Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998

1 Interpretation.

1.—(1) In this Act, save where the context otherwise requires—

“the Act of 1997” means the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997;

“agent”, in relation to a person, includes the solicitors and auditors of the person;

“auditor” means a person who is qualified, for the purposes of Part X of the Companies Act, 1990, for appointment as auditor of a company and is not an officer of the Comptroller, or any other person (other than such an officer) whom the Comptroller considers suitable, having regard to his or her qualifications or experience, for appointment under section 2;

“the Committee”, except in section 11, means the Committee of Public Accounts of Dáil Éireann while engaged in the performance of the duties assigned to it by resolution of Dáil Éireann passed pursuant to section 2(1) and any subcommittee of that Committee while so engaged;

“the Comptroller” means the Comptroller and Auditor General;

“direction” means a direction under section 3 and cognate words shall be construed accordingly;

“director” means a director within the meaning of the Companies Acts, 1963 to 1990, but includes, in the case of a financial institution that is not a company (within the meaning of those Acts), a person who is a member of it or of any board or other body that controls, manages or administers it;

“document” includes any class or description of document and also includes thing;

“evidence” includes the expression of an opinion, belief or intention;

“financial institution” means a person who is a relevant deposit taker within the meaning of Chapter 4 of Part 8 of the Taxes Consolidation Act, 1997, but includes any company that, for the purposes of the Companies Act, 1990, is related to such an institution or, in the case of an institution that is not a company, would be so related if it was a company;

“functions” includes powers and duties;

“the Minister” means the Minister for Finance.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other provision is intended,

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

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.

2 Examinations and investigations by Comptroller in relation to assessment and collection by Revenue Commissioners of income tax payable by certain financial institutions on certain payments of interest by them.

2.—(1) Subject to the provisions of this Act, the Comptroller may, if so requested by Dáil Éireann by resolution passed consequent upon its being apprised of prima facie evidence of substantial risk to the revenues of the State—

(a) carry out such examinations and investigations as he or she considers appropriate of the affairs and the books of account and other records in any form and other documents in respect of the period specified in the resolution of the financial institutions specified in the resolution, being institutions that were required by Chapter IV of Part I of the Finance Act, 1986, and Chapter 4 of Part 8 of the Taxes Consolidation Act, 1997, to deduct amounts representing income tax from payments of amounts in respect of interest made by them during the period aforesaid on certain deposits of money with them and to pay the amounts representing income tax to the Collector-General and to make returns to the Collector-General of the amounts aforesaid of interest and the amounts aforesaid representing income tax and were required by section 175 of the Income Tax Act, 1967, and section 891 of the Taxes Consolidation Act, 1997, to make certain other returns to an inspector of taxes in respect of interest payable by them without deduction of income tax,

(b) carry out such examinations referred to in section 3(7) of the Comptroller and Auditor General (Amendment) Act, 1993, and such other examinations and investigations as he or she considers appropriate,

(c) if the Comptroller considers it necessary to do so for the purpose of the performance of his or her functions under this Act, appoint an auditor to carry out on his or her behalf and subject to his or her control and supervision and upon and subject to such other terms and conditions (if any) as the Comptroller may determine or the High Court may specify under section 14 such examinations and investigations as the auditor considers appropriate, for the purpose of enabling the Comptroller to perform his or her functions under this Act, of accounts or deposits held in the financial institutions aforesaid during the period specified in the resolution, and of the affairs and the books of account and other records in any form and other documents of those institutions in respect of that period in so far as they relate to such accounts and deposits; and the auditor so appointed shall carry out the examinations and investigations aforesaid, and

(d) examine any report under subsection (2) furnished to him or her by an auditor appointed under paragraph (c) and, if he or she considers it appropriate to do so, discuss the report with the auditor and question him or her in relation to any particular matter in, or arising in connection with, the report, or in relation to the report generally,

in order—

(i) to ascertain—

(I) whether the books of account, records and documents aforesaid are complete and accurate in so far as they relate to the deposits, the interest, and the amounts representing income tax, aforesaid and whether those of them that may be inspected by an inspector of taxes provide for him or her a full and true picture of the extent of those institutions’ compliance with Chapter IV of Part I of the Finance Act, 1986, and Chapter 4 of Part 8 of the Taxes Consolidation Act, 1997, and the said sections 175 and 891 in respect of the deposits, the interest, the amounts representing income tax, and the returns, aforesaid,

(II) whether the Revenue Commissioners have taken appropriate steps to satisfy themselves as to whether those institutions have complied with the said Chapter IV, the said Chapter 4 and the said sections 175 and 891 in respect of the deposits, the interest, the amounts representing income tax, and the returns, aforesaid,

(III) whether those institutions have complied with any other relevant provisions of the Tax Acts (within the meaning of the Corporation Tax Act, 1976, and the Taxes Consolidation Act, 1997) in respect of the matters aforesaid, and

(IV) if there is a shortfall in the amount paid by those institutions under the said Chapter IV and the said Chapter 4 in respect of the said amounts representing income tax, the reasons for and the circumstances of the shortfall,

(ii) to ascertain whether systems, procedures and practices have been established that are adequate to secure an effective check on the assessment and collection and proper allocation of the amounts aforesaid representing income tax by the Revenue Commissioners and its payment by the financial institutions aforesaid to the Revenue Commissioners, and

(iii) to satisfy himself or herself as to whether the manner in which the systems, procedures and practices aforesaid have been employed and applied in relation to such interest and amounts representing income tax is adequate.

(2) An auditor appointed under subsection (1) shall prepare a report in writing of the results of any examinations as and investigations carried out by him or her under this section and shall, if and whenever so requested by the Comptroller, prepare an interim report in writing in relation to any such examinations and investigations and shall cause any such report to be furnished to the Comptroller.

(3) The Comptroller shall prepare a report in writing of the results of any examinations (including an examination under paragraph (d) of subsection (1)) and investigations carried out by him or her under this section and shall, if and whenever he or she considers it appropriate to do so, prepare an interim report in writing on any matter in relation to which he or she has completed his or her examinations and investigations under this section, and shall cause any such report to be furnished to the Clerk of Dáil Éireann and may, if he or she considers it appropriate to do so, cause a copy of any such report to be furnished to the clerk to the Committee.

(4) The functions conferred on the Comptroller by the subsequent sections of this Act may be exercised or performed only for the purposes of his or her functions under this section.

(5) Examinations or investigations under paragraph (a) or (b) of subsection (1) shall not be carried out in relation to any accounts opened or deposits held by persons in the financial institutions referred to in the said paragraph (a) or any books of account or other records in any form or other documents of such institutions in so far as they relate to individual such accounts or deposits.

(6) Subject to subsection (7), persons who have or have had accounts or deposits in a financial in a financial institution referred to in subsection (1) or are or were beneficial owners of such accounts or deposits shall not be referred to either in a report under this section or otherwise by the Comptroller or by an auditor appointed under subsection (1) (otherwise than for the purposes of subsection (7)) by name or in any other manner by which they could be identified as having or having had such accounts or deposits or being or having been such beneficial owners.

(7) The Comptroller may furnish to the Revenue Commissioners—

(a) particulars of a possible underpayment or non-payment of amounts representing income tax prima facie evidence of which is obtained by the Comptroller in the course of his or her examinations and investigations under this Act, and

(b) particulars of the possible commission of an offence under section 9 of the Waiver of Certain Tax, Interest and Penalties Act, 1993, to which subsection (1) (b) (ii) of that section relates if prima facie evidence of such commission is obtained by the Comptroller in the course of such examinations and investigations,

and particulars of the persons concerned, including their names, addresses and occupations, trades or professions.

(8) The utterances of an auditor appointed under subsection (1) or an employee, agent or adviser of the auditor made for the purposes of the functions of the auditor under this Act shall be absolutely privileged and those utterances, a report under this section and documents, or records, in any form made or prepared by any of the persons aforesaid for the purposes aforesaid shall be absolutely privileged wherever and however published.

(9) A person who obstructs, hinders or interferes with the Comptroller or an auditor appointed under subsection (1) in the performance of his or her functions under this Act shall be guilty of an offence.

(10) Section 11(2) of the Comptroller and Auditor General (Amendment) Act, 1993, shall not apply to an examination by the Comptroller and Auditor General under this section.

3 Power of Comptroller to obtain evidence.

3.—(1) Subject to the provisions of this Act, the Comptroller may—

(a) direct in writing any person whose evidence is required by the Comptroller to attend before him or her on a date and at a time and place specified in the direction and there to give evidence and to produce any document in his or her possession or power specified in the direction,

(b) direct a person in attendance before the Comptroller pursuant to paragraph (a) to produce to him or her any document in his or her possession or power specified in the direction,

(c) direct in writing any person to send to the Comptroller any document in his or her possession or power specified in the direction,

(d) direct in writing any person to make discovery on oath of any documents that are or have been in that person's possession or power relating to any matter relevant to the functions of the Comptroller under section (2) and to specify in the affidavit of documents concerned any documents mentioned therein which he or she objects to produce to the Comptroller and the grounds for the objection, and the rules of court relating to the discovery of documents in proceedings in the High Court shall apply in relation to the discovery of documents pursuant to this paragraph with any necessary modifications,

(e) for the purpose of the performance of the functions of the Comptroller under section 2, give any other directions that appear to the Comptroller to be reasonable and just.

(2) Such reasonable expenses as the Minister may determine of a person who, pursuant to a request of the Comptroller or a direction, attends before the Comptroller, shall be paid to him or her out of moneys provided by the Orieachtas.

(3) A direction in writing shall be signed by the Comptroller.

(4) Subsection (1) does not apply to—

(a) accounts opened by persons with the institutions aforesaid or any books or other records in any form or documents of such institutions in so far as they relate to such accounts or to deposits held by persons in those institutions, or

(b) evidence relating to the accounts or deposits aforesaid or the books or other records or documents aforesaid insofar as they relate to such accounts or deposits,

but, notwithstanding the foregoing, evidence may be given to the Comptroller in relation to the numbers of, and the total amounts of money held in, the deposits referred to in section 2(1) and the total amount of interest paid in respect of those deposits.

(5) Where a person disobeys a direction, the High Court may, on application to it in a summary manner in that behalf by the Comptroller, order the person to comply with the direction and make such other (if any) order as it considers necessary and just to enable the direction to have full effect.

(6) A person who—

(a) having been directed under paragraph (a) of subsection (1) to attend before the Comptroller and having had tendered to him or her any sum in respect of the expenses of his or her attendance before the Comptroller that a witness summoned to attend before the High Court would be entitled to have tendered to him or her, without just cause or excuse, disobeys the direction,

(b) being in attendance before the Comptroller pursuant to a direction under the said paragraph (a), refuses to take the oath on being required by the Comptroller to do so or refuses to answer any question to which the Comptroller may legally require an answer,

(c) without just cause or excuse, disobeys a direction under paragraph (b), (c), (d) or (e) of subsection (1),

(d) in relation to the discovery of documents pursuant to paragraph (d) of subsection (1), contravenes a rule of court referred to in that paragraph, or

(e) does any other thing in relation to the matters before the Comptroller which, if done in relation to proceedings before a court by a witness in the court or any other person, would be contempt of that court,

shall be guilty of an offence.

(7) If a person gives false evidence before the Comptroller in such circumstances that, if the person had given the evidence before a court, the person would be guilty of perjury, the person shall be guilty of an offence and shall be liable on conviction on indictment thereof to the penalties applying to perjury.

4 Privileges and immunities of witnesses, etc., before Comptroller or auditor.

4.—A person—

(a) whose evidence has been, is being or is to be given before the Comptroller, or who produces or sends or sends a document to him or her, pursuant to a direction or request of the Comptroller or who is directed or requested by the Comptroller to give evidence or produce a document to the Comptroller or to attend before him or her and there to give evidence or produce a document, or

(b) who makes a statement or gives or sends a document to an auditor appointed under section 2 pursuant to a request of the auditor for the purposes of his or her functions under that section or to whom a requirement is made under section 7, 9, or 10,

shall be entitled to the same privileges and immunities in respect of those matters as a witness before the High Court.

5 Non-admissibility in criminal proceedings of evidence given to Comptroller or auditor.

5.—A statement or admission made by a person before the Comptroller or an auditor appointed under section 2, or a document given or sent by a person to the Comptroller pursuant to a direction or request of the Comptroller to the person or specified in an affidavit of documents made by a person and given to the Comptroller by the person pursuant to a direction or request of the Comptroller to the person, or given or sent to such auditor by a person pursuant to a request or requirement made by him or her to the person shall not be admissible as evidence against the person in any criminal proceedings (other than proceedings in relation to an offence under subsection (6) or (7) of section 3) and section 4 shall be construed and have effect accordingly.

6 Evidence on oath to Comptroller.

6.—(1) A witness before the Comptroller may be required by the Comptroller to give his or her evidence to the Comptroller on oath.

(2) Where a requirement under subsection (1) is made, the Comptroller or an officer of the Comptroller authorised in that behalf by the Comptroller may administer the oath to the witness concerned.

7 Power of auditor to require information as to persons interested in shares or debentures.

7.—(1) If it appears to an auditor appointed under section 2 that it is necessary for the purposes of the performance of his or her functions under this Act to investigate the ownership of any shares in or debentures of a company, he or she may require any person whom he or she has reasonable cause to believe to have or to be able to obtain any information as to the present and past interests in those shares or debentures and the names and addresses of the persons having those interests and of any persons who act or have acted on their behalf in relation to the shares or debentures to give the information to the auditor.