Case Law

In CIR v Challenge Corporation 1986 STC 548 tax mitigation had to be distinguished from tax avoidance.

The onus is on the taxpayer to establish that a general exemption applies, and in the context of section 811, the taxpayer needs to establish that the proposed use of any relief availed of is not a misuse or abuse. Revenue Commissioners v O'Flynn Construction Ltd et al 2006 77 ITR 81

In Trustees of Omega Group Pension Scheme v IRC 2001 STC 121 a fund manager sold shares under a share buy back and this fell to be treated as a distribution with a tax credit attached. At the time of the buyback the shares would have made a loss if sold on open market but a buyback resulted in repayment of an associated tax credit. A sale to the company of its own shares would yield a profit. One of main reasons to sell was to secure a tax advantage.

In IRC v Trustees of the Sema Group Pension Scheme 2002 STC 276 it was held that the taxpayer would not have sold their shares but for the tax credit that arose with the sale and therefore anti-avoidance was one of the main objectives of the transaction.

Once the steps which had no commercial purpose had been removed, the most appropriate taxing statute has to be applied. DTE Financial Services Ltd v Wilson 1999 STC 1061

The Australian General Anti-Avoidance rule contains a similar definition of 'transaction' as that in section 811. In the Australian case FCT v Peabody 94 ATC 4663, the High Court held that a 'transaction' does not include part of a transaction.

Revenue Commissioners v O'Flynn Construction & Ors 2011 IESC 47. In this landmark Irish antiavoidance case, the Irish Supreme Court found in favour of the Revenue Commissioners and held that a scheme whereby ESR reserves were paid out as tax free dividends was a tax avoidance transaction and a misuse or abuse of the ESR provisions.

This case considers whether or not a surcharge payable by the taxpayer on foot of a notice of opinion issued by the Revenue Commissioners pursuant to s. 811 of the Taxes Consolidation Act, 1997 (the TCA) to the effect that a pre adjudication transaction was a tax avoidance transaction is a pre or post adjudication debt or This considered if a surcharge raised by the Revenue Commissioners is a pre-adjudication debt and is provable in bankrupcy of the taxpayer. O'Rourke, (a bankrupt) [2018] IEHC 176

Appeal concerns the taxation of an employee share award. 11TACD2018

This appeal considered the validity of a Notice of Opinion with an erroneous description of an element of the transaction. The appeal also considered the time limits for raising an assessment along with the substantive issue of tax avoidance. 134TACD2020

Whether capital gains tax losses were disallowable on the grounds the related transaction was a “tax avoidance transaction”. 54TACD2022

Whether a transaction amounted to tax avoidance and whether losses should be restricted. Hanrahan v Revenue [2022] IEHC 43