The Revenue Commissioners want the High Court to strike out an appeal by businessman Denis O'Brien brought over a finding his tax return 14 years ago was insufficient due to being compiled in a negligent manner.

In 2010, an inspector of taxes sought answers to questions about Mr O'Brien's returns for 1999-2000, the court heard. In particular, the inspector asked questions about the exchange of Mr O'Brien's holding of shares in Esat Telecom for certain loans in a company called BT Hawthorn, Brian Murray SC, for the Revenue, said.

While the raising of such questions is limited by a time bar of four to six years, this is not applicable if the inspector believes the returns are insufficient due to being compiled in a negligent manner and the inspector in this case made such a finding, counsel said.

Mr O’Brien appealed but an appeals commissioner found Mr O’Brien had not established the inspector did not have reasonable grounds for his finding. Mr O’Brien then appealed that decision to the Circuit Court and, separately, sought to have a case stated to the High Court on a point of law concerning the Taxes Consolidation Act 1997.

The case stated was not brought within the permitted time and the Revenue sought and secured an order striking out that matter, Mr Murray said.

Shortly afterwards, the Circuit Court appeal, which was in abeyance pending the case stated, came before Judge Jacqueline Linnane. She refused to list the appeal for hearing after the Revenue successfully argued Mr O’Brien had elected to have the matter dealt with by way of case stated in the High Court and it was not possible to run both cases.

Appealed

Mr O’Brien appealed that Circuit Court decision to the High Court but the Revenue has applied to have that matter also struck out. The Revenue claims section 31.2 of the Courts of Justice Act 1936 provides there cannot be an appeal of a Circuit Court decision in relation to a tax matter such as this. The High Court has no power to entertain such an appeal but has inherent power to strike it out, it claims.

Mr O’Brien has opposed the strike-out application. His counsel, Martin Hayden SC, said the Circuit Court had never heard the substantive appeal and only dealt with whether the case could be listed.

Mr Justice Bernard Barton said he would give his decision in due course.