Fuel trader fails in bid to get details of clients interviewed by Revenue in green diesel investigation

The High Court has refused to overturn decisions not to furnish a fuel trader in Co Louth with details of his customers the Revenue Commissioners interviewed as part of its investigation into the alleged improper sale of green diesel.

Michael Quigley, of Castleroche, Dundalk, was hit with a €1.6 million tax liability after Revenue investigated 700 of his accounts and concluded about 2.7 million litres of marked gas oil he purchased was not used for the purpose allowed under the Finance Act of 2001.

Mr Quigley denies this finding, which is under appeal before the Tax Appeals Commission.

Marked gas oil carries a lower rate of excise duty and VAT than standard vehicle fuel and is intended for use for heating or in agricultural machinery.

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Mr Quigley operated his fuel trader business in Castleroche pursuant to a Revenue-issued marked fuels trader’s licence and an auto fuel trader’s licence. Revenue refused to renew his licences in 2016. His appeal of this decision has not yet been heard by the Tax Appeals Commission.

Alleged inadequacies in Mr Quigley’s record-keeping meant Revenue could not identify 300 of Castle Oils’ customers. Interviews with a proportion of the remaining 400 clients caused Revenue to question the accuracy of records relating to the sale of marked gas oil in many of the cases.

Mr Quigley has appealed to the Tax Appeals Commission over the €1 million excise duty and €636,000 VAT liability assessed by Revenue for the period 2009 to 2016.

During this process, Revenue refused Mr Quigley’s request to provide him with information about 44 customers it interviewed, 33 of whom are alleged to deny buying marked oil from Mr Quigley.

Revenue maintained that any statements made to its officers by the 44 customers were made in confidence and are covered by public interest privilege and/or informer privilege.

The commission refused to direct Revenue to furnish him with the details, and he sought judicial review of this element at the High Court.

The background to the case was set out in a recent judgment of Ms Justice Siobhán Phelan.

She refused his request for her to quash Revenue’s refusal to provide the details and the commission’s refusal to direct the disclosure. He also wanted various declarations regarding an alleged breach of his rights, which the judge also declined to grant.

Mr Quigley’s lawyers argued he was entitled, as a matter of constitutional justice and/or pursuant to the European Convention on Human Rights, to fair procedures and a fair hearing before the commission, she said.

The information sought was necessary for a fair hearing because Revenue relies on it to challenge any evidence Mr Quigley puts forward about the accuracy of his records, he claimed.

The judge agreed with Revenue’s argument that its “decision” was not amenable to judicial review and that this dispute was between Mr Quigley and the commissioner.

The commissioner stood over her decision, submitting, among other points, that Mr Quigley knows who his customers are and to whom he supplied marked oil and that the burden of proof is on him to establish the tax is not payable.

Ms Justice Phelan said Mr Quigley has undertaken the burden, in appealing to the commission, of establishing an entitlement to a rebate.

Mr Quigley knows his customer base and his former employees and will be able to speak to them, she noted. Therefore, she said, the matters before the commission will depend on whether he can demonstrate compliance with regulatory conditions governing entitlement to rebate.

It follows that the documentation requested is not necessary for him to prepare his case.

There is no certainty, she said, that any reliance will be placed on evidence challenging the accuracy of his records based on third-party information and his appeal might be disposed of on the basis of his own records alone, she said.

If Mr Quigley’s records are impugned as to their veracity, and his honesty is questioned during the hearing before the commissioner, it will be for the commissioner to vindicate his rights to fair procedures and constitutional justice, she said.

She dismissed his proceedings.