High Court of Ireland Decisions

APPROVED                                                                                               [2025] IEHC 268

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THE HIGH COURT

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949AQ OF THE TAXES CONSOLIDATION ACT 1997

Record No.: 2023/390R

BETWEEN:

 

THE REVENUE COMMISSIONERS

                                                                                                            Appellant

 

-and-

 

GETTY IMAGES INTERNATIONAL ULC

                                                                                                            Respondent

 

JUDGMENT of Mr Justice Rory Mulcahy delivered on 9 May 2025

 

Introduction

 

1.         These proceedings come before the court by way of case stated from the Tax Appeals Commission pursuant to section 949AQ of the Taxes Consolidation Act 1997, as amended ("the TCA 1997") at the request of the appellant, the Revenue Commissioners ("Revenue"). Section 949AP of the TCA 1997 provides that a party who is dissatisfied with the determination of a Tax Appeals Commissioner on a point of law may require the Commissioner to state and sign a case for the opinion of the High Court.

 

2.         In this case, the respondent ("Getty"), had appealed to the Tax Appeals Commission ("TAC") regarding two Notices of Determination issued by Revenue in respect of deductions for foreign royalty withholding tax ("RWHT") in Getty's tax returns for the years ended 31 December 2015 and 31 December 2018. In brief terms, Getty had treated the payment by it of foreign RWHT as a deductible expense, i.e. an expense necessarily incurred by it in order to carry out its trade. Revenue objected to this treatment.

 

3.         The appeals were heard before a Tax Appeals Commissioner ("the Commissioner"), at a hearing commencing on 27 February 2023. The Commissioner determined that Revenue was incorrect to issue the Notices of Determination, i.e. that Getty had been entitled to treat foreign RWHT as a deductible expense.

 

4.         Revenue requested that the Commissioner state a case to the High Court on a point of law. Following detailed engagement regarding the terms of that request, the Commissioner signed a case stated pursuant to section 949AQ on 12 December 2023. However, Revenue is dissatisfied with the terms of the case stated. The application the subject of this judgment concerns its application to amend its terms.

 

Background

 

5.         Getty's business is comprised of the licensing of its large database of digital media to its customers, which include both affiliated entities and third-party customers in more than 100 foreign jurisdictions where its imagery appears in newspapers, magazines, advertising campaigns, films, television programmes, books and websites. Customers in a number of those jurisdictions deduct foreign RWHT at source.

 

6.         In calculating its adjusted taxable trading loss or nil position for the financial years 2015, 2017 and 2018, Getty treated the foreign RWHT as a deductible expense. It did not do so for the tax year 2016.

 

7.         In 2019, Getty submitted an unprompted qualifying disclosure to Revenue, noting its own inconsistent treatment of foreign RWHT, a consequence of which would be an adjustment of its return for the financial year 2016.

 

8.         Correspondence was exchanged between the parties, at the end of which Revenue refused to accept the unprompted voluntary disclosure regarding 2016 and issued Notices of Determination regarding the tax years 2015 and 2018, as referred to above. Getty appealed against each of the Notices of Determination. As the Notices of Determination concern losses realised, carried forward, but not yet used, there is no tax at stake in respect of the Notices unless and until the losses are sought to be used in future accounting periods against taxable profits.

 

Tax Appeal Commission

 

9.         The appeals against each Notice of Determination were consolidated and were heard by the Commissioner over three days in February 2023. The Commissioner heard oral evidence including expert evidence.

 

10.     As this is not the hearing of the case stated, it is only necessary to describe in brief terms the issue which was before the Commissioner, which is summarised at paragraphs 46 - 49 of the Commissioner's Determination ("the Determination"):

 

"46.     In summary, [Getty's] appeal is made on the basis that it claims an entitlement to a deduction pursuant to Section 81, TCA 1997, in respect of foreign RWHT suffered. Further, and in the alternative, [Getty] claims that foreign RWHT is deductible pursuant to the provisions of section 77 TCA 1997 and Schedule 24 (paragraphs 7 and 9DB) TCA 1997 ...

 

47.       Section 77 TCA 1997 provides for "the Irish measure of income", such that where the trading income of a trade carried on by a company includes royalties, the amount of the income, relating to that royalty income, chargeable to tax may be reduced by the relevant foreign tax attaching to that income. However, the reduction is limited to the amount of the income for Corporation Tax purposes relating to the relevant royalties, i.e. the Irish measure of income.

 

48.       Schedule 24 TCA 1997 sets out the "mechanics" for determining the amount of the credit, against Corporation Tax, in respect of foreign tax paid that can be given.

 

49.       [Revenue's] position is that it does not accept [Getty's] submission that the reductions provided for under section 77 or Schedule 24 TCA 1997 can reduce the Irish measure of that income below zero, i.e. that a loss can be created. As [Getty] was in a loss-making situation for all relevant periods, [Revenue] is of the view that [Getty] is not in a position to avail of any relief for foreign RWHT either under Schedule 24 or Section 77(6B) TCA 1997, as there was no Irish measure of income. The reduction cannot reduce the Irish measure of the foreign income below zero."

 

11.     The parties agreed a statement of facts and the Commissioner also made material findings of fact. One finding of fact relevant for the purpose of this application is that set out at paragraph 37 (viii) of the Commissioner's decision that "[a]t present [Getty] cannot avail of a credit or deduction for foreign RWHT withheld on its royalty income".

 

12.     This appears to reflect an issue in the appeals which was not in contest, albeit Revenue now seeks to argue that the Commissioner misunderstood the significance of the fact that no such credit or deduction was available. Paragraphs 50 and 51 of the determination stated as follows:

 

"50.     The first issue in this appeal is whether [Getty] is entitled to deduct foreign RWHT suffered by it in accordance with section 81 TCA 1997. In considering [Getty's]entitlement to deduct foreign RWHT, the Commissioner intends to proceed on the basis that [Getty] is not in a position to avail of any relief for foreign RWHT either under Schedule 24 or section 77(6B) TCA 1997, in accordance with [Revenue's] position in this appeal.

 

51.       The Commissioner observes that counsel for [Getty] states "that's our point, if we get it under section 81 we don't seem to get it under Schedule 24, whether by way of credit or by way of deduction. So we say it's a final cost to us. The Revenue are disallowing it under Schedule 24. So for the purpose of section 81 we say, okay, we accept that." Accordingly the Commissioner intends to proceed to consider the availability of section 81 TCA 1997 on the basis that [Getty] is not in a position to avail of any relief for foreign RWHT either under Schedule 24 or section 77(6B) TCA 1997."

 

* emphasis added

 

13.     The focus of the appeal, accordingly, was section 81 of the TCA 1997. Getty claimed that it was entitled to treat foreign RWHT as a deductible expense on the basis that it was an expense expended for the purpose of its business. Revenue did not accept that, asserting that foreign RWHT is by its nature a tax on income and not an expense and arises because income is earned, not as a pre-condition to earning that income.

 

14.     In relevant part, section 81 provides:

 

(1)   The tax under Cases I and II of Schedule D shall be charged without any deduction other than is allowed by the Tax Acts.

(2)   Subject to the Tax Acts, in computing the amount of the profits or gains to be charged to tax under Case I or II of Schedule D, no sum shall be deducted in respect of—

(a) any disbursement or expenses, not being money wholly and exclusively laid out or expended for the purposes of the trade or profession;

 

15.     The Commissioner ultimately concluded as follows:

 

"132. Accordingly, based on a consideration of the evidence and submissions together with a review of the facts and documentation, the Commissioner is satisfied that in circumstances where foreign RWHT suffered by [Getty] cannot be reclaimed under Schedule 24 TCA 1997, and which impacted on the final net profit or loss realised in an overall transaction, foreign RWHT suffered is an expense necessarily incurred by it in order to carry on its trade and is "wholly and exclusively laid out for the purpose of the trade of the company." The foreign RWHT incurred by [Getty] is an expense incurred in earning its profits and so should be deductible for Irish tax purposes under section 81(2)(a) TCA 1997, as an expense wholly and exclusively incurred for the purposes of the business activity."

 

The application to state a case

 

16.     By letter dated 8 September 2023, Revenue submitted a notice under section 949AP(2) TCA 1997 ("the 949AP Notice"), that Revenue was dissatisfied with the Determination as being erroneous in law and requiring the Commissioner to state a case for the opinion of the High Court. The 949AP Notice set out no less than eighteen points of law upon which it was said the Commissioner had erred. The eighteenth such point was a complaint that the Determination was based on findings of fact for which there was no evidence and/or that the Commissioner had drawn inference from the primary facts which no reasonable Commissioner could have drawn. Four particular findings of fact were impugned. Revenue requested that the transcript of the hearing be included with the case stated.

 

17.     In a letter dated 15 September 2023 from the Appeals Support Team of the TAC to Revenue, the Commissioner expressed the view that Revenue's Notice may not be in accordance with the requirements of section 949AP(3) TCA 1997.

 

18.     The letter referred to relevant case law and asserted that the 949AP Notice submitted by Revenue was "inter alia, vague, unnecessarily repetitious, and/or not reflective of a point of law capable of forming a question for the High Court." The Commissioner further stated that the particulars in their current form may not be capable of the type of distillation envisaged by the case law, and it was problematic to ascertain that they could form a package. The Commissioner invited submissions on whether the 949AP Notice was in accordance with the statutory requirements, and also on Revenue's request for the inclusion of the transcript with the case stated.

 

19.     Revenue provided submissions dated 6 October 2023. Although it did not accept the Commissioner's criticisms, it identified nine simplified questions on points of law for inclusion in the case stated. It stated that in doing so, it had endeavoured to take into consideration all of the points made by the Commissioner in terms of distillation and packaging. The ninth question proposed was in the following terms:

 

IX.       Was there any, or sufficient, evidence before me on which to base my findings of fact and/or did I draw inferences from the primary facts which no reasonable Commissioner could have drawn?

 

20.     The four particular findings impugned in the 949AP Notice were not contained in the 6 October 2023 submission.

 

21.     The submission also noted that in circumstances where the Commissioner's primary findings of fact were being challenged, it was appropriate to include the transcript. It was stated that this may be a case where it was appropriate to furnish extracts from the transcript.

 

22.     Getty also provided a submission dated 6 October 2023 in which it criticised the 949AP Notice in similar terms to the Commissioner's criticism in her letter of 15 September 2023.

 

23.     The Commissioner furnished a draft case stated to the parties on 19th October 2023. At paragraph 13 of the draft case stated, it is stated as follows in relation to the ninth question proposed by Revenue in its submission, i.e. the question concerning findings of fact:

 

"As stated in correspondence dated 15 September 2023, the Commissioner is concerned that [Revenue] seeks to relitigate the matter in the High Court. Therefore, the Commissioner does not consider that this question is an appropriate question for the High Court as it does not relate to a point of law and where it relates to dissatisfaction as to primary findings of fact, those facts that are being challenged have not been sufficiently identified by [Revenue]. The Commissioner observes that the manner in which the question is posed is entirely generic and does not relate to any specific finding of fact (primary or otherwise), any specific error with regard to findings of fact, nor any explicit contention that findings of fact were unreasonable or unsupported by any evidence. Instead, a generic statement is made. The Commissioner considers that the only avenue open for the High Court to consider the question posed at IX, would be to reconsider the appeal in full as a rehearing and not consider the appeal on a point of law, as set out in the legislation. The Commissioner notes that if [Revenue] is dissatisfied with the Commissioner's consideration in respect of the questions posed, it is open to [Revenue] to make an application to the High Court for an order pursuant to section 949AR(2) TCA 1997 and for the High Court to rehear all the evidence, if it is minded to do so."

 

24.     The draft case stated contained five proposed questions of law. Both parties made submissions on the proposed draft, including proposed amendments to the proposed questions as framed in the draft. Revenue's submission, dated 30 November 2023, made certain observations on the body of the draft case stated. It also noted that the draft case stated did not contain any point of law in relation to the Commissioner's findings of fact. It proposed a new question, question VI, in terms similar, but not identical, to question 18 in the 949AP Notice, with four findings and/or inferences of fact particularised.

 

25.     Getty's submission, also dated 30 November 2023, suggested textual changes to three of the five proposed questions in the draft. Revenue requested an opportunity to respond to Getty's submission, but this was not permitted.

 

26.     In the final case stated, the Commissioner referred to the submissions on the draft case stated and noted Revenue's request to include an additional point of law regarding findings and/or inferences of fact:

14.  [Revenue] now seeks again to include a number of sub questions, as it did in the Notice and in that regard, the Commissioner has considered the sub questions set out at paragraph 11 of [Revenue's] representations to the Draft Case Stated. The Commissioner is of the view that these questions are repetitious or superfluous in terms of the preceding questions posed for the opinion of the High Court and/or lack specificity, such that [Revenue] has not identified the alleged evidential deficits in any detail or the portions of the transcript it seeks to rely on to pose the questions that relate to findings of fact/inferences that no reasonable Commissioner could have drawn. The Commissioner is mindful of the jurisprudence of the Superior Courts that where it is proposed to appeal on the basis that the Appeal Commissioner erred in law in making a primary finding of fact without any evidential basis, it will be appropriate to include the relevant portion of the evidence in the document comprising the Case Stated. Rather, the [Revenue] has sought that the entirely of the transcript comprising three days of hearing, is exhibited to the Case Stated."

 

27.     She concluded that she did not consider that "...the sub questions arising from the Respondent's representations at paragraph 11 are appropriate questions for the High Court for the reasons set out above." She concluded that there was no basis for including the transcript. The Commissioner also accepted some, but not all, of Getty's proposed amendments to the questions in the case stated.

 

 

Motion to amend the case stated

 

28.     In this motion, Revenue seeks a number of amendments to the questions posed in the case stated. Its main focus is on the inclusion of an additional question regarding findings and/or inferences of fact. In addition, Revenue seeks to reverse the amendments to the questions posed which were adopted by the Commissioner at Getty's suggestion. Revenue also seeks inclusion of the transcript with the case stated. Reflecting the position taken earlier in correspondence, just prior to the hearing of the motion, in a letter dated 4 April 2025, Revenue suggested particular portions of the transcript which could be included.

 

29.     I set out below the questions posed in the case stated, with the amendments sought by Revenue highlighted, with proposed additions underlined and proposed deletions struck through:

I.                    Did the Commissioner err in law in determining that the foreign RWHT suffered by the Appellant is deductible under section 81 TCA 1997?

 

II.                 Did the Commissioner err in law in determining that there is no general principle of law which denies a deduction for costs, in this case taxes, in accordance with the prescribed rules as set out under section 81 TCA 1997, where those costs are not calculated after the ascertainment of profit.

 

III.              Did the Commissioner err in fact and/or in law in proceeding to determine deductibility under section 81 TCA 1997 on the basis that the Appellant was not entitled to a credit or deduction for foreign RWHT under the provisions of Part 35 TCA 1997 and Schedule 24 TCA 1997 and/or pursuant to section 77(6B) TCA 1997, in circumstances where the Commissioner specifically declined to determine the availability of such relief as a matter of law and in circumstances where section 77(6B)(b) only applies where a "deduction cannot be made..." and Paragraph 7(3)(c) of Schedule 24 can only grant a deduction (which cannot apply if the amount is deductible already otherwise there would be a double deduction)?

 

IV.               Did the Commissioner err in law in interpreting section 81 TCA 1997 as permitting a deduction of foreign RWHT as being an alternative or complimentary scheme of relief to prior to the application of Part 35 TCA 1997, Schedule 24 TCA 1997 and section 77(6B) TCA 1997 in circumstances where Part 35 TCA 1997 and Schedule 24 TCA 1997 largely address to credit (which is not available to Appellant) as a factual matter and where section 77(6B)(b) only applies where a "deduction cannot be made..."?

 

V.                 Did the Commissioner err in law in failing to attach any significance to section 76A TCA 1997 and the expert accounting evidence adduced by both sides at the hearing of the appeal?

VI.               In relation to the following matters, was there any, or any sufficient, evidence before the Commissioner on which to base the following findings of fact and/or did the Commissioner draw inferences from the primary facts which no reasonable Commissioner could have drawn?

i. The findings and/or inferences that "[at] present, the Appellant cannot avail of a credit or deduction for foreign RWHT withheld on its royalty income" and that "[t]he Appellant is not in a position to derive any benefit from double taxation relief under Schedule 24 TCA 1997 in relation to the foreign RWHT suffered".

ii. The finding and/or inference that "foreign RWHT is one of the costs of doing business for all providers of licensed IP to their customer's resident in certain countries".

iii. The finding and/or inference that "it was not possible for the Appellant to trade in those jurisdictions imposing foreign RWHT without incurring the imposition of the foreign RWHT."

 

30.     The primary relief sought in the motion is an order sending the case stated back to the Commissioner pursuant to section 949AR(2) of the TCA 1997 for amendment. In the alternative, Revenue seeks an order that the court amend the case stated pursuant to its inherent jurisdiction. This latter option is the remedy urged on the court by Revenue.

Statutory provisions

 

31.     The case stated procedure is set out in section 949AP - 949AR of the TCA 1997. In relevant part, those sections provide as follows:

 

949AP(1)         Subject to section 949AX, the Appeal Commissioners' determination in respect of an appealable matter shall be final and conclusive but this is without prejudice to the provisions of this Chapter concerning appeals to the High Court.

(2)        A party who is dissatisfied with a determination as being erroneous on a point of law may by notice in writing require the Appeal Commissioners to state and sign a case (in this Chapter referred to as a "case stated") for the opinion of the High Court.

(3)        The notice referred to in subsection (2) shall—

(a)        state in what particular respect the party concerned is dissatisfied with the determination,

(b)        state in what particular respect the determination is alleged to be erroneous on a point of law,

(c)        be sent to the Appeal Commissioners within 42 days after the date of the notification of their determination under section 949AJ(1), and

(d)        be sent to the other party when it is being sent to the Appeal Commissioners.

(4)        This section shall not apply in relation to an appealable matter where a provision of the Acts (other than this section) provides that the determination of the Appeal Commissioners in relation to that matter shall be final and conclusive.

 

949AQ(1)(a)    A case stated shall contain—

(i)         the Appeal Commissioners' material findings of fact,

(ii)        an outline of the arguments made by the parties,

(iii)       the case law relied on by the parties,

(iv)       the Appeal Commissioners' determination and the reason for the determination, and

(v)        the point of law as set out in the notice referred to in section 949AP(2) on which the opinion of the High Court is sought.

(b)        A party who has set out in a notice, by the means provided for by section 949AP(2), a point of law may not set out an additional or an alternative point of law after the period referred to in section 949AP(3)(c) has elapsed.

(2)        The Appeal Commissioners shall be responsible for the drafting of a case stated and shall not delegate this task to a party (but this is without prejudice to the next following subsection enabling representations in relation to a draft of the case stated).

(3)        Before completing and signing a case stated, the Appeal Commissioners shall—

(a)        as soon as practicable, but not later than 3 months after receiving the notice referred to in section 949AP(2), send to the parties a draft of the case stated that they propose signing, and

(b)        include, with that draft, a notice indicating that each of the parties may, within 21 days after the date on which the draft has been sent to them, make to the Appeal Commissioners representations in writing in relation to the draft,

and each of the parties may make such representations within that period of 42 days accordingly.

(4)        The Appeal Commissioners shall have regard to any representations so made and may, if they consider it appropriate to do so, modify the draft of the case stated before completing and signing it.

(5)        If a party makes representations pursuant to subsection (3), the party shall, at the same time as the party sends the representations to the Appeal Commissioners, send a copy of them to the other party.

6)         The Appeal Commissioners shall, not later than 21 days after the end of the period referred to in subsection (3)(b), complete and sign a case stated and send it to the parties.

 

949AR(1)         The High Court shall hear and determine any question of law arising in a case stated and—

(a)        shall reverse, affirm or amend the determination of the Appeal Commissioners,

(b)        shall remit the matter to the Appeal Commissioners with its opinion on the            matter, or

(c)        may make such other order in relation to the matter as it thinks just,

and may make such order as to costs as it thinks fit.

(2)        The High Court may send the case stated back to the Appeal Commissioners for amendment, in which case—

(a)        the Appeal Commissioners shall amend the case stated accordingly, and

(b)        the High Court shall, thereafter, proceed in one of the ways specified in subsection (1).

 

Arguments

 

32.     Revenue argues that the court has an inherent jurisdiction to amend a case stated, as identified in, inter alia, O'Sullivan v Revenue Commissioners [2021] IEHC 118, Glynn v Revenue Commissioners [2021] IEHC 780, and McNamara v Revenue Commissioners [2021] IEHC 485. It contends that this is an appropriate case in which to exercise that jurisdiction.

 

33.     Revenue emphasises that this is Revenue's appeal and that it should be for an appellant to formulate the grounds of appeal, and that it is not appropriate for a respondent to seek to amend an appellant's grounds. In accepting Getty's suggested amendments to the questions contained in the draft case stated, Revenue contends that this is what the Commissioner has allowed Getty to amend its grounds of appeal.

 

34.     Revenue also highlights that section 949AQ provides that a party dissatisfied with a determination of the TAC may require the TAC to state a case. This, Revenue contends, limits the discretion of a commissioner when formulating the case stated. As stated in oral submissions, "[t]he Appeal Commissioner's role is to distil [the] points of law [from the 949AP Notice] and to recast them into discrete points of law for the High Court, and no more."

 

35.     Revenue relies on the decision in McNamara in particular. In that case, the court (Barrett J) made an order sending a case stated back to the TAC for amendment. In the course of his judgment, Barrett J set out a number of principles derived from the case law on which Revenue relies:

 

"23. (4) It is clear from the judgment of Murphy L.J. in Emerson, that, in what is an appellant's appeal, it falls to him in the first instance to submit a s.949AP(2) notice that is capable of yielding a case stated that complies with  s.949AQ(1)(a) of the Act of 1997 and applicable case-law, most notably Emerson/McGinley.

...

 

25. (5) Following on (1), there will, as a consequence of s.949AQ(1)(a)(v), likely, if not inevitably. in practice be some degree of distillation by the Appeal Commissioners of the information provided in a s.949AP(2) notice when formulating a case stated pursuant to s.949AQ(2) of the TCA 1997.

...

 

27. (6) Notwithstanding (5), to the extent that a point of law as stated in a s.949AP(2) notice is a point of law, s949AQ(1) is clear that "(a) A case stated shall contain–(v) the point of law as set out in the notice referred to in section 949AP(2)". Thus, while the Appeal Commissioners may lawfully engage in the type of distillation process mentioned above when formulating the case stated for the purposes of s.949AQ, they need to be careful that any point of law contained in the case stated that goes to the court is, pursuant to s.949AQ(1)(v) "as set out in the notice referred to in section 949AP(2)".

...

 

29. (7) Though it is possible to read s.949AQ(1)(a)(v) as requiring that a point of law in a case stated must mirror the phraseology of the s.949AP(2) notice, it seems to the court that what the Oireachtas in fact means in this regard is that a point of law as identified in the case stated should properly or fully reflect the relevant point of law as contained in the s.949AP(2) notice."

 

36.     Revenue accepts that it is for the Commissioner to draft the case stated, as expressly provided for in s. 949AQ(2) of the TCA 1997, but contends that the case stated must include any points of law properly identified by it in its 949AP Notice. It contends that it identified points of law at ground 18 of its Notice and that these are not "properly or fully" reflected in the case stated. Insofar as it is suggested that it has sought to expand its appeal from that contained in its 949AP Notice, it rejects that contention. It argues that it was required to identify all its grounds of appeal in that Notice (it suggests that that is why it was so comprehensive). It furnished revised questions at the Commissioner's request in its October submission. Insofar as the question of law regarding findings of fact suggestion in that submission did not particularise findings, the Commissioner misunderstood that as an attempt to expand the appeal. Rather, Revenue contends, that revised question should have been understood as being limited by reference to the 949AP Notice. In its comments on the draft case stated, it again sought to particularise this ground of appeal, in terms which, it says, reflect the 949AP Notice.

 

37.     Reliance was also placed on the decision in Glynn which, inter alia, concerned an application to include the transcript in the case stated. The court (Stack J) set out a number of observations regarding the case stated procedure:

 

73.       Finally, while it is clear from O'Sullivan v. Revenue Commissioners that this Court has a power derived from s. 949AR (1)(c) TCA to amend a case stated, I do not think applications should be the norm as s. 949AP seems to envisage that the process of formulating the questions is primarily a matter for the appellant who expresses dissatisfaction with the determination of the Appeal Commissioner and s. 949AQ (1) (b) provides that no additional or alternative points of law may be set out after the period set out in s. 949AP (3) (b) (which I think must now be read as a reference to s. 949AP (3)(c), as that is a re-enactment of s. 949AP (3) (b) within the meaning of s. 26 of the Interpretation Act 2005). The precise effect of that time limit and its interaction with the power of this Court under s. 949AR (1)(c) do not, however, fall for determination in this application. However, given the existence of the power of this Court as identified in O'Sullivan, presumably it will be appropriate to exercise it from time to time. In particular, where there has been a refusal to include a question of law which properly arises from the Appeal Commissioner's determination, the appropriate course would appear to be to apply to amend.

 

74. This would seem particularly to follow from the requirement in s. 949AQ (1)(v) which provides that the questions of law set out in the s. 949AP (2) notice should be included. In general therefore, the party seeking the case stated should set out the questions of law and the procedures relating to the draft case stated and the representations of both parties as to what should be contained in it would appear to be directed at drafting the remainder of the case stated, albeit that questions of law relating to matters which are outside the jurisdiction of the Appeal Commissioner or which are doomed to fail could properly be refused (Express Motors Assessors v. Revenue Commissioners) and that the Appeal Commissioner can distil or recast the questions set out in the s. 949AP (2) notice (McNamara v. Revenue Commissioners at paras. 25-29). The criteria by which such an application is to be determined where no such application was made in the s. 949AP (2) notice or in subsequent representations to the Appeal Commissioner remain to be decided."

 

38.     The formulation of the questions in the case stated are primarily, therefore, a matter for the appellant. In relation to the amendments to the questions which have been included in the case stated, Revenue argues that it is not appropriate for the Commissioner to amend the grounds of appeal identified by it to, in effect, incorporate the suggestions of the respondent.

 

39.     Getty does not dispute the principles applicable to this type of application. It expressly accepted that the court has jurisdiction to amend a case stated. Since the arguments advanced by Revenue appeared to suggest an error of law by the Commissioner in failing to include in the case stated grounds of appeal identified in its section 949AP Notice, I queried during the hearing whether judicial review was a more appropriate remedy. This had been suggested in correspondence by Getty, but counsel for Getty made clear at the hearing that Getty was not making any point that the remedy sought is more appropriately one for judicial review. When asked what the threshold for intervention by this court was in an application to amend, counsel for Getty suggested that it was "a binary issue" as to whether or not the Commissioner exceeded her jurisdiction and that, if she did, a correction should be made. Counsel for Revenue accepted this characterisation.

 

40.     However, Getty contends that the amendments should not be permitted. In relation to the additional ground of appeal sought to be added, it is suggested that these were rejected as being vague and that Revenue is now seeking to amend its appeal grounds. It contends that the grounds now sought to be added do not reflect grounds in the 949AP Notice. In addition, it points out that Revenue is now seeking to argue that the Commissioner erred in making findings of fact in relation to matters which reflected Revenue's position at the appeal hearing, i.e. that Getty was not in a position to claim relief for foreign RWHT either under Schedule 24 or section 77(6B) TCA 1997, an approach which counsel for Getty describes as "quite extraordinary".

 

41.     Getty does not dispute that a point of law may legitimately arise from a finding of fact, but argues that it is critical to understand what is being alleged, a finding of fact unsupported by evidence, or an inference from facts which no reasonable Commissioner could have made, noting that the legal test for challenging each is different. It contends that Revenue impermissibly seeks to equivocate as to whether it is appealing findings of fact or inferences. This failure by Revenue disentitles it to seek the amendments sought. It argues that this requirement for clarity is all the greater in circumstances where Revenue appears to wish to challenge findings of fact which were not in issue before the Commissioner, i.e. that relief was not available under either Schedule 24 or section 77(6B) of the TCA.

 

42.      If there is no ground of appeal regarding findings of fact or inferences, then no necessity for the transcript could arise. Getty points out that Revenue had never previously identified the portions of transcript it considered relevant and, moreover, at no time prior to the letter of 4 April 2025 had Revenue suggested that any portion of the transcript was necessary for the purpose of determining question V.

 

43.     In relation to the amendments to questions III and IV, Getty argues that this application is unnecessary. As stated in Getty's written submission, the additional words "do no more than reflect the obvious thrust of the statutory provisions to which they relate, and the Determination."

 

Discussion

 

44.     It is convenient to discuss the three elements of the amendment application separately. Some preliminary observations are warranted.

 

45.     It seems clear from the authorities referred to by both parties that the court has jurisdiction to amend a case stated in appropriate circumstances. Although Revenue is, in effect, arguing that the Commissioner has erred in law by not including its proposed question VI, or at least some version of it, in the case stated, Getty has not disputed Revenue's contention that the appropriate remedy is an application under section 949AR(2) rather than judicial review. Nor did Getty contend that the amendments sought by Revenue were only amendments which could properly be made by sending the case stated back to the Commissioner.

 

46.     This appears to be consistent with the approach of the court in O'Sullivan and the, presumably obiter, observations of the court in Glynn that where there is a refusal to include a question of law which properly arises from a determination, the appropriate remedy is to apply to amend the case stated. In light of the parties' agreement as to jurisdiction, for the purpose of determining this application, I accept that to be the position.

 

47.     I also accept Revenue's proposition that where the 949AP Notice identifies a point of law arising from the Determination, that point of law should, in principle, be included in the case stated. There may be limited exceptions. For instance, a commissioner could and should refuse to state a case on a point of law which doesn't arise from her determination.

 

48.     It is primarily for the appellant, in this case Revenue, to identify those points of law. However, it is for the Commissioner to draft the case stated and, accordingly, to draft the questions to be posed for the High Court. It is entirely permissible for a Commissioner to reformulate questions of law identified in a notice under section 949AP TCA 1997 in the interests of clarity or for the purpose of ensuring that the question captures a point of law in issue in the appeal.

 

49.     No point of law should be included in the case stated which was not identified in the 949AP Notice. For instance, an appellant cannot use the opportunity to provide comments on a draft case stated to expand its grounds of appeal.

 

 

                    i.                   Proposed additional question VI

 

 

50.     In its 949AP Notice, Revenue included as a ground of appeal that the Commissioner had erred in law in making findings of fact for which there was no evidence and/or drawing inferences of fact which no reasonable Commissioner could have made. It identified four particular errors. In light of the principles identified above, prima facie that ground of appeal or point of law should have been included in the case stated. It was not.

 

51.      On its face, this would appear to be an error by the Commissioner. However, the position is not entirely straightforward, and in the particular circumstances, Getty contends that the Commissioner was correct to reject the proposed point of law and that this court should likewise reject the amendment.

 

52.     As appears from the factual background set out above, following the Determination, Revenue identified three different formulations of its ground of appeal, in its 949AP Notice, in its 6 October 2023 submission, and in its observation on the draft case stated. As it happens, Revenue has now proposed a fourth iteration of the point of law in its notice of motion. It is, perhaps, unsurprising that the Commissioner may have been concerned about the inclusion of this additional ground when proposed by Revenue in its observations on the draft case stated.

 

53.     As appears from the Commissioner's observations in the draft case stated and the case stated, she was concerned that Revenue was seeking to expand its grounds of appeal, in particular by reference to its formulation of the relevant question in its 6 October submission.

 

54.     Although I agree that, on its face, that formulation did potentially encompass all the findings and/or inferences of fact made by the Commissioner, and it is not difficult to see how the Commissioner and Getty might have perceived it as such, I accept Revenue's submission that, as a matter of law, it could never have been such an enlargement - since Revenue was restricted to the points of law identified in the 949AP Notice - and I accept Revenue's position that it was never intended as such. As explained in the observations on the draft case stated, Revenue was "endeavouring to limit the level of detail involved with this particular question" in light of the Commissioner's letter of 15 September 2023. It was noted that the same form of words had been adopted for use in another recent case stated.

 

55.     In any event, the observations on the draft case stated expressly limited the ground of appeal again. A suggestion that Revenue was trying to enlarge its appeal was and is not, therefore, a basis for excluding the question.

 

56.     Getty suggests other reasons for rejecting it. First, it complains that Revenue has at all times failed to identify whether it is complaining about findings of fact and/or inferences of fact. I do not think that this is a valid complaint. It is, in general, acceptable to plead these in the alternative, a fact expressly acknowledged in Glynn:

 

"54.     In my view it was for Revenue, in drafting its notice pursuant to s. 949AP (2) to identify with sufficient precision the basis of the appeal, and in particular to identify whether it is said that any error in assessing the evidence is said to be an error of law by reason of the fact that a finding of primary fact was made without any evidential basis or whether it is said to be an inference drawn which was either based on a misinterpretation of documents or was one which no reasonable Commissioner could draw.  Insofar as it can be difficult to draw that distinction, an appellant can set out the alleged errors of law in the alternative, but this does not relieve an appellant from stating clearly how the error of law is said to arise, and whether the party seeking the case stated wants to rely on these alternative points.  

 

57.     Second, Getty argued that the alleged errors identified in the 949AP Notice and subsequent submissions were vague and the particular findings of fact insufficiently identified. I think that this criticism is unwarranted. Certainly, by the time of its submission on the case stated, Revenue had identified by paragraph number and quotation the particular findings of fact which were in issue. Insofar as it was suggested that Revenue had failed to identify the portions of the transcript relevant to the impugned findings, this is a little unfair. It is not always possible for an appellant to identify relevant evidence where its complaint is that the evidence is not there. In its 6 October 2023 letter, Revenue identified that this might be an appropriate case for including extracts of the transcript (albeit that it did not identify those extracts).

 

58.     Getty also argues that Revenue should not be permitted to appeal findings of fact which were not in dispute in the appeal before the Commissioner which, Getty argues, is the case with at least the first finding of fact which Revenue wishes to impugn in an amended case stated, i.e. that Getty is not in a position to avail of a credit or reduction for foreign RWHT or derive any benefit from relief under Schedule 24 TCA 1997.

 

59.     Revenue sought to explain its position in argument to the court. I do not wish to trespass unduly into matters which will, irrespective of the outcome of this application, require to be addressed in any case stated, but it is necessary to touch on this briefly. Revenue's position, as I understand it, is that it agreed that Getty was not entitled to relief under Schedule 24 or section 77(6B) of the TCA 1997, as reflected in the Determination. However, it contends that this was only so because Getty was loss-making and that the situation would be different if Getty had been profitable. It contends, therefore, that the Commissioner misinterpreted the significance of the fact that Getty couldn't avail of relief under these provisions, and incorrectly interpreted section 81 of the TCA 1997 through the prism of a loss-making enterprise.

 

60.     During the hearing, I suggested to counsel for Revenue that this was a question of law and, moreover, a question of law already encompassed by questions III and IV of the case stated. Counsel suggested that it was capable of being considered a question of law, but that Revenue apprehended that, when making that argument, it might be met with a response that it had not sought to challenge the underlying finding of fact.

 

61.     The finding of fact in issue is that Getty was not in a position to avail of relief. That is still not disputed by Revenue. The Commissioner's findings of fact do not suggest that, had Getty been profit-making it could not have availed of relief. More importantly, the Commissioner's findings do not preclude Revenue pursuing the arguments comprised in questions III and IV. In the case stated, the Commissioner suggested that the questions proposed by Revenue in its observations on the draft case stated were "superfluous". In relation to the question regarding the first of the findings of fact sought to be impugned, I agree. If Revenue's apprehension was that they would be precluded by the Commissioner's findings of fact from arguing that a profit-making Getty could have availed of relief under Schedule 24 or section 77(6B) of TCA 1997, then it has become apparent in the course of this motion that that is not the case. There is, accordingly, no basis to amend the case stated to include this question.

 

62.     As regards the other two findings or inferences of fact which Revenue seek to be able to challenge in the case stated, Getty suggests that the second finding sought to be impugned, that foreign RWHT is one of the costs of doing business for all providers of licensed IP to their customers resident in certain countries was not a finding of fact made by the Commissioner at all. The same ground was included in the 949AP Notice where the words "all providers" were highlighted. In Revenue's observations on the draft case stated, it is identified as a finding by the Commissioner by reference to paragraph 53 of the Determination. But, as noted by Getty, the relevant part of paragraph 53 is a recitation of Getty's arguments. The Commissioner does not appear to have engaged with this particular point of law directly where she rejected in toto Revenue's attempt to identify errors of law in relation to factual matters, but it is clear that a commissioner is entitled to refuse to state a case on an issue which doesn't arise in an appeal. If the Commissioner made no finding of fact that foreign RWHT was one of the costs of doing business for all providers, then there can be no basis for stating a case to the High Court regarding such a finding. As with the first finding, if Revenue's concern was that Getty might argue that there was such a finding of fact, that concern falls away in light of Getty's position on this motion. No amendment of the case stated is required.

 

63.       However, I do agree that an amendment is appropriate in relation to the third finding of fact which Revenue seeks to impugn, that it was not possible for the Appellant to trade in jurisdictions imposing foreign RWHT without incurring the imposition of the foreign RWHT. In the observations on the draft case stated, this is identified by reference to paragraph 125 of the Determination and is, accordingly, a finding made by the Commissioner. The finding is not clearly identified in the 949AP Notice. However, it is, I think, a subset of the ground which was advanced in relation to all providers. Question 18.iv of the 949AP notice includes a challenge to the purported finding regarding foreign RWHT being a cost of doing business to all providers. It is explained that "[c]learly providers of licensed IP who operate through a branch or permanent establishment in the relevant country do not incur foreign RWHT but rather are subject to corporation tax or income tax in the normal way."

 

64.     It is acceptably clear from question 18.iv that Revenue disputes that foreign RWHT was an inevitable cost of doing business, whether for all providers or for Getty, but rather was a consequence of the way that a business was structured. The formulation now proposed can fairly be regarded as a distillation or packaging of an issue identified in the 949AP Notice. It is not entirely clear that this is a question of fact rather than law, but it seems to me that the inclusion of the proposed question VI(iii) as one of the points of law for determination in the case stated reflects, in substance, points identified in the 949AP Notice and would ensure that the issues which actually arise on the case stated could be fully ventilated.

 

 

ii.         Inclusion of the transcript

 

 

65.     The authorities make clear that the inclusion of a transcript with a case stated is the exception rather than the norm. However, where it is alleged that there was no evidence to support a finding of fact made by a commissioner, it seems to me that such a point could not safely be determined without reference to the transcript. In this regard, if the inclusion of an alleged error of law that there was no evidence to support a finding of fact that it was not possible for Getty to trade without incurring foreign RWHT is to be permitted, then it is in Getty's interests to have available to it relevant portions of the transcript to show that there was such evidence.

 

66.     As noted in Glynn, however:

 

"72.     However, had I found that it was appropriate to include the transcript in the case stated, it may well have been necessary to remit it in order to identify those portions of the transcript which would be required in order to deal with a legal issue which addressed squarely the alleged absence of any evidence to support primary findings of fact. This is because it would appear to me that the identification of the relevant portions of the transcript would seem to be a more appropriate task for the arbiter of fact (in the absence of agreement between the parties as to which portions of the evidence should be included or exhibited)."

 

67.     I agree. There is no basis upon which this court could determine which extracts from the transcript were relevant for determining whether there was evidence supporting this one finding of fact (if indeed it is a finding of fact). The inclusion of the entirety of the transcript would clearly be excessive. In the absence of agreement on what, if any, portions of the transcript are necessary to append to the case stated in light of this judgment, I will make an order remitting the case stated to the Commissioner pursuant to section 949AR(2) for the purpose of amending it by including relevant portions of the transcript.

.

68.     Insofar as Revenue, in its letter of 4 April 2025 sought, for the first time, to suggest that portions of the transcript are necessary for the purpose of determining Question V, this can only be understood as an attempt to impermissibly expand its grounds of appeal. Question V is framed as a question of law and, therefore, no transcript is necessary for that question to be addressed, notwithstanding that it is a question of law relating to the treatment of evidence. The question can be determined by reference to the contents of the case stated and the Determination.

 

iii.        Amendments to questions III and IV

 

69.     As noted above, Getty describes the amendments which the Commissioner had made to questions III and IV in light of the observations on the draft case stated as doing "no more than reflect the obvious thrust of the statutory provisions to which they relate, and the Determination", a suggestion with which it is hard to quibble. The additional words in each question merely provide some statutory context to the questions posed.

 

70.     Revenue's complaint is chiefly that it should not have its grounds of appeal drafted by its opponent and that the inclusion of the extra wording in both questions, in effect, as it was put at the hearing, puts Getty's words in Revenue's mouth, perhaps colouring the issue raised. There is some force to this, but it is not to be supposed that the High Court, in determining a question of law on a case stated, will easily be distracted by any gloss thus applied in the formulation of that question.

 

71.     I agree with Getty that the additional words do not affect the issues which require to be determined in the case stated and that an amendment would have little consequence.

 

72.     As set out above, the identification of the grounds of appeal are a matter for the appellant (see Glynn and McNamara). Drafting of the case stated, however, is a matter for the Commissioner (s. 949AQ(2)). A draft of the case stated must be given to the parties and an opportunity afforded to make representations on that draft (s. 949AQ(3)). There is nothing in the legislation which suggests that it is impermissible for a respondent to a proposed case stated to make representations regarding the points of law identified in a draft case stated.

 

73.     There was, therefore, nothing improper in Getty making the suggestions it did on the draft case stated. Nor was there anything improper in the Commissioner having regard to those representations. She was required to do so.

 

74.     In those circumstances, I cannot identify any error of law by the Commissioner in modifying, as she did, the wording of questions III and IV in a manner which reflected some, though not all, of Getty's proposed amendments. The omission of the reference to error of fact in question III reflects that the issue raised can only be regarded as a question of law, as accepted by Revenue. The addition of the statutory context may well reflect the Commissioner's belief that the questions as now framed better reflect the issues in dispute in the appeal and, in circumstances where the question posed reflects the point of law identified in the 949AP Notice, she was entitled to reframe the question as she did. In light thereof, this would not be an appropriate case for the court to intervene by making the amendments sought in the notice of motion.

 

Conclusion

 

75.     For the reasons set out above, I conclude as follows:

 

76.     The application to amend questions III and IV of the case stated is refused.

 

77.     The application to amend the case stated by including additional questions in the terms set out at paragraph 1.VI(i) and 1.VI(ii) of the notice of motion is refused.

 

78.     I will accede to the application to amend the case stated by including an additional question in the case stated in the terms set out at 1.VI(iii) of the notice of motion.

 

79.     In the absence of agreement between the parties regarding the portions, if any, of the transcript which require to be included with the case stated in light of the amendment, I will remit the case stated to the Commissioner pursuant to section 949AR(2) for the purpose of making the necessary determination as to what portions of the transcript should be included.

 

80.     I will list this matter at 10 am on 16 May 2025 for the purpose of addressing any matters arising from this judgment.

 

 

 

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