High Court: Application to amend a case stated from the Tax Appeal Commissioner rejected

High Court: Application to amend a case stated from the Tax Appeal Commissioner rejected

Killian Flood BL

The High Court has rejected an application to amend a case stated from the Tax Appeal Commissioners on a point of law. The application sought to introduce further questions of law regarding the jurisdiction of the Commissioner and his conduct in proceedings.

Delivering judgment in the case, Ms Justice Siobhán Stack held that the court was entitled to amend the case stated if it was appropriate. However, the court said that neither question raised in the application was appropriate in the circumstances and thus refused the application.


The appellant, Express Motor Assessors Limited, was a company in liquidation. The Revenue Commissioners had engaged in an audit of the company’s affairs. In a dispute before the Tax Appeals Commissioner, the appellant’s liquidator claimed that Revenue had acted unlawfully in the conduct of the audit.

In particular, it was alleged that Revenue obtained documents from and had meetings with directors after the company went into liquidation. Accordingly, the liquidator argued that the only the liquidator should have been engaged by Revenue and the audit was therefore unlawful. The liquidator relied on section 677 of the Companies Act 2014 to this effect. Further, it was claimed that Revenue had not notified the liquidator of its meetings with the company directors.

During the course of the hearing before the Commissioner, the Revenue objected to certain sworn evidence being presented in the case. Although the Commissioner ultimately overruled the Revenue’s objection, the liquidator took issue with the manner in which the objection was made.

The Commissioner ultimately issued a determination in which a point of law was referred in a case stated to the High Court. However, the Commissioner refused to refer two issues raised by the liquidator. These were 1) whether the Commissioner was correct to proceed with the hearing notwithstanding the alleged unlawful conduct of the Revenue and 2) whether it was correct to allow the Revenue to “be in a position to object to any sworn evidence before hearing or seeing the evidence.”

In refusing to refer these points, the Commissioner held that he did not have jurisdiction to determine whether the alleged conduct of the Revenue was unlawful. Further, he said that there was no point of law raised in the second issue, in circumstances where the Commissioner had actually overruled the Revenue’s objection to sworn evidence.

As such, prior to the hearing of the case stated in the High Court, Express Motor Assessors brought a notice of motion seeking to amend the case stated to include the two additional issues raised before the Commissioner.

High Court

The High Court began by assessing whether it was appropriate to amend the case stated by the Commissioner. Citing O’Sullivan v. Revenue Commissioners [2021] IEHC 118 and Untoy v. GE Capital Woodchester Finance Ltd [2015] IEHC 557, the court held that it could simply amend the case stated on motion by a party rather than remit a case stated for amendment by the Commissioner. However, this was at the discretion of the court.

The court went on to consider whether it should, in its discretion, amend the case stated as proposed by the appellant. A court had to be satisfied that there were sufficient findings of fact by the stating body to enable a court to deal with a question of law, the court said. If no such findings existed, then the matter should be remitted to allow those findings to be made.

The court agreed with Revenue’s submission that the allegations of unlawful conduct in the audit could not be determined by the Tax Appeal Commissioners because it was outside their jurisdiction. The allegations were more properly a matter for judicial review proceedings, the court said (Lee v. Revenue Commissioners [2021] IECA 18). The court held that it was implicit in the court’s discretion that a “frivolous” issue of law could be rejected in an application to amend a case stated.

Accordingly, the court declined to include this question in the case stated or remit the matter to the Commissioner for findings of fact to be made.

The court then considered the second question of whether the Revenue should have been allowed to object to sworn evidence without seeing or hearing the said evidence. The court noted that the Revenue’s objection to the evidence was, in fact, overruled by the Commissioner. The court held that “I do not see how any error of law could have arisen in merely hearing an objection which, as the Appeals Commissioner stated, was in fact overruled.”

Finally, the court considered whether the motion should have been made returnable for the actual hearing of the case stated. The court accepted that cases should be disposed of in an efficient manner, but said there should not be an absolute rule that an amendment application should be made at the hearing of a case stated.

The court said that, where the application related to the omission of evidence or necessary findings of fact, it was appropriate to bring an interlocutory motion to amend the case stated (Unkles v. Attorney General (1873) IR 7 C.L. 462; Christie v. The Guardians of the Poor of the Parish of St. Luke, Chelsea (1858) 120 E.R. 369).

The court said that minor amendments to a case stated could be dealt with later in proceedings, even at a hearing, particularly where such amendments required no additional evidence. Conversely, entirely new questions in a case stated should be advanced in an application prior to the hearing. In this case, the motion brought by the appellant was brought at the appropriate time.


The court dismissed the application to amend the case stated.

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