Supreme Court rejects former attorney’s bankruptcy appeal

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The Supreme Court has dismissed an appeal by a former lawyer for being declared bankrupt following a subpoena issued by tax commissioners after securing judgments for some €405,808 against him.

While rejecting John Tobin’s appeal, the five-judge court held that an overstatement of the amount of debt allegedly owed must result in the dismissal of a subpoena, where a debtor can prove that the overstatement is a problem. real and substantial.

Bankruptcy injunction must be dismissed even if uncontested part of injunction exceeds statutory threshold of €20,000, court ruled unanimously

The court consisted of Chief Justice Justice Donal O’Donnell, Justice John MacMenamin, Justice Elizabeth Dunne, Justice Peter Charleton and Justice Gerard Hogan.

Giving the court’s decision, Judge Dunne said there was no reason to allow the appeal.

Tobin, with an address in Cornmarket, Robert Street, Limerick, has appealed against a High Court refusal to dismiss a 2016 bankruptcy summons served by Revenue under the Bankruptcy Act 1988 and also has appealed the subsequent High Court decision declaring him bankrupt.

The subpoena warned that unless Mr Tobin paid some €405,808 to the Receiver General (CG) for Revenue within 14 days, he would have committed an act of bankruptcy for which he could be declared bankrupt unless he did not have a court order dismissing the subpoena on the ground he had no debt to the CG, or had a debt of €20,000 or less.

Incorrect sum

It set out details of seven judgments Revenue had obtained against Mr Tobin between September 2011 and January 2015, for a total amount of approximately €405,808 net.

Mr. Tobin had not requested within the prescribed 14 days to dismiss the subpoena but, in November 2016, some six months later, he requested that it be dismissed.

He claimed that the sum claimed by Revenue was incorrect as he was owed a refund of €71,030, plus interest, from February 2009, for reasons such as the alleged “overpayment” of stamp duty paid out of its own resources to Revenue on behalf of a client. .

The Court of Appeal in 2020 dismissed his appeal against these rulings.

The Supreme Court decided to hear his appeal on issues it believed to be of public importance, including whether the subpoena should be thrown out due to an overstated debt or a delay in challenging the subpoena. was fatal to raise the issue of an alleged overstatement of the debt. claims.

In her judgment, Madam Justice Dunne said Mr Tobin claimed he was owed a credit refund for sums he said were paid by him on behalf of his client.

The judge said there was no basis on which this payment could “in any form” entitle him to claim a refund or tax credit.

No issues arose from the hearings in the lower courts that would require the bankruptcy summons to be dismissed, the judge said.

Madam Justice Dunne added that her request to dismiss the subpoena was also late and that there was no reason to extend the time to allow her to make such a request.

Regarding the legal points raised in the appeal, the judge said that previous decisions in bankruptcy cases show strict adherence to the bankruptcy code.

Under the 1988 Act, Mrs Justice Dunne said, an act of bankruptcy occurs when a debtor fails to repay in full a sum contained in a bankruptcy summons.

This law, she said, is clear in stating that an act of bankruptcy cannot be committed by failure to pay an amount demanded greater than what is actually due.

Interpreting the legislation any other way would disregard the express wording of the law, she said.

Mrs Justice Dunne noted the significant reform that the Irish bankruptcy code has undergone in recent years, which has seen the period a person remains bankrupt significantly reduced.

Echoing concerns raised by the Court of Appeals about bankruptcy summonses, the judge said some aspects of the code may not be suitable for the modern commercial world, adding that any further reform is a matter for the legislature.

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