Mr John O'Callaghan
Office of the Appeal Commissioners
8th Floor
Fitzwilton House
Wilton Place
Dublin 2.

1 July 2008

Re: Publication of Determinations of Appeal Commissioners

Dear Mr O'Callaghan

I am writing to you on behalf of CCAB-I, the Consultative Committee of Accountancy Bodies – Ireland, to stress the importance of the publication of all determinations made by the Office of the Appeal Commissioners, and request that more priority be assigned to their publication.

We are both aware that section 944A of the Taxes Consolidation Act 1997 provides for the publication of reports of determinations of the Appeal Commissioners applying to determinations after 27 March 1998, and that this provision does not provide for a blanket publication of reports of all determinations but rather permits such of the determinations of the Appeal Commissioners “as they consider appropriate”.

There has been considerable debate within the profession on the necessity for the publication of determinations. This debate has been fuelled, at least in part, by the 2005 Report of the Comptroller and Auditor General. The C&AG reports Revenue's estimate that between 500 and 600 cases had been lodged with the Appeal Commissioners in 1999, and that approximately 250 cases were heard and decided annually¹ The C&AG also noted that an approximation only is possible; he states that neither your office nor Revenue retained statistical or summary records.

Nevertheless these approximations contrast sharply with the record of determinations published on your website. In summary, just 32 determinations have been published, with 25 determinations relating to 2000; 5 to 2003; 1 for 2005 and 1 for 2007. As required by the Taxes Consolidation Act 1997, those determinations are anonymised to prevent the identification of any person whose affairs are dealt with in the determinations.

While the Appeal Commissioners are not required to publish reports of all their determinations, you are required (per TA97 s934(7)) to record every determination of an appeal on a prescribed form and to forward to the Revenue Commissioners within 10 days after the determination. There is no apparent requirement to forward a similar record to the taxpayer. This would appear to be an inequitable situation as both parties to the appeal do not have the same rights to a record of the determination.

We also note your position that your office is not a tribunal of record. This may lead to a conclusion that you are not required to retain a written record of determinations, with the exception of those cases which are referred to the High Court by way of case stated. Nevertheless, if we are to follow the legal authorities, the Office of the Appeal Commissioners is indeed a tribunal²

Lastly, we note the operation of the Freedom of Information Act 1997; section 16 of that act requires the publication of decisions likely to be of precedential value. We are aware of the points put forward by you at the Public Accounts Committee in 2001 to the effect that the determinations of the Appeal Commissioners are not precedents. However, in dealing with a point of law (as opposed to a point of fact) surely the Appeal Commissioner must and does apply the law, and inevitably in that process must follow precedent. This leads us to believe that your determinations do indeed have precedential value.

The publication of all appropriate determinations is we suggest integral to a fair, transparent and equitable Tax System. CCAB-I calls on the Appeal Commissioners to use your power to make public these determinations.

Kind regards
Yours sincerely,

Liam Lynch
Chairman, CCAB-I Taxation Committee

1. See the Background to 2.10 The Management of Tax Appeals.

2. Administrative Law in Ireland by Gerard Hogan and David Gwynn Morgan.