Independent TD Michael Lowry has failed to get High Court orders stopping his trial on mainly tax related charges.
Mr Lowry's case was based on many "ingenious and even superficially attractive" arguments which were "in truth, devoid of any substance and ultimately built on a foundation of sand", Mr Justice Seamus Noonan said.
Mr Lowry, he found, had "conspicuously declined" to engage with the €372,000 transaction of 2002 at the heart of the case.
He also disagreed with Mr Lowry’s argument a 2015 Appeal Commissioners determination of his tax appeal was a “vindication” of him in light of which continuation of the tax prosecution was oppressive.
The Appeal Commissioners found "clear evidence" Mr Lowry "misappropriated" monies of his company Garuda, the judge noted. There was also no authority for the proposition one "can buy immunity" by paying arrears of tax due.
Rejecting further complaints about the TD's trial being moved to Dublin Circuit Criminal Court from his native Co Tipperary, the judge said he could not see how that decision "could conceivably amount to oppression".
The five charges against Mr Lowry arise from a 2002 transaction involving a €372,000 payment due to Garuda being diverted to an Isle of Man trust account nominated by Kevin Phelan, an accountant from Omagh.
Mr Lowry is charged with filing incorrect income tax returns for the year 2002 and conniving in alleged delivery by Garuda of incorrect corporation tax returns for the years ending 2002 and 2006. He is also charged, under the Companies Acts, of wilfully causing a company to fail to keep proper books of account between August 28th 2002 and August 3rd 2007.
In his judicial review, Mr Lowry argued he self-declared and self-corrected the matter in 2007, the Appeals Commissioner in 2015 found he had no personal income tax liability, Garuda ultimately paid some €38,000 corporation tax and the only outstanding issue was a disputed surcharge liability of €2,410.
In the circumstances, he argued continuation of his prosecution was unfair and disproportionate and he was also prejudiced by “savage” media articles about the Lowry tapes.
The DPP rejected the claims and argued the tax matter was significantly more serious than Mr Lowry maintained.
In his reserved judgment on Tuesday, Mr Justice Noonan dismissed Mr Lowry’s case. Costs issues will be addressed later. Mr Lowry was not in court but, in a statement later, indicated he intended to appeal. He also said he and his company have tax clearance certificates.
In his judgment, Mr Justice Noonan said Mr Lowry relied heavily in this challenge on the determination of the Appeal Commissioners on his tax appeal.
That determination issued in 2015 after this prosecution was initiated and the issue before the Commissioner was whether the €372,000 payment, diverted on instructions of Mr Lowry to an Isle of Man account, was liable to income tax.
The Appeal Commissioners accepted “very clear evidence” the monies were misappropriated from Garuda but ruled the payment could not be classified as an “emolument” rendering Mr Lowry liable to income tax, the judge said.
The Commissioners’ determination could not reasonably be characterised as a “vindication” of Mr Lowry, he held. While Mr Lowry argued the Commissioners had not used the word “misappropriate” in the “perjorative” sense, the Oxford English Dictionary defined misappropriate as to “dishonestly or unfairly take (something, especially money belonging to another) for one’s own use”.
He had difficulty understanding how the Commissioners’ use of the word “misappropriate” could be other than perjorative, the judge said.
The issue whether there was any tax loss was irrelevant to the charges against Mr Lowry, the judge ruled. While Mr Lowry argued he had no personal income tax liability and any Garuda liability was small, the offence at issue was a regulatory one, no loss was required to prove it and issues of harm or loss were irrelevant except possibly in relation to sentence.
Mr Lowry complained he was prejudiced by “savage” articles in the Sunday Independent concerning the “Lowry tapes” a purported recording of a conversation in 2004 between Mr Lowry and an accountant about the 2002 transaction, the judge said.
Mr Lowry was obliged to deal with the facts but, while relying extensively on the tapes’ publication, was “very coy” in his approach to them, did not say he was not the person on the tape and did not seek to suggest they are bogus.
Mr Lowry’s concern arose from a journalist obtaining evidence of alleged criminality on the part of a public representative, he said. The journalist’s newspaper published a story based on that evidence. There was nothing improper in the journalist making a complaint to the authorities and giving the evidence to them and the DPP had argued there was a statutory duty to do so, he said.
It could not be suggested media exposure of corruption must mean the exposed parties cannot thereafter be subjected to the criminal process, the judge said.
