "insofar as any right of appeal lay under subsection (7)". That submission does not sit easily with the fact that the 4-year time point was itself the sole focus of the appeal in Droog which, as we have seen, went all the way to the Supreme Court. As para. 2.3 of the judgment of Laffoy J. in the High Court in that case ([2011] IEHC 142) made clear, that appeal was brought under s. 811(7). That strongly suggests that time points were capable of being addressed by way of appeal under s. 811(7) if they were relevant.

71. Quite apart from that very important fact, I believe that it is very clear from the language of s. 811(7) that a time point of this kind could be raised under s. 811(7). The relevant text of s. 811(7) has been set out in para. 50 above. It is clear that the time point would not fall within any of the grounds identified in paras. (a), (b) or (d) of the subsection. However, it seems to me that a time point of this kind was plainly within the much broader parameters of para. (c). For the purposes of this issue, two aspects of the subsection are particularly relevant. First, none of paras. (a) to (d) can be read on their own. Each of them is qualified by the words which precede them namely "that, having regard to all of the circumstances ...". Those are very broad words. Those words were clearly intended to be read in conjunction with the language of each of the paragraphs which follow them including para. (c). Second, the language of para. (c) was also very broad. It spoke of "would not be just and reasonable in order to withdraw or to deny the tax advantage." When one reads these two aspects of the subsection together, it seems to me to be very clear that a time point could have been taken under s. 811(7)(c). If the relevant 4-year period was applicable and had expired, it would have been possible to appeal under s. 811(7)(c) on the basis that, having regard to that very important circumstance, it would not be just and equitable to withdraw or deny the relevant tax advantage.

72. Having regard to the considerations addressed in paras. 70 **** and 71 above, I am of the view that time points do not fall outside the ambit of s. 811(7). It follows that this submission of counsel for the appellant must be rejected.

73. Counsel for the appellant made an additional argument. He submitted that the appellant. is not seeking to appeal any adjustment or act done in accordance with section 811. Instead, he suggested that the Revenue Commissioners are "embargoed" from collecting additional tax from the taxpayer having regard to the four year limitation period imposed by s. 955(2). In the appellant's written submissions, this argument appeared to have been squarely based on a contention that Part 41 was not disapplied. Thus, in para. 22 of the submissions, it was argued:

"By reason of Part 41, that final and conclusive notice of opinion [not capable of appeal] does not entitle the Revenue Commissioners to raise tax and therefore disentitled the making of an assessment or an amendment to the assessment. For the charge of a period after the period of four years. And further... expressly provides that no additional tax shall be payable by the chargeable person, after the end of that period of 4 years."

74. Similarly, in para. 25, it was contended that:

"The appellant is not arguing for a 'right of appeal' against a finding under s. 811. His argument stands squarely on the fact that no further tax can be collected from him given the provisions of Part 41 which have not been disapplied ?by s. 811 as established in Droog."

75. For the reasons previously discussed, I cannot see any basis for the appellant's case based on the provisions of Part 41. I have concluded that the High Court judge was correct in his finding that the appeal provisions within Part 41 are disapplied in this case by s. 811(5)(d). But, in the course of the hearing of the appeal, counsel for the appellant argued that, if that is so, "it doesn't touch or deal with the collection mechanism, and the fact that there is this provision [i.e. s. 955(2)] which is not disapplied, which says that no more tax can be paid after that four-year period has passed." The difficulty with that submission is that it ignores the fact that appeals to the ?TAC (and to the Appeal Commissioners beforehand) are regulated by statute. Such bodies are not invested with full original jurisdiction. Appeals can only be taken to them if they are provided for in the statutory scheme. Here, for the reasons previously discussed, the rights of appeal that would ordinarily have existed have been disapplied. At an earlier point in the appeal hearing, counsel for the appellant had rhetorically asked: "There's an 811 provision, which ... [is at an] end. ... And then there is something entirely different, which is the four- year rule and the right of a taxpayer to rely on that. And the only way a taxpayer can rely on that, where an amended assessment has been made, is to appeal it. What else can they do?" In my view, there is an obvious answer to counsel's rhetorical question. If a taxpayer believes that the Revenue Commissioners are acting unlawfully or in excess of their powers and there is no statutory appeal available to address the issue, a taxpayer is free to seek leave to bring judicial review proceedings against the Revenue Commissioners. McNamee v. Revenue Commissioners [2016] IESC 33 is an example of a case where, in addition to appealing a s. 811 notice of opinion to the Appeal Commissioners, the taxpayer also brought judicial review proceedings. In his judicial review proceedings, the taxpayer contended that the Revenue Commissioners had acted unlawfully in forming a view that the relevant transactions in issue in that case were tax avoidance transactions within the scope of s. 811. While the taxpayer did not succeed in his case, the Supreme Court did not question his entitlement to pursue such a claim by way of judicial review.

76. Thus, it would have been open to the appellant in these proceedings, following receipt of the amended assessment in 2013, to seek leave to bring judicial review proceedings in order to advance the case which he now seeks to make that, notwithstanding that the s. 811 notice of opinion had become final and conclusive as a consequence of the settlement agreement that he executed in October 2012, the Revenue Commissioners were prohibited by s. 955(2) from seeking payment of the amount claimed. If the appellant is right that s. 955(2) had this effect, that is the remedy that was available to him.

77. Even if there were any doubt about the views expressed in paras. 73 to 76 above, it seems to me, for all of the reasons discussed in paras. 80 to 90 below that, in any event, s. 811(5A) empowers the Revenue Commissioners to collect the tax due on foot of the s. 811 notice of opinion notwithstanding that more than 4 years have passed since the end of the relevant chargeable period.

Section 811(5A) of the 1997 Act

78. Having found that the rights of appeal under Part 41 have been disapplied by s. 811(5)(d), that seems to me to answer the question posed in the case stated. In my view, both the Appeal Commissioner and the High Court were correct to find that the appellant had no right of appeal. It is therefore unnecessary to consider the additional issue addressed in the High Court judgment and in the submissions on both sides, namely the issue as to whether s. 811(5A) applied retrospectively so as to disapply the 4-year time limit imposed by s. 955(2). That is a substantive issue that would have had to be resolved if, in 2013, the appellant had a right to appeal to the Appeal Commissioners.

79. Nevertheless, since the issue was addressed in some detail on both sides and since it may assist the parties in this extraordinarily protracted dispute, I propose, notwithstanding the reservations expressed in para. 41 above, to briefly set out my views on the issue.

80. Section 811(5A) was inserted into the 1997 Act by s. 130 of 2012 Act (as defined in para. 10(c) above). Once a s. 811 opinion becomes final and conclusive, s. 811(5A) disapplies any of the time limits fixed by Part 41 for the making of assessments or for amending assessments. In so far as relevant, s. 811(5A) provides that:

"Where the opinion of the Revenue Commissioners, that a transaction is a tax avoidance transaction, becomes final and conclusive, then for the purposes of giving effect to this section, any time limit provided for by Part 41, or by any other provision of the Acts, on the making or amendment of an assessment or on the requirement or liability of a person to pay tax or to pay additional tax ... shall not apply"

81. The subsection was inserted into the 1997 Act by s. 130(1) of the 2012 Act in the wake of the Supreme Court decision in Droog. Importantly, s. 130(2)(a) identifies the assessments or amended assessments which are intended to take the benefit of the amendment made by s. 130(1) as follows:

"Subsection (1) applies to any assessment to tax or any amendment of any assessment to tax which is made, on or after 28 February 2012, so that the tax advantage resulting from a tax avoidance transaction, in respect of which a notice of opinion has become final and conclusive, is withdrawn from or denied to any person concerned."

82. In the High Court, the judge referred to the decision of this Court in Hanrahan v. Revenue Commissioners [2022] IECA 113 in which it was held that s. 811(5A) was clear and unambiguous and that there was no basis for restricting it to chargeable periods subsequent to 28 th February 2012. The issue is addressed as follows in paras. 66 and 67 of the judgment of Donnelly and Butler JJ.:

"66. We agree with Revenue that the clear legislative intent behind s. 811(5A) of the TCA and s. 130(2) of the Finance Act 2012 Act was to enable assessments to be made or amended at any time after the enactment of that section, in order to give effect to a s. 811 opinion which had become final and conclusive, regardless of the chargeable period to which the assessment related and regardless of whether that chargeable period pre-dated the enactment of s. 811(5A). Save that the assessment or amended assessment must itself be one made after 28 February 2012, there is no qualification as to the chargeable period for which such assessment may be made and, in particular, no basis for restricting it to chargeable periods post-2012. Whilst there might be some ambiguity as regards whether s. 811(5A) would be operative so as to disapply the time limit if Revenue were seeking to recover tax on foot of the Notice of Opinion directly rather than by way of raising or amending an assessment, we agree with the trial judge that this is simply not in issue in this case.

67. In circumstances where the meaning of s. 811(5A) and s. 130(2) are clear and are clearly intended to have retrospective as well as prospective effect, they are not precluded from having that effect by reason of the presumption against retrospective legislation. Equally, absent a constitutional challenge, the presumption of constitutionality cannot avail the taxpayer and operate to disapply what is a clearly unambiguous provision. Consequently, we agree with the trial judge that the Appeal Commissioner was correct in holding that s. 811(5A) applied so as to disapply the time limit contained in s. 955(2) from the Notice of Opinion in this case. However, for reasons explained at the outset of this analysis, we would prefer to decide the issue on the basis that the time limit in s. 955(2) never applied in the first place (and therefore did not need to be disapplied) ...."

83. The last sentence in that extract shows that the observations of Donnelly and Butler JJ. were intended to be obiter on the effect of s. 811(5A) and s. 130 of the 2012 Act . The High Court judge accepted that their views were obiter but he added that they clearly have significant persuasive force and he said that it would require something compelling to prompt him to reach any different conclusion. He held that the appellant had not advanced any alternative interpretation of s. 811(5A) to that found by the Court of Appeal in Hanrahan and he therefore had no hesitation in following the views expressed by Donnelly and Butler JJ.

84. In the intervening period, there was a change of counsel for the appellant. In his submissions to this Court, counsel for the appellant offered a competing interpretation of the provisions of s. 130(2)(a) of the 2012 Act. His argument turned on the language of that subsection rather than on the language of s. 811(5A). He argued that there were two interpretations open. In the course of his oral submissions, he submitted as follows:

"But the words 'or any amendment of any assessment' [in s. 130(2)] is where the issue arises. And there are two interpretations. One is that that ... any amendment of any assessment is standalone and, if the amendment of any assessment occurs after the February date, then it's caught by 811(5A), or, as we argue, the words 'or any amendment of any assessment' relate back to the 'any assessment' and ... that the proper interpretation is that that 'any amendment of any assessment' relates to any assessment made after the February date, and there's? an obvious reason for that. So if somebody were to have an assessment after that date, in March of 2012, that gets covered, but then if that's amended some years later, you could argue if they hadn't added in the 'any amendment of any assessment' then we could say that doesn't get covered and that's caught by the four-year rule. So to be sure to be sure, to be 'express', the legislature put the two together .... But it doesn't mean, in my respectful submission, that 'any? amendment of any assessment' can relate to an assessment which itself happened? before the February date and which itself couldn't be affected by 811(5A)."

85. Counsel argued that, since the views of Donnelly and Butler JJ. in Hanrahan were obiter, this Court is free to depart from them. He argued that the decision in Hanrahan was wrong. He maintained that s. 130(2) of the 2012 Act is very clearly and expressly limited in application to any assessment of tax made on or after 28 th?February 2012. This, he suggested, is " clearly prospective". Counsel for the Revenue Commissioners objected that this argument was never advanced in the High Court but she nonetheless addressed the arguments made and she strongly relied on the approach taken in Hanrahan.

86. In his written submissions, counsel for the appellant argued that there is an anomaly in the decision in Hanrahan in that, an assessment made before the 28 th February 2012 will be excluded from the application of section 130(2) but, applying the position adopted in Hanrahan, an amendment of such an assessment will not be excluded. I am not persuaded that this argument adds anything to his oral submission. It presupposes that his interpretation of the subsection is correct. There is no anomaly if the interpretation in Hanrahan is correct. In this context, it should be borne in mind that it is likely that, in the vast majority of cases, an assessment will have issued to a taxpayer in respect of a chargeable period before any opinion is formed by the Revenue Commissioners under s. 811. As noted in para. 63 above, Clarke J. observed, at para. 7.13 of his judgment in Droog, that a s. 811 notice would "almost invariably" arise after an assessment had been made. That follows from the fact that the Irish tax system is largely based on self-assessment. The Revenue Commissioners are unlikely to become aware of a transaction until it is reported in a taxpayer's return. It is also the case that an assessment will often be issued before the Revenue Commissioners interrogate the return in any significant way. Any notice of opinion under s. 811 is more likely to follow after - rather than in advance of - ?the issue of an assessment, such that it will be an amended assessment, rather than an assessment, which will issue in the event that the notice becomes final and conclusive. One can therefore readily see why, in a very large number of cases, s. 130(2) is more relevant in the context of amendments to assessments rather than to assessments themselves. The interpretation advanced by the appellant would therefore confine s. 130(2) to quite narrow circumstances.

87. In approaching an issue of interpretation of this kind, it is important to stand back and look at the language of the statutory provision in context. As counsel for the Revenue Commissioners observed, the context of a statutory provision has been given added emphasis since the decision of the Supreme Court in Heather Hill Management Co. v, An Bord Plean?la [2022] IESC 43, at para. 106. Furthermore, in interpreting a statutory provision, it is important to guard against the temptation to create an ambiguity where, in fact, none exists. As appears from para. 82 above, the case made by counsel for the appellant is that the words "or any amendment of any assessment" in s. 130(2) are not intended to capture a "standalone" amendment but are instead intended to refer solely to cases where an amendment is made to an assessment which itself is made after 28 th February 2012. This gives a very restrictive and wholly prospective interpretation to s. 130(2) which would only partially plug the lacuna identified in Droog. It involves construing the subsection as though it read:

"Subsection (1) applies to any assessment to tax or any amendment of any [such] assessment to tax which is made, on or after 28 February 2012 ..."

88. If the subsection were framed in that way, it would certainly have the meaning canvassed by counsel for the appellant. But it is not framed in that way. No language is used which suggests that the words " *any** amendment of any assessment to tax"* (emphasis added) were not intended to be read in a self-standing way. This is reinforced by a consideration of the provisions of s. 955(2)(a) of the 1997 Act. In contrast to s. 130(2) of the 2012 Act, it provides:

"Where a ?chargeable person has delivered a return for a chargeable period and has made in the return a full and true disclosure of all material facts necessary for the making of an assessment for the chargeable period, an assessment for that period or an amendment of *such** an assessment shall not be made on the chargeable person after the end of the period of 4 years commencing at the end of the chargeable period in which the return is delivered...."* (emphasis added).

89.?It is striking that, when the Oireachtas came to enact s. 130(2) of the 2012 Act, it chose to use different language to that contained in s. 955(2). It did not use the words "any assessment to tax or an amendment to such an assessment to tax" but instead used much broader language "any assessment to tax or any amendment of any assessment to tax". That choice of language must be taken to be deliberate. ** In my view, those very wide words plainly support the conclusion reached by Donnelly and Butler JJ. in para. 66 of their judgment in Hanrahan to the effect that the clear legislative effect of s. 130(2) was to enable - ?in the context of s. 811 notices of opinion that had become final and conclusive - assessments to be made or amended at any time after 28 th February 2012 in order to give effect to a final and conclusive s. 811 opinion "regardless of the chargeable period to which the assessment related and regardless of whether that chargeable period pre-dated the enactment of s. 811(5A)".

90. In light of the considerations outlined above,? I have come to the conclusion that the appellant's arguments in relation to s. 811(5A) of the 1997 Act and s. 130(2) of the 2012 Act must be rejected.

Conclusion

91. In light of the views expressed above, I am of opinion that the appellant's appeal should be dismissed and the decision of the High Court should be upheld.

92. As a consequence, the Revenue Commissioners are presumptively entitled to their costs of the appeal. If the appellant wishes to canvass for a different order as to costs, he is at liberty to deliver a short written submission (of not more than 1,500 words) within 14 days from the date of delivery of this judgment, failing which an order for costs will be made in favour of the Revenue Commissioners, such costs to be adjudicated in default of agreement.

93. In the event that the appellant delivers such submissions within the above timeframe, the Revenue Commissioners are at liberty to deliver replying submissions (subject to the same word limit) within a further period of 14 days, following which the Court will issue an electronic ruling on the issue of costs.

94. Pilkington and O'Moore JJ. agree with this judgment and with the orders that I propose.

Result:     Appeal dismissed.

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