Direct professional access and rights of audience before the Tax Appeal commissioner and the High Court.
As set out in previous articles, a tax audit may be the first stage in a penal process. Additionally a tax appeal may be the first stage in a contested litigation.
I will briefly examine the consideration of accountants briefing Counsel to appear in tax cases before the tax appeal commissioners and the High Court.
As most lawyers will tell you, they may not be numerically gifted. Equally accountants are not trained lawyers. No more than any lawyer would attempt to provide audit services it is not expected that Accountants would be required to provide detailed legal services. However, accountants will have detailed intimate knowledge of their client’s finances and of the mechanics of filing the appropriate tax returns and have a unique appreciation of the nuances of the operation of the tax statutes in practice.
Under the Bar Council of Ireland Direct Professional Access Scheme since 1990 Accountants who are members of approved professional bodies have been granted direct professional access to members of the Bar in non-contentious matters primarily for legal opinions on discreet matters.
This does not extend to contentious matters. This was confirmed in Bond & Others v Dunne & Another [2017] IEHC 646 by Mr Justice Gilligan where it was confirmed that the Bar Council Code of Conduct prevents a barrister from providing legal services as a practicing barrister in relation to a matter which is a contentious matter and that a barrister cannot act for and conduct civil litigation on behalf of a party without being instructed by a solicitor.
It is therefore required when Accountants intend to appear before the Tax Appeal Commission or the High Court and wish to engage Counsel they will be required to engage the services of a solicitor to do so. The legislation itself which underpins the establishment of the tax appeal commission allow an appellant to appoint an agent but is silent on their character.
They would be well advised to consider engaging a solicitor with a tax background as it should be noted that an appeal of a determination of the tax appeal commissioner is by way of a case stated to the High Court on a point of law.
The procedure for a Case Stated is that a party who is dissatisfied with a determination of the Commissioners as being erroneous on a point of law may by notice in writing require the Commissioners to state and sign a case stated for the opinion of the High Court. The request for a case stated must also be made within a short period of time (3 weeks) after the receipt of the determination.
From the date of the appointment of the Tax Appeal Commission the number of Cases Stated have been modest comprising 22 Cases Stated (as of July 2019) to the High Court. However, these are a significant number of the 46 Cases determined to date (as of November 2019).
At this stage, the difficulty of engaging Counsel or a Solicitor to review the case if they are not already appointed will be under severe time pressure, and Accountants may find themselves seeking to appoint Counsel, or a solicitor, or both at this point. Clearly this is not ideal.
A more advised scenario is to seek to reach out to professional contacts at the earliest point in the appeal procedure to appoint a solicitor and if required seek a legal opinion from Counsel. If it is considered that an appeal may be required it is suggested that a multi-disciplined team be compiled as early as possible.
After the case stated comes the matter of running the case in the High Court. At this point Counsel should, as a necessity for the protection of the client’s interests, be engaged. Accountants, generally, will not be experienced in Court procedures and practices and again a multi-disciplinary approach is appropriate in this process.
