LAST UPDATE | 26 Jun 2018
INDEPENDENT TD MICHAEL Lowry and his refrigeration company have been fined a total of €25,000 for tax offences after a judge ruled that a custodial sentence would be “inappropriate”.
The politician and Garuda Ltd, were convicted earlier today by a Dublin Circuit Criminal Court jury of two charges each of delivering an incorrect corporation tax return and failing to keep proper set of accounts.
Judge Martin Nolan made his ruling after a verdict was delivered by the jury, on day 12 of the trial, just before lunchtime today.
The judge referred to Lowry as a “conscientious tax payer” having accepted evidence that he previously “put his hand in his pocket” to settle a separate €1.4 million tax bill, which had been owed by Garuda and dated back to 1997.
“Whatever was his motive for the 2006 actions, it was not to evade tax,” Judge Nolan said before he added that “honest tax returns are very important” in terms of self-assessment of tax.
He said the court was dealing with “a very narrow series of events”.
“Everyone is aware he has been involved in certain controversy,” Judge Nolan said before he added these offences were offences of process. He noted that Revenue has not been at a loss in relation to what occurred.
Judge Nolan accepted that the politician had no previous convictions, was a good employer and a very good public representative.
“The proof of the pudding is in the eating. He has been re-elected,” the judge said.
He noted that the maximum sentence available to the court was a five-year term but said he didn’t think a custodial sentence was appropriate in the case.
He fined Lowry €15,000 personally and Garuda €10,000. He also disqualified Lowry from acting as a director of the company for three years.
“He seems to have rescued his company. If he had not put in a substantial cash infusion into the company it would not be operating at present,” Judge Nolan said. He was referring to evidence that Lowry re-mortgaged his home to pay the €1.4 million tax bill in 2007.
Finally Judge Nolan remarked, “This is to Mr Lowry’s credit. I would not like to fall on the wrong side of Mr Oliver”. Henry Oliver is the tax inspector who was responsible for bringing the case forward for criminal investigation.
Deliberation
The jury of three women and eight men returned the verdicts following just over eight and half hours deliberation.
The jury were unable to reach a decision on four remaining charges before them. The State is not proceeding with these charges.
It was the State’s case that Lowry’s company, Garuda Ltd, trading as Streamline Enterprises received Stg £248,624 (€372,000) in commission from Norpe OY, a refrigeration company based in Finland, in August 2002.
It was alleged that Lowry arranged for this payment to be made to a third party, Kevin Phelan through the Glebe Trust based in the Isle of Man, and therefore it didn’t appear in the company accounts for that year.
The accounts were then falsified in 2007 to reflect that the payment was received in 2006.
Lowry (64) of Glenreigh, Holycross, Co. Tipperary, had pleaded not guilty to four charges of filing incorrect tax returns on dates between August 2002 and August 2007 in relation to a sum of Stg £248,624 received by his company, Garuda Ltd and one charge in relation to failing to keep a proper set of accounts on dates between 28 August, 2002 and 3 August 2007.
He further pleaded not guilty on behalf of Garuda Ltd to three similar charges in relation to the company’s tax affairs and one charge of failing to keep a proper set of accounts on the same dates.
Last week Judge Nolan told the jury that a charge of delivering an incorrect tax return for 2002 had been withdrawn. The jury recorded a verdict of “not guilty by direction of the trial judge” against this charge today.
Michael O’Higgins SC, defending Lowry, said his client was “an extremely hard-working representative for 30 years, working day and night on behalf of his constituency from the nitty gritty of medical cards through to housing”.
He reminded the judge of the fact that Lowry previously settled a €1.4 million tax bill in 2007 on behalf of Garuda.
“He was absolute that it would fall on him personally rather than hide behind a limited company,” O’Higgins submitted.
He described the prosecution as three pronged and said the income tax charge, of which his client had been acquitted by direction of the judge, was “at the apex” of it.
O’Higgins said the charges relating to 2002, of which the jury failed to return a verdict, “involved overt concealment from the authorities of the money”, while at the lowest end is the doctoring of the 2006 accounts.
Counsel described this as “a botched repair effort”, and that it was recoded as a current transaction when it should have been recorded as a historic one.
He said the fact that the corporation tax was lower in 2006 than it had been in 2002 and that the exchange rate was more favourable was “a fortuitous event”.
O’Higgins said the previous five years had been a “heavy burden” on his client and referred to one court date which he missed because he had suffered an “acute heart attack”.
He said the investigation itself had “an element of a sledge hammer and a nut” and added that his client had also suffered a financial burden as he had not been legally aided.
Garuda
Patrick Treacy SC, defending Garuda, said the company had 26 employees and said it generated significant employment for Thurles.
He suggested to Judge Nolan that when the State didn’t resist the application to withdraw the charge of failing to pay income tax, the case changed to being an exclusively corporation tax case.
“It is more of a case that demands to be dealt with by the company on the front-line,” Mr Treacy said.
The charges against Lowry outlined that the offences were committed with the consent or connivance of Michael Lowry who was at the time a director, manager, secretary or other officer of Garuda Ltd.
Both Lowry and Garuda were charged with knowingly or willingly delivering to the Inspector of Taxes of the Thurles District incorrect accounts in connection with corporation tax for year ending 31 December 2002 and delivering incorrect information in connection with the corporation tax for year ending 31 December 2002, to wit an incorrect corporation tax computation.
The politician and his company were also both charged with delivering an incorrect return in connection with corporation tax for year ending 31 December, 2006 and that between August 28, 2002 and August 3, 2007, Garuda Ltd failed to keep proper books of accounts within the meaning of Section 202 of the Companies Act 1990 insofar as the said books did not correctly record and explain the transactions of the company.
Witness
The prosecution’s key witness, Henry Oliver, in the investigation unit of Revenue, told the jury that he had looked into the €372,000 payment in in August 2013 and assessed it as an emolument (a wage or salary) earned by Lowry.
He said he determined Lowry owed income tax on the figure and Garuda owed PAYE and PRSI on the sum. He assessed the total owed to Revenue, including penalties and fine, as being €1.1 million.
Lowry’s defence team did not accept that the €372,000 constituted an income, but rather said the money was owed to the company as commission from Norpe.
The jury heard that both Michael Lowry and Garuda Ltd successfully challenged the Revenue assessment before the appeals commission in April 2015. The assessment was reduced to nil, meaning that neither Lowry nor Garuda owed anything to Revenue.
It was because of this evidence that Mr O’Higgins applied for a direction of not guilty by the trial judge on the basis that “there was no case to answer”.
The State didn’t oppose the application. Judge Nolan withdrew the charge and the trial continued with the remaining eight charges in connection to the corporation tax associated with the €372,0000.
During the trial Judge Nolan told the jury that the issue in this case was what Lowry knew.
He said the jury must be satisfied beyond a reasonable doubt that Lowry knew the money was not included in the company accounts and tax computations.
He said Lowry’s explanation was that he had instructed a staff member to raise an invoice in 2002, assumed this had been done and the money automatically entered on the company’s accounts.
The judge told the jurors that they must be satisfied beyond a reasonable doubt that this explanation is not true in order to convict. He said if they found the explanation reasonably believable, then they must acquit.
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