The Revenue Commissioners has obtained a High Court judgment for some €2.4 million in tax and interest against Dublin landlord Paul Howard.
Mr Justice Michael Quinn also granted judgment on Tuesday for some €625,513 tax and interest against Mr Howard’s partner, Una McClean.
In opposing the judgment orders, sought by John Donnelly SC, with Shelley Horan SC, for Revenue, the defendants did not accept the validity of the amounts claimed.
They also argued the terms of engagement between Revenue and its solicitors in the proceedings amounted to a champertous agreement with the effect that the court action could not be maintained.
Champerty is an offence, on the basis of public policy against encouraging litigation, which arises where a third party, having no interest in the litigation, gives assistance to a party in litigation in return for a share in the proceeds of that litigation.
The champerty claim arose from a clause concerning remuneration structure in a January 2020 contract between Revenue and Ivor Fitzpatrick & Company Solicitors, one of six firms on a panel retained by Revenue for collection of unpaid taxes.
The defendants argued the clause amounted to a contingency fee arrangement which provided the solicitors remuneration was only paid if sums allegedly due to the Collector General were actually realised. The clause was deleted under an amendment agreement made on February 14th last between Revenue and the Fitzpatrick firm.
In a judgment published on Tuesday, Mr Justice Quinn noted the assessments against Mr Howard, with an address at Larkfield Avenue, Harold’s Cross, Dublin, concerned the period from 2002 to 2014.
The aggregate amount of those assessments, plus €99,257 surcharges, was some €1.19 million and Mr Howard made payments totalling some €7,839, he said. Corresponding assessments were raised against Ms McClean for a total €317,918 and she made payments of €15,382.
The assessments were unsuccessfully appealed to the Tax Appeals Commission and a final demand for payment was served in October 2021 on Mr Howard for some €1.2 million. He applied for phased payment, proposing a down payment of €302,675, followed by 36 monthly payments of €25,223.
His current business activity was stated to be cleaning services with an increase in revenue and cash flows expected soon. It was stated that the taxes had not been paid because “a cash deficit was caused due to low sales activity”.
Ms McClean made a similar phased payment application but neither application was accepted and judgment proceedings were initiated.
The judge outlined evidence to the court, including on behalf of Revenue and from a chartered accountant retained by the defendants. The accountant calculated that Mr Howard owed €188,570 income tax and €37,644 capital gains tax and said he believed the assessments were excessive.
Mr Justice Quinn upheld the assessments as final and conclusive and ruled the sums due in tax and interest were in the amounts certified.
In rejecting the claim of champerty, he said Revenue has the duty to collect all taxes for the Central Fund and does not exercise the same discretion or make the same type of profit orientated decisions as private parties or commercial enterprises who extend credit and make their own policy for recovery of debt.
There was no evidence Revenue decisions to pursue unpaid taxes are, or can be, influenced by the terms for retaining solicitors to enforce collection, he held. Nor was there evidence either Revenue or the retained solicitors were motivated or informed by a goal of profiting from trafficking in litigation or that this was even a by-product of the contract, he held.
The contract, the judge further found, did not facilitate or permit Revenue to perpetrate what the defendants had characterised as a fraud on them or the legal costs adjudicator.
Revenue had not sought to pretend the 2023 amendment to the 2020 contract was made for any motivation other than to eliminate the controversy around champerty pleaded by the defendant and had said that was done in the context of this and future cases, the judge said. The defence was not a party to that agreement and could not question the efficacy of that amendment.
On foot of his findings, he granted judgment for some €2.4 million, including €1.2 million tax and interest in a similar amount, against Mr Howard. Judgment for some €625,513 was granted against Ms McClean, including some €302,535 tax and the remainder in interest.
In November 2021, Revenue, after expressing “serious concerns” about Mr Howard’s activities concerning his assets, secured an injunction restraining him from reducing those below some €2.3 million.
Ms Horan told that hearing Mr Howard had a large property portfolio of rented properties but some properties had been sold and some were listed for sale.
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