InDisputes – Fair Procedures And The Charter: Application In Tax Disputes

European Union (“EU”) law often plays a central role in Irish tax disputes as it is frequently relied on by both taxpayers and Irish Revenue (“Revenue”) in domestic Irish tax appeals. The decision of the High Court in Hamill v the Revenue Commissioners [2025] IEHC 627 (“Hamill”) is a recent reminder of the additional impact of the EU law protections offered to taxpayers by the Charter of Fundamental Rights (the “Charter”), but also the importance of appropriate use of the Charter in tax disputes.

Background

In Hamill, the taxpayer sought to rely on the right to fair procedures protected by the Charter in the course of a challenge to a VAT assessment raised by Revenue. At the original Tax Appeals Commission (“TAC“) hearing of the matter, the taxpayer contended that Revenue had failed to disclose certain information in advance of raising the VAT assessment and, consequently, this information should be excluded from the TAC’s evaluation of the assessment.

The TAC rejected the taxpayer’s reliance on the Charter in the circumstances of the case, and that finding was upheld by the Irish High Court on a Case Stated. The TAC and the High Court identified a number of reasons for reaching this conclusion:

• Jurisdiction: An argument challenging the fairness of the process followed by Revenue in raising an assessment should generally be brought by way of judicial review before the High Court, rather than via the TAC. That said, the Court acknowledged that TAC’s jurisdiction must “allow for the requirements that may arise under EU law”, demonstrating that Charter arguments may, in an appropriate case, fall within the remit of the TAC.
• Substance: The TAC and the High Court rejected the unfairness alleged by the taxpayer on the facts. Although Revenue obtained the relevant documents from third parties, the documents were, in fact, available to the taxpayer (eg, bank statements of the taxpayer). Critically, this situation arose as a direct result of the taxpayer’s failure to cooperate with the Revenue audit, which obligated Revenue to obtain documents from third parties. TAC also noted that the arguments were raised for the first time at the conclusion of the appeal hearing after all the evidence had been given, with no adequate explanation for why the issue had not been raised earlier.

In this way, the specific circumstances of the relevant taxpayer were distinguished from other cases where taxpayers successfully relied on the Charter in tax disputes (see 31TACD2023; C-189/18 Glencore Agriculture Hungary Kft). In such instances, key characteristics included that the relevant tax authority had relied on third party information which the taxpayer was not able to access, or that the tax authority had failed to allow the taxpayer an ability to respond to allegations raised.

Key takeaways

The principles of fair procedures protected by the Charter are, as the Court noted in Hamill, an iteration of the rights to fair procedures protected by the Irish Constitution. However, in a tax context, the ability to rely directly on the Charter can offer substantive benefits to taxpayers, given the overriding obligation on the TAC to apply EU law, and the body of case law of the EU courts on the obligation of fair procedures in tax disputes. That noted, taxpayers need to carefully consider the appropriate forum and legal basis for relying on Charter fair procedures in their specific circumstances. Hamill highlights several practical considerations for taxpayers seeking to deploy these arguments:

Forum: Process complaints should generally be pursued by way of judicial review rather than through the TAC, though Charter arguments may arise in an appropriate case before the TAC.

Timing: Procedural unfairness arguments must be raised promptly and not left to the closing stages of an appeal hearing.

Access to documents: The Charter right of access to information is most likely to be engaged where a taxpayer genuinely lacks access to the material in question. Where documents are the taxpayer’s own, or were otherwise available to the taxpayer, reliance on the Charter is unlikely to succeed.

Cooperation: A taxpayer’s own failure to cooperate with a Revenue audit, thereby necessitating Revenue’s reliance on third-party sources, will significantly undermine any subsequent claim that the process was unfair.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.