A High Court judge has urged a father and son being pursued over "vast" sums totalling more than €5.2 million in estimated alleged unpaid taxes to "engage sensibly" with the Revenue Commissioners.
Sensible engagement is something Annino Forte and his son Corrado, both businessmen and with addresses in Co Wexford, "have not done to this time", said Mr Justice Max Barrett.
They had approached their dealings with Revenue “in a manner that has been less than dispassionate, at times imprudent, and not always polite”.
The assessment notices were issued after a Revenue audit in which the Fortes chose not to participate, he said . They had not appealed to the Appeals Commissioners against the notices because they mistakenly assumed, when it came to being sued by Revenue over the alleged liabilities, they could dispute those liabilities in court.
He said, rightly or wrongly, both insisted they do not owe the entirety of the “vast sums” for which the Revenue now wanted final judgment.
Revenue wanted summary judgment orders for €2.7 million against Annino Forte, and for €2.5 million against Corrado Forte.
The judge said as a result of not appealing to the Appeals Commissioners, the assessments had become, in law, final and conclusive.
His concern was the court was now effectively being asked to give summary judgment for estimated sums, the accuracy of which has never been tested, yet against which no defence could be raised.
Revenue application
If he was to grant the Revenue application at this time he was concerned the court would make an order “that is not reflective of reality, and which would potentially effect a greater injustice”.
In all the circumstances, the judge said he was adjourning the Revenue application and stressed “sensible engagement” was a condition of that.
He said the adjournment was to see if Revenue would take account of the “genuine confusion” of the Fortes, who represented themselves in relation to the Revenue matters and High Court proceedings, about how to challenge the alleged liabilities, and to possibly allow a fresh consideration of their affairs, fresh audit or other options.
He said if Revenue could not agree to the court’s proposals, or could not advance an alternative addressing the court’s concerns, he may have to consider referring legal issues for decision by the Court of Appeal.
He had “a lingering concern” about whether the “effective excision of judicial discretion” provided for in the Tax Acts – in circumstances of this case where the Fortes had not appealed an assessment to the Appeals Commissioners with the effect the estimated liability had become “final and conclusive” – was “legally proper”.
Instructions
Garret Flynn
, for the Revenue, said he would have to get instructions about the Revenue’s attitude.
The judge stressed to the Fortes that, despite his findings, they may yet be held liable to pay such amounts as were now being sought by Revenue, and strongly urged them to get professional legal representation.
He said our system of government could not function unless taxes were paid, all taxes due “ought to be paid”, and to the extent the Fortes have not paid their taxes they have no claim on the court’s sympathies.
The matter will return before the judge in two weeks.
