Revenue Powers Group. Report to the Minister for Finance

Transcription

1 Revenue Powers Group Report to the Minister for Finance November 2003 BAILE ÁTHA CLIATH ARNA FHOILSIÚ AG OIFIG AN tsoláthair Le ceannach díreach ón OIFIG DHÍOLTA FOILSEACHÁN RIALTAIS, TEACH SUN ALLIANCE, SRÁID THEACH LAIGHEAN, BAILE ÁTHA CLIATH 2, nó tríd an bpost ó FOILSEACHÁIN RIALTAIS, AN RANNÓG POST-TRÁCHTA, 51 FAICHE STIABHNA, BAILE ÁTHA CLIATH 2, (Teil: /35/36/37; Fax: ) nó trí aon díoltóir leabhar. DUBLIN PUBLISHED BY THE STATIONERY OFFICE To be purchased directly from the GOVERNMENT PUBLICATIONS SALE OFFICE, SUN ALLIANCE HOUSE, MOLESWORTH STREET, DUBLIN 2, or by mail order from GOVERNMENT PUBLICATIONS, POSTAL TRADE SECTION, 51 ST. STEPHEN S GREEN, DUBLIN 2, (Tel: /35/36/37; Fax: ) or through any bookseller. Wt.. 3,000. 2/04. Cahill. (M83914). G.Spl. \10.00

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3 Chairman Membership Mr Justice Francis Murphy, formerly of the Supreme Court. Members Ms Julie Burke, Solicitor specialising exclusively in tax disputes and tax legislation. Mr James Jennings, Partner in Jennings and Co, Chartered Accountants, Castlebar. Ms Suzanne Kelly, Barrister at law, President of Institute of Taxation. Mr Sean Moriarty, Assistant Secretary, Office of the Revenue Commissioners. Mr Michael Mullins, Partner, HLB Nathans, Chartered Accountants, Cork & Dublin. Mr Roderick Ryan, Executive Director, Glen Dimplex. Secretary Ms Stephanie O Donnell Secretariat Mr Eamon Healy Mr David Owens Ms Anne Sheridan (to July 2003) Ms Sighle de Barra (from July 2003) Ms Sinead O Gara Mr Karl Foster iii

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5 Table of Contents Preface: Introduction and Background xi 1. Terms of Reference xi 2. Revenue Powers xi 3. Development of Revenue Powers xi 4. Review of Powers xii 5. Workings of the Revenue Powers Group xii 6. Acknowledgements xii Chapter 1: Executive Summary 1 1. Main Statutory Powers Reviewed 1 2. Overall Conclusions 1 3. Recommendations 2 4. Effectiveness of Existing Powers (Chapter 2) 2 5. The Appropriate Balance of Revenue Powers (Chapter 3) 2 6. Streamlining of Existing Powers (Chapter 3) 5 7. Need for Further Powers (Chapter 4) 5 8. Appropriate Appeal or Review Mechanisms on Powers (Chapter 5) 6 9. Comparable Powers in other Jurisdictions and Regulatory Authorities (Chapter 6) General Considerations 8 Table A: Use of Non-Routine Powers 11 Chapter 2: Effectiveness of Revenue Powers Introduction Relevant Factors 13 Changes in Revenue Organisation 14 Restructuring 15 v

6 3. Usage and Effectiveness of Powers mainly used in Audits 16 Breakdown of Audit, Investigation and Prosecution Powers 16 Numbers of Audits Carried Out Number of audits, audit yields and revenue yields Observations 18 Average Yield per Audit 19 Underlying Factors behind Audit Yield Variances Usage and Effectiveness of Powers mainly used in Investigations 21 Use of non-routine powers: (to date) 22 Special Investigations 24 DIRT/BNR and Audit Investigations Yields Aggregate of settlements received from special investigations (\m) Usage and effectiveness of powers used in Prosecution 25 Prosecution for non-filing 25 Results of Prosecution of Income Tax Non-Filers 1997 to Revenue s role in investigation with a view to prosecution 26 Prosecution for serious tax evasion 26 Prosecuted cases of serious tax evasion 27 Civil Penalties and their interaction with Prosecutions 27 Deterrent Value of Prosecution and Civil Penalties The Group s Conclusions regarding the Effectiveness of Revenue Powers 29 Audits and Investigations 30 Prosecutions 30 Chapter 3: Appropriate Balance of Powers Safeguards Authorisations 31 Introduction 31 Restraints on Powers 31 Non-routine powers 32 S900 to S901 Power to call for production of books, information etc. and Application to the High Court: production of books, information etc. 33 S904A Power of Inspection: returns and collection of appropriate tax 33 S906A Information to be furnished by financial institutions 33 S909 Power to require return of property 35 Other Powers from Chapter 4 36 S906 Authorised officers and Garda Síochána 36 Search and Authorisation 37 vi

7 2. Audit, Investigation and Mitigation 40 Introduction 40 Audit Issues Mitigation of penalties and issues concerning interest 41 Comprehensive Audits Interest and Penalties as proportion of tax yield 42 Bogus Non-resident Cases Penalties and Interest 43 Published Cases as percentage of Total Settlements 44 Mitigation of Penalties Recovery of Civil Penalties Interest 47 Compromise of Interest Rate Voluntary Disclosure Prosecution and Voluntary Disclosure Publication of Names and Prosecution of Offenders Disclosure of Information by Revenue to other Official Agencies Power to Remove and Retain Records Compliance with Orders Streamlining of Existing Powers 56 Selected Revenue Powers 58 Audit Powers 58 Investigation Powers 59 Prosecution Powers 59 Chapter 4: Need for Further Powers Introduction Automatic Reporting of Information by Third Parties Automatic provision of information on interest payments on deposits in financial institutions and income earned on other financial transactionsreferenced by PPSN number 63 De Minimis Issue 64 vii

8 4. Automatic reporting of Payments made to taxpayers by Government Departments referenced by PPSN number Offshore Assets: Powers to establish beneficial ownership of offshore assets over which a resident entity has control Payments for Services Provided from Countries with which Ireland does not have a Tax Treaty 66 Sone other Issues Considered in this General Context Additional Prosecution Powers 68 Introduction 68 History and Context of Prosecution Powers 68 Search and Production Powers 70 Power of Arrest 71 Power to Obtain Information under Oath 72 Access to Telephone Records in a Criminal Investigation 72 Chapter 5: Appeals and Reviews of Revenue Powers Existing Review and Appeal Mechanisms Other Relevant Examinations International Approach Administrative Review 76 Internal Administrative Reviews 76 External Administrative Reviews 77 Revenue Internal and External Reviews Experience of External Reviewers Appeal Commissioners 79 Issues concerning the Appeal Commissioners The Ombudsman 81 Complaints made to the Ombudsman about Revenue Judicial Review Conclusions and Recommendations 82 Chapter 6: Comparable Powers in Certain Other Jurisdictions and Other Regulatory Authorities Powers in other Jurisdictions 85 Issues for Comparative Analysis 85 Type of Tax Administration 86 Obligation to File Returns 87 viii

9 2. Information Powers 87 Access to First Party Information 87 Time Periods for retention of books and records by the taxpayer 88 Access to Third Party Information 89 Professional Privilege Audit and Investigation of Tax Liabilities 89 Power of Entry and Search 89 General preconditions for Entry 90 Requirement for Court Order or Warrant to Search 90 Seizure and retention of books and records 92 Appeals 93 Penalties and Interest: Power to Mitigate or Compromise 93 Voluntary Disclosure 95 Prosecution of Tax Offences 96 Other Sanctions Comparable Powers in Regulatory Authorities 98 Regulatory Authorities 98 Issues for analysis 98 Power to carry out investigations 99 Power to Require Information from Third Parties 99 Power to Require Production of Records and Information 99 Transition to Investigation 101 Investigation with a View to Prosecution 101 Mitigation and Penalties 102 Maximum Combined Levels of Fines and Penalties 103 Power of Entry and Search 103 Power to Seize Document and Records 105 Appeal Mechanisms 105 Power of Arrest and Detention 106 Power to Summon Witnesses 106 Other Measures 107 Chapter 7: Full List of the Group s Recommendations 109 ix

10 Appendices A. Provisions in European Convention On Human Rights Act B. Outline of Eskort system 121 C. Irish Response to the Questionnaire circulated to Other Jurisdictions 123 D. List of Contributors to Review 133 E. List of Sections referred to in Submissions 135 F. Revenue s Statutory Powers to establish tax liabilities 139 G. Extract from OECD report Improving Access to Bank Information for Tax Purposes 2000: Table H. Extract from OECD report Taxpayers Rights and Obligations 1990: Control and Search Powers of Tax Authorities Tables 9A and 9B; Administrative Discretion of Tax Authorities Table I. Current Sources of Information to Revenue 155 x

11 Preface: Introduction and Background 1. Terms of Reference 1.1. The Revenue Powers Group was established by the Minister for Finance, Mr Charlie McCreevy, TD in March 2003 with the following terms of reference: (1) To enquire into the main statutory powers available to the Revenue Commissioners to establish tax liabilities including investigation with a view to prosecution of Revenue offences. (2) To advise the Minister for Finance as to the effectiveness of these powers; the appropriate balance between the need to secure the revenue of the State and the rights of the taxpayer; whether there is a need for further powers or streamlining of existing powers; comparable powers in other jurisdictions and other regulatory agencies in the State; The appropriate appeal or review mechanisms that should be applied in the exercise of these powers. (3) To report on the results of their enquiries and considerations and to make such recommendations as they think fit to the Minister of Finance by 31 October Revenue Powers 2.1. Broadly speaking the statutory powers of the Irish Revenue Commissioners are characteristic of those of other tax administrations 1, i.e. general information powers including the power to require information from the taxpayer and from third parties, the power to require returns from the taxpayer and third parties, the power to require production of records, the power of entry, search and removal of records and the power to mitigate penalties in certain circumstances. As in other countries, the legislation provides for interest charges and a variety of fines, surcharges and penalties in the case of late or inaccurate returns to the Revenue Commissioners by the taxpayer and/or third parties. The legislation also provides for offences and penalties in the case of certain other acts or omissions. 3. Development of Revenue Powers 3.1. Key developments in revenue powers have occurred in 1976, 1983, 1992 and 1999 with further strengthening in the period These developments were driven both by 1 See Taxpayers Rights and Obligations A Survey of the Legal Situation in OECD countries, OECD There are variations between administrations in terms of preconditions and restraints on the powers. xi

12 changes in the way Revenue operates and, in 1992 and 1999, by public revelations of systematic tax evasion. Whereas Value Added Tax a self-assessed tax has been in place since 1972, it was not until 1988 that the self-assessment approach began to be extended to direct taxes. There has been a consequent increase in outdoor activity by Revenue Officers, 2 initially involving the inspection of underlying records to verify VAT returns and later extending to on site visits to inspect, verify or investigate taxpayer returns of direct taxes liability The use of outdoor powers to verify returns, inspect records or investigate selected cases underpins the self-assessment system. In addition, the selection of returns for verification is increasingly influenced by technological developments. The use of computerised systems to match taxpayer information, including information from third party returns, has increased in order to improve the targeting of non-compliant taxpayers. Many of Revenue s current powers address the requirement to obtain information and the need to verify various returns by having access to the underlying records. 4. Review of Powers 4.1. The Minister for Finance, Mr Charlie McCreevy, T.D., undertook to keep the operation of the powers under review when providing for increased powers in the 1999 Finance Act. The Minister has stated that there is an ongoing need to take regular stock of the remit of Revenue powers in order to assure the Government and the public at large that these are meeting the needs of the system and are being used fully as the Oireachtas intended In the context of the establishment of the Revenue Powers Group, the Minister stated: The additional powers I gave to the Revenue Commissioners since becoming Minister are very significant. In the last month I set up a Revenue Powers Group to review those powers, to assess a number of matters, including an evaluation of whether the balance is just right Workings of the Revenue Powers Group 5.1. The Group convened in April 2003 and met 14 times between April and November These meetings included four day-long sessions, on 26 June, 8 September and 6-7 October, to concentrate on specific issues. Advertisements inviting submissions to the Group were placed in the national newspapers on 29 April and 2 May The Group also wrote to a number of professional and public bodies. The Group consulted a number of other tax administrations 5 and other regulatory authorities regarding their powers. 6. Acknowledgements 6.1. The Group wishes to thank the members of the public and the professional and public bodies who made submissions. 6 Although a minority of issues raised were outside the terms of reference, all submissions helped the Group in their enquiry. The Group also wishes to express 2 The term audit first appears in TCA 1997: S904A 3 At the annual dinner of the Institute of Taxation on 28 February 2003, the Minister for Finance said: The opportunity presents itself now to perform such a stock-taking exercise to ensure that the balance and strategic direction we have put in place is right. 4 Reply to Dáil question concerning tax inspections: 8 April UK, New Zealand, Australia, Canada, Sweden, USA and the Netherlands. 6 See acknowledgements at Appendix D. xii

13 its appreciation to the tax administrations and the Irish regulatory bodies 7 who completed questionnaires and provided follow up material. A number of other persons and public bodies provided valuable assistance to the Chairman and Secretariat in clarifying certain issues. The Revenue Commissioners were asked for briefing material on numerous occasions and always gave their full cooperation even where a request was made at short notice Most of all, the Group as a whole, and the Chairman in particular, wishes to record their thanks to Ms. Stephanie O Donnell and the other members of the Secretariat who procured, analysed and presented to the Group the arguments made to, and the information required by, the Group; and drafted and re-drafted the many papers and proposals required to advance the work of the Inquiry. The Group is appreciative of the outstanding work which was done by the Secretariat and the good grace and good humour with which they worked the unsociable hours which were required to perform their task Finally, the Group found the Consultation Paper issued by the Law Reform Commission in June 2003 on the case for a Revenue Court and Fiscal Prosecutor to be an invaluable up-to-date reference source on the development of the Irish Tax System The Group wishes to note that this review does not represent a legal opinion on any of the powers considered. 7 Competition Authority, Office of the Director of Corporate Enforcement, IFSRA, the Gárdaí, CAB, Companies Registration Office and the Department of Social and Family Affairs. xiii

14 Members of Revenue Powers Group Signed: Mr. Justice Francis Murphy Formerly of the Supreme Court. (Chairman) Ms. Julie Burke Solicitor, J. M. Burke Solicitors Mr. James Jennings Partner, Jennings and Co. Chartered Accountants. Ms. Suzanne Kelly Barrister at Law, President of the Institute of Taxation Mr. Sean Moriarty Assistant Secretary, Office of the Revenue Commissioners. Mr. Michael Mullins Tax Partner, HLB Nathans Chartered Accountants. Mr. Roderick Ryan Executive Director, Glen Dimplex. xiv

15 CHAPTER 1 Executive Summary 1. Main Statutory Powers Reviewed 1.1. The Group identified approximately 120 sections 8 containing powers to establish tax liabilities. The Group concentrated its enquiries and considerations on: The powers set out in Chapter 4 Part 38 of the Taxes Consolidation Act 1997: Revenue Powers; Powers raised in submissions to the Group; 9 Issues arising in relation to third party information powers under which information is disclosed to Revenue through reporting obligations; Interest and penalties provisions 10 because of their role in settlements given Revenue s power to mitigate. Scope of the Terms of Reference 1.2. The Group considered that collection powers and powers relating to the customs and excise area were excluded by the terms of reference. 2. Overall Conclusions 2.1. Revenue powers in Ireland are generally in line with international norms. The Group accepted the need for far-reaching Revenue powers 11 provided that adequate safeguards apply to their use. 12 The legislation should carry the key restraints on the use of the powers, while it is accepted that these may be amplified in codes of practice and operations manuals. 13 In this regard the Group recommends a number of legislative provisions which should enhance the safeguards for the taxpayer including additional appeal provisions The Group considers that streamlining of the powers legislation is necessary to make clear the gradations in powers appropriate for use in audit, investigation of tax liabilities and 8 See Appendix F. 9 See list of powers mentioned in submissions at Appendix E. 10 Including publication. 11 Submissions to the Group did not seek to remove the powers of access to the financial institutions, introduced in 1999, but commented instead on the need for safeguards. 12 A small number of cases of inappropriate behaviour in the confrontational use of the powers were reported. 13 There was a general appreciation, endorsed by the Group, of the quality of Revenue s endeavour to develop administrative safeguards in regard to use of the powers. 1

16 investigation with a view to prosecution and the attendant safeguards, authorisations and appeal provisions.the Group considers that the existing revenue powers are adequate to allow Revenue to carry out its task with the exception of a limited number of areas. The Group recommends that the jurisdiction of the Appeal Commissioners be extended regarding the use of the powers. The Group also recommends some reform of the interest and penalties regime. Finally, the Group recommends that the remaining legacy cases, as defined at below, should be treated in line with the practice heretofore. 3. Recommendations 3.1. The Group s recommendations are summarised hereunder using the following headings: Effectiveness of Existing Powers; Appropriate Balance of Revenue Powers; Streamlining of Existing Powers; Need for Further Powers, including powers regarding investigation with a view to prosecution; Appropriate Appeal or Review Mechanisms; and Comparable Powers in other Jurisdictions and other Regulatory Agencies in the State in line with the terms of reference. 4. Effectiveness of Existing Powers (Chapter 2) 4.1. Overall the Group considers that Revenue powers are necessary not only to uncover evasion but also as a deterrent to evasion in the first place. However, it is difficult to assess a correlation between the existence of a power and its effectiveness on compliance or on the Exchequer s overall yield from taxation. That being said, Revenue would not have been able to conduct its investigations into evaded DIRT and tax on the underlying deposits without certain powers introduced in the 1999 Finance Act to access information in financial institutions (see Chapter 2) investigations which have brought in over \800 million. There is now an understanding that Revenue can access financial and other records more readily than before and this has contributed to greater levels of disclosure both prompted and unprompted. The Group makes some recommendations in regard to the ongoing management and measurement of the effect of powers. 5. The Appropriate Balance of Revenue Powers (Chapter 3) 5.1. To balance better the need to secure the revenue of the State with the rights of taxpayers additional legislative safeguards are proposed in the following areas: New objective preconditions for the use of some of the more intrusive powers. New safeguards on certain powers, e.g. search, removal of records. Legislating for number of areas in which Revenue has a developed system of practice under the power to mitigate, e.g. penalty regime and voluntary disclosure, with some amendments to the existing provisions in the 2002 Code of Practice. Additional appeal to the Appeal Commissioners on areas concerning the exercise of powers including the interest and penalties area. Changes in regard to access to third party information. 2

17 5.2. Specific proposals include: Search The removal of the power to search any premises without a warrant A requirement to distinguish in a warrant between a private dwelling and a business premises 15 and between a search in relation to tax liability and search in an investigation with a view to prosecutions More limited criteria for search warrant applications made under current S905(2A). Removal of Records Specific statutory limit on the period for which seized records may be retained 16 in a non-prosecution case and prescribed time limit for provision of copies to taxpayer in prosecution case. Penalty and Interest Regime There is a need for a codified structure for interest and penalties to be statutorily defined. The Group considers that the interest and penalty regime in the legislation should be brought into line with Revenue s 2002 code of practice, with some amendments. This would involve: Abolition of 2% per month penalty interest rate and similar tax geared civil penalty of 200% of tax liability from the legislation The existing practice be amended to introduce: Small reduction in interest rate from 12% to 10% to ensure that the rate continues to act as a deterrent but is not penal. New category of innocent error 17 linked to track record in past 3 years. Mitigation of interest to a rate equivalent to the time value of money in defined circumstances. 18 Appeal to Appeal Commissioners on categorisation of penalties 19 and on interest payable in certain defined circumstances. A limit on the period for which interest will be levied, in line with the approach followed in BNR cases Power of search of business without warrant exists in S903, S904, S905(2)(a)(iv)(B). Arguably, it could be used in a private residence if domestic workers on PAYE were employed. 15 Power to search premises without a warrant exists in 6 of the 7 jurisdictions studied; conversely, power to search a private dwelling is subject to warrant in 6 of the 7 jurisdictions. Searches are subject to objective preconditions in a number of jurisdictions. 16 Statutory time limits on retention of seized records in Sweden, New Zealand, Canada; administrative limit in UK. 17 UK recognises category of innocent error. 18 Time value of money as represented by consumer price index to apply (1) where late payment resulted from innocent error as defined (2) where a taxpayer made a genuine but mistaken interpretation of a tax provision and a substantial interest charge was now due as a result of a determination of an appeal. 19 The Group notes the view of the Law Reform Commission that an appeal to the Appeal Commissioner is probably necessary to ensure conformity with the requirements of the European Convention on Human Rights. The Group proposes a particular formula where there is no agreement on the penalty category. 20 Par 4.3 of Statement of Practice SP Gen 01/01; this would involve a widening of practice. 3

18 Ring fencing from new provisions of cases currently under investigation, i.e. legacy cases, defined as follows: Clerical Medical International/National Irish Bank, Ansbacher, BNR and any disclosure arising as a result of a current investigation by the Revenue Offshore Assets Group in respect of the taxpayer. 21 Provision for Revenue to sue for a lesser amount of the penalty. Voluntary Disclosure Existing statutory reference 22 should be expanded to include a provision that full voluntary disclosure should carry safety from prosecution 23 for tax offences and provision for an appeal to the Appeal Commissioners There should be no disclosure of information provided in a voluntary disclosure except as may be required by law The legislation should provide for an appeal to the Appeal Commissioners against any determinations by Revenue in regard to a voluntary disclosure. Access to Third Party Information A taxpayer who is the subject of an investigation 24 should be invited to mandate information in advance of a request to a financial institution; 25 Revenue to make application to the High Court if mandate not provided. Unreasonable Requests for Information There should be an appeal to the Appeal Commissioners to determine disputes as to the relevance of documents and information sought by authorised officers. 26 Length of Audit To protect against unjustified disruption to taxpayers there should be limits on the length of audit and an appeal to the Appeal Commissioners against breaches of the limit or an appeal to stay an audit to ensure that audits do not go on for an unreasonable length of time. Publication The threshold for publication should be increased from \12, to not less than \50,000 as the current limit, which was set twenty years ago, is considered too low and to lessen the impact of the penalty in material cases. 21 As regards the interest roll-up, this would apply to investigations underway or announced. 22 Currently referred to with regard to exemption from publication S1086 TCA Immunity provided in USA if no fraud money laundering or criminal activity determined; UK if unprompted and Netherlands if full voluntary disclosure (all provided administratively except Netherlands). 24 Under s906a 25 This practice applies in investigations by the Department of Social and Family Affairs. 26 i.e. beyond the records required in a particular investigation; automatic reporting should also help to reduce demands in this regard. 27 Comprising tax, interest and penalties. 4

19 6. Streamlining of Existing Powers (Chapter 3) 6.1. The Group made a distinction between: the more invasive powers appropriate to investigation and prosecution cases which impact on a smaller percentage of taxpayers 28 and powers which are regularly employed in a standard audit to establish tax liabilities and which thus have the potential to impact on a larger group of taxpayers As a result of this distinction the overall approach to streamlining which they recommend is that: The gradation of powers from less intrusive to more invasive should be made transparent in the legislation in line with the transitions from audit to investigation and investigation with a view to prosecution The legislation should specify what third party supervision and internal revenue authorisation levels 29 are required to activate the more intrusive powers Existing prosecution powers 30 should be separated from the other powers. This will protect the rights of the taxpayer but should also help with the alignment of procedures to ensure that evidence collected in a revenue investigation does not become tainted by selfincrimination and therefore inadmissible in a criminal trial. Also there should be an appropriate power of search under warrant for use in criminal cases The appropriate avenue of appeal applying to each of the three categories above should be clear from the legislation. 7. Need for Further Powers (Chapter 4) 7.1. The Group recommends a number of new provisions as follows: General Provision Explicit positive statutory statement of Revenue s right to obtain all relevant document and records 31 should be provided. Third Party Information Powers The automatic provision of information on (i) interest payments on deposits in financial institutions 32 and income earned on other financial transactions 33 and (ii) payments made to taxpayers by Government Departments, 34 referenced by PPSN number, subject to 28 See Table at end of Executive Summary for usage of non-routine powers. 29 A number of sections already do this e.g. S901, S902A, but other significant powers are subject only to internal instructions for authorisation in the Revenue Operations Manual e.g. S900, S904A, S905 (apart from S905(2A) and S905(2)(e)). 30 currently S905(2A) and S908A TCA 1997 are used exclusively for prosecution cases. 31 Existing provisions in S899 and S956 require to be underpinned by a general right. 32 Automatic reporting of information on taxpayers sources of income is common in other jurisdictions, see Appendix G for extract from Improving Access to Bank Information for Tax Purposes 2000, OECD. 33 Capital gains and income arising on the encashment of other financial products. Effectively this is an extension of the intermediary provisions in the current code. 34 S910 allows Revenue to obtain information from Minister of Government. 5

20 proper information security safeguards; subject also to Revenue demonstrating a capacity to make use of such information, 35 to the information being made available to the taxpayer on request and to a review of the provision within five years. 36 Offshore Assets and Overseas Payments New power, subject to High Court supervision, to establish the beneficial ownership of offshore assets over which a resident entity has control; Taxpayers to satisfy Revenue that payments for services provided from countries with which Ireland does not have a tax treaty are bona fide commercial transactions in the absence of which tax can be assessed at the income tax standard rate on the payments. 38 Investigation with a View to Prosecution A power for Revenue to access telephone records in criminal investigations Revenue investigators should be permitted to question persons detained in Garda custody in connection with an arrestable revenue offence Further studies required in regard to the appropriateness of granting powers of search and production of records under recent criminal justice legislation. 8. Appropriate Appeal or Review Mechanisms on Powers (Chapter 5) Appeal Commissioners 8.1. The jurisdiction of the Appeal Commissioners should be extended in the light of the statutory amendments proposed to allow appeals on the categorisation of penalties, the interest level in certain defined situations and the facts defining a voluntary disclosure In addition the Appeal Commissioners should be empowered to adjudicate: (1) whether Revenue have a right in law to seek particular information, (2) breach of proposed statutory time limits on audit and/or a request to stay an audit (3) unreasonable disruption to business from the removal of current records and equipment subject to these arrangements being practicable in terms of resources available to the Appeal Commissioner and subject to the taxpayer being required in all cases to pay the tax which is not in dispute The Group envisages the Appeal Commissioners holding regular short hearings based on oral evidence to decide summarily matters of fact the Monday morning session. 35 To ensure that the compliance cost on third parties of providing such information is proportionate to the benefit; there is some evidence that much information has been sought from taxpayers which has not been used in the past eg form 46G. 36 If adverse social consequences arise, there could be a threshold figure introduced by Ministerial Order, subject to such safeguards as might be considered necessary. 37 Statutory definition of control would be required. All jurisdictions consulted had access to records of foreign controlled entities. 38 This would operate like a deemed withholding tax. 39 Currently taxpayers must pay tax in accordance with the information on his/her return. 6