S.I. No. 135/1999 - Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999.

Regulation

S.I. No. 135 of 1999.

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGULATIONS, 1999.

I, JOHN O'DONOGHUE, Minister for Justice, Equality and Law Reform in exercise of the powers conferred on me by section 10 of the Criminal Justice (Legal Aid) Act, 1962 (No. 12 of 1962) as amended by section 132 of the Finance Act, 1998 (No. 3 of 1998), (as adapted by the Justice (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 298 of 1997 )), with the consent of the Minister for Finance, hereby make the following regulations:

Citation

1. (1) These Regulations may be cited as the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999.

(2) The Criminal Justice (Legal Aid) Regulations, 1965 to 1998, and these Regulations may be cited together as the Criminal Justice (Legal Aid) Regulations, 1965 to 1999.

Interpretation.

2. (1) In these Regulations—

(a) a reference to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other provision is intended;

(b) a reference to a paragraph or subparagraph is to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(c) Where the time limited or the latest date prescribed by these Regulations for the doing of anything expires on a Saturday, Sunday, or public holiday the time so limited or date so prescribed shall extend to and the thing may be done on the next following day that is not a Saturday, Sunday or public holiday.

(2) In these Regulations—

“the Act” means the Criminal Justice (Legal Aid) Act, 1962 (No. 12 of 1962), as amended by section 132 of the Finance Act, 1998 (No. 3 of 1998);

“the Acts” mean—

(a)      (i) the Tax Acts, and

(ii) the Capital Gains Tax Acts,

within the meanings assigned to them respectively, by section 1 (2) of the Taxes Consolidation Act, 1997 (No. 39 of 1997),

(b) the Value-Added Tax Act, 1972 (No. 22 of 1972) and the enactments amending or extending that Act, and

(c) any instruments made under the enactments referred to in subparagraphs (a) or (b);

“appeal” means an appeal pursuant to Regulation 7 and includes the rehearing of an appeal by the Circuit Court and the statement of a case for the opinion of the High Court on a point of law;

“Appeal Commissioners” shall have the same meaning as in section 850 of the Taxes Consolidation Act, 1997 ;

“the Bar Council” means the General Council of the Bar of Ireland;

“barristers' panel” means the list maintained by the Minister pursuant to Regulation 5 of the Principal Regulations of counsel (in these Regulations referred to as barristers) who have (through the Bar Council) notified him or her of their willingness to act for persons in respect of whom certificates for free legal aid have been granted;

“Collector-General” means the person referred to in section 851 of the Taxes Consolidation Act, 1997 ;

“the Criminal Justice (Legal Aid) Regulations” means Regulations for the time being in force made under section 10 of the Act;

“Income Tax Acts” has the meaning assigned to it by section 1 (2) of the Taxes Consolidation Act, 1997 ;

“the Minister” means the Minister for Justice, Equality and Law Reform;

“panel year” means the period of one year commencing on the 1st day of December of one year and ending on the 30th day of November of the following year;

“the Principal Regulations” means the Criminal Justice (Legal Aid) Regulations, 1965 ( S.I. No. 12 of 1965 );

“the 1978 Regulations” means the Criminal Justice (Legal Aid) (Amendment) (No. 2) Regulations, 1978 ( S.I. No. 304 of 1978 );

“the 1993 Regulations” means the Criminal Justice (Legal Aid) (Amendment) (No. 2) Regulations, 1993 ( S.I. No. 57 of 1993 );

“solicitors' panel” means the list maintained by a County Registrar of solicitors who pursuant to Regulation 4 of the Principal Regulations (as amended by the 1978 Regulations and the 1993 Regulations) have notified him or her of their willingness to act for persons to whom certificates for free legal aid have been granted;

“tax clearance certificate” shall be construed in accordance with Regulation 6 and means a certificate which:

(a) in the case of an application by a solicitor to have his or her name added to a solicitors' panel, has an expiry date that is later than the date on which the certificate is received by the County Registrar concerned,

(b) in the case of an application by a barrister to have his or her name added to the barristers' panel, has an expiry date that is later then the date on which the certificate is received by the Minister,

(c) in the case of an application by a solicitor to have his or her name retained on a solicitors' panel, has an expiry date that is later than the 30th day of November immediately preceding the panel year in respect of which the solicitor wishes to have his or her name retained on that panel,

(d) in the case of an application by a barrister to have his or her name retained on the barristers' panel, has an expiry date that is later than the 30th day of November immediately preceeding the panel year in respect of which the barrister wishes to have his or her name retained on that panel,

and which has been issued by the Collector-General pursuant to these Regulations or pursuant to section 1095 of the Taxes Consolidation Act, 1997 .

Commencement.

3. These Regulations shall come into effect on the 1st day of August, 1999.

Requirement to furnish Tax Clearance Certificate to be added to Panel.

4. (1) A County Registrar who, in pursuance of Regulation 4 of the Principal Regulations (as amended by Regulation 3 of the 1978 Regulations and Regulation 6 of the 1993 Regulations), is notified by a solicitor or his or her willingness to act for persons to whom certificates for free legal aid have been granted and of the wish of that solicitor to have his or her name added to the solicitors' panel which is maintained by that County Registrar pursuant to those Regulations, shall, on receipt of such notification (except in a case where a tax clearance certificate is furnished with such notification), inform the Minister of such notification and the Minister, upon being furnished with such information, shall request the solicitor to furnish a tax clearance certificate to the County Registrar concerned.

(2) Notwithstanding the provisions of Regulation 4 (2) of the Principal Regulations (as amended) the County Registrar shall not add the name of the solicitor concerned to the solicitors' panel until a tax clearance certificate has been furnished to the County Registrar concerned.

(3) Where the Minister, in pursuance of Regulation 5 of the Principal Regulations, has been notified by the Bar Council of the name of a barrister who is willing to act for persons to whom certificates for free legal aid have been granted and of the wish of that barrister to have his or her name added to the barristers' panel, the Minister, on receipt of such notification (except in a case where a tax clearance certificate is furnished with such notification), shall request the barrister concerned to furnish a tax clearance certificate to the Minister.

(4) Notwithstanding the provisions of Regulation 5 of the Principal Regulations, the Minister shall not add the name of the barrister concerned to the barristers' panel until the barrister has furnished a tax clearance certificate to the Minister.

(5)  (a) The requirement to furnish a tax clearance certificate under this Regulation shall be satisfied where the solicitor or barrister, as the case may be, furnishes a tax clearance certificate issued by the Collector-General pursuant to section 1095 of the Taxes Consolidation Act, 1997 which has an expiry date that is later than the date the notification is received by the County Registrar or the Minister, as the case may be.

(b) Subparagraph (a) shall not apply where the person to whom the tax clearance certificate is issued pursuant to section 1095 of the Taxes Consolidation Act, 1997 is an employee unless that person's employer is in compliance with the provisions of Regulation 6(2).

Requirement to furnish Tax Clearance Certificate annually to be retained on Panel.

5 (1) A solicitor whose name is on a solicitors' panel, and who wishes to have his or her name retained on that panel in respect of a panel year, shall annually, not later than the 30th day of November immediately preceeding that panel year, furnish to the County Registrar concerned a tax clearance certificate and shall, provided all other requirements of the Criminal Justice (Legal Aid) Regulations have been complied with, thereupon be entitled to have his or her name retained on that panel in respect of the panel year concerned.

(2) A solicitor whose name is on more than one solicitors' panel shall be obliged to furnish a tax clearance certificate in accordance with the provisions of paragraph (1) in respect of each such panel on which the solicitor wishes to have his or her name retained.

(3) A barrister whose name is on the barristers' panel, and who wishes to have his or her name retained on that panel in respect of a panel year, shall annually, not later than the 30th day of November immediately preceeding that panel year, furnish to the Minister a tax clearance certificate, and shall, provided all other requirements of the Criminal Justice (Legal Aid) Regulations have been complied with, thereupon be entitled to have his or her name retained on that panel in respect of the panel year concerned.

(4)  (a) The requirement to furnish a tax clearance certificate under this Regulation shall be satisfied where the solicitor or barrister, as the case may be, furnishes a tax clearance certificate issued by the Collector-General pursuant to section 1095 of the Taxes Consolidation Act, 1997 which has an expiry date that is later than the 30th day of November immediately preceding the panel year concerned.

(b) Subparagraph (a) shall not apply where the person to whom the tax clearance certificate is issued pursuant to section 1095 of the Taxes Consolidation Act, 1997 is an employee unless that person's employer is in compliance with the provisions of Regulation 6(2).

Application for a Tax Clearance Certificate.

6. (1) An application for a tax clearance certificate under these regulations shall be made to the Collector-General in a form prescribed by the Revenue Commissioners.

(2) The Collector-General shall, on application to him or her by a solicitor who wishes to have his or her name added to or retained on a solicitors' panel, issue a tax clearance certificate for that purpose if—

(a) that solicitor and, in respect of the period of that solicitor's membership, any partnership of which that solicitor is or was a partner, and

(b) in a case where that solicitor is an employee, that solicitor's employer,

has or have complied with all the obligations imposed on that solicitor, that partnership or that employer by the Acts in relation to—

(i) the payment or remittance of the taxes, interest and penalties required to be paid or remitted under the Acts, and

(ii) the delivery of returns required to be made under the Acts.

(3) The Collector-General shall, on an application to him or her by a barrister who wishes to have his or her name added to, or retained on the barristers' panel, issue a tax clearance certificate for that purpose if the barrister has complied with all the obligations imposed on him or her by the Acts in relation to—

(a) the payment or remittance of the taxes, interest and penalties required to be paid or remitted under the Acts, and

(b) the delivery of returns required to be made under the Acts.

(4) Where an application for a tax clearance certificate for the purpose of these Regulations is refused by the Collector-General he or she shall as soon as is practicable communicate in writing such refusal and the grounds for such refusal to the applicant.

Appeal against refusal to issue Tax Clearance Certificate.

7. (1) Where an application to the Collector-General for a tax clearance certificate for the purpose of these Regulations is refused, the person aggrieved by the refusal may, by notice in writing given to the Collector-General within 30 days of the refusal, apply to have such person's application heard and determined by the Appeal Commissioners; but no right of appeal shall exist by virtue of this paragraph in relation to any amount of tax or interest due under the Acts.

(2) A notice under paragraph (1) shall not be valid unless—

(a) that notice specifies—

(i) the matter or matters with which the person is aggrieved, and

(ii) the grounds in detail of the person's appeal as respects each such matter,

and

(b) any amount under the Acts which is due to be remitted or paid, and which is not in dispute, is duly remitted or paid.

(3) The Appeal Commissioners shall hear and determine an appeal made to them under this Regulation as if it were an appeal against an assessment to income tax and, subject to paragraph (4), the provisions of the Income Tax Acts relating to such an appeal (including the provisions relating to the rehearing of an appeal and to the statement of a case for the opinion of the High Court on a point of law) shall apply accordingly with any necessary modifications.

(4) On the hearing of an appeal made under this Regulation, the Appeal Commissioners shall have regard to all matters to which the Collector-General is required to have regard under these Regulations.

Retention on panel in certain circumstances where application for tax clearance certificate pending or appeal against refusal to issue tax clearance certificate not finally determined.

8. (1) Where a solicitor or barrister whose name is on a solicitors' panel or a barristers' panel, as the case may be, wishes to have his or her name retained on the panel concerned in respect of a panel year, and where—

(a) an application for a tax clearance certificate for the purpose of these Regulations has been made to the Collector-General not later than the 15th day of October immediately preceeding the panel year concerned,

and

(b) in respect of such application for a tax clearance certificate the tax clearance certificate has not been issued or refused by the Collector-General on or before the 30th day of November immediately preceeding the panel year concerned, or an appeal pursuant to Regulation 7 has been made against a refusal by the Collector-General to issue a tax clearance certificate which has not been determined or withdrawn on or before that date,

and

(c) the conditions contained in the Criminal Justice (Legal Aid) Regulations for retention on the panel concerned would, but for the provisions of these Regulations relating to the furnishing of a tax clearance certificate, have been satisfied,

and

(d) the applicant has, not later than the 10th day of December of the panel year concerned, furnished—

(i) in the case of a solicitor to the County Registrar concerned, or

(ii) in the case of a barrister to the Minister,

a statutory declaration made by the applicant which complies with the requirements specified in paragraph (4),

the applicant may have his or her name retained temporarily on the panel concerned for a period of three months with effect from the 1st day of December of the panel year concerned.

(2) Where the provisions of paragraph (1) apply, and, on the expiry of the period of three months therein referred to, the tax clearance certificate has not been issued or refused by the Collector-General or an appeal pursuant to Regulation 7 has been made and has not been determined or withdrawn, and the solicitor or barrister furnishes, within 10 days after such expiry, a further statutory declaration which complies with the requirements specified in paragraph (4), to the County Registrar concerned in the case of a solicitor, or to the Minister in the case of a barrister, the solicitor or barrister shall be entitled to have his or her name retained temporarily on the panel concerned for a further period of three months with effect from the expiry of the previous period.

(3) Where the further period of three months referred to in paragraph (2) has expired, and the provisions of paragraph (1) otherwise apply, the solicitor or barrister concerned may have his or her name temporarily retained on the panel with effect from the expiry of the immediately preceding period for further periods of three months until the tax clearance certificate has been issued or refused by the Collector-General or an appeal pursuant to Regulation 7 has been determined or withdrawn, provided that in respect of each such period of three months a further statutory declaration which complies with the requirements specified in paragraph (4) is furnished to the County Registrar or the Minister, as the case may be, before the date on which the review of the panel concerned is required to be effected pursuant to Regulation 9.

(4) The requirements of a statutory declaration referred to in paragraphs (1), (2) and (3) are that—

(a) the declaration shall be in the form set out in the Schedule to these Regulations (or in a form as near thereto as is possible),

and

(b) the declaration contains a statement that an application to the Collector-General for a tax clearance certificate has been made by the declarant not later than the 15th day of October, immediately preceding the panel year concerned,

and

(c) the declaration contains a statement to the effect that, at the time of the making of the declaration—

(i) an application to the Collector-General for a tax clearance certificate has been made, or

(ii) an appeal referred to in Regulation 7 has been initiated, which has not been determined or withdrawn,

and

(d) the declaration shall not be made on a date—

(i) prior to the 1st day of December of the panel year concerned in a case where a tax clearance certificate has not been issued or refused by the Collector-General, or an appeal referred to in Regulation 7, has not been determined or withdrawn prior to that date, in a case to which the provisions of paragraph (1) apply,

or

(ii) prior to the expiry of the three month period immediately preceding the further period in respect of which the solicitor or barrister wishes to have his or her name retained on the panel concerned in a case to which paragraph (2) or (3) applies.

(5) Where—

(a) a decision is made to issue a tax clearance certificate in respect of an application referred to in Regulation (6), or

(b) the final determination of an appeal referred to in Regulation 7 is to the effect that the applicant is entitled to be issued with a tax clearance certificate,

the applicant, on furnishing the tax clearance certificate to the Minister or the County Registrar concerned, shall be entitled to have his or her name retained on the barristers' panel or the solicitors' panel, as the case may be, in respect of the panel year concerned.

(6) In this Regulation “application for a tax clearance certificate” does not include a case where an application for a tax clearance certificate has been made to the Collector-General pursuant to these Regulations but is subsequently withdrawn.

Power to delete names from panels.

9. (1) Each County Registrar shall immediately following the expiry of 10 days after—

(a) the 1st day of December 1999, and

(b) the 1st day of March, the 1st day of June, the 1st day of September and the 1st day of December in each year other than 1999,

review the solicitors' panel maintained by him or her and shall, with effect from the first day of the month following such review, delete from the panel concerned the name of every solicitor in respect of whom on or before that date there has not been furnished to that County Registrar a tax clearance certificate, or a statutory declaration meeting the requirements specified in Regulation 8(4), and shall notify each solicitor concerned accordingly.

(2) The Minister shall immediately following the expiry of 10 days after—

(a) the 1st day of December 1999, and

(b) the 1st day of March, the 1st day of June, the 1st day of September and the 1st day of December in each year other than 1999,

review the barristers' panel maintained by him or her and shall, with effect from the first day of the month following such review, delete from that panel the name of every barrister in respect of whom on or before that date there has not been furnished to him or her a tax clearance certificate, or a statutory declaration meeting the requirements specified in Regulation 8(4), and shall notify each barrister concerned accordingly.

(3) (a) Where, pursuant to this Regulation, a County Registrar is required to notify a solicitor that the name of that solicitor has been deleted from the solicitors' panel concerned, or the Minister is required to notify a barrister that the name of that barrister has been deleted from the barristers' panel, the County Registrar or the Minister, as the case may be, shall send that notification to the person concerned as soon as may be after the review of the panel has been effected, but in any event not later than seven days after such review.

(b) the notification may be sent by ordinary pre-paid post to the solicitor or barrister concerned at the address recorded for that solicitor or barrister on the list maintained by the County Registrar or the Minister, as the case may be, pursuant to the Criminal Justice (Legal Aid) Regulations.

Notification of panels by County Registrars and the Minister to Court Registrars and Clerks.

10. (1) Each County Registrar, having reviewed the solicitors' panel maintained by him or her on the dates specified in Regulation 9, and having deleted such names as he or she is required to do by virtue of that Regulation, shall immediately send a copy of the list of names of solicitors who following such review remain on the solicitors' panel maintained by that County Registrar to each of the persons specified in Regulation 4 (1) (a) of the Principal Regulations (as amended by the 1978 Regulations).

(2) The Minister, having reviewed the barristers' panel maintained by him or her on the dates specified in Regulation 9, and having deleted such names as he or she is required to do by virtue of that Regulation, shall immediately send a copy of the list of names of barristers who following such review remain on the barristers' panel maintained by the Minister to each of the persons specified in Regulation 5 (2) of the Principal Regulations.

(3) The Minister shall without charge furnish a copy of the list referred to in paragraph (2) to any solicitor requesting it.

Miscellaneous.

11. (1) Responsibility for ensuring eligibility for inclusion or retention of a solicitor's name on a solicitors' panel shall at all times remain the responsibility of the solicitor concerned.

(2) No fees under the Criminal Justice (Legal Aid) Regulations shall be payable to a solicitor who accepts an assignment to a case if his or her name is not, at the time of assignment, on the relevant solicitors' panel.

(3) A solicitor shall be entitled to payment of fees under the Criminal Justice (Legal Aid) Regulations where at the time the assignment was made the name of the solicitor concerned was on the relevant solicitors' panel.

(4) Responsibility for ensuring eligibility for inclusion or retention of a barrister's name on the barristers' panel shall at all times remain the responsibility of the barrister concerned.

(5) No fees under the Criminal Justice (Legal Aid) Regulations shall be payable to a barrister who accepts an assignment to a case if his or her name is not, at the time of assignment, on the barristers' panel.

(6) A barrister shall be entitled to payment of fees under the Criminal Justice (Legal Aid) Regulations where at the time the assignment was made the name of the barrister concerned was on the barristers' panel.

SCHEDULE

Regulation 8

I¹ , __________________________________ of _______________________________________________________

SOLEMNLY AND SINCERELY DECLARE as follows:—

1.       This Declaration relates to an application for a tax clearance certificate pursuant to the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999 (hereinafter called “the Regulations”).

2.       An application for a tax clearance certificate was made to the Collector-General in the prescribed form on² _________________________________________.

3A.    At the date of making this Declaration the Collector-General has not, to the best of my knowledge, information and belief, issued or refused to issue a tax clearance certificate pursuant to an application referred to in paragraph 2 of this Declaration.³

3B.    As of the date of making this Declaration the Collector-General has refused to issue a tax clearance certificate and I have initiated an appeal in respect of that refusal pursuant to Regulation 7 of the Regulations which appeal has not either been withdrawn, or to the best of my knowledge, information and belief, detemined.⁴

4.       I make this Solemn Declaration pursuant to the provisions of the Statutory Declarations Act, 1938 , conscientiously believing it to be true, and I make it for the satisfaction of the Minister for Justice, Equality and Law Reform/the County Registrar for the County of ___________________________ .⁵

DECLARED by ____________________

this _______ day of __________ 19 _______ /20 ________.

at ____________________

in the County of ____________________

before me a Commissioner for Oaths/Practising Solicitor, and I know the Declarant

_____________________________________

Commissioner for Oaths/Practising Solicitor

_______________________

The Minister for Finance consents to the making of these Regulations.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations provide for the application of tax clearance procedures to solicitors and barristers who operate under the Criminal Legal Aid Scheme with effect from 1st August 1999.

¹ Insert name and address of solicitor or barrister.

² Insert date application for tax clearance certificate was lodged with Collector-General.

³ Delete either paragraph 3A or 3B.

⁴ Delete either paragraph 3A or 3B.

⁵ Insert county in respect of which County Registrar maintains list on which it is sought to have name retained temporarily where a solicitor is making the declaration; the reference to the County Registrar should be deleted where the declaration is being made by a barrister. Where the declaration is made by a solicitor the reference to the Minister should be deleted.