The Finance (Tax Appeals) Act 2015 established the Tax Appeals Commission. It provides for membership and functions, appointment and terms and conditions of the individual Appeal Commissioner.
The Commission is to comprise members known as Appeal Commissioners. They are to be appointed by the Minister. The Commission’s functions may be performed by its staff under the authority of the Commissioner. The Commissioners may adopt their own rules and procedure in carrying out their functions.
Functions may be carried out by the Commissioners individually unless the rules or procedure provide otherwise. The Commissioners are to be appointed from amongst persons recommended by the public. Commissioners are appointed for seven years. They are to serve no more than two consecutive terms.
The Minister for Finance may appoint a Circuit Court judge as a temporary Commissioner, where full-time Commissioners has been excused from determining an appeal because of a conflict of interest. The Commission and its members are to be independent in the performance of its functions. They are to excuse themselves from acting where they do not feel they can act impartially in a particular matter.
Commissioners may be removed from office only on the basis of misbehavior, ill health, inability to perform functions. A statement of removal must be laid before the Dáil. The Minister for Finance may remove a Commissioner for specified reasons.
The Appeals Commission, the Commissioners have its own staff appointed on terms and in numbers determined by the Minister for Finance and Public Expenditure.
The legislation makes transitional provisions from the old appeal process to the new appeal process. Appeals already made on the commencement process.
The transitional provisions apply differently, apply depending on the stage at which the appeal under the old system is pending at the date of commencement of the legislation.
Finance (Tax Appeals and Prospectus Regulation) Act 2019 inserts a number of new sections, numbered from 4A to 4G, into the Finance (Tax Appeals) Act 2015 to provide for the appointment and functions of the chairperson. It allows the Minister for Finance to appoint a chairperson to the Tax Appeals Commission from a panel of suitable candidates assessed by the Public Appointments Service.
The section provides that:
- The Minister for Finance can appoint a chairperson to the Tax Appeals Commission for a term not to exceed 7 years and restricts an individual from becoming chairperson for more than two 7 year
- Where a chairperson is appointed, who is not a serving Commissioner, they are deemed to be appointed as a Commissioner at the time of appointment as chairperson.
- Suitable candidates will be selected based on requirements specified by the Minister for Finance. These requirements may include
a minimum period of practical experience, a particular level of academic or professional qualification or (subject to the Employment Equality Act 1998), requirements in relation to age and health.
- A chairperson must retire on reaching retirement
- If the Minister for Finance does not re-appoint a chairperson for a second term the Minister for Finance must make a statement before Dáil Éireann as to the reason behind their decision.
The chairperson may resign by writing to the Minister for Finance. The section allows for a minimum notice period of 3 months from the date of the letter of resignation, unless the Minister for Finance approves a shorter notice period.
The Minister for Finance may remove a chairperson of the Tax Appeals Commission for various reasons, including misbehavior, incapacity through ill health, significant conflict of interest or if the removal of the chairperson is necessary for the effective performance of the Commission. Ifif the Minister for Finance removes a chairperson for any of the stated reasons, the Minister for Finance must make a statement before Dáil Éireann as to the reason behind the decision.
Revised Governance- Chairperson
The 2019 amendments set out the functions and responsibilities of the chairperson, as follows;
- The chairperson will be responsible for the management of the administration of the tax appeals system and the business output of the Tax Appeals Commission as a whole.
- The chairperson will be responsible to the Minister for Finance for ensuring that the tax appeals system is cost effective, efficient and that appeals are being processed, adjudged and determined in a timely
- The chairperson, as accounting officer, will be responsible for the Commission’s accounting and financial reporting system including control systems such as audit and risk committees.
- The chairperson will have the power to issue guidelines on the operation of the appeal system and to consult with the other Commissioners in relation to the business of the Tax Appeals Commission both informally and through a formal meeting
- The chairperson will have responsibility for ensuring that the Tax Appeals Commission is compliant with its obligations under data protection law and the Freedom of Information Act 2014.
- The chairperson will have the authority to delegate certain functions to other Commissioners or staff of the Commission but ultimate responsibility for the performance of the function is with the chairperson. The functions that can be delegated are to do with the performance of the administrative function, the implementation of effective systems and procedures.
The chairperson may request a report or reports from a Commissioner in relation to their work carried out on behalf of the Tax Appeals Commission and in particular determinations of appeals. The chairperson may specify the information to be contained in the report and, if necessary, to set a reasonable time frame for the provision of the report.
The 2019 Act limits the total term that a person can serve as a Commissioner and as chairperson of the Tax Appeals Commission at 14 years in total. This is in line with Government policy in relation to the appointment of senior civil servants and chief executives.
The Minister for Finance, following consultation with the Minister for Public Expenditure and Reform, has the authority to set the terms and conditions of the chairperson’s appointment. The Minister for Public Expenditure and Reform has the authority to set the rate of remuneration payable to the chairperson.
The chairperson has responsibility to ensure that the annual report of the Tax Appeals Commission is prepared on time and contains the information as set out in the Finance (Tax Appeals) Act 2015. The chairperson will also have responsibility for the preparation of any other reports that the Minister requests.
There are provisions for taking appeals by agents which will be the normal course. An appellant who wishes to nominate an agent must notify the Appeal Commissioners in writing and provide information in relation to the agent. The appointment of the agent may be revoked and the Appeal Commissioners must be notified in writing.
A party withdrawing an appeal must notify the Appeal Commissioners who must notify the other party. An appeal is treated as dismissed where a settlement is reached by agreement, where the Appeal Commissioners refuse to accept an appeal or there is the failure to attend. However, this does not affect the terms of a settlement agreement. The Appeal Commissioners need not make a determination where the matter is settled by agreement, withdrawn, or dismissed.
Appeal Commissioners are to endeavor to conduct proceedings in as informal and flexible manner as possible. They are to facilitate assessment of appeals by agreement and to avoid undue delay in dealing with appeals. This is not to be at the expense of giving proper consideration to the matter under appeal.
The pre-existing appeal system becomes redundant as stages of the appeal process, subject to transitional arrangements, are determined. A single type of appeal mechanism applies regardless of the tax or duty. The legislation allows functions to be performed electronically.
The Appeal Commissioners may give directions to appellants and the Revenue Commissioners in relation to how they must act in the course of appeal proceeding. Parties may apply to the Appeal Commissioners for a direction.
Directions may relate to such matter as provision of specified information, consolidating multiple appeals, holding preliminary hearings and adjourning proceedings. Party seeking a direction must submit a written request to the Appeals Commissioner.
Parties must comply with a direction. Failure to do so may result in the dismissal of the appeal. The Appeal Commissioners may make other persons other than the appellant a party to the appeal. This may be done where the decision may affect the tax liability of other persons. For example, where there is an apportionment of liability between persons or it directly impacts others.