Vehicle Registration Tax Section 6

Transcription

1 Vehicle Registration Tax Section 6 VRT Appeals Reviewed May

2 [SECTION 6] Table of Contents 6.1 LEGISLATION SCOPE OF THE APPEAL PROCEDURE FIRST STAGE APPEALS (S.145 APPEALS) Appeal Procedure Determination of Appeal Notification of Determination APPEAL COMMISSIONERS SECOND STAGE APPEALS (S.146 APPEALS) Appeal Procedure Lodgement of Application for Appeal Processing of an Application Presentation of Appeals Pre-Hearing Procedure Conduct of Appeal Hearings Witnesses Determinations of the Appeal Commissioners Format of Determinations of the Appeal Commissioners Case Stated European Law Post-Hearing Procedure Costs VRT Appeals Returns

3 VRT APPEALS This section deals exclusively with the formal VRT appeal procedure which was introduced initially as part of an overall appeal procedure for duties of excise on 1 January, The procedure was introduced as a means of providing a system of independent arbitration for a person who has either: paid VRT, or been refused (in whole or in part) a repayment/remission of VRT, or been refused (in whole or in part) relief from the payment of VRT, or been refused an authorisation or has had an authorisation revoked, or been refused an exemption from the requirement to register, and who feels aggrieved at such payment, request or refusal and wishes to lodge a formal appeal. The VRT appeal procedure does not apply to cases involving criminal proceedings or seizure of goods, as separate remedies are available in such cases, e.g. the seizure of a vehicle for failure to pay VRT as a result of a classification decision cannot be appealed under this procedure, but the classification decision itself can. The Standing Instructions in relation to general excise appeals remain extant. The Tax and Duty Appeals Manual should be read in conjunction with this Section. Particular attention should be paid to Chapter 24 of the said manual. 3

4 [SECTION 6] 6.1 LEGISLATION Primary Legislation: Finance Act, 2000, s.98; Finance Act, 2001, ss SCOPE OF THE APPEAL PROCEDURE Legislation (2001) provides for the operation of a two-stage appeal procedure, i.e.: appeal to the appropriate appointed officer (first stage), appeal to the Appeal Commissioners (second stage). In each case the legislation lays down the procedures to be followed. In general, appeals in relation to the payment of VRT relate to: OMSP/classification/valuation appeals, repayment/remission appeals, refusal of permanent relief, refusal of temporary exemption, registration of a vehicle or amendment to/deletion from the register of vehicles under s.131, a determination of OMSP by the Commissioners under s.132(2), granting, refusal or revocation of an authorisation under s

5 6.3 FIRST STAGE APPEALS (S.145 APPEALS) The first-stage appeal open to an aggrieved person (appellant) comprises an appeal under s.145. As a general rule, appeals of this type should only arise where a dispute cannot be settled locally and where there is a fundamental disagreement between Revenue and the person concerned. An appeal at this stage is internal and in practice is determined by an officer appointed for that purpose. The appointed appeals officers are as follows: OMSP/classification/valuation/registration APs, CVO repayment/remission *refusal of permanent relief AP, Local District Office refusal of temporary exemption VRT authorisations *Persons wishing to appeal a refusal of VRT relief on a transfer of residence application must register the vehicles/s, which is/are the subject of the appeal, and must pay the requisite VRT before an appeal can be lodged. Such a person cannot determine an appeal in relation to a decision either made by him/her or in which s/he has participated. In this regard, appeals relating to distributor OMSP, registration and/or authorisation issues are dealt with by the relevant District Manager Appeal Procedure The procedure under s.145 can be divided into three parts: lodgement of an appeal with the appointed officer (See above), determination of the appeal, and notification of the determination in writing to the appellant Lodgement of Appeal An appeal must: be lodged in writing, set out in detail the reasons for the appeal (reassessment of the facts/decision in the case), 5

6 [SECTION 6] be accompanied by all supporting documentary evidence (any vehicle/s to which the appeal relates must be produced on request by the appointed officer), be lodged within 2 months (may be extended in exception circumstances) from the date of: the payment of VRT, or the refusal of a relief/exemption/repayment/remission, or notification of: a deletion from/amendment to the register of vehicles, a determination of OMSP by the Commissioners, granting/refusal/revocation of an authorisation. An appellant may lodge an appeal personally or have one lodged on his/her behalf by a professional representative. The appellant must be notified that the appeal has been received and that a determination will be made within 30 days from the date of receipt Determination of Appeal An appeal must be determined by the appointed officer within 30 days of being lodged following consideration of the supporting documentary evidence and the relevant legislation and having regard for VRT policy and legislation. In default, a determination that the appeal was not upheld will be deemed to have been made. However, this will cease to have effect if a determination is made prior to a determination by the Appeal Commissioners under section 146 F.A Where an appeal cannot be determined within the prescribed period the Appeals Officer must advise the appellant in writing that: the appeal will not be determined within the prescribed period, the reason/s for the delay, and the expected date of determination. In considering an appeal the nominated officer should scrutinise all aspects of the case, including, e.g. valuation appeals the original OMSP should be re-assessed 6

7 through fresh research to ensure that it reflects the market price, distributor OMSP: review market research data on hands, deletions/amendments: review evidence of residency/establishment, review evidence of residency/establishment: the original decision should reflect eligibility criteria and VRT Policy & Legislation, exemptions appeals: the facts should be established afresh and supporting documentation checked for relevance, sufficiency and validity Notification of Determination The determination must: be notified to the appellant in writing (without delay/within prescribed time limits; contain the reason/s for the determination (where reasons are omitted, the appellant is automatically granted a right of appeal to the Appeal Commissioners; be accompanied by the appeals procedure information leaflet 7

8 [SECTION 6] 6.4 APPEAL COMMISSIONERS There are currently two Appeal Commissioners appointed by order of the Minister for Finance who, as a consequence, may hear and determine appeals in relation to the payment/repayment of any tax or duty, including VRT. An appeal may be heard in Dublin or at a suitable venue within the State. In general, appeals follow the High Court circuit in terms of their sittings and locations and Revenue is advised of these approximately one month in advance. Local venues are generally arranged by the Appeals Officer in the relevant District. Appellants will be facilitated where possible in the choice of venue. 6.5 SECOND STAGE APPEALS (S.146 APPEALS) A person who feels aggrieved by a determination of the VRT Appeals Officer has a further right of appeal to the Appeal Commissioners. An appeal under s.146 comprises the second stage in the appeal procedure Appeal Procedure An appeal under s.146 to the Appeal Commissioners usually culminates in a hearing before one of the Commissioners. The appellant may represent himself/herself personally or choose to be represented by a barrister, solicitor, accountant, member of the Institute of Taxation, or any other person permitted by the Appeal Commissioners. The procedure can be divided into three parts: notification of intention to appeal (application), lodgement of an appeal with the Appeal Commissioners, and a hearing in camera Lodgement of Application for Appeal An application for appeal must: be lodged in writing, 8

9 set out in detail the grounds of appeal, be accompanied by all supporting documentary evidence, and be lodged within 30 days from the date of: notification of the determination by the nominated senior officer, or expiry of the time-limit for such determination, whichever is the earlier. An appellant may withdraw an application at any time prior to a determination by the Appeal Commissioners by giving notice in writing to the VRT Appeals Officer. Similarly, it is open to an appellant to agree a settlement with Revenue in respect of the VRT/other matter in question. Such an agreement should be confirmed by the VRT Appeals Officer by notice in writing to the appellant. In default, the agreement will stand unless the appellant withdraws/repudiates it in writing within 21 days Processing of an Application All applications for appeals to the Appeal Commissioners are lodged in the first instance with the VRT Appeals Officer. On receipt of such an application the officer should: consider the stated grounds of appeal and supporting documentary evidence, following consideration of the stated grounds and the relevant legislation (Finance Act 2001), form an opinion as to whether any valid grounds of appeal are set out therein, where s/he has formed an opinion that no valid grounds of appeal are stated, refuse the application and advise the appellant in writing (s146 Finance Act 2001), and advise the appellant in writing that s/he may appeal the refusal directly to the Appeal Commissioners within 15 days of the notice of refusal. On receipt of an application for appeal direct from an appellant, the Appeal Commissioners will request a copy of the notice of refusal from the VRT Appeals Officer, and then either: refuse the application and advise the appellant in writing specifying the grounds for their refusal, or allow the application and advise both the appellant and the VRT Appeals Officer in writing, or 9

10 [SECTION 6] notify both the appellant and the VRT Appeals Officer in writing of their intention to hold a meeting at a specified venue and time to determine whether to allow the application or not Presentation of Appeals The VRT Appeals Officer, having reviewed all the facts of the appeal, and the supporting documentation, will decide whether s/he will present it personally, or whether it assistance is required Pre-Hearing Procedure Where the VRT Appeals Officer decides that there are valid grounds for appeal, and the appeal is to be presented by him/her personally, s/he will: 1) Request from the Appeal Commissioners that time be made available for an appeal hearing and furnish the following details: name and address of appellant, tax type, relevant legislation, points at issue, estimated duration of hearing, and any other relevant information. The Appeal Commissioners will then advise of a date, time and venue. The VRT Appeals Officer will, in turn, advise the appellant by registered post. An alternative date, time and venue acceptable to all parties will be agreed if that advised by the Appeal Commissioners is unsuitable. 2) Prepare a Case Summary consisting of: the original application form, all supporting documentation, 10

11 all written correspondence between the appellant and Revenue prior to appeal, relevant legislation, all representations, if any, made to Revenue on the appellant s behalf, e.g. by a TD, and send a copy each to the Appeal Commissioners and the appellant/representative at least three weeks in advance of the hearing. The Appeal Commissioners may, in addition, issue a precept to an appellant requesting production of further documentation which they consider necessary for the determination of the appeal. 3) Research the case, i.e. ascertain all the facts and obtain all required documentation etc., 4) Decide, in conjunction with the appropriate Collector/Principal, how the case is to be presented, i.e. case strategy, 5) Decide what Revenue witnesses are required and advise them of the date, time and venue Conduct of Appeal Hearings An appeal hearing is essentially fact-finding in nature. However, questions concerning the interpretation of points of national and European Law (See para ) may also arise. The hearing is an informal procedure based on the application of the rules of natural justice, i.e.: audi alteram partem (lit. hear the other side ), i.e. the appellant must be allowed to present his/her submission, nemo iudex in causa sua (lit. no-one may be a judge in his own cause), i.e. the appeal must be determined by an independent person/body. In accordance with these rules, the Appeal Commissioners preside over the presentation of the respective submissions of both parties, commencing usually with a submission by the VRT Appeals Officer followed by a submission from the appellant. These submissions will usually be followed by a response from the other party. 11

12 [SECTION 6] It is essential, when presenting an appeal, that the VRT Appeals Officer directs the Appeal Commissioners to the kernel of the appeal, i.e. the point around which the determination is most likely to revolve, and maintains the focus of the appeal on: the criteria laid down in legislation (where appropriate), the absence of any/sufficient supporting documentary evidence from the appellant, and any other weaknesses in the appellant s case Witnesses Witnesses may be: called by either party to give evidence on their behalf, and summoned by the Appeal Commissioners to give evidence before them. Witnesses so called may be examined under oath by the Appeal Commissioners. Those summoned by the Appeal Commissioners and who neglect/fail to appear or to answer questions put to them may face legal sanction Determinations of the Appeal Commissioners Determinations/decisions of the Appeal Commissioners are based on findings of fact made from the evidence presented and applied to VRT law as interpreted by them. An appeal may be allowed or refused, in whole or in part. In the case of VRT paid, or a demand for VRT payable, the Appeal Commissioners may: confirm the amount paid/payable, reduce the amount paid/payable, and increase the amount payable (where appropriate). In the case of a refusal to repay/remit VRT, the Appeal Commissioners may: confirm the refusal, order the VRT to be repaid/remitted, and order the VRT to be repaid/remitted but vary the amount. 12

13 In the case of a refusal to grant relief/exemption, the Appeal Commissioners may: confirm the refusal; order the relief/exemption to be granted. In the case of a deletion from, or an amendment to, the register of vehicles, or a refusal to amend the register, the Appeal Commissioners may: confirm the deletion/amendment/refusal; order that the amendment be reversed/deletion be reinstated, whichever is appropriate. In the case of a determination of OMSP by the Revenue Commissioners, the Appeal Commissioners may: confirm the determination, order that the determination of the distributor in question be accepted, and impose an OMSP which they consider appropriate. In the case of a refusal/revocation of an authorisation, the Appeal Commissioners may: confirm the refusal/revocation, and order that the authorisation be granted/reinstated with/without conditions attached Format of Determinations of the Appeal Commissioners Determinations may be given: orally or in writing, at the discretion of the Appeal Commissioners, and at the conclusion of the hearing or at a later date (Reserved determination) advised to the parties. It is the policy of the Appeal Commissioners to give the reason/s for their determinations when they are handed down. They are written down in a prescribed format and transmitted to the VRT Appeals Officer within 10 days of being handed down. Determinations of the Appeal Commissioners are final and conclusive but are not binding in future hearings, i.e. they are not recorded and do not form precedents Case Stated 13

14 [SECTION 6] Where an appellant, or the VRT Appeals Officer, is dissatisfied with a determination of the Appeal Commissioners as being erroneous in law, s/he may declare his/her dissatisfaction to the Appeal Commissioner/s who heard the appeal. In addition, s/he may also require the Appeal Commissioner/s to state and sign a case for the opinion of the High Court. This must be done in writing within 21 days of the determination. The High Court will, in turn, give its decision European Law A question concerning the interpretation of European Law may arise during an appeal hearing. Where this occurs the Appeal Commissioners may exercise their right to refer the question to the Court of Justice of the European Union for a ruling under Article of the Consolidated Version of the Treaty on the Functioning of the European Union (2010/C 83/01). The appeal hearing will be adjourned pending the determination of the ECJ. On receipt of the ECJ ruling, the appeal will continue as normal Post-Hearing Procedure Following the hearing the VRT Appeals Officer should speak (where possible) with the appellant and: outline the available options and their consequences, allow sufficient time for the appellant to choose and agree an option, and advise that VRT payable (where appropriate) must be paid within 30 days. Any arrangements subsequently agreed between the parties should be confirmed in writing by the VRT Appeals Officer to the appellant. A copy of the letter should be sent to the local SCD for information and any follow-up action, if required Costs Irrespective of the outcome of an appeal, the Appeal Commissioners have no power to award costs to either party. 1 Article 267 (inter alia): Where a question [concerning the interpretation of the Treaties] is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. 14

15 6.5.2 VRT Appeals Returns A quarterly return of local (first-stage) appeals is to be submitted to the Secretary Appeal Committee, Stamping Building Dublin Castle. In the case of second-stage appeals which have been presented by a local VRT Appeals Officer, the file, together with the determination of the Appeal Commissioner, is to be returned to the same Office following the conclusion of the appeal. 15