Court clears way for prosecution of accountant over alleged tax offences

The High Court has cleared the way for an accountant to be prosecuted in respect of several alleged tax offences.

Brian Murphy, a qualified accountant who is a former audit partner with the well-known firm Deloitte, had brought High Court proceedings against the Director of Public Prosecutions and the Revenue Commissioners aimed at preventing his proposed prosecution from proceeding.

The DPP in October 2015 applied to have criminal summons issued against Mr Murphy in relation to alleged offences in relation to tax returns made for the years 2008, 2009, 2010, 2011 and 2012.

He denies any wrongdoing in respect of all criminal allegations against him.

He had claimed that pursuit of the criminal prosecution would breach the terms of a written August 2015 settlement agreement entered between him and Revenue in the context of certain civil proceedings.

Mr Murphy had further relied on certain oral representations he claims were made to him on behalf of a legal executive working for solicitors acting for Revenue that he would not be prosecuted.

He claims that his prosecution would amount to a breach of his legitimate expectation.

The respondents rejected his arguments and said his judicial review action should be thrown out by the court.

Legitimate expectation

In his judgment dismissing the application Mr Justice Garrett Simons said that Mr Murphy did not establish the existence of a representation capable of grounding his claim for breach of legitimate expectation.

The judge said that Mr Murphy, from Carrigaline in Cork, had brought the action notwithstanding the fact that DPP was not a party to the settlement agreement, which he added did not purport to preclude criminal prosecution.

Mr Justice Simons said the 2015 agreement was reached following to a decision in 2014 by the DPP to issue a criminal summons against Mr Murphy.

That summons related to alleged offences concerning a claim for a VAT refund on behalf of a company in which Mr Murphy had been a director and possibly, a shareholder the judge said.

He unsuccessfully challenged the issuance of the criminal summons in separate High Court proceedings. Shortly before that case was heard Mr Murphy entered into proposals with Revenue to discharge certain other unrelated arrears of tax, he said.

The judge said that Revenue and Mr Murphy entered into an agreement regarding the arrears of tax in late August 2015.

He had offered to pay monthly payments of €4000 between August 2015 and December 2018.

Mr Murphy had also offered to make several lump sum and annual payments to revenue of amounts ranging between €20,000 and €75,000 during that period, the judge said.

First judicial review

However, the judge said that Mr Murphy did not seek to discontinue the first judicial review action, even though the plaintiff was arguing that the DPP was now precluded from pursing the criminal prosecution. the subject matter of the current judicial review action.

In November 2015 Mr Murphy’s first set of judicial review proceedings were dismissed by the High Court.

He initially appealed that decision, but subsequently withdrew the appeal.

In his decision Mr Justice Simons said the among the issues the court had to decide was whether Mr Murphy had established a precondition for asserting a breach of legitimate expectation, namely the making of a representation on the part of a public body.

He held that the 2015 settlement agreement did not amount to a representation that the DPP would not pursue criminal proceedings against Mr Murphy.

There was, the judge added, “no sensible basis” for reading the settlement agreement as involving anything else other than the compromise of the extent High Court debt collection proceedings explicitly referenced in the agreement.

The settlement agreement could not be construed to capture either the criminal proceedings brought in October 2015 or those the subject of the first judicial review proceedings.

If the agreement had been intended to preclude the ongoing criminal prosecution that it is “inconceivable that this would not have been expressly recorded in its terms, the judge said.

Mr Murphy had failed to establish the existence of the required preconditions for a claim of legitimate expectation, namely the making of an unambiguous and unequivocal representation by the public body concerned.