Taxes Consolidation Act 1997 (as amended)
Source: Iris Oifigiúl 1997-11-30

num: 1
paragraphs: —(1) In this Act, except where the context otherwise requires, “repealed enactments” has the meaning assigned to it by section 1098 .
(2) In this Act and in any Act passed after this Act, except where the context otherwise requires—
“the Capital Gains Tax Acts” means the enactments relating to capital gains tax in this Act and in any other enactment;
“the Corporation Tax Acts” means the enactments relating to corporation tax in this Act and in any other enactment, together with the Income Tax Acts in so far as those Acts apply for the purposes of corporation tax;
“the Income Tax Acts” means the enactments relating to income tax in this Act and in any other enactment;
“the Tax Acts” means the Income Tax Acts and the Corporation Tax Acts.
(3) References in this Act to any enactment shall, except where the context otherwise requires, be construed as references to that enactment as amended or extended by any subsequent enactment.
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paragraphs: —(1) In the Tax Acts, except where otherwise provided or the context otherwise requires—
“Appeal Commissioners” has the meaning assigned to it by section 850 ;
“body of persons” means any body politic, corporate or collegiate, and any company, fraternity, fellowship and society of persons, whether corporate or not corporate;
“capital allowance” means any allowance (other than an allowance or deduction to be made in computing profits or gains) under—
(a) Part 9,
(b) section 658,
(c) Chapter 1 of Part 24, or
(d) Part 29,
and “capital allowances” shall be construed accordingly;
“Clerk to the Appeal Commissioners” means the person for the time being authorised by the Appeal Commissioners to act as such;
“Collector-General” means the Collector-General appointed under section 851 ;
“inspector” means an inspector of taxes appointed under section 852 ;
“local authority” means—
(a) the corporation of a county or other borough,
(b) the council of a county, or
(c) the council of an urban district;
“ordinary share capital”, in relation to a company, means all the issued share capital (by whatever name called) of the company, other than capital the holders of which have a right to a dividend at a fixed rate, but have no other right to share in the profits of the company;
“profession” includes vocation;
“resident” and “ordinarily resident”, in relation to an individual, shall be construed in accordance with Part 34 ;
“statute” has the same meaning as in section 3 of the Interpretation Act, 1937 ;
“tax credit” means a credit under section 136 ;
“year of assessment” means a year for which income tax is imposed by any Act imposing duties of income tax;
“the year 1997-98” means the year of assessment beginning on the 6th day of April, 1997, and any corresponding expression in which 2 years are similarly mentioned means the year of assessment beginning on the 6th day of April in the first-mentioned of those 2 years;
a source of income is within the charge to corporation tax or income tax if that tax is chargeable on the income arising from it, or would be so chargeable if there were any such income, and references to a person, or to income, being within the charge to tax, shall be similarly construed.
(2) Except where the context otherwise requires, in the Tax Acts, and in any enactment passed after this Act which by an express provision is to be construed as one with those Acts, “tax”, where neither income tax nor corporation tax is specified, means either of those taxes.
(3) Subsection (2) is without prejudice to section 76 (which applies income tax law for certain purposes of corporation tax), and accordingly the use of “income tax” rather than “tax” in any provision of the Income Tax Acts is not a conclusive indication that that provision is not applied to corporation tax by section 76.
(4) In the Tax Acts (other than sections 24 , 25 and 239 ), except where the context otherwise requires—
(a) references to income tax paid by a person by deduction shall be construed as including references to a tax credit to which the person is entitled, and
(b) references to repayment of income tax shall be construed as including references to payment of a tax credit.
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paragraphs: —(1) In the Income Tax Acts, except where otherwise provided or the context otherwise requires—
“higher rate”, in relation to tax, means the rate of tax known by that description and provided for in section 15 ;
“incapacitated person” means any minor or person of unsound mind;
“relative” includes any person of whom the person claiming a deduction had the custody and whom he or she maintained at his or her own expense while that person was under the age of 16 years;
“standard rate”, in relation to tax, means the rate of tax known by that description and provided for in section 15 ;
“tax” means income tax;
“taxable income” has the meaning assigned to it by section 458 ;
“total income” means total income from all sources as estimated in accordance with the Income Tax Acts;
“trade” includes every trade, manufacture, adventure or concern in the nature of trade.
(2) (a) Subject to subsection (3), in the Income Tax Acts, “earned income”, in relation to an individual, means—
(i) any income arising in respect of any remuneration from any office or employment of profit held by the individual, or in respect of any pension, superannuation or other allowance, deferred pay, or compensation for loss of office, given in respect of the past services of the individual or of the husband or parent of the individual in any office or employment of profit, or given to the individual in respect of the past services of any deceased person, whether or not the individual or husband or parent of the individual shall have contributed to such pension, superannuation allowance or deferred pay,
(ii) any income from any property which is attached to or forms part of the emoluments of any office or employment of profit held by the individual, and
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paragraphs: —(1) In the Corporation Tax Acts, except where the context otherwise requires—
“accounting date” means the date to which a company makes up its accounts, and “period of account” means the period for which a company does so;
“allowable loss” does not include, for the purposes of corporation tax in respect of chargeable gains, a loss accruing to a company in such circumstances that if a gain accrued the company would be exempt from corporation tax in respect of the gain;
“branch or agency” means any factorship, agency, receivership, branch or management;
“chargeable gain” has the same meaning as in the Capital Gains Tax Acts, but does not include a gain accruing on a disposal made before the 6th day of April, 1976;
“charges on income” has the meaning assigned to it by section 243 (1);
“close company” has the meaning assigned to it by sections 430 and 431 ;
“company” means any body corporate and includes a trustee savings bank within the meaning of the Trustee Savings Banks Act, 1989 , but does not include—
(a) a health board,
(b) a grouping within the meaning of section 1014 ,
(c) a vocational educational committee established under the Vocational Education Act, 1930 ,
(d) a committee of agriculture established under the Agriculture Act, 1931 , or
(e) a local authority, and for this purpose “local authority” has the meaning assigned to it by section 2 (2) of the Local Government Act, 1941 , and includes a body established under the Local Government Services (Corporate Bodies) Act, 1971 ;
“distribution” has the meaning assigned to it by Chapter 2 of Part 6 and sections 436 and 437 ;
“the financial year” followed by a reference to the year 1996 or any other year means the year beginning on the 1st day of January of such year;
“franked investment income” and “franked payment” shall be construed in accordance with section 156 ;
“group relief” has the meaning assigned to it by section 411 ;
“interest” means both annual or yearly interest and interest other than annual or yearly interest;
“preference dividend” means a dividend payable on a preferred share or preferred stock at a fixed rate per cent or, where a dividend is payable on a preferred share or preferred stock partly at a fixed rate per cent and partly at a variable rate, such part of that dividend as is payable at a fixed rate per cent;
“profits” means income and chargeable gains;
“standard credit rate” for a year of assessment means 21 per cent, and accordingly “standard credit rate per cent” for a year of assessment means 21;
“standard rate per cent” for a year of assessment means 26 where the standard rate for that year is 26 per cent and similarly as regards any reference to the standard rate per cent for a year of assessment for which the standard rate is other than 26 per cent;
“trade” includes vocation and includes also an office or employment.
(2) Except where otherwise provided by the Corporation Tax Acts and except where the context otherwise requires, words and expressions used in the Income Tax Acts have the same meaning in the Corporation Tax Acts as in those Acts; but no provision of the Corporation Tax Acts as to the interpretation of any word or expression, other than a provision expressed to extend to the use of that word or expression in the Income Tax Acts, shall be taken to affect its meaning in those Acts as they apply for the purposes of corporation tax.
(3) References in the Corporation Tax Acts to distributions or payments received by a company apply to any distributions or payments received by another person on behalf of or in trust for the company but not to any distributions or payments received by the company on behalf of or in trust for another person.
(4) References in the Corporation Tax Acts to—
(a) profits brought into charge to corporation tax are references to the amount of those profits chargeable to corporation tax before any deduction from those profits for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description,
(b) total income brought into charge to corporation tax are references to the amount, calculated before any deduction mentioned in paragraph (a), of the total income from all sources included in any profits brought into charge to corporation tax, and
(c) an amount of profits on which corporation tax falls finally to be borne are references to the amount of those profits after making all deductions and giving all reliefs that for the purposes of corporation tax are made or given from or against those profits, including deductions and reliefs which under any provision are treated as reducing them for those purposes.
(5) For the purposes of the Corporation Tax Acts, except where otherwise provided, dividends shall be treated as paid on the date when they become due and payable.
(6) Except where otherwise provided by the Corporation Tax Acts, any apportionment to different periods to be made under the Corporation Tax Acts shall be made on a time basis according to the respective lengths of those periods.
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paragraphs: —(1) In the Capital Gains Tax Acts, except where the context otherwise requires—
“Appeal Commissioners” has the meaning assigned to it by section 850 ;
“body of persons” has the same meaning as in section 2 ;
“branch or agency” means any factorship, agency, receivership, branch or management, but does not include the brokerage or agency of a broker or agent referred to in section 1039 ;
“local authority” has the meaning assigned to it by section 2 (2) of the Local Government Act, 1941 , and includes a body established under the Local Government Services (Corporate Bodies) Act, 1971 ;
“allowable loss” has the meaning assigned to it by section 546 ;
“capital allowance” means any allowance under the provisions of the Tax Acts which relate to allowances in respect of capital expenditure, and includes an allowance under section 284 ;
“chargeable gain” has the same meaning as in section 545 ;
“charity” has the same meaning as in section 208 ;
“class”, in relation to shares or securities, means a class of shares or securities of any one company;
“close company” has the meaning assigned to it by section 430 ;
“company” means any body corporate, but does not include a grouping within the meaning of section 1014 ;
“control” shall be construed in accordance with section 432 ;
“inspector” means an inspector of taxes appointed under section 852 ;
“land” includes any interest in land;
“lease”—
(a) in relation to land, includes an underlease, sub-lease or any tenancy or licence, and any agreement for a lease, underlease, sub-lease or tenancy or licence and, in the case of land outside the State, any interest corresponding to a lease as so defined, and
(b) in relation to any description of property other than land, means any kind of agreement or arrangement under which payments are made for the use of, or otherwise in respect of, property,
and “lessor”, “lessee” and “rent” shall be construed accordingly;
“legatee” includes any person taking under a testamentary disposition or an intestacy or partial intestacy or by virtue of the Succession Act, 1965 , or by survivorship, whether such person takes beneficially or as trustee, and a person taking under a donatio mortis causa shall be treated as a legatee and such person's acquisition as made at the time of the donor's death and, for the purposes of this definition and of any reference to a person acquiring an asset as legatee, property taken under a testamentary disposition or on an intestacy or partial intestacy or by virtue of the Succession Act, 1965 , includes any asset appropriated by the personal representatives in or towards the satisfaction of a pecuniary legacy or any other interest or share in the property devolving under the disposition or intestacy or by virtue of the Succession Act, 1965 ;
“market value” shall be construed in accordance with section 548 ;
“minerals” has the same meaning as in section 3 of the Minerals Development Act, 1940 ;
“mining” means mining operations in the State for the purpose of obtaining, whether by underground or surface working, any minerals;
“part disposal” has the meaning assigned to it by section 534 ;
“personal representative” has the same meaning as in section 799 ;
“prescribed” means prescribed by the Revenue Commissioners;
“profession” includes vocation;
“resident” and “ordinarily resident”, in relation to an individual, shall be construed in accordance with Part 34 ;
“settled property” means any property held in trust other than property to which section 567 applies, but does not include any property held by a trustee or assignee in bankruptcy or under a deed of arrangement;
“settlement” and “settlor” have the same meanings respectively as in section 10 , and “settled property” shall be construed accordingly;
“shares” includes stock, and shares or debentures comprised in any letter of allotment or similar instrument shall be treated as issued unless the right to the shares or debentures conferred by such letter or instrument remains provisional until accepted and there has been no acceptance;
“trade” has the same meaning as in the Income Tax Acts;
“trading stock” has the same meaning as in section 89 ;
“unit trust” means any arrangements made for the purpose, or having the effect, of providing facilities for the participation by the holders of units, as beneficiaries under a trust, in profits or income arising from the acquisition, holding, management or disposal of securities or any other property whatever;
“units”, in relation to a unit trust, means any units (whether described as units or otherwise) into which are divided the beneficial interests in the assets subject to the trusts of a unit trust;
“unit holder”, in relation to a unit trust, means a holder of units of the unit trust;
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paragraphs: —For the purposes of the Tax Acts and the Capital Gains Tax Acts, except where the contrary intention appears—
(a) references in any of those Acts to a child (including references to a son or a daughter) include references to—
(i) a stepchild, and
(ii) a child who is—
(I) adopted under the Adoption Acts, 1952 to 1991, or
(II) the subject of a foreign adoption (within the meaning of section 1 of the Adoption Act, 1991 ) which is deemed to have been effected by a valid adoption order made under the Adoption Acts, 1952 to 1991,
and
(b) the relationship between a child referred to in paragraph (a)(ii) and any other person, or between other persons, that would exist if such child had been born to the child's adoptor or adoptors in lawful wedlock, shall be deemed to exist between such child and that other person, or between those other persons, and the relationship of any such child and any person that existed prior to the child being so adopted shall be deemed to have ceased,
and “adopted child” shall be construed in accordance with this section.
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paragraphs: —(1) Notwithstanding subsection (4) of section 2 of the Age of Majority Act, 1985 (in this section referred to as “the Act of 1985”), subsections (2) and (3) of that section shall, subject to subsection (2), apply for the purposes of the Income Tax Acts and any other statutory provision (within the meaning of the Act of 1985) dealing with the imposition, repeal, remission, alteration or regulation of any tax or other duty under the care and management of the Revenue Commissioners, and accordingly section 2(4)(b)(vii) of the Act of 1985 shall cease to apply.
(2) Nothing in subsection (1) shall affect a claimant's entitlement to a deduction under section 462 or 465 .
num: 8
paragraphs: —(1) In this section, “the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts,
(c) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act, and
(d) the statutes relating to stamp duty,
and any instruments made thereunder.
(2) Notwithstanding any provision of the Acts or the dates on which they were passed, in deducing any relationship between persons for the purposes of the Acts, the Acts shall be construed in accordance with section 3 of the Status of Children Act, 1987.
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paragraphs: —(1) For the purposes of the Tax Acts, except where otherwise provided, a company shall be deemed to be—
(a) a “51 per cent subsidiary” of another company if and so long as more than 50 per cent of its ordinary share capital is owned directly or indirectly by that other company,
(b) a “75 per cent subsidiary” of another company if and so long as not less than 75 per cent of its ordinary share capital is owned directly or indirectly by that other company,
(c) a “90 per cent subsidiary” of another company if and so long as not less than 90 per cent of its ordinary share capital is directly owned by that other company.
(2) In paragraphs (a) and (b) of subsection (1), “owned directly or indirectly” by a company means owned whether directly or through another company or other companies or partly directly and partly through another company or other companies.
(3) In this section, references to ownership shall be construed as references to beneficial ownership.
(4) For the purposes of this section, the amount of ordinary share capital of one company owned by a second company through another company or other companies, or partly directly and partly through another company or other companies, shall be determined in accordance with subsections (5) to (10).
(5) Where, in the case of a number of companies, the first directly owns ordinary share capital of the second and the second directly owns ordinary share capital of the third, then, for the purposes of this section, the first shall be deemed to own ordinary share capital of the third through the second and, if the third directly owns ordinary share capital of a fourth, the first shall be deemed to own ordinary share capital of the fourth through the second and third, and the second shall be deemed to own ordinary share capital of the fourth through the third, and so on.
(6) In this section—
(a) any number of companies of which the first directly owns ordinary share capital of the next and the next directly owns ordinary share capital of the next but one and so on, and, if there are more than 3, any 3 or more of them, are referred to as a “series”;
(b) in any series—
(i) that company which owns ordinary share capital of another through the remainder is referred to as “the first owner”;
(ii) that other company the ordinary share capital of which is so owned is referred to as “the last owned company”;
(iii) the remainder, if one only, is referred to as an “intermediary” and, if more than one, are referred to as “a chain of intermediaries”;
(c) a company in a series which directly owns ordinary share capital of another company in the series is referred to as an “owner”;
(d) any 2 companies in a series of which one owns ordinary share capital of the other directly, and not through one or more of the other companies in the series, are referred to as being directly related to one another.
(7) Where every owner in a series owns the whole of the ordinary share capital of the company to which it is directly related, the first owner shall be deemed to own through the intermediary or chain of intermediaries the whole of the ordinary share capital of the last owned company.
(8) Where one of the owners in a series owns a fraction of the ordinary share capital of the company to which it is directly related, and every other owner in the series owns the whole of the ordinary share capital of the company to which it is directly related, the first owner shall be deemed to own that fraction of the ordinary share capital of the last owned company through the intermediary or chain of intermediaries.
(9) Where—
(a) each of 2 or more of the owners in a series owns a fraction, and every other owner in the series owns the whole, of the ordinary share capital of the company to which it is directly related, or
(b) every owner in a series owns a fraction of the ordinary share capital of the company to which it is directly related,
the first owner shall be deemed to own through the intermediary or chain of intermediaries such fraction of the ordinary share capital of the last owned company as results from the multiplication of those fractions.
(10) Where the first owner in any series owns a fraction of the ordinary share capital of the last owned company in that series through the intermediary or chain of intermediaries in that series, and also owns another fraction or other fractions of the ordinary share capital of the last owned company, either—
(a) directly,
(b) through an intermediary which is not a member, or intermediaries which are not members, of that series,
(c) through a chain or chains of intermediaries of which one or some or all are not members of that series, or
(d) in a case where the series consists of more than 3 companies, through an intermediary which is a member, or intermediaries which are members, of the series, or through achain or chains of intermediaries consisting of some but not all of the companies of which the chain of intermediaries in the series consists,
then, for the purpose of ascertaining the amount of the ordinary share capital of the last owned company owned by the first owner, all those fractions shall be aggregated and the first owner shall be deemed to own the sum of those fractions.
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paragraphs: —(1) In this section—
“close company” has the meaning assigned to it by sections 430 and 431 ;
“company” has the same meaning as in section 4 (1);
“control” shall be construed in accordance with section 432 ;
“relative” means brother, sister, ancestor or lineal descendant and, for the purposes of the Capital Gains Tax Acts, also means uncle, aunt, niece or nephew;
“settlement” includes any disposition, trust, covenant, agreement or arrangement, and any transfer of money or other property or of any right to money or other property;
“settlor”, in relation to a settlement, means any person by whom the settlement was made, and a person shall be deemed for the purposes of this section to have made a settlement if the person has made or entered into the settlement directly or indirectly and, in particular (but without prejudice to the generality of the preceding words), if the person has provided or undertaken to provide funds directly or indirectly for the purpose of the settlement, or has made with any other person a reciprocal arrangement for that other person to make or enter into the settlement.
(2) For the purposes of the Tax Acts and the Capital Gains Tax Acts, except where the context otherwise requires, any question whether a person is connected with another person shall be determined in accordance with subsections (3) to (8) (any provision that one person is connected with another person being taken to mean that they are connected with one another).
(3) A person shall be connected with an individual if that person is the individual's husband or wife, or is a relative, or the husband or wife of a relative, of the individual or of the individual's husband or wife.
(4) A person in the capacity as trustee of a settlement shall be connected with—
(a) any individual who in relation to the settlement is a settlor,
(b) any person connected with such an individual, and
(c) a body corporate which is deemed to be connected with that settlement, and a body corporate shall be deemed to be connected with a settlement in any accounting period or, as the case may be, year of assessment if, at any time in that period or year, as the case may be, it is a close company (or only not a close company because it is not resident in the State) and the participators then include the trustees of or a beneficiary under the settlement.
(5) Except in relation to acquisitions or disposals of partnership assets pursuant to bona fide commercial arrangements, a person shall be connected with any person with whom such person is in partnership, and with the spouse or a relative of any individual with whom such person is in partnership.
(6) A company shall be connected with another company—
(a) if the same person has control of both companies, or a person (in this paragraph referred to as “the first-mentioned person”) has control of one company and persons connected with the first-mentioned person, or the first-mentioned person and persons connected with the first-mentioned person, have control of the other company, or
(b) if a group of 2 or more persons has control of each company, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person with whom such member is connected.
(7) A company shall be connected with another person if that person has control of the company or if that person and persons connected with that person together have control of the company.
(8) Any 2 or more persons acting together to secure or exercise control of, or to acquire a holding in, a company shall be treated in relation to that company as connected with one another and with any person acting on the direction of any of them to secure or exercise control of, or to acquire a holding in, the company.
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paragraphs: —For the purposes of, and subject to, the provisions of the Corporation Tax Acts which apply this section, “control”, in relation to a company, means the power of a person to secure—
(a) by means of the holding of shares or the possession of voting power in or in relation to that or any other company, or
(b) by virtue of any powers conferred by the articles of association or other document regulating that or any other company,
that the affairs of the first-mentioned company are conducted in accordance with the wishes of that person and, in relation to a partnership, means the right to a share of more than 50 per cent of the assets, or of more than 50 per cent of the income, of the partnership.
num: 12
paragraphs: — Income tax shall, subject to the Income Tax Acts, be charged in respect of all property, profits or gains respectively described or comprised in the Schedules contained in the sections enumerated below—
num: 13
paragraphs: —(1) In this section and in Schedule 1 —
“designated area” means an area designated by order under section 2 of the Continental Shelf Act, 1968 ;
“exploration or exploitation activities” means activities carried on in connection with the exploration or exploitation of so much of the sea bed and subsoil and their natural resources as is situated in the State or in a designated area;
“exploration or exploitation rights” means rights to assets to be produced by exploration or exploitation activities or to interests in or to the benefit of such assets.
(2) Any profits or gains from exploration or exploitation activities carried on in a designated area or from exploration or exploitation rights shall be treated for income tax purposes as profits or gains from activities or property in the State.
(3) Any profits or gains arising to any person not resident in the State from exploration or exploitation activities carried on in the State or in a designated area or from exploration or exploitation rights shall be treated for income tax purposes as profits or gains of a trade carried on by that person in the State through a branch or agency.
(4) Where exploration or exploitation activities are carried on by a person on behalf of the holder of a licence granted under the Petroleum and Other Minerals Development Act, 1960 , the holder of the licence shall, for the purpose of any assessment to income tax, be deemed to be the agent of that person.
(5) Any emoluments from an office or employment in respect of duties performed in a designated area in connection with exploration or exploitation activities shall be treated for income tax purposes as emoluments in respect of duties performed in the State.
num: 14
paragraphs: —(1) The due proportion of income tax shall be charged for every fractional part of one pound, but no income tax shall be charged on a lower denomination than one penny.
(2) Every assessment and charge to income tax shall be made for a year commencing on the 6th day of April and ending on the following 5th day of April.
num: 15
paragraphs: —(1) Subject to subsection (2), income tax shall be charged for each year of assessment at the rate of tax specified in the Table to this section as the standard rate.
(2) Where a person who is charged to income tax for any year of assessment is an individual (other than an individual acting in afiduciary or representative capacity), such individual shall, notwithstanding anything in the Income Tax Acts but subject to section 16 (2), be charged to tax on such individual's taxable income—
(a) in a case in which such individual is assessed to tax otherwise than in accordance with section 1017 , at the rates specified in Part 1 of the Table to this section, or
(b) in a case in which such individual is assessed to tax in accordance with section 1017 , at the rates specified in Part 2 , of that Table,
and the rates in each Part of that Table shall be known respectively by the description specified in column (3) in each such Part opposite the mention of the rate or rates, as the case may be, in column (2) of that Part.
TABLE
Part 1
Part of taxable income
Rate of tax
Description of rate
(1)
(2)
(3)
The first £9,900
26 per cent
the standard rate
The remainder
48 per cent
the higher rate
Part 2
Part of taxable income
Rate of tax
Description of rate
(1)
(2)
(3)
The first £19,800
26 per cent
the standard rate
The remainder
48 per cent
the higher rate
num: 16
paragraphs: —(1) In estimating under the Income Tax Acts the total income of any person, any income chargeable with tax by means of deduction at the standard rate in force for any year shall be deemed to be income of that year, and any deductions allowable on account of sums payable under deduction of tax at the standard rate in force for any year out of the property or profits of that person shall be allowed as deductions in respect of that year, notwithstanding that the income or sums, as the case may be, accrued or will accrue in whole or in part before or after that year.
(2) Where a person is required to be assessed and charged with tax in respect of any property, profits or gains out of which such person makes any payment in respect of any annual interest, annuity or other annual sum, or any royalty or other sum in respect of the user of a patent, such person shall, in respect of so much of the property, profits or gains as is equal to that payment and may be deducted in computing such person's total income, be charged at the standard rate only.
num: 17
paragraphs: —(1) The Schedule referred to as Schedule C is as follows:
num: 18
paragraphs: —(1) The Schedule referred to as Schedule D is as follows:
num: 19
paragraphs: —(1) The Schedule referred to as Schedule E is as follows:
num: 20
paragraphs: —(1) The Schedule referred to as Schedule F is as follows:
num: 21
paragraphs: —(1) Corporation tax shall be charged on the profits of companies at the rate of—
(a) 38 per cent for—
(i) the financial year 1996, and
(ii) that part of the financial year 1997 beginning on the 1st day of January, 1997, and ending on the 31st day of March, 1997,
and
(b) 36 per cent for—
(i) that part of the financial year 1997 beginning on the 1st day of April, 1997, and ending on the 31st day of December, 1997, and
(ii) each subsequent financial year.
(2) The provisions of the Income Tax Acts relating to the charge of income tax shall not apply to income of a company (not arising to it in a fiduciary or representative capacity) if—
(a) the company is resident in the State, or
(b) the income is, in the case of a company not so resident, within the chargeable profits of the company as defined for the purposes of corporation tax.
(3) Subject to section 649 , a company shall not be chargeable to capital gains tax in respect of gains accruing to it so that it is chargeable in respect of them to corporation tax.
num: 22
paragraphs: —(1) (a) Notwithstanding section 21 , so much of the profits of a company for an accounting period as does not exceed the lower of either—
(i) the specified amount in relation to the accounting period, or
(ii) the income of the company for the accounting period,
shall be charged to corporation tax as if the rate of corporation tax for the financial year were—
(I) as respects accounting periods ending before the 1st day of April, 1997, 30 per cent, and
(II) as respects accounting periods ending on or after that date, 28 per cent.
(b) For the purposes of paragraph (a), where an accounting period of a company begins before the 1st day of April, 1997, and ends on or after that day, it shall be divided into 2 parts, one beginning on the day on which the accounting period begins and ending on the 31st day of March, 1997, and the other beginning on the 1st day of April, 1997, and ending on the day on which the accounting period ends, and both parts shall be treated for the purpose of this section as if they were separate accounting periods of the company.
(2) For the purposes of subsection (1) and subject to subsections (3) and (4), the specified amount in relation to an accounting period of a company shall be an amount determined by the formula—
£50,000 ×
N
__
12
×
1
__
A
where—
N is the number of months in the accounting period, and
A is one plus the number of associated companies which the company has in the accounting period.
(3) (a) Where, in the case of a company which has one or more associated companies in an accounting period—
(i) the accounting period of the company ends on a date on which accounting periods of all of the associated companies end, and
(ii) the company and all of the associated companies jointly elect in writing that this subsection shall apply,
then—
(I) the specified amount under subsection (2) shall be computed as if, in relation to the accounting period, the company and all of the associated companies were a single company (with no associated companies) with an accounting period ending on that date and beginning on the earliest date on which the accounting period of the company, or of any of the associated companies, begins, and
(II) the specified amount computed under subparagraph (I) shall be allocated to the accounting period of the company and to the accounting periods of its associated companies in such manner as is specified in the election, and the amount so allocated to a company shall be deemed to be the specified amount in relation to the accounting period of the company.
(b) Notwithstanding paragraph (a)—
(i) the aggregate of amounts allocated under subparagraph (II) of that paragraph for an accounting period shall not exceed the specified amount computed under subparagraph (I) of that paragraph, and
(ii) the amount allocated to an accounting period of a company shall not exceed the amount which would have been the specified amount in relation to the accounting period if the company had no associated companies in the accounting period.
(4) Where, in the case of a company which has one or more associated companies in an accounting period, the end of the accounting period of the company and the end of an accounting period of each of its associated companies do not coincide—
(a) subsection (3) shall apply as respects any period (in this subsection referred to as a “relevant period”) which falls in the accounting period of the company and an accounting period of each of the associated companies as if the relevant period were an accounting period of the company and of the associated companies,
(b) the amount allocated to any company in respect of a relevant period shall be deemed to be the specified amount in relation to that period, and
(c) where an amount has been allocated to a company in respect of a relevant period falling in an accounting period of the company, the specified amount for the accounting period of the company shall be the aggregate of—
(i) any specified amounts in relation to relevant periods falling in the accounting period, and
(ii) the amounts which would be the specified amounts in relation to any periods (which are not relevant periods) within the accounting period if each of those periods was treated as an accounting period;
but the specified amount in relation to an accounting period of a company shall not exceed the amount which would be the specified amount in relation to the accounting period if the company had no associated companies in the accounting period.
(5) (a) In this subsection, “control” shall be construed in accordance with section 432 .
(b) In applying this section to any accounting period of a company, an associated company which—
(i) has not carried on any trade or business at any time in that accounting period or, if an associated company during part only of that accounting period, at any time in that part of that accounting period, or
(ii) has no income within the charge to corporation tax in the State in the accounting period,
shall be disregarded and, for the purposes of this section, a company shall be treated as an associated company of another company at a particular time if at that time one of the 2 companies has control of the other company or both companies are under the control of the same person or persons.
(6) In determining how many associated companies a company has in an accounting period or whether a company has an associated company in an accounting period, an associated company shall be counted even if it was an associated company for part only of the accounting period, and 2 or more associated companies shall be counted even if they were associated companies for different parts of the accounting period.
(7) For the purposes of this section, the income of a company for an accounting period shall be taken to be an amount determined by the formula—
I − M
where—
I is the amount of the company's profits for the accounting period on which corporation tax falls finally to be borne exclusive of the part of the profits attributed to chargeable gains, and that part shall be taken to be the amount brought into the company's profits for that period for the purposes of corporation tax in respect of chargeable gains before any deduction for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description, and
M is the amount of the company's income from the sale of goods for the purpose of section 448 .
(8) (a) A company shall include in the return required to be delivered under section 951 —
(i) a statement specifying—
(I) the amount of its profits to be charged to corporation tax at the rate specified in subsection (1), and
(II) the number of companies which are its associated companies in relation to the accounting period,
and
(ii) a copy of any election made under subsection (3) or (4).
(b) A company which has specified an amount under paragraph (a) shall not be entitled to alter the amount so specified.
num: 23
paragraphs: — Section 13 shall apply for the purposes of corporation tax as it applies for the purposes of income tax.
num: 24
paragraphs: —(1) No payment made by a company resident in the State shall by virtue of this section or otherwise be treated for any purpose of the Income Tax Acts as paid out of profits or gains brought into charge to income tax, nor shall any right or obligation under the Income Tax Acts to deduct income tax from any payment be affected by the fact that the recipient is a company not chargeable to income tax in respect of the payment.
(2) Subject to the Corporation Tax Acts, where a company resident in the State receives any payment on which it bears income tax by deduction, the income tax on that payment shall be set off against any corporation tax assessable on the company by an assessment made for the accounting period in which that payment is to be taken into account for corporation tax (or would be taken into account but for any exemption from corporation tax), and accordingly in respect of that payment the company, unless wholly exempt from corporation tax, shall not be entitled to a repayment of income tax before the assessment for that accounting period is finally determined and it appears that a repayment is due.
(3) References in this section to payments received by a company apply to any payments received by another person on behalf of or in trust for the company, but not to any payments received by the company on behalf of or in trust for another person.
num: 25
paragraphs: —(1) A company not resident in the State shall not be within the charge to corporation tax unless it carries on a trade in the State through a branch or agency, but if it does so it shall, subject to any exceptions provided for by the Corporation Tax Acts, be chargeable to corporation tax on all its chargeable profits wherever arising.
(2) For the purposes of corporation tax, the chargeable profits of a company not resident in the State but carrying on a trade in the State through a branch or agency shall be—
(a) any trading income arising directly or indirectly through or from the branch or agency, and any income from property or rights used by, or held by or for, the branch or agency, but this paragraph shall not include distributions received from companies resident in the State, and
(b) such chargeable gains as but for the Corporation Tax Acts would be chargeable to capital gains tax in the case of a company not resident in the State;
but such chargeable profits shall not include chargeable gains accruing to the company on the disposal of assets which, at or before the time when the chargeable gains accrued, were not used in or for the purposes of the trade and were not used or held or acquired for the purposes of the branch or agency.
(3) Subject to section 729 , where a company not resident in the State receives any payment on which it bears income tax by deduction, and that payment forms part of, or is to be taken into account in computing, the company's income chargeable to corporation tax, the income tax on that payment shall be set off against any corporation tax assessable on that income by an assessment made for the accounting period in which the payment is to be taken into account for corporation tax, and accordingly in respect of that payment the company shall not be entitled to a repayment of income tax before the assessment for that accounting period is finally determined and it appears that a repayment is due.
num: 26
paragraphs: —(1) Subject to any exceptions provided for by the Corporation Tax Acts, a company shall be chargeable to corporation tax on all its profits wherever arising.
(2) A company shall be chargeable to corporation tax on profits accruing for its benefit under any trust, or arising under any partnership, in any case in which it would be so chargeable if the profits accrued to it directly, and a company shall be chargeable to corporation tax on profits arising in the winding up of the company, but shall not otherwise be chargeable to corporation tax on profits accruing to it in a fiduciary or representative capacity except as respects its own beneficial interest (if any) in those profits.
(3) Corporation tax for any financial year shall be charged on profits arising in that year; but assessments to corporation tax shall be made on a company by reference to accounting periods, and the amount chargeable (after making all proper deductions) of the profits arising in an accounting period shall where necessary be apportioned between the financial years in which the accounting period falls.
(4) Subsection (3) shall apply as respects accounting periods ending on or after the 1st day of April, 1997, as if—
(a) the period beginning on the 1st day of January, 1996, and ending on the 31st day of March, 1997, and
(b) the period beginning on the 1st day of April, 1997, and ending on the 31st day of December, 1998,
were each a financial year.
num: 27
paragraphs: —(1) Except where otherwise provided by the Corporation Tax Acts, corporation tax shall be assessed and charged for any accounting period of a company on the full amount of the profits arising in that period (whether or not received in or remitted to the State) without any deduction other than one authorised by the Corporation Tax Acts.
(2) An accounting period of a company shall begin for the purposes of corporation tax whenever—
(a) the company, not then being within the charge to corporation tax, comes within it whether by the coming into force of any provision of the Corporation Tax Acts, or by the company becoming resident in the State or acquiring a source of income, or otherwise, or
(b) an accounting period of the company ends without the company then ceasing to be within the charge to corporation tax.
(3) An accounting period of a company shall end for the purposes of corporation tax on the first occurrence of any of the following—
(a) the expiration of 12 months from the beginning of the accounting period,
(b) an accounting date of the company or, if there is a period for which the company does not make up accounts, the end of that period,
(c) the company beginning or ceasing to trade or to be, in respect of the trade or (if more than one) of all the trades carried on by it, within the charge to corporation tax,
(d) the company beginning or ceasing to be resident in the State, and
(e) the company ceasing to be within the charge to corporation tax.
(4) For the purposes of this section, a company resident in the State, if not otherwise within the charge to corporation tax, shall be treated as coming within the charge to corporation tax at the time when it commences to carry on business.
(5) Where a company carrying on more than one trade makes up accounts of any of those trades to different dates and does not make up general accounts for the whole of the company's activities, subsection (3) (b) shall apply with reference to the accounting date of such one of the trades as the Revenue Commissioners may determine.
(6) Where a chargeable gain or allowable loss accrues to a company at a time not otherwise within an accounting period of the company, an accounting period of the company shall then begin for the purposes of corporation tax and the gain or loss shall accrue in that accounting period.
(7) (a) Notwithstanding anything in subsections (1) to (6), where a company is wound up, an accounting period shall end and a new one shall begin with the commencement of the winding up, and thereafter an accounting period shall not end otherwise than by the expiration of 12 months from its beginning or by the completion of the winding up.
(b) For the purposes of paragraph (a), a winding up shall be taken to commence on the passing by the company of a resolution for the winding up of the company, or on the presentation of a winding up petition if no such resolution has previously been passed and a winding up order is made on the petition, or on the doing of any other act for a like purpose in the case of a winding up otherwise than under the Companies Act, 1963.
(8) Where it appears to the inspector that the beginning or end of any accounting period of a company is uncertain, he or she may make an assessment on the company for such a period, not exceeding 12 months, as appears to him or her appropriate, and that period shall be treated for all purposes as an accounting period of the company unless—
(a) the inspector on further facts coming to his or her knowledge sees fit to revise it, or
(b) on an appeal against the assessment in respect of some other matter, the company shows the true accounting periods,
and, if on an appeal against an assessment made by virtue of this subsection the company shows the true accounting periods, the assessment appealed against shall, as regards the period to which it relates, have effect as an assessment or assessments for the true accounting periods, and such other assessments may be made for any such periods or any of them as might have been made at the time when the assessment appealed against was made.
num: 28
paragraphs: —(1) Capital gains tax shall be charged in accordance with the Capital Gains Tax Acts in respect of capital gains, that is, in respect of chargeable gains computed in accordance with those Acts and accruing to a person on the disposal of assets.
(2) Capital gains tax shall be assessed and charged for years of assessment in respect of chargeable gains accruing in those years.
(3) Except where otherwise provided by the Capital Gains Tax Acts, the rate of capital gains tax in respect of a chargeable gain accruing to a person on the disposal of an asset shall be 40 per cent, and any reference in those Acts to the rate specified in this section shall be construed accordingly.
num: 29
paragraphs: —(1) In this section—
“designated area” means an area designated by order under section 2 of the Continental Shelf Act, 1968 ;
“exploration or exploitation rights” has the same meaning as in section 13 ;
“shares” includes stock and any security;
“security” includes securities not creating or evidencing a charge on assets, and interest paid by a company on money advanced without the issue of a security for the advance, or other consideration given by a company for the use of money so advanced, shall be treated as if paid or given in respect of a security issued for the advance by the company;
references to the disposal of assets mentioned in paragraphs (a) and (b) of subsection (3) and in subsection (6) include references to the disposal of shares deriving their value or the greater part of their value directly or indirectly from those assets, other than shares quoted on a stock exchange.
(2) Subject to any exceptions in the Capital Gains Tax Acts, a person shall be chargeable to capital gains tax in respect of chargeable gains accruing to such person in a year of assessment for which such person is resident or ordinarily resident in the State.
(3) Subject to any exceptions in the Capital Gains Tax Acts, a person who is neither resident nor ordinarily resident in the State shall be chargeable to capital gains tax for a year of assessment in respect of chargeable gains accruing to such person in that year on the disposal of—
(a) land in the State,
(b) minerals in the State or any rights, interests or other assets in relation to mining or minerals or the searching for minerals,
(c) assets situated in the State which at or before the time when the chargeable gains accrued were used in or for the purposes of a trade carried on by such person in the State through a branch or agency, or which at or before that time were used or held or acquired for use by or for the purposes of the branch or agency.
(4) Subsection (2) shall not apply in respect of chargeable gains accruing from the disposal of assets situated outside the State and the United Kingdom to an individual who satisfies the Revenue Commissioners that he or she is not domiciled in the State; but—
(a) the tax shall be charged on the amounts received in the State in respect of those chargeable gains,
(b) any such amounts shall be treated for the purposes of the Capital Gains Tax Acts as gains accruing when they are received in the State, and
(c) any losses accruing to the individual on the disposal of assets situated outside the State and the United Kingdom shall not be allowable losses for the purposes of the Capital Gains Tax Acts.
(5) For the purposes of subsection (4), all amounts paid, used or enjoyed in or in any manner or form transmitted or brought to the State shall be treated as received in the State in respect of any gain, and section 72 shall apply as it would apply if the gain were income arising from possessions outside of the State.
(6) Any gains accruing on the disposal of exploration or exploitation rights in a designated area shall be treated for the purposes of the Capital Gains Tax Acts as gains accruing on the disposal of assets situated in the State.
(7) Any gains accruing to a person who is neither resident nor ordinarily resident in the State on the disposal of assets mentioned in subsections (3)(b) and (6) shall be treated for the purposes of capital gains tax as gains accruing on the disposal of assets used for the purposes of a trade carried on by that person in the State through a branch or agency.
(8) Any person aggrieved by a decision of the Revenue Commissioners on any question as to domicile or ordinary residence arising under the Capital Gains Tax Acts may, by notice in writing to that effect given to the Revenue Commissioners within 2 months from the date on which notice of the decision is given to such person, make an application to have such person's claim for relief heard and determined by the Appeal Commissioners.
(9) Where an application is made under subsection (8), the Appeal Commissioners shall hear and determine the claim in the like manner as an appeal made to them against an assessment, and 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.
num: 30
paragraphs: —Where 2 or more persons carry on a trade, business or profession in partnership—
(a) capital gains tax in respect of chargeable gains accruing to those persons on the disposal of any partnership assets shall be assessed and charged on them separately, and
(b) any partnership dealings in assets shall be treated as dealings by the partners and not by the firm as such.
num: 31
paragraphs: —Capital gains tax shall be charged on the total amount of chargeable gains accruing to the person chargeable in the year of assessment, after deducting—
(a) any allowable losses accruing to that person in that year of assessment, and
(b) in so far as they have not been allowed as a deduction from chargeable gains accruing in any previous year of assessment, any allowable losses accruing to that person in any previous year of assessment (not earlier than the year 1974-75).
num: 32
paragraphs: —In this Chapter—
“banker” includes a person acting as a banker;
“coupons” and “coupons for any foreign public revenue dividends” include warrants for or bills of exchange purporting to be drawn or made in payment of any foreign public revenue dividends;
“dividends”, except in the phrase “stock, dividends or interest”, means any interest, annuities, dividends or shares of annuities;
“foreign public revenue dividends” means dividends payable elsewhere than in the State (whether they are or are not also payable in the State) out of any public revenue other than the public revenue of the State;
“public revenue”, except where the context otherwise requires, includes the public revenue of any Government whatever and the revenue of any public authority or institution in any country outside the State;
“public revenue dividends” means dividends payable out of any public revenue.
num: 33
paragraphs: —(1) Tax under Schedule C shall be charged by the Commissioners designated for that purpose by the Income Tax Acts, and shall be paid on behalf of the persons entitled to the profits, dividends, proceeds of realisation or price paid on purchase which are the subject of the tax—
num: 34
paragraphs: —(1) No tax shall be chargeable in respect of the stock, dividends or interest transferred to accounts in the books of the Bank of Ireland in the name of the Minister for Finance in pursuance of any statute, but the Bank of Ireland shall transmit to the Revenue Commissioners an account of the total amount of such stock, dividends or interest.
(2) No tax shall be chargeable in respect of the stock, dividends or interest belonging to the State in whatever name they may stand in the books of the Bank of Ireland.
num: 35
paragraphs: —(1) (a) No tax shall be chargeable in respect of the dividends on any securities of any territory outside the State which are payable in the State, where it is proved to the satisfaction of the Revenue Commissioners that the person owning the securities and entitled to the dividends is not resident in the State; but, except where provided by the Income Tax Acts, no allowance shall be given or repayment made in respect of the tax on the dividends on the securities of any such territory which are payable in the State.
(b) Where the securities of any territory outside the State are held under any trust, and the person who is the beneficiary in possession under the trust is the sole beneficiary in possession and can, by means either of the revocation of the trust or of the exercise of any powers under the trust, call on the trustees at any time to transfer the securities to such person absolutely free from any trust, that person shall for the purposes of this section be deemed to be the person owning the securities.
(2) Relief under this section may be given by the Revenue Commissioners either by means of allowance or repayment on a claim being made to them for that purpose.
(3) Any person aggrieved by a decision of the Revenue Commissioners on any question as to residence arising under this section may, by notice in writing to that effect given to the Revenue Commissioners within 2 months from the date on which notice of the decision is given to such person, make an application to have such person's claim for relief heard and determined by the Appeal Commissioners.
(4) Where an application is made under subsection (3), the Appeal Commissioners shall hear and determine the claim in the like manner as an appeal made to them against an assessment, and 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.
num: 36
paragraphs: —(1) The Minister for Finance may direct that any securities already issued or to be issued under that Minister's authority shall be deemed to have been, or shall be, issued subject to the condition that the interest on those securities shall be paid without deduction of tax
num: 37
paragraphs: —(1) In this section, “securities” means any bonds, certificates of charge, debentures, debenture stock, notes, stock or other forms of security.
(2) The securities specified in the Table to this section shall be deemed to be securities issued under the authority of the Minister for Finance under section 36 , and that section shall apply accordingly.
num: 38
paragraphs: —(1) This section shall apply to any securities (other than securities specified in the Table to section 37 ) which are issued by a body corporate and in respect of which the payment of interest and the repayment of principal are guaranteed by a Minister of the Government under statutory authority.
(2) Any securities to which this section applies shall be deemed to be securities issued under the authority of the Minister for Finance under section 36 , and that section shall apply accordingly.
num: 39
paragraphs: —(1) This section shall apply to any stock or other form of security issued in the State by the European Community, the European Coal and Steel Community, the European Atomic Energy Community or the European Investment Bank.
(2) Any stock or other form of security to which this section applies shall be deemed to be a security issued under the authority of the Minister for Finance under section 36 , and that section shall apply accordingly.
num: 40
paragraphs: —(1) This section shall apply to any stock or other form of security issued by the International Bank for Reconstruction and Development.
(2) Any stock or other form of security to which this section applies shall be deemed to be a security issued under the authority of the Minister for Finance under section 36 , and that section shall apply accordingly.
num: 41
paragraphs: —Any stock or other form of security issued by a body designated under section 4 (1) of the Securitisation (Proceeds of Certain Mortgages) Act, 1995 , shall be deemed to be a security issued under the authority of the Minister for Finance under section 36 , and that section shall apply accordingly.
num: 42
paragraphs: —The accumulated interest payable in respect of any savings certificate issued by the Minister for Finance, under which the purchaser, by virtue of an immediate payment of a specified sum, becomes entitled after a specified period to receive a larger sum consisting of the specified sum originally paid and accumulated interest on that specified sum, shall not be liable to tax so long as the amount of such certificates held by the person who is for the time being the holder of the certificate does not exceed the amount which that person is for the time being authorised to hold under regulations made by the Minister for Finance.
num: 43
paragraphs: —(1) Any security which the Minister for Finance has power to issue for the purpose of raising any money or loan may be issued with a condition that neither the capital of nor the interest on such security shall be liable to tax so long as it is shown in the manner to be prescribed by the Minister for Finance that such security is in the beneficial ownership of a person who is not, or persons who are not, ordinarily resident in the State, and accordingly every security issued with such condition shall be exempt from tax.
num: 44
paragraphs: —(1) In this section—
“control” shall be construed in accordance with subsections (2) to (6) of section 432 , with the substitution in subsection (6) of that section for “5 or fewer participators” of “persons resident in a relevant territory”;
“foreign company” means a company which is—
(a) not resident in the State, and
(b) under the control of a person or persons resident in a relevant territory;
“qualifying company” means a company—
(a) (i) which is resident in the State and not resident elsewhere,
(ii) whose business consists wholly or mainly of—
(I) the carrying on of a relevant trade or relevant trades, or
(II) the holding of stocks, shares or securities of a company which exists wholly or mainly for the purpose of the carrying on of a relevant trade or relevant trades,
and
(iii) of which not less than 90 per cent of its issued share capital is held by a foreign company or foreign companies, or by a person or persons directly or indirectly controlled by a foreign company or foreign companies,
or
(b) which is a foreign company carrying on a relevant trade through a branch or agency in the State;
“relevant territory” means the United States of America or a territory with the government of which arrangements having the force of law by virtue of section 826 have been made;
“relevant trade” means a trade carried on wholly or mainly in the State, but does not include a trade consisting wholly or partly of—
(a) banking within the meaning of the Central Bank Act, 1971 ,
(b) assurance business within the meaning of section 3 of the Insurance Act, 1936 ,
(c) selling goods by retail, or
(d) dealing in securities,
but goods shall be deemed for the purposes of this definition not to be sold by retail if they are sold to—
(i) a person who carries on a trade of selling goods of the class to which the goods so sold to such person belong,
(ii) a person who uses goods of that class for the purposes of a trade carried on by such person, or
(iii) a person, other than an individual, who uses goods of that class for the purposes of an undertaking carried on by such person.
(2) Any security which the Minister for Finance has power to issue for the purpose of raising any money or loan may be issued with a condition that any interest arising on such security shall not be liable to corporation tax so long as the security is held continuously from the date of issue in the beneficial ownership of a qualifying company to which the security was issued.
num: 45
paragraphs: —(1) The excess of the amount received on the redemption of a unit of non-interest-bearing securities issued by the Minister for Finance under section 4 of the Central Fund Act, 1965 , over the amount paid for the unit on its issue shall, except where the excess is to be taken into account in computing for the purposes of taxation the profits of a trade, be exempt from tax.
(2) Subsection (1) shall not apply to issues of securities to which subsection (3) applies made after the 25th day of January, 1984, unless a tender for any such securities was submitted on or before that date.
(3) The securities to which this subsection applies are—
(a) non-interest-bearing securities issued by the Minister for Finance at a discount, including Exchequer Bills and Exchequer Notes, and
(b) Agricultural Commodities Intervention Bills issued by the Minister for Agriculture and Food.
(4) (a) In this subsection, “owner”, in relation to securities, means at any time the person who would be entitled, if the securities were redeemed at that time by the issuer, to the proceeds of the redemption.
(b) Notwithstanding subsection (2), where the owner of a security to which subsection (3) applies—
(i) sells or otherwise disposes of the security, or
(ii) receives on redemption of the security an amount greater than the amount paid by such owner for that security either on its issue or otherwise,
then, any profit, gain or excess arising to the owner from such sale, disposal or receipt shall be exempt from tax where the owner is not ordinarily resident in the State; but this subsection shall not apply in respect of corporation tax chargeable on the income of an Irish branch or agency of a company not resident in the State.
num: 46
paragraphs: —The excess of the amount received on the redemption of a unit of securities created and issued by the Minister for Finance under the Central Fund (Permanent Provisions) Act, 1965 , and known as Investment Bonds, over the amount which was paid for the unit on its issue shall, except where the excess is to be taken into account in computing for the purposes of taxation the profits of a trade, be exempt from tax.
num: 47
paragraphs: —Debentures, debenture stock and certificates of charge issued by ACC Bank plc, shall not be liable to tax so long as it is shown in the manner to be prescribed by the Minister for Finance that they are in the beneficial ownership of persons neither domiciled nor ordinarily resident in the State.
num: 48
paragraphs: —(1) The securities to which this subsection applies are—
(a) securities created and issued by the Minister for Finance under the Central Fund (Permanent Provisions) Act, 1965 , or under any other statutory powers conferred on that Minister, and any stock, debenture, debenture stock, certificate of charge or other security issued with the approval of the Minister for Finance given under any Act of the Oireachtas and in respect of which the payment of interest and repayment of capital is guaranteed by the Minister for Finance under that Act, but excluding securities to which section 4 of the Central Fund Act, 1965 , or section 45 (1) or 46 applies,
(b) securities (other than securities specified in the Table to section 37 ) issued by a body corporate and in respect of which the payment of interest and the repayment of principal is guaranteed by a Minister of the Government under statutory authority,
(c) any stock or other form of security issued in the State by the European Community, the European Coal and Steel Community, the European Atomic Energy Community or the European Investment Bank, and
(d) any stock or other form of security issued by the International Bank for Reconstruction and Development.
(2) The excess of the amount received on the redemption of a unit of securities to which subsection (1) applies over the amount paid for the unit on its issue shall, except where the excess is to be taken into account in computing for the purposes of taxation the profits of a trade, be exempt from tax.
(3) Subsection (2) shall not apply to issues of securities to which subsection (4) applies made after the 25th day of January, 1984, unless a tender for any such securities was submitted on or before that date.
(4) The securities to which this subsection applies are—
(a) non-interest-bearing securities issued by the Minister for Finance at a discount, including Exchequer Bills and Exchequer Notes,
(b) Agricultural Commodities Intervention Bills issued by the Minister for Agriculture and Food, and
(c) strips within the meaning of section 54 (10) of the Finance Act, 1970 (inserted by section 161 of the Finance Act, 1997 ).
(5) (a) In this subsection, “owner”, in relation to securities, means at any time the person who would be entitled, if the securities were redeemed at that time by the issuer, to the proceeds of the redemption.
(b) Notwithstanding subsection (3), where the owner of a security to which subsection (4) applies—
(i) sells or otherwise disposes of the security, or
(ii) receives on redemption of the security an amount greater than the amount paid by the owner for that security either on its issue or otherwise,
any profit, gain or excess arising to the owner from such sale, disposal or receipt shall be exempt from tax where the owner is not ordinarily resident in the State; but this subsection shall not apply in respect of corporation tax chargeable on the income of an Irish branch or agency of a company not resident in the State.
num: 49
paragraphs: —(1) This section shall apply to any stock or other security on which interest is payable without deduction of tax by virtue of a direction given by the Minister for Finance in pursuance of section 37 , 38 , 39 , 40 or 41 .
(2) Any stock or other security to which this section applies may be issued with either or both of the following conditions—
(a) that neither the capital of nor the interest on the stock or other security shall be liable to tax so long as it is shown in the manner directed by the Minister for Finance that the stock or other security is in the beneficial ownership of persons who are neither domiciled nor ordinarily resident in the State, and
(b) that the interest on the stock or other security shall not be liable to tax so long as it is shown in the manner directed by the Minister for Finance that the stock or other security is in the beneficial ownership of persons who, though domiciled in the State, are not ordinarily resident in the State,
and accordingly, as respects every such stock or other security so issued, exemption from tax shall be granted.
num: 50
paragraphs: —(1) In this section, “local authority” includes any public body recognised as a local authority for the purpose of this section by the Minister for the Environment and Local Government.
(2) Securities issued outside the State by a local authority in the State for the purpose of raising any money which the local authority is authorised to borrow, if issued under the authority of the Minister for Finance, shall not be liable to tax, except—
(a) where they are held by persons domiciled in the State or ordinarily resident in the State, or
num: 51
paragraphs: —(1) In this section, “funding bonds” includes all bonds, stocks, shares, securities and certificates of indebtedness.
(2) This section shall apply to all debts owing by any government, public authority or public institution whatever or wherever and to all debts owing by any body corporate whatever or wherever.
(3) Where any funding bonds are issued to a creditor in respect of any liability to pay interest on a debt to which this section applies, the issue of those bonds shall be treated for the purposes of the Tax Acts as if it were the payment of an amount of the interest equal to the value of the bonds at the time of the issue of the bonds, and the redemption of the bonds shall not be treated for any of the purposes of the Tax Acts as payment of the interest or any part of the interest.
num: 52
paragraphs: —Income tax under Schedule D shall be charged on and paid by the persons or bodies of persons receiving or entitled to the income in respect of which tax under that Schedule is directed in the Income Tax Acts to be charged.
num: 53
paragraphs: —(1) In this section—
“farm land” means land in the State wholly or mainly occupied for the purposes of husbandry, other than market garden land within the meaning of section 654 ;
“occupation”, in relation to any land, means having the use of that land.
num: 54
paragraphs: —(1) This section shall apply to all interest, dividends, annuities and shares of annuities payable out of any public revenue of the State or out of any public revenue of Great Britain or of Northern Ireland or of Great Britain and Northern Ireland.
num: 55
paragraphs: —(1) In this section—
“chargeable period” has the same meaning as in section 321 (2);
“market value” shall be construed in accordance with section 548 ;
“nominal value”, in relation to a unit of a security, means—
(a) where the interest on the unit of the security is expressed to be payable by reference to a given value, that value, and
(b) in any other case, the amount paid for the unit of the security on its issue;
“opening value”, in relation to a unit of a security from which at any time strips of the unit have been created by a person, means—
num: 56
paragraphs: —(1) Subject to this section, Chapter 3 of this Part and section 108 shall apply in relation to the concerns which by virtue of section 18 are chargeable under Case I(b) of Schedule D.
num: 57
paragraphs: —(1) This section shall apply to any sum received or benefit derived by an employee in respect of which there would be a charge to tax by virtue of Chapter 3 of Part 5 if the office or employment held by the employee were one the profits or gains from which were chargeable to tax under Schedule E.
(2) Where a person holds an office or employment and—
num: 58
paragraphs: —(1) Profits or gains shall be chargeable to tax notwithstanding that at the time an assessment to tax in respect of those profits or gains was made
(a) the source from which those profits or gains arose was not known to the inspector,
(b) the profits or gains were not known to the inspector to have arisen wholly or partly from a lawful source or activity, or
(c) the profits or gains arose and were known to the inspector to have arisen from an unlawful source or activity,
and any question whether those profits or gains arose wholly or partly from an unknown or unlawful source or activity shall be disregarded in determining the chargeability to tax of those profits or gains.
(2) Notwithstanding anything in the Tax Acts, any profits or gains charged to tax by virtue of subsection (1) or charged to tax by virtue of or following any investigation by any body (in this subsection referred to as “the body”) established by or under statute or by the Government, the purpose or one of the principal purposes of which is—
(a) the identification of the assets of persons which derive or are suspected to derive, directly or indirectly, from criminal activity,
(b) the taking of appropriate action under the law to deprive or to deny those persons of the assets or the benefit of such assets, in whole or in part, as may be appropriate, and
(c) the pursuit of any investigation or the doing of any other preparatory work in relation to any proceedings arising from the purposes mentioned in paragraphs (a) and (b),
num: 59
paragraphs: —Where income (in this section referred to as “the relevant income”)—
num: 60
paragraphs: —In this Chapter—
“dividends to which this Chapter applies” means any interest, dividends or other annual payments payable out of or in respect of the stocks, funds, shares or securities of any body of persons not resident in the State, but does not include any payment to which section 237 or 238 applies, and references to dividends shall be construed accordingly;
“banker” includes a person acting as a banker;
references to coupons in relation to any dividends include warrants for or bills of exchange purporting to be drawn or made in payment of those dividends.
num: 61
paragraphs: —Where dividends to which this Chapter applies are entrusted to any person in the State for payment to any persons in the State—
num: 62
paragraphs: —Where—
(a) a banker or any other person in the State, by means of coupons received from another person or otherwise on that other person's behalf, obtains payment of any dividends to which this Chapter applies elsewhere than in the State,
(b) a banker in the State sells or otherwise realises coupons for any dividends to which this Chapter applies and pays over the proceeds of such realisation to or carries such proceeds to the account of any person, or
(c) a dealer in coupons in the State purchases coupons for any dividends to which this Chapter applies otherwise than from a banker or another dealer in coupons,
num: 63
paragraphs: —(1) (a) No tax shall be chargeable in respect of dividends to which this Chapter applies which are payable in the State where it is proved to the satisfaction of the Revenue Commissioners that the person owning the stocks, funds, shares or securities and entitled to the income arising from those stocks, funds, shares or securities is not resident in the State but, except where provided by the Income Tax Acts, no allowance shall be given or repayment made in respect of the tax on dividends to which this Chapter applies which are payable in the State.
(b) Where the dividends referred to in paragraph (a) are from stocks, funds, shares or securities which are held under any trust, and the person who is the beneficiary in possession under the trust is the sole beneficiary in possession and can, by means either of the revocation of the trust or of the exercise of any powers under the trust, call on the trustees at any time to transfer the stocks, funds, shares or securities to such person absolutely free from any trust, such person shall for the purposes of this section be deemed to be the person owning the stocks, funds, shares or securities.
(2) Relief under this section may be given by the Revenue Commissioners either by means of allowance or repayment on a claim being made to them for that purpose.
(3) Any person aggrieved by a decision of the Revenue Commissioners on any question as to residence arising under this section may, by notice in writing to that effect given to the Revenue Commissioners within 2 months from the date on which notice of the decision is given to such person, make an application to have such person's claim for relief heard and determined by the Appeal Commissioners.
(4) Where an application is made under subsection (3), the Appeal Commissioners shall hear and determine the claim in the like manner as an appeal made to them against an assessment, and 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.
num: 64
paragraphs: —(1) In this section—
“appropriate inspector” means the inspector authorised by the Revenue Commissioners for the purposes of this section;
“quoted Eurobond” means a security which—
(a) is issued by a company,
(b) is quoted on a recognised stock exchange,
(c) is in bearer form, and
(d) carries a right to interest;
“recognised clearing system” means any system for clearing quoted Eurobonds or relevant foreign securities which is for the time being designated for the purposes of this section by order of the Revenue Commissioners as a recognised clearing system;
“relevant foreign securities” means—
(a) any such stocks, funds, shares or securities as give rise to dividends to which this Chapter applies, or
(b) any such securities as give rise to foreign public revenue dividends within the meaning of section 32 ;
“relevant person” means—
(a) the person by or through whom interest is paid, or
(b) a banker or any other person, or a dealer in coupons, referred to in section 62 ,
as the case may be.
(2) Section 246 (2) shall not apply to interest paid on any quoted Eurobond where—
(a) the person by or through whom the payment is made is not in the State, or
(b) the payment is made by or through a person in the State, and—
(i) the quoted Eurobond is held in a recognised clearing system, or
(ii) the person who is the beneficial owner of the quoted Eurobond and who is beneficially entitled to the interest is not resident in the State and has made a declaration of the kind mentioned in subsection (7).
(3) In a case within subsection (2)(b), the person by or through whom the payment is made shall deliver to the appropriate inspector—
(a) on demand by the appropriate inspector, an account of the amount of any such payment, and
(b) not later than 12 months after making any such payment and unless within that time that person delivers an account with respect to the payment under paragraph (a), a written statement specifying that person's name and address and describing the payment.
(4) Where by virtue of any provision of the Tax Acts interest paid on any quoted Eurobond is deemed to be income of a person other than the person who is the beneficial owner of the quoted Eurobond, subsection (2)(b)(ii) shall apply as if it referred to that other person.
num: 65
paragraphs: —(1) Subject to this Chapter, income tax shall be charged under Case I or II of Schedule D on the full amount of the profits or gains of the year of assessment.
(2) Where in the case of any trade or profession it has been customary to make up accounts—
(a) if only one account was made up to a date within the year of assessment and that account was for a period of one year, the profits or gains of the year ending on that date shall be taken to be the profits or gains of the year of assessment;
(b) if an account, other than an account to which paragraph (a) applies, was made up to a date in the year of assessment, or if more accounts than one were made up to dates in the year of assessment, the profits or gains of the year ending on that date or on the last of those dates, as the case may be, shall be taken to be the profits or gains of the year of assessment;
(c) in any other case, the profits or gains of the year of assessment shall be determined in accordance with subsection (1).
(3) Where the profits or gains of a year of assessment have been computed on the basis of a period in accordance with paragraph (b) or (c) of subsection (2) and the profits of the corresponding period relating to the preceding year of assessment exceed the profits or gains charged to income tax for that year, then, the profits of that corresponding period shall be taken to be the profits or gains of that preceding year of assessment and the assessment shall be amended accordingly.
(4) In the case of the death of a person who, if he or she had not died, would under this section have become chargeable to income tax for any year of assessment, the tax which would have been so chargeable shall be assessed and charged on such person's executors or administrators, and shall be a debt due from and payable out of such person's estate.
num: 66
paragraphs: —(1) Where a trade or profession has been set up and commenced within the year of assessment, the computation of the profits or gains chargeable under Case I or II of Schedule D shall be made either on the full amount of the profits or gains arising in the year of assessment or according to the average of such period, not being greater than one year, as the case may require and as may be directed by the inspector.
(2) Any person chargeable with income tax in respect of the profits or gains of any trade or profession which has been set up and commenced within one year preceding the year of assessment shall be charged on the full amount of the profits or gains for one year from the time of such setting up and commencement.
(3) Any person chargeable with income tax in respect of the profits or gains of any trade or profession which has been set up and commenced within the year next before the year preceding the year of assessment shall be entitled, on giving notice in writing to the inspector with the return required under section 951 for the year of assessment, to have the assessment reduced by the amount (if any) by which the amount of the assessment for the year preceding the year of assessment exceeds the full amount of the profits or gains of that preceding year; but, where the excess is greater than the amount of the assessment, the difference between the excess and the amount of the assessment shall be treated for the purposes of section 382 as if it were a loss sustained in a trade in that year of assessment.
num: 67
paragraphs: —(1) (a) Where in any year of assessment a trade or profession is permanently discontinued, then, notwithstanding anything in the Income Tax Acts—
(i) the person charged or chargeable with income tax in respect of the trade or profession shall be charged for that year on the amount of the profits or gains of the period beginning on the 6th day of April in that year and ending on the date of the discontinuance, subject to any deduction or set-off to which such person may be entitled under section 382 and, if such person has been charged otherwise than in accordance with this paragraph, any tax overpaid shall be repaid, or an additional assessment may be made on such person, as the case may require;
(ii) if the profits or gains of the year ending on the 5th day of April in the year preceding the year of assessment in which the discontinuance occurs exceed the amount on which the person has been charged for that preceding year, or would have been charged if no such deduction or set-off to which such person may be entitled under section 382 had been allowed, an additional assessment may be made on such person, so that such person shall be charged for that preceding year on the amount of the profits or gains of the year ending on the 5th day of April in that preceding year, subject to any such deduction or set-off to which such person may be entitled.
(b) In the case of the death of a person who, if he or she had not died, would under this subsection have become chargeable to income tax for any year, the tax which would have been so chargeable shall be assessed and charged on such person's executors or administrators, and shall be a debt due from and payable out of such person's estate.
(2) The reference in subsection (1) to the discontinuance of a trade or profession shall be construed as referring to a discontinuance occurring by reason of the death while carrying on such trade or profession of the person carrying on the same, as well as to a discontinuance occurring in the lifetime of such person, and for the purposes of subsection (1) such death shall be deemed to cause a discontinuance and such discontinuance shall be deemed to take place on the day of such death.
num: 68
paragraphs: —(1) This section shall apply to a trade or profession—
(a) which has been set up and commenced in a year of assessment,
(b) which is permanently discontinued within the second year of assessment following that year of assessment, and
(c) in respect of which the aggregate of the profits or gains on which any person has been charged, or would be charged to income tax, by virtue of any other provision of the Income Tax Acts, exceeds the aggregate of the profits or gains arising in the period beginning on the date of set up and commencement and ending on the date of permanent discontinuance of the trade or profession.
(2) Any person chargeable to income tax on the profits or gains of a trade or profession to which this section applies shall be entitled, on giving notice in writing to the inspector on or before the specified return date (within the meaning of section 950 ) for the year of assessment in which the trade or profession is permanently discontinued, to have the assessment for the year of assessment immediately preceding that year reduced by the amount by which the amount of the assessment for that immediately preceding year exceeds the full amount of the profits or gains arising in that same year.
(3) Subsection (2) of section 67 shall apply to this section as if references in that subsection to subsection (1) of that section included references to this section.
num: 69
paragraphs: —(1) Where at any time a trade or profession which immediately before that time was carried on by an individual (in this subsection referred to as “the predecessor”) becomes carried on by another individual or by a partnership of persons (including a partnership in which the predecessor is a partner), the income tax payable for all years of assessment by the predecessor shall be computed as if the trade or profession had been permanently discontinued at that time.
(2) Where at any time an individual (in this subsection referred to as “the successor”) succeeds to a trade or profession which immediately before that time was carried on by another individual or by a partnership of persons (including a partnership in which the successor was a partner), the income tax payable for all years of assessment by the successor shall be computed as if the successor had set up or commenced the trade or profession at that time.
(3) In the case of the death of a person who, if he or she had not died, would under this section have become chargeable to income tax for any year, the tax which would have been so chargeable shall be assessed and charged on such person's executors or administrators, and shall be a debt due from and payable out of such person's estate.
num: 70
paragraphs: —(1) Income or profits chargeable under Case III of Schedule D shall, for the purposes of ascertaining liability to income tax, be deemed to issue from a single source, and this section shall apply accordingly.
num: 71
paragraphs: —(1) Subject to this section and section 70 , income tax chargeable under Case III of Schedule D in respect of income arising from securities and possessions in any place outside the State shall be computed on the full amount of such income arising in the year of assessment whether the income has been or will be received in the State or not, subject to, in the case of income not received in the State—
(a) the same deductions and allowances as if it had been so received,
(b) the deduction, where such deduction cannot be made under, and is not forbidden by, any other provision of the Income Tax Acts, of any sum paid in respect of income tax in the place where the income has arisen, and
(c) a deduction on account of any annuity or other annual payment (apart from annual interest) payable out of the income to a person not resident in the State,
and the provisions of the Income Tax Acts (including those relating to the delivery of statements) shall apply accordingly.
(2) Subsection (1) shall not apply to any person who satisfies the Revenue Commissioners that he or she is not domiciled in the State, or that, being a citizen of Ireland, he or she is not ordinarily resident in the State.
(3) In the cases mentioned in subsection (2), the tax shall, subject to section 70 , be computed on the full amount of the actual sums received in the State from remittances payable in the State, or from property imported, or from money or value arising from property not imported, or from money or value so received on credit or on account in respect of such remittances, property, money or value brought into the State in the year of assessment without any deduction or abatement.
num: 72
paragraphs: —(1) For the purposes of this section—
(a) a debt for money loaned shall, to the extent to which that money is applied in or towards satisfying another debt, be deemed to be a debt incurred for satisfying that other debt, and a debt incurred for satisfying in whole or in part a debt within subsection (2)(c) shall itself be treated as within that subsection, and
(b) “lender”, in relation to any money loaned, includes any person for the time being entitled to repayment.
(2) For the purposes of section 71 (3), any income arising from securities and possessions in any place outside the State which is applied outside the State by a person ordinarily resident in the State in or towards satisfaction of—
(a) any debt for money loaned to such person in the State or for interest on money so loaned,
(b) any debt for money loaned to such person outside the State and received in or brought to the State, or
(c) any debt incurred for satisfying in whole or in part a debt within paragraph (a) or (b),
shall be treated as received by such person in the State and as so received from remittances payable in the State.
(3) Where a person ordinarily resident in the State receives in or brings to the State money loaned to such person outside the State, but the debt for that money is wholly or partly satisfied before such person does so, subsection (2) shall apply as if the money had been received in or brought to the State before the debt was so satisfied, except that any sums treated by virtue of that subsection as received in the State shall be treated as so received at the time when the money so loaned is actually received in or brought to the State.
(4) Where a person is indebted for money loaned to him or her, income applied by the person in such a way that the money or property representing the income is held by the lender on behalf of or to the account of the person in such circumstances as to be available to the lender for the purpose of satisfying or reducing the debt by set-off or otherwise shall be treated as applied by the person in or towards its satisfaction if, under any arrangement between the person and the lender, the amount for the time being of the person's indebtedness to the lender, or the time at which it is to be repaid in whole or in part, depends in any respect directly or indirectly on the amount or value so held by the lender.
(5) In relation to income applied in or towards satisfaction of a debt for money loaned on or after the 20th day of February, 1997, or a debt incurred for satisfying in whole or in part any such debt, this section shall apply as if the references to ordinarily resident in the State in subsections (2) and (3) were references to resident or ordinarily resident in the State.
num: 73
paragraphs: —(1) In this section, “rents” includes any payment in the nature of a royalty and any annual or periodical payment in the nature of a rent derived from any lands, tenements or hereditaments, including lands, tenements and hereditaments to which section 56 would apply or would have applied if such lands, tenements and hereditaments were situate in the State.
(2) In respect of property situate and profits or gains arising in Great Britain or Northern Ireland—
(a) sections 70 and 71 shall apply as if section 71 (2) were deleted, and
num: 74
paragraphs: —(1) Income tax under Case IV of Schedule D shall be computed either on the full amount of the profits or gains arising in the year of assessment or according to the average of such a period, not being greater than one year, as the case may require and as may be directed by the inspector.
num: 75
paragraphs: —(1) Without prejudice to any other provision of the Income Tax Acts, the profits or gains arising from—
(a) any rent in respect of any premises, and
(b) any receipts in respect of any easement,
num: 76
paragraphs: —(1) Except where otherwise provided by the Tax Acts, the amount of any income shall for the purposes of corporation tax be computed in accordance with income tax principles, all questions as to the amounts which are or are not to be taken into account as income, or in computing income, or charged to tax as a person's income, or as to the time when any such amount is to be treated as arising, being determined in accordance with income tax law and practice as if accounting periods were years of assessment.
(2) For the purposes of this section, “income tax law”, in relation to any accounting period, means the law applying to the charge on individuals of income tax for the year of assessment in which that accounting period ends, but does not include such of the enactments of the Income Tax Acts so applying as make special provision for individuals in relation to matters referred to in subsection (1).
num: 77
paragraphs: —(1) For the purposes of corporation tax, income tax law as applied by section 76 shall apply subject to subsections (2) to (7).
(2) (a) Where a company begins or ceases to carry on a trade, or to be within the charge to corporation tax in respect of a trade, the company's income shall be computed as if that were the commencement or, as the case may be, discontinuance of the trade, whether or not the trade is in fact commenced or discontinued.
(b) Notwithstanding paragraph (a), where any provision of the Income Tax Acts is applied for corporation tax by the Corporation Tax Acts, this subsection shall not apply for any purpose of that provision if under any enactment a trade is not to be treated as permanently discontinued for the corresponding income tax purpose.
(3) In computing income from a trade, section 76 (5)(b) shall not prevent the deduction of yearly interest.
(4) In computing a company's income for any accounting period from the letting of rights to work minerals in the State, there may be deducted any sums disbursed by the company wholly, exclusively and necessarily as expenses of management or supervision of those minerals in that period; but any enactments restricting the relief from income tax that might be given under section 111 shall apply to restrict in the like manner the deductions that may be made under this subsection.
num: 78
paragraphs: —(1) Subject to this section, the amount to be included in respect of chargeable gains in a company's total profits for any accounting period shall be determined in accordance with subsection (3) after taking into account subsection (2).
(2) Where for an accounting period chargeable gains accrue to a company, an amount of capital gains tax shall be calculated as if, notwithstanding any provision to the contrary in the Corporation Tax Acts, capital gains tax were to be charged on the company in respect of those gains in accordance with the Capital Gains Tax Acts, and as if accounting periods were years of assessment; but, in calculating the amount of capital gains tax, section 31 shall apply as if the reference in that section to deducting allowable losses were a reference to deducting relevant allowable losses.
(3) (a) The amount referred to in subsection (1) shall be an amount which, if (before making any deduction from the amount) it were charged to corporation tax as profits of the company arising in the accounting period at the rate specified in section 21 (1), would produce an amount of corporation tax equal to the amount of capital gains tax calculated for that accounting period in accordance with subsection (2).
(b) For the purposes of paragraph (a), where part of the accounting period falls in one financial year (in this paragraph referred to as the “first-mentioned financial year”) and the other part falls in the financial year succeeding the first-mentioned financial year and different rates are in force under section 21 (1) for each of those years, “the rate specified in section 21 (1)” shall be deemed to be a rate per cent determined by the formula—
(A × C)
______
E
+
(B × D)
______
E
where—
A is the rate per cent in force for the first-mentioned financial year,
B is the rate per cent in force for the financial year succeeding the first-mentioned financial year,
C is the length of that part of the accounting period falling in the first-mentioned financial year,
D is the length of that part of the accounting period falling in the financial year succeeding the first-mentioned financial year, and
E is the length of the accounting period.
(c) Paragraph (b) shall apply as respects accounting periods ending on or after the 1st day of April, 1997, as if—
(i) the period beginning on the 1st day of January, 1996, and ending on the 31st day of March, 1997, and
(ii) the period beginning on the 1st day of April, 1997, and ending on the 31st day of December, 1998,
were each a financial year.
(4) In subsection (2)—
“chargeable gains” does not include chargeable gains accruing on relevant disposals within the meaning of section 648 ;
“relevant allowable losses” means any allowable losses accruing to the company in the accounting period and any allowable losses previously accruing to the company while it has been within the charge to corporation tax in so far as they have not been allowed as a deduction from chargeable gains accruing in any previous accounting period.
(5) Except where otherwise provided by the Corporation Tax Acts, chargeable gains and allowable losses shall for the purposes of corporation tax be computed in accordance with the principles applying for capital gains tax, all questions as to the amounts which are or are not to be taken into account as chargeable gains or as allowable losses, or in computing gains or losses, or charged to tax as a person's gain, or as to the time when any such amount is to be treated as accruing, being determined in accordance with the provisions relating to capital gains tax as if accounting periods were years of assessment.
(6) Subject to subsection (8), where the enactments relating to capital gains tax contain any reference to income tax or to the Income Tax Acts, the reference shall, in relation to a company, be construed as a reference to corporation tax or to the Corporation Tax Acts; but—
(a) this subsection shall not affect the references to income tax in section 554 (2), and
(b) in so far as those enactments operate by reference to matters of any specified description, for corporation tax account shall be taken of matters of that description which are confined to companies, but not of any such matters which are confined to individuals.
(7) The Capital Gains Tax Acts as extended by this section shall not be affected in their operation by the fact that capital gains tax and corporation tax are distinct taxes but, in so far as is consistent with the Corporation Tax Acts, shall apply in relation to capital gains tax and corporation tax on chargeable gains as if they were one tax, so that, in particular, a matter which in a case involving 2 individuals is relevant for both of them in relation to capital gains tax shall in a like case involving an individual and a company be relevant for such individual in relation to capital gains tax and for such company in relation to corporation tax.
(8) Where assets of a company are vested in a liquidator, this section and the enactments applied by this section shall apply as if the assets were vested in, and the acts of the liquidator in relation to the assets were the acts of, the company (acquisitions from or disposals to the liquidator by the company being disregarded accordingly).
num: 79
paragraphs: —(1) (a) In this section—
“profit and loss account” means—
(i) in the case of a company (in this definition referred to as the “resident company”) resident in the State, the account of that company, and
(ii) in the case of a company (in this definition referred to as the “non-resident company”) not resident in the State but carrying on a trade in the State through a branch or agency, the account of the business of the company carried on through or from such branch or agency,
which, in the opinion of the auditor appointed under section 160 of the Companies Act, 1963 , or under the law of the State in which the resident company or non-resident company, as the case may be, is incorporated and which corresponds to that section, presents a true and fair view of the profit or loss of the resident company or the business of the non-resident company, as the case may be;
“rate of exchange” means a rate at which 2 currencies might reasonably be expected to be exchanged for each other by persons dealing at arm's length or, where the context so requires, an average of such rates;
“relevant contract”, in relation to a company, means any contract entered into by the company for the purpose of eliminating or reducing the risk of loss being incurred by the company due to a change in the value of a relevant monetary item, being a change resulting directly from a change in a rate of exchange;
“relevant monetary item”, in relation to a company, means money held or payable by the company for the purposes of a trade carried on by it;
“relevant tax contract”, in relation to an accounting period of a company, means any contract entered into by the company for the purpose of eliminating or reducing the risk of loss being incurred by the company due to a change in the value of money payable in discharge of a liability of the company to corporation tax for the accounting period, being a change resulting directly from a change in a rate of exchange of the functional currency (within the meaning of section 402 ) of the company for the currency of the State.
(b) The treatment of a contract entered into by a company as a relevant contract for the purposes of this section shall be disregarded for any other purpose of the Tax Acts.
(2) Notwithstanding section 76 , for the purposes of corporation tax, the amount of any gain or loss, whether realised or unrealised, which—
(a) is attributable to any relevant monetary item or relevant contract of a company,
(b) results directly from a change in a rate of exchange, and
(c) is properly credited or debited, as the case may be, to the profit and loss account of the company,
shall be taken into account in computing the trading income of the company.
(3) (a) Notwithstanding section 78 , for the purposes of corporation tax, where any gain or loss arises to a company in respect of—
(i) a relevant contract of the company, or
(ii) money held by the company for the purposes of a trade carried on by it,
so much of that gain or loss as results directly from a change in a rate of exchange shall not be a chargeable gain or an allowable loss, as the case may be, of the company.
num: 80
paragraphs: —(1) In this section—
“relevant liability”, in relation to an accounting period, means relevant principal—
(a) denominated in a currency other than the currency of the State, and
(b) the interest in respect of which—
(i) is to be treated as a distribution for the purposes of the Corporation Tax Acts, and
(ii) is computed on the basis of a rate which, at any time in that accounting period, exceeds 80 per cent of the specified rate at that time;
“relevant principal” means an amount of money advanced to a borrower by a company, the ordinary trading activities of which include the lending of money, where—
(a) the consideration given by the borrower for that amount is a security within subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d), and
(b) interest or any other distribution is paid out of the assets of the borrower in respect of that security;
“specified rate” means—
(a) the rate known as the 3 month Dublin Interbank Offered Rate, a record of which is maintained by the Central Bank of Ireland, or
(b) where such a record was not maintained, the rate known as the Interbank market 3 month fixed rate as published in the statistical appendices of the bulletins and annual reports of the Central Bank of Ireland.
(2) Notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts, a profit or loss from any foreign exchange transaction, being a profit or loss which arises in an accounting period—
(a) in connection with relevant principal which, in relation to the accounting period, is a relevant liability, and
(b) to a company which, in relation to that relevant liability, is the borrower,
shall for the purposes of those Acts be deemed to be a profit or gain or a loss, as the case may be, of the trade carried on by the borrower in the course of which trade the relevant liability is used.
num: 81
paragraphs: —(1) The tax under Cases I and II of Schedule D shall be charged without any deduction other than is allowed by the Tax Acts.
num: 82
paragraphs: —(1) This section shall apply to expenditure incurred for the purposes of a trade or profession set up and commenced on or after the 22nd day of January, 1997.
(2) Subject to subsection (3), where a person incurs expenditure for the purposes of a trade or profession before the time that the trade or profession has been set up and commenced by that person, and such expenditure—
(a) is incurred not more than 3 years before that time, and
num: 83
paragraphs: —(1) For the purposes of this section and of the other provisions of the Corporation Tax Acts relating to expenses of management, “investment company” means any company whose business consists wholly or mainly of the making of investments, and the principal part of whose income is derived from the making of investments, but includes any savings bank or other bank for savings.
(2) In computing for the purposes of corporation tax the total profits for any accounting period of an investment company resident in the State—
num: 84
paragraphs: —Where a superannuation scheme is established in connection with a trade or undertaking or a superannuation scheme so established is altered, and the person by whom the trade or undertaking is carried on makes a payment in respect of expenses (including a payment in respect of professional fees, but not including a payment by means of contribution towards the cost of providing the benefits payable under the scheme) in connection with such establishment or alteration, then, if the scheme or, as the case may be, the altered scheme is approved by the Revenue Commissioners under section 772 , the amount of the payment shall be allowed to be deducted in the computation, for the purposes of assessment to tax, of the profits or gains of the trade or undertaking as an expense incurred when the payment is made.
num: 85
paragraphs: —(1) In this section, “premises” means an industrial building or structure within the meaning of section 268 which is not a building or structure to which section 272 applies.
num: 86
paragraphs: —Notwithstanding anything in section 81 , in computing the amount of the profits or gains of any trade, there shall be allowed to be deducted as expenses any fees paid or expenses incurred in obtaining for the purposes of the trade the registration of a trade mark or the renewal of registration of a trade mark.
num: 87
paragraphs: —(1) Where, in computing for tax purposes the profits or gains of a trade or profession, a deduction has been allowed for any debt incurred for the purposes of the trade or profession, then, if the whole or any part of that debt is thereafter released, the amount released shall be treated as a receipt of the trade or profession arising in the period in which the release is effected.
(2) If in any case referred to in subsection (1) the trade or profession has been permanently discontinued at or after the end of the period for which the deduction was allowed and before the release was effected, or is treated for tax purposes as if it had been so discontinued, section 91 shall apply as if the amount released were a sum received after the discontinuance.
num: 88
paragraphs: —(1) In this section, “the company” means the company incorporated on the 30th day of October, 1991, as The Enterprise Trust Limited.
(2) This section shall apply to a gift of money which—
(a) on or before the 31st day of December, 1999, is made to the company and accepted by it,
(b) is to be applied by the company solely for the objects set out in its memorandum of association,
(c) apart from subsection (3) would not be deductible in computing for the purposes of corporation tax the profits or gains of a trade or profession, and
(d) is not income to which section 792 applies.
(3) (a) Subject to paragraph (b) and subsection (2), where a company (in this section referred to as a “donor”) makes a gift to which this section applies and claims relief from tax by reference to the gift, the net amount of the gift shall be treated for the purposes of corporation tax as—
(i) a deductible trading expense of a trade carried on by the donor, or
(ii) an expense of management deductible in computing the total profits of the donor,
incurred by it in the accounting period in which the gift is made.
(b) In determining for the purposes of paragraph (a) the net amount of the gift, the amount or value of any consideration received by a donor as a result of making the gift, whether received directly or indirectly from the company or any other person, shall be deducted from the amount of the gift, and relief under this section shall not be given to a donor for an accounting period—
(i) if the net amount of the gift (or the aggregate of the net amounts of gifts) made by the donor in that accounting period, being a gift or gifts, as the case may be, to which this section applies, does not exceed £500,
(ii) to the extent to which the net amount of the gift (or the aggregate of the net amounts of gifts) made by the donor in that accounting period, being a gift or gifts, as the case may be, to which this section applies, exceeds £100,000,
(iii) in respect of a gift made at any time in the year ending on the 31st day of December in the year 1998 or 1999, if at that time the aggregate of the net amounts of all gifts to which this section applies made to the company within that year exceeds £1,500,000.
(4) A claim under this section shall be made with the return required to be delivered under section 951 for the accounting period in which the payment is made.
(5) Where a donor makes a gift in respect of which relief is not to be given by virtue of subparagraph (iii) of subsection (3)(b), the company shall, by notice in writing given to the donor within 30 days of the making of the gift, advise the donor accordingly.
(6) Where a gift to which this section applies is made by a donor in an accounting period of the donor which is less than 12 months, the amounts specified in subparagraphs (i) and (ii) of subsection (3)(b) shall be proportionately reduced.
num: 89
paragraphs: —(1) (a) In this section, “trading stock” means, subject to paragraph (b), property of any description, whether real or personal, which is either—
(i) property such as is sold in the ordinary course of the trade in relation to which the expression is used or would be so sold if it were mature or if its manufacture, preparation or construction were complete, or
(ii) materials such as are used in the manufacture, preparation or construction of property such as is sold in the ordinary course of that trade.
(b) For the purposes of this section, “trading stock”, in relation to a trade, includes any services, article or material which, if the trade were a profession, would be treated as work in progress of the profession for the purposes of section 90 , and references to the sale or transfer of trading stock shall be construed accordingly.
(c) References in this section to a trade having been discontinued or to the discontinuance of a trade shall be construed as not referring to or including any case where such trade was carried on by a single individual and is discontinued by reason of such individual's death (whether such trade is or is not continued by another person after such death), but shall be construed as referring to and including every other case where a trade has been discontinued or is, by virtue of any of the provisions of the Tax Acts, treated as having been discontinued for the purpose of computing tax.
(2) In computing the profits or gains of a trade which has been discontinued, any trading stock belonging to the trade at the discontinuance of the trade shall be valued in accordance with the following provisions:
(a) in the case of any such trading stock—
(i) which is sold, or is transferred for valuable consideration, to a person who carries on or intends to carry on a trade in the State, and
(ii) the cost of which to such person on such sale or transfer may be deducted by such person as an expense in computing for any purpose of the Tax Acts the profits or gains of the trade carried on or intended to be carried on by such person,
the value of such trading stock shall be taken to be the price paid for such trading stock on such sale or the value of the consideration given for such trading stock on such transfer, as the case may be;
(b) in the case of any other such trading stock, the value of such other trading stock shall be taken to be the amount which it would have realised if it had been sold in the open market at the discontinuance of the trade.
num: 90
paragraphs: —(1) Where, in computing for any of the purposes of the Tax Acts the profits or gains of a profession which has been discontinued, a valuation is taken of the work of the profession in progress at the discontinuance, that work shall be valued as follows:
(a) if the work is transferred for money or any other valuable consideration to a person who carries on or intends to carry on a profession in the State, and the cost of the work may be deducted by that person as an expense in computing for any such purpose the profits or gains of that profession, the value of the work shall be taken to be the amount paid or other consideration given for the transfer;
(b) if the work is not to be valued under paragraph (a), its value shall be taken to be the amount which would have been paid for a transfer of the work on the date of the discontinuance as between parties at arm's length.
(2) Where a profession is discontinued and the person by whom it was carried on immediately before the discontinuance so elects, by notice in writing sent to the inspector at any time within 24 months after the discontinuance, the amount, if any, by which the value of the work in progress at the discontinuance (as ascertained under subsection (1)) exceeds the actual cost of the work shall not be taken into account in computing the profits or gains of the period immediately before the discontinuance, but the amount by which any sums received for the transfer of the work exceed the actual cost of the work shall be included in the sums chargeable to tax under section 91 as if it were a sum to which that section applies received after the discontinuance.
(3) Subsections (1) and (2) shall apply where a profession is treated for any of the purposes of the Tax Acts as permanently discontinued as they apply in the case of an actual discontinuance, but shall not apply in a case where a profession carried on by a single individual is discontinued by reason of such individual's death.
(4) References in this section to work in progress at the discontinuance of a profession shall be construed as references to—
(a) any services performed in the ordinary course of the profession, the performance of which was wholly or partly completed at the time of the discontinuance and for which it would be reasonable to expect that a charge would have been made on their completion if the profession had not been discontinued, and
(b) any article produced, and any such material as is used, in the performance of any such services,
and references in this section to the transfer of work in progress shall include references to the transfer of any benefits and rights which accrue, or might reasonably be expected to accrue, from the carrying out of the work.
num: 91
paragraphs: —(1) Subject to subsection (2), this section shall apply to all sums arising from the carrying on of a trade or profession during any period before the discontinuance of the trade or profession (not being sums otherwise chargeable to tax), in so far as the amount or value of the sums was not taken into account in computing the profits or gains for any period before the discontinuance, and whether or not the profits or gains for the period were computed on an earnings basis or on a conventional basis.
(2) This section shall not apply to any of the following sums—
(a) sums received by a person beneficially entitled to such sums who is not resident in the State, or by a person acting on such person's behalf, which represent income arising directly or indirectly from a country or territory outside the State,
(b) a lump sum paid to the personal representatives of the author of a literary, dramatic, musical or artistic work as a consideration for the assignment by them, wholly or partially, of the copyright in the work,
(c) sums realised by the transfer of trading stock belonging to a trade at the discontinuance of the trade or, in a case in which the profits or gains of a profession were computed on an earnings basis at the discontinuance of the profession, sums realised by the transfer of the work of the profession in progress at the discontinuance, and
(d) sums arising to an individual from a work which is such that any profits or gains that might have arisen to the individual from its publication, production or sale, as the case might be, would in accordance with section 195 (3) have been disregarded for the purposes of the Income Tax Acts if they had arisen before the discontinuance of that individual's profession.
num: 92
paragraphs: —(1) This section shall apply in any case where, as a result of a change in the persons engaged in carrying on a trade or profession, the trade or profession is treated for any of the purposes of the Tax Acts as if it had been permanently discontinued and a new trade or profession set up and commenced.
(2) (a) Sections 91 and 95 shall apply in the case of any such change as if the trade or profession had been permanently discontinued.
(b) Notwithstanding paragraph (a), where the right to receive any sums to which section 91 applies is or was transferred at the time of the change to the persons carrying on the trade or profession after the change, tax shall not be charged by virtue of that section, but any sums received by those persons by virtue of the transfer shall be treated for all purposes as receipts to be taken into the computation of profits or gains of the trade or profession in the period in which they are received.
(3) In computing for tax purposes the profits or gains of the trade or profession in any period after the change, there may be deducted a sum equal to any amount proved during that period to be irrecoverable in respect of any debts credited in computing for tax purposes the profits or gains for any period before the change (being debts the benefit of which was assigned to the persons carrying on the trade or profession after the change), in so far as the total amount proved to be irrecoverable in respect of those debts exceeds any deduction allowed in respect of them under section 81 (2)(i) in a computation for any period before the change.
num: 93
paragraphs: —(1) In this section—
“the net amount” with which a person is chargeable to tax under section 91 means the amount with which such person is so chargeable after making any deduction authorised by section 91 (4) but before giving any relief under this section;
“relevant date” means—
(a) in relation to tax under section 91 , the date of the permanent discontinuance, and
(b) in relation to tax under section 94 , the date of the change of basis.
(2) Where an individual born before the 6th day of April, 1919, or the personal representative of such an individual, is chargeable to tax under section 91 or 94 and—
(a) the individual was engaged in carrying on the trade or profession on the 4th day of August, 1970, and
(b) the profits or gains of the trade or profession were not computed by reference to earnings in the period in which the date specified in paragraph (a) fell, or in any subsequent period ending before or on the relevant date,
the net amount with which such individual is so chargeable to tax shall be reduced by multiplying that net amount by the fraction specified in subsection (4).
(3) Where section 94 applies in relation to a change of basis taking place on a date before the 4th day of August, 1970, then, in relation to tax chargeable by reference to that change of basis, subsection (2) shall apply as if—
(a) that earlier date were substituted for the date specified in paragraph (a) of that subsection, and
(b) paragraph (b) of that subsection were deleted.
(4) The fraction referred to in subsection (2) is—
(a) where on the 6th day of April, 1970, the individual had not attained the age of 52 years, nineteen-twentieths,
(b) where on that date the individual had attained the age of 52 years, but had not attained the age of 53 years, eighteen-twentieths, and so on, reducing the fraction by one-twentieth for each year the individual had attained, up to the age of 64 years,
(c) where on that date the individual had attained the age of 65 years or any greater age, five-twentieths.
num: 94
paragraphs: —(1) Where in the case of any trade or profession the profits or gains of which are chargeable to tax under Case I or II of Schedule D there has been—
(a) a change from a conventional basis to the earnings basis, or
(b) a change of conventional basis which may result in receipts dropping out of computation,
num: 95
paragraphs: —(1) In the case of a transfer for value of the right to receive any sums described in section 91 (1) or 94 , any tax chargeable by virtue of either of those sections shall be charged in respect of the amount or value of the consideration (or, in the case of a transfer otherwise than at arm's length, in respect of the value of the right transferred as between parties at arm's length), and references in those sections to sums received shall be construed accordingly.
(2) Where an individual is chargeable to tax by virtue of section 91 in respect of any sums received after the discontinuance of a trade or profession, and the profits or gains of the trade or profession to which such individual was entitled before the discontinuance fell to be treated as earned income for the purposes of the Income Tax Acts, those sums shall also be treated as earned income for those purposes but after any reduction in those sums under section 93 .
(3) Where any sum chargeable to tax by virtue of section 91 or 94 is received in any year of assessment beginning not later than 10 years after the discontinuance or, as the case may be, change of basis by the person by whom the trade or profession was carried on before the discontinuance or change or by such person's personal representatives, such person or (in either case) such person's personal representatives may, by notice in writing sent to the inspector within 2 years after the end of that year of assessment, elect that the tax so chargeable shall be charged as if the sum in question were received on the date on which the discontinuance took place or, as the case may be, on the last day of the period at the end of which the change took place, and, in any such case, an additional assessment shall (notwithstanding anything in section 924 (2)) be made accordingly and, in connection with that assessment, no further deduction or relief shall be made or given in respect of any loss or allowance deducted in pursuance of section 91 (4).
(4) Where work in progress at the discontinuance of a profession, or the responsibility for its completion, is transferred, the sums to which section 91 applies include any sums received by means of consideration for the transfer and any sums received by means of realisation by the transferee on behalf of the transferor of the work in progress transferred.
(5) No amount shall be deducted under section 91 (4) if that amount has been allowed under any other provision of the Tax Acts.
(6) No amount shall be deducted more than once under section 91 (4) and, as between sums chargeable for one year of assessment and sums chargeable for a subsequent year of assessment, any deduction in respect of a loss or capital allowance shall be made against sums chargeable for the earlier year of assessment but, in the case of a loss which by virtue of this subsection or section 91 (4) is to be allowed after the discontinuance, a deduction shall not be made from any sum chargeable for a year of assessment preceding that in which the loss is incurred.
num: 96
paragraphs: —(1) In this Chapter, except where the context otherwise requires—
“easement” includes any right, privilege or benefit in, over or derived from premises;
“lease” includes an agreement for a lease and any tenancy, but does not include a mortgage, and “lessee” and “lessor” shall be construed accordingly, and “lessee” and “lessor” include respectively the successors in title of a lessee or a lessor;
“the person chargeable” means the person entitled to the profits or gains arising from—
(a) any rent in respect of any premises, and
(b) any receipts in respect of any easement;
“premises” means any lands, tenements or hereditaments in the State;
“premium” includes any like sum, whether payable to the immediate or a superior lessor or to a person connected with the immediate or superior lessor;
“rent” includes—
(a) any rentcharge, fee farm rent and any payment in the nature of rent, notwithstanding that the payment may relate partly to premises and partly to goods or services, and
(b) any payment made by the lessee to defray the cost of work of maintenance of or repairs to the premises, not being work required by the lease to be carried out by the lessee.
(2) (a) In ascertaining for the purposes of this Chapter the duration of a lease, the following provisions shall apply:
(i) where any of the terms of the lease (whether relating to forfeiture or to any other matter) or any other circumstances render it unlikely that the lease will continue beyond a date falling before the expiration of the term of the lease and the premium was not substantially greater than it would have been (on the assumptions required by paragraph (b)) if the term had been one expiring on that date, the lease shall not be treated as having been granted for a term longer than one ending on that date;
(ii) where the terms of the lease include provision for the extension of the lease beyond a particular date by notice given by the lessee, account may be taken of any circumstances making it likely that the lease will be so extended;
(iii) where the lessee or a person connected with the lessee is or may become entitled to a further lease or the grant of a further lease (whenever commencing) of the same premises or of premises including the whole or part of the same premises, the term of the lease may be treated as not expiring before the term of the further lease.
(b) Paragraph (a) shall be applied by reference to the facts which were known or ascertainable at the time of the grant of the lease or, in relation to tax under section 98 (4), at the time when the contract providing for a variation or waiver of a kind referred to in section 98 (4) is entered into, and in applying paragraph (a)—
(i) it shall be assumed that all parties concerned, whatever their relationship, act as they would act if they were at arm's length, and
(ii) if by the lease or in connection with the granting of it—
(I) benefits were conferred other than vacant possession and beneficial occupation of the premises or the right to receive rent at a reasonable commercial rate in respect of the premises, or
(II) payments were made which would not be expected to be made by parties so acting if no other benefits had been so conferred,
it shall be further assumed, unless it is shown that the benefits were not conferred or the payments were not made for the purpose of securing a tax advantage in the application of this Chapter, that the benefits would not have been conferred nor the payments made had the lease been for a term ending on the date mentioned in paragraph (a).
(3) Where the estate or interest of any lessor of any premises is the subject of a mortgage and either the mortgagee is in possession or the rents and profits are being received by a receiver appointed by or on the application of the mortgagee, that estate or interest shall be deemed for the purposes of this Chapter to be vested in the mortgagee, and references to a lessor shall be construed accordingly; but the amount of the liability to tax of any such mortgagee shall be computed as if the mortgagor was still in possession or, as the case may be, no receiver had been appointed and as if it were the amount of the liability of the mortgagor that was being computed.
(4) Where an inspector has reason to believe that a person has information relevant to the ascertainment of the duration of a lease in accordance with subsection (2), the inspector may by notice in writing require such person to give, within 21 days after the date of the notice or such longer period as the inspector may allow, such information relevant to the ascertainment of the duration of the lease on the matters specified in the notice as is in such person's possession.
num: 97
paragraphs: —(1) Subject to this Chapter, the amount of the profits or gains arising in any year shall for the purposes of Case V of Schedule D be computed as follows:
(a) the amount of any rent shall be taken to be the gross amount of that rent before any deduction for income tax;
(b) the amount of the profits or gains arising in any year shall be the aggregate of the surpluses computed in accordance with paragraph (c), reduced by the aggregate of the deficiencies as so computed;
(c) the amount of the surplus or deficiency in respect of each rent or in respect of the total receipts from easements shall be computed by making the deductions authorised by subsection (2) from the rent or total receipts from easements, as the case may be, to which the person chargeable becomes entitled in any year.
(2) The deductions authorised by this subsection shall be deductions by reference to any or all of the following matters—
(a) the amount of any rent payable by the person chargeable in respect of the premises or in respect of a part of the premises;
(b) any sums borne by the person chargeable—
(i) in the case of a rent under a lease, in accordance with the conditions of the lease, and
(ii) in any other case, relating to and constituting an expense of the transaction or transactions under which the rents or receipts were received,
in respect of any rate levied by a local authority, whether such sums are by law chargeable on such person or on some other person;
(c) the cost to the person chargeable of any services rendered or goods provided by such person, otherwise than as maintenance or repairs, being services or goods which—
(i) in the case of a rent under a lease, such person is legally bound under the lease to render or provide but in respect of which such person receives no separate consideration, and
(ii) in any other case, relate to and constitute an expense of the transaction or transactions under which the rents or receipts were received, not being an expense of a capital nature;
(d) the cost of maintenance, repairs, insurance and management of the premises borne by the person chargeable and relating to and constituting an expense of the transaction or transactions under which the rents or receipts were received, not being an expense of a capital nature;
(e) interest on borrowed money employed in the purchase, improvement or repair of the premises.
num: 98
paragraphs: —(1) Where the payment of any premium is required under a lease or otherwise under the terms subject to which a lease is granted and the duration of the lease does not exceed 50 years, the lessor shall be treated for the purposes of section 75 as becoming entitled when the lease is granted to an amount as rent (in addition to any actual rent) equal to the amount of the premium reduced by 2 per cent of that amount for each complete period of 12 months, other than the first, comprised in the term of the lease.
(2) (a) Where the terms subject to which a lease of any premises is granted impose on the lessee an obligation to carry out any work on the premises, the lease shall be deemed for the purposes of this section to have required the payment of a premium to the lessor (in addition to any other premium) of an amount equal to the amount by which the value of the lessor's estate or interest immediately after the commencement of the lease falls short of what its then value would have been if the work had been carried out, but otherwise than at the expense of the lessee, and the rent were increased accordingly.
(b) Notwithstanding paragraph (a), this subsection shall not apply in so far as the obligation requires the carrying out of work payment for which, if the lessor and not the lessee were obliged to carry it out, would be deductible from the rent under section 97 (2).
(3) Where under the terms subject to which a lease is granted a sum becomes payable by the lessee in place of the whole or a part of the rent for any period, or as consideration for the surrender of the lease, the lease shall be deemed for the purposes of this section to have required the payment of a premium to the lessor (in addition to any other premium) of the amount of that sum; but—
(a) in computing tax chargeable by virtue of this subsection in respect of a sum payable in place of rent, the term of the lease shall be treated as not including any period other than that in relation to which the sum is payable, and
(b) notwithstanding subsection (1), rent treated as arising by virtue of this subsection shall be deemed to become due when the sum in question becomes payable by the lessee.
(4) Where as consideration for the variation or waiver of any of the terms of a lease a sum becomes payable by the lessee otherwise than as rent, the lease shall be deemed for the purposes of this section to have required the payment of a premium to the lessor (in addition to any other premium) of the amount of that sum; but—
(a) in computing tax chargeable by virtue of this subsection, the term of the lease shall be treated as not including any period which precedes the time at which the variation or waiver takes effect or falls after the time at which the variation or waiver ceases to have effect, and
(b) notwithstanding subsection (1), rent treated as arising by virtue of this subsection shall be deemed to become due when the contract providing for the variation or waiver is entered into.
num: 99
paragraphs: —(1) Where the terms subject to which a lease of a duration not exceeding 50 years was granted are such that the lessor, having regard to values prevailing at the time the lease was granted, and on the assumption that the negotiations for the lease were at arm's length, could have required the payment of an additional sum (in this section referred to as “the amount forgone”) by means of a premium or an additional premium for the grant of the lease, then, on any assignment of the lease for a consideration—
(a) where the lease has not previously been assigned, exceeding the premium (if any) for which it was granted, or
(b) where the lease has been previously assigned, exceeding the consideration for which it was last assigned,
num: 100
paragraphs: —(1) Where the terms subject to which an estate or interest in land is sold provide that it shall be, or may be required to be, reconveyed at a future date to the vendor or a person connected with the vendor, the vendor shall be chargeable to tax under Case IV of Schedule D on any amount by which the price at which the estate or interest is sold exceeds the price at which it is to be reconveyed or, if the earliest date at which in accordance with those terms it would fall to be reconveyed is a date 2 years or more after the sale, on that excess reduced by 2 per cent of that excess for each complete year (other than the first) in the period between the sale and that date.
(2) Where under the terms of the sale the date of the reconveyance is not fixed, then—
(a) if the price on reconveyance varies with the date, the price shall be taken for the purposes of this section to be the lowest possible under the terms of the sale;
(b) the vendor may, before the expiration of 6 years after the date on which the reconveyance takes place, claim repayment of any amount by which tax assessed on such vendor by virtue of this section exceeded the amount which would have been so assessed if that date had been treated for the purposes of this section as the date fixed by the terms of the sale.
(3) Where the terms of the sale provide for the grant of a lease directly or indirectly out of the estate or interest to the vendor or a person connected with the vendor, this section shall apply as if the grant of the lease were a reconveyance of the estate or interest at a price equal to the sum of the amount of the premium (if any) for the lease and the value at the date of the sale of the right to receive a conveyance of the reversion immediately after the lease begins to run; but this subsection shall not apply if the lease is granted, and begins to run, within one month after the sale.
(4) In computing the profits or gains of a trade of dealing in land, any trading receipts within this section shall be treated as reduced by the amount on which tax is chargeable by virtue of this section; but where, on a claim being made under subsection (2)(b), the amount on which tax is chargeable by virtue of this section is treated as reduced, this subsection shall be deemed to have applied to the amount as reduced, and such adjustment of liability to tax shall be made (for all relevant years of assessment), whether by means of an additional assessment or otherwise, as may be necessary.
num: 101
paragraphs: —Where on a claim in that behalf the person chargeable proves—
num: 102
paragraphs: —(1) In this section, “the relevant period” means—
(a) where the amount chargeable arose under section 98 , the period treated in computing that amount as being the duration of the lease;
(b) where the amount chargeable arose under section 99 , the period treated in computing that amount as being the duration of the lease remaining at the date of the assignment;
(c) where the amount chargeable arose under section 100 , the period beginning with the sale and ending on the date fixed under the terms of the sale as the date of the reconveyance or grant, or, if that date is not so fixed, ending with the earliest date at which the reconveyance or grant could take place in accordance with the terms of the sale.
(2) Where in relation to any premises an amount (in this section referred to as “the amount chargeable”)—
(a) has become chargeable to tax under subsection (1), (2), (3), (4) or (5) of section 98 or under section 99 or 100 , or
(b) would have become so chargeable but for section 103 (3) or any exemption from tax,
num: 103
paragraphs: —(1) In this section, “the relevant period” means, in relation to any amount—
(a) where the amount arose under section 98 , the period treated in computing that amount as being the duration of the lease;
(b) where the amount arose under section 99 , the period treated in computing that amount as being the duration of the lease remaining at the date of the assignment;
(c) where the amount arose under section 100 , the period beginning with the sale and ending on the date fixed under the terms of the sale as the date of the reconveyance or grant, or, if that date is not so fixed, ending with the earliest date at which the reconveyance or grant could take place in accordance with the terms of the sale.
(2) Where in relation to any premises an amount has become or would have become chargeable to tax as mentioned in section 102 (2) by reference to a lease, estate or interest, the person for the time being entitled to that lease, estate or interest shall, subject to this section, be treated for the purposes of section 97 (2) as paying rent accruing from day to day in respect of the premises (in addition to any rent actually paid) during any part of the relevant period in relation to the amount for which such person is entitled to the lease, estate or interest and in all bearing to that amount the same proportion as that part of the relevant period bears to the whole.
(3) Where in relation to any premises an amount has become or would have become chargeable to tax as mentioned in section 102 (2), and by reference to a lease granted out of, or a disposition of, the lease, estate or interest by reference to which the amount (in this section referred to as “the prior chargeable amount”) so became or would have so become chargeable, a person would apart from this subsection be chargeable under section 98 , 99 or 100 on any amount (in this section referred to as “the later chargeable amount”), the amount on which the person is so chargeable shall be the excess, if any, of the later chargeable amount over the appropriate fraction of the prior chargeable amount or, where the lease or disposition by reference to which the person would be so chargeable extends to a part only of that premises, the excess, if any, of the later chargeable amount over so much of the appropriate fraction of the prior chargeable amount as on a just apportionment is attributable to that part of the premises.
(4) (a) In a case in which subsection (3) operates to reduce the amount on which apart from that subsection a person would be chargeable by reference to a lease or disposition, subsection (2) shall apply for the relevant period in relation to the later chargeable amount only if the appropriate fraction of the prior chargeable amount exceeds the later chargeable amount and shall then apply as if the prior chargeable amount were reduced in the proportion which the excess bears to that appropriate fraction.
(b) Notwithstanding paragraph (a). where the lease or disposition extends to a part only of the premises mentioned in subsection (3), subsection (2) and this subsection shall be applied separately in relation to that part and to the remainder of the premises, but as if for any reference to the prior chargeable amount there were substituted a reference to that amount proportionately adjusted.
(5) For the purposes of subsections (3) and (4), the appropriate fraction of the prior chargeable amount shall be the sum which bears to that amount the same proportion as the length of the relevant period in relation to the later chargeable amount bears to the length of the relevant period in relation to the prior chargeable amount.
(6) Where the prior chargeable amount arose under section 98 (2) by reason of an obligation which included the incurring of expenditure in respect of which any allowance has been or will be made under Part 9 , this section shall apply as if the obligation had not included the incurring of that expenditure and the prior chargeable amount had been calculated accordingly
(7) Where the prior chargeable amount arose under section 100 and the reconveyance or grant in question takes place at a price different from that taken in calculating that amount or on a date different from that taken in determining the relevant period in relation to that amount, subsections (1) to (6) shall be deemed to have applied (for all relevant years of assessment) as they would have applied if the actual price or date had been so taken and such adjustments of liability to tax shall be made, by means of additional assessment or otherwise, as may be necessary.
num: 104
paragraphs: —(1) (a) This section shall apply to the following payments—
num: 105
paragraphs: —(1) This section shall apply to—
(a) rent in respect of premises, or
(b) interest on borrowed money employed in the purchase, improvement or repair of premises,
payable by a person chargeable to tax in accordance with section 75 on the profits or gains arising from rent in respect of those premises for a period before the date on which the premises are first occupied by a lessee for the purpose of a trade or undertaking or for use as a residence.
(2) No deduction shall be allowed for any year of assessment under section 97 (2) in respect of rent or interest to which this section applies.
num: 106
paragraphs: —(1) Where by virtue of a contract for the sale of an estate or interest in premises there is to be apportioned between the parties a receipt or outgoing in respect of the estate or interest which becomes due after the making of the contract but before the time at which the apportionment is to be made, and a part of the receipt is therefore receivable by the vendor in trust for the purchaser or, as the case may be, a part of the outgoing is paid by the vendor as trustee for the purchaser, the purchaser shall be treated for the purposes of tax under Case V of Schedule D as if that part had become receivable or payable on the purchaser's behalf immediately after the time at which the apportionment is to be made.
num: 107
paragraphs: —(1) Where in the case of any profits or gains chargeable under Case I, II or IV of Schedule D it is necessary, in order to determine the profits or gains or losses of any year of assessment or other period, to divide and apportion to specific periods the profits or gains or losses for any period for which the accounts have been made up, or to aggregate any such profits or gains or losses or any apportioned parts of such profits or gains or losses, it shall be lawful to make such division and apportionment or aggregation.
(2) Any apportionment under this section shall be made in proportion to the number of months or fractions of months in the respective periods.
num: 108
paragraphs: — Every statement of profits to be charged under Schedule D which is made by any person—
(a) on that person's own account, or
(b) on account of another person for whom that person is chargeable, or who is chargeable in that person's name,
shall include every source of income so chargeable.
num: 109
paragraphs: —(1) In this section, “lump sum” and “rebate” have the same meanings respectively as in the Redundancy Payments Act, 1967 .
num: 110
paragraphs: —(1) In this section—
“qualifying asset” means—
(a) in the case of a qualifying company which is a qualified company (within the meaning of section 446 ), an asset—
(i) denominated in a foreign currency which consists of, or of an interest in or a contractual right to, any loan, lease, trade or consumer receiveable or other debt or receiveable whether secured or unsecured, and
(ii) of a person (in this section referred to as “the originator”), being any government, public or local authority, company or other body corporate which—
(I) is not resident in the State, and
(II) (A) is not carrying on a trade in the State through a branch or agency, or
(B) is carrying on a trade in the State through a branch or agency and the asset was not created, acquired or held by or in connection with the branch or agency,
and
(b) in any other case, a loan made by a company (in this section referred to as “the original lender”) on the security of a mortgage of a freehold or leasehold estate or interest in the ordinary course of a trade carried on by it which consists of or includes the lending of money on such security;
“qualifying company” means a company resident in the State which carries on a business of the management of qualifying assets which it acquired from the original lender or original lenders or the originator or originators, as the case may be, and does not carry on any other business, apart from activities which are ancillary to the business of the management of those qualifying assets, but a company shall not be a qualifying company if any transaction is carried out by it otherwise than by means of a bargain made at arm's length.
(2) For the purposes of the Tax Acts—
num: 111
paragraphs: —(1) (a) Where for any year of assessment rights to work minerals in the State are let, the lessor shall be entitled on making a claim in that behalf to be repaid so much of the income tax paid by such lessor by deduction or otherwise in respect of the rent or royalties for that year as is equal to the amount of the tax on any sums proved to have been wholly, exclusively and necessarily disbursed by such lessor as expenses of management or supervision of those minerals in that year.
(b) Notwithstanding paragraph (a), no repayment of tax under that paragraph shall be made—
(i) except on proof of payment of tax on the aggregate amount of the rent or royalties, or
(ii) if, or to such extent as, the expenses of management or supervision have been otherwise allowed as a deduction in computing income for the purposes of income tax.
num: 112
paragraphs: —(1) Income tax under Schedule E shall be charged annually on every person having or exercising an office or employment of profit mentioned in that Schedule, or to whom any annuity, pension or stipend chargeable under that Schedule is payable, in respect of all salaries, fees, wages, perquisites or profits whatever therefrom, and shall be computed on the amount of all such salaries, fees, wages, perquisites or profits whatever therefrom for the year of assessment.
num: 113
paragraphs: —(1) In this section, “emoluments” means all salaries, fees, wages, perquisites or profits or gains whatever arising from an office or employment, or the amount of any annuity, pension or stipend, as the case may be.
num: 114
paragraphs: —Where the holder of an office or employment of profit is necessarily obliged to incur and defray out of the emoluments of the office or employment of profit expenses of travelling in the performance of the duties of that office or employment, or otherwise to expend money wholly, exclusively and necessarily in the performance of those duties, there may be deducted from the emoluments to be assessed the expenses so necessarily incurred and defrayed.
num: 115
paragraphs: —Where the Minister for Finance is satisfied, with respect to any class of persons in receipt of any salary, fees or emoluments payable out of the public revenue, that such persons are obliged to lay out and expend money wholly, exclusively and necessarily in the performance of the duties in respect of which such salary, fees or emoluments are payable, the Minister for Finance may fix such sum as in that Minister's opinion represents a fair equivalent of the average annual amount so laid out and expended by persons of that class, and in charging the tax on such salary, fees or emoluments, there shall be deducted from the amount of such salary, fees or emoluments the sums so fixed by the Minister for Finance; but, if any person would but for this section be entitled to deduct a larger amount than the sum so fixed, that sum may be deducted instead of the sum so fixed.
num: 116
paragraphs: —(1) In this Chapter—
“business premises”, in relation to a body corporate, includes all premises occupied by that body for the purpose of any trade carried on by it and, except when the reference is expressly to premises which include living accommodation, includes so much of any such premises so occupied as is used wholly or mainly as living accommodation for any of the directors of the body corporate or for any persons employed by the body corporate in any employment to which this Chapter applies;
“control”, in relation to a body corporate, means the power of a person to secure—
(a) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate, or
(b) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate,
that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person;
“director” means—
(a) in relation to a body corporate the affairs of which are managed by a board of directors or similar body, a member of that board or body,
(b) in relation to a body corporate the affairs of which are managed by a single director or similar person, that director or person,
(c) in relation to a body corporate the affairs of which are managed by the members themselves, a member of the body corporate,
and includes any person in accordance with whose directions or instructions the directors of a body corporate, defined in accordance with the preceding provisions of this definition, are accustomed to act, but a person shall not, within the meaning of this definition, be deemed to be a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act by reason only that those directors act on advice given by the person in a professional capacity;
num: 117
paragraphs: —(1) Subject to this Chapter, any sum paid in respect of expenses by a body corporate to any of its directors or to any person employed by it in an employment to which this Chapter applies shall, if not otherwise chargeable to income tax as income of that director or employee, be treated for the purposes of section 112 as a perquisite of the office or employment of that director or employee and included in the emoluments of that office or employment assessable to income tax accordingly; but nothing in this subsection shall prevent a claim for a deduction being made under section 114 in respect of any money expended wholly, exclusively and necessarily in performing the duties of the office or employment.
(2) The reference in subsection (1) to any sum paid in respect of expenses includes a reference to any sum put by a body corporate at the disposal of a director or employee and paid away by him or her.
num: 118
paragraphs: —(1) Subject to this Chapter, where—
(a) a body corporate incurs expense in or in connection with the provision, for any of its directors or for any person employed by it in an employment to which this Chapter applies, of—
(i) living or other accommodation,
(ii) entertainment,
(iii) domestic or other services, or
(iv) other benefits or facilities of whatever nature, and
(b) apart from this section the expense would not be chargeable to income tax as income of the director or employee,
then, sections 112 , 114 and 897 shall apply in relation to so much of the expense as is not made good to the body corporate by the director or employee as if the expense had been incurred by the director or employee and the amount of the expense had been refunded to the director or employee by the body corporate by means of a payment in respect of expenses, and income tax shall be chargeable accordingly.
(2) Subsection (1) shall not apply to expense incurred by the body corporate in or in connection with the provision for a director or employee in any of its business premises of any accommodation, supplies or services provided for the director or employee personally and used by the director or employee solely in performing the duties of his or her office or employment.
(3) Subsection (1) shall not apply to expense incurred by the body corporate in or in connection with the provision of living accommodation for an employee in part of any of its business premises which include living accommodation if the employee is, for the purpose of enabling the employee properly to perform his or her duties, required by the terms of his or her employment to reside in the accommodation and either—
(a) the accommodation is provided in accordance with a practice which since before the 30th day of July, 1948, has commonly prevailed in trades of the class in question as respects employees of the class in question, or
(b) it is necessary in the case of trades of the class in question that employees of the class in question should reside on premises of the class in question;
but this subsection shall not apply where the employee is a director of the body corporate in question or of any other body corporate over which that body corporate has control or which has control over that body corporate or which is under the control of a person who also has control over that body corporate.
(4) Subsection (1) shall not apply to expense incurred by the body corporate in or in connection with the provision of meals in any canteen in which meals are provided for the staff generally.
(5) Subsection (1) shall not apply to expense incurred by the body corporate in or in connection with the provision for a director or employee, or for the director's or employee's spouse, children or dependants, of any pension, annuity, lump sum, gratuity or other like benefit to be given on the death or retirement of the director or employee.
(6) Any reference in this section to expense incurred in or in connection with any matter includes a reference to a proper proportion of any expense incurred partly in or in connection with that matter.
(7) Where expense is incurred by a person connected with a body corporate, being expense which if incurred by the body corporate would be expense of the kind mentioned in subsection (1)(a), the body corporate shall be deemed for the purposes of this section to have incurred the expense, and subsection (1) shall apply accordingly in relation to any person, being a director or employee of the body corporate, in respect of whom the expense was incurred.
(8) A person shall be regarded as connected with a body corporate for the purposes of subsection (7) if the person is—
(a) a trustee of a settlement (within the meaning of section 794 ) made by the body corporate, or
(b) a body corporate,
and would be regarded as connected with the body corporate for the purposes of section 10 .
num: 119
paragraphs: —(1) Any expense incurred by a body corporate in the acquisition or production of an asset which remains its own property shall be disregarded for the purposes of section 118 .
(2) Where the making of any provision mentioned in section 118 (1) takes the form of a transfer of the property in any asset of the body corporate and, since the acquisition or production of that asset by the body corporate, that asset has been used or has depreciated, the body corporate shall be deemed to have incurred in the making of that provision expense equal to the value of that asset at the time of the transfer.
(3) Where an asset which continues to belong to the body corporate is used wholly or partly in the making of any provision mentioned in section 118 (1), the body corporate shall be deemed for the purposes of that section to incur (in addition to any other expense incurred by it in connection with the asset, not being expense to which subsection (1) applies) annual expense in connection with the asset of an amount equal to the annual value of the use of the asset, but where any sum by means of rent or hire is payable by the body corporate in respect of the asset—
(a) if the annual amount of the rent or hire is equal to or greater than the annual value of the use of the asset, this subsection shall not apply, and
(b) if the annual amount of the rent or hire is less than the annual value of the use of the asset, the rent or hire shall be disregarded for the purposes of section 118 (1).
(4) In the case of an asset being premises, the annual value of the use of the asset shall be taken for the purposes of subsection (3) to be the rent which might reasonably be expected to be obtained on a letting from year to year if the tenant undertook to pay all usual tenant's rates, and if the landlord undertook to bear the costs of the repairs and insurance, and the other expenses, if any, necessary for maintaining the premises in a state to command that rent.
num: 120
paragraphs: —(1) This Chapter shall apply in relation to unincorporated societies and other bodies as it applies in relation to bodies corporate and, in connection with this Chapter, the definition of “control” in section 116 (1) shall, with the necessary modifications, also so apply.
(2) This Chapter shall apply in relation to any partnership carrying on any trade or profession as it would apply in relation to a body corporate carrying on a trade if so much of this Chapter as relates to directors of the body corporate or persons taking part in the management of the affairs of the body corporate were deleted; but—
(a) “control”, in relation to a partnership, means the right to a share of more than 50 per cent of the assets, or of more than 50 per cent of the income, of the partnership, and
(b) where a partnership carrying on any trade or profession has control over a body corporate to which this Chapter applies (“control” being construed for this purpose in accordance with the definition of that term in section 116 (1))—
(i) any employment of any director of that body corporate by the partnership shall be an employment to which this Chapter applies, and
(ii) all the employments of any person who is employed both by the partnership and by the body corporate (being employments by the partnership or the body corporate) shall, for the purpose of ascertaining whether those employments or any of them are employments to which this Chapter applies, be treated as if they were employments by the body corporate.
(3) Subsection (2) shall apply in relation to individuals as it applies in relation to partnerships, but nothing in this subsection shall be construed as requiring an individual to be treated in any circumstances as under the control of another person.
num: 121
paragraphs: —(1) (a) In this section—
“business mileage for a year of assessment”, in relation to a person, means the total number of whole miles travelled in the year in the course of business use by that person of a car or cars in respect of which this section applies in relation to that person;
“business use”, in relation to a car in respect of which this section applies in relation to a person, means travelling in the car which that person is necessarily obliged to do in the performance of the duties of his or her employment;
“car” means any mechanically propelled road vehicle constructed or adapted for the carriage of passengers, other than a vehicle of a type not commonly used as a private vehicle and unsuitable to be so used;
“employment” means an office or employment of profit such that any emoluments (within the meaning of section 113 ) of the office or employment would be charged to tax, and cognate expressions shall be construed accordingly;
“private use”, in relation to a car, means use of the car other than business use;
“relevant log book”, in relation to a person and a year of assessment, means a record maintained on a daily basis of the person's business use for the year of assessment of a car or cars in respect of which this section applies in relation to that person for that year of assessment which—
(i) contains relevant details of distances travelled, nature and location of business transacted and amount of time spent away from the employer's place of business, and
(ii) is certified by the employer as being to the best of the employer's knowledge and belief true and accurate.
(b) For the purposes of this section—
(i) (I) a car made available in any year to an employee by reason of his or her employment shall be deemed to be available in that year for his or her private use unless the terms on which the car is so made available prohibit such use and no such use is made of the car in that year:
(II) a car made available to an employee by his or her employer or by a person connected with the employer shall be deemed to be made available to him or her by reason of his or her employment (unless the employer is an individual and it can be shown that the car was made so available in the normal course of his or her domestic, family or personal relationships);
(III) a car shall be treated as available to a person and for his or her private use if it is available to a member or members of his or her family or household;
(IV) references to a person's family or household are references to the person's spouse, sons and daughters and their spouses, parents and servants, dependants and guests;
(ii) in relation to a car in respect of which this section applies, expenditure in respect of any costs borne by a person connected with the employer shall be treated as borne by the employer;
(iii) the original market value of a car shall be the price (including any duty of customs, duty of excise or value-added tax chargeable on the car) which the car might reasonably have been expected to fetch if sold in the State singly in a retail sale in the open market immediately before the date of its first registration in the State under section 6 of the Roads Act, 1920 , or under corresponding earlier legislation, or else-where under the corresponding legislation of any country or territory.
(2) (a) In relation to a person chargeable to tax in respect of an employment, this section shall apply for a year of assessment in relation to a car which, by reason of the employment, is made available (without a transfer of the property in it) to the person and is available for his or her private use in that year.
(b) In relation to a car in respect of which this section applies for a year of assessment—
(i) Chapter 3 of this Part shall not apply for that year in relation to the expense incurred in connection with the provision of the car, and
(ii) there shall be treated for that year as emoluments of the employment by reason of which the car is made available, and accordingly chargeable to income tax, the amount, if any, by which the cash equivalent of the benefit of the car for the year exceeds the aggregate for the year of the amounts which the employee is required to make good and actually makes good to the employer in respect of any part of the costs of providing or running the car; but any part of such aggregate in respect of which the cash equivalent is reduced under subsection (3)(a) shall be disregarded for the purposes of this subparagraph.
(3) (a) The cash equivalent of the benefit of a car for a year of assessment shall be 30 per cent of the original market value of the car, but shall be reduced—
(i) where no part of the cost for that year of the fuel used in the course of the private use of the car by the employee is borne directly or indirectly by the employer, by 4.5 per cent of the original market value of the car,
(ii) where no part of the cost for that year of the insurance of the car is borne directly or indirectly by the employer, by 3 per cent of the original market value of the car,
(iii) where no part of the cost for that year of repair and servicing of the car is borne directly or indirectly by the employer, by 3 per cent of the original market value of the car, and
(iv) where no part of the excise duty for that year on the licence under section 1 of the Finance (Excise Duties) (Vehicles) Act, 1952 , relating to the car is borne directly or indirectly by the employer, by 1 per cent of the original market value of the car.
(b) Where a car in respect of which this section applies in relation to a person for a year of assessment is made available to the person for part only of that year, the cash equivalent of the benefit of that car as respects that person for that year shall be an amount which bears to the full amount of the cash equivalent of the car for that year (ascertained under paragraph (a)) the same proportion as that part of the year bears to that year.
(4) (a) Where in relation to a person the business mileage for a year of assessment exceeds 15,000 miles, the cash equivalent of the benefit of the car for that year, instead of being the amount ascertained under subsection (3), shall be the percentage of that amount applicable to that business mileage under the Table to this subsection.
(b) In the Table to this subsection, any percentage shown in column (3) shall be that applicable to any business mileage for a year of assessment which—
(i) exceeds the lower limit shown in column (1), and
(ii) does not exceed the upper limit (if any) shown in column (2),
opposite the mention of that percentage in column (3).
TABLE
Business mileage
Percentage
lower limit
upper limit
(1)
(2)
(3)
Miles
Miles
15,000
16,000
num: 97
paragraphs: 5 per cent
16,000
17,000
95 per cent
17,000
18,000
90 per cent
18,000
19,000
85 per cent
19,000
20,000
80 per cent
20,000
21,000
75 per cent
21,000
22,000
70 per cent
22,000
23,000
65 per cent
23,000
24,000
60 per cent
24,000
25,000
55 per cent
25,000
26,000
50 per cent
26,000
27,000
45 per cent
27,000
28,000
40 per cent
28,000
29,000
35 per cent
29,000
30,000
30 per cent
30,000
—
25 per cent
(5) (a) Where for a year of assessment—
(i) a person, in the performance of the duties of his or her employment, spends 70 per cent or more of his or her time engaged on such duties away from the place of business of his or her employer, and
(ii) in relation to that person, the business mileage exceeds 5,000 miles,
then, if the person so elects in writing to the inspector, the cash equivalent of the benefit of the car for that year of assessment in relation to the person shall, instead of being the amount ascertained under subsection (3) or (4), as may otherwise be appropriate, be 80 per cent of the amount ascertained under subsection (3).
(b) When requested in writing by the inspector, a person who makes an election under paragraph (a) for a year of assessment shall within 30 days of the date of such request furnish to the inspector a relevant log book in relation to that year of assessment.
(c) This subsection shall not apply as respects a year of assessment where—
(i) when requested to do so, a person fails to deliver to the inspector within the time specified in paragraph (b) a relevant log book in relation to that year of assessment, or
(ii) the time spent by a person in the performance of the duties of his or her employment in that year of assessment is on average less than 20 hours per week.
(d) Subsection (7)(e) shall apply for the purposes of this subsection as it applies for the purposes of subsection (7).
(e) Where a person makes an election under paragraph (a) for a year of assessment, such person shall retain the relevant log book in relation to that year of assessment for a period of 6 years after that end of that year or for such shorter period as the inspector may authorise in writing.
(6) (a) Where any amount is to be treated as emoluments of an employment under subsection (2)(b)(ii) for a year of assessment, it shall be the duty of the person who is chargeable to tax in respect of that amount to deliver in writing to the inspector, not later than 30 days after the end of that year of assessment, particulars of the car, of its original market value and of the business mileage and private mileage for that year of assessment.
(b) Where in relation to a year of assessment—
(i) a person makes default in the delivery of particulars in relation to—
(I) the original market value of a car in respect of which this section applies in relation to him or her,
(II) his or her business mileage for the year, or
(III) his or her private mileage for the year,
or
(ii) the inspector is not satisfied with the particulars which have been delivered by the person,
then, the original market value or business mileage or private mileage which is to be taken into account for the purpose of computing the amount of the tax to which that person is to be charged shall be such value or mileage, as the case may be, as according to the best of the inspector's judgment ought to be so taken into account and, in the absence of sufficient evidence to the contrary, the business mileage for a year of assessment in relation to a person shall be determined by deducting 5,000 from the total number of miles travelled in that year by that person in a car or cars in respect of which this section applies in relation to that person.
(c) The inspector, in making a computation for the purposes of an assessment or of the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), before the end of the year of assessment to which the computation relates, in relation to a person in relation to whom this section applies for that year of assessment, shall make an estimate of that person's business mileage for the purpose of the computation, and section 926 shall, with any necessary modifications, apply in relation to the estimate so made as it applies in relation to an estimate made under that section.
(d) A value or mileage taken into account under paragraph (b) may be amended by the Appeal Commissioners or the Circuit Court on the hearing or the rehearing of an appeal against an assessment in respect of the employment in the performance of the duties of which the business mileage is done.
(7) (a) This subsection shall apply to any car in the case of which the inspector is satisfied (whether on a claim under this subsection or otherwise) that it has for any year been included in a car pool for the use of the employees of one or more employers.
(b) A car shall be treated as having been so included for a year if—
(i) in that year the car was made available to and actually used by more than one of those employees and in the case of each of them was made available to him or her by reason of his or her employment but was not in that year ordinarily used by any one of them to the exclusion of the others,
(ii) in the case of each of them, any private use of the car made by him or her in that year was merely incidental to his or her other use of the car in the year, and
(iii) the car was in that year not normally kept overnight on or in the vicinity of any residential premises where any of the employees was residing, except while being kept overnight on premises occupied by the person making the car available to them.
(c) Where this subsection applies to a car, the car shall be treated under this section as not having been available for the private use of any of the employees for the year in question.
(d) A claim under this subsection in respect of a car for any year may be made by any one of the employees mentioned in paragraph (b)(i) (they being referred to in paragraph (e) as “the employees concerned”) or by the employer on behalf of all of them.
(e) (i) Any person aggrieved by a decision of the inspector on any question arising under this subsection may, by notice in writing to that effect given to the inspector within 2 months from the date on which notice of the decision is given to that person, make an application to have his or her claim for relief heard and determined by the Appeal Commissioners.
(ii) Where an application is made under subparagraph (i), the Appeal Commissioners shall hear and determine the claim in the like manner as an appeal made to them against an assessment, and 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.
(iii) On an appeal against the decision of the inspector on a claim under this section all the employees concerned may take part in the proceedings, and the determination of the Appeal Commissioners or the Circuit Court, as the case may be, shall be binding on all those employees, whether or not they have taken part in the proceedings.
(iv) Where an appeal against the decision of the inspector on a claim under this subsection has been determined, no appeal against the inspector's decision on any other such claim in respect of the same car while in the same car pool and the same year shall be entertained.
num: 122
paragraphs: —(1) (a) In this section—
“employee”, in relation to an employer, means an individual employed by the employer in an employment to which Chapter 3 of this Part applies, including, in a case where the employer is a body corporate, a director (within the meaning of that Chapter) of the body corporate;
“employer”, in relation to an individual, means—
(i) a person of whom the individual or the spouse of the individual is an employee,
(ii) a person of whom the individual becomes an employee subsequent to the making of a loan by the person to the individual, and while any part of the loan, or of another loan replacing it, is outstanding, or
(iii) a person connected with a person referred to in paragraph (i) or (ii);
“loan” includes any form of credit, and references to a loan include references to any other loan applied directly or indirectly towards the replacement of another loan;
“preferential loan” means a loan, in respect of which no interest is payable or interest is payable at a preferential rate, made directly or indirectly to an individual or to the spouse of the individual by a person who in relation to the individual or the spouse is an employer, but does not include any such loan in respect of which interest is payable at a rate that is not less than the rate of interest at which the employer in the course of the employer's trade makes equivalent loans for similar purposes at arm's length to persons other than employees or their spouses;
“preferential rate” means a rate less than the specified rate;
“the specified rate”, in relation to a preferential loan, means—
(i) in a case where—
(I) the interest paid on the preferential loan qualifies for relief under section 244 , or
(II) if no interest is paid on the preferential loan, the interest which would have been paid on that loan (if interest had been payable) would have so qualified,
the rate of 7 per cent per annum or such other rate (if any) prescribed by the Minister for Finance by regulations,
(ii) in a case where—
(I) the preferential loan is made to an employee by an employer,
(II) the making of loans for the purposes of purchasing a dwelling house for occupation by the borrower as a residence, for a stated term of years at a rate of interest which does not vary for the duration of the loan, forms part of the trade of the employer, and
(III) the rate of interest at which, in the course of the employer's trade at the time the preferential loan is or was made, the employer makes or made loans at arm's length to persons, other than employees, for the purposes of purchasing a dwelling house for occupation by the borrower as a residence is less than 7 per cent per annum or such other rate (if any) prescribed by the Minister for Finance by regulations,
the first-mentioned rate in subparagraph (III), or
(iii) in any other case, the rate of 11 per cent per annum or such other rate (if any) prescribed by the Minister for Finance by regulations.
(b) For the purposes of this section, a person shall be regarded as connected with another person if such person would be so regarded for the purposes of section 250 .
(c) In this section, a reference to a loan being made by a person includes a reference to a person assuming the rights and liabilities of the person who originally made the loan and to a person arranging, guaranteeing or in any way facilitating a loan or the continuation of a loan already in existence.
num: 123
paragraphs: —(1) This section shall apply to any payment (not otherwise chargeable to income tax) which is made, whether in pursuance of any legal obligation or not, either directly or indirectly in consideration or in consequence of, or otherwise in connection with, the termination of the holding of an office or employment or any change in its functions or emoluments, including any payment in commutation of annual or periodical payments (whether chargeable to tax or not) which would otherwise have been so made.
num: 124
paragraphs: —(1) This section shall apply to the following payments—
(a) a termination allowance (other than that part of the allowance which comprises a lump sum) payable in accordance with section 5 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992 , and any regulations made under that section, and
(b) a severance allowance or a special allowance payable in accordance with Part V (inserted by the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992 ) of the Ministerial and Parliamentary Offices Act, 1938 .
(2) Notwithstanding any other provision of the Income Tax Acts, payments to which this section applies shall be deemed to be—
num: 125
paragraphs: —(1) In this section—
“benefit” means a payment made to a person under a permanent health benefit scheme in the event of loss or diminution of income in consequence of ill health;
“permanent health benefit scheme” means any scheme, contract, policy or other arrangement, approved by the Revenue Commissioners for the purposes of this section, which provides for periodic payments to an individual in the event of loss or diminution of income in consequence of ill health.
(2) (a) A policy of permanent health insurance, sickness insurance or other similar insurance issued in respect of an insurance made on or after the 6th day of April, 1986, shall be a permanent health benefit scheme within the meaning of this section if it conforms with a form which, at the time the policy is issued, is either—
(i) a standard form approved by the Revenue Commissioners as a standard form of permanent health benefit scheme, or
(ii) a form varying from a standard form so approved in no other respect than by making such alterations to that standard form as are, at the time the policy is issued, approved by the Revenue Commissioners as being compatible with a permanent health benefit scheme when made to that standard form and satisfying any conditions subject to which the alterations are so approved.
(b) In approving a policy as a standard form of permanent health benefit scheme in pursuance of paragraph (a), the Revenue Commissioners may disregard any provision of the policy which appears to them insignificant.
(3) (a) Any benefit received by a person under a permanent health benefit scheme, whether as of right or not, shall be deemed to be—
(i) profits or gains arising or accruing from an employment, and
(ii) emoluments within the meaning of Chapter 4 of Part 42 .
num: 126
paragraphs: —(1) In this section, “the Acts” means the Social Welfare (Consolidation) Act, 1993 , and any subsequent enactment together with which that Act may be cited.
(2) (a) This subsection shall apply to the following benefits payable under the Acts—
(i) widow's (contributory) pension,
(ii) orphan's (contributory) allowance,
(iii) retirement pension, and
(iv) old age (contributory) pension.
(b) Payments of benefits to which this subsection applies shall be deemed to be emoluments to which Chapter 4 of Part 42 applies.
(3) (a) This subsection shall apply to the following benefits payable under the Acts—
(i) disability benefit,
(ii) unemployment benefit,
(iii) injury benefit which is comprised in occupational injuries benefit, and
(iv) pay-related benefit.
(b) Amounts to be paid on foot of the benefits to which this subsection applies (other than amounts so payable in respect of a qualified child within the meaning of section 2 (3)(a) of the Social Welfare (Consolidation) Act, 1993 ) shall be deemed—
num: 127
paragraphs: —(1) In this section—
“accounting period” means an accounting period determined in accordance with section 27 ;
num: 128
paragraphs: —(1) (a) In this section, except where the context otherwise requires—
“company” has the same meaning as in section 4 ;
“director” and “employee” have the meanings respectively assigned to them by section 770 (1);
“right” means a right to acquire any asset or assets including shares in any company;
“market value” shall be construed in accordance with section 548 ;
“shares” includes securities within the meaning of section 135 and stock.
(b) In this section—
(i) references to the release of a right include references to agreeing to the restriction of the exercise of the right;
(ii) a person shall be regarded as acquiring a right as a director of a company or as an employee—
(I) if by reason of the person's office or employment it is granted to the person, or to another person who assigns the right to the person, and
(II) if section 71 (3) does not apply in charging to tax the profits or gains of that office or employment,
and clauses (I) and (II) shall apply to a right granted by reason of a person's office or employment before the person has commenced to hold it or after the person has ceased to hold it as they would apply if the person had commenced to hold the office or employment or had not ceased to hold the office or employment, as the case may be.
num: 129
paragraphs: —Except where otherwise provided by the Corporation Tax Acts, corporation tax shall not be chargeable on dividends and other distributions of a company resident in the State, nor shall any such dividends or distributions be taken into account in computing income for corporation tax.
num: 130
paragraphs: —(1) The following provisions of this Chapter, together with sections 436 and 437 , shall, subject to any express exceptions, apply with respect to the meaning in the Corporation Tax Acts of “distribution” and for determining the persons to whom certain distributions are to be treated as made; but references in the Corporation Tax Acts to distributions of a company shall not apply to distributions made in respect of share capital in a winding up.
(2) In relation to any company, “distribution” means—
(a) any dividend paid by the company, including a capital dividend;
(b) any other distribution out of assets of the company (whether in cash or otherwise) in respect of shares in the company, except, subject to section 132 , so much of the distribution, if any, as represents a repayment of capital on the shares or is, when it is made, equal in amount or value to any new consideration received by the company for the distribution;
(c) any amount met out of assets of the company (whether in cash or otherwise) in respect of the redemption of any security issued by the company in respect of shares in, or securities of, the company otherwise than wholly for new consideration, or in the redemption of such part of any such security so issued as is not properly referable to new consideration;
(d) any interest or other distribution out of assets of the company in respect of securities of the company (except so much, if any, of any such distribution as represents the principal thereby secured, and, without prejudice to section 135 (9), for this purpose no amount shall be regarded as representing the principal secured by a security in so far as it exceeds any new consideration received by the company for the issue of the security), where the securities are—
(i) securities issued as mentioned in paragraph (c), but excluding securities issued before the 27th day of November, 1975,
(ii) securities convertible directly or indirectly into shares in the company or securities carrying any right to receive shares in or securities of the company, not being (in either case) securities quoted on a recognised stock exchange nor issued on terms which are reasonably comparable with the terms of issue of securities so quoted,
(iii) securities under which—
(I) the consideration given by the company for the use of the principal secured is to any extent dependent on the results of the company's business or any part of the company's business, or
(II) the consideration so given represents more than a reasonable commercial return for the use of that principal; but this shall not operate so as to treat as a distribution so much of the interest or other distribution as represents a reasonable commercial return for the use of that principal,
(iv) securities issued by the company and held by a company not resident in the State, where—
(I) the company which issued the securities is a 75 per cent subsidiary of the other company,
(II) both companies are 75 per cent subsidiaries of a third company which is not resident in the State, or
(III) except where 90 per cent or more of the share capital of the company which issued the securities is directly owned by a company resident in the State, both the company which issued the securities and the company not resident in the State are 75 per cent subsidiaries of a third company which is resident in the State,
or
(v) securities connected with shares in the company, where “connected with” means that, in consequence of the nature of the rights attaching to the securities or shares, and in particular of any terms or conditions attaching to the right to transfer the shares or securities, it is necessary or advantageous for a person who has, or disposes of or acquires, any of the securities also to have, or to dispose of or acquire, a proportionate holding of the shares;
(e) any amount required to be treated as a distribution by subsection (3) or by section 131 .
(3) (a) Where on a transfer of assets or liabilities by a company to its members or to a company by its members the amount or value of the benefit received by a member (taken according to its market value) exceeds the amount or value (so taken) of any new consideration given by the member, the company shall be treated as making a distribution to the member of an amount equal to the difference (in paragraph (b) referred to as “the relevant amount”).
(b) Notwithstanding paragraph (a), where the company and the member receiving the benefit are both resident in the State and either the former is a subsidiary of the latter or both are subsidiaries of a third company also so resident, the relevant amount shall not be treated as a distribution.
(4) The question whether one company is a subsidiary of another company for the purpose of subsection (3) shall be determined as a question whether it is a 51 per cent subsidiary of that other company, except that that other company shall be treated as not being the owner of—
(a) any share capital which it owns directly in a company, if a profit on a sale of the shares would be treated as a trading receipt of its trade,
(b) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt, or
(c) any share capital which it owns directly or indirectly in a company not resident in the State.
(5) (a) No transfer of assets (other than cash) or of liabilities between one company and another company shall constitute, or be treated as giving rise to, a distribution by virtue of subsection (2)(b) or (3) if they are companies—
(i) both of which are resident in the State and neither of which is a 51 per cent subsidiary of a company not so resident, and
(ii) which neither at the time of the transfer nor as a result of it are under common control.
(b) For the purposes of this subsection, 2 companies shall be under common control if they are under the control of the same person or persons, and for this purpose “control” shall be construed in accordance with section 11 .
(c) Any amount which would be a distribution by virtue of subsection (3)(a) shall not constitute a distribution by virtue of subsection (2)(b).
num: 131
paragraphs: —(1) In this section—
“ordinary shares” means shares other than preference shares;
“preference shares” means shares—
(a) which do not carry any right to dividends other than dividends at a rate per cent of the nominal value of the shares which is fixed, and
(b) which carry rights in respect of dividends and capital which are comparable with those general for fixed-dividend shares quoted on a stock exchange in the State;
“new consideration not derived from ordinary shares” means new consideration other than consideration consisting of the surrender, transfer or cancellation of ordinary shares of the company or any other company or consisting of the variation of rights in ordinary shares of the company or any other company, and other than consideration derived from a repayment of share capital paid in respect of ordinary shares of the company or of any other company.
(2) Where a company—
(a) repays any share capital or has done so at any time on or after the 27th day of November, 1975, and
(b) at or after the time of that repayment, issues as paid up, otherwise than by the receipt of new consideration, any share capital,
the amount so paid up shall be treated as a distribution made in respect of the shares on which it is paid up, except in so far as that amount exceeds the amount or aggregate amount of share capital so repaid less any amounts previously so paid up and treated by virtue of this subsection as distributions.
(3) Subsection (2) shall not apply where the repaid share capital consists of fully paid up preference shares—
(a) if those shares existed as issued and fully paid preference shares on the 27th day of November, 1975, and throughout the period from that date until the repayment those shares continued to be fully paid preference shares, or
(b) if those shares were issued after the 27th day of November, 1975, as fully paid preference shares wholly for new consideration not derived from ordinary shares and throughout the period from their issue until the repayment those shares continued to be fully paid preference shares.
(4) Except in relation to a close company within the meaning of section 430 , this section shall not apply if the issue of share capital mentioned in subsection (2)(b)—
(a) is of share capital other than redeemable share capital, and
(b) takes place more than 10 years after the repayment of share capital mentioned in subsection (2)(a).
num: 132
paragraphs: —(1) In this section, “relevant distribution” means so much of any distribution made in respect of shares representing the relevant share capital as apart from subsection (2)(a) would be treated as a repayment of share capital, but by virtue of that subsection cannot be so treated.
(2) (a) Where—
(i) a company issues any share capital as paid up otherwise than by the receipt of new consideration, or has done so on or after the 27th day of November, 1975, and
(ii) any amount so paid up is not to be treated as a distribution,
then, for the purposes of sections 130 and 131 , distributions made afterwards by the company in respect of shares representing that share capital shall not be treated as repayments of share capital, except to the extent to which those distributions, together with any relevant distributions previously so made, exceed the amounts so paid up (then or previously) on such shares after that date and not treated as distributions.
(b) For the purposes of paragraph (a), all shares of the same class shall be treated as representing the same share capital, and where shares are issued in respect of other shares, or are directly or indirectly converted into or exchanged for other shares, all such shares shall be treated as representing the same share capital.
(3) Where share capital is issued at a premium representing new consideration, the amount of the premium shall be treated as forming part of that share capital for the purpose of determining under this Chapter whether any distribution made in respect of shares representing the share capital is to be treated as a repayment of share capital; but this subsection shall not apply in relation to any part of the premium after that part has been applied in paying up share capital.
(4) Subject to subsection (3), premiums paid on redemption of share capital shall not be treated as repayments of capital.
(5) Except in relation to a close company within the meaning of section 430 , subsection (2)(a) shall not prevent a distribution being treated as a repayment of share capital if it is made—
(a) more than 10 years after the issue of share capital mentioned in subsection (2)(a)(i), and
(b) in respect of share capital other than redeemable share capital.
num: 133
paragraphs: —(1) (a) In this section—
“agricultural society” and “fishery society” have the meanings respectively assigned to them by section 443 (16);
“relevant principal” means an amount of money advanced to a borrower by a company which is within the charge to corporation tax and the ordinary trading activities of which include the lending of money, where—
(i) the consideration given by the borrower for that amount is a relevant security, and
(ii) interest or any other distribution is paid out of the assets of the borrower in respect of that security;
“selling by wholesale” means selling goods of any class to a person who carries on a business of selling goods of that class or uses goods of that class for the purposes of a trade or undertaking carried on by the person;
“specified trade” means, subject to paragraphs (b), (d) and (e), a trade which consists wholly or mainly of the manufacture of goods, including activities which, if the borrower were to make a claim for relief in respect of the trade under Part 14 , would be regarded for the purposes of that Part as the manufacture of goods, but not including trading activities in respect of which a certificate has been given by the Minister for Finance under section 445 .
(b) Where the borrower mentioned in subsection (5) is a 75 per cent subsidiary of—
(i) an agricultural society, or
(ii) a fishery society,
“specified trade”, in that subsection, means a trade of the borrower which consists wholly or mainly of either or both of—
(I) the manufacture of goods within the meaning of the definition of “specified trade” in paragraph (a), and
(II) the selling by wholesale of—
(A) where subparagraph (i) applies, agricultural products, or
(B) where subparagraph (ii) applies, fish.
(c) For the purposes of the definition of “specified trade” in paragraph (a) and of paragraph (b), a trade shall be regarded, as respects an accounting period, as consisting wholly or mainly of particular activities only if the total amount receivable by the borrower from sales made in the course of those activities in the accounting period is not less than 75 per cent of the total amount receivable by the borrower from all sales made in the course of the trade in that period.
(d) A qualifying shipping trade (within the meaning of section 407 ) shall not be regarded as a specified trade for the purposes of this section.
(e) This section shall apply as respects any interest paid to a company in respect of relevant principal advanced before the 20th day of April, 1990, by the company to another company which carries on in the State a trade which but for section 443 (6) would be a specified trade as if that trade were a specified trade.
(2) Any interest or other distribution which—
(a) is paid out of assets of a company (in this section referred to as “the borrower”) to another company within the charge to corporation tax, and
(b) is so paid in respect of a security (in this section referred to as a “relevant security”) within subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d),
shall not be a distribution for the purposes of the Corporation Tax Acts unless the application of this subsection is excluded by subsection (3), (4) or (5).
(3) Subsection (2) shall not apply where the principal secured has been advanced by a company out of money subscribed for the share capital of the company and that share capital is beneficially owned directly or indirectly by a person or persons resident outside the State.
(4) Subsection (2) shall not apply in a case where the consideration given by the borrower for the use of the principal secured represents more than a reasonable commercial return for the use of that principal; but, where this subsection applies, nothing in subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d) shall operate so as to treat as a distribution for the purposes of the Corporation Tax Acts so much of the interest or other distribution as represents a reasonable commercial return for the use of that principal.
(5) Subject to subsections (6) and (7), subsection (2) shall not apply to any interest paid by the borrower, in an accounting period of the borrower, to another company in respect of relevant principal advanced by that other company, where—
(a) in that accounting period the borrower carries on in the State a specified trade,
(b) the relevant principal in respect of which the interest is paid is used in the course of the specified trade—
(i) for the activities of the trade which consist of the manufacture of goods within the meaning of the definition of “specified trade” in paragraph (a) of subsection (1), or
(ii) where paragraph (b) of subsection (1) applies, for the activities of the trade which consist of such selling by wholesale as is referred to in paragraph (II) of the definition of “specified trade” in that paragraph,
and
(c) the interest, if it were not a distribution, would be treated as a trading expense of that trade for that accounting period.
(6) Subsection (5) shall not apply to interest paid in respect of relevant principal to a company which on the 12th day of April, 1989, had no outstanding amounts of relevant principal advanced.
(7) Notwithstanding subsection (5), where at any time after the 12th day of April, 1989, the total of the amounts of relevant principal (in this subsection referred to as “the current amounts of relevant principal”) advanced by a company in respect of relevant securities held directly or indirectly by the company at that time is in excess of a limit, being a limit equal to 110 per cent of the total of the amounts of relevant principal advanced by the company in respect of relevant securities held directly or indirectly by the company on the 12th day of April, 1989, then, such part of any interest paid at that time to the company in respect of relevant principal as bears, in relation to the total amount of interest so paid to the company, the same proportion as the excess bears in relation to the current amounts of relevant principal shall not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company.
(8) (a) In this subsection and in subsection (10), “specified period”, in relation to relevant principal, means the period commencing on the date on which the relevant principal was advanced and ending on the date on which the relevant principal is to be repaid under the terms of the agreement to advance the relevant principal or, if earlier—
(i) in the case of relevant principal advanced before the 11th day of April, 1994, the 11th day of April, 2001, and
(ii) in any other case, a date which is 7 years after the date on which the relevant principal was advanced.
(b) Notwithstanding subsection (5), where at any time on or after the 31st day of January, 1990, the total of the amounts of relevant principal (in this subsection and in subsections (9) and (10) referred to as “the current amounts of relevant principal”) advanced by a company in respect of relevant securities held directly or indirectly by the company at that time is in excess of a limit, being a limit equal to 75 per cent of the total of the amounts of relevant principal advanced by the company in respect of relevant securities held directly or indirectly by the company on the 12th day of April, 1989, then, any interest paid to the company in respect of relevant principal advanced by the company on or after the 31st day of January, 1990, being relevant principal which is included in the current amounts of relevant principal, shall not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company.
(c) Where apart from this paragraph any part of any interest paid to a company in respect of relevant principal advanced by the company on or after the 31st day of January, 1990, would not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company by virtue only of paragraph (b), then, that paragraph shall not apply in relation to so much of that interest as is paid for a specified period in respect of relevant principal advanced and which was, at the time the relevant principal was advanced, specified in the list referred to in subparagraph (iv) if—
(i) the relevant principal is advanced by the company to a borrower who was in negotiation before the 31st day of January, 1990, with any company for an amount of relevant principal,
(ii) the borrower had received before the 31st day of January, 1990, a written offer of grant aid from the Industrial Development Authority, the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta in respect of a specified trade or a proposed specified trade for the purposes of which trade the relevant principal is borrowed,
(iii) the specified trade is a trade which the borrower commenced to carry on after the 31st day of January, 1990, or is a specified trade of the borrower in respect of which the borrower is committed, under a business plan approved by the Industrial Development Authority, the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta, to the creation of additional employment,
(iv) before the 25th day of March, 1992, the specified trade of the borrower was included in a list prepared by the Industrial Development Authority and approved before that day by the Minister for Industry and Commerce and the Minister for Finance, being a list specifying a particular amount of relevant principal in respect of each trade which amount is considered to be essential for the success of that trade, and
(v) the borrower or a company connected with the borrower is not a company which commenced to carry on relevant trading operations (within the meaning of section 446 ) after the 20th day of April, 1990, or intends to commence to carry on such trading operations;
but this paragraph shall not apply to any interest in respect of any relevant principal advanced after the time when the total of the amounts of relevant principal to which this paragraph applies, advanced by all lenders who have made such advances, exceeds £170,000,000.
(d) For the purposes of this subsection and subsections (9) and (10)—
(i) relevant principal advanced by a company at any time on or after a day includes any relevant principal advanced on or after that day to a borrower under an agreement entered into before that day,
(ii) where on or after the 6th day of May, 1993, a period of repayment of relevant principal advanced by a company is extended (whether or not the right to such an extension arose out of the terms of the agreement to advance the relevant principal), the company shall be treated as having—
(I) received repayment of the relevant principal, and
(II) advanced a corresponding amount of relevant principal,
on the date on which apart from the extension the relevant principal fell to be repaid, and
(iii) where at any time after an amount of relevant principal is specified in a list in accordance with paragraph (c)(iv) or subsection (9)(c)(ii) or (10)(b)(ii) a company advances, or is treated as advancing, to a borrower relevant principal the interest in respect of which is treated as a distribution by virtue only of paragraph (c) or subsection (9)(c) or (10)(b), the amount of relevant principal specified in the list shall be treated as reduced by the amount of relevant principal so advanced, or treated as advanced, and the amount so reduced shall be treated as the amount specified in that list.
(e) For the purposes of this subsection and subsections (9) and (10), where a company which has on or after the 31st day of January, 1990, advanced relevant principal to a borrower under the terms of an agreement and, under the terms of that or any other agreement, the company assigns to another company part or all of its rights and obligations under the first-mentioned agreement in relation to the relevant principal, such assignment shall be deemed not to have taken place.
(9) (a) Notwithstanding subsections (5), (7) and (8), where at any time on or after the 31st day of December, 1991, the current amounts of relevant principal advanced by a company in respect of relevant securities held directly or indirectly by the company at that time is in excess of a limit, being a limit equal to 40 per cent of the total of the amounts of relevant principal advanced by the company in respect of the relevant securities held directly or indirectly by the company on the 12th day of April. 1989, then, any interest paid to the company in respect of relevant principal advanced by the company on or after the 31st day of December, 1991, being relevant principal which is included in the current amounts of relevant principal, shall not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company.
(b) (i) Where the total of the amounts of relevant principal advanced by a company in respect of relevant securities held directly or indirectly by the company at any time on or after the 31st day of December, 1991, is less than the limit referred to in paragraph (a), that paragraph shall apply as if that limit were the total of the amounts of relevant principal so advanced as at that time unless the company proves that it has as far as possible, at all times on or after the 31st day of December, 1991, advanced to borrowers relevant principal in respect of the interest on which paragraph (a) does not, or would not, apply by virtue of paragraph (c).
(ii) Where at any time during the period commencing on the 18th day of April, 1991, and ending immediately before the 31st day of December, 1991, an amount of relevant principal which was advanced to a borrower, being a company which carries on one or more trading operations (within the meaning of section 445 (1)), is repaid, this section shall apply as if—
(I) references in subparagraph (i) and in paragraph (a) to the 31st day of December, 1991, were references to the day on which the amount is repaid, and
(II) during that period—
(A) the reference in subparagraph (i) to relevant principal in respect of the interest on which paragraph (a) does not, or would not, apply by virtue of paragraph (c) were a reference to such principal in respect of the interest on which paragraph (b) of subsection (8) does not, or would not, apply by virtue of paragraph (c) of that subsection, and
(B) the reference in paragraph (c) of subsection (8) to paragraph (b) of that subsection were a reference to paragraph (a).
(c) Where apart from this paragraph any part of any interest paid to a company in respect of relevant principal advanced by the company on or after the 31st day of December, 1991, would not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company by virtue only of paragraph (a), then, subject to subsection (11), that paragraph shall not apply in relation to so much of that interest as is paid if—
(i) the specified trade is a trade which the borrower commenced to carry on after the 31st day of January, 1990, or is a specified trade of the borrower in respect of which the borrower is committed, under a business plan approved by the Industrial Development Authority, the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta, to the creation of additional employment,
(ii) the specified trade of the borrower was selected by the Industrial Development Authority for inclusion in a list, approved by the Minister for Industry and Commerce and the Minister for Finance, being a list specifying a particular amount of relevant principal in respect of each trade which amount is considered to be essential for the success of that trade, and
(iii) the borrower or a company connected with the borrower is not a company which commenced to carry on relevant trading operations (within the meaning of section 446 ) after the 20th day of April, 1990, or intends to commence to carry on such trading operations.
(10) (a) Notwithstanding subsections (5) and (7) to (9), any interest paid to a company in respect of relevant principal advanced by the company on or after the 20th day of December, 1991, shall not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company.
(b) Where apart from this paragraph any interest paid to a company in respect of relevant principal advanced by the company on or after the 20th day of December, 1991, would not be treated as a distribution for the purposes of the Corporation Tax Acts in the hands of the company by virtue only of paragraph (a), then, subject to subsection (11), that paragraph shall not apply in relation to so much of that interest as is paid for a specified period in respect of relevant principal advanced and which was, at the time the relevant principal was advanced, specified in the list referred to in subparagraph (ii) if—
(i) the specified trade is a trade which the borrower commenced to carry on after the 31st day of January, 1990, or is a specified trade of the borrower in respect of which the borrower is committed, under a business plan approved by the Industrial Development Authority, the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta, to the creation of additional employment,
(ii) before the 25th day of March, 1992, the specified trade of the borrower was included in a list prepared by the Industrial Development Authority and approved before that day by the Minister for Industry and Commerce and the Minister for Finance, being a list specifying a particular amount of relevant principal in respect of each trade which amount is considered to be essential for the success of that trade, and
(iii) the borrower is not a company which carries on relevant trading operations (within the meaning of section 446 ) or intends to carry on such trading operations.
(11) Subsections (9)(c) and (10)(b) shall not apply to any interest in respect of any relevant principal advanced after the time when the total of the amounts of relevant principal to which those subsections apply, advanced by all lenders who have made such advances, exceeds the aggregate of—
(a) £250,000,000, and
(b) the excess, if any, of £170,000,000 over the total of the amounts of relevant principal to which subsection (8)(c) applies advanced by all lenders who have made such advances.
num: 134
paragraphs: —(1) (a) In this section—
“agricultural society” and “fishery society” have the meanings respectively assigned to them by section 443 (16);
“selling by wholesale” means selling goods of any class to a person who carries on a business of selling goods of that class or uses goods of that class for the purposes of a trade or undertaking carried on by the person;
“specified trade” means, subject to paragraphs (b) and (d) and to subsection (6), a trade which consists wholly or mainly of—
(i) the manufacture of goods, including activities which, if the borrower were to make a claim for relief in respect of the trade under Part 14 , would be regarded for the purposes of that Part as the manufacture of goods, or
(ii) the rendering of services in the course of a service undertaking in respect of which an employment grant was made by the Industrial Development Authority under section 2 of the Industrial Development (No. 2) Act, 1981 .
(b) Where the borrower mentioned in subsection (5) is a 75 per cent subsidiary of—
(i) an agricultural society, or
(ii) a fishery society,
“specified trade”, in that subsection, means a trade of the borrower which consists wholly or mainly of either or both of—
(I) the manufacture of goods within the meaning of the definition of “specified trade” in paragraph (a), and
(II) the selling by wholesale of—
(A) where subparagraph (i) applies, agricultural products, or
(B) where subparagraph (ii) applies, fish.
(c) For the purposes of the definition of “specified trade” in paragraph (a) and of paragraph (b), a trade shall be regarded, as respects an accounting period, as consisting wholly or mainly of particular activities only if the total amount receivable by the borrower from sales made or, as the case may be, in payment for services rendered in the course of those activities in the accounting period is not less than 75 per cent of the total amount receivable by the borrower from all sales made in the course of the trade in that period.
(d) A qualifying shipping trade (within the meaning of section 407 ) shall not be regarded as a specified trade for the purposes of this section.
(2) This section shall apply only where the principal secured has been advanced by a company out of money subscribed for the share capital of the company and that share capital is beneficially owned directly or indirectly by a person or persons resident outside the State.
(3) Any interest or other distribution which—
(a) is paid out of assets of a company (in this section referred to as “the borrower”) to another company within the charge to corporation tax, and
(b) is so paid in respect of a security (in this section referred to as a “relevant security”) within subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d),
shall not be a distribution for the purposes of the Corporation Tax Acts unless the application of this subsection is excluded by subsection (4) or (5).
(4) Subsection (3) shall not apply in a case where the consideration given by the borrower for the use of the principal secured represents more than a reasonable commercial return for the use of that principal; but, where this subsection applies, nothing in subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d) shall operate so as to treat as a distribution for the purposes of the Corporation Tax Acts so much of the interest or other distribution as represents a reasonable commercial return for the use of that principal.
(5) Subsection (3) shall not apply to any interest paid by the borrower, in an accounting period of the borrower, to another company the ordinary trading activities of which include the lending of money, where—
(a) in that accounting period the borrower carries on in the State a specified trade, and
(b) the interest, if it were not a distribution, would be treated as a trading expense of that trade for that accounting period.
(6) (a) This subsection shall apply to any interest or other distribution which apart from this subsection would be a distribution for the purposes of the Corporation Tax Acts, other than any interest or other distribution which is paid by the borrower under an obligation entered into—
(i) before the 13th day of May, 1986, or
(ii) before the 1st day of September, 1986, in accordance with negotiations which were in progress between the borrower and a lender before the 13th day of May, 1986.
(b) Subsection (5) shall apply as respects any interest or other distribution to which this subsection applies as if paragraph (ii) of the definition of “specified trade” in subsection (1)(a) were deleted.
(c) For the purposes of paragraph (a)—
(i) an obligation shall be treated as having been entered into before a particular date only if before that date there was in existence a binding contract in writing under which that obligation arose, and
(ii) negotiations in accordance with which an obligation was entered into shall not be regarded as having been in progress before the 13th day of May, 1986, unless on or before that date preliminary commitments or agreements in relation to that obligation had been entered into between the lender referred to in that paragraph and the borrower.
num: 135
paragraphs: —(1) (a) In this Chapter, “new consideration” means consideration not provided directly or indirectly out of the assets of the company, but does not include amounts retained by the company by means of capitalising a distribution.
(b) Notwithstanding paragraph (a), where share capital has been issued at a premium representing new consideration, any part of that premium applied afterwards in paying up share capital shall also be treated as new consideration for that share capital, except in so far as the premium has been taken into account under section 132 (3) so as to enable a distribution to be treated as a repayment of share capital.
(2) (a) No consideration derived from the value of any share capital or security of a company, or from voting or other rights in a company, shall be regarded for the purposes of this Chapter as new consideration received by the company unless the consideration consists of—
(i) money or value received from the company as a distribution,
(ii) money received from the company as a payment which for those purposes constitutes a repayment of that share capital or of the principal secured by that security, or
(iii) the giving up of the right to that share capital or security on its cancellation, extinguishment or acquisition by the company.
(b) No amount shall be regarded as new consideration by virtue of subparagraph (ii) or (iii) of paragraph (a) in so far as it exceeds any new consideration received by the company for the issue of the share capital or security in question or, in the case of share capital which constituted a distribution on issue, the nominal value of that share capital.
(3) Where 2 or more companies enter into arrangements to make distributions to each other's members, all parties concerned may for the purposes of this Chapter be treated as if anything done by any of those companies had been done by any other, and this subsection shall apply however many companies participate in the arrangements.
(4) (a) In this Chapter and in section 137 , “in respect of shares in the company” and “in respect of securities of the company”, in relation to a company which is a member of a 90 per cent group, mean respectively in respect of shares in that company or any other company in the group and in respect of securities of that company or any other company in the group.
(b) Without prejudice to section 130 (2)(b) as extended by paragraph (a), in relation to a company which is a member of a 90 per cent group, “distribution” includes anything distributed out of assets of the company (whether in cash or otherwise) in respect of shares in or securities of another company in the group.
(c) Nothing in this subsection shall require a company to be treated as making a distribution to any other company which is in the same group and is resident in the State.
(d) For the purposes of this subsection, a principal company and all its 90 per cent subsidiaries form a 90 per cent group, and “principal company” means a company of which another company is a subsidiary.
(e) Nothing in this subsection shall require any company which is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of another company to be treated as making a distribution where it acquires shares in the other company in accordance with section 9 (1) of the Insurance Act, 1990 .
(5) A distribution shall be treated under this Chapter as made, or consideration as provided, out of assets of a company if the cost falls on the company.
(6) In this Chapter and in section 137 , “share” includes stock and any other interest of a member in a company.
(7) References in this Chapter to issuing share capital as paid up apply also to the paying up of any issued share capital.
(8) For the purposes of this Chapter and of section 137 , “security” includes securities not creating or evidencing a charge on assets, and interest paid by a company on money advanced without the issue of a security for the advance, or other consideration given by a company for the use of money so advanced, shall be treated as if paid or given in respect of a security issued for the advance by the company.
(9) Where securities are issued at a price less than the amount repayable on them and are not quoted on a recognised stock exchange, the principal secured shall not be taken for the purposes of this Chapter to exceed the issue price unless the securities are issued on terms reasonably comparable with the terms of issue of securities so quoted.
(10) For the purposes of this Chapter and of section 137 , a thing shall be regarded as done in respect of a share if it is done to a person as being the holder of the share, or as having at a particular time been the holder of the share, or is done in pursuance of a right granted or offer made in respect of a share, and anything done in respect of shares by reference to share holdings at a particular time shall be regarded as done to the then holder of the shares or the personal representatives of any shareholder then dead.
(11) Subsection (10) shall apply in relation to securities as it applies in relation to shares.
num: 136
paragraphs: —(1) Where a company resident in the State makes a distribution, the recipient of the distribution shall, subject to the Tax Acts, be entitled to a tax credit under this section (in the Tax Acts referred to as a “tax credit”).
(2) The tax credit in respect of a distribution shall be available for the purposes specified in the Tax Acts and shall, subject to any express provision to the contrary, be an amount determined by the formula—
D ×
A
_______
100 − A
where—
A is the standard credit rate per cent for the year of assessment in which the distribution is made, and
D is the amount or value of the distribution.
(3) A company resident in the State which is entitled to a tax credit in respect of a distribution may claim to have the amount of the tax credit paid to it if—
(a) the company is wholly exempt from corporation tax or is only not exempt in respect of trading income, or
(b) the distribution is one in relation to which express exemption (otherwise than by section 129 ) is given, whether specifically or by virtue of a more general exemption from tax, under any provision of the Tax Acts.
(4) A person, not being a company resident in the State, who is entitled to a tax credit in respect of a distribution may claim—
(a) to have the credit set against the income tax chargeable on such person's income for the year of assessment in which the distribution is made, and
(b) where the credit exceeds that income tax, and the person is—
(i) resident in the State, or
(ii) entitled under section 1033 to a tax credit in respect of the distribution,
to have the excess paid to such person.
(5) (a) In this subsection, “trust resident in the State” means a trust administered under the law of the State, not being a trust the general administration of which is ordinarily carried on outside the State and the trustees or a majority of the trustees of which are resident or ordinarily resident outside the State.
(b) Where a distribution mentioned in subsection (1) is, or is to be treated as, or is deemed to be under any provision of the Tax Acts, income of a person other than the recipient, that person shall be treated for the purposes of this section as receiving the distribution (and accordingly the question whether that person is entitled to a tax credit in respect of the distribution shall be determined by reference to where that person and not the actual recipient is resident), and where any such distribution is income of a trust resident in the State, the trustees shall be entitled to a tax credit in respect of such distribution if no other person is to be treated for the purposes of this section as receiving the distribution.
num: 137
paragraphs: —(1) This section shall apply where any person (in this section referred to as “the recipient”) receives an amount treated as a distribution by virtue of—
(a) paragraph (c) or (d) of section 130 (2),
(b) section 131 , or
(c) section 132 (2)(a),
and, in this section, a distribution within paragraph (a), (b) or (c) is referred to as a “bonus issue”, and “relevant tax credit”, in relation to a bonus issue, means the tax credit to which the recipient of the bonus issue becomes entitled under section 136 in respect of the bonus issue.
(2) Subject to subsection (5), where the recipient is entitled by reason of—
(a) any exemption from tax,
(b) the setting-off of losses against profits or income, or
(c) the payment of interest,
to recover tax in respect of any distribution which the recipient has received, no account shall be taken, for the purposes of any such exemption, set-off or payment of interest, of any bonus issue or relevant tax credit which the recipient has received.
(3) Subject to subsection (5), a bonus issue and the relevant tax credit shall be treated as not being franked investment income within the meaning of section 156 .
(4) Subject to subsection (5), the relevant tax credit relating to a bonus issue shall not be available to set against any income tax which the recipient is entitled to deduct under section 237 or with which the recipient is chargeable by virtue of section 238 .
(5) Nothing in subsections (2) to (4) shall affect the proportion (if any) of any bonus issue made in respect of any shares or securities which, if that bonus issue were declared as a dividend, would represent a normal return to the recipient on the consideration provided by the recipient for the relevant shares or securities, that is, those in respect of which the bonus issue was made and, if those securities are derived from shares or securities previously acquired by the recipient, the shares or securities which were previously acquired; and nothing in those subsections shall affect the like proportion of the relevant tax credit relating to that bonus issue.
(6) For the purposes of subsection (5)—
(a) if the consideration provided by the recipient for any of the relevant shares or securities was in excess of their market value at the time the recipient acquired them, or if no consideration was provided by the recipient for any of the relevant shares or securities, the recipient shall be taken to have provided for those shares or securities consideration equal to their market value at the time the recipient acquired them, and
(b) in determining whether an amount received by means of dividend exceeds a normal return, regard shall be had to the length of time before the receipt of that amount that the recipient first acquired any of the relevant shares or securities and to any dividends and other distributions made in respect of the relevant shares or securities during that time.
num: 138
paragraphs: —(1) In this section—
“preference shares” does not include preference shares—
(a) which are quoted on a stock exchange in the State,
(b) which are not so quoted but which carry rights in respect of dividends and capital comparable with those general for fixed-dividend shares quoted on a stock exchange in the State, or
(c) which are non-transferable shares issued on or after the 6th day of April, 1989, by a company in the course of carrying on relevant trading operations within the meaning of section 445 or 446 , to a company—
(i) none of the shares of which is beneficially owned, whether directly or indirectly, by a person resident in the State, and
(ii) which, if this paragraph had not been enacted, would not be chargeable to corporation tax in respect of any profits other than dividends which would be so chargeable by virtue of this section;
“shares” includes stock.
(2) This section shall apply to any dividend which—
(a) is paid by a company (in this section referred to as “the issuer”) to another company (in this section referred to as “the subscriber”) within the charge to corporation tax, and
(b) is so paid in respect of preference shares of the issuer.
(3) Notwithstanding any provision of the Tax Acts—
(a) the subscriber shall not be entitled to a tax credit in respect of a dividend to which this section applies, and
num: 139
paragraphs: —(1) Where any right or obligation created before the 6th day of April, 1976, is expressed by reference to a dividend at a gross rate or of a gross amount, that right or obligation shall, in relation to a dividend payable on or after that date, take effect as if the reference were to a dividend of an amount determined by the formula—
D −
A × D
_____
100
where—
A is the standard credit rate per cent for the year of assessment in which the dividend is paid, and
D is an amount equal to a dividend at that gross rate or of that gross amount.
(2) Subsection (1) shall apply with the necessary modifications to a dividend partly at a gross rate or of a gross amount and shall apply to any distribution other than a dividend as it applies to a dividend.
num: 140
paragraphs: —(1) In this section—
“exempt profits” means profits or gains which by virtue of section 231 , 232 or 233 were not charged to tax;
“other profits” includes a dividend or other distribution of a company resident in the State, but does not include a distribution to which subsection (3)(a)(i) applies.
(2) Where a distribution for an accounting period is made by a company in part out of exempt profits and in part out of other profits, the distribution shall be treated as if it consisted of 2 distributions respectively made out of exempt profits and out of other profits.
(3) (a) So much of any distribution as has been made out of exempt profits—
(i) shall, where the recipient of that distribution is a company, be deemed for the purposes of the Corporation Tax Acts to be exempt profits of the company, and
(ii) shall not be regarded as income for any purpose of the Income Tax Acts.
(b) Notwithstanding section 136 , the recipient of any distribution, including part of a distribution treated under subsection (2) as a distribution, made out of exempt profits shall not be entitled to a tax credit in respect of that distribution.
(4) (a) Where a company makes a distribution, including part of a distribution treated under subsection (2) as a distribution, in respect of any right or obligation to which section 139 relates and the distribution is made out of exempt profits, the company shall make a supplementary distribution of an amount equal to the amount of the tax credit which would have applied in respect of the distribution if subsection (3)(b) had not been enacted.
(b) Subsection (2) shall apply to a supplementary distribution under this subsection as if that supplementary distribution were a distribution made wholly out of exempt profits.
(5) In relation to any distribution (not being a supplementary distribution under this section), including part of a distribution treated under subsection (2) as a distribution, made by a company out of exempt profits, section 152 shall apply to the company so that the statements provided for by that section shall show as respects each such distribution, in addition to the particulars required to be given apart from this section, that the distribution is made out of exempt profits.
(6) In relation to any supplementary distribution under subsection (4), section 152 shall apply to the company so that the statement required by subsection (1) of that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
(7) Where a company makes a distribution for an accounting period, the distribution shall be regarded for the purposes of this section as having been made out of the distributable income (within the meaning of section 144 (8)) of that period to the extent of that income and, in relation to the excess of the distribution over that income, out of the most recently accumulated income.
(8) Subsections (6) and (7) of section 145 shall apply for the purposes of this section as they apply for the purposes of that section.
num: 141
paragraphs: —(1) In this section—
“disregarded income” means—
(a) as respects distributions made out of specified income accruing to a company on or after the 28th day of March, 1996—
(i) income from a qualifying patent which by virtue of section 234 (2) has been disregarded for the purposes of income tax, and
(ii) income from a qualifying patent which by virtue of section 234 (2) and section 76 (6) has been disregarded for the purposes of corporation tax,
but does not include income (in this section referred to as “specified income”) from a qualifying patent (within the meaning of section 234 ) which would not be income from a qualifying patent if paragraph (a) of the definition of “income from a qualifying patent” in section 234 (1) had not been enacted, and
(b) as respects any other distributions—
(i) income which by virtue of section 234 (2) has been disregarded for the purposes of income tax, and
(ii) income which by virtue of section 234 (2) and section 76 (6) has been disregarded for the purposes of corporation tax;
“eligible shares”, in relation to a company, means shares forming part of the ordinary share capital of the company which—
(a) are fully paid up,
(b) carry no present or future preferential right to dividends or to the company's assets on its winding up and no present or future preferential right to be redeemed, and
(c) are not subject to any different treatment from the treatment which applies to all shares of the same class, in particular different treatment in respect of—
(i) the dividend payable,
(ii) repayment,
(iii) restrictions attaching to the shares, or
(iv) any offer of substituted or additional shares, securities or rights of any description in respect of the shares;
“other profits” includes a dividend or other distribution of a company resident in the State, but does not include a distribution to which subsection (3)(a)(ii) applies.
(2) Where a distribution for an accounting period is made by a company in part out of disregarded income and in part out of other profits, the distribution shall be treated as if it consisted of 2 distributions respectively made out of disregarded income and out of other profits.
(3) (a) So much of any distribution as has been made out of disregarded income—
(i) shall, subject to subsection (4)(a), not be regarded as income for any purpose of the Income Tax Acts, and
(ii) shall, where the recipient of that distribution is a company and the distribution is in respect of eligible shares, be deemed for the purposes of this section to be disregarded income.
(b) The recipient of any distribution, including part of a distribution treated under subsection (2) as a distribution, made out of disregarded income shall not be entitled to a tax credit in respect of that distribution.
(4) (a) Subsection (3)(a)(i) shall not apply to any distribution received by a person unless it is a distribution—
(i) in respect of eligible shares, or
(ii) made out of disregarded income, being income (in this subsection referred to in relation to a person as “relevant income”) which is referable to a qualifying patent in relation to which the person carried out, either solely or jointly with another person, the research, planning, processing, experimenting, testing, devising, designing, development or other similar activity leading to the invention which is the subject of the qualifying patent.
(b) For the purposes of paragraph (a), where a distribution for an accounting period is made by a company to a person in part out of relevant income, in relation to the person, and in part out of other disregarded income, the distribution shall be treated as if it consisted of 2 distributions respectively made out of relevant income and out of other disregarded income.
(5) (a) In this subsection—
“the amount of aggregate expenditure on research and development incurred by a company in relation to an accounting period” means the amount of expenditure on research and development activities incurred in the State by the company in the accounting period and the previous 2 accounting periods; but, where in an accounting period a company incurs expenditure on research and development activities and not less than 75 per cent of that expenditure was incurred in the State, all of that expenditure shall be deemed to have been incurred in the State;
“the amount of the expenditure on research and development activities”, in relation to expenditure incurred by a company in an accounting period, means non-capital expenditure incurred by the company, being the aggregate of the amounts of—
(i) such part of the emoluments paid by the company to employees of the company engaged in carrying out research and development activities related to the company's trade as is laid out for the purposes of those activities,
(ii) expenditure incurred by the company on materials or goods used solely by the company in the carrying out of research and development activities related to the company's trade, and
(iii) a sum paid to another person, not being a person connected with the company, in order that such person may carry out research and development activities related to the company's trade,
but, where the company (in this definition referred to as “the first company”) is a member of a group, then, for the purposes of this section, the amount of expenditure on research and development activities incurred in an accounting period by another company which in the accounting period is a member of the group shall, on a joint election in writing being made on that behalf by the first company and the other company, be treated as being expenditure incurred on research and development activities in the accounting period by the first company and not by the other company;
“research and development activities” has the same meaning as in section 766 .
(b) For the purpose of this subsection—
(i) 2 companies shall be deemed to be members of a group if both companies are wholly or mainly under the control of the same individual or individuals or if one company is a 75 per cent subsidiary of another company or both companies are 75 per cent subsidiaries of a third company and, in determining whether one company is a 75 per cent subsidiary of another company, the other company shall be treated as not being the owner of—
(I) any share capital which it owns directly in a company if a profit on sale of the shares would be treated as a trading receipt of its trade, or
(II) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt;
(ii) a company shall be wholly or mainly under the control of an individual or individuals if not less that 75 per cent of the ordinary share capital of the company is owned directly or indirectly by the individual or, as the case may be, by individuals each of whom owns directly or indirectly part of that share capital;
(iii) sections 412 to 418 shall apply for the purposes of this paragraph as they apply for the purposes of Chapter 5 of Part 12 and, where 2 companies are deemed to be members of a group by reason that both companies are wholly or mainly under the control of the same individual or individuals, those sections shall apply as they would apply for the purposes of that Chapter if the references in those sections to a parent company included a reference to an individual or individuals who hold shares in a company.
(c) Where for an accounting period a company makes one or more distributions out of specified income which accrued to the company on or after the 28th day of March, 1996, so much of the amount of that distribution, or the aggregate of such distributions, as does not exceed the amount of aggregate expenditure on research and development incurred by the company in relation to the accounting period shall be treated as a distribution made out of disregarded income.
(d) (i) Notwithstanding paragraph (c) but subject to subparagraph (ii), if in an accounting period the beneficial recipient (in this paragraph referred to as “the recipient”) of the specified income shows in writing to the satisfaction of the Revenue Commissioners that the specified income is income from a qualifying patent in respect of an invention which—
(I) involved radical innovation, and
(II) was patented for bona fide commercial reasons and not primarily for the purpose of avoiding liability to taxation,
the Revenue Commissioners shall, after consideration of any evidence in relation to the matter which the recipient submits to them and after such consultations (if any) as may seem to them to be necessary with such persons as in their opinion may be of assistance to them, determine whether all distributions made out of specified income accruing to the recipient for that accounting period and all sub sequent accounting periods shall be treated as distributions made out of disregarded income and the recipient shall be notified in writing of the determination.
(ii) A recipient aggrieved by a determination of the Revenue Commissioners under subparagraph (i) may, by notice in writing given to the Revenue Commissioners within 30 days of the date of notification advising of the determination, appeal to the Appeal Commissioners and the Appeal Commissioners shall hear and determine the appeal made to them as if it were an appeal against an assessment to income tax, and the provisions of the Income Tax Acts 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.
(e) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this subsection to be performed or discharged by the Revenue Commissioners, and references in this subsection to the Revenue Commissioners shall, with any necessary modifications, be construed as including references to an officer so nominated.
(6) (a) Where a company makes a distribution, including part of a distribution treated under subsection (2) as a distribution, in respect of any right or obligation to which section 139 relates and the distribution is made out of disregarded income, the company shall make a supplementary distribution of an amount equal to the amount of the tax credit which would have applied in respect of the distribution if subsection (3)(b) had not been enacted.
(b) Subsection (3) shall apply to a supplementary distribution under this subsection as if that supplementary distribution were a distribution made wholly out of disregarded income.
(7) In relation to any distribution (not being a supplementary distribution under this section), including part of a distribution treated under subsection (2) as a distribution, made by a company out of disregarded income, section 152 shall apply to the company so that the statements provided for by that section shall show as respects each such distribution, in addition to the particulars required to be given apart from this section, that the distribution is made out of disregarded income.
(8) In relation to any supplementary distribution under subsection (6), section 152 shall apply to the company so that the statement required by subsection (1) of that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
(9) Where a company makes a distribution for an accounting period, the distribution shall be regarded for the purposes of this section as having been made out of the distributable income (within the meaning of section 144 (8)) of that period to the extent of that income and, in relation to the excess of the distributions over that income, out of the most recently accumulated income.
(10) Subsections (6) and (7) of section 145 shall apply for the purposes of this section as they apply for the purposes of that section.
num: 142
paragraphs: —(1) In this section—
“exempted income” means income in respect of which a company has obtained relief under—
(a) the Finance (Profits of Certain Mines) (Temporary Relief from Taxation) Act, 1956 , or
(b) Chapter II (Profits of Certain Mines) of Part XXV of the Income Tax Act, 1967;
“other income” means income of a company which is not exempted income.
(2) Where a distribution for an accounting period is made by a company wholly out of exempted income, the distribution shall not be regarded as income for any purpose of the Income Tax Acts and, notwithstanding section 136 , the recipient of the distribution shall not be entitled to a tax credit in respect of it.
(3) Where a distribution for an accounting period is made by a company in part out of exempted income and in part out of other income, the distribution shall be treated as if it consisted of 2 distributions respectively made out of exempted income and other income, and subsection (2) shall apply to such part of the distribution as is made out of exempted income as it applies to a distribution made wholly out of exempted income.
(4) Any distribution, including part of a distribution treated under subsection (3) as a distribution, made out of exempted income shall, where the recipient is a company resident in the State, be deemed for the purposes of this section to be exempted income of the company.
(5) (a) Where a company makes a distribution, including part of a distribution treated under subsection (3) as a distribution, in respect of any right or obligation to which section 139 relates and the distribution is made out of exempted income, the company shall make a supplementary distribution of an amount equal to the amount of the tax credit which would have applied in respect of the distribution if subsection (2) had not been enacted.
(b) Subsection (2) shall apply to a supplementary distribution under this subsection as if the supplementary distribution were a distribution made out of exempted income, and section 152 (1) shall apply so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
(6) Subsections (7) and (8) of section 144 and subsections (6) and (7) of section 145 shall apply for the purposes of this section as they apply for the purposes of those sections.
(7) In relation to any distribution (not being a supplementary distribution under this section), including part of a distribution treated under subsection (3) as a distribution, made out of exempted income, section 152 shall apply so that the statements provided for by that section shall show, in addition to the particulars required to be given apart from this section, that the distribution is made out of exempted income.
num: 143
paragraphs: —(1) In this section, “relieved income” means the income of a company—
(a) on which income tax was paid at a reduced rate by virtue of—
(i) section 395(1) of the Income Tax Act, 1967,
(ii) section 7 or 8 of the Finance (Miscellaneous Provisions) Act, 1956 , or
(iii) section 32 of the Finance Act, 1960 ,
(b) on which income tax was borne by deduction at a reduced rate under—
(i) section 396(1) of the Income Tax Act, 1967, or
(ii) section 9 of the Finance (Miscellaneous Provisions) Act, 1956 ,
or
(c) which is franked investment income, the tax credit comprised in which has been reduced under this section.
(2) The tax credit in respect of a distribution made wholly out of relieved income shall, notwithstanding section 136 , be the amount determined by applying to the amount of the distribution the fraction—
A
_______
100 − A
where A is 50 per cent of the standard credit rate per cent for the year of assessment in which the distribution is made.
(3) Where a distribution is made in part out of relieved income and in part out of other income, the distribution shall be treated as if it consisted of 2 distributions respectively made out of relieved income and out of other income, and the tax credit in respect of each such distribution shall be calculated in accordance with subsection (2) and section 136 respectively.
(4) Any distribution, including part of a distribution treated under subsection (3) as a distribution, made out of relieved income shall, where the recipient is a company resident in the State, be deemed for the purposes of this section to be relieved income of the company.
(5) Subject to subsection (7), for the purposes of the Tax Acts, a distribution made by a company out of relieved income shall be treated as representing income equal to the aggregate of the amount or value of that distribution and the amount of the tax credit in respect of it calculated in accordance with this section.
(6) Where for a year of assessment the taxable income of an individual which is chargeable at the standard rate includes income represented by distributions made out of relieved income, the individual's liability to income tax in respect of the income represented by such distributions shall be an amount equal to the tax on that income calculated at 50 per cent of the standard rate for the year of assessment in which the distributions were made.
(7) Where for a year of assessment the taxable income of an individual which is chargeable at the higher rate includes income represented by distributions made out of relieved income, the individual's liability to income tax at the higher rate in respect of the income represented by such distributions shall be an amount equal to the tax, calculated at the higher rate for the year of assessment in which the distributions were made, on the income reduced by 50 per cent, and credit shall be given against that tax of an amount equal to tax at the standard credit rate for that year on the amount of the income as so reduced.
(8) Where a company makes a distribution, including part of a distribution treated as a distribution under subsection (3), in respect of any right or obligation to which section 139 relates and the tax credit in respect of that distribution is calculated in accordance with subsection (2), then, the company shall make a supplementary distribution of an amount equal to the excess of the tax credit which would have applied to the distribution if this section had not been enacted over the amount of the tax credit which in accordance with subsection (2) applies to the distribution, and the person to whom the distribution and the supplementary distribution are made shall be regarded as having received one distribution consisting of the aggregate of the distribution and the supplementary distribution.
(9) Notwithstanding section 136 , the recipient of a supplementary distribution under subsection (8) shall not be entitled to a tax credit in respect of such supplementary distribution, and section 152 (1) shall apply so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
(10) Subsections (7) and (8) of section 144 and subsections (6) and (7) of section 145 shall apply for the purposes of this section as they apply for the purposes of those sections.
(11) In relation to any distribution (not being a supplementary distribution under this section), including part of a distribution treated under subsection (3) as a distribution, made by a company out of relieved income, section 152 shall apply so that the statements provided for by that section shall show, in addition to the particulars required to be given apart from this section, that the distribution is made out of relieved income and the amount of the tax credit which would apply in respect of the distribution if it were not made out of relieved income.
num: 144
paragraphs: —(1) In this section—
“exempted trading operations” means trading operations which were exempted trading operations for the purposes for Part V of the Corporation Tax Act, 1976 ;
“other profits” includes a dividend or other distribution of a body corporate resident in the State, but does not include a distribution to which subsection (3)(a) applies.
(2) Where a distribution for an accounting period is made by a body corporate in part out of income from exempted trading operations and in part out of other profits, the distribution shall be treated as if it consists of 2 distributions respectively made out of income from exempted trading operations and out of other profits.
(3) (a) So much of any distribution as has been made out of income from exempted trading operations shall, where the recipient of that distribution is a body corporate, be deemed for the purposes of this section to be income from exempted trading operations.
(b) The recipient of any distribution, including part of a distribution treated under subsection (2) as a distribution, made out of income from exempted trading operations shall not be entitled to a tax credit in respect of that distribution.
(4) (a) Where a body corporate makes a distribution, including part of a distribution treated under subsection (2) as a distribution, in respect of any right or obligation to which section 139 relates and the distribution is made out of income from exempted trading operations, the body corporate shall make a supplementary distribution of an amount equal to the amount of the tax credit which would have applied in respect of the distribution if subsection (3)(b) had not been enacted.
(b) Subsection (3) shall apply to a supplementary distribution under this subsection as if that supplementary distribution were a distribution made wholly out of income from exempted trading operations.
(5) In relation to any distribution (not being a supplementary distribution under this section), including part of a distribution treated under subsection (2) as a distribution, made by a body corporate out of income from exempted trading operations, section 152 shall apply to the body corporate so that the statements provided for by that section shall show, as respects each such distribution, in addition to the particulars required to be given apart from this section, that the distribution is made out of income from exempted trading operations.
(6) In relation to any supplementary distribution under subsection (4), section 152 (1) shall apply to the body corporate so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
(7) Where a body corporate makes a distribution for an accounting period, the distribution shall be regarded for the purposes of this section as having been made out of the distributable income of that period to the extent of that income and in relation to the excess of the distribution over that income out of the most recently accumulated income.
(8) For the purposes of subsection (7), the distributable income of a company for an accounting period shall be an amount determined by the formula—
(R − S) + T
where R, S and T have the same meanings respectively as in section 147 (1)(a).
(9) Subsections (6) and (7) of section 145 shall apply for the purposes of this section as they apply for purposes of that section.
num: 145
paragraphs: —(1) This section shall apply to a distribution (in this section referred to as a “relevant distribution”) made or deemed to have been made by a company for an accounting period wholly or in part out of—
(a) the company's income for the accounting period the corporation tax in respect of which has been reduced under Part IV of the Corporation Tax Act, 1976 , or
(b) a distribution or distributions received by the company in the accounting period in respect of which the tax credit is determined in accordance with this section.
(2) (a) Where a relevant distribution is made or is deemed for the purposes of this section to have been made by a company for an accounting period, the tax credit to which the recipient of the relevant distribution is entitled in respect of it shall be an amount arrived at by applying a fraction determined by the formula—
A + B
______
C
to the amount of the relevant distribution,
where—
A is an amount arrived at by applying to the amount of the company's distributable income for the accounting period, excluding distributions received by the company in that period, the fraction—
D
______
100 − D
where D is the standard credit rate per cent for the year of assessment in which the relevant distribution is made reduced in the same proportion as the company's liability to corporation tax on its income (other than its income from the sale of goods within the meaning of section 448 ) for the accounting period is reduced under section 58 of the Corporation Tax Act, 1976 , subject to paragraph (c) of the proviso to section 182(3), and paragraph (iii) of the proviso to section 184(3), of that Act,
B is the aggregate of the tax credits in respect of the amount referred to in subsection (4)(a)(ii), and
C is the amount of the company's distributable income for the accounting period.
(b) The reference to certain tax credits in the definition of “B” in paragraph (a) shall, in relation to distributions received by a company which makes a distribution to which this section applies, be construed—
(i) as a reference to such tax credits multiplied by .4937 in so far as they are tax credits in respect of distributions made before the 6th day of April, 1978, or made after the 5th day of April, 1983, and before the 6th day of April, 1988,
(ii) as a reference to such tax credits multiplied by .6203 in so far as they are tax credits in respect of distributions made after the 5th day of April, 1978, and before the 6th day of April, 1983,
(iii) as a reference to such tax credits multiplied by .5649 in so far as they are tax credits in respect of distributions made after the 5th day of April, 1988, and before the 6th day of April, 1989,
(iv) as a reference to such tax credits multiplied by .6835 in so far as they are tax credits in respect of distributions made after the 5th day of April, 1989, and before the 6th day of April, 1991,
(v) as a reference to such tax credits multiplied by .7975 in so far as they are tax credits in respect of distributions made after the 5th day of April, 1991, and before the 6th day of April, 1995, and
(vi) as a reference to such tax credits multiplied by .8899 in so far as they are tax credits in respect of distributions made after the 5th day of April, 1995, and before the 6th day of April, 1997.
(3) For the purposes of this section—
(a) where the total amount of the distributions made by a company for an accounting period exceeds the distributable income of the company for that accounting period, the excess shall be deemed for the purposes of this section to be a distribution for the immediately preceding accounting period;
(b) where the total amount of the distributions made or deemed under paragraph (a) to have been made by a company for the immediately preceding accounting period referred to in paragraph (a) exceeds the distributable income of the company for that accounting period, the excess shall be deemed to be a distribution for the next immediately preceding accounting period and so on;
(c) where the total amount of the distributions made or deemed under this subsection to have been made for the first accounting period for which the company came within the charge to corporation tax exceeds the distributable income of the company for that accounting period—
(i) the excess shall be deemed to be a distribution for the company's period of account which ended on the accounting date last before the 6th day of April, 1975, or, if there was no such period of account, to be a distribution for the year which ended on the 5th day of April, 1976, and
(ii) the tax credit in respect of the excess which is so deemed shall be an amount equal to the amount of income tax which under section 410 of the Income Tax Act, 1967 , the company would have been entitled to deduct from a dividend of such an amount as after deduction of that tax would equal the amount of the excess, and for this purpose it shall be assumed that the dividend was paid on the 5th day of April, 1976, and was in respect of such period of account or year which ended on the 5th day of April, 1976, as the case may be,
but the tax credit in respect of a distribution to which subparagraph (i) applies shall not exceed the amount which would be the amount of the tax credit in respect of the distribution if that tax credit were determined in accordance with section 136 (2).
(4) (a) For the purposes of this section, the distributable income of a company for an accounting period shall be the aggregate of the following amounts—
(i) the income of the company charged to corporation tax for the accounting period less the amount of corporation tax payable by the company for the accounting period which is attributable to that income, and
(ii) an amount equal to the distributions received by the company in the accounting period which is comprised in its franked investment income of the accounting period, other than franked investment income against which relief is given under section 83 (5), 157 or 158 , and which relief was not subsequently withdrawn under those sections.
(b) For the purposes of paragraph (a), the income of a company for an accounting period shall be taken to be the amount of its profits for that period on which corporation tax falls finally to be borne exclusive of the part of the profits attributable to chargeable gains, and that part shall be taken to be the amount brought into the company's profits for that period for the purposes of corporation tax in respect of chargeable gains before any deduction for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description.
(5) Where the distributable income of a company for an accounting period is to be determined for the purposes of this section in relation to a distribution made by the company for that accounting period (in this subsection referred to as “the first-mentioned distribution”), there shall be deducted from the aggregate mentioned in subsection (4)(a) the aggregate of the following amounts—
num: 146
paragraphs: —(1) Where a company makes a distribution in respect of any right or obligation to which section 139 relates and the tax credit in respect of that distribution is calculated in accordance with section 145 , the company shall make a supplementary distribution of an amount equal to the excess of the amount of the tax credit which would have applied to the distribution if section 145 had not been enacted over the amount of the tax credit which in accordance with section 145 applies to the distribution, and the person to whom the distribution and the supplementary distribution are made shall be regarded as having received one distribution consisting of the aggregate of the distribution and the supplementary distribution.
(2) Notwithstanding section 136 , the recipient of a supplementary distribution under subsection (1) shall not be entitled to a tax credit in respect of it.
(3) In relation to any supplementary distribution within the meaning of subsection (1), section 152 (1) shall apply to the company so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
num: 147
paragraphs: —(1) (a) There shall be treated as a specified distribution for the purposes of subsection (4) so much of a distribution (in this paragraph referred to as “the first-mentioned distribution”) treated under subsection (2) or section 154 as made by a company for an accounting period as does not exceed the amount, which may be nil, determined by the formula—
Y ×
(A − B) + E − U
_____________
(R − S) + T − W
num: 148
paragraphs: —(1) In this section, “relevant deduction”, in relation to a relevant accounting period of a company, means any amount allowed as a deduction against the total profits of the company in that period in respect of—
(a) charges on income,
(b) group relief,
(c) any allowance in respect of capital expenditure to which effect is given for that period under section 308 (4),
(d) any loss in respect of which the profits of that period are treated as reduced under section 396 (2), or
(e) other amounts which under the Corporation Tax Acts may be deducted from or set against or treated as reducing profits of more than one description.
(2) Where for any relevant accounting period of a company—
(a) the corporation tax referable to the income of the company from the sale of goods is to be reduced under section 448 , and
(b) a relevant deduction has been allowed against the total profits in computing the corporation tax chargeable,
then, the amount of the company's income to be taken into account in the definition of “A” in section 147 (1) in respect of that relevant accounting period shall be reduced by an amount equal to such part of the relevant deduction as bears to the whole the same proportion as the amount of the income of the company from the sale of goods bears to the total income brought into charge to corporation tax for the relevant accounting period.
num: 149
paragraphs: —(1) Where a company makes a distribution which is a relevant distribution for the purposes of section 147 , including part of a distribution treated under section 147 (4) as a relevant distribution, and which is in respect of any right or obligation to which section 139 applies, the company shall make a supplementary distribution of an amount equal to the excess of the amount of the tax credit which would have applied in respect of the relevant distribution, if section 147 (5) had not been enacted, over the amount of the tax credit which in accordance with section 147 (5) applies to the relevant distribution.
(2) Where the whole or part of a supplementary distribution under subsection (1) which is a relevant distribution for the purposes of section 147 is received by a company in an accounting period, then, for the purposes of that section—
(a) the whole or part, as the case may be, of the supplementary distribution shall be an amount taken into account under the definition of “E”, and
(b) the whole of the supplementary distribution shall be an amount taken into account under the definition of “T”,
in the formulae in subsections (1) and (3) of section 147.
(3) Notwithstanding section 136 , the recipient of a supplementary distribution under subsection (1) shall not be entitled to a tax credit in respect of it.
(4) In relation to any supplementary distribution within the meaning of subsection (1), section 152 (1) shall apply to the company so that the statement required by that section shall show, in addition to the particulars required to be given apart from this section, the separate amount of such supplementary distribution.
num: 150
paragraphs: —(1) This section shall apply to a distribution made by a company which carries on a specified trade (being a specified trade within the meaning of section 133 (1)) and which is a distribution by virtue only of subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d).
(2) Where a distribution to which this section applies or part of such a distribution is not otherwise a relevant distribution for the purposes of section 147 (5), then, notwithstanding any provision to the contrary in section 147 , the distribution or part of it, as the case may be, shall be deemed for the purposes of section 147 (5) to be a relevant distribution.
num: 151
paragraphs: —An appeal to the Appeal Commissioners shall lie on any question arising under this Chapter in the like manner as an appeal would lie against an assessment to corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 152
paragraphs: —(1) Every warrant, cheque or other order drawn or made, or purporting to be drawn or made, in payment by any company of any dividend, or of any interest which is a distribution, shall have annexed to it or be accompanied by a statement in writing showing—
(a) the amount of the dividend (distinguishing a dividend or any part of it which is paid out of capital profits of the company) or interest paid,
(b) (whether or not the recipient is a person entitled to a tax credit in respect of the dividend or interest) the amount of the tax credit to which a recipient who is such a person is entitled in respect of that dividend or interest, and
(c) the period for which that dividend or interest is paid.
(2) Where a company fails to comply with any of the provisions of subsection (1), the company shall incur a penalty of £10 in respect of each offence, but the aggregate amount of the penalties imposed under this section on any company in respect of offences connected with any one distribution of dividends or interest shall not exceed £100.
(3) (a) A company which makes a distribution (not being a distribution to which subsection (1) refers) shall, if the recipient so requests in writing, furnish to the recipient a statement in writing showing the amount or value of the distribution and (whether or not the recipient is a person entitled to a tax credit in respect of the distribution) the amount of the tax credit to which a recipient who is such a person is entitled in respect of the distribution.
(b) The duty imposed by this subsection shall be enforceable at the suit or instance of the person requesting the statement.
num: 153
paragraphs: —(1) Where for any year of assessment the income of a person who for that year is neither resident nor ordinarily resident in the State includes an amount in respect of a distribution made by a company resident in the State—
(a) the liability of the person to income tax in respect of the distribution shall be reduced by the amount by which that liability, before it is reduced by the tax credit (if any) in respect of the distribution, exceeds the amount (which may be nil) of that tax credit, and
(b) the amount or value of the distribution shall be treated for the purposes of sections 237 and 238 as not brought into charge to income tax.
(2) The Revenue Commissioners may by notice in writing require a company which has made a distribution to furnish them, within such time as they may direct, with such particulars as they consider necessary to identify persons benefiting from subsection (1).
num: 154
paragraphs: —(1) (a) Notwithstanding sections 140 , 141 , 144 , 145 and 147 (2) but subject to subsections (2) and (3), where a company which makes a distribution specifies, by notice in writing given to the inspector within 6 months of the end of the accounting period in which the distribution is made, the extent to which the distribution is to be treated for the purposes of sections 140 , 141 , 144 , 145 and 147 as made for any accounting period or periods, the distribution shall be so treated for those purposes irrespective of the period of account for which it was made.
(b) A part of a distribution treated under paragraph (a) as made for an accounting period shall be treated for the purposes of sections 140 , 141 , 144 and 145 , and subsections (1), (2) and (4) of section 147 , as a separate distribution.
(2) A company may specify in accordance with subsection (1) that only so much of a distribution, or more than one distribution, made on any day is made—
(a) for any accounting period, as does not exceed the undistributed income of the company for that accounting period on that day, and
(b) for an accounting period or accounting periods ending more than 9 years before that day, as does not exceed the amount by which the amount of the distribution or the aggregate amount of the distributions, as the case may be, exceeds the aggregate of the undistributed income of the company on that day for accounting periods ending before, but not more than 9 years before, that day.
(3) Except where a distribution made by a company is—
(a) an interim dividend paid before the 6th day of April, 2002, by the directors of the company, pursuant to powers conferred on them by the articles of association of the company, in respect of the profits of the accounting period in which it is paid,
(b) a distribution by virtue only of subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d),
(c) a distribution made in respect of shares of a type referred to in paragraph (c) of the definition of “preference shares” in section 138 (1), or
(d) made in an accounting period in which the company ceases or commences to be within the charge to corporation tax,
the company shall not be entitled to specify in accordance with subsection (1) that the distribution is to be treated as made for the accounting period in which it is made.
(4) Notwithstanding subsection (3) but subject to subsection (5), a company shall not be entitled to specify in accordance with subsection (1) that a distribution, being an interim dividend or part of it, is to be treated as made for the accounting period in which it is made where—
(a) the circumstances of the company are such that, if the distribution or the part of it, as the case may be, were treated as made for the accounting period in which it is made, the company would be unable at the time when the interim dividend is paid to determine without recourse to estimation how much of the distribution or the part of it, as the case may be, would in accordance with section 147 (1) be treated as a specified distribution for the purposes of section 147 (4), or
(b) that treatment of the distribution or the part of it, as the case may be, as made for the accounting period in which it is made, would facilitate any arrangement whereby the tax credit in respect of a dividend received by a shareholder could exceed the tax credit, if any, in respect of a dividend received by another shareholder, notwithstanding that the shareholdings of those shareholders carry the same or substantially similar rights in respect of dividends and capital.
(5) Subsection (4) shall apply to a company—
(a) the profits brought into charge to corporation tax of which are wholly or mainly referable to relevant trading operations within the meaning of section 445 (1) or 446 (1), and
(b) which—
(i) (I) is a trading or holding company owned by a consortium for the purposes of section 165 (1)(b) or a 51 per cent subsidiary of a company resident in the State, and
(II) has not made an election under section 165 (2)(b),
or
(ii) is referred to in section 168 (1)(a)(ii) as “the first-mentioned company”,
as if subsection (4)(b) were deleted.
(6) For the purposes of this section, the amount of the undistributed income of a company for an accounting period on any day shall be the amount of the distributable income of the company for the accounting period as determined by section 147 (3), reduced by the amount of each distribution, or part of each distribution, made before that day and on or after the 6th day of April, 1989, which is to be treated, whether under section 147 or this section, as made for that accounting period.
num: 155
paragraphs: —(1) In this section, “distribution” has the same meaning as in the Corporation Tax Acts.
(2) (a) This section shall apply to shares in a company where any agreement, arrangement or understanding exists which could reasonably be considered to eliminate the risk that the person beneficially owning those shares—
(i) might, at or after a time specified in or implied by that agreement, arrangement or understanding, be unable to realise directly or indirectly in money or money's worth an amount so specified or implied, other than a distribution, in respect of those shares, or
(ii) might not receive an amount so specified or implied of distributions in respect of those shares.
(b) The reference in this subsection to the person beneficially owning shares shall be deemed to be a reference to both that person and any person connected with that person.
(c) For the purposes of this subsection, an amount specified or implied shall include an amount specified or implied in a foreign currency.
(3) Where any person receives a distribution in respect of shares to which this section applies and, apart from the application of this subsection to the distribution, section 140 (3)(a), 141 (3)(a), 144 (3)(a) or 145 would apply to the distribution, then, notwithstanding any provision of the Tax Acts other than subsection (4) and for the purposes of those Acts—
(a) none of those sections shall apply to the distribution,
(b) that person shall not be entitled to a tax credit in respect of the distribution, and
num: 156
paragraphs: —(1) Income of a company resident in the State which consists of a distribution in respect of which the company is entitled to a tax credit (and which accordingly represents income equal to the aggregate of the amount or value of the distribution and the amount of that credit) shall be referred to in the Corporation Tax Acts as “franked investment income” of the company.
(2) The sum of the amount or value of a distribution made by a company resident in the State and the amount of the tax credit in respect of the distribution shall be referred to in the Corporation Tax Acts as “a franked payment”, and references to any accounting or other period in which a franked payment is made are references to the period in which the distribution in question is made.
num: 157
paragraphs: —(1) Where in any accounting period a company receives franked investment income, the company may on making a claim for the purpose require that the franked investment income or part of the franked investment income shall for all or any of the purposes mentioned in subsection (2) be treated as if it were a like amount of profits chargeable to corporation tax and, subject to subsections (4) and (5), the company shall be entitled to have paid to it the value of the tax credit comprised in the income or in the part of the income so treated.
(2) The purposes for which a claim may be made under subsection (1) shall be—
(a) the deduction of charges on income under section 243 ;
(b) the setting of certain capital allowances against total profits under section 308 (4);
(c) the setting of trading losses against total profits under section 396 (2).
(3) Where a company makes a claim under this section for any accounting period, the reduction to be made in profits of that accounting period shall be made as far as may be in profits chargeable to corporation tax rather than in the amount treated as profits so chargeable under this section.
(4) Where a claim under this section relates to section 308 (4) or 396 (2) and an accounting period of the company falls partly before and partly within the time mentioned in section 308 (4) or 396 (2), as the case may be, then—
(a) the restriction imposed by section 308 (4) or 396 (3) on the amount of the relief shall be applied only to any relief to be given apart from this section, and shall be applied without regard to any amount treated as profits of the accounting period under this section; but
(b) relief under this section shall be given only against a part of the amount so treated proportionate to the part of the accounting period falling within the time mentioned in section 308 (4) or 396 (2), as the case may be.
num: 158
paragraphs: —(1) Where in any accounting period a company receives franked investment income, the company, instead of or in addition to making a claim under section 157 , may on making a claim for that purpose require that the franked investment income shall be taken into account for relief under section 396 (1) or 397 up to the amount of such income received in the accounting period which, if chargeable to corporation tax, would have been so taken into account by virtue of section 396 (6), and (subject to the restriction to the amount of franked investment income) subsections (2) to (7) shall apply where the company makes a claim under this section for any accounting period.
(2) For the purposes of the claim, the amount to which the claim relates shall be treated as trading income of the accounting period.
(3) (a) The reduction to be made in trading income of an accounting period shall be made as far as may be in trading income chargeable to corporation tax rather than in the amount treated as trading income so chargeable under this section.
(b) Where the claim is made under section 397 , the loss in the trade shall be set primarily against income chargeable to corporation tax (exclusive of income so treated as chargeable by this section) for the accounting periods referred to in section 397 (1), and the set-off of the loss against franked investment income provided for by this section shall apply to the balance only of such loss which has not been set off under section 397 (1) and the set-off against franked investment income of such balance of the loss as is referred to above shall be effected in a later rather than an earlier accounting period falling within the 3 years mentioned in section 397 (1).
num: 159
paragraphs: —Except where otherwise provided for in this Chapter, where a company resident in the State makes a distribution, the company shall be liable to make a payment of corporation tax (to be known as “advance corporation tax”) in accordance with this Chapter and, subject to section 162 , the amount of advance corporation tax shall, whether or not the recipient of the distribution is a person entitled to a tax credit in respect of the distribution, be equal to the amount of the tax credit to which a recipient who is such a person is entitled in respect of the distribution.
num: 160
paragraphs: —(1) In this section, “surplus advance corporation tax”, in relation to an accounting period, means advance corporation tax which cannot be set against the company's liability to corporation tax for that period because of a want or deficiency of income charged to corporation tax for that period or because of any relief from or reduction in the amount of corporation tax charged on such income for that period.
(2) Advance corporation tax paid by a company (and not repaid) in respect of any distribution made by it in an accounting period shall be set, in so far as possible, against the company's liability to corporation tax on any income charged to corporation tax for that accounting period and shall accordingly discharge a corresponding amount of that liability.
(3) Where in the case of any accounting period of a company there is an amount of surplus advance corporation tax, the company may, within 2 years after the end of that period, claim to have the whole or any part of that amount treated for the purposes of this section (but not of any further application of this subsection) as if it were advance corporation tax paid in respect of distributions made by the company in any of its accounting periods ending in the period of 12 months immediately preceding that accounting period (but so that the amount which is the subject of the claim is set, in so far as possible, against the company's liability for a more recent accounting period before a more remote one), and in so far as may be required corporation tax shall be repaid accordingly.
(4) Where in the case of any accounting period of a company there is an amount of surplus advance corporation tax which has not been dealt with under subsection (3), that amount shall be treated for the purposes of this section (including any further application of this subsection) as if it were advance corporation tax paid in respect of distributions made by the company in the next accounting period.
(5) For the purposes of this section, the income of a company charged to corporation tax for any accounting period shall be taken to be the amount of its profits for that period on which corporation tax falls finally to be borne exclusive of the part of the profits attributable to chargeable gains, and that part shall be taken to be the amount brought into the company's profits for that period for the purposes of corporation tax in respect of chargeable gains before any deduction for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description.
(6) For the purposes of this section, a notice under section 884 may require the inclusion in the return to be delivered by a company under that section of particulars of any surplus advance corporation tax carried forward in relation to that company under subsection (4).
(7) This section shall apply subject to sections 161 to 172 .
num: 161
paragraphs: —Where an inspector discovers that any set-off of advance corporation tax under section 160 ought not to have been made, or is or has become excessive, the inspector may make any such assessments as may in his or her judgment be required for recovering any tax that ought to have been paid and generally for securing that the resulting liabilities to tax (including interest on unpaid tax) of the person concerned are what they would have been if only such set-offs had been made as ought to have been made.
num: 162
paragraphs: —(1) In this section, references to a distribution or distributions shall not include references to a distribution or distributions—
(a) made before the 9th day of February, 1983, or
(b) treated under this Chapter as not being a distribution or distributions for the purposes of this section.
(2) Where in any accounting period a company receives a distribution, the company shall not be liable to pay advance corporation tax in respect of distributions made by it in that period unless the aggregate amount of the tax credits in respect of the distributions made by the company in the period exceeds the aggregate amount of the tax credits in respect of distributions received by it in the period.
(3) Where in any accounting period there is an excess referred to in subsection (2), the amount of advance corporation tax payable by the company in respect of distributions made by it in that period shall be equal to the excess.
(4) Where the aggregate amount of the tax credits in respect of distributions received by a company in an accounting period exceeds the sum of—
(a) the aggregate amount of the tax credits (if any) in respect of distributions made by the company in that period, and
(b) the amount of any payment to the company under any provision of the Corporation Tax Acts of the tax credits in respect of distributions received by it in that period,
the excess shall be carried forward to the next accounting period and be treated for the purposes of this section (including any further application of this subsection) as a tax credit in respect of a distribution received by the company in that period.
(5) Where an inspector discovers that, because of the payment to a company of the tax credit in respect of a distribution received by it or for any other reason, the amount carried forward under subsection (4) to an accounting period (and treated as a tax credit in respect of a distribution received by the company in that period) is or has become excessive, the inspector may make any such assessments, adjustments or set-offs as may in his or her judgment be required for securing that the amount of advance corporation tax (including interest on unpaid tax) payable by the company in respect of distributions made by it in that period is the same as it would have been if only such an amount had been so carried forward as ought to have been carried forward.
num: 163
paragraphs: —Where under the Corporation Tax Acts a company obtains payment of a tax credit in respect of a distribution received by it and that tax credit or any part of that tax credit is subsequently recovered from the company by an assessment on it to income tax under Case IV of Schedule D, the amount of the tax credit so recovered shall be treated for the purposes of section 162 as if it were a tax credit in respect of a distribution received by the company in the accounting period in which the amount is so recovered.
num: 164
paragraphs: —(1) Where—
(a) by virtue of section 162 the amount of advance corporation tax payable by a company in respect of distributions made by it in an accounting period is less than the amount of advance corporation tax which would have been payable by the company in respect of those distributions if that section had not been enacted, and
(b) either—
(i) no amount is treated under section 162 (4) as a tax credit in respect of a distribution received by the company in the accounting period, or
(ii) the aggregate amount of the tax credits in respect of distributions made by the company in the accounting period is greater than the amount which is so treated under section 162 (4),
then, an amount of the tax credits in respect of distributions received by the company in the accounting period shall not be available for payment to the company under the Corporation Tax Acts, and the amount which is not so available shall be the aggregate amount of the tax credits in respect of distributions received by the company in the accounting period or, if it is less, an amount determined by the formula—
A − B
where—
A is the aggregate amount of the tax credits in respect of distributions made by the company in the accounting period, and
B is the amount (if any) so treated under section 162 (4).
(2) For the purposes of subsection (1), account shall not be taken of any distribution treated as not being a distribution for the purposes of section 159 or 162 under any provision of this Chapter.
num: 165
paragraphs: —(1) (a) In this section—
“trading or holding company” means a trading company or a company whose business consists wholly or mainly in the holding of shares or securities of trading companies which are its 90 per cent subsidiaries;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades.
(b) For the purposes of this section, a company shall be owned by a consortium if 75 per cent or more of the ordinary share capital of the company is beneficially owned between them by 5 or fewer companies of which none beneficially owns less than 5 per cent of that capital, and those companies are referred to in this section as “the members of the consortium”.
(c) In determining for the purposes of this section whether one company is a 51 per cent subsidiary of another company, that other company shall be treated as not being the owner of—
(i) any share capital which it owns directly or indirectly in a company not resident in the State, or
(ii) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt.
(d) References in this section to a dividend or dividends received by a company shall apply to any received by another person on behalf of or in trust for the company but not to any received by the company on behalf of or in trust for another person.
(e) References in this section to dividends shall be construed as including references to distributions on the redemption, repayment or purchase by a company of its own shares or on the acquisition of those shares by another company which is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of the company, and references to the receipt of dividends or to the payment of dividends shall be construed accordingly.
(2) (a) Where a company receives dividends from another company (both being companies resident in the State) and the company paying the dividends is—
(i) a 51 per cent subsidiary of the other company or of a company so resident of which the other company is a 51 per cent subsidiary, or
(ii) a trading or holding company owned by a consortium the members of which include the company receiving the dividends,
then, subject to paragraph (b) and subsections (3) to (6)—
(I) any such dividends shall be treated as not being distributions for the purposes of either section 159 or 162 , and
(II) the tax credits in respect of those dividends shall not be available for payment, under any provision of the Corporation Tax Acts, to the company by which the dividends are received.
(b) The company paying the dividends may elect by notice in writing to the inspector that this section shall not apply in relation to any amount of dividends specified in the notice.
(3) An election under subsection (2)(b) shall not be valid unless—
(a) the election is made before the due date for the payment, by the company paying the dividends, of advance corporation tax for the accounting period in which the dividends are paid, and
(b) the advance corporation tax in respect of those dividends has been paid.
(4) Subsection (2) shall not apply to any dividend received by a company on any investments if a profit on the sale of those investments would be treated as a trading receipt of the company.
(5) Where a company purports by virtue of subsection (2) to pay any dividend without paying advance corporation tax and advance corporation tax ought to have been paid, the inspector may make such assessments, adjustments or set-offs as may in his or her judgment be required for securing that the resulting liabilities to tax (including interest on unpaid tax) of the company paying and the company receiving the dividend are, in so far as possible, the same as they would have been if the advance corporation tax had been duly paid.
(6) Where tax assessed under subsection (5) on the company which paid the dividend is not paid by that company before the expiry of 3 months from the date on which that tax is payable, that tax shall, without prejudice to the right to recover it from that company, be recoverable from the company which received the dividend.
num: 166
paragraphs: —(1) Where a company (in this section referred to as “the surrendering company”) has paid an amount of advance corporation tax in respect of a dividend or dividends paid by it in an accounting period and the advance corporation tax has not been repaid, and if throughout the accounting period the surrendering company would be treated as a member of a group of companies for the purposes of group relief under Chapter 5 of Part 12 , the surrendering company may, on making a claim to the inspector, surrender the benefit of the whole or any part of that amount to any company (in this section referred to as “the recipient company”) which for the purposes of group relief would be treated as a member of the same group of companies throughout that accounting period or (in such proportions as the surrendering company may determine) to any 2 or more such companies.
(2) Subject to subsections (4) and (5), where the benefit of any amount of advance corporation tax (in this section referred to as “the surrendered amount”) is surrendered under this section to a recipient company, then—
(a) if the advance corporation tax mentioned in subsection (1) was paid in respect of one dividend only or of dividends all of which were paid on the same date, the recipient company shall be treated for the purposes of section 160 as having paid an amount of advance corporation tax equal to the surrendered amount in respect of a distribution made by it on the date on which the dividend or dividends were paid, and
(b) if the advance corporation tax mentioned in subsection (1) was paid in respect of dividends paid on different dates, the recipient company shall be treated for the purposes of section 160 as having paid an amount of advance corporation tax equal to the appropriate part of the surrendered amount in respect of a distribution made by it on each of those dates.
(3) For the purposes of subsection (2)(b), “the appropriate part of the surrendered amount”, in relation to any distribution treated as made on the same date as that on which a dividend was paid, means such part of that amount as bears to the whole of that amount the same proportion as the amount of the tax credit in respect of that dividend bears to the total amount of the tax credits in respect of the dividends mentioned in that subsection.
(4) No amount of advance corporation tax which a recipient company is treated as having paid by virtue of subsection (2) shall, under section 160 (3), be set against the recipient company's liability to corporation tax; but, in determining for the purposes of subsections (3) and (4) of section 160 what amount (if any) of surplus advance corporation tax there is in any accounting period of a recipient company, an amount so treated as having been paid shall be set against the recipient company's liability to corporation tax before any advance corporation tax paid in respect of any distribution made by the recipient company.
(5) No amount of advance corporation tax which a recipient company is treated as having paid by virtue of subsection (2) shall be set against the recipient company's liability to corporation tax for any accounting period in which, or in any part of which, the recipient company and the surrendering company would not be treated for the purposes of group relief under Chapter 5 of Part 12 as members of the same group of companies.
(6) Any claim under this section shall be made within 2 years after the end of the accounting period to which that claim relates and shall require the consent or consents of the recipient company or companies concerned (which shall be notified to the inspector in such form as the Revenue Commissioners may require).
(7) No amount of advance corporation tax which has been set off under section 160 (2) or dealt with under section 160 (3) shall be available for the purposes of a claim under this section, and no amount of advance corporation tax, the benefit of which has been surrendered under this section, shall be treated for the purposes of section 160 as advance corporation tax paid by the surrendering company.
(8) A payment made by a recipient company to a surrendering company in pursuance of an agreement between them as respects the surrender of the benefit of an amount of advance corporation tax, being a payment not exceeding that amount—
(a) shall not be taken into account in computing profits or losses of either company for corporation tax purposes, and
(b) shall not be regarded as a distribution or a charge on income for any of the purposes of the Corporation Tax Acts.
(9) References in this section to dividends shall be construed as including references to distributions on the redemption, repayment or purchase by a company of its own shares or on the acquisition of those shares by another company which is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of the company, and references to the payment of dividends shall be construed accordingly.
num: 167
paragraphs: —(1) In this section—
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades;
“investment company” means a company (other than a holding company) whose business consists wholly or mainly in the making of investments and the principal part of whose income is derived from the making of investments;
“holding company” means a company whose business consists wholly or mainly in the holding of shares or securities of companies which are its 90 per cent subsidiaries and which are trading companies.
(2) This section shall apply if—
(a) within any period of 3 years there is both a change in the ownership of a company and (either earlier or later in that period, or at the same time) a major change in the nature or conduct of a trade or business carried on by the company, or
(b) at any time after the scale of the activities in a trade or business carried on by a company has become small or negligible, and before any considerable revival of the trade or business, there is a change in ownership of the company.
(3) Sections 160 , 162 and 171 shall apply to an accounting period in which the change of ownership occurs as if the part ending with the change of ownership and the part after that change were 2 separate accounting periods, and for that purpose the income of the company charged to corporation tax for the accounting period (as determined in accordance with section 160 (5)) shall be apportioned between those parts.
(4) No advance corporation tax paid by the company in respect of distributions made in an accounting period beginning before the change of ownership shall be treated under section 160 (4) as paid by it in respect of distributions made in an accounting period ending after the change of ownership, and this subsection shall apply to an accounting period in which the change of ownership occurs as if the part ending with the change of ownership and the part after that change were 2 separate accounting periods.
(5) In subsection (2)(a), “major change in the nature or conduct of a trade or business” includes—
(a) a major change in the type of property dealt in, or services or facilities provided, in the trade or business,
(b) a major change in customers, outlets or markets of the trade or business,
(c) a change whereby the company ceases to be a trading company and becomes an investment company or vice versa, or
(d) where the company is an investment company, a major change in the nature of the investments held by the company,
and this section shall apply even if the change is the result of a gradual process which began outside the period of 3 years mentioned in subsection (2)(a).
(6) Subsection (4) shall apply to advance corporation tax which a company is treated as having paid by virtue of section 166 (2) as it applies to advance corporation tax paid by the company.
(7) Subsections (6) and (7) of section 401 shall apply for the purposes of this section as they apply for the purposes of that section and shall so apply as if—
num: 168
paragraphs: —(1) (a) This section shall apply to any distribution which—
(i) is a distribution by virtue only of section 130 (2)(d)(iv), or
(ii) is a dividend paid by a company (in this subsection referred to as “the first-mentioned company”) to another company—
(I) (A) of which the first-mentioned company is a 75 per cent subsidiary, or
(B) which is a member of a consortium which owns the first-mentioned company,
and
(II) which is a resident of the United States of America or of a territory with the government of which arrangements having the force of law by virtue of section 826 have been made.
(b) For the purposes of paragraph (a)—
a company shall be owned by a consortium if 75 per cent or more of the ordinary share capital of the company is beneficially owned between them by 5 or fewer companies of which none beneficially owns less than 5 per cent of that capital, and those companies are referred to as “members of the consortium”;
num: 169
paragraphs: —(1) In this section, “relevant company” means a company which—
(a) is an investment company within the meaning of Part XIII of the Companies Act, 1990 ,
(b) is a qualified company within the meaning of section 446 , and
(c) makes only one payment in respect of any share or security issued by it, being a payment made in the redemption, repayment or purchase of the share.
(2) Where a company proves that it is a relevant company and claims to have every payment made by it in the redemption, repayment or purchase of shares issued by it treated as not being or including a distribution for the purposes of section 159 , then—
(a) every such payment shall be so treated, and
(b) notwithstanding any provision of the Tax Acts, the person to whom each such payment is made shall not be entitled to a tax credit in respect of it.
(3) A claim under this section shall be made in writing to the inspector in a form prescribed by the Revenue Commissioners and shall be submitted together with the company's return of profits for the accounting period which is the first accounting period in which the company makes any payment to which subsection (2) relates.
num: 170
paragraphs: —(1) Subject to subsection (2), this section shall apply to any interest which is a distribution and is paid by a company in respect of a security of the company within subparagraph (ii), (iii)(I) or (v) of section 130 (2)(d), where—
(a) the security in respect of which the interest is paid was issued by the company to another company the ordinary trading activities of which include the lending of money, and
(b) either—
(i) the obligation to pay the interest was entered into before the 9th day of February, 1983, or
(ii) that obligation was entered into before the 9th day of June, 1983, pursuant to negotiations which were in progress on the 9th day of February, 1983;
but an obligation shall be treated for the purposes of paragraph (b) as having been entered into before a particular date only if before that date there was in existence a binding contract in writing under which that obligation arose and, where that contract was subject to the execution of a loan agreement, the loan agreement was duly executed before the 9th day of June, 1983.
(2) Where a period of repayment (in this subsection referred to as “the repayment period”) of either principal or interest provided for under an obligation referred to in subsection (1)(b) is extended on or after the 9th day of February, 1983 (whether or not the right to such an extension arose out of the terms of the contract creating that obligation), this section shall not apply to any interest which is paid in respect of the period by which the repayment period is extended.
(3) Interest to which this section applies shall not be treated as a distribution for the purposes of either section 159 or 162 .
(4) The tax credit in respect of any interest to which this section applies shall not be available under the Corporation Tax Acts for payment to the person by whom the interest is received.
num: 171
paragraphs: —(1) This section shall apply for the purpose of regulating the time and manner in which advance corporation tax shall be accounted for and paid.
(2) A company shall make for each of its accounting periods in accordance with this section a return to the inspector of the distributions made and distributions received by the company in that period and of the advance corporation tax (if any) payable by the company in respect of the distributions made by it.
(3) A return for any period for which a return is required to be made under this section shall be made within 9 months from the end of that period.
(4) A return under this section need not be made by a company for an accounting period in which it has not made a distribution.
(5) (a) The return made by a company for an accounting period shall show—
(i) the amount of the distributions made by the company in the period and the amount of the tax credits in respect of those distributions,
(ii) the amount (if any) of the distributions received by the company in the period and the amount of the tax credits in respect of those distributions,
(iii) the amount of any tax credit carried forward to the accounting period and treated under section 162 (4) as a tax credit in respect of a distribution received by the company in that period, and
(iv) the amount (if any) of advance corporation tax payable by the company in respect of the distributions made by it in the period.
(b) The return shall specify whether any amount of tax credits is included pursuant to paragraph (a)(i) in respect of distributions treated under this Chapter as not being distributions for the purposes of section 159 and, if so, the amount so included.
(c) The return shall specify whether any amount of tax credits is included pursuant to paragraph (a)(ii) in respect of distributions treated under this Chapter as not being distributions for the purposes of section 162 and, if so, the amount so included.
(d) Where any amount is included in the return pursuant to subparagraph (ii) or (iii) of paragraph (a), the inclusion shall be treated as a claim by the company to have it taken into account in determining the amount of advance corporation tax payable, and any such claim shall be supported by such evidence as the inspector may reasonably require.
(6) (a) Advance corporation tax in respect of any distribution required to be included in a return under this section shall be due within 6 months from the end of the accounting period for which the return is required to be made under subsection (3) and shall be paid to the Collector-General, and advance corporation tax so due shall be payable by the company without the making of any assessment; but advance corporation tax which has become so due may be assessed on the company (whether or not it has been paid when the assessment is made).
(b) Notwithstanding paragraph (a), where the last day of the period within which the advance corporation tax is due is a day after the 28th day of the month in which that period ends, the advance corporation tax shall be due not later than the 28th day of that month.
(7) Where it appears to the inspector that there is a distribution which ought to have been and has not been included in a return, or where the inspector is dissatisfied with any return, the inspector may make an assessment on the company to the best of his or her judgment, and any advance corporation tax due under an assessment made by virtue of this subsection shall be treated for the purposes of interest on unpaid tax as having been payable at the time when it would have been payable if a correct return had been made.
(8) Where a company makes a distribution on a date which does not fall within an accounting period of the company, an accounting period of the company shall be deemed to end on that date and the company shall make a return of that distribution within 6 months from that date, and the advance corporation tax for which the company is accountable in respect of that distribution shall be due at the time by which the return is to be made.
(9) Where any item has been incorrectly included in a return under this section as a distribution made or received by a company, the inspector may make any such assessments, adjustments or set-offs as may in his or her judgment be required for securing that the resulting liabilities to tax, including interest on unpaid tax, whether of the company or of any other person, are in so far as possible the same as they would have been if the item had not been so included.
(10) (a) Advance corporation tax assessed on a company under this section shall be due within one month after the issue of the notice of assessment (unless due earlier under subsection (6) or (8)), subject to any appeal against the assessment; but no such appeal shall affect the date when tax is due under subsection (6) or (8).
(b) On the determination of an appeal against an assessment under this section, any tax overpaid shall be repaid.
(11) (a) The provisions of the Corporation Tax Acts relating to—
(i) assessments to corporation tax,
(ii) appeals against such assessments (including the rehearing of appeals and the statement of a case for the opinion of the High Court), and
(iii) the collection and recovery of corporation tax,
shall, in so far as they are applicable, apply to the assessment, collection and recovery of advance corporation tax under this section.
(b) Any tax payable in accordance with this section without the making of an assessment shall carry interest at the rate of 1.25 per cent for each month or part of a month from the date when the tax becomes due and payable until payment.
(c) Subsections (2) to (4) of section 1080 shall apply in relation to interest payable under paragraph (b) as they apply in relation to interest payable under section 1080 .
(d) In its application to any tax charged by any assessment to advance corporation tax in accordance with this section, section 1080 shall apply as if subsection (1)(b) of that section were deleted.
(12) Sections 861 (2)(b), 884 (5), 1071 and 1072 shall, with any necessary modifications, apply in relation to a return under this section as they apply in relation to a return under section 884 .
(13) In this section, references to a distribution or distributions do not include references to a distribution or distributions made by a company not resident in the State.
num: 172
paragraphs: —The provisions of the Corporation Tax Acts as to the charge, calculation and payment of corporation tax (including provisions conferring any relief or exemption) shall not be construed as affecting the charge, calculation or payment of advance corporation tax.
num: 173
paragraphs: —(1) In this Chapter—
“chargeable period” means an accounting period of a company or a year of assessment;
“control” shall be construed in accordance with section 11 ;
“group” means a company which has one or more 51 per cent subsidiaries together with those subsidiaries;
“holding company” means a company whose business, disregarding any trade carried on by it, consists wholly or mainly of the holding of the shares or securities of one or more companies which are its 51 per cent subsidiaries;
“inspector”, in relation to any matter, means an inspector of taxes appointed under section 852 , and includes such other officer as the Revenue Commissioners shall appoint in that behalf;
“personal representative” has the same meaning as in section 799 ;
“quoted company” means a company whose shares, or any class of whose shares, are listed in the official list of a stock exchange or dealt in on an unlisted securities market;
“shares” includes stock;
“trade” does not include dealing in shares, securities, land, futures or traded options, and
“trading activities” shall be construed accordingly;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades;
“trading group” means a group the business of whose members taken together consists wholly or mainly of the carrying on of a trade or trades.
(2) References in this Chapter to the owner of shares shall be treated as references to the beneficial owner except where the shares are held on trusts other than bare trusts, or are comprised in the estate of a deceased person, and in such a case shall be treated as references to the trustees or, as the case may be, to the deceased's personal representatives.
(3) References in this Chapter to a payment made by a company include references to anything else that is, or but for section 175 or 176 would be, a distribution.
(4) References in this Chapter to a company being unquoted shall be treated as references to a company which is neither a quoted company nor a 51 per cent subsidiary of a quoted company.
num: 174
paragraphs: —(1) In this section—
“fixed-rate preference shares” means shares which—
(a) were issued wholly for new consideration,
(b) do not carry any right either to conversion into shares or securities of any other description or to the acquisition of any additional shares or securities,
(c) do not carry any right to dividends other than dividends which are of a fixed amount or at a fixed rate per cent of the nominal value of the shares, and
(d) carry rights in respect of dividends and capital which are comparable with those general for fixed-dividend shares quoted on a stock exchange in the State;
“new consideration” has the meaning assigned to it by section 135 .
(2) Where—
(a) a company purchases its own shares from a dealer, or
(b) a company, which is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of another company, purchases the other company's shares from a dealer,
num: 175
paragraphs: —(1) Notwithstanding Chapter 2 of this Part, references in the Tax Acts to distributions of a company shall be construed so as not to include references to a payment made on or after the 26th day of March, 1997, by a quoted company on the redemption, repayment or purchase of its own shares.
(2) References in subsection (1) to a quoted company shall include references to a company which is a member of a group of which a quoted company is a member.
num: 176
paragraphs: —(1) Notwithstanding Chapter 2 of this Part, references in the Tax Acts to distributions of a company, other than any such references in sections 440 and 441 , shall be construed so as not to include references to a payment made by a company on the redemption, repayment or purchase of its own shares if the company is an unquoted trading company or the unquoted holding company of a trading group and either—
(a) (i) the redemption, repayment or purchase—
(I) is made wholly or mainly for the purpose of benefiting a trade carried on by the company or by any of its 51 per cent subsidiaries, and
(II) does not form part of a scheme or arrangement the main purpose or one of the main purposes of which is to enable the owner of the shares to participate in the profits of the company or of any of its 51 per cent subsidiaries without receiving a dividend,
and
(ii) the conditions specified in sections 177 to 181 , in so far as applicable, are satisfied in relation to the owner of the shares, or
(b) the person to whom the payment is made—
(i) applies the whole or substantially the whole of the payment (apart from any sum applied in discharging that person's liability to capital gains tax, if any, in respect of the redemption, repayment or purchase) to discharging—
(I) within 4 months of the valuation date (within the meaning of section 21 of the Capital Acquisitions Tax Act, 1976 ) of a taxable inheritance of the company's shares taken by that person, a liability to inheritance tax in respect of that inheritance, or
(II) within one week of the day on which the payment is made, a debt incurred by that person for the purpose of discharging that liability to inheritance tax,
and
(ii) could not without undue hardship have otherwise discharged that liability to inheritance tax and, where appropriate, the debt so incurred.
(2) Where subsection (1) would apply to a payment made by a company which is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of another company on the acquisition of shares of the other company if for the purposes of the Tax Acts other than this subsection—
(a) the payment were to be treated as a payment by the other company on the purchase of its own shares, and
(b) the acquisition by the subsidiary of the shares were to be treated as a purchase by the other company of its own shares,
then, notwithstanding Chapter 2 of this Part, references in the Tax Acts to distributions of a company, other than references in sections 440 and 441 , shall be construed so as not to include references to the payment made by the subsidiary.
num: 177
paragraphs: —(1) In this section and in sections 178 to 181 —
“the purchase” means the redemption, repayment or purchase referred to in section 176 (1)(a);
“the vendor” means the owner of the shares immediately before the purchase is made.
(2) The vendor shall be resident and ordinarily resident in the State for the chargeable period in which the purchase is made and, if the shares are held through a nominee, the nominee shall also be so resident and ordinarily resident.
(3) The residence and ordinary residence of trustees shall be determined for the purposes of this section as they are determined under section 574 for the purposes of the Capital Gains Tax Acts.
(4) The residence and ordinary residence of personal representatives shall be taken for the purposes of this section to be the same as the residence and ordinary residence of the deceased immediately before his or her death.
(5) The references in this section to a person's ordinary residence shall be disregarded in the case of a company.
(6) The shares shall have been owned by the vendor throughout the period of 5 years ending on the date of the purchase.
(7) Where at any time during that period the shares were transferred to the vendor by a person who was then the vendor's spouse living with the vendor, then, unless that person is alive at the date of the purchase but is no longer the vendor's spouse living with the vendor, any period during which the shares were owned by that person shall be treated for the purposes of subsection (6) as a period of ownership by the vendor.
(8) Where the vendor became entitled to the shares under the will or on the intestacy of a previous owner or is the personal representative of a previous owner—
(a) any period during which the shares were owned by the previous owner or the previous owner's personal representatives shall be treated for the purposes of subsection (6) as a period of ownership by the vendor, and
(b) that subsection shall apply as if it referred to 3 years instead of 5 years.
(9) In determining whether the condition in subsection (6) is satisfied in a case where the vendor acquired shares of the same class at different times—
(a) shares acquired earlier shall be taken into account before shares acquired later, and
(b) any previous disposal by the vendor of shares of that class shall be assumed to be a disposal of shares acquired later rather than of shares acquired earlier.
(10) Where for the purposes of capital gains tax the time when a person acquired shares would be determined under section 584 , 585 , 586 , 587 or 600 , then, unless the person is to be treated under section 584 (4) as giving or becoming liable to give any consideration, other than the old holding, for the acquisition of those shares, it shall be determined in the same way for the purposes of this section.
num: 178
paragraphs: —(1) Where immediately after the purchase the vendor owns shares in the company, the vendor's interest as a shareholder shall, subject to section 181 , be substantially reduced.
(2) Where immediately after the purchase any associate of the vendor owns shares in the company, the combined interest as shareholders of the vendor and the vendor's associates shall, subject to section 181 , be substantially reduced.
(3) The question whether the combined interests as shareholders of the vendor and the vendor's associates are substantially reduced shall be determined in the same way as is (under subsections (4) to (7)) the question whether a vendor's interest as a shareholder is substantially reduced, except that the vendor shall be assumed to have the interests of the vendor's associates as well as the vendor's own interests.
(4) Subject to subsection (5), the vendor's interest as a shareholder shall be taken to be substantially reduced only if the total nominal value of the shares owned by the vendor immediately after the purchase, expressed as a percentage of the issued share capital of the company at that time, does not exceed 75 per cent of the corresponding percentage immediately before the purchase.
(5) The vendor's interest as a shareholder shall not be taken to be substantially reduced where—
(a) the vendor would, if the company distributed all its profits available for the distribution immediately after the purchase, be entitled to a share of those profits, and
(b) that share, expressed as a percentage of the total of those profits, exceeds 75 per cent of the corresponding percentage immediately before the purchase.
(6) In determining for the purposes of subsection (5) the division of profits among the persons entitled to them, a person entitled to periodic distributions calculated by reference to fixed rates or amounts shall be regarded as entitled to a distribution of the amount or maximum amount to which the person would be entitled for a year.
(7) In subsection (5), “profits available for distribution” has the same meaning as it has for the purposes of Part IV of the Companies (Amendment) Act, 1983 , except that for the purposes of that subsection the amount of the profits available for distribution (whether immediately before or immediately after the purchase) shall be treated as increased—
(a) in the case of every company, by £100, and
(b) in the case of a company from which any person is entitled to periodic distributions of the kind mentioned in subsection (6), by a further amount equal to that required to make the distribution to which that person is entitled in accordance with that subsection,
and, where the aggregate of the sums payable by the company on the purchase and on any contemporaneous redemption, repayment or purchase of other shares of the company exceeds the amount of the profits available for distribution immediately before the purchase, that amount shall be treated as further increased by an amount equal to the excess.
(8) References in this section to entitlement are, except in the case of trustees and personal representatives, references to beneficial entitlement.
num: 179
paragraphs: —(1) Subject to subsections (2) to (4), in this section, “group” means a company which has one or more 51 per cent subsidiaries but is not itself a 51 per cent subsidiary of any other company, together with those subsidiaries.
(2) Where the whole or a significant part of the business carried on by an unquoted company (in this section referred to as “the successor company”) was previously carried on by—
(a) the company making the purchase, or
(b) a company which apart from this subsection is a member of a group to which the company making the purchase belongs,
the successor company and any company of which it is a 51 per cent subsidiary shall be treated as being a member of the same group as the company making the purchase, whether or not apart from this subsection the company making the purchase is a member of a group.
(3) Subsection (2) shall not apply if the successor company first carried on the business referred to in that subsection more than 3 years before the time of the purchase.
(4) For the purposes of this section, a company which has ceased to be a 51 per cent subsidiary of another company before the time of the purchase shall be treated as continuing to be such a subsidiary if at that time there exist arrangements under which it could again become such a subsidiary.
(5) Subject to section 181 , where the company making the purchase is immediately before the purchase a member of a group and immediately after the purchase—
(a) the vendor owns shares in one or more other members of the group, whether or not the vendor then owns shares in the company making the purchase, or
(b) the vendor owns shares in the company making the purchase and immediately before the purchase the vendor owned shares in one or more members of the group,
the vendor's interest as a shareholder in the group shall be substantially reduced.
(6) Subject to section 181 , where the company making the purchase is immediately before the purchase a member of a group, and at that time an associate of the vendor owns shares in any member of the group, the combined interests as shareholders in the group of the vendor and the vendor's associates shall be substantially reduced.
(7) Subject to subsection (8), in subsections (9) to (11), “relevant company” means the company making the purchase and any other company—
(a) in which the vendor owns shares, and
(b) which is a member of the same group as the company making the purchase,
immediately before or immediately after the purchase.
(8) The question whether the combined interests as shareholders in the group of the vendor and the vendor's associates are substantially reduced shall be determined in the same way as is (under this section) the question whether a vendor's interest as a shareholder in a group is substantially reduced, except that the vendor shall be assumed to have the interests of the vendor's associates as well as the vendor's own interests, and references in subsections (9) to (11) to a relevant company shall be construed accordingly.
(9) The vendor's interest as a shareholder in the group shall be ascertained by—
(a) expressing the total nominal value of the shares owned by the vendor in each relevant company as a percentage of the issued share capital of the company,
(b) adding together the percentages so obtained, and
(c) dividing the result by the number of relevant companies (including any in which the vendor owns no shares).
(10) Subject to subsection (11), the vendor's interest as a shareholder in the group shall be taken to be substantially reduced only if it does not exceed 75 per cent of the corresponding interest immediately before the purchase.
(11) The vendor's interest as a shareholder in the group shall not be taken to be substantially reduced where—
(a) the vendor would, if every member of the group distributed all its profits available for distribution immediately after the purchase (including any profits received by it on a distribution by another member), be entitled to a share of the profits of one or more or them, and
(b) that share, or the aggregate of those shares, expressed as a percentage of the aggregate of the profits available for distribution of every member of the group which is—
(i) a relevant company, or
(ii) a 51 per cent subsidiary of a relevant company,
exceeds 75 per cent of the corresponding percentage immediately before the purchase.
(12) Subsections (6) and (7) of section 178 shall apply for the purposes of subsection (11) as they apply for the purposes of subsection (5) of that section.
num: 180
paragraphs: —(1) In this section, “group” has the same meaning as in section 179 .
(2) Subject to section 181 , the vendor shall not immediately after the purchase be connected with the company making the purchase or with any company which is a member of the same group as that company.
(3) Subject to section 181 , the purchase shall not be part of a scheme or arrangement which is designed or likely to result in the vendor or any associate of the vendor having interests in any company such that, if the vendor or any associate of the vendor had those interests immediately after the purchase, any of the conditions in sections 178 and 179 and subsection (2) could not be satisfied.
(4) A transaction occurring within one year after the purchase shall be deemed for the purposes of subsection (3) to be part of a scheme or arrangement of which the purchase is also part.
num: 181
paragraphs: —Where—
(a) any of the conditions in sections 178 to 180 which are applicable are not satisfied in relation to the vendor, but
(b) the vendor proposed or agreed to the purchase in order to produce the result that the condition in section 178 (2) or 179 (6), which could not otherwise be satisfied in respect of the redemption, repayment or purchase of shares owned by a person of whom the vendor is an associate, could be satisfied in that respect,
then, if that result is produced by virtue of the purchase, section 176 (1)(a) shall apply, as respects so much of the purchase as was necessary to produce that result, as if the conditions in sections 178 to 180 were satisfied in relation to the vendor.
num: 182
paragraphs: —(1) In this section, “appropriate inspector” and “prescribed form” have the same meanings respectively as in Part 41 .
(2) Where a company makes a payment which it treats as one to which subsection (1) or (2) of section 176 applies, the company shall make a return in a prescribed form to the appropriate inspector of—
(a) the payment,
(b) the circumstances by reason of which that subsection is regarded as applying to it, and
(c) such further particulars as may be required by the prescribed form.
(3) A company shall make a return under this section—
(a) within 9 months from the end of the accounting period in which it makes the payment, or
(b) if, at any time after the payment is made, the inspector by notice in writing requests such a form, within the time (which shall not be less than 30 days) limited by such notice.
(4) Section 1071 shall, with any necessary modifications, apply in relation to a return under this section as it applies in relation to a return under section 884 .
num: 183
paragraphs: —(1) Where a company treats a payment made by it as one to which subsection (1)(a) or (2) of section 176 applies, any person connected with the company who knows of any such scheme or arrangement affecting the payment as is mentioned in section 180 (3) shall, within 60 days after that person first knows of both the payment and the scheme or arrangement, give a notice to the inspector containing particulars of the scheme or arrangement.
(2) Where the inspector has reason to believe that a payment treated by the company making it as one to which subsection (1)(a) or (2) of section 176 applies may form part of a scheme or arrangement of the kind referred to in that section or in section 180 (3), the inspector may by notice require the company or any person connected with the company to furnish to the inspector within such time, not being less than 60 days, as may be specified in the notice—
(a) a declaration in writing stating whether or not, according to information which the company or that person has or can reasonably obtain, any such scheme or arrangement exists or has existed, and
(b) such other information as the inspector may reasonably require for the purposes of the provision in question and the company or that person has or can reasonably obtain.
(3) (a) The recipient of a payment treated by the company making it as a payment to which subsection (1)(a) or (2) of section 176 applies shall, if so required by the inspector, state whether the payment in question is received on behalf of any person other than such recipient and, if so, the name and address of that person.
(b) Any person on whose behalf a payment referred to in paragraph (a) is received shall, if so required by the inspector, state whether the payment in question is received on behalf of any person other than that person and, if so, the name and address of that other person.
num: 184
paragraphs: —(1) For the purposes of the Tax Acts and the Capital Gains Tax Acts—
(a) any shares which are—
(i) held by the company as treasury shares, and
(ii) not cancelled by the company,
shall be deemed to be cancelled immediately on their acquisition by the company,
(b) a deemed or actual cancellation of shares shall be treated as giving rise to neither a chargeable gain nor an allowable loss, and
(c) a reissue by the company of treasury shares shall be treated as an issue of new shares by it.
(2) For the purposes of this section, a reference to treasury shares shall be a reference to treasury shares within the meaning of section 209 of the Companies Act, 1990 .
num: 185
paragraphs: —(1) Any question whether a person is an associate of another person in relation to a company shall be determined for the purposes of sections 176 to 183 and section 186 in accordance with the following provisions:
(a) a husband and wife living together shall be associates of one another, a person under the age of 18 shall be an associate of his or her parents, and his or her parents shall be the person's associates;
(b) a person who has control of a company shall be an associate of the company and the company shall be the person's associate;
(c) where a person who has control of one company has control of another company, the second company shall be an associate of the first company;
(d) where shares in a company are held by trustees other than bare trustees, then, in relation to that company but subject to subsection (2), the trustees shall be associates of—
(i) any person who directly or indirectly provided property to the trustees or has made a reciprocal arrangement for another person to do so,
(ii) any person who is by virtue of paragraph (a) an associate of a person within subparagraph (i), and
(iii) any person who is or may become beneficially entitled to a material interest in the shares,
and any such person shall be an associate of the trustees;
(e) where shares in a company are comprised in the estate of a deceased person, then, in relation to that company, the deceased's personal representatives shall be associates of any person who is or may become beneficially entitled to a material interest in the shares, and any such person shall be an associate of the personal representatives;
(f) where one person is accustomed to act on the directions of another person in relation to the affairs of a company, then, in relation to that company, the 2 persons shall be associates of one another.
(2) Subsection (1)(d) shall not apply to shares held on trusts which—
(a) relate exclusively to an exempt approved scheme within the meaning of Chapter 1 of Part 30 , or
(b) are exclusively for the benefit of the employees, or the employees and directors, of the company referred to in subsection (1)(d) or of companies in a group to which that company belongs, or their dependants, and are not wholly or mainly for the benefit of directors or their relatives,
and for the purposes of this subsection “group” means a company which has one or more 51 per cent subsidiaries, together with those subsidiaries.
(3) For the purposes of paragraphs (d) and (e) of subsection (1), a person's interest shall be a material interest if its value exceeds 5 per cent of the value of all the property held on the trusts or, as the case may be, comprised in the estate concerned, excluding any property in which the person is not and cannot become beneficially entitled to an interest.
num: 186
paragraphs: —(1) Any question whether a person is connected with a company shall, notwithstanding section 10 , be determined for the purposes of sections 176 to 183 in accordance with the following provisions:
(a) a person shall, subject to subsection (2), be connected with a company if the person directly or indirectly possesses or is entitled to acquire more than 30 per cent of—
(i) the issued ordinary share capital of the company,
(ii) the loan capital and issued share capital of the company, or
(iii) the voting power in the company;
(b) a person shall be connected with a company if the person directly or indirectly possesses or is entitled to acquire such rights as would, in the event of the winding up of the company or in any other circumstances, entitle the person to receive more than 30 per cent of the assets of the company which would then be available for distribution to equity holders of the company, and for the purposes of this paragraph—
(i) the persons who are equity holders of the company, and
(ii) the percentage of the assets of the company to which a person would be entitled,
shall be determined in accordance with sections 413 and 415 , but construing references in section 415 to the first company as references to an equity holder and references to a winding up as including references to other circumstances in which assets of the company are available for distribution to its equity holders;
(c) a person shall be connected with a company if the person has control of the company.
(2) Where a person—
(a) acquired or became entitled to acquire loan capital of a company in the ordinary course of a business carried on by the person, being a business which includes the lending of money, and
(b) takes no part in the management or conduct of the company,
the person's interest in that loan capital shall be disregarded for the purposes of subsection (1)(a).
(3) References in this section to the loan capital of a company are references to any debt incurred by the company—
(a) for any money borrowed or capital assets acquired by the company,
(b) for any right to receive income created in favour of the company, or
(c) for consideration the value of which to the company was at the time when the debt was incurred substantially less than the amount of the debt, including any premium on the debt.
(4) For the purposes of this section—
(a) a person shall be treated as entitled to acquire anything which the person is entitled to acquire at a future date or will at a future date be entitled to acquire, and
(b) a person shall be assumed to have the rights or powers of the person's associates as well as the person's own rights or powers.
num: 187
paragraphs: —(1) In this section, “the specified amount” means, subject to subsection (2)—
(a) in a case where the individual would apart from this section be entitled to a deduction specified in section 461 (a), £8,000, and
(b) in any other case, £4,000.
(2) (a) For the purposes of this section and section 188 , where a claimant proves that he or she has living at any time during the year of assessment any qualifying child, then, subject to subsection (3), the specified amount (within the meaning of this section or section 188 , as the case may be) shall be increased for that year of assessment by—
(i) £450 in respect of the first such child,
(ii) £450 in respect of the second such child, and
(iii) £650 in respect of each such child in excess of 2.
(b) Any question as to whether a child is a qualifying child for the purposes of this section or section 188 shall be determined on the same basis as it would be for the purposes of section 462 , but without regard to subsections (1)(b), (2), (3) and (5) of that section.
(3) Where for any year of assessment 2 or more individuals are, or but for this subsection would be, entitled under subsection (2) to an increase in the specified amount (within the meaning of this section or section 188 , as the case may be) in respect of the same child, the following provisions shall apply:
(a) only one such increase under subsection (2) shall be allowed in respect of each child;
(b) where such child is maintained by one individual only, that individual only shall be entitled to claim the increase;
(c) where such child is maintained by more than one individual, each individual shall be entitled to claim such part of the increase as is proportionate to the amount expended on the child by that individual in relation to the total amount paid by all individuals towards the maintenance of the child;
(d) in ascertaining for the purposes of this subsection whether an individual maintains a child and, if so, to what extent, any payment made by the individual for or towards the maintenance of the child which that individual is entitled to deduct in computing his or her total income for the purposes of the Income Tax Acts shall be deemed not to be a payment for or towards the maintenance of the child.
(4) Where for any year of assessment—
(a) an individual makes a claim for the purpose, makes a return in the prescribed form of his or her total income for that year and proves that such total income does not exceed the specified amount, the individual shall be entitled to exemption from income tax, or
(b) an individual makes a claim for the purpose, makes a return in the prescribed form of his or her total income for that year and proves that such total income does not exceed a sum equal to twice the specified amount, the individual shall be entitled to have the amount of income tax payable in respect of his or her total income for that year, if that amount would but for this subsection exceed a sum equal to 40 per cent of the amount by which his or her total income exceeds the specified amount, reduced to that sum.
num: 188
paragraphs: —(1) In this section and in section 187 , “total income” has the same meaning as in section 3 , but includes income arising outside the State which is not chargeable to tax.
(2) In this section, “the specified amount” means, subject to section 187 (2)—
(a) in a case where the individual would apart from this section be entitled to a deduction specified in section 461 (a), £9,200; but, if at any time during the year of assessment either the individual or the spouse of the individual was of the age of 75 years or over, “the specified amount” means £10,400, and
(b) in any other case, £4,600; but, if at any time during the year of assessment the individual was of the age of 75 years or over, “the specified amount” means £5,200.
(3) This section shall apply for any year of assessment to an individual who makes a claim for the purpose, makes a return in the prescribed form of his or her total income for that year and proves that, at some time during the year of assessment, either the individual, or, in a case where the individual would apart from this section be entitled to a deduction specified in section 461 (a), the spouse of the individual, was of the age of 65 years or over.
(4) Where an individual to whom this section applies proves that his or her total income for a year of assessment for which this section applies does not exceed the specified amount, the individual shall be entitled to exemption from income tax for that year.
(5) Where an individual to whom this section applies proves that his or her total income for a year of assessment for which this section applies does not exceed a sum equal to twice the specified amount, the individual shall be entitled to have the amount of income tax payable in respect of his or her total income for that year, if that amount would but for this subsection exceed a sum equal to 40 per cent of the amount by which his or her total income exceeds the specified amount, reduced to that sum.
(6) (a) Subsections (1) and (2) of section 459 and section 460 shall apply in relation to exemption from tax or any reduction of tax under this section or under section 187 as they apply to any allowance, deduction, relief or reduction under the provisions specified in the Table to section 458 .
num: 189
paragraphs: —(1) This section shall apply to any payment made—
(a) to or in respect of an individual who is permanently and totally incapacitated by reason of mental or physical infirmity from maintaining himself or herself, and
(b) following the institution by or on behalf of the individual of a civil action for damages in respect of personal injury giving rise to that mental or physical infirmity.
num: 190
paragraphs: —(1) In this section, “the Trust” means the trust established by deed dated the 22nd day of November, 1989, between the Minister for Health and certain other persons, and referred to in that deed as “the Haemophilia H.I.V. Trust” or “the HHT”.
(2) This section shall apply to income consisting of payments made by the trustees of the Trust to or in respect of a beneficiary under the Trust.
(3) Notwithstanding any provision of the Income Tax Acts, income to which this section applies shall be disregarded for the purposes of those Acts.
num: 191
paragraphs: —(1) In this section—
“the Scheme” means the Scheme of Compensation for certain persons who have contracted Hepatitis C from the use of Human Immunoglobulin-Anti-D, whole blood or other blood products, which was approved by DÃ¡il Ãireann on the 13th day of December, 1995;
“the Tribunal” means the Tribunal established by the Minister for Health on the 15th day of December, 1995, to administer the Scheme pursuant to Clause 22 of the Scheme.
(2) This section shall apply to any payment in respect of compensation—
(a) by the Tribunal, or
(b) following the institution by or on behalf of an individual of a civil action for damages in respect of personal injury,
to a person in respect of a right of action in relation to which the person may make a claim to the Tribunal under Clause 4 of the Scheme.
(3) For the purposes of the Income Tax Acts and notwithstanding any provision of those Acts to the contrary—
(a) income consisting of payments to which this section applies shall be disregarded, and
(b) any payment by the Tribunal to which this section applies shall be treated in all respects as if it were a payment made following the institution, by or on behalf of the person to or in respect of whom the payment is made, of a civil action for damages in respect of personal injury.
num: 192
paragraphs: —(1) This section shall apply to any payment made by the Minister for Health and Children or by the foundation known as Hilfswerk für behinderte Kinder to or in respect of any individual handicapped by reason of infirmity which can be linked with the taking by the individual's mother during her pregnancy of preparations containing thalidomide.
(2) Income which—
(a) consists of a payment to which this section applies, or
num: 193
paragraphs: —(1) (a) In this section—
“relevant body” means a body corporate, unincorporated body, partnership, individual or other body;
“relevant scholarship” means a scholarship provision for which is made, either directly or indirectly, by a relevant body or a person connected with the relevant body and where payments are made, either directly or indirectly, in respect of such a scholarship to—
(i) an employee or, where the relevant body is a body corporate, a director of the relevant body, or
(ii) the spouse, family, dependants or servants of such employee or director;
“scholarship” includes an exhibition, bursary or other similar educational endowment.
(b) A person shall be regarded as connected with a relevant body for the purposes of this subsection if that person is—
(i) a trustee of a settlement, within the meaning of section 10 , made by the relevant body, or
(ii) a relevant body,
and that person would be regarded as connected with the relevant body for the purposes of that section.
(2) Income arising from a scholarship held by a person receiving full-time instruction at a university, college, school or other educational establishment shall be exempt from income tax, and no account shall be taken of any such income in computing the amount of income for the purposes of the Income Tax Acts.
(3) Nothing in subsection (2) shall be construed as conferring on any person other than the person holding the scholarship in question any exemption from a charge to income tax.
(4) Notwithstanding subsection (3), a payment of income arising from a relevant scholarship which is—
(a) provided from a trust fund or under a scheme, and
(b) held by a person receiving full-time instruction at a university, college, school or other educational establishment,
shall be exempt from income tax if, in the year of assessment in which the payment is made, not more than 25 per cent of the total amount of the payments made from that fund, or under that scheme, in respect of scholarships held as mentioned in paragraph (b) is attributable to relevant scholarships.
(5) If any question arises whether any income is income arising from a scholarship held by a person receiving full-time instruction at a university, college, school or other educational establishment, the Revenue Commissioners may consult the Minister for Education and Science.
num: 194
paragraphs: —Child benefit payable under Part IV of the Social Welfare (Consolidation) Act, 1993 , or any subsequent Act together with which that Act may be cited, shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.
num: 195
paragraphs: —(1) In this section, “work” means an original and creative work which is within one of the following categories—
(a) a book or other writing;
(b) a play;
(c) a musical composition;
(d) a painting or other like picture;
(e) a sculpture.
(2) (a) This section shall apply to an individual—
(i) who is—
(I) resident in the State and not resident elsewhere, or
(II) ordinarily resident and domiciled in the State and not resident elsewhere, and
(ii) (I) who is determined by the Revenue Commissioners, after consideration of any evidence in relation to the matter which the individual submits to them and after such consultation (if any) as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, to have written, composed or executed, as the case may be, either solely or jointly with another individual, a work or works generally recognised as having cultural or artistic merit, or
(II) who has written, composed or executed, as the case may be, either solely or jointly with another individual, a particular work which the Revenue Commissioners, after consideration of the work and of any evidence in relation to the matter which the individual submits to them and after such consultation (if any) as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, determine to be a work having cultural or artistic merit.
(b) The Revenue Commissioners shall not make a determination under this subsection unless—
(i) the individual concerned duly makes a claim to the Revenue Commissioners for the determination, being (where the determination is sought under paragraph (a)(ii)(II)) a claim made after the publication, production or sale, as the case may be, of the work in relation to which the determination is sought, and
(ii) the individual complies with any request to him or her under subsection (4).
num: 196
paragraphs: —(1) In this section, “a member of the Judiciary” means—
(a) a judge of the Supreme Court,
(b) a judge of the High Court,
(c) a judge of the Circuit Court, or
(d) a judge of the District Court.
(2) An allowance payable by means of an annual sum to a member of the Judiciary in accordance with section 5 of the Courts of Justice Act, 1953 , and which has been determined, in accordance with subsection (2)(c) of that section, by the Minister for Justice, Equality and Law Reform in consultation with the Minister for Finance to be in full settlement of the expenses which such a person is obliged to incur in the performance of his or her duties as a member of the Judiciary, and which are not otherwise reimbursed either directly or indirectly out of moneys provided by the Oireachtas, shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.
(3) Sections 114 and 115 shall not apply in relation to expenses in full settlement of which an allowance referred to in subsection (2) is payable, and no claim shall lie under those sections in respect of those expenses.
num: 197
paragraphs: —Any bonus or interest payable to an individual under an instalment savings scheme (within the meaning of section 53 of the Finance Act, 1970 ) shall be disregarded for the purposes of the Income Tax Acts if, or in so far as, the bonus or interest is payable in respect of an amount not exceeding the amount permitted under the scheme to be paid by the individual.
num: 198
paragraphs: —Notwithstanding any other provision of the Income Tax Acts but without prejudice to any charge under the Corporation Tax Acts on the profits of such person, a person not ordinarily resident in the State shall not be chargeable to income tax in respect of interest paid by a company in the course of carrying on relevant trading operations within the meaning of section 445 or 446 .
num: 199
paragraphs: —Income tax shall not be chargeable in respect of the interest on securities issued by the Minister for Finance for the purpose of being used in payment of income tax, and such interest shall not be reckoned in computing income for the purposes of the Income Tax Acts.
num: 200
paragraphs: —(1) In this section, “tax”, in relation to any country, means a tax which is chargeable and payable under the law of that country and which corresponds to income tax in the State.
(2) This section shall apply to any pension, benefit or allowance which—
(a) is given in respect of past services in an office or employment or is payable under the provisions of the law of the country in which it arises which correspond to the provisions of Chapter 12, 16 or 17 of Part II of, or Chapter 4 or 6 of Part III of, the Social Welfare (Consolidation) Act, 1993, or any subsequent Act together with which that Act may be cited, and
(b) if it were received by a person who, for the purposes of tax of the country in which it arises, is resident in that country and is not resident elsewhere, would not be regarded as income for those purposes.
(3) In section 18 (2), the reference in paragraph (f) of Case III to income arising from possessions outside the State shall be deemed not to include a reference to any pension, benefit or allowance to which this section applies.
num: 201
paragraphs: —(1) (a) In this section and in Schedule 3 —
“the basic exemption” means £6,000 together with £500 for each complete year of the service, up to the relevant date, of the holder in the office or employment in respect of which the payment is made;
“foreign service”, in relation to an office or employment, means service such that—
(i) tax was not chargeable in respect of the emoluments of the office or employment,
num: 202
paragraphs: —(1) (a) In this section—
“basic pay”, in relation to a participating employee of a qualifying company, means the employee's emoluments (other than non-pecuniary emoluments) from the company in respect of an employment held with the company;
“collective agreement” means an agreement entered into by a company with, or on behalf of, one or more than one body representative of employees of the company where each such body is either the holder of a negotiation licence under the Trade Union Act, 1941 , or is an excepted body within the meaning of section 6 of that Act as amended by the Trade Union Act, 1942 ;
“control”, in relation to a qualifying company, means the power of a person to secure—
(i) by means of the holding of shares or the possession of voting power in or in relation to the qualifying company or any other qualifying company, or
(ii) by virtue of any power conferred by the articles of association or any other document regulating the qualifying company or any other qualifying company,
that the affairs of the first-mentioned qualifying company are conducted in accordance with the wishes of such person and, in relation to a partnership, means the right to a share of more than 50 per cent of the assets, or of more than 50 per cent of the income, of the partnership;
“emoluments” has the same meaning as in section 472 ;
num: 203
paragraphs: —(1) In this section, “lump sum” and “weekly payment” have the same meanings respectively as in the Redundancy Payments Act, 1967 .
num: 204
paragraphs: —(1) This section shall apply to—
(a) all wound and disability pensions, and all increases in such pensions, granted under the Army Pensions Acts, 1923 to 1980, or those Acts and any subsequent Act together with which those Acts may be cited; but, where the amount of any pension to which this paragraph applies is not solely attributable to disability, the relief conferred by this section shall extend only to such part as is certified by the Minister for Defence to be attributable to disability;
(b) all gratuities in respect of wounds or disabilities similarly granted under any enactment referred to in paragraph (a);
(c) military gratuities and demobilisation pay granted to officers of the National Forces or the Defence Forces of Ireland on demobilisation;
(d) deferred pay within the meaning of any regulations under the Defence Act, 1954 , which is credited to the pay account of a member of the Defence Forces;
(e) gratuities granted in respect of service with the Defence Forces.
(2) Income to which this section applies shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.
num: 205
paragraphs: —(1) In this section—
“military service” means the performance of duty as a member of an organisation to which Part II of the Army Pensions Act, 1932 , applies, but includes military service within the meaning of that Part of that Act, military service within the meaning of the Military Service Pensions Act, 1924 , and service in the Forces within the meaning of the Military Service Pensions Act, 1934 ;
“relevant legislation” means the Army Pensions Acts, 1923 to 1980, the Military Service Pensions Acts, 1924 to 1964, the Connaught Rangers (Pensions) Acts, 1936 to 1964, any Act amending any of those Acts and any regulation (in so far as it affects a pension, allowance, benefit or gratuity under any of those Acts or any other Act amending any of those Acts) made under the Pensions (Increase) Act, 1964 , or under any of those Acts or any other Act amending any of those Acts;
“relevant military service” means military service during any part of a period referred to in section 5 (2) of the Army Pensions Act, 1932 , or, in the case of a qualified person within the meaning of the Connaught Rangers (Pensions) Act, 1936 , the circumstances referred to in paragraphs (a), (b) and (c) of section 2 of that Act;
“veteran of the War of Independence” means a person who was—
(a) a member of an organisation to which Part II of the Army Pensions Act, 1932 , applies, or a qualified person within the meaning of the Connaught Rangers (Pensions) Act, 1936 , and
(b) engaged in relevant military service.
(2) A pension, allowance, benefit or gratuity, in so far as it is related to the relevant military service of a veteran of the War of Independence, or to an event which happened during or in consequence of such relevant military service, which is paid under the relevant legislation to—
(a) such veteran, or
(b) the wife, widow, child or other dependant or partial dependant of such veteran,
shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.
num: 206
paragraphs: —The Minister for Finance shall be entitled to exemption from tax in respect of the income derived from investments made under section 7 of the Social Welfare (Consolidation) Act, 1993 .
num: 207
paragraphs: —(1) Exemption shall be granted—
num: 208
paragraphs: —(1) In this section, “charity” means any body of persons or trust established for charitable purposes only.
(2) Exemption shall be granted—
num: 209
paragraphs: —Where any body of persons having consultative status with the United Nations Organisation or the Council of Europe—
(a) has as its sole or main object the promotion of observance of the Universal Declaration of Human Rights or the implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or both the promotion of observance of that Declaration and the implementation of that Convention, and
(b) is precluded by its rules or constitution from the direct or indirect payment or transfer, otherwise than for valuable and sufficient consideration, to any of its members of any of its income or property by means of dividend, gift, division, bonus or otherwise however by means of profit,
there shall, on a claim in that behalf being made to the Revenue Commissioners, be allowed, in the case of the body, such exemption from income tax as is to be allowed under section 207 in the case of a body of persons established for charitable purposes only the whole income of which is applied to charitable purposes only.
num: 210
paragraphs: —(1) In this section, “the Trust” means “The Great Book of Ireland Trust” established by trust deed dated the 12th day of December, 1990, for the purposes of—
(a) making and carrying to completion and selling a unique manuscript volume (in this section referred to as “The Great Book of Ireland”), and
(b) using the proceeds of the sale of The Great Book of Ireland for the benefit of—
(i) a company incorporated on the 5th day of August, 1986, as Clashganna Mills Trust Limited, and
(ii) a company incorporated on the 1st day of March, 1991, as Poetry Ireland Limited.
(2) Notwithstanding any provision of the Income Tax Acts—
(a) income arising to the trustees of the Trust in respect of the sale by it of The Great Book of Ireland, and
(b) payments made to the companies referred to in subsection (1)(b) under the Trust by the trustees of the Trust,
shall be disregarded for the purposes of those Acts.
num: 211
paragraphs: —(1) An unregistered friendly society whose income does not exceed £160 shall be entitled to exemption from income tax, and a registered friendly society which is precluded by statute or by its rules from assuring to any person a sum exceeding £1,000 by means of gross sum, or £52 a year by means of annuity, shall be entitled to exemption from income tax under Schedules C, D and F.
(2) A registered friendly society shall not be entitled to exemption from tax under this section in relation to any year of assessment if the Revenue Commissioners determine, for the purposes of entitlement to exemption for that year, that the society does not satisfy the following conditions—
(a) that it was established solely for any or all of the purposes set out in section 8 (1) of the Friendly Societies Act, 1896 , and not for the purpose of securing a tax advantage, and
(b) that since its establishment it has engaged solely in activities directed to achieving the purposes for which it was so established and has not engaged in trading activities, other than by means of insurance in respect of members, with a view to the realisation of profits.
(3) In making a determination under this section in relation to a registered friendly society, the Revenue Commissioners shall consider any evidence in relation to the matter submitted to them by the society.
(4) In any case where a friendly society is aggrieved by a determination of the Revenue Commissioners under this section in relation to the society, the society shall be entitled to appeal to the Appeal Commissioners against the determination of the Revenue Commissioners and the Appeal Commissioners shall hear and determine the appeal as if it were an appeal against an assessment to income tax, and the provisions of the Income Tax Acts 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.
(5) Every claim under this section shall be verified by affidavit, and proof of the claim may be given by the treasurer, trustee or any duly authorised agent.
num: 212
paragraphs: —With effect from the date of its registration under the Industrial and Provident Societies Acts, 1893 to 1978, a credit union shall be entitled to exemption from income tax.
num: 213
paragraphs: —(1) In this section, “provident benefits” includes any payment expressly authorised by the registered rules of the trade union and made to a member during sickness or incapacity from personal injury or while out of work, or to an aged member by means of superannuation, or to a member who has met with an accident, or has lost his or her tools by fire or theft, and includes a payment in discharge or aid of funeral expenses on the death of a member, or the wife of a member, or as provision for the children of a deceased member.
num: 214
paragraphs: —(1) In this section, “local authority” has the meaning assigned to it by section 2 (2) of the Local Government Act, 1941 , and includes a body established under the Local Government Services (Corporate Bodies) Act, 1971 .
(2) This section shall apply to each of the following bodies—
(a) a local authority;
(b) a health board;
(c) a vocational education committee established under the Vocational Education Acts, 1930 to 1993;
(d) a committee of agriculture established under the Agriculture Acts, 1931 to 1980.
(3) Notwithstanding any provision of the Income Tax Acts, other than Chapter 4 of Part 8 , income arising to a body to which this section applies shall be exempt from income tax.
num: 215
paragraphs: —(1) In this section, “agricultural society” means any society or institution established for the purpose of promoting the interests of agriculture, horticulture, livestock breeding or forestry.
(2) Any profits or gains arising to an agricultural society from an exhibition or show held for the purposes of the society shall, if they are applied solely to the purposes of the society, be exempt from income tax.
num: 216
paragraphs: —Exemption from income tax shall be granted in respect of profits from a lottery to which a licence under Part IV of the Gaming and Lotteries Act, 1956 , applies.
num: 217
paragraphs: —Notwithstanding any provision of the Corporation Tax Acts, income—
(a) arising to NÃ­trigin Ãireann Teoranta in any accounting period ending in the period commencing on the 1st day of January, 1987, and ending on the 31st day of December, 1999, from the business of supplying gas purchased from Bord GÃ¡is Ãireann to Irish Fertilizer Industries Limited under a contract between NÃ­trigin Ãireann Teoranta and Irish Fertilizer Industries Limited, and
num: 218
paragraphs: —Notwithstanding any provision of the Corporation Tax Acts, income arising to the Housing Finance Agency plc—
num: 219
paragraphs: —Notwithstanding any provision of the Corporation Tax Acts, income arising in any accounting period ending after the 30th day of April, 1997, to the body designated by the Minister for Enterprise, Trade and Employment under section 3 of the Irish Takeover Panel Act, 1997 , shall be exempt from corporation tax.
num: 220
paragraphs: —Notwithstanding any provision of the Corporation Tax Acts, profits arising to any of the bodies corporate specified in the Table to this section shall be exempt from corporation tax.
TABLE
num: 1
paragraphs: Bord GÃ¡is Ãireann.
num: 2
paragraphs: A company authorised by virtue of a licence granted by the Minister of Finance under the National Lottery Act, 1986 .
num: 3
paragraphs: The Dublin Docklands Development Authority.
num: 4
paragraphs: An Bord Pinsean— The Pensions Board.
num: 5
paragraphs: The Irish Horseracing Authority.
num: 6
paragraphs: The company incorporated on the 1st day of December, 1994, as Irish Thoroughbred Marketing Limited.
num: 7
paragraphs: The company incorporated on the 1st day of December, 1994, as Tote Ireland Limited.
num: 221
paragraphs: —(1) In this section—
“the first agreement” means the agreement in writing dated the 4th day of July, 1991, between the Minister for Agriculture, Food and Forestry and the National Co-operative for the provision of financial support for farm relief services, together with every amendment of the agreement in accordance with Article 9.1 of that agreement;
“the second agreement” means the agreement in writing dated the 16th day of May, 1995, between the Minister for Agriculture, Food and Forestry and the National Co-operative for the provision of financial support for the development of agricultural services, together with every amendment of the agreement in accordance with Article 9.1 of that agreement;
“a member co-operative” means a society engaged in the provision of farm relief services which has been admitted to membership of the National Co-operative;
“the Minister” means the Minister for Agriculture and Food;
“the National Co-operative” means the society registered on the 13th day of August, 1980, as National Co-operative Farm Relief Services Limited;
“society” means a society registered under the Industrial and Provident Societies Acts, 1893 to 1978.
(2) Notwithstanding any provision of the Corporation Tax Acts—
(a) a grant made under Article 3.1 of the first agreement by the Minister to the National Co-operative,
(b) a transfer of moneys under Article 3.6 of the first agreement by the National Co-operative to a member co-operative,
(c) a payment made under Article 3.1(a) of the second agreement by the Minister to the National Co-operative, and
(d) a transmission of moneys under Article 3.4 in respect of payments under Article 3.1(a) of the second agreement by the National Co-operative to a member co-operative,
shall be disregarded for the purposes of those Acts.
num: 222
paragraphs: —(1) (a) In this section—
“approved investment plan” means an investment plan in respect of which the Minister has given a certificate in accordance with subsection (2) to the company concerned;
“investment plan” means a plan of a company resident in the State which is directed towards the creation or maintenance of employment in the State in trading operations carried on, or to be carried on, in the State and which has been submitted—
(i) before the commencement of its implementation, or
(ii) where the Minister is satisfied that there was reasonable cause for it to be submitted after the commencement of its implementation, within one year from that commencement,
to the Minister by the company for the purpose of enabling it to claim relief under this section;
“the Minister” means the Minister for Finance;
“relevant dividends” means dividends, received by a company resident in the State (being the company claiming relief under this section) from a foreign subsidiary of the company, which are—
(i) specified in a certificate given by the Minister under subsection (2), and
(ii) applied within a period—
(I) which begins one year before the first day on which the dividends so specified are received in the State, or at such earlier time as the Revenue Commissioners may by notice in writing allow, and
(II) which ends 2 years after the first day on which the dividends so specified are received in the State, or at such later time as the Revenue Commissioners may by notice in writing allow,
for the purposes of an approved investment plan;
“relief under this section”, in relation to a company for an accounting period, means the amount by which any corporation tax payable by the company is reduced by virtue of subsection (3).
(b) (i) The reference in the definition of “relevant dividends” to “a foreign subsidiary” means a 51 per cent subsidiary of a company where the company is resident in the State and the subsidiary is a resident of the United States of America or of a territory with the government of which arrangements having the force of law by virtue of section 826 have been made.
(ii) For the purposes of subparagraph (i)—
num: 223
paragraphs: —(1) This section shall apply to a grant made under section 10 (5)(a) of the ÃdarÃ¡s na Gaeltachta Act, 1979 , or section 21 (5)(a) (as amended by the Industrial Development (Amendment) Act, 1991 ) of the Industrial Development Act, 1986 , being an employment grant—
(a) in the case of section 10 (5)(a) of the ÃdarÃ¡s na Gaeltachta Act, 1979 , under the scheme known as “Deontais FhostaÃ­ochta Ã³ ÃdarÃ¡s na Gaeltachta do Thionscnaimh SheirbhÃ­se Idir-NÃ¡isiÃºnta” or the scheme known as “Deontais FhostaÃ­ochta Ã³ ÃdarÃ¡s na Gaeltachta do Thionscail Bheaga DhÃ©antÃºsaÃ­ochta”, or
(b) in the case of section 21 (5)(a) of the Industrial Development Act, 1986 (as so amended), under the scheme known as “Scheme Governing the Making of Employment Grants to Small Industrial Undertakings”.
(2) A grant to which this section applies shall be disregarded for the purposes of the Tax Acts.
num: 224
paragraphs: —(1) This section shall apply to a grant made under section 10 (5)(a) of the ÃdarÃ¡s na Gaeltachta Act, 1979 , or section 21 (5)(a) (as amended by the Industrial Development (Amendment) Act, 1991 ) of the Industrial Development Act, 1986 , being an employment grant—
(a) in the case of section 10 (5)(a) of the ÃdarÃ¡s na Gaeltachta Act, 1979 , under the scheme known as “Deontais FhostaÃ­ochta Ã³ ÃdarÃ¡s na Gaeltachta do GhnÃ³thais MhÃ³ra/MheÃ¡nmhÃ©ide ThionsclaÃ­ocha”, or
(b) in the case of section 21 (5)(a) of the Industrial Development Act, 1986 (as so amended), under the scheme known as “Scheme Governing the Making of Employment Grants to Medium/Large Industrial Undertakings”.
(2) A grant to which this section applies shall be disregarded for the purposes of the Tax Acts.
num: 225
paragraphs: —(1) This section shall apply to an employment grant made under—
(a) section 25 of the Industrial Development Act, 1986 , or
(b) section 12 of the Industrial Development Act, 1993 .
(2) A grant to which this section applies shall be disregarded for the purposes of the Tax Acts.
num: 226
paragraphs: —(1) This section shall apply to an employment grant or recruitment subsidy made to an employer in respect of a person employed by such employer under—
(a) the Back to Work Allowance Scheme, being a scheme established on the 1st day of October, 1993, and administered by the Minister for Social, Community and Family Affairs,
(b) any scheme which may be established by the Minister for Enterprise, Trade and Employment with the approval of the Minister for Finance for the purposes of promoting the employment of individuals who have been unemployed for 3 years or more and which is to be administered by An Foras Ã?iseanna Saothair,
num: 227
paragraphs: —(1) In this section, “non-commercial state-sponsored body” means a body specified in Schedule 4 .
num: 228
paragraphs: —Notwithstanding any provision of the Tax Acts, income arising to a body designated under section 4 (1) of the Securitisation (Proceeds of Certain Mortgages) Act, 1995 , shall be exempt from income tax and corporation tax.
num: 229
paragraphs: —(1) (a) In this section—
“relevant body” means—
(i) a harbour authority within the meaning of the Harbours Act, 1946 ,
(ii) a company established pursuant to section 7 of the Harbours Act, 1996 , and
(iii) any other company which controls a harbour and carries on a trade which consists wholly or partly of the provision in that harbour of such facilities and accommodation for vessels, goods and passengers as are ordinarily provided by harbour authorities specified in paragraph (i), and companies specified in paragraph (ii) which control harbours, situate within the State, in those harbours;
“relevant profits or gains” means so much of the profits or gains of a relevant body controlling a harbour situate within the State as arise from the provision in that harbour of such facilities and accommodation for vessels, goods and passengers as are ordinarily provided by—
(i) harbour authorities specified in paragraph (i), and
(ii) companies specified in paragraph (ii),
of the definition of “relevant body” which control harbours, situate within the State, in those harbours.
(b) For the purposes of this section, where an accounting period falls partly in a period, the part of the accounting period falling in the period shall be regarded as a separate accounting period.
num: 230
paragraphs: —(1) Notwithstanding any provision of the Corporation Tax Acts, profits arising to the National Treasury Management Agency in any accounting period shall be exempt from corporation tax.
(2) Notwithstanding any provision of the Tax Acts, any interest, annuity or other annual payment paid by the National Treasury Management Agency shall be paid without deduction of income tax.
num: 231
paragraphs: —The profits or gains arising—
(a) (i) to the owner of a stallion, which is ordinarily kept on land in the State, from the sale of services of mares within the State by the stallion, or
(ii) to the part-owner of such a stallion from the sale of such services or of rights to such services, or
(b) to the part-owner of a stallion, which is ordinarily kept on land outside the State, from the sale of services of mares by the stallion or of rights to such services, where the part-owner carries on in the State a trade which consists of or includes bloodstock breeding and it is shown to the satisfaction of the inspector, or on appeal to the satisfaction of the Appeal Commissioners, that the part-ownership of the stallion was acquired and is held primarily for the purposes of the service by the stallion of mares owned or partly-owned by the part-owner of the stallion in the course of that trade,
shall not be taken into account for any purpose of the Tax Acts.
num: 232
paragraphs: —(1) In this section—
“occupation”, in relation to any land, means having the use of that land;
“woodlands” means woodlands in the State.
(2) Except where otherwise provided by section 75 , the profits or gains arising from the occupation of woodlands managed on a commercial basis and with a view to the realisation of profits shall not be taken into account for any purpose of the Tax Acts.
num: 233
paragraphs: —(1) In this section—
“greyhound bitches” means female greyhounds registered in the Irish Greyhound Stud Book or in any other greyhound stud book recognised for the purposes of the Irish Greyhound Stud Book;
“stud greyhound” means a male greyhound registered as a sire for stud purposes in the Irish Greyhound Stud Book or in any other greyhound stud book recognised for the purposes of the Irish Greyhound Stud Book.
(2) The profits or gains arising—
(a) (i) to the owner of a stud greyhound, which is ordinarily kept in the State, from the sale of services of greyhound bitches within the State by the stud greyhound, or
(ii) to the part-owner of such a stud greyhound from the sale of such services or of rights to such services, or
(b) to the part-owner of a stud greyhound, which is ordinarily kept outside the State, from the sale of services of greyhound bitches by the stud greyhound or of rights to such services, where the part-owner carries on in the State a trade which consists of or includes greyhound breeding and it is shown to the satisfaction of the inspector, or on appeal to the satisfaction of the Appeal Commissioners, that the part-ownership of the stud greyhound was acquired and is held primarily for the purposes of the service by the stud greyhound of greyhound bitches owned or partly-owned by the part-owner of the stud greyhound in the course of that trade,
shall not be taken into account for any purpose of the Tax Acts.
num: 234
paragraphs: —(1) In this section—
“income from a qualifying patent” means any royalty or other sum paid in respect of the user of the invention to which the qualifying patent relates, including any sum paid for the grant of a licence to exercise rights under such patent, where that royalty or other sum is paid—
(a) for the purposes of activities which—
(i) would be regarded, otherwise than by virtue of paragraph (b) or (c) of section 445 (7) or section 446 , as the manufacture of goods for the purpose of relief under Part 14 , or
(ii) would be so regarded if they were carried on in the State by a company,
but, as respects a royalty or other sum paid on or after the 23rd day of April, 1996, where the royalty or other sum exceeds the royalty or other sum which would have been paid if the payer of the royalty or other sum and the beneficial recipient of the royalty or other sum were independent persons acting at arm's length, the excess shall not be income from a qualifying patent,
or
(b) by a person who—
(i) is not connected (within the meaning of section 10 as it applies for the purposes of capital gains tax) with the person who is the beneficial recipient of the royalty or other sum, and
(ii) has not entered into any arrangement in connection with the royalty or other sum the main purpose or one of the main purposes of which was to satisfy subparagraph (i);
“qualifying patent” means a patent in relation to which the research, planning, processing, experimenting, testing, devising, designing, developing or similar activity leading to the invention which is the subject of the patent was carried out in the State;
“resident of the State” means any person resident in the State for the purposes of income tax and not resident elsewhere;
a company shall be regarded as a resident of the State if it is managed and controlled in the State.
(2) (a) A resident of the State who makes a claim in that behalf and makes a return in the prescribed form of his or her total income from all sources, as estimated in accordance with the Income Tax Acts, shall be entitled to have any income from a qualifying patent arising to him or her disregarded for the purposes of the Income Tax Acts.
(b) In paragraph (a), the reference to a return of total income from all sources as estimated in accordance with the Income Tax Acts shall apply for corporation tax as if it were or included a reference to a return under section 884 .
(3) Notwithstanding subsection (2), an individual shall not be entitled to have any amount of income from a qualifying patent arising to him or her disregarded for any purpose of the Income Tax Acts unless the individual carried out, either solely or jointly with another person, the research, planning, processing, experimenting, testing, devising, designing, developing or other similar activity leading to the invention which is the subject of the qualifying patent.
(4) Where, under section 77 of the Patents Act, 1992 , or any corresponding provision of the law of any other country, an invention which is the subject of a qualifying patent is made, used, exercised or vended by or for the service of the State or the government of the country concerned, this section shall apply as if the making, user, exercise or vending of the invention had taken place in pursuance of a licence and any sums paid in respect of the licence were income from a qualifying patent.
(5) Where any income arising to a person is by virtue of this section to be disregarded, the person shall not be treated, by reason of such disregarding, as having ceased to possess the whole of a single source within the meaning of section 70 (1).
(6) For the purpose of determining the amount of income to be disregarded under this section for the purposes of the Income Tax Acts, the Revenue Commissioners may make such apportionments of receipts and expenses as may be necessary.
(7) The relief provided by this section may be given by repayment or otherwise.
num: 235
paragraphs: —(1) In this section, “approved body of persons” means—
(a) any body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sports, and
(b) (i) any body of persons that, as respects the year 1983-84 or any earlier year of assessment, was granted exemption from income tax under section 349 of the Income Tax Act, 1967 , before that section was substituted by section 9 of the Finance Act, 1984 , or
(ii) any company that, as respects any accounting period ending before the 6th day of April, 1984, was granted exemption from corporation tax under section 349 (before the substitution referred to in subparagraph (i)) of the Income Tax Act, 1967 , as applied for corporation tax by section 11 (6) of the Corporation Tax Act, 1976 ;
but does not include any such body of persons to which the Revenue Commissioners, after such consultation (if any) as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, give a notice in writing stating that they are satisfied that the body—
(I) was not established for the sole purpose specified in paragraph (a) or was established wholly or partly for the purpose of securing a tax advantage, or
(II) being established for the sole purpose specified in paragraph (a), no longer exists for such purpose or commences to exist wholly or partly for the purpose of securing a tax advantage.
(2) Exemption from income tax or, as the case may be, corporation tax shall be granted in respect of so much of the income of any approved body of persons as is shown to the satisfaction of the Revenue Commissioners to be income which has been or will be applied to the sole purpose specified in subsection (1)(a).
(3) Where a notice is given under subsection (1), the exemption from income tax or, as the case may be, corporation tax accorded to the body of persons to which it relates shall cease to have effect—
(a) if the notice is a notice to which paragraph (I) of that subsection applies—
(i) as respects income tax, for the year of assessment in which the body of persons was established or the year 1984-85, whichever is the later, and for each subsequent year of assessment, or
(ii) as respects corporation tax, for the first accounting period of the body of persons which commences on or after the 6th day of April, 1984, and for each subsequent accounting period;
(b) if the notice is a notice to which paragraph (II) of that subsection applies—
(i) as respects income tax, for the year of assessment in which in the opinion of the Revenue Commissioners the body of persons ceased to exist for the sole purpose specified in subsection (1)(a) or the year in which it commenced to exist wholly or partly for the purpose of securing a tax advantage, whichever is the earlier, but not being a year earlier than the year 1984-85, and for each subsequent year of assessment, or
(ii) as respects corporation tax, for the accounting period in which in the opinion of the Revenue Commissioners the body of persons ceased to exist for the sole purpose specified in subsection (1)(a) or the accounting period in which it commenced to exist wholly or partly for the purpose of securing a tax advantage, whichever is the earlier, but not being an accounting period which ends before the 6th day of April, 1984, and for each subsequent accounting period.
(4) Section 949 shall apply to a notice under subsection (1) as if the notice were a determination by the Revenue Commissioners of a claim to an exemption under the Income Tax Acts.
(5) Anything required or permitted to be done by the Revenue Commissioners or any power or function conferred or imposed on them by this section may be done, exercised or performed, as appropriate, by an officer of the Revenue Commissioners authorised by them in that behalf.
num: 236
paragraphs: —(1) In this section—
“art object” has the meaning assigned to it by subsection (2)(a);
“authorised person” means—
(a) an inspector or other officer of the Revenue Commissioners authorised by them in writing for the purposes of this section, or
(b) a person authorised by the Minister in writing for the purposes of this section;
“the Minister” means the Minister for Arts, Heritage, Gaeltacht and the Islands;
“relevant building” means an approved building within the meaning of section 482 ;
“relevant garden” means an approved garden within the meaning of section 482 .
(2) (a) In this section, “art object” means any work of art (including a picture, sculpture, print, book, manuscript, piece of jewellery, furniture or other similar object) or scientific collection which, on application to them in that behalf by a person who owns or occupies a relevant building or a relevant garden, as the case may be, is determined—
(i) by the Minister, after consideration of any evidence in relation to the matter which the individual submits to the Minister and after such consultation (if any) as may seem to the Minister to be necessary with such person or body of persons as in the opinion of the Minister may be of assistance to the Minister, to be an object which is intrinsically of significant national, scientific, historical or aesthetic interest, and
(ii) by the Revenue Commissioners, to be an object reasonable access to which is afforded, and in respect of which reasonable facilities for viewing are provided, to the public.
(b) Without prejudice to the generality of the requirement that reasonable access be afforded, and that reasonable facilities for viewing be provided, to the public, access to and facilities for the viewing of an art object shall not be regarded as being reasonable access afforded, or the provision of reasonable facilities for viewing, to the public unless—
(i) subject to such temporary removal as is necessary for the purposes of the repair, maintenance or restoration of the object as is reasonable, access to it is afforded and facilities for viewing it are provided for not less than 60 days (including not less than 40 days during the period commencing on the 1st day of May and ending on the 30th day of September) in any year and, on each such day, such access is afforded and such facilities for viewing are provided in a reasonable manner and at reasonable times for a period, or periods in the aggregate, of not less than 4 hours,
(ii) such access is afforded and such facilities are provided to the public on the same days and at the same times as access is afforded to the public to the relevant building or the relevant garden, as the case may be, in which the object is kept, and
(iii) the price, if any, paid by the public in return for such access is in the opinion of the Revenue Commissioners reasonable in amount and does not operate to preclude the public from seeking access to the object.
(c) Where the Revenue Commissioners make a determination under paragraph (a) in relation to an art object, and reasonable access to the object ceases to be afforded, or reasonable facilities for the viewing of the object cease to be provided, to the public, the Revenue Commissioners may, by notice in writing given to the owner or occupier of the relevant building or relevant garden, as the case may be, in which the object is kept, revoke the determination with effect from the date on which they consider that such access or such facilities for viewing so ceased, and—
(i) this subsection shall cease to apply to the object from that date, and
(ii) for the year of assessment in which this subsection ceases to apply to the object, subsection (3) shall cease to apply to any expense referred to in paragraph (a) of that subsection incurred or deemed to have been incurred by the body corporate concerned.
(3) Subject to this section, where—
(a) a body corporate incurs an expense solely in, or solely in connection with, or is deemed to incur an expense in connection with, the provision to an individual (being an individual who is employed by the body corporate in an employment to which Chapter 3 of Part 5 applies, or who is a director, within the meaning of that Chapter, of the body corporate) of a benefit or facility which consists of the loan of an art object of which the body corporate is the beneficial owner, and
(b) the object is kept in a relevant building or a relevant garden, as the case may be, owned or occupied by the individual,
then, section 436 (3) shall not apply to any such expense and section 118 (1) shall not apply to any such expense for any year of assessment for which a claim in that behalf is made by the individual to the Revenue Commissioners.
(4) (a) Where an individual makes an application under subsection (2) or a claim under subsection (3), an authorised person may at any reasonable time enter the relevant building or relevant garden concerned for the purpose of inspecting the art object to which the application or claim relates.
(b) Whenever an authorised person exercises any power conferred on him or her by this subsection, the authorised person shall on request produce his or her authorisation to any person concerned.
(c) Any person who obstructs or interferes with an authorised person in the course of exercising a power conferred on the authorised person by this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.
(5) An application under subsection (2) or a claim under subsection (3)—
(a) shall be made in such form as the Revenue Commissioners may from time to time prescribe, and
(b) in the case of a claim under subsection (3), shall be accompanied by such statements in writing as may be required by the prescribed form in relation to the expense in respect of which the claim is made, including statements by the body corporate which incurred the expense.
(6) Section 606 shall not apply to an object which is an art object.
num: 237
paragraphs: —(1) Where any annuity or any other annual payment apart from yearly interest of money (whether payable in or outside the State, either as a charge on any property of the person paying the same by virtue of any deed or will or otherwise, or as a reservation thereout, or as a personal debt or obligation by virtue of any contract, or whether payable half-yearly or at any shorter or more distant periods), is payable wholly out of profits or gains brought into charge to income tax—
(a) the whole of those profits or gains shall be assessed and charged with income tax on the person liable to the annuity or annual payment, without distinguishing the same,
(b) the person liable to make such payment, whether out of the profits or gains charged with tax or out of any annual payment liable to deduction, or from which a deduction has been made, shall be entitled on making such payment to deduct and retain out of such payment a sum representing the amount of the income tax on such payment at the standard rate of income tax for the year in which the amount payable becomes due,
(c) the person to whom such payment is made shall allow such deduction on the receipt of the residue of such payment, and
(d) the person making such deduction shall be acquitted and discharged of so much money as is represented by the deduction as if that sum had been actually paid.
(2) Where any royalty or other sum is paid in respect of the user of a patent wholly out of profits or gains brought into charge to income tax, the person paying the royalty or other sum shall be entitled on making the payment to deduct and retain out of the payment a sum representing the amount of income tax on the payment at the standard rate of income tax for the year in which the royalty or other sum payable becomes due.
num: 238
paragraphs: —(1) In this section, “the inspector” means such inspector as the Revenue Commissioners may direct.
num: 239
paragraphs: —(1) In this section, “relevant payment” means—
(a) any payment from which income tax is deductible and to which subsections (3) to (5) of section 238 apply, and
(b) any amount which under section 438 is deemed to be an annual payment.
(2) This section shall apply for the purpose of regulating the time and manner in which companies resident in the State—
(a) are to account for and pay income tax in respect of relevant payments, and
(b) are to be repaid income tax in respect of payments received by them.
(3) A company shall make for each of its accounting periods in accordance with this section a return to the inspector of the relevant payments made by it in that period and of the income tax for which the company is accountable in respect of those payments.
(4) A return for any period for which a return is required to be made under this section shall be made within 9 months from the end of that period.
(5) Income tax in respect of any payment required to be included in a return under this section shall be due at the time by which preliminary tax (if any) for the accounting period for which the return is required to be made under subsection (3) is due and payable, and income tax so due shall be payable by the company without the making of any assessment; but income tax which has become so due may be assessed on the company (whether or not it has been paid when the assessment is made).
(6) Where it appears to the inspector that there is a relevant payment which ought to have been but has not been included in a return, or where the inspector is dissatisfied with any return, the inspector may make an assessment on the company to the best of his or her judgment, and any income tax due under an assessment made by virtue of this subsection shall be treated for the purposes of interest on unpaid tax as having been payable at the time when it would have been payable if a correct return had been made.
(7) Where in any accounting period a company receives any payment on which it bears income tax by deduction, the company may claim to have the income tax on that payment set against any income tax which it is liable to pay under this section in respect of payments made by it in that period, and any such claim shall be included in the return made under subsection (3) for the accounting period in question, and (where necessary) income tax paid by the company under this section for that accounting period and before the claim is allowed shall be repaid accordingly.
(8) (a) Where a claim has been made under subsection (7), no proceedings for collecting tax which would be discharged if the claim were allowed shall be instituted pending the final determination of the claim, but this subsection shall not affect the date when the tax is due, and when the claim is finally determined any tax underpaid in consequence of this subsection shall be paid.
(b) Where proceedings are instituted for collecting tax assessed, or interest on tax assessed, under subsection (5) or (6), effect shall not be given to any claim under subsection (7) made after the institution of the proceedings so as to affect or delay the collection or recovery of the tax charged by the assessment or of interest on that tax.
(9) Income tax set against other tax under subsection (7) shall be treated as paid or repaid, as the case may be, and the same tax shall not be taken into account both under this subsection and under section 24 (2).
(10) (a) Where a company makes a relevant payment on a date which does not fall within an accounting period, the company shall make a return of that payment within 6 months from that date, and the income tax for which the company is accountable in respect of that payment shall be due at the time by which the return is to be made.
(b) Any assessment in respect of tax payable under this subsection shall be treated as relating to the year of assessment in which the payment is made.
(c) Subsection (11) shall not apply to an assessment under this subsection.
(11) (a) Subject to subsection (10)(b), income tax payable (after income tax borne by the company by deduction has been set, by virtue of any claim under subsection (7), against income tax which it is liable to pay under subsection (5)) in respect of relevant payments in an accounting period shall, for the purposes of the charge, assessment, collection and recovery from the company making the payments of that tax and of any interest or penalties on that tax, be treated and described as corporation tax payable by that company for that accounting period, notwithstanding that for all other purposes of the Tax Acts it is income tax.
(b) Tax paid by a company which is treated as corporation tax by virtue of this subsection shall be repaid to the company if it would have been so repaid under subsection (7) had it been treated as income tax paid by the company.
(c) Any tax assessable under one or more of the provisions of this section may be included in one assessment if the tax so included is all due on the same date.
(12) Nothing in this section shall be taken to prejudice any powers conferred by the Tax Acts for the recovery of tax by means of an assessment or otherwise.
(13) (a) The Revenue Commissioners may, by regulations made for the purposes mentioned in subsection (2), modify, supplement or replace any of the provisions of this section, and references in the Corporation Tax Acts and in any other enactment to this section shall be construed as including references to any such regulations and, without prejudice to the generality of the foregoing, such regulations may, in relation to tax charged by this section, modify any provision of the Tax Acts relating to returns, assessments, claims or appeals, or may apply any such provision with or without modification.
(b) Regulations under this subsection may—
(i) make different provision for different descriptions of companies and for different circumstances, and may authorise the Revenue Commissioners, where in their opinion there are special circumstances justifying it, to make special arrangements as respects income tax for which a company is liable to account or the repayment of income tax borne by a company;
(ii) include such transitional and other supplemental provisions as appear to the Revenue Commissioners to be expedient or necessary.
(c) Every regulation made under this subsection shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 240
paragraphs: —(1) Subsections (2) to (4) shall apply only in respect of a company to which section 239 (10) relates.
(2) The provisions of the Income Tax Acts relating to—
(a) persons who are to be chargeable to income tax,
(b) income tax assessments,
(c) appeals against such assessments (including the rehearing of appeals and the statement of a case for the opinion of the High Court), and
(d) the collection and recovery of income tax,
shall, in so far as they are applicable, apply to the charge, assessment, collection and recovery of income tax under section 239 .
(3) (a) Any tax payable in accordance with section 239 without the making of an assessment shall carry interest at the rate of 1.25 per cent for each month or part of a month from the date when the tax becomes due and payable until payment.
(b) Subsections (2) to (4) of section 1080 shall apply in relation to interest payable under this subsection as they apply in relation to interest payable under section 1080 .
(4) In its application to any tax charged by an assessment to income tax in accordance with section 239 , section 1080 shall apply as if subsection (1)(b) of that section were deleted.
(5) Section 1081 (1) shall not apply where by virtue of section 438 (4) there is any discharge or repayment of tax assessed under section 239 .
num: 241
paragraphs: —(1) This section shall apply in relation to an accounting period of a company not resident in the State if the company is—
(a) required by virtue of section 238 (3) to deliver an account to the Revenue Commissioners, and
(b) within the charge to corporation tax in respect of the accounting period.
(2) Where this section applies in relation to an accounting period of a company, then—
(a) the company shall make a return to the inspector of—
(i) payments made by the company in the accounting period and in respect of which income tax is required to be deducted by virtue of section 238 (2), and
(ii) the tax deducted out of those payments by virtue of section 238 (2),
and
(b) income tax in respect of which a return is to be made under paragraph (a) shall, for the purposes of the charge, assessment, collection and recovery from the company making the payments of that tax and of any interest or penalties on that tax, be treated as if it were corporation tax chargeable for the accounting period for which the return is required under paragraph (a).
num: 242
paragraphs: —(1) This section shall apply to any payment which is—
num: 243
paragraphs: —(1) Subject to this section and to any other express exceptions, “charges on income” means, for the purposes of corporation tax, payments of any description mentioned in subsection (4), not being dividends or other distributions of the company; but no payment deductible in computing profits or any description of profits for the purposes of corporation tax shall be treated as a charge on income.
(2) In computing the corporation tax chargeable for any accounting period of a company, any charges on income paid by the company in the accounting period, in so far as paid out of the company's profits brought into charge to corporation tax, shall be allowed as deductions against the total profits for the period reduced by any other relief from corporation tax other than group relief.
(3) (a) This subsection shall apply to expenditure incurred for the purposes of a trade or profession set up and commenced on or after the 22nd day of January, 1997.
(b) Where—
(i) a company pays any charges on income before the time it sets up and commences a trade, and
(ii) the payment is made wholly and exclusively for the purposes of that trade,
that payment, to the extent that it is not otherwise deducted from total profits of the company, shall be treated for the purposes of corporation tax as paid at that time.
(c) An allowance or deduction shall not be made under any provision of the Tax Acts, other than this subsection, in respect of any expenditure or payment treated under this section as incurred on the day on which a trade or profession is set up and commenced.
(4) Subject to subsections (5) to (8), the payments referred to in subsection (1) are—
(a) any yearly interest, annuity or other annual payment and any other payments mentioned in section 104 or 237 (2), and
(b) any other interest payable in the State on an advance from—
(i) a bank carrying on a bona fide banking business in the State, or
(ii) a person who in the opinion of the Revenue Commissioners is bona fide carrying on business as a member of a stock exchange in the State or bona fide carrying on the business of a discount house in the State,
and for the purposes of this section any interest payable by a company as is mentioned in paragraph (b) shall be treated as paid on such interest being debited to the company's account in the books of the person to whom it is payable.
(5) No payment mentioned in subsection (4)(a) made by a company to a person not resident in the State shall be treated as a charge on income unless it is a payment—
(a) from which, in accordance with—
(i) section 238, or
(ii) that section as applied by section 246 ,
except where the company has been authorised by the Revenue Commissioners to do otherwise, the company deducts income tax which it accounts for under sections 238 and 239 , or under sections 238 and 241 , as the case may be, or
num: 244
paragraphs: —(1) (a) In this section—
“dependent relative”, in relation to an individual, means any of the persons mentioned in paragraph (a) or (b) of section 466 (2) in respect of whom the individual is entitled to a deduction under that section;
“loan” means any loan or advance or any other arrangement whatever by virtue of which interest is paid or payable;
“qualifying interest”, in relation to an individual and a year of assessment, means the amount of interest paid by the individual in the year of assessment in respect of a qualifying loan;
“qualifying loan”, in relation to an individual, means a loan or loans which, without having been used for any other purpose, is or are used by the individual solely for the purpose of defraying money employed in the purchase, repair, development or improvement of a qualifying residence or in paying off another loan or loans used for such purpose;
“qualifying residence”, in relation to an individual, means a residential premises situated in the State, Northern Ireland or Great Britain, which is used as the sole or main residence of—
(i) the individual,
(ii) a former or separated spouse of the individual, or
(iii) a person who in relation to the individual is a dependent relative, and which is, where the residential premises is provided by the individual, provided rent-free and without any other consideration;
“relievable interest”, in relation to an individual and a year of assessment, means an amount equal to that part of the qualifying interest paid by the individual in the year of assessment which is determined by the formula—
(I × 80%) − M
where—
I is—
(i) in the case of an individual assessed to tax for the year of assessment in accordance with section 1017 , the amount of qualifying interest paid by that individual in the year of assessment or, if less, £5,000,
(ii) in the case of a widowed individual, the amount of qualifying interest paid by that individual in the year of assessment or, if less, £3,600,
(iii) in the case of any other individual, the amount of qualifying interest paid by that individual in the year of assessment or, if less, £2,500, and
M is—
(i) in the case of an individual assessed to tax for the year of assessment in accordance with section 1017 , £200 or, if less, the amount of qualifying interest paid by that individual in the year of assessment,
(ii) in the case of any other individual, £100 or, if less, the amount of qualifying interest paid by that individual in the year of assessment,
but, notwithstanding the preceding provisions of this definition and subject to paragraph (c), as respects the first 5 years of assessment for which there is an entitlement to relief under this section in respect of a qualifying loan, “relievable interest”, in relation to an individual and a year of assessment, shall mean an amount equal to that part of the qualifying interest paid by the individual in the year of assessment which is determined by the formula—
(I × 100%)
where I has the same meaning as in the preceding provisions of this definition;
“residential premises” means—
(i) a building or part of a building used, or suitable for use, as a dwelling, and
(ii) land which the occupier of a building or part of a building used as a dwelling has for the occupier's own occupation and enjoyment with that building or that part of a building as its garden or grounds of an ornamental nature;
“separated” means separated under an order of a court of competent jurisdiction or by deed of separation or in such circumstances that the separation is likely to be permanent.
(b) For the purposes of this section, in the case of an individual assessed to tax for a year of assessment in accordance with section 1017 , any payment of qualifying interest made by the individual's spouse, in respect of which the individual's spouse would have been entitled to relief under this section if that spouse were assessed to tax for the year of assessment in accordance with section 1016 (apart from subsection (2) of that section) shall be deemed to have been made by the individual.
num: 245
paragraphs: —(1) Where a person—
(a) disposes of such person's only or main residence and acquires another residence for use as such person's only or main residence,
(b) obtains a loan, the proceeds of which are used to defray in whole or in part the cost of the acquisition or the disposal or both, and
(c) pays interest on the loan (and on any subsequent loan the proceeds of which are used to repay in whole or in part the first-mentioned loan or any such subsequent loan or to pay interest on any such loan) in respect of the period of 12 months from the date of the making of the first-mentioned loan,
such person shall be entitled on proof of those facts to a reduction in tax under section 244 on the amount of that interest as if no other interest had been paid by such person in respect of the period of 12 months from the date of the making of the first-mentioned loan.
(2) Subsection (1) shall not apply to a loan the proceeds of which are applied for some other purpose before being applied for the purpose specified in that subsection.
num: 246
paragraphs: —(1) In this section—
“company” means any body corporate;
“relevant security” means a security issued by a company on or before the 31st day of December, 2005, on terms which oblige the company to redeem the security within a period of 15 years after the date on which the security was issued.
num: 247
paragraphs: —(1) (a) In this section and in sections 248 and 249 —
“control” shall be construed in accordance with section 432 ;
“material interest”, in relation to a company, means the beneficial ownership of, or the ability to control, directly or through the medium of a connected company or connected companies or by any other indirect means, more than 5 per cent of the ordinary share capital of the company.
(b) For the purposes of this section and sections 248 and 249 , a company shall be regarded as connected with another company if it would be so regarded for the purposes of the Tax Acts by virtue of section 10 and if it is a company referred to in subsection (2)(a).
(2) This section shall apply to a loan to a company (in this section and in section 249 (1) referred to as “the investing company”) to defray money applied—
(a) in acquiring any part of the ordinary share capital of—
num: 248
paragraphs: —(1) This section shall apply to a loan to an individual to defray money applied—
(a) in acquiring any part of the ordinary share capital of—
num: 249
paragraphs: —(1) (a) Where, at any time after the application of the proceeds of a loan to which section 247 or 248 applies, the investing company or the individual (in this section referred to as “the borrower”) has recovered any amount of capital from the company concerned or from a connected company without using that amount in repayment of the loan, the borrower shall be treated for the purposes of this section as if the borrower had at that time repaid that amount out of the loan and so that out of the interest otherwise eligible for relief and payable for any period after that time there shall be deducted an amount equal to interest on the amount of capital so recovered.
(b) Where part only of a loan referred to in paragraph (a) fulfils the conditions in section 247 or 248 so as to afford relief for interest on that part, the deduction to be made under this subsection shall be made wholly out of interest on that part.
(2) (a) The borrower shall be treated as having recovered an amount of capital from the company or from a connected company if—
(i) the borrower receives consideration of that amount or value for the sale of any part of the ordinary share capital of the company or of a connected company or any consideration of that amount or value by means of repayment of any part of that ordinary share capital,
(ii) the company or a connected company repays that amount of a loan or advance from the borrower, or
(iii) the borrower receives consideration of that amount or value for assigning any debt due to the borrower from the company or from a connected company.
(b) In the case of a sale or assignment otherwise than by means of a bargain made at arm's length, the sale or assignment shall be deemed to be for consideration of an amount equal to the market value of what is disposed of.
(3) Sections 247 (3) and 248 (2) and subsections (1) and (2) shall apply to a loan referred to in section 247 (2)(c) or 248 (1)(c) as if such loan and any loan it replaces were one loan, and as if—
(a) references in sections 247 (3) and 248 (2) and in subsection (1) to the application of the proceeds of the loan were references to the application of the proceeds of the original loan, and
(b) any restriction under subsection (1) which applied to any loan which has been replaced applied also to the loan which replaces that loan.
num: 250
paragraphs: —(1) In this section—
“90 per cent subsidiary” has the meaning assigned to it by section 9 ;
“full-time employee” and “full-time director”, in relation to a company, mean an employee or director, as the case may be, who is required to devote substantially the whole of his or her time to the service of the company;
“holding company” has the same meaning as in section 411 ;
“part-time employee” and “part-time director”, in relation to a company, mean an employee or director, as the case may be, who is not required to devote substantially the whole of his or her time to the service of the company;
“private company” has the meaning assigned to it by section 33 of the Companies Act, 1963 .
(2) Notwithstanding that an individual does not satisfy one or both of the conditions set out in paragraphs (a) and (b) of section 248 (2), the individual shall be entitled to relief under section 248 for any interest paid on any loan to him or her applied for a purpose specified in section 248 (1) if—
(a) the company part of whose ordinary share capital is acquired or, as the case may be, to which the money is loaned is—
(i) both a company referred to in paragraph (a)(i) of section 248 (1) and a company in relation to which the individual was a full-time employee, part-time employee, full-time director or part-time director during the period taken as a whole from the application of the proceeds of the loan until the interest was paid, or
(ii) both a company referred to in paragraph (a)(ii) of section 248 (1) and a private company in relation to which, or in relation to any company which would be regarded as connected with it for the purposes of section 248 , the individual was during that period a full-time director or a full-time employee,
and
(b) the company or any person connected with the company has not, during the period specified in paragraph (a)(i), made any loans or advanced any money to the individual or a person connected with the individual other than a loan made or money advanced in the ordinary course of a business which included the lending of money, being business carried on by the company or, as the case may be, by the person connected with the company.
(3) In relation to any payment or payments of interest on any loan or loans applied—
(a) in acquiring any part of the ordinary share capital of a company other than a private company,
(b) in lending money to such a company, or
(c) in paying off any other loan or loans applied for a purpose specified in paragraphs (a) and (b),
no relief shall be given for any year of assessment by virtue of this section other than to a full-time employee or full-time director of the company and no such relief shall be given to such employee or director on the excess of that payment, or the aggregate amount of those payments, for that year of assessment over £2,400.
(4) Where relief is given by virtue of this section to an individual and any loan made or money advanced to the individual or to a person connected with the individual is, in accordance with paragraph (c) of subsection (5) and by virtue of subparagraph (ii), (iii), (iv) or (v) of that paragraph, subsequently regarded as not having been made or advanced in the ordinary course of a business, any relief so given, which would not have been given if, at the time the relief was given, the loan or money advanced had been so regarded, shall be withdrawn and there shall be made all such assessments or additional assessments as are necessary to give effect to this subsection.
(5) For the purposes of this section—
(a) any question whether a person is connected with another person shall be determined in accordance with section 10 (as it applies for the purposes of the Tax Acts) and paragraph (b),
(b) a person shall be connected with any other person to whom such person has, otherwise than in the ordinary course of a business carried on by such person which includes the lending of money, made any loans or advanced any money, and with any person to whom that other person has so made any loan or advanced any money and so on,
(c) a loan shall not be regarded as having been made, or money shall not be regarded as having been advanced, in the ordinary course of a business if—
(i) the loan is made or the money is advanced on terms which are not reasonably comparable with the terms which would have been applied in respect of that loan or the advance of that money on the basis that the negotiations for the loan or the advance of the money had been at arm's length,
(ii) at the time the loan was made or the money was advanced the terms were such that subparagraph (i) did not apply, those terms are subsequently altered and the terms as so altered are such that if they had applied at the time the loan was made or the money was advanced subparagraph (i) would have applied,
(iii) any interest payable on the loan or on the money advanced is waived,
(iv) any interest payable on the loan or on the money advanced is not paid within 12 months from the date on which it became payable, or
(v) the loan or the money advanced or any part of the loan or money advanced is not repaid within 12 months of the date on which it becomes repayable,
(d) the cases in which any person is to be regarded as making a loan to any other person include a case where—
(i) that other person incurs a debt to that person, or
(ii) a debt due from that other person to a third party is assigned to that person;
but subparagraph (i) shall not apply to a debt incurred for the supply by that person of goods or services in the ordinary course of that person's trade or business unless the period for which credit is given exceeds 6 months or is longer than normally given by that person,
(e) a company other than a private company shall be deemed to be a company referred to in section 248 (1)(a)(i) if it is a holding company and is resident in the State, and
(f) an individual shall be deemed to be a full-time employee or full-time director of a company referred to in paragraph (e) if the individual is a full-time employee or full-time director of any company which is a 90 per cent subsidiary of that company.
num: 251
paragraphs: —Notwithstanding sections 248 and 250 , relief shall not be given under either section in respect of any payment of interest on any loan applied in acquiring shares (being shares forming part of the ordinary share capital of a company) issued—
(a) on or after the 20th day of April, 1990, if a claim for relief under Part 16 is made in respect of the amount subscribed for those shares, or
(b) on or after the 6th day of May, 1993, if a claim for relief under section 481 is made in respect of the amount subscribed for those shares.
num: 252
paragraphs: —(1) In this section—
“loan” means a loan applied for any of the purposes specified in the principal section;
“the principal section” means section 248 as extended by section 250 ;
“quoted company” means a company whose shares or any class of whose shares—
(a) are listed in the official list of the Irish Stock Exchange or any other stock exchange, or
(b) are quoted on an unlisted securities market of any stock exchange;
“the specified date”, in relation to a loan, means—
(a) (i) in a case where the loan was applied on or before the 5th day of April, 1989, the 6th day of April, 1992,
(ii) in a case where the loan was applied on or after the 6th day of April, 1989, but on or before the 5th day of April, 1990, the 6th day of April, 1993, and
(iii) in a case where the loan was applied on or after the 6th day of April, 1990, the 6th day of April, 1994,
or
(b) if later, the 6th day of April in the second year of assessment next after the year of assessment in which the company, part of whose ordinary share capital was acquired or, as the case may be, to which the money was loaned, becomes a quoted company.
(2) Subject to subsection (3), if the company, part of whose ordinary share capital was acquired or, as the case may be, to which the money was loaned, is, at the specified date in relation to the loan, a quoted company, entitlement to relief under the principal section in respect of interest paid on a loan shall be determined subject to the following provisions:
(a) as respects the year of assessment commencing with the specified date, relief shall not be given in respect of the excess of the amount, or of the aggregate amount, of the interest over 70 per cent of the amount, or of the aggregate amount, of the interest in respect of which apart from this paragraph relief would otherwise have been given under the principal section;
(b) as respects the next year of assessment, relief shall not be given in respect of the excess of the amount, or of the aggregate amount, of the interest over 40 per cent of the amount, or of the aggregate amount, of the interest in respect of which apart from this paragraph relief would otherwise have been given under the principal section;
(c) as respects any subsequent year of assessment, no relief shall be given under the principal section.
(3) Notwithstanding anything in subsection (2) or the principal section, the principal section shall not apply in relation to any payment of interest on a loan applied on or after the 29th day of January, 1992, if, at the time the loan is applied, the company, part of whose ordinary share capital was or is acquired or, as the case may be, to which the money was or is loaned, is a quoted company.
num: 253
paragraphs: —(1) This section shall apply to a loan to an individual to defray money applied—
(a) in purchasing a share in a partnership,
(b) in contributing money to a partnership by means of capital or a premium, or in advancing money to the partnership, where the money contributed or advanced is used wholly and exclusively for the purposes of the trade or profession carried on by the partnership, or
(c) in paying off another loan where relief could have been obtained under this section for interest on that other loan if it had not been paid off (on the assumption, if the loan was free of interest, that it carried interest).
(2) Relief shall be given in respect of any payment of interest by the individual on the loan if—
(a) throughout the period from the application of the proceeds of the loan until the interest was paid the individual has personally acted in the conduct of the trade or profession carried on by the partnership as a partner therein, and
(b) the individual shows that in that period he or she has not recovered any capital from the partnership, apart from any amount taken into account under subsection (3).
(3) (a) Where at any time after the application of the proceeds of the loan the individual has recovered any amount of capital from the partnership without using that amount in repayment of the loan, the individual shall be treated for the purposes of this section as if he or she had at that time repaid that amount out of the loan, and accordingly there shall be deducted out of the interest otherwise eligible for relief and payable for any period after that time an amount equal to interest on the amount of capital so recovered.
(b) Where part only of a loan fulfils the conditions in this section so as to afford relief for interest on that part, the deduction to be made under this subsection shall be made wholly out of interest on that part.
(4) (a) The individual shall be treated as having recovered an amount of capital from the partnership if—
(i) the individual receives a consideration of that amount or value for the sale of any part of his or her interest in the partnership,
(ii) the partnership returns any amount of capital to the individual or repays any amount advanced by the individual, or
(iii) the individual receives a consideration of that amount or value for assigning any debt due to the individual from the partnership.
(b) In the case of a sale or assignment otherwise than by means of a bargain made at arm's length, the sale or assignment shall be deemed to be for consideration of an amount equal to the market value of what is disposed of.
(5) Subsections (2) to (4) shall apply to a loan referred to in subsection (1)(c) as if such loan and any loan it replaces were one loan, and as if—
(a) references in subsections (2) to (4) to the application of the proceeds of the loan were references to the application of the proceeds of the original loan, and
(b) any restriction under subsection (3) which applied to any loan which has been replaced applied also as respects the loan which replaces that loan.
(6) Subsection (1) shall not apply to a loan unless it is made in connection with the application of the money and either on the occasion of its application or within what is in the circumstances a reasonable time from the application of the money, and that subsection shall not apply to a loan the proceeds of which are applied for some other purpose before being applied as described in that subsection.
(7) Interest eligible for relief under this section shall be deducted from or set off against the income of the individual for the year of assessment in which the interest is paid and tax shall be discharged or repaid accordingly, and such interest shall not be eligible for relief under any provision of the Income Tax Acts apart from this section.
num: 254
paragraphs: —Where a person borrows money to replace in whole or in part capital in any form formerly employed in any trade, profession or other business carried on by the person in respect of the profits or gains of which tax is charged under Schedule D, being capital which within the 5 years preceding the date of replacement was withdrawn from such use for use otherwise than in connection with a trade, profession or other business carried on by the person, interest on such borrowed money shall not be regarded as interest wholly and exclusively laid out or expended for the purposes of a trade, profession or other business.
num: 255
paragraphs: —(1) Any agreement made, whether orally or in writing, for the payment of interest “less tax”, or using words to that effect, shall be construed, in relation to interest payable without deduction of tax, as if the words “less tax” or the equivalent words were not included.
num: 256
paragraphs: —(1) In this Chapter—
“amount on account of appropriate tax” shall be construed in accordance with section 258 (4);
“appropriate tax”, in relation to a payment of relevant interest, means a sum representing income tax on the amount of that payment—
(a) in the case of a relevant deposit or relevant deposits held in a special savings account, at the rate of 15 per cent, and
(b) in the case of any other relevant deposit, at the standard rate in force at the time of payment;
“building society” means a building society within the meaning of the Building Societies Act, 1989 , or a society established in accordance with the law of any other Member State of the European Communities which corresponds to that Act;
“deposit” means a sum of money paid to a relevant deposit taker on terms under which it will be repaid with or without interest and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person to whom it is made;
“foreign currency” means a currency other than the currency of the State;
“interest” means any interest of money whether yearly or otherwise, including any amount, whether or not described as interest, paid in consideration of the making of a deposit, and, as respects a building society, includes any dividend or other distribution in respect of shares in the society; but any amount consisting of an excess of the amount received on the redemption of any holding of A.C.C. Bonus Bonds — First Series, issued by ACC Bank plc, over the amount paid for the holding shall not be treated as interest for the purposes of this Chapter;
“pension scheme” means an exempt approved scheme within the meaning of section 774 or a retirement annuity contract or a trust scheme to which section 784 or 785 applies;
“relevant deposit” means a deposit held by a relevant deposit taker, other than a deposit—
(a) which is made by, and the interest on which is beneficially owned by—
(i) a relevant deposit taker,
(ii) the National Treasury Management Agency,
(iii) the State acting through the National Treasury Management Agency,
(iv) the Central Bank of Ireland, or
(v) Icarom plc,
(b) which is a debt on a security issued by the relevant deposit taker and listed on a stock exchange,
(c) which, in the case of a relevant deposit taker resident in the State for the purposes of corporation tax, is held at a branch of the relevant deposit taker situated outside the State,
(d) which, in the case of a relevant deposit taker not resident in the State for the purposes of corporation tax, is held otherwise than at a branch of the relevant deposit taker situated in the State,
(e) which is a deposit denominated in a foreign currency made—
(i) by a person other than an individual before the 1st day of January, 1993, or
(ii) by an individual before the 1st day of June, 1991,
but, where on or after the 1st day of June, 1991, and before the 1st day of January, 1993, a deposit denominated in a foreign currency is made by an individual to a relevant deposit taker with whom the individual had a deposit denominated in the same foreign currency immediately before the 1st day of June, 1991, such a deposit shall not be regarded as a relevant deposit,
(f) (i) which is made on or after the 1st day of January, 1993, by, and the interest on which is beneficially owned by—
(I) a company which is or will be within the charge to corporation tax in respect of the interest, or
(II) a pension scheme,
and
(ii) in respect of which a declaration of the kind mentioned in section 265 has been made to the relevant deposit taker,
(g) in respect of which—
(i) no person resident in the State is beneficially entitled to any interest, and
(ii) a declaration of the kind mentioned in section 263 has been made to the relevant deposit taker, or
(h) (i) the interest on which is exempt—
num: 257
paragraphs: —(1) Where a relevant deposit taker makes a payment of relevant interest—
(a) the relevant deposit taker shall deduct out of the amount of the payment the appropriate tax in relation to the payment,
(b) the person to whom such payment is made shall allow such deduction on the receipt of the residue of the payment, and
(c) the relevant deposit taker shall be acquitted and discharged of so much money as is represented by the deduction as if that amount of money had actually been paid to the person.
(2) A relevant deposit taker shall treat every deposit made with it as a relevant deposit unless satisfied that such a deposit is not a relevant deposit; but, where a relevant deposit taker has satisfied itself that a deposit is not a relevant deposit, it shall be entitled to continue to so treat the deposit until such time as it is in possession of information which can reasonably be taken to indicate that the deposit is or may be a relevant deposit.
(3) Any payment of relevant interest which is within subsection (1) shall be treated as not being within section 246 .
num: 258
paragraphs: —(1) Notwithstanding any other provision of the Tax Acts, this section shall apply for the purpose of regulating the time and manner in which appropriate tax in relation to a payment of relevant interest shall be accounted for and paid.
(2) Subject to subsection (5), a relevant deposit taker shall make for each year of assessment, within 15 days from the end of the year of assessment, a return to the Collector-General of the relevant interest paid by it in that year and of the appropriate tax in relation to the payment of that interest.
(3) The appropriate tax in relation to a payment of relevant interest which is required to be included in a return shall be due at the time by which the return is to be made and shall be paid by the relevant deposit taker to the Collector-General, and the appropriate tax so due shall be payable by the relevant deposit taker without the making of an assessment; but appropriate tax which has become so due may be assessed on the relevant deposit taker (whether or not it has been paid when the assessment is made) if that tax or any part of it is not paid on or before the due date.
(4) (a) Notwithstanding subsection (3), a relevant deposit taker shall for each year of assessment pay to the Collector-General, within 15 days of the 5th day of October in that year of assessment, an amount on account of appropriate tax.
(b) An amount on account of appropriate tax payable under this subsection shall be not less than the amount of appropriate tax which would be due and payable by the relevant deposit taker for the year of assessment concerned under subsection (3) if the total amount of the relevant interest which had accrued in the period commencing on the 6th day of April and ending on the 5th day of October in that year of assessment on all relevant deposits held by the relevant deposit taker in that period (and no more) had been paid by it in that year of assessment.
(c) Any amount on account of appropriate tax so paid by the relevant deposit taker for any year of assessment shall be treated as far as may be as a payment on account of any appropriate tax due and payable by it for that year of assessment under subsection (3).
(d) For the purposes of paragraph (b), interest shall be treated as accruing from day to day if not otherwise so treated.
(e) Where the amount on account of appropriate tax paid by a relevant deposit taker for any year of assessment under this subsection exceeds the amount of appropriate tax due and payable by it for that year of assessment under subsection (3), the excess shall be carried forward and shall be set off against any amount due and payable under this subsection or subsection (3) by the relevant deposit taker for any subsequent year of assessment (any such set-off being effected as far as may be against an amount so due and payable at an earlier date rather than at a later date).
(5) (a) Any amount on account of appropriate tax payable by a relevant deposit taker under subsection (4) shall be so payable without the making of an assessment.
(b) The provisions of this Chapter relating to the collection and recovery of appropriate tax shall, with any necessary modifications, apply to the collection and recovery of any amount on account of appropriate tax.
(c) A return required to be made by a relevant deposit taker for any year of assessment shall contain a statement of the amount of interest in respect of which an amount on account of appropriate tax is due and payable by the relevant deposit taker for that year of assessment and of the amount on account of appropriate tax so due and payable, and a return shall be so required to be made by a relevant deposit taker for a year of assessment notwithstanding that no relevant interest was paid by it in the year of assessment.
(6) Where it appears to the inspector that there is any amount of appropriate tax in relation to a payment of relevant interest which ought to have been but has not been included in a return, or where the inspector is dissatisfied with any return, the inspector may make an assessment on the relevant deposit taker to the best of his or her judgment, and any amount of appropriate tax in relation to a payment of relevant interest due under an assessment made by virtue of this subsection shall be treated for the purposes of interest on unpaid tax as having been payable at the time when it would have been payable if a correct return had been made.
(7) Where any item has been incorrectly included in a return as a payment of relevant interest, the inspector may make such assessments, adjustments or set-offs as may in his or her judgment be required for securing that the resulting liabilities to tax, including interest on unpaid tax, whether of the relevant deposit taker or any other person, are in so far as possible the same as they would have been if the item had not been so included.
(8) (a) Any appropriate tax assessed on a relevant deposit taker under this Chapter shall be due within one month after the issue of the notice of assessment (unless that tax or any amount treated as an amount on account of that tax is due earlier under subsection (3) or (4)) subject to any appeal against the assessment, but no such appeal shall affect the date when any amount is due under subsection (3) or (4).
(b) On the determination of an appeal against an assessment under this Chapter, any appropriate tax overpaid shall be repaid.
(9) (a) The provisions of the Income Tax Acts relating to—
(i) assessments to income tax,
(ii) appeals against such assessments (including the rehearing of appeals and the statement of a case for the opinion of the High Court), and
(iii) the collection and recovery of income tax,
shall, in so far as they are applicable, apply to the assessment, collection and recovery of appropriate tax.
(b) Any amount of appropriate tax or amount on account of appropriate tax payable in accordance with this Chapter without the making of an assessment shall carry interest at the rate of 1.25 per cent for each month or part of a month from the date when the amount becomes due and payable until payment.
(c) Subsections (2) and (4) of section 1080 shall apply in relation to interest payable under paragraph (b) as they apply in relation to interest payable under section 1080 .
(d) In its application to any appropriate tax charged by any assessment made in accordance with this Chapter, section 1080 shall apply as if subsection (1)(b) of that section were deleted.
(10) Every return shall be in a form prescribed by the Revenue Commissioners and shall include a declaration to the effect that the return is correct and complete.
num: 259
paragraphs: —(1) For the purposes of this section—
(a) interest shall be treated, if not otherwise so treated, as accruing from day to day, and
(b) references to “general crediting date”, as respects a relevant deposit taker, shall be construed as references to a date on which the relevant deposit taker credits to all, or to the majority, of relevant deposits held by it on that date interest accrued due on those deposits (whether or not the interest is added to the balances on the relevant deposits on that date for the purpose of calculating interest due at some future date).
(2) Where for any year of assessment the amount of appropriate tax due and payable by a relevant deposit taker for that year under section 258 is less than the amount of appropriate tax which would have been so due and payable by the relevant deposit taker for that year if the total amount of the interest which had accrued, in the period of 12 months ending on—
(a) the general crediting date as respects that relevant deposit taker falling in that year of assessment,
(b) if there is more than one general crediting date as respects that relevant deposit taker falling in that year of assessment, the last such date, or
(c) if there is no general crediting date as respects that relevant deposit taker falling in that year of assessment, the 5th day of April in that year,
on all relevant deposits held by the relevant deposit taker in that period (and no more) had been paid by it in that period, this section shall apply to that relevant deposit taker for the year of assessment succeeding that year of assessment and for each subsequent year of assessment.
(3) Notwithstanding anything in section 258 , where this section applies to a relevant deposit taker for any year of assessment, section 258 (4) shall not apply to the relevant deposit taker for that year of assessment but subsection (4) shall apply to that relevant deposit taker for that year and, as respects that relevant deposit taker for that year, any reference in the Tax Acts (apart from this section) to section 258 (4) shall be construed as a reference to subsection (4).
(4) (a) Notwithstanding section 258 (3), a relevant deposit taker shall for each year of assessment pay to the Collector-General, within 15 days of the 5th day of October in that year of assessment, an amount on account of appropriate tax which shall be not less than the amount determined by the formula set out in the Table to this paragraph, and any amount on account of appropriate tax so paid by the relevant deposit taker for a year of assessment shall be treated as far as may be as a payment on account of any appropriate tax due and payable by it for that year of assessment under section 258 (3).
TABLE
A − (B − C)
where—
A is the amount of appropriate tax which would be due and payable by the relevant deposit taker for the year of assessment (in this Table referred to as “the relevant year”) in accordance with section 258 (3) if the total amount of the relevant interest which had accrued in the period of 12 months ending on the 5th day of October in the relevant year on all relevant deposits held by the relevant deposit taker in that period (and no more) had been paid by it in the relevant year,
B is the amount of appropriate tax which was due and payable by the relevant deposit taker for the year of assessment preceding the relevant year in accordance with section 258 (3), and
C is an amount equal to the lesser of the amount at B and the amount treated, in accordance with this subsection or section 258 (4), as paid by the relevant deposit taker on account of the appropriate tax due and payable by it for the year of assessment preceding the relevant year.
(b) Where the amount on account of appropriate tax paid by a relevant deposit taker for any year of assessment under this subsection exceeds the amount of appropriate tax due and payable by it for that year of assessment under section 258 (3), the excess shall be carried forward and shall be set off against any amount due and payable under this subsection or section 258 (3) by the relevant deposit taker for any subsequent year of assessment (any such set-off being effected as far as may be against an amount so due and payable at an earlier date rather than at a later date).
num: 260
paragraphs: —(1) In this section—
“specified deposit” means a relevant deposit made on or after the 28th day of March, 1996, in respect of which specified interest is payable other than such a deposit—
(a) which is held in a special savings account, or
(b) in respect of which—
(i) the interest payable is to any extent linked to or determined by changes in a stock exchange index or any other financial index,
(ii) arrangements were, or were being put, in place by the relevant deposit taker before the 28th day of March, 1996, to accept such a deposit, and
(iii) the deposit is made on or before the 7th day of June, 1996;
“specified interest” means interest in respect of a specified deposit, other than so much of the amount of that interest as—
(a) is payable annually or at more frequent intervals, or
(b) cannot be determined until the date of payment of such interest, notwithstanding that the terms under which the deposit was made are complied with fully.
(2) (a) Subject to this section, specified interest shall for the purposes of section 258 be deemed—
(i) to accrue from day to day, and
(ii) to be relevant interest paid by the relevant deposit taker in each year of assessment to the extent that—
(I) it is deemed to accrue in that year of assessment, and
(II) it is not paid in that year of assessment,
and the relevant deposit taker shall account for appropriate tax accordingly.
(b) The amount of specified interest deemed to be relevant interest paid by a relevant deposit taker in any year of assessment by virtue of this subsection shall not be less than such amount as would be deductible in respect of interest or any other amount payable on the specified deposit in computing the income of the relevant deposit taker for the year of assessment if the year of assessment were an accounting period of the relevant deposit taker.
(3) (a) Where apart from subsection (2) a relevant deposit taker makes a payment of relevant interest which is or includes specified interest, the relevant deposit taker shall—
(i) deduct out of the whole of the amount of that payment the appropriate tax in relation to that payment in accordance with section 257 , and
(ii) account for that appropriate tax under section 258 ,
and that appropriate tax shall be due and payable by the relevant deposit taker in accordance with section 258 .
(b) So much of the amount of appropriate tax paid by the relevant deposit taker by virtue of subsection (2) as is referable to specified interest included in a payment of relevant interest referred to in paragraph (a) shall be set off against any amount of appropriate tax due and payable by the relevant deposit taker for the year of assessment in which that payment of interest is made or against any amount, or amount on account of, appropriate tax due and payable by it for a year of assessment subsequent to that year (any such set-off being effected as far as may be against an amount so due and payable at an earlier date rather than at a later date).
(4) Subsection (2) shall not apply for any year of assessment where, for that year of assessment and all preceding years of assessment—
(a) in accordance with section 258 (4) or 259 (4), as may be appropriate, a relevant deposit taker makes a payment on account of appropriate tax in respect of specified interest as if, in relation to each specified deposit held by it, the references—
(i) in section 258 (4), to the period beginning on the 6th day of April, and ending on the 5th day of October in the year of assessment, and
(ii) in section 259 (4), where it occurs in the meaning assigned to “A”, to the period of 12 months ending on the 5th day of October in the relevant year,
were a reference to the period beginning on the date on which the specified deposit was made and ending on the 5th day of October in the year of assessment, and
(b) the full amount payable on account of appropriate tax by the relevant deposit taker in that year of assessment in accordance with section 258 (4) or 259 (4), including any amount payable in accordance with those sections as modified by paragraph (a), before the set-off of any amount on account of appropriate tax paid in an earlier year of assessment, does not exceed the appropriate tax payable by the relevant deposit taker for that year of assessment.
num: 261
paragraphs: —Notwithstanding anything in the Tax Acts—
(a) no part of any interest paid by a building society in respect of any shares in the society shall be treated for the purposes of the Corporation Tax Acts as a distribution of the society or as franked investment income of any company resident in the State;
(b) except where otherwise provided for in section 267 , no repayment of appropriate tax in respect of any relevant interest shall be made to any person receiving or entitled to the payment of the relevant interest who is not a company within the charge to corporation tax in respect of the payment;
num: 262
paragraphs: —A relevant deposit taker shall, when requested to do so by any person entitled to any relevant interest on a relevant deposit held by the relevant deposit taker, furnish to that person, as respects any payment of such relevant interest, a statement showing—
(a) the amount of that payment,
(b) the amount of appropriate tax deducted from that payment,
(c) the net amount of that payment, and
(d) the date of that payment.
num: 263
paragraphs: —(1) The declaration referred to in paragraph (g)(ii) of the definition of “relevant deposit” in section 256 (1) shall be a declaration in writing to a relevant deposit taker which—
(a) is made by a person (in this section referred to as “the declarer”) to whom any interest on the deposit in respect of which the declaration is made is payable by the relevant deposit taker and is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time when the declaration is made the person beneficially entitled to the interest in relation to the deposit is not, or, as the case may be, all of the persons so entitled are not, resident in the State,
(d) contains as respects the person or, as the case may be, each of the persons mentioned in paragraph (c)—
(i) the name of the person,
(ii) the address of the person's principal place of residence, and
(iii) the name of the country in which the person is resident at the time the declaration is made,
(e) contains an undertaking by the declarer that if the person or, as the case may be, any of the persons mentioned in paragraph (c) becomes resident in the State, the declarer will notify the relevant deposit taker accordingly, and
(f) contains such other information as the Revenue Commissioners may reasonably require for the purposes of this Chapter;
and a declaration made before the 27th day of May, 1986, in a form authorised by the Revenue Commissioners under paragraph (22) of Financial Resolution No. 12 passed by DÃ¡il Ãireann on the 30th day of January, 1986, shall be deemed for the purposes of this Chapter to be a declaration of the kind mentioned in this subsection.
(2) (a) A relevant deposit taker shall—
(i) keep and retain for the longer of the following periods—
(I) a period of 6 years, and
(II) a period which, in relation to the deposit in respect of which the declaration is made, ends not earlier than 3 years after the date on which the deposit is repaid or, as the case may be, becomes a relevant deposit, and
(ii) on being so required by notice given to it in writing by an inspector, make available to the inspector, within the time specified in the notice,
all declarations of the kind mentioned in subsection (1) which have been made in respect of deposits held by the relevant deposit taker.
(b) The inspector may examine or take extracts from or copies of any declarations made available to him or her under paragraph (a).
num: 264
paragraphs: —(1) The following are the conditions referred to in paragraph (a) of the definition of “special savings account” in section 256 (1):
(a) the account shall be designated by the relevant deposit taker as a special savings account;
(b) the account shall not be denominated in a foreign currency;
(c) the account shall not be connected with any other account held by the account holder or any other person; and for this purpose an account shall be connected with another account if—
(i) (I) either account was opened with reference to the other account, or with a view to enabling the other account to be opened on particular terms, or with a view to facilitating the opening of the other account on particular terms, and
(II) the terms on which either account was opened would have been significantly less favourable to the account holder if the other account had not been opened,
or
(ii) the terms on which either account is operated are altered or affected in any way whatever because of the existence of the other account;
(d) no withdrawal of money shall be made from the account within the period of 3 months commencing on the date on which it is opened;
(e) the terms under which the account is opened shall require the individual to give a minimum notice of 30 days to the relevant deposit taker in relation to the withdrawal of any money from the account;
(f) all moneys held in the account shall be subject to the same terms;
(g) there shall not be any agreement, arrangement or understanding in existence, whether express or implied, which influences or determines, or could influence or determine, the rate (other than an unspecified and variable rate) of interest which is paid or payable, in respect of the relevant deposit or relevant deposits held in the account, in or in respect of any period which is more than 24 months;
(h) interest paid or payable in respect of the relevant deposit or relevant deposits held in the account shall not directly or indirectly be linked to or determined by any change in the price or value of any shares, stocks, debentures or securities listed on a stock exchange or dealt in on an unlisted securities market;
(i) the relevant deposit or the aggregate of the relevant deposits held in the account, including any relevant interest added to that deposit or those deposits, shall not at any time exceed £50,000;
(j) the account shall not be opened by or held in the name of an individual who is not of full age;
(k) the account shall be opened by and held in the name of the individual beneficially entitled to the relevant interest payable in respect of the relevant deposit or relevant deposits held in the account;
(l) except in the case of an account opened and held jointly only by a couple married to each other, the account shall not be a joint account;
(m) except in the case of an account opened and held jointly only by a couple married to each other, either the same or any other relevant deposit taker shall not simultaneously hold another special savings account opened and held by an individual;
(n) in the case of an account opened and held jointly only by a couple married to each other, they shall not simultaneously hold (either with the same or any other relevant deposit taker) any other special savings account either individually or jointly other than one other such account opened and held jointly by them.
(2) The declaration referred to in paragraph (b) of the definition of “special savings account” in section 256 (1) shall be a declaration in writing to a relevant deposit taker which—
(a) is made by the individual (in this section referred to as “the declarer”) to whom any interest payable in respect of the relevant deposit or relevant deposits held in the account in respect of which the declaration is made is payable by the relevant deposit taker, and is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time when the declaration is made the conditions referred to in paragraphs (j) to (n) of subsection (1) are satisfied in relation to the account in respect of which the declaration is made,
(d) contains the full name and address of the individual beneficially entitled to the interest payable in respect of the relevant deposit or relevant deposits held in the account in respect of which the declaration is made,
(e) contains an undertaking by the declarer that, if the conditions referred to in paragraphs (j) to (n) of subsection (1) cease to be satisfied in respect of the account in respect of which the declaration is made, the declarer will notify the relevant deposit taker accordingly, and
(f) contains such other information as the Revenue Commissioners may reasonably require for the purposes of this Chapter.
(3) Subsection (2) of section 263 shall apply as respects declarations of the kind mentioned in this section as it applies as respects declarations of the kind mentioned in that section.
(4) Section 261 shall apply in relation to any relevant interest paid in respect of any relevant deposit held in a special savings account as if the following paragraph were substituted for paragraph (c) of that section:
“(c) the amount of any payment of relevant interest (being relevant interest paid in respect of any relevant deposit held in a special savings account) shall not, except for the purposes of a claim to repayment under section 267 (3) in respect of the appropriate tax deducted from such relevant interest, be reckoned in computing total income for the purposes of the Income Tax Acts,”.
(5) An account shall cease to be a special savings account if any of the conditions mentioned in subsection (1) cease to be satisfied, and subsection (4) shall not apply to any relevant interest in respect of any relevant deposit held in the account which is paid on or after the date on which the account ceases to be a special savings account.
num: 265
paragraphs: —(1) In this section—
“appropriate person” means—
(a) in relation to a company, the person or persons appointed as auditor of the company under section 160 of the Companies Act, 1963 , or under the law of the state in which the company is incorporated and which corresponds to that section, and
(b) in relation to a pension scheme—
(i) in the case of an exempt approved scheme (within the meaning of section 774 ), the administrator (within the meaning of section 770 ) of the scheme,
(ii) in the case of a retirement annuity contract to which section 784 or 785 applies, the person lawfully carrying on in the State the business of granting annuities on human life with whom the contract is made, and
(iii) in the case of a trust scheme to which section 784 or 785 applies, the trustees of the trust scheme;
“tax reference number”, in relation to a person, has the meaning assigned to it by section 885 in relation to a specified person within the meaning of that section.
(2) The declaration referred to in paragraph (f) of the definition of “relevant deposit” in section 256 (1) shall be a declaration in writing to the relevant deposit taker which—
(a) is made by a person (in this section referred to as “the declarer”) to whom any interest on the deposit in respect of which the declaration is made is payable by the relevant deposit taker, and is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time the declaration is made the interest on the deposit in respect of which the declaration is made—
(i) (I) is beneficially owned by a company within the charge to corporation tax, and
(II) will be included in the profits of the company on which it is to be charged to corporation tax,
or
(ii) is beneficially owned by a pension scheme,
(d) contains as respects the person beneficially entitled to the interest—
(i) that person's name and address, and
(ii) that person's tax reference number,
(e) contains a certificate by the appropriate person that, to the best of that person's knowledge and belief, the declaration made in accordance with paragraph (c) and the information furnished in accordance with paragraph (d) are true and correct, and
(f) contains such information as the Revenue Commissioners may reasonably require for the purposes of this Chapter.
(3) Subsection (2) of section 263 shall apply as respects declarations of the kind mentioned in this section as it applies as respects declarations of the kind mentioned in that section.
(4) Where a return is required to be made by a relevant deposit taker under section 891 in respect of interest on a deposit in respect of which a declaration has been made in accordance with this section, that return shall include the tax reference number contained in that declaration of the person beneficially entitled to the interest.
num: 266
paragraphs: —(1) The declaration referred to in paragraph (h)(ii) of the definition of “relevant deposit” in section 256 (1) shall be a declaration in writing to a relevant deposit taker which—
(a) is made by a person (in this section referred to as “the declarer”) to whom any interest on the deposit in respect of which the declaration is made is payable by the relevant deposit taker, and is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time when the declaration is made the interest on the deposit in respect of which the declaration is made—
(i) (I) forms part of the income of a body of persons or trust treated by the Revenue Commissioners as a body or trust established for charitable purposes only, or
(II) is, according to the rules or regulations established by statute, charter, decree, deed of trust or will, applicable to charitable purposes only and is so treated by the Revenue Commissioners, and
(ii) will be applied to charitable purposes only,
(d) contains the name and address of the person, or, as the case may be, of each of the persons entitled, in respect of the interest in relation to the deposit, to exemption—
num: 267
paragraphs: —(1) In this section, “relevant person” means an individual who proves to the satisfaction of the inspector or, on appeal, to the Appeal Commissioners that—
(a) at some time during the relevant year the individual or his or her spouse was of the age of 65 years or over, or
(b) throughout the relevant year the individual or his or her spouse was, or as on and from some time during the relevant year the individual or his or her spouse became, permanently incapacitated by reason of mental or physical infirmity from maintaining himself or herself.
(2) Notwithstanding section 261 (b), repayment of appropriate tax in respect of any relevant interest shall be made to a person entitled to exemption in respect of that interest—
num: 268
paragraphs: —(1) In this Part, “industrial building or structure” means a building or structure in use—
(a) for the purposes of a trade carried on in—
(i) a mill, factory or other similar premises, or
(ii) a laboratory the sole or main function of which is the analysis of minerals (including oil and natural gas) in connection with the exploration for, or the extraction of, such minerals,
(b) for the purposes of a dock undertaking,
(c) for the purposes of growing fruit, vegetables or other produce in the course of a trade of market gardening within the meaning of section 654 ,
(d) for the purposes of the trade of hotel-keeping,
(e) for the purposes of the intensive production of cattle, sheep, pigs, poultry or eggs in the course of a trade other than the trade of farming within the meaning of section 654 , or
(f) for the purposes of a trade which consists of the operation or management of an airport and which is an airport runway or an airport apron used solely or mainly by aircraft carrying passengers or cargo for hire or reward,
and in particular, in relation to capital expenditure incurred on or after the 6th day of April, 1969, includes any building or structure provided by the person carrying on such a trade or undertaking for the recreation or welfare of workers employed in that trade or undertaking and in use for that purpose.
(2) In this section, “dock” includes any harbour, wharf, pier or jetty or other works in or at which vessels can ship or unship merchandise or passengers, not being a pier or jetty primarily used for recreation, and “dock undertaking” shall be construed accordingly.
(3) For the purpose of this Part, a building or structure in use as a holiday camp or, in relation to capital expenditure incurred on or after the 1st day of July, 1968, a building or structure in use as a holiday cottage and comprised in premises registered in any register of holiday cottages established by Bord FÃ¡ilte Ãireann under any Act of the Oireachtas passed on or after the 29th day of July, 1969, shall be deemed to be a building or structure in use for the purposes of the trade of hotel-keeping.
(4) Where capital expenditure is incurred on preparing, cutting, tunnelling or levelling land for the purposes of preparing the land as a site for the installation of machinery or plant, the machinery or plant shall, as regards that expenditure, be treated for the purposes of this Chapter as a building or structure.
(5) For the purposes of this Part, expenditure incurred by a person on or after the 23rd day of April, 1996, either on the construction of, or on the acquisition of the relevant interest in, a building or structure not situated in the State shall not be treated as expenditure on a building or structure within the meaning of this section unless, being a building or structure not situated in the State—
(a) it is a building or structure which is to be constructed or which is in the course of construction and in respect of which it can be shown that—
(i) the person has either entered into a binding contract in writing for the acquisition of the site for the building or structure or has entered into an agreement in writing in relation to an option to acquire that site on or before the 23rd day of April, 1996,
(ii) the person has entered into a binding contract in writing for the construction of the building or structure on or before the 1st day of July, 1996, and
(iii) the construction of the building or structure had commenced on or before the 1st day of July, 1996, and had been completed before the 31st day of December, 1997,
and
(b) it is a building or structure to be constructed or which is being constructed which will be used for the purposes of a trade the profits or gains from which are taxable in the State.
(6) Subsection (1) shall apply in relation to a part of a trade as it applies in relation to a trade but, where part only of a trade complies with the conditions set out in that subsection, a building or structure shall not by virtue of this subsection be an industrial building or structure unless it is in use for the purposes of that part of that trade.
(7) (a) In this subsection, “retail shop” includes any premises of a similar character where retail trade or business (including repair work) is carried on.
(b) Notwithstanding anything in subsections (1) to (6) but subject to subsection (8), in this Part, “industrial building or structure” does not include any building or structure in use as, or as part of, a dwelling house (other than a holiday cottage referred to in subsection (3)), retail shop, showroom or office or for any purpose ancillary to the purposes of a dwelling house (other than a holiday cottage referred to in subsection (3)), retail shop, showroom or office.
(8) Where part of the whole of a building or structure is, and part of the whole of the building or structure is not, an industrial building or structure, and the capital expenditure incurred on the construction of the second-mentioned part is not more than 10 per cent of the total capital expenditure incurred on the construction of the whole building or structure, the whole building or structure and every part of the whole of the building or structure shall be treated as an industrial building or structure.
(9) Subsection (1) shall apply—
(a) by reference to paragraph (a)(ii), as respects capital expenditure incurred on or after the 25th day of January, 1984,
(b) by reference to paragraph (e), as respects capital expenditure incurred on or after the 6th day of April, 1971, and
(c) by reference to paragraph (f), as respects capital expenditure incurred on or after the 24th day of April, 1992.
num: 269
paragraphs: —(1) Subject to this section, in this Chapter, “the relevant interest”, in relation to any expenditure incurred on the construction of a building or structure, means the interest in that building or structure to which the person who incurred the expenditure was entitled when the person incurred the expenditure.
(2) Where, when a person incurs expenditure on the construction of a building or structure, the person is entitled to 2 or more interests in the building or structure and one of those interests is an interest which is reversionary on all the others, that interest shall be the relevant interest for the purposes of this Chapter.
(3) An interest shall not cease to be the relevant interest for the purposes of this Chapter by reason of the creation of any lease or other interest to which that interest is subject, and where the relevant interest is a leasehold interest and is extinguished by reason of the surrender of the leasehold interest, or on the person entitled to the leasehold interest acquiring the interest which is reversionary on the leasehold interest, the interest into which that leasehold interest merges shall thereupon become the relevant interest.
num: 270
paragraphs: —(1) In this section, “refurbishment”, in relation to a building or structure, means any work of construction, reconstruction, repair or renewal, including the provision of water, sewerage or heating facilities carried out in the course of the repair or restoration, or maintenance in the nature of repair or restoration, of the building or structure.
(2) A reference in this Chapter to expenditure incurred on the construction of a building or structure includes expenditure on the refurbishment of the building or structure, but does not include—
(a) any expenditure incurred on the acquisition of, or of rights in or over, any land,
(b) any expenditure on the provision of machinery or plant or on any asset treated for any chargeable period as machinery or plant, or
(c) any expenditure in respect of which an allowance is or may be made for the same or for any other chargeable period under section 670 or 765 (1).
(3) Where a building or structure which is to be an industrial building or structure forms part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the construction of the whole building or number of buildings, as the case may be, for the purpose of determining the expenditure incurred on the construction of the building or structure which is to be an industrial building or structure.
num: 271
paragraphs: —(1) In this section—
“industrial development agency” means the Industrial Development Authority, the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta;
“appropriate chargeable period”, in relation to any person who has incurred expenditure on the construction of a building or structure, means the chargeable period related to the expenditure or, if it is later, the chargeable period related to the event (which shall be regarded as an event within the meaning of section 321 (2)(b)), where such event is—
(a) the commencement of the tenancy in a case in which the first use to which the building or structure is put is a use by a person occupying it by virtue of a tenancy to which the relevant interest is reversionary, or
(b) in a case to which subsection (2)(b)(ii) refers, the commencement of the tenancy to which the relevant interest is reversionary;
“relevant lease” means a lease to which the relevant interest is reversionary.
(2) (a) Subject to the Tax Acts, where a person incurs capital expenditure on the construction of a building or structure—
(i) which is to be an industrial building or structure to which subsection (3) applies, and
(ii) which is to be occupied for the purposes of a trade carried on either by the person or by a lessee mentioned in paragraph (b),
there shall be made to the person who incurred the expenditure, for the appropriate chargeable period, an allowance (in this Chapter referred to as an “industrial building allowance”).
(b) The lessee referred to in paragraph (a) is a lessee occupying the building or structure on the construction of which the expenditure was incurred and who so occupies it—
(i) under a relevant lease, or
(ii) under a lease to which a relevant lease granted to an industrial development agency is reversionary.
(3) This subsection shall apply to—
(a) an industrial building or structure provided—
(i) before the 23rd day of April, 1996, for use for the purposes of trading operations, or
(ii) on or after the 23rd day of April, 1996, by a company for use for the purposes of trading operations carried on by the company,
which are relevant trading operations within the meaning of section 445 or 446 but, in relation to capital expenditure incurred on the provision of an industrial building or structure on or after the 6th day of May, 1993, excluding an industrial building or structure provided by a lessor to a lessee other than in the course of the carrying on by the lessor of those relevant trading operations,
(b) an industrial building or structure provided for the purposes of a project approved by an industrial development agency on or before the 31st day of December, 1988, and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995; but, as respects an industrial building or structure provided for the purposes of a project approved by an industrial development agency in the period from the 1st day of January, 1986, to the 31st day of December, 1988, this paragraph shall apply as if the reference to the 31st day of December, 1995, were a reference to the 31st day of December, 1996,
and
(c) an industrial building or structure provided for the purposes of a project approved for grant assistance by an industrial development agency in the period from the 1st day of January, 1989, to the 31st day of December, 1990, and in respect of the provision of which expenditure is incurred before the 31st day of December, 1997; but, as respects an industrial building or structure provided for the purposes of any such project specified in the list referred to in section 133 (8)(c)(iv), this paragraph shall apply as if the reference to the 31st day of December, 1997, were a reference to the 31st day of December, 2002.
(4) An industrial building allowance shall be of an amount equal to—
(a) where the building or structure is to be used for a purpose specified in paragraph (a) or (b) of section 268 (1), 50 per cent of the capital expenditure mentioned in subsection (2); but, in the case of a building or structure to which subsection (3)(a) applies, this paragraph shall apply only if that expenditure is incurred before the 25th day of January, 1999,
(b) where the building or structure is to be used for a purpose specified in paragraph (c) or (e) of section 268 (1), 20 per cent of the capital expenditure mentioned in subsection (2), and
(c) in any other case, 10 per cent of the capital expenditure mentioned in subsection (2).
(5) Where an industrial building allowance in respect of capital expenditure incurred on the construction of a building or structure to which subsection (3)(c) applies is made under this section for any chargeable period—
(a) no allowance in relation to that capital expenditure shall be made under section 272 for that chargeable period, and
(b) an allowance in relation to that capital expenditure which is to be made under section 272 for any chargeable period subsequent to that chargeable period shall not be increased under section 273 .
(6) Notwithstanding any other provision of this section, no industrial building allowance shall be made in respect of any expenditure on a building or structure if the building or structure, when it comes to be used, is not an industrial building or structure, and where an industrial building allowance has been granted in respect of any expenditure on any such building or structure, any necessary additional assessments may be made to give effect to this subsection.
num: 272
paragraphs: —(1) A building or structure shall be one to which this section applies only if the capital expenditure incurred on the construction of it has been incurred on or after the 30th day of September, 1956.
(2) Subject to this Part, where—
(a) any person is, at the end of a chargeable period or its basis period, entitled to an interest in a building or structure to which this section applies,
(b) at the end of the chargeable period or its basis period, the building or structure is an industrial building or structure, and
(c) that interest is the relevant interest in relation to the capital expenditure incurred on the construction of that building or structure,
an allowance (in this Chapter referred to as a “writing-down allowance”) shall be made to such person for that chargeable period.
(3) A writing-down allowance shall be of an amount equal to—
(a) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (a) or (b) of section 268 (1)—
(i) 2 per cent of the expenditure referred to in subsection (2)(c), if that expenditure was incurred before the 16th day of January, 1975, or
(ii) 4 per cent of the expenditure referred to in subsection (2)(c), if that expenditure is incurred on or after the 16th day of January, 1975,
(b) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (c) or (e) of section 268 (1), 10 per cent of the expenditure referred to in subsection (2)(c),
(c) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d), other than a building or structure to which paragraph (d) relates—
(i) 10 per cent of the expenditure referred to in subsection (2)(c), if that expenditure was incurred before the 27th day of January, 1994, or
(ii) 15 per cent of the expenditure referred to in subsection (2)(c), if that expenditure is incurred on or after the 27th day of January, 1994,
(d) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d) by reason of its use as a holiday cottage, 10 per cent of the expenditure referred to in subsection (2)(c), and
(e) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(f), 4 per cent of the expenditure referred to in subsection (2)(c).
(4) Where the interest in a building or structure which is the relevant interest in relation to any expenditure is sold while the building or structure is an industrial building or structure, then, subject to any further adjustment under this subsection on a later sale, the writing-down allowance for any chargeable period, if that chargeable period or its basis period ends after the time of the sale, shall be the residue (within the meaning of section 277 ) of that expenditure immediately after the sale, reduced in the proportion (if it is less than one) which the length of the chargeable period bears to the part unexpired at the date of the sale of the period of—
(a) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (a) or (b) of section 268 (1)—
(i) 50 years beginning with the time when the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure was incurred before the 16th day of January, 1975, or
(ii) 25 years beginning with the time when the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure is incurred on or after the 16th day of January, 1975,
(b) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (c) or (e) of section 268 (1), 10 years beginning with the time when the building or structure was first used,
(c) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d), other than a building or structure referred to in paragraph (d)—
(i) 10 years beginning with the time when the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure was incurred before the 27th day of January, 1994, or
(ii) 7 years beginning with the time when the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure is incurred on or after the 27th day of January, 1994,
(d) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d) by reason of its use as a holiday cottage, 10 years beginning with the time when the building or structure was first used, and
(e) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(f), 25 years beginning with the time when the building or structure was first used.
(5) In ascertaining a writing-down allowance to be made to a person under subsection (4), the residue of expenditure mentioned in that subsection shall, where it exceeds the amount of expenditure incurred by that person in respect of the sale, be taken to be the amount of the expenditure so incurred.
(6) Notwithstanding any other provision of this section, in no case shall the amount of a writing-down allowance made to a person for any chargeable period in respect of any expenditure exceed what, apart from the writing off to be made by reason of the making of that allowance, would be the residue of that expenditure at the end of that chargeable period or its basis period.
num: 273
paragraphs: —(1) In this section—
“industrial development agency” means the Industrial Development Authority, Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta;
“qualifying expenditure” means capital expenditure incurred on or after the 2nd day of February, 1978, by the person to whom the allowance under section 272 is to be made on the construction of a building or structure which is to be an industrial building or structure occupied by that person for a purpose specified in paragraph (a), (b) or (d) of section 268 (1), but excluding such expenditure incurred for the purposes of the trade of hotel-keeping unless it is incurred on the construction of premises which are registered in a register kept by Bord FÃ¡ilte Ãireann under the Tourist Traffic Acts, 1939 to 1995.
(2) (a) Subject to this section, where for any chargeable period an allowance is to be made under section 272 in respect of qualifying expenditure, the allowance shall, subject to subsection (6) of that section, be increased by such amount as is specified by the person to whom the allowance is to be made and, in relation to a case in which this subsection has applied, any reference in the Tax Acts to an allowance made under section 272 shall be construed as a reference to that allowance as increased under this section.
(b) As respects any qualifying expenditure incurred on or after the 1st day of April, 1988, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed—
(i) if the qualifying expenditure was incurred before the 1st day of April, 1989, 75 per cent,
(ii) if the qualifying expenditure was incurred on or after the 1st day of April, 1989, and before the 1st day of April, 1991, 50 per cent, or
(iii) if the qualifying expenditure was incurred on or after the 1st day of April, 1991, and before the 1st day of April, 1992, 25 per cent,
of the amount of that qualifying expenditure.
(3) Notwithstanding subsection (2), but subject to subsections (4) and (6)—
(a) no allowance made under section 272 in respect of qualifying expenditure incurred on or after the 1st day of April, 1992, shall be increased under this section, and
(b) as respects chargeable periods ending on or after the 6th day of April, 1999, no allowance made under section 272 in respect of qualifying expenditure incurred before the 1st day of April, 1992, shall be increased under this section.
(4) This section shall apply in relation to capital expenditure incurred on the construction of an industrial building or structure to which subsection (5) applies as if subsections (2)(b) and (3) were deleted.
(5) This subsection shall apply to—
(a) an industrial building or structure provided—
(i) before the 23rd day of April, 1996, for use for the purposes of trading operations, or
(ii) on or after the 23rd day of April, 1996, by a company for use for the purposes of trading operations carried on by the company,
which are relevant trading operations within the meaning of section 445 or 446 but, in relation to capital expenditure incurred on the provision of an industrial building or structure on or after the 6th day of May, 1993, excluding an industrial building or structure provided by a lessor to a lessee other than in the course of the carrying on by the lessor of those relevant trading operations,
(b) an industrial building or structure the expenditure on the provision of which was incurred before the 31st day of December, 1995, under a binding contract entered into on or before the 27th day of January, 1988, and
(c) an industrial building or structure provided for the purposes of a project approved by an industrial development agency on or before the 31st day of December, 1988, and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995; but, as respects an industrial building or structure provided for the purposes of a project approved by an industrial development agency in the period from the 1st day of January, 1986, to the 31st day of December, 1988, this paragraph shall apply as if the reference to the 31st day of December, 1995, were a reference to the 31st day of December, 1996.
(6) This section shall apply in relation to capital expenditure incurred on the construction of a building or structure which is to be an industrial building or structure to which subsection (7)(a) applies—
(a) as if in subsection (2)(b)—
(i) the following subparagraph were substituted for subparagraph (ii):
“(ii) if the qualifying expenditure is incurred on or after the 1st day of April, 1989, 50 per cent,”,
and
(ii) subparagraph (iii) were deleted,
and
(b) as if subsection (3) were deleted.
(7) (a) This subsection shall apply to—
(i) an industrial building or structure provided for the purposes of a project approved for grant assistance by an industrial development agency in the period from the 1st day of January, 1989, to the 31st day of December, 1990, and in respect of the provision of which expenditure is incurred before the 31st day of December, 1997; but, as respects an industrial building or structure provided for the purposes of any such project specified in the list referred to in section 133 (8)(c)(iv), this paragraph shall apply as if the reference to the 31st day of December, 1997, were a reference to the 31st day of December, 2002, and
(ii) a building or structure which is to be an industrial building or structure within the meaning of section 268 (1)(d) and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995, where a binding contract for the provision of the building or structure was entered into before the 31st day of December, 1990.
(b) Paragraph (a)(ii) shall not apply if the building or structure referred to in that paragraph is not registered within 6 months after the date of the completion of that building or structure in a register kept by Bord FÃ¡ilte Ãireann under the Tourist Traffic Acts, 1939 to 1995, and where by virtue of this section any allowance or increased allowance has been granted, any necessary additional assessments may be made to give effect to this paragraph.
(8) Where for any chargeable period an allowance under section 272 in respect of qualifying expenditure is increased under this section, no allowance under section 271 shall be made in respect of that qualifying expenditure for that or any subsequent chargeable period.
num: 274
paragraphs: —(1) (a) Where any capital expenditure has been incurred on the construction of a building or structure in respect of which an allowance has been made under this Chapter, and any of the following events occurs—
(i) the relevant interest in the building or structure is sold,
(ii) that interest, being a leasehold interest, comes to an end otherwise than on the person entitled to the leasehold interest acquiring the interest which is reversionary on the leasehold interest,
(iii) the building or structure is demolished or destroyed or, without being demolished or destroyed, ceases altogether to be used, or
(iv) subject to subsection (2), where consideration (other than rent or an amount treated or, as respects consideration received on or after the 26th day of March, 1997, partly treated as rent under section 98 ) is received by the person entitled to the relevant interest in respect of an interest which is subject to that relevant interest,
an allowance or charge (in this Chapter referred to as a “balancing allowance” or a “balancing charge”) shall, in the circumstances mentioned in this section, be made to or on, as the case may be, the person entitled to the relevant interest immediately before that event occurs, for the chargeable period related to that event.
(b) Notwithstanding paragraph (a), no balancing allowance or balancing charge shall be made by reason of any event referred to in that paragraph occurring more than—
(i) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (a) or (b) of section 268 (1)—
(I) 50 years after the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure was incurred before the 16th day of January, 1975, or
(II) 25 years after the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure is incurred on or after the 16th day of January, 1975,
(ii) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of paragraph (c) or (e) of section 268 (1), 10 years after the building or structure was first used,
(iii) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d), other than a building or structure to which subparagraph (iv) relates—
(I) 10 years after the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure was incurred before the 27th day of January, 1994, or
(II) 7 years after the building or structure was first used, in the case where the capital expenditure on the construction of the building or structure is incurred on or after the 27th day of January, 1994,
(iv) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d) by reason of its use as a holiday cottage, 10 years after the building or structure was first used, and
(v) in relation to a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(f), 25 years after the building or structure was first used.
(2) Subsection (1)(a)(iv) shall not apply as respects the relevant interest in a building or structure in use for the purposes of a trade or part of a trade of hotel-keeping where a binding contract for the provision of the building or structure was entered into after the 27th day of January, 1988, and before the 1st day of June, 1988.
(3) Where there are no sale, insurance, salvage or compensation moneys, or consideration of the type referred to in subsection (1)(a)(iv), or where the residue of the expenditure immediately before the event exceeds those moneys or that consideration, a balancing allowance shall be made, and the amount of that allowance shall be the amount of that residue or, as the case may be, of the excess of that residue over those moneys or that consideration.
(4) Where the sale, insurance, salvage or compensation moneys, or consideration of the type referred to in subsection (1)(a)(iv), exceed the residue, if any, of the expenditure immediately before the event, a balancing charge shall be made, and the amount on which it is made shall be an amount equal to the excess or, where the residue is nil, to those moneys or that consideration.
(5) (a) In this subsection, “the relevant period” means the period beginning when the building or structure was first used for any purpose and ending—
(i) if the event giving rise to the balancing allowance or balancing charge occurs on the last day of a chargeable period or its basis period, on that day, or
(ii) in any other case, on the latest date before that event which is the last day of a chargeable period or its basis period;
but where before that event the building or structure has been sold while an industrial building or structure, the relevant period shall begin on the day following that sale or, if there has been more than one such sale, the last such sale.
(b) Where a balancing allowance or a balancing charge is to be made to or on a person, and any part of the relevant period is not comprised in a chargeable period for which a writing-down allowance has been made to such person or is not comprised in the basis period for such chargeable period, the amount of the balancing allowance or, as the case may be, the amount on which the balancing charge is to be made shall be reduced in the proportion which the part or parts so comprised bears to the whole of the relevant period.
(c) Notwithstanding paragraph (b), where but for section 272 (6) or 321 (5) a writing-down allowance would have been made to a person for any chargeable period, the part of the relevant period comprised in that chargeable period or its basis period shall be deemed for the purposes of this subsection to be comprised in a chargeable period for which a writing-down allowance was made to the person.
(6) Where a building or structure which is to be regarded as an industrial building or structure within the meaning of section 268 (1)(d) by reason of its use as a holiday cottage ceases to be comprised in premises registered in a register referred to in section 268 in such circumstances that apart from this subsection this section would not apply in relation to the building or structure, the relevant interest in the building or structure shall for the purposes of this Chapter (other than section 272 (4)) be deemed on such cesser to have been sold while the building or structure was an industrial building or structure and the net proceeds of the sale shall be deemed for those purposes to be an amount equal to the capital expenditure incurred on the construction of the building or structure.
(7) Where a balancing charge is made under this section by virtue of subsection (6) and the relevant interest in the building or structure is not subsequently sold by the person on whom the charge is made while the building or structure is not an industrial building or structure, such person shall, if the building or structure again becomes comprised in a premises registered in a register referred to in section 268 , be treated for the purposes of this Chapter as if, at the time of the cesser referred to in subsection (6), such person were the buyer of the relevant interest deemed under that subsection to have been sold.
(8) Notwithstanding any other provision of this section, in no case shall the amount on which a balancing charge is made on a person in respect of any expenditure on the construction of a building or structure exceed the amount of the industrial building allowance, if any, made to such person in respect of that expenditure together with the amount of any writing-down allowances made to such person in respect of that expenditure for chargeable periods which end on or before the date of the event giving rise to the charge or, as the case may be, for chargeable periods for which the basis periods end on or before that date.
num: 275
paragraphs: —(1) In this section—
“inferior interest” means any interest in or right over the building or structure in question, whether granted by the relevant person or by someone else;
“premium” includes any capital consideration except so much of any sum as corresponds to any amount of rent or profits which is to be computed by reference to that sum under section 98 ;
“capital consideration” means consideration which consists of a capital sum or would be a capital sum if it had taken the form of a money payment;
“rent” includes any consideration which is not capital consideration;
“commercial rent” means such rent as might reasonably be expected to have been required in respect of the inferior interest in question, having regard to any premium payable for the grant of the interest, if the transaction had been at arm's length.
(2) This section shall apply where—
(a) the relevant interest in a building is sold subject to an inferior interest,
(b) by virtue of the sale a balancing allowance under section 274 would apart from this section be made to or for the benefit of the person (in this section referred to as “the relevant person”) who was entitled to the relevant interest immediately before the sale, and
(c) either—
(i) the relevant person, the person to whom the relevant interest is sold and the grantee of the inferior interest, or any 2 of them, are connected with each other, or
(ii) it appears with respect to the sale or the grant of the inferior interest, or with respect to transactions including the sale or grant, that the sole or main benefit which but for this section might have been expected to accrue to the parties or any of them was the obtaining of an allowance or deduction under this Chapter.
(3) For the purposes of section 274 , the net proceeds to the relevant person of the sale—
(a) shall be taken to be increased by an amount equal to any premium receivable by the relevant person for the grant of the inferior interest, and
(b) where no rent or no commercial rent is payable in respect of the inferior interest, shall be taken to be the sum of—
(i) what those proceeds would have been if a commercial rent had been payable and the relevant interest had been sold in the open market, and
(ii) any amount to be added under paragraph (a);
but the net proceeds of the sale shall not by virtue of this subsection be taken to be greater than such amount as will secure that no balancing allowance is to be made.
(4) Where subsection (3) operates in relation to a sale to deny or reduce a balancing allowance in respect of any expenditure, the residue of that expenditure immediately after the sale shall be calculated for the purposes of this Chapter as if that balancing allowance had been made or, as the case may be, had not been reduced.
(5) Where the terms on which the inferior interest is granted are varied before the sale of the relevant interest, any capital consideration for the variation shall be treated for the purposes of this section as a premium for the grant of the interest, and the question whether any and, if so, what rent is payable in respect of the interest shall be determined by reference to the terms as in force immediately before the sale.
num: 276
paragraphs: —(1) In this section, “refurbishment” means any work of construction, reconstruction, repair or renewal, including the provision or improvement of water, sewerage or heating facilities, carried out in the course of repair or restoration, or maintenance in the nature of repair or restoration, of a building or structure.
(2) Notwithstanding any other provision of the Tax Acts, where on or after the 6th day of April, 1991, any capital expenditure has been incurred on the refurbishment of a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under this Chapter, sections 272 and 274 shall apply as if “the capital expenditure on refurbishment of the building or structure was incurred” were substituted for “the building or structure was first used” in each place where it occurs in sections 272 (4) and 274 (1)(b).
(3) For the purposes of giving effect to this section in so far as the computation of a balancing allowance or balancing charge is concerned, all such apportionments shall be made as are in the circumstances just and reasonable.
num: 277
paragraphs: —(1) For the purposes of this Chapter, any expenditure incurred on the construction of any building or structure shall be treated as written off to the extent and at the times specified in this section, and references in this Chapter to the residue of any such expenditure shall be construed accordingly.
(2) Where an industrial building allowance is made in respect of the expenditure, the amount of that allowance shall be written off at the time when the building or structure is first used.
(3) Where, by reason of the building or structure being at any time an industrial building or structure, a writing-down allowance is made for any chargeable period in respect of the expenditure, the amount of that allowance shall be written off at that time; but, where at that time an event occurs which gives rise or may give rise to a balancing allowance or balancing charge, the amount directed to be written off by this subsection at that time shall be taken into account in computing the residue of that expenditure immediately before that event for the purpose of determining whether any, and if so what, balancing allowance or balancing charge is to be made.
(4) (a) Where, for any period or periods between the time when the building or structure was first used for any purpose and the time at which the residue of the expenditure is to be ascertained, the building or structure has not been in use as an industrial building or structure, there shall in ascertaining that residue be treated as having been previously written off in respect of that period or those periods amounts equal to writing-down allowances made for chargeable periods of a total length equal to the length of that period, or the aggregate length of those periods, as the case may be, at such rate or rates as would have been appropriate having regard to any sale on which section 272 (4) operated.
(b) Where the building or structure was in use as an industrial building or structure at the end of the basis period for any year of assessment before the year 1960-71, an amount equal to 2 per cent of the expenditure shall be treated as written off at the end of the previous year of assessment.
(5) Where on the occasion of a sale a balancing allowance is made in respect of the expenditure, there shall be written off at the time of the sale the amount by which the residue of the expenditure before the sale exceeds the net proceeds of the sale.
(6) Where on the occasion of a sale a balancing charge is made in respect of the expenditure, the residue of the expenditure shall be deemed for the purposes of this Chapter to be increased at the time of the sale by the amount on which the charge is made.
(7) Where, on receipt of consideration of the type referred to in section 274 (1)(a)(iv), a balancing allowance is made in respect of the expenditure, there shall be written off at the time of the event giving rise to the balancing allowance or, if later, on the 26th day of March, 1997, the amount by which the residue of the expenditure before that event exceeds that consideration.
num: 278
paragraphs: —(1) Except in the cases mentioned in this section, any allowance or charge made to or on a person under the preceding provisions of this Part shall be made to or on such person in taxing such person's trade or, as the case may require, in charging such person's income under Case V of Schedule D.
num: 279
paragraphs: —(1) For the purposes of this section—
“expenditure incurred on the construction of a building or structure” excludes any expenditure within the meaning of section 270 (2);
“the net price paid” means the amount represented by A in the equation—
A [html] B ×
C
_____
C + D
where—
B is the amount paid by a person on the purchase of the relevant interest in a building or structure,
C is the amount of the expenditure actually incurred on the construction of the building or structure, and
D is the amount of any expenditure actually incurred which is expenditure for the purposes of paragraph (a), (b) or (c) of section 270 (2).
(2) Where expenditure is incurred on the construction of a building or structure and, before the building or structure is used or within a period of one year after it commences to be used, the relevant interest in the building or structure is sold, then, if an allowance has not been claimed by any other person in respect of that building or structure under this Chapter—
(a) the expenditure actually incurred on the construction of the building or structure shall be disregarded for the purposes of sections 271 , 272 , 274 and 277 , but
(b) the person who buys that interest shall be deemed for those purposes to have incurred, on the date when the purchase price becomes payable, expenditure on the construction of the building or structure equal to that expenditure or to the net price paid by such person for that interest, whichever is the less;
but, where the relevant interest in the building or structure is sold more than once before the building or structure is used or within the period of one year after it commences to be used, paragraph (b) shall apply only in relation to the last of those sales.
(3) Where the expenditure incurred on the construction of a building or structure was incurred by a person carrying on a trade which consists, as to the whole or any part of the trade, of the construction of buildings or structures with a view to their sale and, before the building or structure is used or within a period of one year after it commences to be used, such person sells the relevant interest in the building or structure in the course of that trade or, as the case may be, of that part of that trade, subsection (2) shall apply subject to the following modifications—
(a) if that sale is the only sale of the relevant interest before the building or structure is used or within the period of one year after it commences to be used, subsection (2) shall apply as if in paragraph (b) of that subsection “that expenditure or to” and “, whichever is the less” were deleted, and
(b) if there is more than one sale of the relevant interest before the building or structure is used or within the period of one year after it commences to be used, subsection (2) shall apply as if the reference to the expenditure actually incurred on the construction of the building or structure were a reference to the price paid on that sale.
num: 280
paragraphs: —(1) For the purposes of this Chapter, a building or structure shall not be deemed to cease altogether to be used by reason that it is temporarily out of use and where, immediately before any period of temporary disuse, a building or structure is an industrial building or structure, it shall be deemed to continue to be an industrial building or structure during the period of temporary disuse.
(2) (a) Notwithstanding any other provision of this Part as to the manner of making allowances and charges but subject to paragraph (b), where by virtue of subsection (1) a building or structure is deemed to continue to be an industrial building or structure while temporarily out of use, then, if—
(i) on the last occasion on which the building or structure was in use as an industrial building or structure, it was in use for the purposes of a trade which has since been permanently discontinued, or
(ii) on the last occasion on which the building or structure was in use as an industrial building or structure, the relevant interest in the building or structure was subject to a lease which has since come to an end,
num: 281
paragraphs: —(1) Where with the consent of the lessor a lessee of any building or structure remains in possession of that building or structure after the termination of the lease without a new lease being granted to the lessee, that lease shall be deemed for the purposes of this Chapter to continue so long as the lessee remains so in possession.
(2) Where on the termination of a lease a new lease is granted to the lessee consequent on the lessee being entitled by statute to a new lease or in pursuance of an option available to the lessee under the terms of the first lease, this Chapter shall apply as if the second lease were a continuation of the first lease.
(3) Where on the termination of a lease the lessor pays any sum to the lessee in respect of a building or structure comprised in the lease, this Chapter shall apply as if the lease had come to an end by reason of the surrender of the lease in consideration of the payment.
num: 282
paragraphs: —(1) A person who has incurred expenditure on the construction of a building or structure shall be deemed, for the purposes of any provision of this Chapter referring to such person's interest in the building or structure at the time when the expenditure was incurred, to have had the same interest in the building or structure as such person would have had if the construction of the building or structure had been completed at that time.
(2) Without prejudice to any other provision of this Part relating to the apportionment of sale, insurance, salvage or compensation moneys, the sum paid on the sale of the relevant interest in a building or structure, or any other sale, insurance, salvage or compensation moneys payable in respect of any building or structure, shall for the purposes of this Chapter be deemed to be reduced by an amount equal to so much of that sum or those moneys, as the case may be, as on a just apportionment is attributable to assets representing expenditure other than expenditure in respect of which an allowance may be made under this Chapter.
num: 283
paragraphs: —(1) In this section—
“industrial development agency” means the Industrial Development Authority, Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta;
“new” means unused and not secondhand, but a ship shall be deemed to be new even if it has been used or is secondhand.
(2) Subject to the Tax Acts, where—
num: 284
paragraphs: —(1) Subject to the Tax Acts, where a person carrying on a trade in any chargeable period has incurred capital expenditure on the provision of machinery or plant for the purposes of the trade, an allowance (in this Chapter referred to as a “wear and tear allowance”) shall be made to such person for that chargeable period on account of the wear and tear of any of the machinery or plant which belongs to such person and is in use for the purposes of the trade at the end of that chargeable period or its basis period and which, while used for the purposes of the trade, is wholly and exclusively so used.
(2) (a) Subject to subsection (4), the amount of the wear and tear allowance to be made shall be an amount equal to—
(i) in the case of machinery or plant, other than machinery or plant of the type referred to in subparagraph (ii), 15 per cent of the actual cost of the machinery or plant, including in that actual cost any expenditure in the nature of capital expenditure on the machinery or plant by means of renewal, improvement or reinstatement, or
(ii) in the case of machinery or plant which consists of a vehicle suitable for the conveyance by road of persons or goods or the haulage by road of other vehicles, 20 per cent of the value of that machinery or plant at the commencement of the chargeable period.
(b) Where a chargeable period or its basis period consists of a period less than one year in length, the wear and tear allowance shall not exceed such portion of the amount specified in subparagraph (i) or (ii) of paragraph (a), as the case may be, as bears to that amount the same proportion as the length of the chargeable period or its basis period bears to a period of one year.
(3) For the purposes of subsection (2)(a)(ii), the value at the commencement of the chargeable period of the machinery or plant shall be taken to be the actual cost to the person of such machinery or plant reduced by the total of any wear and tear allowances made to that person in relation to the machinery or plant for previous chargeable periods.
(4) No wear and tear allowance or repayment on account of any such allowance shall be made for any chargeable period if such allowance, when added to—
(a) the allowances on that account, and
(b) any initial allowances in relation to the machinery or plant under section 283 ,
made for any previous chargeable periods to the person by whom the trade is carried on, will make the aggregate amount of the allowances exceed the actual cost to that person of the machinery or plant, including in that actual cost any expenditure in the nature of capital expenditure on the machinery or plant by means of renewal, improvement or reinstatement.
(5) No wear and tear allowance shall be made under this section in respect of capital expenditure incurred on the construction of a building or structure which is or is deemed to be an industrial building or structure within the meaning of section 268 .
(6) Subject to subsection (7), this section shall, with any necessary modifications, apply in relation to the letting of any premises the profits or gains from which are chargeable under Chapter 8 of Part 4 as it applies in relation to trades.
(7) Where by virtue of subsection (6) this section applies to the letting of any premises, it shall apply as respects the year of assessment 1997-98 and subsequent years of assessment in respect of capital expenditure incurred on the provision of machinery or plant within the meaning of subsection (2)(a)(i) where—
(a) such expenditure is incurred wholly and exclusively in respect of a house used solely as a dwelling which is or is to be let as a furnished house, and
(b) that furnished house is provided for renting or letting on bona fide commercial terms in the open market.
num: 285
paragraphs: —(1) In this section—
“designated area” means a designated area for the purposes of the Industrial Development Act, 1969 ;
“industrial development agency” means the Industrial Development Authority, Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta;
“qualifying building or structure” means a building or structure which is to be an industrial building or structure within the meaning of section 268 (1)(d), and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995, where a binding contract for the provision of the building or structure was entered into before the 31st day of December, 1990;
“qualifying machinery or plant” means machinery or plant, other than vehicles suitable for the conveyance by road of persons or goods or the haulage by road of other vehicles, provided—
(a) on or after the 1st day of April, 1967, for use in any designated area, or
(b) on or after the 1st day of April, 1971, for use in any area other than a designated area,
for the purposes of a trade and which at the time it is so provided is unused and not secondhand.
(2) (a) Subject to this section and section 299 (2), where for any chargeable period a wear and tear allowance is to be made under section 284 in relation to any qualifying machinery or plant, the allowance shall, subject to section 284 (4), be increased by such amount as is specified by the person to whom the allowance is to be made and, in relation to a case in which this subsection has applied, any reference in the Tax Acts to an allowance made under section 284 shall be construed as a reference to that allowance as increased under this subsection.
(b) Subject to subsections (4) and (6), as respects any machinery or plant provided for use on or after the 1st day of April, 1988, any wear and tear allowance made under section 284 and increased under paragraph (a) in respect of that machinery or plant, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed—
(i) if the machinery or plant was provided for use before the 1st day of April, 1989, 75 per cent,
(ii) if the machinery or plant was provided for use on or after the 1st day of April, 1989, and before the 1st day of April, 1991, 50 per cent, or
(iii) if the machinery or plant was provided for use on or after the 1st day of April, 1991, and before the 1st day of April, 1992, 25 per cent,
of the capital expenditure incurred on the provision of that machinery or plant.
(3) Notwithstanding subsection (2) but subject to subsections (4) and (6)—
(a) no allowance made under section 284 for wear and tear of any qualifying machinery or plant provided for use on or after the 1st day of April, 1992, shall be increased under this section, and
(b) as respects chargeable periods ending on or after the 6th day of April, 1999, no allowance made under section 284 for wear and tear of any qualifying machinery or plant provided for use before the 1st day of April, 1992, shall be increased under this section.
(4) This section shall apply in relation to machinery or plant to which subsection (5) applies as if subsections (2)(b) and (3) were deleted.
(5) This subsection shall apply to—
(a) machinery or plant provided—
(i) before the 23rd day of April, 1996, for use for the purposes of trading operations, or
(ii) on or after the 23rd day of April, 1996, by a company for use for the purposes of trading operations carried on by the company,
which are relevant trading operations within the meaning of section 445 or 446 but, in relation to capital expenditure incurred on the provision of machinery or plant on or after the 6th day of May, 1993, excluding machinery or plant provided by a lessor to a lessee other than in the course of the carrying on by the lessor of those relevant trading operations,
(b) machinery or plant the expenditure on the provision of which was incurred before the 31st day of December, 1995, under a binding contract entered into on or before the 27th day of January, 1988,
(c) machinery or plant provided for the purposes of a project approved by an industrial development agency on or before the 31st day of December, 1988, and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995; but, as respects machinery or plant provided for the purposes of a project approved by an industrial development agency in the period from the 1st day of January, 1986, to the 31st day of December, 1988, this paragraph shall apply as if the reference to the 31st day of December, 1995, were a reference to the 31st day of December, 1996,
and
(d) machinery or plant provided before the 1st day of April, 1991, for the purposes of a trade or part of a trade of hotel-keeping carried on in a building or structure or part of a building or structure, including machinery or plant provided by a lessor to a lessee for use in such a trade or part of a trade, where a binding contract for the provision of that building or structure was entered into after the 27th day of January, 1988, and before the 1st day of June, 1988.
(6) This section shall apply in relation to machinery or plant to which subsection (7)(a) applies—
(a) as if in subsection (2)(b)—
(i) the following subparagraph were substituted for subparagraph (ii):
“(ii) if the machinery or plant is provided for use on or after the 1st day of April, 1989, 50 per cent,”,
and
(ii) subparagraph (iii) were deleted,
and
(b) as if subsection (3) were deleted.
(7) (a) This subsection shall apply to—
(i) machinery or plant provided for the purposes of a project approved for grant assistance by an industrial development agency in the period from the 1st day of January, 1989, to the 31st day of December, 1990, and in respect of the provision of which expenditure is incurred before the 31st day of December, 1997; but, as respects machinery or plant provided for the purposes of any such project specified in the list referred to in section 133 (8)(c)(iv), this subparagraph shall apply as if the reference to the 31st day of December, 1997, were a reference to the 31st day of December, 2002,
and
(ii) machinery or plant provided for the purposes of a trade or part of a trade of hotel-keeping carried on in a qualifying building or structure and in respect of the provision of which expenditure was incurred before the 31st day of December, 1995.
(b) Paragraph (a)(ii) shall not apply if the qualifying building or structure is not registered within 6 months after the date of the completion of that building or structure in a register kept by Bord FÃ¡ilte Ãireann under the Tourist Traffic Acts, 1939 to 1995, and where by virtue of this section any allowance or increased allowance has been granted any necessary additional assessments may be made to give effect to this paragraph.
(8) Where for any chargeable period a wear and tear allowance under section 284 in relation to any machinery or plant is increased under this section, no allowance under section 283 shall be made in relation to the machinery or plant for that or any subsequent chargeable period.
num: 286
paragraphs: —(1) (a) In this section—
“car” means any mechanically propelled road vehicle, being a vehicle which has been constructed or adapted to be primarily suited to the carriage of passengers and not to the conveyance of goods or burden of any description or to the haulage by road of other vehicles, and which is a vehicle of a type commonly used as a private vehicle and suitable to be so used, and includes a vehicle in use for the purpose referred to in paragraph (ii) of the definition of “qualifying purposes”;
“qualifying purposes” means, subject to paragraphs (c) and (d), the use in the ordinary course of trade of a car for the purposes of—
(i) short-term hire to members of the public, or
(ii) the carriage of members of the public while the car is a licensed public hire vehicle fitted with a taximeter in accordance with the Road Traffic (Public Service Vehicles) Regulations, 1963 ( S.I. No. 191 of 1963 );
“short-term hire”, in relation to a car and subject to paragraph (b), means the hire of the car to a person under a hire-drive agreement (within the meaning of section 3 of the Road Traffic Act, 1961 ) for a continuous period which does not exceed 8 weeks.
(b) Where a period of hire of a car to a person by another person is followed within 7 days of the end of that period by a further period of hire of a car (whether the same car or not) to that person by that other person, the 2 periods shall be deemed for the purposes of this section, including any subsequent application of this paragraph, to constitute together a single continuous period of hire so that, where that continuous period of hire exceeds 8 weeks, the period of hire of any car included in that continuous period of hire shall not be treated as a period of short-term hire, and for the purposes of this paragraph any reference to a person shall be treated as including a reference to any other person who is connected with that person.
(c) For the purposes of this section, a car shall be regarded as used by a person for qualifying purposes as respects a chargeable period only if not less than 75 per cent of its use (determined by reference to the periods of time in which the car is used, or available for use, for any purpose) by that person in the chargeable period or its basis period is for qualifying purposes.
(d) Notwithstanding paragraph (c), where as respects a chargeable period the use of a car for qualifying purposes does not satisfy the requirements of that paragraph but would have satisfied those requirements if the reference in that paragraph to 75 per cent were a reference to 50 per cent, the car shall be deemed to be used for qualifying purposes as respects that chargeable period if the use of the car by that person for qualifying purposes satisfied the requirements of that paragraph as respects the immediately preceding chargeable period, or the car shall be deemed to be so used if that use of the car has satisfied those requirements as respects the immediately succeeding chargeable period, and the inspector shall accordingly adjust the amount of capital allowances to be made in taxing the person's trade and any amount of tax overpaid shall be repaid.
(2) In determining what capital allowances are to be made to a person for any chargeable period in taxing a trade which consists of or includes the carrying on of qualifying purposes, section 284 shall apply to a car which as respects that period has been used by the person for qualifying purposes as if the reference in subsection (2)(a)(ii) of that section to 20 per cent were a reference to 40 per cent.
num: 287
paragraphs: —(1) In this section—
“wear and tear allowance” means an allowance made under section 284 otherwise than by virtue of section 285 ;
“normal wear and tear allowance” means such wear and tear allowance or greater wear and tear allowance, if any, as would have been made to a person in respect of any machinery or plant used by such person during any chargeable period if all the conditions specified in subsection (3) had been fulfilled in relation to that chargeable period.
(2) Where for any chargeable period during which any machinery or plant has been used by a person no wear and tear allowance or a wear and tear allowance less than the normal wear and tear allowance is made to such person in respect of the machinery or plant, the normal wear and tear allowance shall be deemed for the purposes of subsections (3) and (4) of section 284 to have been made to such person in respect of the machinery or plant for that chargeable period.
(3) The conditions referred to in subsection (1) are—
(a) that the trade had been carried on by the person in question since the date on which such person acquired the machinery or plant and had been so carried on by such person in such circumstances that the full amount of the profits or gains of the trade was liable to be charged to tax,
(b) that the trade had at no time consisted wholly or partly of exempted trading operations within the meaning of Chapter I of Part XXV of the Income Tax Act, 1967 , or Part V of the Corporation Tax Act, 1976 ,
(c) that the machinery or plant had been used by such person solely for the purposes of the trade since that date,
(d) that a proper claim had been duly made by such person for wear and tear allowance in respect of the machinery or plant for every relevant chargeable period, and
(e) that no question arose in connection with any chargeable period as to there being payable to such person directly or indirectly any sums in respect of, or taking account of, the wear and tear of the machinery or plant.
(4) In the case of a company, subsection (3)(a) shall not alter the periods which are to be taken as chargeable periods but if, during any time after the year 1975-76 and after the company acquired the machinery or plant, the company has not been within the charge to corporation tax, any year of assessment or part of a year of assessment falling within that time shall be taken as a chargeable period as if it had been an accounting period of the company.
num: 288
paragraphs: —(1) Subject to this section, where any of the following events occurs in the case of any machinery or plant in respect of which an initial allowance or a wear and tear allowance has been made for any chargeable period to a person carrying on a trade—
(a) any event occurring after the setting up and before the permanent discontinuance of the trade whereby the machinery or plant ceases to belong to the person carrying on the trade (whether on a sale of the machinery or plant or in any other circumstances of any description),
(b) any event occurring after the setting up and before the permanent discontinuance of the trade whereby the machinery or plant (while continuing to belong to the person carrying on the trade) permanently ceases to be used for the purposes of a trade carried on by the person,
(c) the permanent discontinuance of the trade, the machinery or plant not having previously ceased to belong to the person carrying on the trade,
(d) in the case of machinery or plant consisting of computer software or the right to use or otherwise deal with computer software, any event whereby the person grants to another person a right to use or otherwise deal with the whole or part of the computer software concerned in circumstances where the consideration in money for the grant constitutes (or, if there were consideration in money for the grant, would constitute) a capital sum,
an allowance or charge (in this Chapter referred to as a “balancing allowance” or a “balancing charge”) shall, in the circumstances mentioned in this section, be made to or, as the case may be, on that person for the chargeable period related to that event.
(2) Where there are no sale, insurance, salvage or compensation moneys or where the amount of the capital expenditure of the person in question on the provision of the machinery or plant still unallowed as at the time of the event exceeds those moneys, a balancing allowance shall be made, and the amount of the allowance shall be the amount of the expenditure still unallowed as at that time or, as the case may be, of the excess of that expenditure still unallowed as at that time over those moneys.
(3) Where the sale, insurance, salvage or compensation moneys exceed the amount, if any, of that expenditure still unallowed as at the time of the event, a balancing charge shall be made, and the amount on which it is made shall be an amount equal to—
(a) the excess, or
(b) where the amount still unallowed is nil, those moneys.
(4) (a) In this subsection, “scientific research allowance” means—
(i) in relation to any expenditure incurred before the 6th day of April, 1965, the total amount of any allowances made in respect of that expenditure under section 244 (3) of the Income Tax Act, 1967 , increased by the amount of any allowance made under section 244(4)(b) of that Act or, as the case may be, reduced by any amount treated as a trading receipt in accordance with section 244(4)(c) of that Act, and
(ii) in relation to any expenditure incurred on or after the 6th day of April, 1965, the amount of any allowance made in respect of that expenditure under subsection (1) or (2) of section 765 , reduced by any amount treated as a trading receipt in accordance with section 765 (3)(a).
(b) Notwithstanding anything in subsection (3), in no case shall the amount on which a balancing charge is made on a person exceed the aggregate of the following amounts—
(i) the amount of the initial allowance, if any, made to the person in respect of the expenditure in question,
(ii) the amount of any wear and tear allowance made to the person in respect of the machinery or plant in question,
(iii) the amount of any scientific research allowance made to the person in respect of the expenditure, and
(iv) the amount of any balancing allowance previously made to the person in respect of the expenditure.
(5) (a) Where the aggregate amount of initial allowances and wear and tear allowances made to any person in respect of any machinery or plant exceeds the actual amount of the expenditure incurred by that person on the provision of that machinery or plant, the amount of such excess (in this paragraph referred to as “the excess amount”) shall, on the occurrence of an event within paragraph (a), (b), (c) or (d) of subsection (1), be deemed to be a payment of an equal amount received by that person on account of sale, insurance, salvage or compensation moneys and shall be added to any other such moneys received in respect of that machinery or plant, and a balancing charge shall be made and the amount on which it is made shall be an amount equal to—
(i) where there are no sale, insurance, salvage or compensation moneys, the excess amount, or
(ii) where there are sale, insurance, salvage or compensation moneys, the aggregate of such moneys and the excess amount.
(b) Where as respects any machinery or plant an event within paragraph (a), (b), (c) or (d) of subsection (1) is followed by another event within any of those paragraphs, any balancing allowance or balancing charge made to or on the person by virtue of the happening of the later event shall take account of any balancing allowance or balancing charge previously made to or on that person in respect of the expenditure incurred by the person on the provision of that machinery or plant.
(6) (a) Where—
(i) the sale, insurance, salvage or compensation moneys consist of a payment or payments to a person under the scheme for compensation in respect of the decommissioning of fishing vessels implemented by the Minister for the Marine and Natural Resources in accordance with Council Regulation (EC) No. 3699/93 of 21 December 1993, 1 and
(ii) on account of the receipt by the person of such payment or payments, a balancing charge is to be made on the person for any chargeable period other than by virtue of paragraph (b),
then, the amount on which the balancing charge is to be made for that chargeable period shall be an amount equal to one-third of the amount (in this subsection referred to as “the original amount”) on which the balancing charge would but for this subsection have been made.
(b) Notwithstanding paragraph (a), there shall be made on the person for each of the 2 immediately succeeding chargeable periods a balancing charge, and the amount on which that charge is made for each of those periods shall be an amount equal to one-third of the original amount.
1O.J. No. L 346, 31.12.1993, p.1.
num: 289
paragraphs: —(1) In this section, “open-market price”, in relation to any machinery or plant, means the price which the machinery or plant would have fetched if sold in the open market at the time of the event in question.
(2) Where—
(a) an event occurs which gives rise or might give rise to a balancing allowance or balancing charge in respect of machinery or plant,
(b) the event is the permanent discontinuance of a trade, and
(c) at or about the time of the discontinuance there occurs in relation to the machinery or plant any event mentioned in paragraphs (a) to (c) of section 318 , not being a sale at less than open-market price other than a sale to which section 312 applies,
then, for the purpose of determining—
(i) whether the discontinuance gives rise to a balancing allowance or balancing charge, and, if so,
(ii) the amount of the allowance or, as the case may be, the amount on which the charge is to be made,
the amount of the net proceeds, compensation, receipts or insurance moneys mentioned in paragraphs (a) to (c) of section 318 which arise on the last-mentioned event shall be deemed to be an amount of sale, insurance, salvage or compensation moneys arising on the permanent discontinuance of the trade.
(3) (a) Subject to subsections (4) and (6), paragraph (b) shall apply where an event occurs which gives rise or might give rise to a balancing allowance or balancing charge in respect of machinery or plant, and—
(i) the event is the permanent discontinuance of the trade and immediately after the time of the discontinuance the machinery or plant continues to belong to the person by whom the trade was carried on immediately before that time and the case is not one within subsection (2),
(ii) the event is the permanent discontinuance of the trade and at the time of the discontinuance the machinery or plant is either sold at less than the open-market price, the sale not being one to which section 312 applies, or the machinery or plant is given away,
(iii) the event is the sale of the machinery or plant at less than the open-market price, not being a sale to which section 312 applies, or is the gift of the machinery or plant, or
(iv) the event is that, after the setting up and before the permanent discontinuance of the trade, the machinery or plant permanently ceases to be used for the purposes of a trade carried on by the person by whom the first-mentioned trade is being carried on, and so ceases either by reason of that person's transferring the machinery or plant to other use or, on a transfer of the trade which is not treated as involving a discontinuance of the trade, by reason of the retention of the machinery or plant by the transferor.
(b) For the purpose of determining whether a balancing allowance or balancing charge is to be made and, if so, the amount of the allowance or, as the case may be, the amount on which the charge is to be made, the event shall be treated as if it had given rise to sale, insurance, salvage or compensation moneys of an amount equal to the open-market price of the machinery or plant.
num: 290
paragraphs: —Where machinery or plant, in the case of which any of the events mentioned in section 288 (1) has occurred, is replaced by the owner of the machinery or plant and a balancing charge is to be made on that owner by reason of that event, or but for this section a balancing charge would have been made on that owner by reason of that event, then, if by notice in writing to the inspector that owner so elects, the following provisions shall apply:
(a) if the amount on which the charge would have been made is greater than the capital expenditure on providing the new machinery or plant—
(i) the charge shall be made only on an amount equal to the difference,
(ii) no initial allowance, no balancing allowance and no wear and tear allowance shall be made in respect of the new machinery or plant or the expenditure on the provision of the new machinery or plant, and
(iii) in considering whether any, and if so what, balancing charge is to be made in respect of the expenditure on the new machinery or plant, there shall be deemed to have been made in respect of that expenditure an initial allowance equal to the full amount of that expenditure;
(b) if the capital expenditure on providing the new machinery or plant is equal to or greater than the amount on which the charge would have been made—
(i) the charge shall not be made,
(ii) the amount of any initial allowance in respect of that expenditure and the amount of any wear and tear allowance shall be calculated as if the expenditure had been reduced by the amount on which the charge would have been made, and
(iii) in considering whether any, and if so what, balancing allowance or balancing charge is to be made in respect of the new machinery or plant, there shall be deemed to have been granted in respect of the new machinery or plant an initial allowance equal to the amount on which the charge would have been made, in addition to any initial allowance actually granted in respect of the new machinery or plant.
num: 291
paragraphs: —(1) Where a person carrying on a trade incurs capital expenditure in acquiring for the purposes of the trade a right to use or otherwise deal with computer software, then, for the purposes of this Chapter and Chapter 4 of this Part—
(a) the right and the software to which the right relates shall be treated as machinery or plant,
(b) such machinery or plant shall be treated as having been provided for the purposes of the trade, and
(c) for so long as the person is entitled to the right, that machinery or plant shall be treated as belonging to that person.
(2) In any case where—
(a) a person carrying on a trade incurs capital expenditure on the provision of computer software for the purposes of the trade, and
(b) in consequence of the person incurring that expenditure, the computer software belongs to that person but does not constitute machinery or plant,
then, for the purposes of this Chapter and Chapter 4 of this Part, the computer software shall be treated as machinery or plant.
num: 292
paragraphs: —References in this Chapter to the amount still unallowed as at any time of any expenditure on the provision of machinery or plant shall be construed as references to the amount of that expenditure less—
(a) any initial allowance made or deemed under this Chapter to have been made in respect of that expenditure to the person who incurred the expenditure,
(b) any wear and tear allowances made or deemed under this Chapter to have been made to that person in respect of the machinery or plant on the provision of which the expenditure was incurred, being allowances made for any chargeable period such that the chargeable period or its basis period ended before the time in question,
(c) any scientific research allowance (within the meaning of section 288 (4)(a)) made to that person in respect of the expenditure, and
(d) any balancing allowance made to that person in respect of the expenditure.
num: 293
paragraphs: —(1) (a) Where, after the setting up and on or before the permanent discontinuance of a trade which at any time is carried on in partnership, any event occurs which gives rise or may give rise to a balancing allowance or balancing charge in respect of machinery or plant—
(i) any balancing allowance or balancing charge which, if the trade had at all times been carried on by one and the same person, would have been made to or on that person in respect of that machinery or plant by reason of that event shall, subject to section 1010 , be made to or on the person or persons carrying on the trade in the chargeable period related to that event (in this paragraph referred to as “the relevant person or persons”), and
(ii) the amount of any such allowance or charge shall be computed as if the relevant person or persons had at all times been carrying on the trade and as if everything done to or by the predecessors of the relevant person or persons in the carrying on of the trade had been done to or by the relevant person or persons.
(b) Notwithstanding paragraph (a), in applying section 288 (4) to any balancing charge to be made in accordance with that paragraph, the allowances made in respect of the machinery or plant for the year beginning on the 6th day of April, 1959, or for any earlier year of assessment shall not be taken to include allowances made to, or attributable to the shares of, persons who were not, either alone or in partnership with other persons, carrying on the trade at the beginning of the year beginning on the 6th day of April, 1959.
(2) (a) In this subsection, “several trade” has the meaning assigned to it by section 1008 .
(b) In taxing the several trade of any partner in a partnership, the same allowances and charges shall be made in respect of machinery or plant used for the purposes of that trade, and belonging to one or more of the partners but not being partnership property, as would be made if the machinery or plant had at all material times belonged to all the partners and been partnership property and everything done by or to any of the partners in relation to the machinery or plant had been done by or to all the partners.
(3) Notwithstanding section 288 , a sale or gift of machinery or plant used for the purposes of a trade carried on in partnership, being a sale or gift by one or more of the partners to one or more of the partners, shall not be treated as an event giving rise to a balancing allowance or balancing charge if the machinery or plant continues to be used after the sale or gift for the purposes of that trade.
(4) References in subsections (2) and (3) to use for the purposes of a trade do not include references to use in pursuance of a letting by the partner or partners in question to the partnership or to use in consideration of the making to the partner or partners in question of any payment which may be deducted in computing under section 1008 (3) the profits or gains of the trade.
num: 294
paragraphs: —Where an event occurs which gives rise or might give rise to a balancing allowance or balancing charge to or on any person and the machinery or plant concerned is machinery or plant which—
(a) has been used by that person for the purposes of a trade carried on by that person and, in relation to machinery or plant provided for use for the purposes of a trade on or after the 1st day of April, 1990, while so used, was used wholly and exclusively for those purposes, and
(b) has also been used for other purposes,
then, in determining the amount of the allowance or, as the case may be, the amount on which the charge is to be made, regard shall be had to all the relevant circumstances and in particular to the extent of the use for those other purposes, and there shall be made to or on that person an allowance of such an amount or a charge on such an amount, as the case may be, as may be just and reasonable.
num: 295
paragraphs: —Where a person succeeds to a trade as a beneficiary under the will or on the intestacy of a deceased person who carried on that trade, the following provisions shall, if the beneficiary by notice in writing to the inspector so elects, apply in relation to any machinery or plant previously owned by the deceased person and used by the deceased person for the purposes of that trade:
(a) the reference in section 313 to the price which the machinery or plant would have fetched if sold in the open market shall, in relation to the succession and any previous succession occurring on or after the death of the deceased, be deemed to be a reference to that price or the amount of the expenditure on the provision of the machinery or plant still unallowed immediately before the succession in question, whichever is the lower, and
(b) notwithstanding anything in that section, such balancing charge, if any, shall be made on the beneficiary on any event occurring after the succession as would have been made on the deceased if he or she had not died and had continued to own the machinery or plant and had done all such things and been allowed all such allowances in connection with the machinery or plant as were done by or allowed to the beneficiary or the successor on any previous succession mentioned in paragraph (a).
num: 296
paragraphs: —(1) In determining whether any, and if so what, balancing allowance or balancing charge is to be made to or on any person for any chargeable period in taxing a trade, there shall be deemed to have been made to that person, for every previous chargeable period in which the machinery or plant belonged to that person and which is a chargeable period to be taken into account for the purpose of this section, such wear and tear allowance or greater wear and tear allowance, if any, in respect of the machinery or plant as would have been made to that person if all the conditions specified in subsection (3) had been fulfilled in relation to every such previous chargeable period.
(2) There shall be taken into account for the purposes of this section every previous chargeable period in which the machinery or plant belonged to the person and—
(a) during which the machinery or plant was not used by the person for the purposes of the trade,
(b) during which the trade was not carried on by the person,
(c) during which the trade was carried on by the person in such circumstances that, otherwise than by virtue of Chapter I of Part XXV of the Income Tax Act, 1967 , or Part V of the Corporation Tax Act, 1976 , the full amount of the profits or gains of the trade was not liable to be charged to tax,
(d) for which the whole or a part of the tax chargeable in respect of the profits of the trade was not payable by virtue of Chapter II of Part XXV of the Income Tax Act, 1967 , or
(e) for which the tax payable in respect of the profits of the trade was reduced by virtue of Chapter III or IV of Part XXV of the Income Tax Act, 1967 , or Part IV of the Corporation Tax Act, 1976 .
(3) The conditions referred to in subsection (1) are—
(a) that the trade had been carried on by the person in question since the date on which that person acquired the machinery or plant and had been so carried on by that person in such circumstances that the full amount of the profits or gains of the trade was liable to be charged to tax,
(b) that the trade had at no time consisted wholly or partly of exempted trading operations within the meaning of Chapter I of Part XXV of the Income Tax Act, 1967 , or Part V of the Corporation Tax Act, 1976 ,
(c) that the machinery or plant had been used by that person solely for the purposes of the trade since that date, and
(d) that a proper claim had been duly made by that person for wear and tear allowance in respect of the machinery or plant for every relevant chargeable period.
(4) In the case of a company (within the meaning of section 4 (1)), subsection (3)(a) shall not alter the periods which are to be taken as chargeable periods but, if during any time after the 5th day of April, 1976, and after the company acquired the machinery or plant, the company has not been within the charge to corporation tax, any year of assessment or part of a year of assessment falling within that time shall be taken as a chargeable period as if it had been an accounting period of the company.
(5) Nothing in this section shall affect section 288 (4).
num: 297
paragraphs: —(1) Where—
(a) an event occurs which gives rise or might give rise to a balancing allowance or balancing charge to or on any person in respect of any machinery or plant provided or used by that person for the purposes of a trade, and
(b) any sums which—
(i) are in respect of, or take account of, the wear and tear to the machinery or plant occasioned by its use for the purposes of the trade, and
(ii) do not fall to be taken into account as that person's income or in computing the profits or gains of any trade carried on by that person,
have been paid, or are to be payable, to that person directly or indirectly,
then, in determining whether any and, if so, what balancing allowance or balancing charge is to be made to or on that person, there shall be deemed to have been made to that person for the chargeable period related to the event a wear and tear allowance in respect of the machinery or plant of an amount equal to the total amount of those sums.
(2) Nothing in this section shall affect section 288 (4).
num: 298
paragraphs: —(1) Where machinery or plant is let on such terms that the burden of the wear and tear of the machinery or plant falls directly on the lessor, the lessor shall be entitled, on making a claim to the inspector within 24 months after the end of the chargeable period, to—
(a) an initial allowance under section 283 , and
(b) a wear and tear allowance under section 284 ,
in relation to the machinery or plant, equal to the amount which might have been allowed if during the period of the letting the machinery or plant were in use for the purposes of a trade carried on by the lessor.
(2) Where machinery or plant is let on such terms as are referred to in subsection (1), the preceding provisions of this Chapter, in so far as they relate to balancing allowances and balancing charges, shall apply in relation to the lessor as if the machinery or plant were, during the term of the letting, in use for the purposes of a trade carried on by the lessor.
num: 299
paragraphs: —(1) Where machinery or plant is let to the person by whom the trade is carried on, on the terms of that person being bound to maintain the machinery or plant and deliver it over in good condition at the end of the lease, and if the burden of the wear and tear of the machinery or plant will in fact fall directly on that person, then, for the purposes of sections 283 and 284 , the capital expenditure on the provision of the machinery or plant shall be deemed to have been incurred by that person and the machinery or plant shall be deemed to belong to that person.
(2) Subsection (2) of section 285 shall not apply to qualifying machinery or plant (within the meaning of that section) which is let to a person on the terms mentioned in subsection (1), unless the contract of letting provides that the person shall or may become the owner of the machinery or plant on the performance of the contract, and, where the contract so provides but without becoming the owner of the machinery or plant the person ceases to be entitled (otherwise than on his or her death) to the benefit of the contract in so far as it relates to the machinery or plant, subsection (2) of section 285 shall be deemed not to have applied in relation to the machinery or plant and accordingly there shall be made all such additional assessments and adjustments of assessments as may be appropriate.
num: 300
paragraphs: —(1) Any allowance or charge made to or on any person under the preceding provisions of this Chapter shall, unless it is made under or by virtue of section 298 , be made to or on that person in taxing such person's trade.
(2) Any initial allowance or wear and tear allowance made under or by virtue of section 298 (1) or any balancing allowance made under or by virtue of section 298 (2) shall be made by means of discharge or repayment of tax, and shall be available primarily against income from the letting of machinery or plant.
num: 301
paragraphs: —(1) The preceding provisions of this Chapter (other than sections 283 , 285 and 286 ) shall, with any necessary modifications, apply in relation to professions, employments and offices as they apply in relation to trades.
(2) Sections 283 and 285 shall, with any necessary modifications, apply in relation to professions as they apply in relation to trades.
num: 302
paragraphs: —(1) In this Chapter—
“dredging” does not include things done otherwise than in the interests of navigation, but (subject to that) includes the removal of anything forming part of or projecting from the bed of the sea or of any inland water, by whatever means it is removed and whether or not at the time of removal it is wholly or partly above water, and also includes the widening of an inland waterway in the interests of navigation;
“qualifying trade” means any trade or undertaking which, or a part of which, complies with either of the following conditions—
(a) that it consists of the maintenance or improvement of the navigation of a harbour, estuary or waterway, or
(b) that it is for a purpose set out in section 268 (1),
but, where part only of a trade or undertaking complies with paragraph (a) or (b), section 303 (5) shall apply as if the part which does and the part which does not so comply were separate trades.
(2) For the purposes of this Chapter, the first relevant chargeable period, in relation to expenditure incurred by any person, shall be the chargeable period related to the following event or occasion—
(a) the incurring of the expenditure, or
(b) in the case of expenditure for which allowances are to be made by virtue of section 303 (6), the occasion when that person first both carries on the trade or part of the trade for the purposes of which the expenditure was incurred, and occupies for the purposes of that trade or part of the trade the dock or other premises in connection with which the expenditure was incurred.
num: 303
paragraphs: —(1) (a) Subject to this section, where for the purposes of any qualifying trade carried on by a person the person incurs capital expenditure on dredging, and either the trade consists of the maintenance or improvement of the navigation of a harbour, estuary or waterway or the dredging is for the benefit of vessels coming to, leaving or using any dock or other premises occupied by the person for the purposes of the trade, then—
(i) an initial allowance equal to 10 per cent of the expenditure shall be made for the first relevant chargeable period to the person incurring the expenditure, and
(ii) writing-down allowances shall be made in respect of that expenditure to the person for the time being carrying on the trade during a writing-down period of 50 years beginning with the first relevant chargeable period; but, where a writing-down allowance is to be made for a year of assessment to such a person and such person is within the charge to income tax in respect of the trade for part only of that year, that part shall be treated as a separate chargeable period for the purposes of computing allowances under this section.
(b) This subsection shall not apply to any expenditure incurred before the 30th day of September, 1956.
(2) Where the trade is permanently discontinued in any chargeable period, then, for that chargeable period there shall be made to the person last carrying on the trade, in addition to any other allowance made to that person, an allowance equal to the amount of the expenditure less the allowances made in respect of the expenditure under subsection (1) for that and previous chargeable periods.
(3) For the purposes of this section, a trade shall not be treated by virtue of the Income Tax Acts as discontinued on a change in the persons engaged in carrying it on.
(4) Any allowance under this section shall be made in taxing the trade.
(5) Where expenditure is incurred partly for the purposes of a qualifying trade and partly for other purposes, subsection (1) shall apply to so much only of that expenditure as on a just apportionment ought fairly to be treated as incurred for the purposes of that trade.
(6) Where a person incurs capital expenditure for the purposes of a trade or part of a trade not yet carried on by the person but with a view to carrying it on, or incurs capital expenditure in connection with a dock or other premises not yet occupied by the person for the purposes of a qualifying trade but with a view to so occupying the dock or premises, subsections (1) to (5) shall apply as if the person had been carrying on the trade or part of the trade or occupying the dock or premises for the purposes of the qualifying trade, as the case may be, at the time when the expenditure was incurred.
(7) Where a person contributes a capital sum to expenditure on dredging incurred by another person, the person shall for the purposes of this section be treated as incurring capital expenditure on that dredging equal to the amount of the contribution, and the capital expenditure incurred by the other person on that dredging shall for those purposes be deemed to be reduced by the amount of the contribution.
(8) No allowance shall be made by virtue of this section in respect of any expenditure if for the same or any other chargeable period an allowance is or can be made in respect of that expenditure under Chapter 1 of this Part.
(9) Notwithstanding any other provision of this section, in determining the allowances to be made under this section in any particular case, there shall be deemed to have been made in that case all such allowances (other than initial allowances) as could have been made if this section had always applied.
num: 304
paragraphs: —(1) This section and section 305 shall apply as respects allowances and charges which are to be made under this Part as it applies for the purposes of income tax.
(2) Any claim by a person for an allowance under this Part in charging profits or gains of any description shall be included in the annual statement required to be delivered under the Income Tax Acts of those profits or gains, and the allowance shall be made as a deduction in charging those profits or gains.
(3) (a) A claim for an industrial building allowance under section 271 shall be accompanied by a certificate signed by the claimant (which shall be deemed to form part of the claim) stating that the expenditure was incurred on the construction of an industrial building or structure and giving such particulars as show that the allowance is to be made.
(b) A claim for an initial allowance under section 283 shall be accompanied by a certificate signed by the claimant (which shall be deemed to form part of the claim) stating that the expenditure was incurred on new machinery or new plant and giving such particulars as show that the allowance is to be made.
(4) Subject to section 278 (2), where full effect cannot be given in any year to any allowance to be made under this Part in taxing a trade owing to there being no profits or gains chargeable for that year, or owing to the profits or gains chargeable being less than the allowance, then, the allowance or part of the allowance to which effect has not been given, as the case may be, shall, for the purpose of making the assessment to income tax for the following year, be added to the amount of the allowances to be made under this Part in taxing the trade for that following year, and be deemed to be part of those allowances, or, if there is no such allowance for that following year, be deemed to be the allowance for that following year, and so on for succeeding years.
num: 305
paragraphs: —(1) (a) Where under this Part an allowance is to be made to a person for any year of assessment which is to be given by means of discharge or repayment of tax, and is to be available or available primarily against a specified class of income, the amount of the allowance shall be deducted from or set off against the person's income of that class for that year of assessment and, if the amount to be allowed is greater than the amount of the person's income of that class for that year of assessment, the balance shall be deducted from or set off against the person's income of that class for the next year of assessment, and so on for subsequent years of assessment, and tax shall be discharged or repaid accordingly.
(b) Notwithstanding paragraph (a), where an allowance referred to in that paragraph is available primarily against income of the specified class and the amount of the allowance is greater than the amount of the person's income of that class for the first-mentioned year of assessment, the person may, by notice in writing given to the inspector not later than 2 years after the end of the year of assessment, elect that the excess shall be deducted from or set off against the person's other income for that year of assessment, and it shall be deducted from or set off against that income and tax shall be discharged or repaid accordingly and only the excess, if any, of the amount of the allowance over all the person's income for that year of assessment shall be deducted from or set off against the person's income of the specified class for succeeding years.
(2) Any claim for an allowance mentioned in subsection (1) shall be made to and determined by the inspector, but any person aggrieved by any decision of the inspector on any such claim may, on giving notice in writing to the inspector within 21 days after the notification to that person of the decision, appeal to the Appeal Commissioners.
(3) The Appeal Commissioners shall hear and determine an appeal to them under subsection (2) as if it were an appeal against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
(4) Where any person, for the purpose of obtaining for that person or any other person any relief from or repayment of tax in respect of an allowance mentioned in subsection (1), knowingly makes any false statement or false representation, that person shall be liable to a penalty of £500.
num: 306
paragraphs: —(1) In this Part, as it applies for income tax purposes, “basis period” has the meaning assigned to it by this section.
num: 307
paragraphs: —(1) In computing for the purposes of corporation tax a company's profits for any accounting period, there shall be made in accordance with this section and section 308 all such deductions and additions as are required to give effect to the provisions of the Tax Acts which relate to allowances (including investment allowances) and charges in respect of capital expenditure, and subsection (2) and section 308 shall apply as respects allowances and charges which are to be made under those provisions as they apply for the purposes of corporation tax.
(2) (a) Allowances and charges to be made for any accounting period in taxing a trade shall be given effect by treating the amount of any allowance as a trading expense of the trade in that period and by treating the amount on which any such charge is to be made as a trading receipt of the trade in that period.
(b) (i) A company to which an industrial building allowance under section 271 , an initial allowance under section 283 or an initial allowance under section 303 (1)(a) is to be made in taxing a trade for any accounting period may disclaim the allowance by notice in writing given to the inspector not later than 2 years after the end of that period.
(ii) Any such notice shall be accompanied by a certificate signed by the person by whom the notice is given giving such particulars as show that the allowance would be made if no such notice were given and the amount which would be so made.
(iii) Where notice is given under subparagraph (i) for any accounting period, the inspector may make an assessment to corporation tax on the company for that accounting period on the amount or the further amount which in the inspector's opinion ought to be charged.
num: 308
paragraphs: —(1) Where an allowance is to be made to a company for any accounting period which is to be given by discharge or repayment of tax or in charging its income under Case V of Schedule D, and is to be available primarily against a specified class of income, it shall, as far as may be, be given effect by deducting the amount of the allowance from any income of the period, being income of the specified class.
num: 309
paragraphs: —Where a company not resident in the State is within the charge to corporation tax in respect of one source of income and to income tax in respect of another source, then, in applying—
(a) this Part,
(b) section 374 ,
(c) sections 658 and 660 ,
(d) sections 670 and 672 to 678 ,
(e) sections 764 and 765 ,
(f) section 769 , and
(g) any other provision of the Tax Acts relating to the making of allowances or charges under or in accordance with the provisions referred to in paragraphs (a) to (f),
allowances relating to any source of income shall be given effect against income chargeable to the same tax as is chargeable on income from that source.
num: 310
paragraphs: —(1) In this section—
“approved scheme” means a scheme undertaken by a local authority with the approval of the Minister for the Environment and Local Government which has as its object or among its objects the treatment of trade effluents;
“trade effluents” means liquid or other matter discharged into public sewers from premises occupied for the purposes of a trade.
(2) Where a person, for the purposes of a trade carried on or to be carried on by the person, contributes a capital sum to expenditure by a local authority on the provision of an asset to be used for the purposes of an approved scheme, in so far as the scheme relates to the treatment of trade effluents, then, such allowances, if any, shall be made to the person under section 271 , 272 , 283 or 284 as would have been made to the person if the contribution had been expenditure on the provision for the purposes of that trade of a similar asset and that asset had continued at all material times to be in use for the purposes of the trade.
(3) The following provisions shall apply in relation to a transfer of a trade or part of a trade for the purposes of which a contribution referred to in subsection (2) was made:
(a) where the transfer is of the whole trade, allowances which, if the transfer had not taken place, would have been made to the transferor under section 272 or 284 for chargeable periods ending after the date of the transfer shall be made to the transferee and shall not be made to the transferor;
(b) where the transfer is of part only of the trade, paragraph (a) shall apply in relation to so much of the allowance as is properly referable to the part of the trade transferred.
num: 311
paragraphs: —(1) (a) Any reference in this Part to the sale of any property includes a reference to the sale of that property together with any other property and, where property is sold together with other property, so much of the net proceeds of the sale of the whole property as on a just apportionment is properly attributable to the first-mentioned property shall for the purposes of this Part be deemed to be the net proceeds of the sale of the first-mentioned property, and references to expenditure incurred on the provision or the purchase of property shall be construed accordingly.
(b) For the purposes of this subsection, all the property which is sold in pursuance of one bargain shall be deemed to be sold together, notwithstanding that separate prices are, or purport to be, agreed for separate items of that property or that there are, or purport to be, separate sales of separate items of that property.
(2) Subsection (1) shall, with the necessary modifications, apply in relation to other sale, insurance, salvage or compensation moneys as it applies in relation to the net proceeds of sales.
(3) This Part shall apply as if any reference in this Part to the sale of any property included a reference to the exchange of any property and, in the case of a leasehold interest, also included a reference to the surrender of that interest for valuable consideration, and any provisions of this Part referring to the sales shall apply accordingly with the necessary modifications and in particular with the modifications that references to the net proceeds of sale and to the price shall be taken to include references to the consideration for the exchange or surrender, and references to capital sums included in the price shall be taken to include references to so much of the consideration as would have been a capital sum if the consideration had taken the form of a money payment.
(4) This section shall, with the necessary modifications, apply in relation to Chapter 1 of Part 24 and sections 764 and 765 as if that Chapter and those sections were contained in this Part.
num: 312
paragraphs: —(1) In this section, “control”, in relation to a body corporate, means the power of a person to secure—
(a) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate, or
(b) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate,
that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person and, in relation to a partnership, means the right to a share of more than 50 per cent of the assets, or of more than 50 per cent of the income, of the partnership.
(2) (a) This section shall apply in relation to sales of any property where either—
(i) the buyer is a body of persons over whom the seller has control, or the seller is a body of persons over whom the buyer has control, or both the seller and the buyer are bodies of persons and some other person has control over both of them, or
(ii) it appears with respect to the sale, or with respect to transactions of which the sale is one, that the sole or main benefit which apart from this section might have been expected to accrue to the parties or any of them was the obtaining of an allowance under this Part or under Chapter 1 of Part 24 or section 764 or 765 .
(b) References in this subsection to a body of persons include references to a partnership.
(3) Where the property is sold at a price other than the price it would have fetched if sold in the open market, then, subject to subsections (4) and (5), the like consequences shall ensue for the purposes of the enactments mentioned in subsection (2), in their application to the tax of all persons concerned, as would have ensued if the property had been sold for the price it would have fetched if sold in the open market.
(4) (a) Subject to paragraph (b), where the sale is a sale of machinery or plant—
(i) no initial allowance shall be made to the buyer, and
(ii) subject to subsection (5), if the price which the property would have fetched if sold in the open market is greater than the amount which, for the purpose of determining whether any, and if so, what, balancing charge should be made on the seller in respect of the property under Chapter 2 of this Part, would be taken to be the amount of the capital expenditure incurred by the seller on the provision of the property, subsection (3) shall apply as if for each of the references to the price which the property would have fetched if sold in the open market there were substituted a reference to that amount.
(b) This subsection shall not apply in relation to a sale of machinery or plant which was never used if the business or part of the business of the seller was the manufacture or supply of machinery or plant of that class and the sale was effected in the ordinary course of the seller's business.
(5) (a) Subject to subsection (6), where the sale is one to which subsection (2)(a)(i) applies and subsection (2)(a)(ii) does not apply, and the parties to the sale by notice in writing to the inspector so elect, the following provisions shall apply:
(i) subsection (3) shall apply as if for each of the references to the price which the property would have fetched if sold in the open market there were substituted a reference to that price or to the sum mentioned in paragraph (b), whichever is the lower;
(ii) subsection (4)(a)(ii) shall not apply;
(iii) notwithstanding anything in the preceding provisions of this section, such balancing charge, if any, shall be made on the buyer on any event occurring after the date of the sale as would have been made on the seller if the seller had continued to own the property and had done all such things and been allowed all such allowances or deductions in connection with the property as were done by or allowed to the buyer.
(b) The sum referred to in paragraph (a)(i) is—
(i) in the case of an industrial building or structure, the residue of the expenditure on the construction of that building or structure immediately before the sale, computed in accordance with section 277 , and
(ii) in the case of machinery or plant, the amount of the expenditure on the provision of the machinery or plant still unallowed immediately before the sale, computed in accordance with section 292 .
(6) (a) An election under subsection (5)(a) may not be made if—
(i) any of the parties to the sale is not resident in the State at the time of the sale, and
(ii) the circumstances are not at that time such that an allowance or charge under this Part is to be or might be made to or on that party in consequence of the sale.
(b) Except where referred to in paragraph (a), this section shall apply in relation to a sale notwithstanding that it is not fully applicable by reason of the non-residence of a party to the sale or otherwise.
num: 313
paragraphs: —(1) Where a person succeeds to any trade or profession which until that time was carried on by another person and by virtue of section 69 the trade or profession is to be treated as discontinued, any property which, immediately before the succession takes place, was in use for the purposes of the discontinued trade or profession and without being sold is, immediately after the succession takes place, in use for the purposes of the new trade or profession shall for the purposes of this Part be treated as if it had been sold to the successor when the succession takes place and as if the net proceeds of that sale had been the price which that property would have fetched if sold in the open market.
(2) Where, after the setting up and before the permanent discontinuance of a trade or profession which at any time is carried on in partnership anything is done for the purposes of that trade or profession, any allowance or charge which, if the trade or profession had at all times been carried on by one and the same person, would have been made to or on that person under this Part shall, subject to section 1010 , be made to or on the person or persons from time to time carrying on that trade or profession (in this subsection referred to as “the relevant person or persons”), and the amount of any such allowance or charge shall be computed as if the relevant person or persons had at all times been carrying on the trade or profession and as if everything done to or by the predecessors of the relevant person or persons in the carrying on of that trade or profession had been done to or by the relevant person or persons.
(3) In relation to machinery or plant, this section shall apply subject to Chapter 2 of this Part in so far as that Chapter relates to balancing allowances and balancing charges.
num: 314
paragraphs: —(1) Where under or by virtue of this Part any sum is to be apportioned and at the time of the apportionment it appears that it is material as respects the liability to tax (for whatever chargeable period) of 2 or more persons, any question which arises as to the manner in which the sum is to be apportioned shall be determined, for the purposes of the tax of all those persons, by the Appeal Commissioners in the like manner as if it were an appeal against an assessment to income tax under Schedule D, and the provisions of the Income Tax Acts relating to such an appeal shall apply accordingly with any necessary modifications, and all those persons shall be entitled to appear and be heard by the Appeal Commissioners or to make representations to them in writing.
(2) This section shall apply in relation to any determination for the purposes of this Part of the price which property would have fetched if sold in the open market as it applies in relation to apportionments.
num: 315
paragraphs: —(1) Where an event occurs which gives rise, or would but for this section give rise, to a balancing allowance or balancing charge in respect of any property to or on a company in relation to which a certificate under section 374 (2) of the Income Tax Act, 1967 , or section 70 (2) of the Corporation Tax Act, 1976 , has been given, then, whether the certificate is still in force or not, this section shall apply.
(2) Where the property has been used by the company exclusively for the purposes of its exempted trading operations within the meaning of Chapter I of Part XXV of the Income Tax Act, 1967 , or Part V of the Corporation Tax Act, 1976 , no balancing allowance or balancing charge shall be made.
(3) Where the property has been used partly for the purposes of the company's exempted trading operations and partly for the purposes of its other trading operations, regard shall be had to all the relevant circumstances of the case and there shall be made to or on the company an allowance of such an amount, or, as the case may be, a charge on such an amount, as may be just and reasonable.
num: 316
paragraphs: —(1) References in this Part to capital expenditure and capital sums—
(a) in relation to the person incurring the expenditure or paying the sums, do not include any expenditure or sum allowed to be deducted in computing for the purposes of tax the profits or gains of a trade, profession, office or employment carried on or held by that person, and
(b) in relation to the person receiving the amounts expended or the sums in question, do not include references to any amounts or sums which are to be taken into account as receipts in computing the profits or gains of any trade, profession, office or employment carried on or held by that person,
and do not include, in relation to any person referred to in paragraphs (a) and (b), any expenditure or sum in the case of which a deduction of tax is to be or may be made under section 237 or 238 .
(2) Any reference in this Part to the date on which expenditure is incurred shall be construed as a reference to the date when the sums in question become payable; but, for the purposes of section 284 , this subsection shall apply only in respect of machinery and plant provided for use for the purposes of a trade on or after the 6th day of April 1996.
(3) For the purposes of sections 271 and 283 , any expenditure incurred for the purposes of a trade by a person about to carry on the trade shall be treated as if it had been incurred by that person on the first day on which that person carries on the trade.
num: 317
paragraphs: —(1) In this section—
“food processing trade” means a trade which consists of or includes the manufacture of processed food;
“processed food” means goods manufactured in the State in the course of a trade by a company, being goods which—
(a) are intended for human consumption as a food, and
(b) have been manufactured by a process involving the use of machinery or plant whereby the goods produced by the application of that process differ substantially in form and value from the materials to which the process has been applied and whereby, without prejudice to the generality of the foregoing, the process does not consist primarily of—
(i) the acceleration, retardation, alteration or application of a natural process, or
(ii) the application of methods of preservation, pasteurisation or any similar treatment;
“qualifying machinery or plant” means machinery or plant used solely in the course of a process of manufacture whereby processed food is produced.
(2) Subject to subsection (3), expenditure shall not be regarded for any of the purposes of this Part, other than sections 283 and 284 , as having been incurred by a person in so far as the expenditure has been or is to be met directly or indirectly—
(a) in relation to expenditure incurred before the 6th day of May, 1993, by the State, by any board established by statute or by any public or local authority, and
(b) in relation to expenditure incurred on or after the 6th day of May, 1993, by the State or by any person other than the first-mentioned person.
(3) (a) Subject to paragraph (b) and subsection (4), where an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under section 283 or 284 and the capital expenditure incurred on the provision of the machinery or plant in respect of which the allowance is to be made was incurred on or after the 29th day of January, 1986, the following provisions shall apply:
(i) expenditure shall not be regarded as having been incurred by a person in so far as the expenditure has been or is to be met directly or indirectly—
(I) in relation to expenditure incurred before the 6th day of May, 1993, by the State, by any board established by statute or by any public or local authority, and
(II) in relation to expenditure incurred on or after the 6th day of May, 1993, by the State or by any person other than the first-mentioned person, and
(ii) the actual cost of any machinery or plant to any person shall for the purposes of section 284 be taken to be the amount of capital expenditure incurred on the provision of such machinery or plant less any expenditure referred to in subparagraph (i).
(b) Paragraph (a) shall not apply in relation to any capital expenditure which is met or is to be met in the manner mentioned in paragraph (a)(i)—
(i) under the terms of an agreement finally approved on or before the 29th day of January, 1986, by a Department of State, any board established by statute or any public or local authority, or
(ii) under the terms of an agreement which—
(I) was the subject of negotiations which were in progress on the 29th day of January, 1986, with a Department of State, any board established by statute or any public or local authority, and
(II) was finally approved by such Department, board or authority not later than the 31st day of December, 1986.
(4) (a) Subsection (3) shall not apply where an allowance is to be made under section 283 or 284 in taxing a food processing trade carried on by a company and the capital expenditure in respect of which the allowance is to be made was incurred by that company and was so incurred in respect of qualifying machinery or plant.
(b) The reference in paragraph (a) to expenditure incurred by a company shall not include any expenditure which it is deemed to have incurred in accordance with section 299 .
num: 318
paragraphs: —In this Part, except where the context otherwise requires, “sale, insurance, salvage or compensation moneys”, in relation to an event which gives rise or might give rise to a balancing allowance or a balancing charge to or on any person, means—
(a) where the event is a sale of any property, including the sale of a right to use or otherwise deal in machinery or plant consisting of computer software, the net proceeds to that person of the sale,
(b) where the event is the demolition or destruction of any property, the net amount received by that person for the remains of the property, together with any insurance moneys received by that person in respect of the demolition or destruction and any other compensation of any description received by that person in respect of the demolition or destruction, in so far as that compensation consists of capital sums,
(c) as respects machinery or plant, where the event is the permanent loss of the machinery or plant otherwise than in consequence of its demolition or destruction, any insurance moneys received by that person in respect of any loss and any other compensation of any description received by that person in respect of that loss, in so far as that compensation consists of capital sums, and
(d) where the event is that a building or structure ceases altogether to be used, any compensation of any description received by that person in respect of that event, in so far as that compensation consists of capital sums.
num: 319
paragraphs: —(1) In computing any deduction, allowance or relief for the purposes of—
(a) this Part,
(b) sections 658 and 659 ,
(c) Chapter 1 of Part 24 , or
(d) sections 764 , 765 and 769 ,
the cost to a person of any machinery or plant, or the amount of any expenditure incurred by a person, shall not take account of any amount included in such cost or expenditure for value-added tax in respect of which the person may claim—
(i) a deduction under section 12 of the Value-Added Tax Act, 1972 , or
(ii) a refund of value-added tax under an order under section 20(3) of that Act.
(2) In calculating for the purposes of this Part the amount of sale, insurance, salvage or compensation moneys to be taken into account in computing a balancing allowance or balancing charge to be made to or on a person, no account shall be taken of the amount of value-added tax (if any) chargeable to the person in respect of those moneys.
num: 320
paragraphs: —(1) In this Part, except where the context otherwise requires—
“income” includes any amount on which a charge to tax is authorised to be made under this Part;
“lease” includes an agreement for a lease where the term to be covered by the lease has begun, and any tenancy, but does not include a mortgage, and “lessee”, “lessor” and “leasehold interest” shall be construed accordingly.
(2) Any reference in this Part to any building, structure, machinery or plant shall be construed as including a reference to a part of any building, structure, machinery or plant except, in relation to a building or structure, where the reference is comprised in a reference to the whole of a building or structure.
(3) This Part shall apply in relation to a share in machinery or plant as it applies in relation to a part of machinery or plant and, for the purposes of this Part, a share in machinery or plant shall be deemed to be used for the purposes of a trade only so long as the machinery or plant is used for the purposes of the trade.
(4) Any reference in this Part to the time of any sale shall be construed as a reference to the time of completion or the time when possession is given, whichever is the earlier.
(5) Any reference in this Part to the setting up or permanent discontinuance of a trade includes, except where the contrary is expressly provided, a reference to the occurring of any event which under any provision of the Income Tax Acts is to be treated as equivalent to the setting up or permanent discontinuance of a trade.
(6) Any reference in this Part to an allowance made includes a reference to an allowance which would be made but for an insufficiency of profits or gains, or other income, against which to make the allowance.
num: 321
paragraphs: —(1) Subsections (2) to (7) shall apply for the interpretation of—
(a) this Part,
(b) section 374 ,
(c) sections 658 to 660 ,
(d) Chapter 1 of Part 24 ,
(e) sections 764 and 765 ,
(f) section 769 , and
(g) any other provision of the Tax Acts relating to the making of allowances or charges under or in accordance with the provisions referred to in paragraphs (a) to (f).
(2) “Chargeable period” means an accounting period of a company or a year of assessment, and—
(a) a reference to a chargeable period or its basis period is a reference to the chargeable period if it is an accounting period and to the basis period for it if it is a year of assessment;
(b) a reference to a chargeable period related to expenditure, or a sale or other event, is a reference to the chargeable period in which, or to that in the basis period for which, the expenditure is incurred or the sale or other event takes place, and means the latter only if the chargeable period is a year of assessment.
(3) References to tax for a chargeable period shall be construed in relation to corporation tax as referring to the tax for any financial year which is chargeable in respect of that period.
(4) A reference to allowances or charges being made in taxing a trade is a reference to their being made in computing the trading income for corporation tax or in charging the profits or gains of the trade to income tax.
(5) (a) Where it is provided that writing-down allowances shall be made in respect of any expenditure during a writing-down period of a specified length, there shall for any chargeable period wholly or partly comprised in the writing-down period be made an allowance equal to the appropriate fraction of the expenditure and, subject to any provision to the contrary, the appropriate fraction shall be such fraction of the writing-down period as falls within the chargeable period.
(b) Notwithstanding paragraph (a), the aggregate amount of the writing-down allowances made, whether to the same or to different persons, together with the amount of any initial allowance (but not of any investment allowance), shall not exceed the amount of the expenditure.
(6) Where the reference is partly to years of assessment before the year 1976-77—
(a) a writing-down allowance includes an annual allowance, and
(b) an allowance on account of wear and tear of machinery or plant includes a deduction on account of wear and tear of machinery or plant,
in the sense which in the context those expressions had immediately before the commencement of the Corporation Tax Act, 1976 .
(7) Where any enactment referred to in subsection (1) provides for an amount of a writing-down allowance or an allowance on account of wear and tear of machinery or plant to be determined by a fraction or percentage, specified numerically, of any expenditure or other sum, or by reference to a percentage determined or deemed to be determined for a chargeable period of one year, then for a chargeable period of less than a year the fraction or percentage shall be proportionately reduced.
(8) Except where the context otherwise requires, in any provision of the Income Tax Acts not referred to in subsection (1) any reference to an allowance or charge for a year of assessment under a provision referred to in that subsection shall include the like allowance or charge for an accounting period of a company, and any reference to the making of an allowance or charge in charging profits or gains of a trade shall be construed as a reference to making the allowance in taxing a trade.
(9) Any provision of the Income Tax Acts whereby, for the purposes of—
(a) this Part,
(b) section 670 ,
(c) section 764 or 765 ,
(d) section 769 , or
(e) any provision of the Income Tax Acts relating to the making of allowances or charges under or in accordance with the provisions referred to in paragraphs (a) to (d),
a trade is or is not to be treated as permanently discontinued or a new trade as set up and commenced shall apply in the like manner in the case of a trade so treated by virtue of the Corporation Tax Acts.
num: 322
paragraphs: —(1) In this Chapter, but subject to subsection (2)—
num: 323
paragraphs: —(1) In this section, “qualifying premises” means a building or structure the site of which is wholly within the Custom House Docks Area and which—
(a) apart from this section is not an industrial building or structure within the meaning of section 268 (1), and
(b) (i) is in use for the purposes of a trade or profession, or
(ii) whether or not it is so used, is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but does not include any building or structure in use as or as part of a dwelling house.
(2) (a) Subject to subsections (3) to (5), the provisions of the Tax Acts relating to the making of allowances or charges in respect of capital expenditure incurred on the construction of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply—
(i) as if a qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a), and
(ii) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction of a qualifying premises only in so far as that expenditure is incurred in the specified period.
(3) (a) For the purposes of the application, by subsection (2), of sections 271 and 273 in relation to capital expenditure incurred in the specified period on the construction of a qualifying premises—
(i) section 271 shall apply as if—
(I) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(II) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(III) subsections (3) and (5) of that section were deleted, and
(IV) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(ii) section 273 shall apply as if—
(I) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(II) subsections (2)(b) and (3) to (7) of that section were deleted.
(b) Notwithstanding paragraph (a), as respects any capital expenditure incurred on or after the 25th day of January, 1998, on the construction of any qualifying premises—
(i) any allowance made under section 272 and increased under section 273 (2)(a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed 54 per cent of the amount of that expenditure, and
(ii) where any allowance made under section 272 in respect of that expenditure is increased under section 273 for any chargeable period, no allowance shall be made in respect of that expenditure under section 271 .
(4) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying premises was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the qualifying premises was incurred.
(5) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction of a qualifying premises is incurred in the specified period, only such an amount of that capital expenditure as is determined by the inspector, according to the best of the inspector's knowledge and judgment, to be properly attributable to work on the construction of the premises actually carried out during the specified period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period, and any amount which by virtue of this subsection is determined by the inspector may be amended by the Appeal Commissioners or by the Circuit Court on the hearing or the rehearing of an appeal against that determination.
num: 324
paragraphs: —(1) (a) In this section—
“lease”, “lessee”, “lessor” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“market value”, in relation to a building or structure, means the price which the unencumbered fee simple of the building or structure would fetch if sold in the open market in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the building or structure, less the part of that price which would be attributable to the acquisition of, or of rights in or over, the land on which the building or structure is constructed;
“qualifying lease” means, subject to subsection (4), a lease in respect of a qualifying premises granted in the specified period, or within the period of 2 years from the day next after the end of the specified period, on bona fide commercial terms by a lessor to a lessee not connected with the lessor, or with any other person entitled to a rent in respect of the qualifying premises, whether under that lease or any other lease;
“qualifying premises” means a building or structure the site of which is wholly within the Custom House Docks Area and—
(i) (I) which is an industrial building or structure within the meaning of section 268 (1), and in respect of which capital expenditure is incurred in the specified period for which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 , or
(II) in respect of which an allowance is to be made, or, as respects rent payable under a qualifying lease entered into on or after the 18th day of April, 1991, will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 323 , and
(ii) which is let on bona fide commercial terms for such consideration as might be expected to be paid on a letting of the building or structure negotiated on an arm's length basis,
but, as respects rent payable under a qualifying lease entered into on or after the 6th day of May, 1993, where capital expenditure is incurred in the specified period on the refurbishment of a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 , the building or structure shall not be regarded as a qualifying premises unless the total amount of the expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the building or structure immediately before that expenditure is incurred;
“refurbishment”, in relation to a building or structure, means any work of construction, reconstruction, repair or renewal, including the provision or improvement of water, sewerage or heating facilities, carried out in the course of repair or restoration, or maintenance in the nature of repair or restoration, of the building or structure.
(b) For the purposes of this section but subject to paragraph (c), so much of a period, being a period when rent is payable by a person in relation to a qualifying premises under a qualifying lease, shall be a relevant rental period as does not exceed—
(i) 10 years, or
(ii) the period by which 10 years exceeds—
(I) any preceding period, or
(II) if there is more than one preceding period, the aggregate of those periods,
for which rent was payable—
(A) by that person or any other person, or
(B) as respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 11th day of April, 1994, by that person or any person connected with that person,
in relation to that premises under a qualifying lease.
(c) As respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 18th day of April, 1991, “relevant rental period”, in relation to a qualifying premises, means the period of 10 years commencing on the day on which rent in respect of that premises is first payable under any qualifying lease.
(2) Subject to subsection (3), where in the computation of the amount of the profits or gains of a trade or profession a person is apart from this section entitled to any deduction (in this subsection referred to as “the first-mentioned deduction”) on account of rent in respect of a qualifying premises occupied by such person for the purposes of that trade or profession which is payable by such person—
(a) for a relevant rental period, or
(b) as respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 18th day of April, 1991, in the relevant rental period,
in relation to that qualifying premises under a qualifying lease, such person shall be entitled in that computation to a further deduction (in this subsection referred to as “the second-mentioned deduction”) equal to the amount of the first-mentioned deduction but, as respects a qualifying lease granted on or after the 21st day of April, 1997, where the first-mentioned deduction is on account of rent payable by such person to a connected person, such person shall not be entitled in that computation to the second-mentioned deduction.
(3) Where a person holds an interest in a qualifying premises out of which interest a qualifying lease is created directly or indirectly in respect of the qualifying premises and in respect of rent payable under the qualifying lease a claim for a further deduction under this section is made, and such person or, as respects rent payable in relation to any qualifying premises under a qualifying lease entered into on or after the 6th day of May, 1993, either such person or another person connected with such person—
(a) takes under a qualifying lease a qualifying premises (in this subsection referred to as “the second-mentioned premises”) occupied by such person or such other person, as the case may be, for the purposes of a trade or profession, and
(b) is apart from this section entitled, in the computation of the amount of the profits or gains of that trade or profession, to a deduction on account of rent in respect of the second-mentioned premises,
then, unless such person or such other person, as the case may be, shows that the taking on lease of the second-mentioned premises was not undertaken for the sole or main benefit of obtaining a further deduction on account of rent under this section, such person or such other person, as the case may be, shall not be entitled in the computation of the amount of the profits or gains of that trade or profession to any further deduction on account of rent in respect of the second-mentioned premises.
(4) (a) In this subsection—
“current value”, in relation to minimum lease payments, means the value of those payments discounted to their present value at a rate which, when applied at the inception of the lease to—
(i) those payments, including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee, and
(ii) any unguaranteed residual value of the qualifying premises, excluding any part of such value for which the lessor will be accountable to the lessee,
produces discounted present values the aggregate amount of which equals the amount of the fair value of the qualifying premises;
“fair value”, in relation to a qualifying premises, means an amount equal to such consideration as might be expected to be paid for the premises on a sale negotiated on an arm's length basis less any grants receivable towards the purchase of the qualifying premises;
“inception of the lease” means the earlier of the time the qualifying premises is brought into use or the date from which rentals under the lease first accrue;
“minimum lease payments” means the minimum payments over the remaining part of the term of the lease to be paid to the lessor, and includes any residual amount to be paid to the lessor at the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee;
“unguaranteed residual value”, in relation to a qualifying premises, means that part of the residual value of that premises at the end of a term of a lease, as estimated at the inception of the lease, the realisation of which by the lessor is not assured or is guaranteed solely by a person connected with the lessor.
(b) A finance lease, that is—
(i) a lease in respect of a qualifying premises where, at the inception of the lease, the aggregate of the current value of the minimum lease payments (including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee) payable by the lessee in relation to the lease amounts to 90 per cent or more of the fair value of the qualifying premises, or
(ii) a lease which in all the circumstances is considered to provide in substance for the lessee the risks and benefits associated with ownership of the qualifying premises other than legal title to that premises,
shall not be a qualifying lease for the purposes of this section.
num: 325
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 329 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the relevant cost of the house;
“qualifying period” means the period commencing on the 30th day of January, 1991, and ending on the last day of the specified period;
“qualifying premises” means, subject to subsections (3), (4)(a) and (5) of section 329 , a house in the Custom House Docks Area—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost, the amount specified in which in respect of the cost of construction of the house is not less than the expenditure actually incurred on such construction, and
(d) which without having been used is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant cost”, in relation to a house, means, subject to subsection (3), an amount equal to the aggregate of—
(a) the expenditure incurred on the acquisition of, or of rights in or over, any land on which the house is constructed, and
(b) the expenditure actually incurred on the construction of the house;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred expenditure on the construction of a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of that expenditure as is to be treated under section 329 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the expenditure to be treated as having been incurred in the qualifying period on the construction of the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the expenditure actually incurred on the construction of the qualifying premises which is to be treated under section 329 (7) as having been incurred in the qualifying period bears to the whole of the expenditure incurred on that construction.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary—
(a) of the expenditure incurred on the construction of that building or those buildings, and
(b) of the amount which would be the relevant cost in relation to that building or those buildings if the building or buildings, as the case may be, were a single qualifying premises,
for the purposes of determining the expenditure incurred on the construction of the qualifying premises and the relevant cost in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of expenditure incurred on the construction of the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) (a) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of expenditure on the construction of the house equal to the amount which under section 329 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period on the construction of the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed the relevant price paid by such person on the purchase.
(b) For the purposes of this subsection and subsection (7), the relevant price paid by a person on the purchase of a house shall be the amount which bears to the net price paid by such person on that purchase the same proportion as the amount of the expenditure actually incurred on the construction of the house which is to be treated under section 329 (7) as having been incurred in the qualifying period bears to the relevant cost in relation to that house.
(7) (a) Subject to paragraph (b), where expenditure is incurred on the construction of a house and before the house is used it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the lesser of—
(i) the amount of such expenditure which is to be treated under section 329 (7) as having been incurred in the qualifying period, and
(ii) the relevant price paid by such person on the purchase;
but, where the house is sold more than once before it is used, this subsection shall apply only in relation to the last of those sales.
(b) Where expenditure is incurred on the construction of a house by a person carrying on a trade or part of a trade which consists, as to the whole or any part of that trade, of the construction of buildings with a view to their sale and the house, before it is used, is sold in the course of that trade or, as the case may be, that part of that trade—
(i) the person (in this paragraph referred to as “the purchaser”) who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the relevant price paid by the purchaser on the purchase (in this paragraph referred to as “the first purchase”), and
(ii) in relation to any subsequent sale or sales of the house before the house is used, paragraph (a) shall apply as if the reference to the amount of expenditure which is to be treated as having been incurred in the qualifying period were a reference to the relevant price paid on the first purchase.
(8) Section 329 shall apply for the purposes of supplementing this section.
num: 326
paragraphs: —(1) In this section—
“conversion expenditure” means, subject to subsection (2), expenditure incurred on—
(a) the conversion into a house of a building in the Custom House Docks Area which has not been previously in use as a dwelling, and
(b) the conversion into 2 or more houses of a building in the Custom House Docks Area which before the conversion had not been in use as a dwelling or had been in use as a single dwelling,
and references in this section and in section 329 to “conversion”, “conversion into a house” and “expenditure incurred on conversion” shall be construed accordingly;
“qualifying lease”, in relation to a house, means, subject to section 329 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the market value of the house at the time the conversion is completed and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house at the time the conversion is completed shall for the purposes of this paragraph be taken to be an amount which bears to the market value of the building at that time the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying period” means the period commencing on the 30th day of January, 1991, and ending on the last day of the specified period;
“qualifying premises” means, subject to subsections (3), (4)(b) and (5) of section 329 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 26th day of January, 1994, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of conversion in relation to the house is not less than the expenditure actually incurred on such conversion, and
(d) which without having been used subsequent to the incurring of the expenditure on the conversion is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) For the purposes of this section, expenditure incurred on the conversion of a building shall be deemed to include expenditure incurred in the course of the conversion on either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
in relation to the building or any outoffice appurtenant to or usually enjoyed with the building, but shall not be deemed to include—
(i) any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts, or
(ii) any expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the conversion is not a house.
(3) For the purposes of subsection (2)(ii), where expenditure is attributable to a building in general and not directly to any particular house or non-residential unit comprised in the building on completion of the conversion, such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building.
(4) Subject to subsection (5), where a person, having made a claim in that behalf, proves to have incurred conversion expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 329 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(5) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the conversion expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (4) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the conversion expenditure actually incurred in relation to the qualifying premises which is to be treated under section 329 (7) as having been incurred in the qualifying period bears to the whole of the conversion expenditure incurred in relation to the qualifying premises.
(6) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the conversion of that building or those buildings for the purposes of determining the conversion expenditure incurred in relation to the qualifying premises.
(7) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (4) in respect of conversion expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(8) Where the event mentioned in subsection (7)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of conversion expenditure in relation to the house equal to the amount of the conversion expenditure which under section 329 (7) or under this section (apart from subsection (5)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 329 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house.
(9) Where conversion expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period conversion expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 329 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 329 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the conversion expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(10) This section shall not apply in the case of a conversion unless planning permission in respect of the conversion has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(11) Section 329 shall apply for the purposes of supplementing this section.
num: 327
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 329 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium—
(i) which is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or which, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment, and
(ii) which does not exceed 10 per cent of the market value of the house on the date of completion of the refurbishment to which the relevant expenditure relates and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house on that date shall for the purposes of this subparagraph be taken to be an amount which bears to the market value of the building on that date the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying period” means the period commencing on the 30th day of January, 1991, and ending on the last day of the specified period;
“qualifying premises” means, subject to subsections (3), (4)(b) and (5) of section 329 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 26th day of January, 1994, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of refurbishment in relation to the house is not less than the relevant expenditure actually incurred on such refurbishment, and
(d) which on the date of completion of the refurbishment to which the relevant expenditure relates is let (or, if not let on that date, is, without having been used after that date, first let) in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“refurbishment”, in relation to a building, means either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
where the carrying out of such works or the provision of such facilities is certified by the Minister for the Environment and Local Government, in any certificate of reasonable cost granted by that Minister in relation to any house contained in the building, to have been necessary for the purposes of ensuring the suitability as a dwelling of any house in the building and whether or not the number of houses in the building, or the shape or size of any such house, is altered in the course of such refurbishment;
“relevant expenditure” means expenditure incurred on the refurbishment of a specified building, other than expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the refurbishment is not a house, and for the purposes of this definition where expenditure is attributable to the specified building in general (and not directly to any particular house or non-residential unit comprised in the building on completion of the refurbishment), such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the completion of the refurbishment to which the relevant expenditure relates or, if the premises was not let under a qualifying lease on that date, the period of 10 years beginning on the date of the first such letting after the date of such completion;
“specified building” means a building in the Custom House Docks Area—
(a) in which before the refurbishment to which the relevant expenditure relates there are 2 or more houses, and
(b) which on completion of that refurbishment contains (whether in addition to any non-residential unit or not) 2 or more houses.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred relevant expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 329 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which—
(i) is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor, and
(ii) is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the relevant expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the relevant expenditure actually incurred in relation to the qualifying premises which is to be treated under section 329 (7) as having been incurred in the qualifying period bears to the whole of the relevant expenditure incurred in relation to the qualifying premises.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the relevant expenditure incurred on that building or those buildings for the purposes of determining the relevant expenditure incurred in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of relevant expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of relevant expenditure in relation to the house equal to the amount of the relevant expenditure which under section 329 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 329 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house.
(7) Where relevant expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period relevant expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 329 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 329 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the relevant expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(8) This section shall not apply in the case of any refurbishment unless planning permission, in so far as it is required, in respect of the work carried out in the course of the refurbishment has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(9) Expenditure in respect of which a person is entitled to relief under this section shall not include any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts.
(10) Section 329 shall apply for the purposes of supplementing this section.
num: 328
paragraphs: —(1) In this section—
“qualifying expenditure”, in relation to an individual, means an amount equal to the amount of the expenditure incurred by the individual in the specified period on the construction or, as the case may be, refurbishment of a qualifying premises which is a qualifying owner-occupied dwelling in relation to the individual after deducting from that amount of expenditure any sum in respect of or by reference to—
(a) that expenditure,
(b) the qualifying premises, or
(c) the construction or, as the case may be, refurbishment work in respect of which that expenditure was incurred,
which the individual has received or is entitled to receive, directly or indirectly, from the State, any board established by statute or any public or local authority;
“qualifying owner-occupied dwelling”, in relation to an individual, means a qualifying premises the site of which is wholly within the Custom House Docks Area and which is first used, after the qualifying expenditure has been incurred, by the individual as his or her only or main residence;
“qualifying premises”, in relation to the incurring of qualifying expenditure, means, subject to subsections (4) and (5) of section 329 , a house—
(a) which is used solely as a dwelling,
(b) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of construction or, as the case may be, refurbishment of the house is not less than the expenditure actually incurred on such construction or refurbishment, as the case may be, and
(c) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, on the construction of a house, and expenditure incurred before the 26th day of January, 1994, on the refurbishment of a house, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres;
“refurbishment” has the same meaning as in section 327 .
(2) Where an individual, having made a claim in that behalf, proves to have incurred qualifying expenditure in a year of assessment, the individual shall be entitled, for that year of assessment and for any of the 9 subsequent years of assessment in which the qualifying premises in respect of which the individual incurred the qualifying expenditure is the only or main residence of the individual, to have a deduction made from his or her total income of an amount equal to—
(a) 5 per cent of the amount of that expenditure, or
(b) in the case where the qualifying expenditure has been incurred on or after the 26th day of January, 1994, on the refurbishment of the qualifying premises, 10 per cent of the amount of that expenditure.
(3) (a) Where the qualifying expenditure in relation to a qualifying premises is incurred by 2 or more persons, each of those persons shall be treated as having incurred only such amount of the expenditure as the inspector, to the best of his or her knowledge and judgment, considers to be just and reasonable, and the expenditure shall be apportioned accordingly.
(b) An apportionment made under paragraph (a) may be amended by the Appeal Commissioners or by the Circuit Court on the hearing or rehearing of an appeal against any deduction granted on the basis of the apportionment.
(4) Section 329 shall apply for the purposes of supplementing this section.
num: 329
paragraphs: —(1) In sections 325 to 328 —
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 325 , 326 , 327 or 328 , as the case may be, stating that the amount specified in the certificate in relation to the cost of construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“lease”, “lessee”, “lessor” and “premium” have the same meanings respectively as in Chapter 8 of Part 4 ;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) A lease shall not be a qualifying lease for the purposes of section 325 , 326 or 327 if the terms of the lease contain any provision enabling the lessee or any other person, directly or indirectly, at any time to acquire any interest in the house to which the lease relates for a consideration less than that which might be expected to be given at that time for the acquisition of the interest if the negotiations for that acquisition were conducted in the open market at arm's length.
(3) A house shall not be a qualifying premises for the purposes of section 325 , 326 or 327 if—
(a) it is occupied as a dwelling by any person connected with the person entitled, in relation to the expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the house, to a deduction under section 325 (2), 326 (4) or 327 (2), as the case may be, and
(b) the terms of the qualifying lease in relation to the house are not such as might have been expected to be included in the lease if the negotiations for the lease had been at arm's length.
(4) (a) A house shall not be a qualifying premises for the purposes of section 325 or, in so far as it applies to expenditure other than expenditure on refurbishment, section 328 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 326 or 327 or, in so far as it applies to expenditure on refurbishment, section 328 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(5) A house shall not be a qualifying premises for the purposes of section 325 , 326 , 327 or 328 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of those sections are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(6) For the purposes of sections 325 to 328 , references in those sections to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
(7) (a) For the purposes of determining, in relation to any claim under section 325 (2), 326 (4), 327 (2) or 328 (2), as the case may be, whether and to what extent expenditure incurred on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises is incurred or not incurred during the qualifying period or, as the case may be, during the specified period, only such an amount of that expenditure as is determined by the inspector, according to the best of his or her knowledge and judgment, to be properly attributable to work on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the premises which was actually carried out during the qualifying period or, as the case may be, during the specified period shall be treated as having been incurred during that period.
(b) Where by virtue of subsection (6) expenditure on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the qualifying premises were references to the development of such land.
(c) Any amount which by virtue of paragraph (a) or (b) is determined by the inspector may be amended by the Appeal Commissioners or by the Circuit Court on the hearing or the rehearing of an appeal against that determination.
(8) (a) Any apportionment required by section 325 (4), 326 (6) or 327 (4) shall be made by the inspector according to the best of his or her knowledge and judgment.
(b) Any apportionment made under section 325 (4), 326 (6) or 327 (4) may be amended by the Appeal Commissioners or by the Circuit Court on the hearing or the rehearing of an appeal against any deduction granted on the basis of the apportionment.
(9) (a) For the purposes of sections 325 and 326 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction of, or, as the case may be, conversion into, a qualifying premises shall be deemed to have been incurred on the date of the first letting of the premises under a qualifying lease.
(b) For the purposes of section 327 other than the purposes mentioned in subsection (7)(a), relevant expenditure incurred in relation to the refurbishment of a qualifying premises shall be deemed to have been incurred on the date of the commencement of the relevant period in relation to the premises, determined as respects the refurbishment to which the relevant expenditure relates.
(c) For the purposes of section 328 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction or refurbishment of a qualifying premises shall be deemed to have been incurred on the earliest date after the expenditure was actually incurred on which the premises is in use as a dwelling.
(10) For the purposes of sections 326 and 327 , expenditure shall not be regarded as incurred by a person in so far as it has been or is to be met, directly or indirectly, by the State, by any board established by statute or by any public or local authority.
(11) Section 555 shall apply as if a deduction under section 325 (2), 326 (4) or 327 (2), as the case may be, were a capital allowance and as if any rent deemed to have been received by a person under section 325 (5), 326 (7) or 327 (5), as the case may be, were a balancing charge.
(12) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 325 , 326 , 327 or 328 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 330
paragraphs: —(1) In this Chapter—
“qualifying period” means the period commencing on the 6th day of April, 1991, and ending on the 5th day of April, 1999, but, for the purposes of sections 334 to 336 , “qualifying period” means the period commencing on the 30th day of January, 1991, and ending on the 5th day of April, 1999;
“refurbishment” means any work of construction, reconstruction, repair or renewal, including the provision or improvement of water, sewerage or heating facilities, carried out in the course of repair or restoration, or maintenance in the nature of repair or restoration, of a building or structure, which is consistent with the original character or fabric of the building or structure;
num: 331
paragraphs: —(1) This section shall apply to a building or structure—
(a) which is—
(i) constructed in the Temple Bar Area in the qualifying period, or
(ii) an existing building or structure in the Temple Bar Area as on the 1st day of January, 1991, and is the subject of refurbishment in the qualifying period,
and
(b) which is to be an industrial building or structure by reason of its use for a purpose specified in paragraph (a) or (d) of section 268 (1).
(2) Section 271 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(c) subsections (3) and (5) of that section were deleted, and
(d) (i) in the case where the capital expenditure is incurred on the construction of the building or structure, the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 25 per cent of the capital expenditure mentioned in subsection (2).”,
and
(ii) in the case where the capital expenditure is incurred on the refurbishment of the building or structure, the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”.
(3) Section 273 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies—
(a) in the case where the capital expenditure is incurred on the construction of the building or structure as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) the following paragraph were substituted for paragraph (b) of subsection (2) of that section:
“(b) As respects any qualifying expenditure, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed 50 per cent of the amount of that qualifying expenditure.”,
and
(iii) subsections (3) to (7) of that section were deleted,
and
(b) in the case where the capital expenditure is incurred on the refurbishment of the building or structure as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(ii) subsections (2)(b) and (3) to (7) of that section were deleted.
(4) For the purposes of this section, where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure to which this section applies, such expenditure shall be deemed to include the lesser of—
(a) any expenditure incurred on the purchase of the building or structure, other than expenditure incurred on the acquisition of, or of rights in or over, any land, and
(b) an amount which is equal to the value of the building or structure on the 1st day of January, 1991, other than any amount of such value as is attributable to, or to rights in or over, any land,
if the expenditure referred to in paragraph (a) or the amount referred to in paragraph (b), as the case may be, is not greater than the amount of the capital expenditure actually incurred in the qualifying period on the refurbishment of the building or structure.
(5) Notwithstanding section 274 (1), in the case of a building or structure to which this section applies by reason of its use for a purpose specified in section 268 (1)(a), no balancing charge shall be made by reason of any of the events specified in section 274 (1) which occurs—
(a) more than 13 years after the building or structure was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the building or structure was incurred.
(6) For the purposes only of determining, in relation to a claim for an allowance under section 271 or 273 as applied by this section, whether and to what extent capital expenditure incurred on the construction or refurbishment of an industrial building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or, as the case may be, refurbishment of the building or structure actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period; but nothing in this subsection shall affect the operation of subsection (4).
(7) Where, in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies, any allowance or charge has been made under the provisions of the Tax Acts relating to the making of allowances and charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure by virtue of section 42 of the Finance Act, 1986 , as applied by section 55 of the Finance Act, 1991 , that allowance or charge shall be deemed to have been made under those provisions by virtue of this section.
num: 332
paragraphs: —(1) In this section—
“multi-storey car park” means a building or structure consisting of 3 or more storeys wholly or mainly in use for the purpose of providing, for members of the public generally without preference for any particular class of person, on payment of an appropriate charge, parking space for mechanically propelled vehicles;
“qualifying premises” means a building or structure which—
(a) (i) is constructed in the Temple Bar Area in the qualifying period, or
(ii) is an existing building or structure in the Temple Bar Area as on the 1st day of January, 1991, and is the subject of refurbishment in the qualifying period,
(b) apart from this section is not an industrial building or structure within the meaning of section 268 , and
(c) (i) is in use for the purposes of a trade or profession, or
(ii) whether or not it is so used, is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but does not include any part of a building or structure in use as or as part of a dwelling house.
(2) (a) Subject to subsections (3) to (8), the provisions of the Tax Acts relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply—
(i) as if a qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a), and
(ii) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises only in so far as that expenditure is incurred in the qualifying period.
(3) Section 271 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(c) subsections (3) and (5) of that section were deleted, and
(d) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”.
(4) Section 273 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(b) subsections (2)(b) and (3) to (7) of that section were deleted.
(5) For the purposes of this section, where capital expenditure is incurred in the qualifying period on the refurbishment of a qualifying premises, such expenditure shall be deemed to include the lesser of—
(a) any expenditure incurred on the purchase of the building or structure, other than expenditure incurred on the acquisition of, or of rights in or over, any land, and
(b) an amount which is equal to the value of the building or structure as on the 1st day of January, 1991, other than any amount of such value as is attributable to, or to rights in or over, any land,
if the expenditure referred to in paragraph (a) or the amount referred to in paragraph (b), as the case may be, is not greater than the amount of the capital expenditure actually incurred in the qualifying period on the refurbishment of the qualifying premises.
(6) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying premises was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the qualifying premises was incurred.
(7) (a) Notwithstanding subsections (2) to (4), any allowance or charge which apart from this subsection would be made by virtue of subsection (2) in respect of capital expenditure incurred on the construction of a qualifying premises, other than a qualifying premises which is a multi-storey car park, shall be reduced to one-half of the amount which apart from this subsection would be the amount of that allowance or charge.
(b) For the purposes of paragraph (a), the amount of an allowance or charge to be reduced to one-half shall be computed as if—
(i) this subsection had not been enacted, and
(ii) effect had been given to all allowances taken into account in so computing that amount.
(c) Nothing in this subsection shall affect the operation of section 274 (8).
(8) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying premises is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or, as the case may be, refurbishment of the premises actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period; but nothing in this subsection shall affect the operation of subsection (5).
(9) Where, in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises, any allowance or charge has been made under the provisions of the Tax Acts relating to the making of allowances and charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure by virtue of section 42 of the Finance Act, 1986 , as applied by section 55 of the Finance Act, 1991 , that allowance or charge shall be deemed to have been made under those provisions by virtue of this section.
num: 333
paragraphs: —(1) (a) In this section—
“lease”, “lessee”, “lessor” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“market value”, in relation to a building or structure, means the price which the unencumbered fee simple of the building or structure would fetch if sold in the open market in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the building or structure, less the part of that price which would be attributable to the acquisition of, or of rights in or over, the land on which the building or structure is constructed;
“qualifying lease” means, subject to subsection (4), a lease in respect of a qualifying premises granted in the qualifying period, or within the period of 2 years from the day next after the end of the qualifying period, on bona fide commercial terms by a lessor to a lessee not connected with the lessor, or with any other person entitled to a rent in respect of the qualifying premises, whether under that lease or any other lease;
“qualifying premises” means a building or structure in the Temple Bar Area—
(i) (I) which is an industrial building or structure within the meaning of section 268 (1), and in respect of which capital expenditure is incurred in the qualifying period for which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 , or
(II) in respect of which an allowance is to be made, or, as respects rent payable under a qualifying lease entered into on or after the 18th day of April, 1991, will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 332 , and
(ii) which is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but, as respects rent payable under a qualifying lease entered into on or after the 6th day of May, 1993, where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 , the building or structure shall not be regarded as a qualifying premises unless the total amount of the expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(b) For the purposes of this section but subject to paragraph (c), so much of a period, being a period when rent is payable by a person in relation to a qualifying premises under a qualifying lease, shall be a relevant rental period as does not exceed—
(i) 10 years, or
(ii) the period by which 10 years exceeds—
(I) any preceding period, or
(II) if there is more than one preceding period, the aggregate of those periods,
for which rent was payable—
(A) by that person or any other person, or
(B) as respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 11th day of April, 1994, by that person or any person connected with that person,
in relation to that premises under a qualifying lease.
(c) As respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 18th day of April, 1991, “relevant rental period”, in relation to a qualifying premises, means the period of 10 years commencing on the day on which rent in respect of that premises is first payable under any qualifying lease.
(2) Subject to subsection (3), where in the computation of the amount of the profits or gains of a trade or profession a person is apart from this section entitled to any deduction (in this subsection referred to as “the first-mentioned deduction”) on account of rent in respect of a qualifying premises occupied by such person for the purposes of that trade or profession which is payable by such person—
(a) for a relevant rental period, or
(b) as respects rent payable in relation to any qualifying premises under a qualifying lease entered into before the 18th day of April, 1991, in the relevant rental period,
in relation to that qualifying premises under a qualifying lease, such person shall be entitled in that computation to a further deduction (in this subsection referred to as “the second-mentioned deduction”) equal to the amount of the first-mentioned deduction but, as respects a qualifying lease granted on or after the 21st day of April, 1997, where the first-mentioned deduction is on account of rent payable by such person to a connected person, such person shall not be entitled in that computation to the second-mentioned deduction.
(3) Where a person holds an interest in a qualifying premises out of which interest a qualifying lease is created directly or indirectly in respect of that qualifying premises and in respect of rent payable under the qualifying lease a claim for a further deduction under this section is made, and such person or, as respects rent payable in relation to any qualifying premises under a qualifying lease entered into on or after the 6th day of May, 1993, either such person or another person connected with such person—
(a) takes under a qualifying lease a qualifying premises (in this subsection referred to as “the second-mentioned premises”) occupied by such person or such other person, as the case may be, for the purposes of a trade or profession, and
(b) is apart from this section entitled, in the computation of the amount of the profits or gains of that trade or profession, to a deduction on account of rent in respect of the second-mentioned premises,
then, unless such person or such other person, as the case may be, shows that the taking on lease of the second-mentioned premises was not undertaken for the sole or main benefit of obtaining a further deduction on account of rent under this section, such person or such other person, as the case may be, shall not be entitled in the computation of the amount of the profits or gains of that trade or profession to any further deduction on account of rent in respect of the second-mentioned premises.
(4) (a) In this subsection—
“current value”, in relation to minimum lease payments, means the value of those payments discounted to their present value at a rate which, when applied at the inception of the lease to—
(i) those payments, including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee, and
(ii) any unguaranteed residual value of the qualifying premises, excluding any part of such value for which the lessor will be accountable to the lessee,
produces discounted present values the aggregate amount of which equals the amount of the fair value of the qualifying premises;
“fair value”, in relation to a qualifying premises, means an amount equal to such consideration as might be expected to be paid for the premises on a sale negotiated on an arm's length basis less any grants receivable towards the purchase of the qualifying premises;
“inception of the lease” means the earlier of the time the qualifying premises is brought into use or the date from which rentals under the lease first accrue;
“minimum lease payments” means the minimum payments over the remaining part of the term of the lease to be paid to the lessor, and includes any residual amount to be paid to the lessor at the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee;
“unguaranteed residual value”, in relation to a qualifying premises, means that part of the residual value of that premises at the end of a term of a lease, as estimated at the inception of the lease, the realisation of which by the lessor is not assured or is guaranteed solely by a person connected with the lessor.
(b) A finance lease, that is—
(i) a lease in respect of a qualifying premises where, at the inception of the lease, the aggregate of the current value of the minimum lease payments (including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee) payable by the lessee in relation to the lease amounts to 90 per cent or more of the fair value of the qualifying premises, or
(ii) a lease which in all the circumstances is considered to provide in substance for the lessee the risks and benefits associated with ownership of the qualifying premises other than legal title to that premises,
shall not be a qualifying lease for the purposes of this section.
(5) In determining whether a period is a relevant rental period for the purposes of this section, rent payable by any person in relation to a premises in respect of which a further deduction was given under section 45 of the Finance Act, 1986 , as applied by section 55 of the Finance Act, 1991 (or would have been so given but for the operation of paragraph (b) of the proviso to subsection (2) of section 45 of the Finance Act, 1986 ), shall be treated as having been payable by that person in relation to the premises under a qualifying lease.
num: 334
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 338 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the relevant cost of the house;
“qualifying premises” means, subject to subsections (3), (4)(a) and (5) of section 338 , a house in the Temple Bar Area—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost, the amount specified in which in respect of the cost of construction of the house is not less than the expenditure actually incurred on such construction, and
(d) which without having been used is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant cost”, in relation to a house, means, subject to subsection (3), an amount equal to the aggregate of—
(a) the expenditure incurred on the acquisition of, or of rights in or over, any land on which the house is constructed, and
(b) the expenditure actually incurred on the construction of the house;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred expenditure on the construction of a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of that expenditure as is to be treated under section 338 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the expenditure to be treated as having been incurred in the qualifying period on the construction of the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the expenditure actually incurred on the construction of the qualifying premises which is to be treated under section 338 (7) as having been incurred in the qualifying period bears to the whole of the expenditure incurred on that construction.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary—
(a) of the expenditure incurred on the construction of that building or those buildings, and
(b) of the amount which would be the relevant cost in relation to that building or those buildings if the building or buildings, as the case may be, were a single qualifying premises,
for the purposes of determining the expenditure incurred on the construction of the qualifying premises and the relevant cost in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of expenditure incurred on the construction of the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) (a) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of expenditure on the construction of the house equal to the amount which under section 338 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period on the construction of the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed the relevant price paid by such person on the purchase.
(b) For the purposes of this subsection and subsection (7), the relevant price paid by a person on the purchase of a house shall be the amount which bears to the net price paid by such person on that purchase the same proportion as the amount of the expenditure actually incurred on the construction of the house which is to be treated under section 338 (7) as having been incurred in the qualifying period bears to the relevant cost in relation to that house.
(7) (a) Subject to paragraph (b), where expenditure is incurred on the construction of a house and before the house is used it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the lesser of—
(i) the amount of such expenditure which is to be treated under section 338 (7) as having been incurred in the qualifying period, and
(ii) the relevant price paid by such person on the purchase;
but, where the house is sold more than once before it is used, this subsection shall apply only in relation to the last of those sales.
(b) Where expenditure is incurred on the construction of a house by a person carrying on a trade or part of a trade which consists, as to the whole or any part of that trade, of the construction of buildings with a view to their sale and the house, before it is used, is sold in the course of that trade or, as the case may be, that part of that trade—
(i) the person (in this paragraph referred to as “the purchaser”) who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the relevant price paid by the purchaser on the purchase (in this paragraph referred to as “the first purchase”), and
(ii) in relation to any subsequent sale or sales of the house before the house is used, paragraph (a) shall apply as if the reference to the amount of expenditure which is to be treated as having been incurred in the qualifying period were a reference to the relevant price paid on the first purchase.
(8) This section shall apply as if a deduction given to a person under section 23 of the Finance Act, 1981 , as applied by section 56 of the Finance Act, 1991 (in so far as it applied in relation to the Temple Bar Area), were a deduction given to such person under this section in respect of expenditure incurred in the qualifying period on the construction of a qualifying premises.
(9) Section 338 shall apply for the purposes of supplementing this section.
num: 335
paragraphs: —(1) In this section—
“conversion expenditure” means, subject to subsection (2), expenditure incurred on—
(a) refurbishment in the course of the conversion into a house of a building in the Temple Bar Area which has not been previously in use as a dwelling, and
(b) refurbishment in the course of the conversion into 2 or more houses of a building in the Temple Bar Area which before the conversion had not been in use as a dwelling or had been in use as a single dwelling,
and references in this section and in section 338 to “conversion”, “conversion into a house” and “expenditure incurred on conversion” shall be construed accordingly;
“qualifying lease”, in relation to a house, means, subject to section 338 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the market value of the house at the time the conversion is completed and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house at the time the conversion is completed shall for the purposes of this paragraph be taken to be an amount which bears to the market value of the building at that time the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (3), (4)(b) and (5) of section 338 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 26th day of January, 1994, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of conversion in relation to the house is not less than the expenditure actually incurred on such conversion, and
(d) which without having been used subsequent to the incurring of the expenditure on the conversion is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) For the purposes of this section, expenditure incurred on the conversion of a building shall be deemed to include expenditure incurred in the course of the conversion on either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
in relation to the building or any outoffice appurtenant to or usually enjoyed with the building, but shall not be deemed to include—
(i) any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts, or
(ii) any expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the conversion is not a house.
(3) For the purposes of subsection (2)(ii), where expenditure is attributable to a building in general and not directly to any particular house or non-residential unit comprised in the building on completion of the conversion, such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building.
(4) Subject to subsection (5), where a person, having made a claim in that behalf, proves to have incurred conversion expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 338 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(5) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the conversion expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (4) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the conversion expenditure actually incurred in relation to the qualifying premises which is to be treated under section 338 (7) as having been incurred in the qualifying period bears to the whole of the conversion expenditure incurred in relation to the qualifying premises.
(6) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the conversion of that building or those buildings for the purposes of determining the conversion expenditure incurred in relation to the qualifying premises.
(7) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (4) in respect of conversion expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(8) Where the event mentioned in subsection (7)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of conversion expenditure in relation to the house equal to the amount of the conversion expenditure which under section 338 (7) or under this section (apart from subsection (5)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 338 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house.
(9) Where conversion expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period conversion expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 338 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 338 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the conversion expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(10) This section shall not apply in the case of a conversion unless planning permission in respect of the conversion has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(11) This section shall apply as if a deduction given to a person under section 23 of the Finance Act, 1981 , by virtue of section 24 of that Act or section 22 of the Finance Act, 1985 , as respectively applied by sections 56 and 58 of the Finance Act, 1991 (in so far as those sections applied to the Temple Bar Area), were a deduction given to such person under this section in respect of conversion expenditure incurred in the qualifying period in relation to a house which is a qualifying premises.
(12) Section 338 shall apply for the purposes of supplementing this section.
num: 336
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 338 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium—
(i) which is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or which, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment, and
(ii) which does not exceed 10 per cent of the market value of the house on the date of completion of the refurbishment to which the relevant expenditure relates and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house on that date shall for the purposes of this subparagraph be taken to be an amount which bears to the market value of the building on that date the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (3), (4)(b) and (5) of section 338 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 26th day of January, 1994, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of refurbishment in relation to the house is not less than the relevant expenditure actually incurred on such refurbishment, and
(d) which on the date of completion of the refurbishment to which the relevant expenditure relates is let (or, if not let on that date, is, without having been used after that date, first let) in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant expenditure” means expenditure incurred on the refurbishment of a specified building, other than expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the refurbishment is not a house, and for the purposes of this definition where expenditure is attributable to the specified building in general (and not directly to any particular house or non-residential unit comprised in the building on completion of the refurbishment), such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the completion of the refurbishment to which the relevant expenditure relates or, if the premises was not let under a qualifying lease on that date, the period of 10 years beginning on the date of the first such letting after the date of such completion;
“specified building” means a building in the Temple Bar Area—
(a) in which before the refurbishment to which the relevant expenditure relates there are 2 or more houses, and
(b) which on completion of that refurbishment contains (whether in addition to any non-residential unit or not) 2 or more houses.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred relevant expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 338 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which—
(i) is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor, and
(ii) is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the relevant expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the relevant expenditure actually incurred in relation to the qualifying premises which is to be treated under section 338 (7) as having been incurred in the qualifying period bears to the whole of the relevant expenditure incurred in relation to the qualifying premises.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the relevant expenditure incurred on that building or those buildings for the purposes of determining the relevant expenditure incurred in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of relevant expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of relevant expenditure in relation to the house equal to the amount of the relevant expenditure which under section 338 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 338 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house.
(7) Where relevant expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period relevant expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 338 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 338 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the relevant expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(8) This section shall not apply in the case of any refurbishment unless planning permission, in so far as it is required, in respect of the work carried out in the course of the refurbishment has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(9) Expenditure in respect of which a person is entitled to relief under this section shall not include any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts.
(10) This section shall apply as if a deduction given to a person under section 23 of the Finance Act, 1981 , by virtue of section 21 of the Finance Act, 1985 , as applied by section 57 of the Finance Act, 1991 (in so far as that section applied to the Temple Bar Area), were a deduction given to such person under this section in respect of relevant expenditure incurred in the qualifying period in relation to a house which is a qualifying premises.
(11) Section 338 shall apply for the purposes of supplementing this section.
num: 337
paragraphs: —(1) In this section—
“qualifying expenditure”, in relation to an individual, means an amount equal to the amount of the expenditure incurred by the individual in the qualifying period on the construction or, as the case may be, refurbishment of a qualifying premises which is a qualifying owner-occupied dwelling in relation to the individual after deducting from that amount of expenditure any sum in respect of or by reference to—
(a) that expenditure,
(b) the qualifying premises, or
(c) the construction or, as the case may be, refurbishment work in respect of which that expenditure was incurred,
which the individual has received or is entitled to receive, directly or indirectly, from the State, any board established by statute or any public or local authority;
“qualifying owner-occupied dwelling”, in relation to an individual, means a qualifying premises which is wholly within the Temple Bar Area and is first used, after the qualifying expenditure has been incurred, by the individual as his or her only or main residence;
“qualifying premises”, in relation to the incurring of qualifying expenditure, means, subject to subsections (4) and (5) of section 338 , a house—
(a) which is used solely as a dwelling,
(b) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of construction or, as the case may be, refurbishment of the house is not less than the expenditure actually incurred on such construction or refurbishment, as the case may be, and
(c) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, on the construction of a house, and expenditure incurred before the 26th day of January, 1994, on the refurbishment of a house, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres.
(2) Where an individual, having made a claim in that behalf, proves to have incurred qualifying expenditure in a year of assessment, the individual shall be entitled, for that year of assessment and for any of the 9 subsequent years of assessment in which the qualifying premises in respect of which the expenditure was incurred is the only or main residence of the individual, to have a deduction made from his or her total income of an amount equal to—
(a) in the case where the qualifying expenditure has been incurred on the construction of the qualifying premises, 5 per cent of the amount of that expenditure, or
(b) in the case where the qualifying expenditure has been incurred on the refurbishment of the qualifying premises, 10 per cent of the amount of that expenditure.
(3) For the purposes of this section, where qualifying expenditure is incurred in the qualifying period on the refurbishment of a qualifying premises, such expenditure shall be deemed to include the lesser of—
(a) any expenditure incurred on the purchase of the qualifying premises, other than expenditure incurred on the acquisition of, or of rights in or over, any land, and
(b) an amount equal to the value of the qualifying premises as on the 1st day of January, 1991, other than any amount of such value as is attributable to, or to rights in or over, any land,
if the expenditure referred to in paragraph (a) or the amount referred to in paragraph (b), as the case may be, is not greater than the amount of the qualifying expenditure actually incurred in the qualifying period on the refurbishment of the qualifying premises.
(4) Where the qualifying expenditure in relation to a qualifying premises is incurred by 2 or more persons, each of those persons shall be treated as having incurred the expenditure in the proportions in which they actually bore the expenditure, and the expenditure shall be apportioned accordingly.
(5) This section shall apply as if a deduction given to an individual for any year of assessment under section 44 of the Finance Act, 1986 , as applied by section 55 of the Finance Act, 1991 , were a deduction given to the individual under this section in respect of qualifying expenditure.
(6) Section 338 shall apply for the purposes of supplementing this section.
num: 338
paragraphs: —(1) In sections 334 to 337 —
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 334 , 335 , 336 or 337 , as the case may be, stating that the amount specified in the certificate in relation to the cost of construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“lease”, “lessee”, “lessor”, “premium” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) A lease shall not be a qualifying lease for the purposes of section 334 , 335 or 336 if the terms of the lease contain any provision enabling the lessee or any other person, directly or indirectly, at any time to acquire any interest in the house to which the lease relates for a consideration less than that which might be expected to be given at that time for the acquisition of the interest if the negotiations for that acquisition were conducted in the open market at arm's length.
(3) A house shall not be a qualifying premises for the purposes of section 334 , 335 or 336 if—
(a) it is occupied as a dwelling by any person connected with the person entitled, in relation to the expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the house, to a deduction under section 334 (2), 335 (4) or 336 (2), as the case may be, and
(b) the terms of the qualifying lease in relation to the house are not such as might have been expected to be included in the lease if the negotiations for the lease had been at arm's length.
(4) (a) A house shall not be a qualifying premises for the purposes of section 334 or, in so far as it applies to expenditure other than expenditure on refurbishment, section 337 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 335 or 336 or, in so far as it applies to expenditure on refurbishment, section 337 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(5) A house shall not be a qualifying premises for the purposes of section 334 , 335 , 336 or 337 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of those sections are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(6) For the purposes of sections 334 to 337 , references in those sections to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
(7) (a) For the purposes of determining, in relation to any claim under section 334 (2), 335 (4), 336 (2) or 337 (2), as the case may be, whether and to what extent expenditure incurred on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises is incurred or not incurred during the qualifying period, only such an amount of that expenditure as is properly attributable to work on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the premises which was actually carried out during the qualifying period shall be treated as having been incurred during that period.
(b) Where by virtue of subsection (6) expenditure on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the qualifying premises were references to the development of such land.
(c) Nothing in this subsection shall affect the operation of section 337 (3).
(8) (a) For the purposes of sections 334 and 335 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction of, or, as the case may be, conversion into, a qualifying premises shall be deemed to have been incurred on the date of the first letting of the premises under a qualifying lease.
(b) For the purposes of section 336 other than the purposes mentioned in subsection (7)(a), relevant expenditure incurred in relation to the refurbishment of a qualifying premises shall be deemed to have been incurred on the date of the commencement of the relevant period in relation to the premises, determined as respects the refurbishment to which the relevant expenditure relates.
(c) For the purposes of section 337 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction or refurbishment of a qualifying premises shall be deemed to have been incurred on the earliest date after the expenditure was actually incurred on which the premises is in use as a dwelling.
(9) For the purposes of sections 335 and 336 , expenditure shall not be regarded as incurred by a person in so far as it has been or is to be met, directly or indirectly, by the State, by any board established by statute or by any public or local authority.
(10) Section 555 shall apply as if a deduction under section 334 (2), 335 (4) or 336 (2), as the case may be, were a capital allowance and as if any rent deemed to have been received by a person under section 334 (5), 335 (7) or 336 (5), as the case may be, were a balancing charge.
(11) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 334 , 335 , 336 or 337 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 339
paragraphs: —(1) In this Chapter—
“designated area” and “designated street” mean respectively an area or areas or a street or streets specified as a designated area or a designated street, as the case may be, by order under section 340 ;
“enterprise area” means—
(a) an area or areas specified as an enterprise area by order under section 340 , or
num: 340
paragraphs: —(1) The Minister for Finance may, after consultation with the Minister for the Environment and Local Government, by order direct that—
(a) the area or areas, or street or streets, described in the order shall be a designated area, a designated street or, as the case may be, an enterprise area for the purposes of this Chapter, and
(b) as respects any such area or any such street so described, the definition of “qualifying period” in section 339 shall be construed as a reference to such period as shall be specified in the order in relation to that area or, as the case may be, that street; but no such period specified in the order shall commence before the 1st day of August, 1994, or end after the 31st day of July, 1997.
(2) The Minister for Finance may, after consultation with the Minister for Public Enterprise and following receipt of a proposal from or on behalf of a company intending to carry on qualifying trading operations (within the meaning of section 343 ) in an area or areas immediately adjacent to any of the airports commonly known as—
(a) Cork Airport,
(b) Donegal Airport,
(c) Galway Airport,
(d) Kerry Airport,
(e) Knock International Airport,
(f) Sligo Airport, or
(g) Waterford Airport,
being a company which, if those trading operations were to be carried on in an area which apart from this subsection would be an enterprise area, would be a qualifying company (within the meaning of section 343 ), by order direct that—
(i) the area or areas described in the order shall be an enterprise area for the purposes of this Chapter, and
(ii) as respects any such area so described in the order, the reference in paragraph (a) of the definition of “qualifying period” in section 339 (1) to the period commencing on the 1st day of August, 1994, and ending on the 31st day of July, 1997, shall be construed as a reference to such period as shall be specified in the order in relation to that area, but no such period specified in the order shall commence before the 1st day of August, 1994, or end after the 30th day of June, 2000.
(3) Every order made by the Minister for Finance under subsection (1) or (2) shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the order is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 341
paragraphs: —(1) This section shall apply to a building or structure the site of which is wholly within a designated area, or which fronts on to a designated street, and which is to be an industrial building or structure by reason of its use for a purpose specified in section 268 (1)(a).
(2) Subject to subsection (4), section 271 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(c) subsection (3) of that section were deleted,
(d) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 25 per cent of the capital expenditure mentioned in subsection (2).”,
and
(e) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted.
(3) Subject to subsection (4), section 273 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) the following paragraph were substituted for paragraph (b) of subsection (2) of that section:
“(b) As respects any qualifying expenditure, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed 50 per cent of the amount of that qualifying expenditure.”,
and
(c) subsections (3) to (7) of that section were deleted.
(4) (a) In the case of an industrial building or structure which fronts on to a designated street, subsections (2) and (3) shall apply only in relation to capital expenditure incurred in the qualifying period on the refurbishment of the industrial building or structure and only if the following conditions are satisfied—
(i) that the industrial building or structure was comprised in an existing building or structure (in this subsection referred to as “the existing building”) on the 1st day of August, 1994, which fronts on to the designated street, and
(ii) that, apart from the capital expenditure incurred in the qualifying period on the refurbishment of the industrial building or structure, expenditure is incurred on the existing building which is—
(I) conversion expenditure within the meaning of section 347 ,
(II) relevant expenditure within the meaning of section 348 , or
(III) qualifying expenditure within the meaning of section 349 (being qualifying expenditure on refurbishment within the meaning of that section),
and in respect of which a deduction has been given, or would on due claim being made be given, under section 347 , 348 or 349 , as the case may be.
(b) Notwithstanding paragraph (a), subsections (2) and (3) shall not apply in relation to so much (if any) of the capital expenditure incurred in the qualifying period on the refurbishment of the industrial building or structure as exceeds the amount of the deduction, or the aggregate amount of the deductions, which has been given, or which would on due claim being made be given, under section 347 , 348 or 349 , as the case may be, in respect of the conversion expenditure, the relevant expenditure or, as the case may be, the qualifying expenditure.
(5) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a building or structure to which this section applies by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the building or structure was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the building or structure was incurred.
(6) For the purposes only of determining, in relation to a claim for an allowance under section 271 or 273 as applied by this section, whether and to what extent capital expenditure incurred on the construction or refurbishment of an industrial building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or, as the case may be, the refurbishment of the building or structure actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
num: 342
paragraphs: —(1) (a) In this section, “qualifying premises” means a building or structure the site of which is wholly within a designated area, or which fronts on to a designated street, and which—
(i) apart from this section is not an industrial building or structure within the meaning of section 268 , and
(ii) (I) is in use for the purposes of a trade or profession, or
(II) whether or not it is so used, is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but does not include any part of a building or structure in use as or as part of a dwelling house or an office.
(b) Notwithstanding paragraph (a)—
(i) in relation to a building or structure no part of the site of which is within any one of the county boroughs of Dublin, Cork, Limerick, Galway or Waterford, paragraph (a) shall be construed as if “or an office” were deleted;
(ii) where, in relation to a building or structure any part of the site of which is within any one of the county boroughs of Dublin, Cork, Limerick, Galway or Waterford, any part (in this paragraph referred to as “the specified part”) of the building or structure is not a qualifying premises and—
(I) the specified part is in use as, or as part of, an office, and
(II) the capital expenditure incurred in the qualifying period on the construction or refurbishment of the specified part is not more than 10 per cent of the total capital expenditure incurred in that period on the construction or refurbishment of the building or structure,
then, the specified part shall be treated as a qualifying premises.
(2) (a) Subject to subsections (3) to (6), the provisions of the Tax Acts (other than section 341 ) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply—
(i) as if a qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a), and
(ii) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises only in so far as that expenditure is incurred in the qualifying period.
(3) (a) In the case of a qualifying premises which fronts on to a designated street, subsection (2) shall apply only in relation to capital expenditure incurred in the qualifying period on the refurbishment of the qualifying premises and only if the following conditions are satisfied—
(i) that the qualifying premises were comprised in an existing building or structure (in this subsection referred to as “the existing building”) on the 1st day of August, 1994, which fronts on to the designated street, and
(ii) that, apart from the capital expenditure incurred in the qualifying period on the refurbishment of the qualifying premises, expenditure is incurred on the existing building which is—
(I) conversion expenditure within the meaning of section 347 ,
(II) relevant expenditure within the meaning of section 348 , or
(III) qualifying expenditure within the meaning of section 349 (being qualifying expenditure on refurbishment within the meaning of that section),
and in respect of which a deduction has been given, or would on due claim being made be given, under section 347 , 348 or 349 , as the case may be.
(b) Notwithstanding paragraph (a), subsection (2) shall not apply in relation to so much (if any) of the capital expenditure incurred in the qualifying period on the refurbishment of the qualifying premises as exceeds the amount of the deduction, or the aggregate amount of the deductions, which has been given, or which would on due claim being made be given, under section 347 , 348 or 349 , as the case may be, in respect of the conversion expenditure, the relevant expenditure or, as the case may be, the qualifying expenditure.
(4) For the purposes of the application, by subsection (2), of sections 271 and 273 in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises—
(a) section 271 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(iii) subsection (3) of that section were deleted,
(iv) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(v) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted,
and
(b) section 273 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(ii) subsections (2)(b) and (3) to (7) of that section were deleted.
(5) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying premises was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the qualifying premises was incurred.
(6) (a) Notwithstanding subsections (2) to (5), any allowance or charge which apart from this subsection would be made by virtue of subsection (2) in respect of capital expenditure incurred on the construction or refurbishment of a qualifying premises shall be reduced to one-half of the amount which apart from this subsection would be the amount of that allowance or charge.
(b) For the purposes of paragraph (a), the amount of an allowance or charge to be reduced to one-half shall be computed as if—
(i) this subsection had not been enacted, and
(ii) effect had been given to all allowances taken into account in so computing that amount.
(c) Nothing in this subsection shall affect the operation of section 274 (8).
(7) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying premises is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the premises actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
num: 343
paragraphs: —(1) In this section—
“the Minister”, except where the context otherwise requires, means the Minister for Enterprise, Trade and Employment;
“qualifying building” means a building or structure the site of which is wholly within an enterprise area and which is in use for the purposes of the carrying on of qualifying trading operations by a qualifying company, but does not include any part of a building or structure in use as or as part of a dwelling house;
“qualifying company” means a company—
(a) which has been approved for financial assistance under a scheme administered by ForfÃ¡s, Forbairt or the Industrial Development Agency (Ireland), and
(b) to which the Minister has given a certificate under subsection (2) which has not been withdrawn in accordance with subsection (5) or (6);
“qualifying trading operations” means—
(a) the manufacture of goods within the meaning of Part 14 , or
(b) the rendering of services in the course of a service industry (within the meaning of the Industrial Development Act, 1986 ).
(2) Subject to subsection (4), the Minister may—
(a) on the recommendation of ForfÃ¡s (in conjunction with Forbairt or the Industrial Development Agency (Ireland), as may be appropriate), in accordance with guidelines laid down by the Minister, and
(b) following consultation with the Minister for Finance,
give a certificate to a company certifying that the company is, with effect from a date to be specified in the certificate, to be treated as a qualifying company for the purposes of this section.
(3) A certificate under subsection (2) may be given either without conditions or subject to such conditions as the Minister considers proper and specifies in the certificate.
(4) The Minister shall not certify under subsection (2) that a company is a qualifying company for the purposes of this section unless—
(a) the company is carrying on or intends to carry on qualifying trading operations in an enterprise area, and
(b) the Minister is satisfied that the carrying on by the company of such trading operations will contribute to the balanced development of the enterprise area.
(5) Where, in the case of a company in relation to which a certificate under subsection (2) has been given—
(a) the company ceases to carry on or, as the case may be, fails to commence to carry on qualifying trading operations in the enterprise area, or
(b) the Minister is satisfied that the company has failed to comply with any condition subject to which the certificate was given,
the Minister may, by notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the notice.
(6) Where, in the case of a company in relation to which a certificate under subsection (2) has been given, the Minister is of the opinion that any activity of the company has had or may have an adverse effect on the use or development of the enterprise area or is otherwise inimical to the balanced development of the enterprise area, then—
(a) the Minister may, by notice in writing served by registered post on the company, require the company to desist from such activity with effect from such date as may be specified in the notice, and
(b) if the Minister is not satisfied that the company has complied with the requirements of the notice, the Minister may, by a further notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the further notice.
(7) (a) Subject to subsections (8) and (9), the provisions of the Tax Acts (other than section 341 ) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply as if a qualifying building were, at all times at which it is a qualifying building, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a).
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying building only in so far as that expenditure is incurred in the qualifying period.
(8) For the purposes of the application, by subsection (7), of sections 271 and 273 in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying building—
(a) section 271 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(iii) subsection (3) of that section were deleted,
(iv) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 25 per cent of the capital expenditure mentioned in subsection (2).”,
and
(v) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted,
and
(b) section 273 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) the following paragraph were substituted for paragraph (b) of subsection (2) of that section:
“(b) As respects any qualifying expenditure, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed 50 per cent of the amount of that qualifying expenditure.”,
and
(iii) subsections (3) to (7) of that section were deleted.
(9) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying building by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying building was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the qualifying building was incurred.
(10) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (7), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying building is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the building actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
num: 344
paragraphs: —(1) In this section—
“multi-storey car park” means a building or structure consisting of 2 or more storeys wholly in use for the purpose of providing, for members of the public generally without preference for any particular class of person, on payment of an appropriate charge, parking space for mechanically propelled vehicles;
“qualifying multi-storey car park” means a multi-storey car park in respect of which the relevant local authority gives a certificate in writing to the person providing the multi-storey car park stating that it is satisfied that the multi-storey car park has been developed in accordance with criteria laid down by the Minister for the Environment and Local Government following consultation with the Minister for Finance;
“qualifying period” means the period commencing on the 1st day of July, 1995, and ending on the 30th day of June, 1998;
“the relevant local authority”, in relation to the construction or refurbishment of a multi-storey car park, means—
(a) the corporation of a county or other borough or, where appropriate, the urban district council, or
(b) in respect of the administrative county of DÃºn Laoghaire-Rathdown, the administrative county of Fingal or the administrative county of South Dublin, the council of the county,
in whose functional area the multi-storey car park is situated.
(2) (a) Subject to subsections (3) to (6), the provisions of the Tax Acts (other than section 341 ) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply as if a qualifying multi-storey car park were, at all times at which it is a qualifying multi-storey car park, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a).
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying multi-storey car park only in so far as that expenditure is incurred in the qualifying period.
(3) In a case where capital expenditure is incurred in the qualifying period on the refurbishment of a qualifying multi-storey car park, subsection (2) shall apply only if the total amount of the capital expenditure so incurred is not less than an amount equal to 20 per cent of the market value of the qualifying multi-storey car park immediately before that expenditure is incurred.
(4) For the purposes of the application, by subsection (2), of sections 271 and 273 in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying multi-storey car park—
(a) section 271 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(iii) subsection (3) of that section were deleted,
(iv) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(v) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted,
and
(b) section 273 shall apply as if—
(i) in subsection (1) of that section, the definition of “industrial development agency” were deleted, and
(ii) subsections (2)(b) and (3) to (7) of that section were deleted.
(5) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying multi-storey car park by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying multi-storey car park was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the multi-storey car park was incurred.
(6) (a) Notwithstanding subsections (2) to (5), any allowance or charge which apart from this subsection would be made by virtue of subsection (2) in respect of capital expenditure incurred on the construction or refurbishment of a qualifying multi-storey car park shall be reduced to one-half of the amount which apart from this subsection would be the amount of that allowance or charge.
(b) For the purposes of paragraph (a), the amount of an allowance or charge to be reduced to one-half shall be computed as if—
(i) this subsection had not been enacted, and
(ii) effect had been given to all allowances taken into account in so computing that amount.
(c) Nothing in this subsection shall affect the operation of section 274 (8).
(7) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying multi-storey car park is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the qualifying multi-storey car park actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
(8) Where by virtue of subsection (2) an allowance is given under Chapter 1 of Part 9 in respect of capital expenditure incurred on the construction or refurbishment of a qualifying multi-storey car park, no allowance shall be given in respect of that expenditure under that Chapter by virtue of any other provision of the Tax Acts.
num: 345
paragraphs: —(1) In this section—
“qualifying lease” means, subject to subsection (8), a lease in respect of a qualifying premises granted—
(a) in the qualifying period in the case of a qualifying premises which is a building or structure to which section 339 (2)(a) refers, or
(b) in the qualifying period, or within the period of one year from the day next after the end of the qualifying period, in the case of any other qualifying premises,
on bona fide commercial terms by a lessor to a lessee not connected with the lessor, or with any other person entitled to a rent in respect of the qualifying premises, whether under that lease or any other lease;
“qualifying premises” means, subject to subsection (5)(a), a building or structure—
(a) (i) the site of which is wholly within a designated area and which is a building or structure in use for a purpose specified in section 268 (1)(a), and in respect of which capital expenditure is incurred in the qualifying period for which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under section 271 or 273 , as applied by section 341 ,
(ii) the site of which is wholly within a designated area and in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 342 ,
(iii) the site of which is wholly within an enterprise area and in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 343 ,
(iv) the site of which is wholly within a designated area and which is a building or structure in use for the purposes specified in section 268 (1)(d), and in respect of the construction or refurbishment of which capital expenditure is incurred in the qualifying period for which an allowance would but for subsection (6) be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 , or
(v) in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 344 ,
and
(b) which is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but, where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure in respect of which an allowance is to be made, or will by virtue of section 279 be made, or in respect of which an allowance would but for subsection (6) be made, for the purposes of income tax or corporation tax, as the case may be, under any of the provisions referred to in paragraph (a), the building or structure shall not be regarded as a qualifying premises unless the total amount of the expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(2) For the purposes of this section, so much of a period, being a period when rent is payable by a person in relation to a qualifying premises under a qualifying lease, shall be a relevant rental period as does not exceed—
(a) 10 years, or
(b) the period by which 10 years exceeds—
(i) any preceding period, or
(ii) if there is more than one preceding period, the aggregate of those periods,
for which rent was payable by that person or any other person in relation to that premises under a qualifying lease.
(3) Subject to subsection (4), where in the computation of the amount of the profits or gains of a trade or profession a person is apart from this section entitled to any deduction (in this subsection referred to as “the first-mentioned deduction”) on account of rent in respect of a qualifying premises occupied by such person for the purposes of that trade or profession which is payable by such person for a relevant rental period in relation to that qualifying premises under a qualifying lease, such person shall be entitled in that computation to a further deduction (in this subsection referred to as “the second-mentioned deduction”) equal to the amount of the first-mentioned deduction but, as respects a qualifying lease granted on or after the 21st day of April, 1997, where the first-mentioned deduction is on account of rent payable by such person to a connected person, such person shall not be entitled in that computation to the second-mentioned deduction.
(4) Where a person holds an interest in a qualifying premises out of which interest a qualifying lease is created directly or indirectly in respect of the qualifying premises and in respect of rent payable under the qualifying lease a claim for a further deduction under this section is made, and either such person or another person connected with such person—
(a) takes under a qualifying lease a qualifying premises (in this subsection referred to as “the second-mentioned premises”) occupied by such person or such other person, as the case may be, for the purposes of a trade or profession, and
(b) is apart from this section entitled, in the computation of the amount of the profits or gains of that trade or profession, to a deduction on account of rent in respect of the second-mentioned premises,
then, unless such person or such other person, as the case may be, shows that the taking on lease of the second-mentioned premises was not undertaken for the sole or main benefit of obtaining a further deduction on account of rent under this section, such person or such other person, as the case may be, shall not be entitled in the computation of the amount of the profits or gains of that trade or profession to any further deduction on account of rent in respect of the second-mentioned premises.
(5) (a) A building or structure in use for the purposes specified in section 268 (1)(d) shall not be a qualifying premises for the purposes of this section unless the person to whom an allowance under Chapter 1 of Part 9 would but for subsection (6) be made for the purposes of income tax or corporation tax, as the case may be, in respect of the capital expenditure incurred in the qualifying period on the construction or refurbishment of the building or structure elects by notice in writing to the appropriate inspector (within the meaning of section 950 ) to disclaim all allowances under that Chapter in respect of that capital expenditure.
(b) An election under paragraph (a) shall be included in the return required to be made by the person concerned under section 951 for the first year of assessment or the first accounting period, as the case may be, for which an allowance would but for subsection (6) have been made to that person under Chapter 1 of Part 9 in respect of that capital expenditure.
(c) An election under paragraph (a) shall be irrevocable.
(d) A person who has made an election under paragraph (a) shall furnish a copy of that election to any person (in this paragraph referred to as “the second-mentioned person”) to whom the person grants a qualifying lease in respect of the qualifying premises, and the second-mentioned person shall include the copy in the return required to be made by the second-mentioned person under section 951 for the year of assessment or accounting period, as the case may be, in which rent is first payable by the second-mentioned person under the qualifying lease in respect of the qualifying premises.
(6) Where a person who has incurred capital expenditure in the qualifying period on the construction or refurbishment of a building or structure in use for the purposes specified in section 268 (1)(d) makes an election under subsection (5)(a), then, notwithstanding any other provision of the Tax Acts—
(a) no allowance under Chapter 1 of Part 9 shall be made to the person in respect of that capital expenditure,
(b) on the occurrence, in relation to the building or structure, of any of the events referred to in section 274 (1), the residue of expenditure (within the meaning of section 277 ) in relation to that capital expenditure shall be deemed to be nil, and
(c) section 279 shall not apply in the case of any person who buys the relevant interest (within the meaning of section 269 ) in the building or structure.
(7) For the purposes of determining, in relation to paragraph (a)(iv) of the definition of “qualifying premises” and subsections (5) and (6), whether and to what extent capital expenditure incurred on the construction or refurbishment of a building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the building or structure actually carried out in the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
(8) (a) In this subsection—
“current value”, in relation to minimum lease payments, means the value of those payments discounted to their present value at a rate which, when applied at the inception of the lease to—
(i) those payments, including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee, and
(ii) any unguaranteed residual value of the qualifying premises, excluding any part of such value for which the lessor will be accountable to the lessee,
produces discounted present values the aggregate amount of which equals the amount of the fair value of the qualifying premises;
“fair value”, in relation to a qualifying premises, means an amount equal to such consideration as might be expected to be paid for the premises on a sale negotiated on an arm's length basis less any grants receivable towards the purchase of the qualifying premises;
“inception of the lease” means the earlier of the time the qualifying premises is brought into use or the date from which rentals under the lease first accrue;
“minimum lease payments” means the minimum payments over the remaining part of the term of the lease to be paid to the lessor, and includes any residual amount to be paid to the lessor at the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee;
“unguaranteed residual value”, in relation to a qualifying premises, means that part of the residual value of that premises at the end of a term of a lease, as estimated at the inception of the lease, the realisation of which by the lessor is not assured or is guaranteed solely by a person connected with the lessor.
(b) A finance lease, that is—
(i) a lease in respect of a qualifying premises where, at the inception of the lease, the aggregate of the current value of the minimum lease payments (including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee) payable by the lessee in relation to the lease amounts to 90 per cent or more of the fair value of the qualifying premises, or
(ii) a lease which in all the circumstances is considered to provide in substance for the lessee the risks and benefits associated with ownership of the qualifying premises other than legal title to that premises,
shall not be a qualifying lease for the purposes of this section.
num: 346
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 350 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the relevant cost of the house;
“qualifying premises” means, subject to subsections (3), (4)(a), (4)(c) and (5) of section 350 , a house—
(a) the site of which is wholly within a designated area,
(b) which is used solely as a dwelling,
(c) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres;
(d) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost, the amount specified in which in respect of the cost of construction of the house is not less than the expenditure actually incurred on such construction, and
(e) which without having been used is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant cost”, in relation to a house, means, subject to subsection (3), an amount equal to the aggregate of—
(a) the expenditure incurred on the acquisition of, or of rights in or over, any land on which the house is constructed, and
(b) the expenditure actually incurred on the construction of the house;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred expenditure on the construction of a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of that expenditure as is to be treated under section 350 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the expenditure to be treated as having been incurred in the qualifying period on the construction of the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the expenditure actually incurred on the construction of the qualifying premises which is to be treated under section 350 (7) as having been incurred in the qualifying period bears to the whole of the expenditure incurred on that construction.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary—
(a) of the expenditure incurred on the construction of that building or those buildings, and
(b) of the amount which would be the relevant cost in relation to that building or those buildings if the building or buildings, as the case may be, were a single qualifying premises,
for the purposes of determining the expenditure incurred on the construction of the qualifying premises and the relevant cost in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of expenditure incurred on the construction of the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) (a) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of expenditure on the construction of the house equal to the amount which under section 350 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period on the construction of the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed the relevant price paid by such person on the purchase.
(b) For the purposes of this subsection and subsection (7), the relevant price paid by a person on the purchase of a house shall be the amount which bears to the net price paid by such person on that purchase the same proportion as the amount of the expenditure actually incurred on the construction of the house which is to be treated under section 350 (7) as having been incurred in the qualifying period bears to the relevant cost in relation to that house.
(7) (a) Subject to paragraph (b), where expenditure is incurred on the construction of a house and before the house is used it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the lesser of—
(i) the amount of such expenditure which is to be treated under section 350 (7) as having been incurred in the qualifying period, and
(ii) the relevant price paid by such person on the purchase;
but, where the house is sold more than once before it is used, this subsection shall apply only in relation to the last of those sales.
(b) Where expenditure is incurred on the construction of a house by a person carrying on a trade or part of a trade which consists, as to the whole or any part of the trade, of the construction of buildings with a view to their sale and the house, before it is used, is sold in the course of that trade or, as the case may be, that part of that trade—
(i) the person (in this paragraph referred to as “the purchaser”) who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the relevant price paid by the purchaser on the purchase (in this paragraph referred to as “the first purchase”), and
(ii) in relation to any subsequent sale or sales of the house before the house is used, paragraph (a) shall apply as if the reference to the amount of expenditure which is to be treated as having been incurred in the qualifying period were a reference to the relevant price paid on the first sale.
(8) Section 350 shall apply for the purposes of supplementing this section.
num: 347
paragraphs: —(1) In this section—
“conversion expenditure” means, subject to subsection (2), expenditure incurred on—
(a) the conversion into a house of a building—
(i) the site of which is wholly within a designated area, or which fronts on to a designated street, and
(ii) which has not been previously in use as a dwelling,
and
(b) the conversion into 2 or more houses of a building—
(i) the site of which is wholly within a designated area, or which fronts on to a designated street, and
(ii) which before the conversion had not been in use as a dwelling or had been in use as a single dwelling,
and references in this section and in section 350 to “conversion”, “conversion into a house” and “expenditure incurred on conversion” shall be construed accordingly;
“qualifying lease”, in relation to a house, means, subject to section 350 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the market value of the house at the time the conversion is completed and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house at the time the conversion is completed shall for the purposes of this paragraph be taken to be an amount which bears to the market value of the building at that time the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (3), (4)(b), (4)(c) and (5) of section 350 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of conversion in relation to the house is not less than the expenditure actually incurred on such conversion, and
(d) which without having been used subsequent to the incurring of the expenditure on the conversion is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) For the purposes of this section, expenditure incurred on the conversion of a building shall be deemed to include expenditure incurred in the course of the conversion on either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
in relation to the building or any outoffice appurtenant to or usually enjoyed with the building, but shall not be deemed to include—
(i) any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts, or
(ii) any expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the conversion is not a house.
(3) For the purposes of subsection (2)(ii), where expenditure is attributable to a building in general and not directly to any particular house or non-residential unit comprised in the building on completion of the conversion, such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building.
(4) Subject to subsection (5), where a person, having made a claim in that behalf, proves to have incurred conversion expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 350 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(5) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the conversion expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (4) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the conversion expenditure actually incurred in relation to the qualifying premises which is to be treated under section 350 (7) as having been incurred in the qualifying period bears to the whole of the conversion expenditure incurred in relation to the qualifying premises.
(6) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the conversion of that building or those buildings for the purposes of determining the conversion expenditure incurred in relation to the qualifying premises.
(7) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (4) in respect of conversion expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(8) Where the event mentioned in subsection (7)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of conversion expenditure in relation to the house equal to the amount of the conversion expenditure which under section 350 (7) or under this section (apart from subsection (5)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 350 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house.
(9) Where conversion expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period conversion expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 350 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 350 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the conversion expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(10) This section shall not apply in the case of a conversion unless planning permission in respect of the conversion has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(11) Section 350 shall apply for the purposes of supplementing this section.
num: 348
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 350 (2), a lease of the house the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium—
(i) which is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or which, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment, and
(ii) which does not exceed 10 per cent of the market value of the house on the date of completion of the refurbishment to which the relevant expenditure relates and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house on that date shall for the purposes of this subparagraph be taken to be an amount which bears to the market value of the building on that date the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (3), (4)(b), (4)(c) and (5) of section 350 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of refurbishment in relation to the house is not less than the relevant expenditure actually incurred on such refurbishment, and
(d) which on the date of completion of the refurbishment to which the relevant expenditure relates is let (or, if not let on that date, is, without having been used after that date, first let) in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“refurbishment”, in relation to a building, means either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
where the carrying out of such works or the provision of such facilities is certified by the Minister for the Environment and Local Government, in any certificate of reasonable cost granted by that Minister in relation to any house contained in the building, to have been necessary for the purposes of ensuring the suitability as a dwelling of any house in the building and whether or not the number of houses in the building, or the shape or size of any such house, is altered in the course of such refurbishment;
“relevant expenditure” means expenditure incurred on the refurbishment of a specified building, other than expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the refurbishment is not a house, and for the purposes of this definition where expenditure is attributable to the specified building in general (and not directly to any particular house or non-residential unit comprised in the building on completion of the refurbishment), such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the completion of the refurbishment to which the relevant expenditure relates or, if the premises was not let under a qualifying lease on that date, the period of 10 years beginning on the date of the first such letting after the date of such completion;
“specified building” means a building—
(a) the site of which is wholly within a designated area, or which fronts on to a designated street,
(b) in which before the refurbishment to which the relevant expenditure relates there are 2 or more houses, and
(c) which on completion of that refurbishment contains (whether in addition to any non-residential unit or not) 2 or more houses.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred relevant expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 350 (7) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which—
(i) is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor, and
(ii) is payable on or subsequent to the date of completion of the refurbishment to which the relevant expenditure relates or, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the relevant expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the relevant expenditure actually incurred in relation to the qualifying premises which is to be treated under section 350 (7) as having been incurred in the qualifying period bears to the whole of the relevant expenditure incurred in relation to the qualifying premises.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the relevant expenditure incurred on that building or those buildings for the purposes of determining the relevant expenditure incurred in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of relevant expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of relevant expenditure in relation to the house equal to the amount of the relevant expenditure which under section 350 (7) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 350 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house.
(7) Where relevant expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period relevant expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 350 (7) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 350 (7) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the relevant expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(8) This section shall not apply in the case of any refurbishment unless planning permission, in so far as it is required, in respect of the work carried out in the course of the refurbishment has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(9) Expenditure in respect of which a person is entitled to relief under this section shall not include any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts.
(10) Section 350 shall apply for the purposes of supplementing this section.
num: 349
paragraphs: —(1) In this section—
“qualifying expenditure”, in relation to an individual, means an amount equal to the amount of the expenditure incurred by the individual on the construction or, as the case may be, refurbishment of a qualifying premises which is a qualifying owner-occupied dwelling in relation to the individual after deducting from that amount of expenditure any sum in respect of or by reference to—
(a) that expenditure,
(b) the qualifying premises, or
(c) the construction or, as the case may be, refurbishment work in respect of which that expenditure was incurred,
which the individual has received or is entitled to receive, directly or indirectly, from the State, any board established by statute or any public or local authority;
“qualifying owner-occupied dwelling”, in relation to an individual, means a qualifying premises which is first used, after the qualifying expenditure has been incurred, by the individual as his or her only or main residence;
“qualifying premises”, in relation to the incurring of qualifying expenditure, means, subject to subsections (4) and (5) of section 350 , a house—
(a) the site of which is wholly within a designated area, or which fronts on to a designated street,
(b) which is used solely as a dwelling,
(c) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of construction or, as the case may be, refurbishment of the house is not less than the expenditure actually incurred on such construction or refurbishment, as the case may be, and
(d) the total floor area of which—
(i) is not less than 30 square metres and not more than—
(I) 125 square metres, or
(II) as respects expenditure incurred before the 12th day of April, 1995, on the construction of a house, 90 square metres,
in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres;
“refurbishment” has the same meaning as in section 348 .
(2) (a) Subject to subsection (3), where an individual, having made a claim in that behalf, proves to have incurred qualifying expenditure in a year of assessment, the individual shall be entitled, for that year of assessment and for any of the 9 subsequent years of assessment in which the qualifying premises in respect of which the individual incurred the qualifying expenditure is the only or main residence of the individual, to have a deduction made from his or her total income of an amount equal to—
(i) in the case where the qualifying expenditure has been incurred on the construction of the qualifying premises, 5 per cent of the amount of that expenditure, or
(ii) in the case where the qualifying expenditure has been incurred on the refurbishment of the qualifying premises, 10 per cent of the amount of that expenditure.
(b) A deduction shall be given under this section in respect of qualifying expenditure only in so far as that expenditure is to be treated under section 350 (7) as having been incurred in the qualifying period.
(3) Notwithstanding subsection (2), where qualifying expenditure has been incurred in relation to a qualifying premises which fronts on to a designated street, a deduction shall be given under this section only if that expenditure has been incurred on the refurbishment of the qualifying premises.
(4) Where qualifying expenditure in relation to a qualifying premises is incurred by 2 or more persons, each of those persons shall be treated as having incurred the expenditure in the proportions in which they actually bore the expenditure, and the expenditure shall be apportioned accordingly.
(5) Section 350 shall apply for the purposes of supplementing this section.
num: 350
paragraphs: —(1) In sections 346 to 349 —
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 346 , 347 , 348 or 349 , as the case may be, stating that the amount specified in the certificate in relation to the cost of construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) A lease shall not be a qualifying lease for the purposes of section 346 , 347 or 348 if the terms of the lease contain any provision enabling the lessee or any other person, directly or indirectly, at any time to acquire any interest in the house to which the lease relates for a consideration less than that which might be expected to be given at that time for the acquisition of the interest if the negotiations for that acquisition were conducted in the open market at arm's length.
(3) A house shall not be a qualifying premises for the purposes of section 346 , 347 or 348 if—
(a) it is occupied as a dwelling by any person connected with the person entitled, in relation to the expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the house, to a deduction under section 346 (2), 347 (4) or 348 (2), as the case may be, and
(b) the terms of the qualifying lease in relation to the house are not such as might have been expected to be included in the lease if the negotiations for the lease had been at arm's length.
(4) (a) A house shall not be a qualifying premises for the purposes of section 346 or, in so far as it applies to expenditure other than expenditure on refurbishment, section 349 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 347 or 348 or, in so far as it applies to expenditure on refurbishment, section 349 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(c) A house shall not be a qualifying premises for the purposes of section 346 , 347 , 348 or 349 unless the house or, in a case where the house is one of a number of houses in a single development, the development of which it is a part complies with such guidelines as may from time to time be issued by the Minister for the Environment and Local Government, with the consent of the Minister for Finance, for the purposes of furthering the objectives of the Urban Renewal Act, 1986 , and, without prejudice to the generality of the foregoing, such guidelines may include provisions in relation to all or any one or more of the following—
(i) the design and the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, houses,
(ii) the total floor area and dimensions of rooms within houses, measured in such manner as may be determined by the Minister for the Environment and Local Government,
(iii) the provision of ancillary facilities and amenities in relation to houses, and
(iv) the balance to be achieved between houses of different types and sizes within a single development of 2 or more houses or within such a development and its general vicinity having regard to the housing existing or proposed in that vicinity.
(5) A house shall not be a qualifying premises for the purposes of section 346 , 347 , 348 or 349 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of those sections are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(6) For the purposes of sections 346 to 349 , references in those sections to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
(7) (a) For the purposes of determining, in relation to any claim under section 346 (2), 347 (4), 348 (2) or 349 (2), as the case may be, whether and to what extent expenditure incurred on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises is incurred or not incurred during the qualifying period, only such an amount of that expenditure as is properly attributable to work on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the premises actually carried out during the qualifying period shall be treated as having been incurred during that period.
(b) Where by virtue of subsection (6) expenditure on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the qualifying premises were references to the development of such land.
(8) (a) For the purposes of sections 346 and 347 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction of, or, as the case may be, conversion into, a qualifying premises shall be deemed to have been incurred on the date of the first letting of the premises under a qualifying lease.
(b) For the purposes of section 348 other than the purposes mentioned in subsection (7)(a), relevant expenditure incurred in relation to the refurbishment of a qualifying premises shall be deemed to have been incurred on the date of the commencement of the relevant period, in relation to the premises, determined as respects the refurbishment to which the relevant expenditure relates.
(c) For the purposes of section 349 other than the purposes mentioned in subsection (7)(a), expenditure incurred on the construction or refurbishment of a qualifying premises shall be deemed to have been incurred on the earliest date after the expenditure was actually incurred on which the premises is in use as a dwelling.
(9) For the purposes of sections 346 to 348 , expenditure shall not be regarded as incurred by a person in so far as it has been or is to be met, directly or indirectly, by the State, by any board established by statute or by any public or local authority.
(10) Section 555 shall apply as if a deduction under section 346 (2), 347 (4) or 348 (2), as the case may be, were a capital allowance and as if any rent deemed to have been received by a person under section 346 (5), 347 (7) or 348 (5), as the case may be, were a balancing charge.
(11) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 346 , 347 , 348 or 349 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 351
paragraphs: —In this Chapter—
“lease”, “lessee”, “lessor” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“market value”, in relation to a building or structure, means the price which the unencumbered fee simple of the building or structure would fetch if sold in the open market in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the building or structure, less the part of that price which would be attributable to the acquisition of, or of rights in or over, the land on which the building or structure is constructed;
“qualifying period” means the period commencing on the 1st day of July, 1995, and ending on the 30th day of June, 1998;
num: 352
paragraphs: —(1) This section shall apply to a building or structure the site of which is wholly within a qualifying resort area and which is to be an industrial building or structure by reason of its use for the purposes specified in section 268 (1)(d).
(2) Subject to subsection (5), section 271 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(c) subsection (3) of that section were deleted,
(d) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2). ”,
and
(e) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted.
(3) Subject to subsection (5), section 272 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if the following subsection were substituted for subsection (3) of that section:
“(3) A writing down allowance shall be of an amount equal to 5 per cent of the expenditure referred to in subsection (2)(c).”.
(4) Subject to subsection (5), section 273 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) the following paragraph were substituted for paragraph (b) of subsection (2) of that section:
“(b) As respects any qualifying expenditure, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed for one chargeable period or more than one such period, shall not in the aggregate exceed 75 per cent of the amount of that qualifying expenditure.”,
and
(c) subsections (3) to (7) of that section were deleted.
(5) In the case where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure to which this section applies, subsections (2) to (4) shall apply only if the total amount of the capital expenditure so incurred is not less than an amount which is equal to 20 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(6) For the purposes only of determining, in relation to a claim for an allowance under section 271 , 272 or 273 , as applied by this section, whether and to what extent capital expenditure incurred on the construction or refurbishment of an industrial building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or, as the case may be, the refurbishment of the building or structure actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
num: 353
paragraphs: —(1) In this section—
“qualifying premises” means a building or structure the site of which is wholly within a qualifying resort area and which—
(a) apart from this section is not an industrial building or structure within the meaning of section 268 , and
(b) is in use for the purposes of the operation of one or more qualifying tourism facilities,
but does not include any part of a building or structure in use as or as part of a dwelling house, other than a tourist accommodation facility of the type referred to in the definition of “qualifying tourism facilities”;
“qualifying tourism facilities” means—
(a) tourist accommodation facilities registered by Bord FÃ¡ilte Ãireann under Part III of the Tourist Traffic Act, 1939 , or specified in a list published under section 9 of the Tourist Traffic Act, 1957 , and
(b) such other classes of facilities as may be approved of for the purposes of this section by the Minister for Tourism, Sport and Recreation in consultation with the Minister for Finance.
(2) (a) Subject to subsections (3) to (6), the provisions of the Tax Acts relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply—
(i) as if a qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a), and
(ii) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises only in so far as that expenditure is incurred in the qualifying period.
(3) In the case where capital expenditure is incurred in the qualifying period on the refurbishment of a qualifying premises, subsection (2) shall apply only if the total amount of the capital expenditure so incurred is not less than an amount which is equal to 20 per cent of the market value of the qualifying premises immediately before that expenditure is incurred.
(4) For the purposes of the application, by subsection (2), of sections 271 , 272 and 273 in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises—
(a) section 271 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(iii) subsection (3) of that section were deleted,
(iv) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(v) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted,
(b) section 272 shall apply as if the following subsection were substituted for subsection (3) of that section:
“(3) A writing down allowance shall be of an amount equal to 5 per cent of the expenditure referred to in subsection (2)(c).”,
and
(c) section 273 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) the following paragraph were substituted for paragraph (b) of subsection (2) of that subsection:
“(b) As respects any qualifying expenditure, any allowance made under section 272 and increased under paragraph (a) in respect of that expenditure, whether claimed in one chargeable period or more than one such period, shall not in the aggregate exceed 75 per cent of the amount of that qualifying expenditure.”,
and
(iii) subsections (3) to (7) of that section were deleted.
(5) In the case of a qualifying premises which is such a premises by virtue of being a tourist accommodation facility of a type referred to in paragraph (a) of the definition of “qualifying tourism facilities”—
(a) the event of the premises ceasing to be registered or specified in the manner referred to in that paragraph of that definition shall be treated as if it were an event specified in section 274 (1), and
(b) for the purposes of the application of section 274 on the occurrence of any such event, there shall, notwithstanding anything to the contrary in section 318 , be treated as arising in relation to that event sale, insurance, salvage or compensation moneys in an amount equal to the aggregate of—
(i) the residue of the expenditure (within the meaning of section 277 ) incurred on the construction or refurbishment of the premises immediately before that event, and
(ii) the allowances made under Chapter 1 of Part 9 by virtue of subsection (2) in respect of the expenditure incurred on the construction or refurbishment of the premises.
(6) Notwithstanding section 274 (1), no balancing charge shall be made in relation to any qualifying premises by reason of any of the events specified, or by virtue of subsection (5) treated as specified, in section 274 (1) which occurs—
(a) more than 11 years after the qualifying premises was first used, or
(b) in a case where section 276 applies, more than 11 years after the capital expenditure on refurbishment of the qualifying premises was incurred.
(7) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying premises is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the premises actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
(8) Where by virtue of subsection (2) an allowance is given under Chapter 1 of Part 9 in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises, relief shall not be given in respect of that expenditure under any provision of the Tax Acts other than that Chapter.
num: 354
paragraphs: —(1) In this section—
“qualifying lease” means, subject to subsection (5), a lease in respect of a qualifying premises granted in the qualifying period on bona fide commercial terms by a lessor to a lessee not connected with the lessor, or with any other person who is entitled to a rent in respect of the qualifying premises, whether under that lease or any other lease;
“qualifying premises” means, subject to section 355 (2), a building or structure the site of which is wholly within a qualifying resort area and—
(a) (i) which is a building or structure in use for the purposes specified in section 268 (1)(d), and in respect of which capital expenditure is incurred in the qualifying period for which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under section 271 , 272 or 273 , as applied by section 352 , or
(ii) in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 353 ,
and
(b) which is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but, where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under any of the provisions referred to in paragraph (a), the building or structure shall not be regarded as a qualifying premises unless the total amount of the expenditure so incurred is not less than an amount equal to 20 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(2) For the purposes of this section, so much of a period, being a period when rent is payable by a person in relation to a qualifying premises under a qualifying lease, shall be a relevant rental period as does not exceed—
(a) 10 years, or
(b) the period by which 10 years exceeds—
(i) any preceding period, or
(ii) if there is more than one preceding period, the aggregate of those periods,
for which rent was payable by that person or any other person in relation to that premises under a qualifying lease.
(3) Subject to subsection (4), where in the computation of the amount of the profits or gains of a trade or profession a person is apart from this section entitled to any deduction (in this subsection referred to as “the first-mentioned deduction”) on account of rent in respect of a qualifying premises occupied by such person for the purposes of that trade or profession which is payable by such person for a relevant rental period in relation to that qualifying premises under a qualifying lease, such person shall be entitled in that computation to a further deduction (in this subsection referred to as “the second-mentioned deduction”) equal to the amount of the first-mentioned deduction but, as respects a qualifying lease granted on or after the 21st day of April, 1997, where the first-mentioned deduction is on account of rent payable by such person to a connected person, such person shall not be entitled in that computation to the second-mentioned deduction.
(4) Where a person holds an interest in a qualifying premises out of which interest a qualifying lease is created directly or indirectly in respect of the qualifying premises and in respect of rent payable under the qualifying lease a claim for a further deduction under this section is made, and either such person or another person connected with such person—
(a) takes under a qualifying lease a qualifying premises (in this subsection referred to as “the second-mentioned premises”) occupied by such person or such other person, as the case may be, for the purposes of a trade or profession, and
(b) is apart from this section entitled, in the computation of the amount of the profits or gains of that trade or profession, to a deduction on account of rent in respect of the second-mentioned premises,
then, unless such person or such other person, as the case may be, shows that the taking on lease of the second-mentioned premises was not undertaken for the sole or main benefit of obtaining a further deduction on account of rent under this section, such person or such other person, as the case may be, shall not be entitled in the computation of the amount of the profits or gains of that trade or profession to any further deduction on account of rent in respect of the second-mentioned premises.
(5) (a) In this subsection—
“current value”, in relation to minimum lease payments, means the value of those payments discounted to their present value at a rate which, when applied at the inception of the lease to—
(i) those payments, including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee, and
(ii) any unguaranteed residual value of the qualifying premises, excluding any part of such value for which the lessor will be accountable to the lessee,
produces discounted present values the aggregate amount of which equals the amount of the fair value of the qualifying premises;
“fair value”, in relation to a qualifying premises, means an amount equal to such consideration as might be expected to be paid for the premises on a sale negotiated on an arm's length basis less any grants receivable towards the purchase of the qualifying premises;
“inception of the lease” means the earlier of the time the qualifying premises is brought into use or the date from which rentals under the lease first accrue;
“minimum lease payments” means the minimum payments over the remaining part of the term of the lease to be paid to the lessor, and includes any residual amount to be paid to the lessor at the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee;
“unguaranteed residual value”, in relation to a qualifying premises, means that part of the residual value of that premises at the end of a term of a lease, as estimated at the inception of the lease, the realisation of which by the lessor is not assured or is guaranteed solely by a person connected with the lessor.
(b) A finance lease, that is—
(i) a lease in respect of a qualifying premises where, at the inception of the lease, the aggregate of the current value of the minimum lease payments (including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee) payable by the lessee in relation to the lease amounts to 90 per cent or more of the fair value of the qualifying premises, or
(ii) a lease which in all the circumstances is considered to provide in substance for the lessee the risks and benefits associated with ownership of the qualifying premises other than legal title to that premises,
shall not be a qualifying lease for the purposes of this section.
num: 355
paragraphs: —(1) This section shall apply to—
(a) a building or structure to which section 352 applies by virtue of the building or structure being a holiday cottage of the type referred to in section 268 (3), and
(b) a building or structure which is a qualifying premises within the meaning of section 353 by virtue of the building or structure being—
(i) a holiday apartment registered under Part III of the Tourist Traffic Act, 1939 , or
(ii) other self-catering accommodation specified in a list published under section 9 of the Tourist Traffic Act, 1957 .
(2) (a) Subject to subsection (5), a building or structure to which this section applies shall not be a qualifying premises for the purposes of section 354 unless the person to whom an allowance under Chapter 1 of Part 9 would but for subsection (3) be made for the purposes of income tax or corporation tax, as the case may be, in respect of the capital expenditure incurred in the qualifying period on the construction or refurbishment of the building or structure elects by notice in writing to the appropriate inspector (within the meaning of section 950 ) to disclaim all allowances under that Chapter in respect of that capital expenditure.
(b) An election under paragraph (a) shall be included in the return required to be made by the person concerned under section 951 for the first year of assessment or the first accounting period, as the case may be, for which an allowance would but for subsection (3) have been made to that person under Chapter 1 of Part 9 in respect of that capital expenditure.
(c) An election under paragraph (a) shall be irrevocable.
(d) A person who has made an election under paragraph (a) shall furnish a copy of that election to any person (in this paragraph referred to as “the second-mentioned person”) to whom the person grants a qualifying lease (within the meaning of section 354 ) in respect of a building or structure to which this section applies, and the second-mentioned person shall include the copy in the return required to be made by the second-mentioned person under section 951 for the year of assessment or accounting period, as the case may be, in which rent is first payable by the second-mentioned person under the qualifying lease in respect of such a building or structure.
(3) Subject to subsection (5), where a person who has incurred capital expenditure in the qualifying period on the construction or refurbishment of a building or structure to which this section applies makes an election under subsection (2)(a), then, notwithstanding any other provision of the Tax Acts—
(a) no allowance under Chapter 1 of Part 9 shall be made to the person in respect of that capital expenditure,
(b) on the occurrence, in relation to the building or structure, of any of the events referred to in section 274 (1), the residue of expenditure (within the meaning of section 277 ) in relation to that capital expenditure shall be deemed to be nil, and
(c) section 279 shall not apply in the case of any person who buys the relevant interest (within the meaning of section 269 ) in the building or structure.
(4) Subject to subsection (5), where in the qualifying period a person incurs capital expenditure on the acquisition, construction or refurbishment of a building or structure which is or is to be a building or structure to which subsection (1)(b) applies and an allowance is to be made in respect of that expenditure under section 271 or 272 , then—
(a) neither section 305 (1)(b) nor section 308 (4) shall apply as respects that allowance, and
(b) neither section 381 nor section 396 (2) shall apply as respects the whole or part, as the case may be, of any loss which would not have arisen but for the making of that allowance.
(5) This section shall not apply—
(a) to expenditure incurred in the qualifying period on the acquisition, construction or refurbishment of a building or structure (in this subsection referred to as “the holiday cottage or apartment”) which is or is to be a building or structure to which this section applies where before the 5th day of April, 1996—
(i) a binding contract in writing was entered into for the acquisition or construction of the holiday cottage or apartment,
(ii) an application for planning permission for the construction of the holiday cottage or apartment was received by a planning authority, or
(iii) in relation to the holiday cottage or apartment, an opinion in writing was issued by the Revenue Commissioners to the effect that an allowance to be made in respect of expenditure on the holiday cottage or apartment would not be restricted by virtue of section 408 ,
or
(b) where before the 5th day of April, 1996—
(i) expenditure was incurred on the acquisition of land on which the holiday cottage or apartment is to be constructed or refurbished, by the person who incurred the expenditure on that construction or refurbishment, or
(ii) a binding contract in writing was entered into for the acquisition of that land by that person,
and that person can prove to the satisfaction of the Revenue Commissioners that a detailed plan had been prepared and that detailed discussions had taken place with a planning authority in relation to the holiday cottage or apartment on or after the 8th day of February, 1995, but before the 5th day of April, 1996, and that this can be supported by means of an affidavit from the planning authority.
num: 356
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 359 (2), a lease of the house the consideration for the grant of which consists solely of—
(a) a single payment which is or is to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) periodic payments all of which are or are to be treated as rent for the purposes of that Chapter;
“qualifying premises” means, subject to subsections (3), (4)(a), (5) and (6) of section 359 , a house—
(a) the site of which is wholly within a qualifying resort area,
(b) which is used solely as a dwelling,
(c) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(d) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost, the amount specified in which in respect of the cost of construction of the house is not less than the expenditure actually incurred on such construction, and
(e) which without having been used is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant cost”, in relation to a house, means, subject to subsection (3), an amount equal to the aggregate of—
(a) the expenditure incurred on the acquisition of, or of rights in or over, any land on which the house is constructed, and
(b) the expenditure actually incurred on the construction of the house;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) Where a person, having made a claim in that behalf, proves to have incurred expenditure on the construction of a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of that expenditure as is to be treated under section 359 (8) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary—
(a) of the expenditure incurred on the construction of that building or those buildings, and
(b) of the amount which would be the relevant cost in relation to that building or those buildings if the building or buildings, as the case may be, were a single qualifying premises,
for the purposes of determining the expenditure incurred on the construction of the qualifying premises and the relevant cost in relation to the qualifying premises.
(4) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of expenditure incurred on the construction of the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(5) (a) Where the event mentioned in subsection (4)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of expenditure on the construction of the house equal to the amount which under section 359 (8) or under this section the lessor was treated as having incurred in the qualifying period on the construction of the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed the relevant price paid by such person on the purchase.
(b) For the purposes of this subsection and subsection (6), the relevant price paid by a person on the purchase of a house shall be the amount which bears to the net price paid by such person on that purchase the same proportion as the amount of the expenditure actually incurred on the construction of the house which is to be treated under section 359 (8) as having been incurred in the qualifying period bears to the relevant cost in relation to that house.
(6) (a) Subject to paragraph (b), where expenditure is incurred on the construction of a house and before the house is used it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the lesser of—
(i) the amount of such expenditure which is to be treated under section 359 (8) as having been incurred in the qualifying period, and
(ii) the relevant price paid by such person on the purchase;
but, where the house is sold more than once before it is used, this subsection shall apply only in relation to the last of those sales.
(b) Where expenditure is incurred on the construction of a house by a person carrying on a trade or part of a trade which consists, as to the whole or any part of that trade, of the construction of buildings with a view to their sale and the house, before it is used, is sold in the course of that trade or, as the case may be, that part of that trade—
(i) the person (in this paragraph referred to as “the purchaser”) who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the relevant price paid by the purchaser on the purchase (in this paragraph referred to as “the first purchase”), and
(ii) in relation to any subsequent sale or sales of the house before the house is used, paragraph (a) shall apply as if the reference to the amount of expenditure which is to be treated as having been incurred in the qualifying period were a reference to the relevant price paid on the first purchase.
(7) Section 359 shall apply for the purposes of supplementing this section.
num: 357
paragraphs: —(1) In this section—
“conversion expenditure” means, subject to subsection (2), expenditure incurred on—
(a) the conversion into a house of a building—
(i) the site of which is wholly within a qualifying resort area, and
(ii) which before the conversion had not been in use as a dwelling,
and
(b) the conversion into 2 or more houses of a building—
(i) the site of which is wholly within a qualifying resort area, and
(ii) which before the conversion had not been in use as a dwelling or had been in use as a single dwelling,
and references in this section and in section 359 to “conversion”, “conversion into a house” and “expenditure incurred on conversion” shall be construed accordingly;
“qualifying lease”, in relation to a house, means, subject to section 359 (2), a lease of the house the consideration for the grant of which consists solely of—
(a) a single payment which is or is to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) periodic payments all of which are or are to be treated as rent for the purposes of that Chapter;
“qualifying premises” means, subject to subsections (3), (4)(b), (5) and (6) of section 359 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of conversion in relation to the house is not less than the expenditure actually incurred on such conversion, and
(d) which without having been used subsequent to the incurring of the expenditure on the conversion is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) For the purposes of this section, expenditure incurred on the conversion of a building shall be deemed to include expenditure incurred in the course of the conversion on either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
in relation to the building or any outoffice appurtenant to or usually enjoyed with the building, but shall not be deemed to include—
(i) any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts, or
(ii) any expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the conversion is not a house.
(3) For the purposes of subsection (2)(ii), where expenditure is attributable to a building in general and not directly to any particular house or non-residential unit comprised in the building on completion of the conversion, such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building.
(4) Where a person, having made a claim in that behalf, proves to have incurred conversion expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 359 (8) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(5) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the conversion of that building or those buildings for the purposes of determining the conversion expenditure incurred in relation to the qualifying premises.
(6) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (4) in respect of conversion expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(7) Where the event mentioned in subsection (6)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of conversion expenditure in relation to the house equal to the amount of the conversion expenditure which under section 359 (8) or under this section the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 359 (8) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house.
(8) Where conversion expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period conversion expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 359 (8) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 359 (8) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the conversion expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(9) This section shall not apply in the case of a conversion unless planning permission in respect of the conversion has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(10) Section 359 shall apply for the purposes of supplementing this section.
num: 358
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 359 (2), a lease of the house the consideration for the grant of which consists solely of—
(a) a single payment which is or is to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) periodic payments all of which are or are to be treated as rent for the purposes of that Chapter;
“qualifying premises” means, subject to subsections (3), (4)(b), (5) and (6) of section 359 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of refurbishment in relation to the house is not less than the relevant expenditure actually incurred on such refurbishment, and
(d) which on the date of completion of the refurbishment to which the relevant expenditure relates is let (or, if not let on that date, is, without having been used after that date, first let) in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“refurbishment”, in relation to a building, means either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
where the carrying out of such works or the provision of such facilities is certified by the Minister for the Environment and Local Government, in any certificate of reasonable cost granted by that Minister in relation to any house contained in the building, to have been necessary for the purposes of ensuring the suitability as a dwelling of any house in the building and whether or not the number of houses in the building, or the shape or size of any such house, is altered in the course of such refurbishment;
“relevant expenditure” means expenditure incurred on the refurbishment of a specified building, other than expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the refurbishment is not a house, and for the purposes of this definition where expenditure is attributable to the specified building in general (and not directly to any particular house or non-residential unit comprised in the building on completion of the refurbishment), such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the completion of the refurbishment to which the relevant expenditure relates or, if the premises was not let under a qualifying lease on that date, the period of 10 years beginning on the date of the first such letting after the date of such completion;
“specified building” means a building—
(a) the site of which is wholly within a qualifying resort area,
(b) in which before the refurbishment to which the relevant expenditure relates there is one or more than one house, and
(c) which on completion of that refurbishment contains (whether in addition to any non-residential unit or not) one or more than one house.
(2) Where a person, having made a claim in that behalf, proves to have incurred relevant expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 359 (8) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the relevant expenditure incurred on that building or those buildings for the purposes of determining the relevant expenditure incurred in relation to the qualifying premises.
(4) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of relevant expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(5) Where the event mentioned in subsection (4)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of relevant expenditure in relation to the house equal to the amount of the relevant expenditure which under section 359 (8) or under this section the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 359 (8) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house.
(6) Where relevant expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period relevant expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 359 (8) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 359 (8) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the relevant expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(7) This section shall not apply in the case of any refurbishment unless planning permission, in so far as it is required, in respect of the work carried out in the course of the refurbishment has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(8) Expenditure in respect of which a person is entitled to relief under this section shall not include any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts.
(9) Section 359 shall apply for the purposes of supplementing this section.
num: 359
paragraphs: —(1) In sections 356 to 358 —
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 356 , 357 or 358 , as the case may be, stating that the amount specified in the certificate in relation to the cost of construction of, conversion into, or, as the case may be, refurbishment of, the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) A lease shall not be a qualifying lease for the purposes of section 356 , 357 or 358 if the terms of the lease contain any provision enabling the lessee or any other person, directly or indirectly, at any time to acquire any interest in the house to which the lease relates for a consideration less than that which might be expected to be given at that time for the acquisition of the interest if the negotiations for that acquisition were conducted in the open market at arm's length.
(3) A house shall not be a qualifying premises for the purposes of section 356 , 357 or 358 if—
(a) it is occupied as a dwelling by any person connected with the person entitled, in relation to the expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the house, to a deduction under section 356 (2), 357 (4) or 358 (2), as the case may be, and
(b) the terms of the qualifying lease in relation to the house are not such as might have been expected to be included in the lease if the negotiations for the lease had been at arm's length.
(4) (a) A house shall not be a qualifying premises for the purposes of section 356 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 357 or 358 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(5) A house shall not be a qualifying premises for the purposes of section 356 , 357 or 358 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of those sections are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(6) (a) A house shall not be a qualifying premises for the purposes of section 356 , 357 or 358 unless, throughout the relevant period (within the meaning of section 356 , 357 or 358 , as the case may be)—
(i) it is used primarily for letting to and occupation by tourists, with or without prior arrangement, and
(ii) it is used and occupied for no other purpose during the period beginning on the 1st day of April and ending on the 31st day of October in each year.
(b) A house shall not be a qualifying premises for the purposes of section 356 , 357 or 358 if, during the relevant period (within the meaning of section 356 , 357 or 358 , as the case may be), the house is let or leased to or occupied by any person for more than 2 consecutive months at any one time or for more than 6 months in any year.
(c) A house shall not be a qualifying premises for the purposes of section 356 , 357 or 358 unless a register of lessees of the house is maintained which shall contain the following particulars—
(i) the name, permanent address and nationality of each lessee of the house during the relevant period (within the meaning of section 356 , 357 or 358 , as the case may be), and
(ii) the date of arrival and the date of departure of each such lessee.
(7) For the purposes of sections 356 to 358 , references in those sections to the construction of, conversion into, or, as the case may be, refurbishment of, any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
(8) (a) For the purposes of determining, in relation to any claim under section 356 (2), 357 (4) or 358 (2), as the case may be, whether and to what extent expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, a qualifying premises is incurred or not incurred during the qualifying period, only such an amount of that expenditure as is properly attributable to work on the construction of, conversion into, or, as the case may be, refurbishment of, the premises actually carried out during the qualifying period shall be treated as having been incurred during that period.
(b) Where by virtue of subsection (7) expenditure on the construction of, conversion into, or, as the case may be, refurbishment of, a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction of, conversion into, or, as the case may be, refurbishment of, the qualifying premises were references to the development of such land.
(9) (a) For the purposes of sections 356 and 357 other than the purposes mentioned in subsection (8)(a), expenditure incurred on the construction of, or, as the case may be, conversion into, a qualifying premises shall be deemed to have been incurred on the date of the first letting of the premises under a qualifying lease.
(b) For the purposes of section 358 other than the purposes mentioned in subsection (8)(a), relevant expenditure incurred in relation to the refurbishment of a qualifying premises shall be deemed to have been incurred on the date of the commencement of the relevant period, in relation to the premises, determined as respects the refurbishment to which the relevant expenditure relates.
(10) For the purposes of sections 356 to 358 , expenditure shall not be regarded as incurred by a person in so far as it has been or is to be met, directly or indirectly, by the State, by any board established by statute or by any public or local authority.
(11) Section 555 shall apply as if a deduction under section 356 (2), 357 (4) or 358 (2), as the case may be, were a capital allowance and as if any rent deemed to have been received by a person under section 356 (4), 357 (6) or 358 (4), as the case may be, were a balancing charge.
(12) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 356 , 357 or 358 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 360
paragraphs: —(1) In this Chapter—
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 361 , 362 , 363 or 364 , as the case may be, stating that the amount specified in the certificate in relation to the cost of construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“designated island” means any of the following islands—
(a) in the administrative county of Cork, the islands of Bere, Clear, Dursey, Hare, Long, Sherkin and Whiddy,
(b) in the administrative county of Donegal, the islands of Arranmore, Inishbofin, Inishfree and Tory,
(c) in the administrative county of Galway, the islands of Inisbofin, Inisheer, Inishmaan and Inishmore,
(d) in the administrative county of Limerick, the island of Foynes,
(e) in the administrative county of Mayo, the islands of Claggan, Clare, Inishbiggle, Inishcottle, Inishlyre and Inishturk, and
(f) in the administrative county of Sligo, the island of Coney;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“lease”, “lessee”, “lessor”, “premium” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“market value”, in relation to a building or house, means the price which the unencumbered fee simple of the building or house would fetch if sold in the open market in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the building or house, less the part of that price which would be attributable to the acquisition of, or of rights in or over, the land on which the building or house is constructed;
“qualifying period” means the period commencing on the 1st day of August, 1996, and ending on the 31st day of July, 1999;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) References in this Chapter to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
num: 361
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 365 (1), a lease of the house the duration of which is not less than 12 months and the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the relevant cost of the house;
“qualifying premises” means, subject to subsections (2), (3)(a) and (4) of section 365 , a house—
(a) the site of which is on a designated island,
(b) which is used solely as a dwelling,
(c) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(d) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost, the amount specified in which in respect of the cost of construction of the house is not less than the expenditure actually incurred on such construction, and
(e) which without having been used is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant cost”, in relation to a house, means, subject to subsection (3), an amount equal to the aggregate of—
(a) the expenditure incurred on the acquisition of, or of rights in or over, any land on which the house is constructed, and
(b) the expenditure actually incurred on the construction of the house;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred expenditure on the construction of a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of that expenditure as is to be treated under section 365 (5) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the expenditure to be treated as having been incurred in the qualifying period on the construction of the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the expenditure actually incurred on the construction of the qualifying premises which is to be treated under section 365 (5) as having been incurred in the qualifying period bears to the whole of the expenditure incurred on that construction.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary—
(a) of the expenditure incurred on the construction of that building or those buildings, and
(b) of the amount which would be the relevant cost in relation to that building or those buildings if the building or buildings, as the case may be, were a single qualifying premises,
for the purposes of determining the expenditure incurred on the construction of the qualifying premises and the relevant cost in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of expenditure incurred on the construction of the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) (a) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of expenditure on the construction of the house equal to the amount which under section 365 (5) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period on the construction of the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed the relevant price paid by such person on the purchase.
(b) For the purposes of this subsection and subsection (7), the relevant price paid by a person on the purchase of a house shall be the amount which bears to the net price paid by such person on that purchase the same proportion as the amount of the expenditure actually incurred on the construction of the house which is to be treated under section 365 (5) as having been incurred in the qualifying period bears to the relevant cost in relation to that house.
(7) (a) Subject to paragraph (b), where expenditure is incurred on the construction of a house and before the house is used it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the lesser of—
(i) the amount of such expenditure which is to be treated under section 365 (5) as having been incurred in the qualifying period, and
(ii) the relevant price paid by such person on the purchase;
but, where the house is sold more than once before it is used, this subsection shall apply only in relation to the last of those sales.
(b) Where expenditure is incurred on the construction of a house by a person carrying on a trade or part of a trade which consists, as to the whole or any part of that trade, of the construction of buildings with a view to their sale and the house, before it is used, is sold in the course of that trade or, as the case may be, that part of that trade—
(i) the person (in this paragraph referred to as “the purchaser”) who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period expenditure on the construction of the house equal to the relevant price paid by the purchaser on the purchase (in this paragraph referred to as “the first purchase”), and
(ii) in relation to any subsequent sale or sales of the house before the house is used, paragraph (a) shall apply as if the reference to the amount of expenditure which is to be treated as having been incurred in the qualifying period were a reference to the relevant price paid on the first purchase.
(8) Section 365 shall apply for the purposes of supplementing this section.
num: 362
paragraphs: —(1) In this section—
“conversion expenditure” means, subject to subsection (2), expenditure incurred on—
(a) the conversion into a house of a building—
(i) the site of which is on a designated island, and
(ii) which has not been previously in use as a dwelling,
and
(b) the conversion into 2 or more houses of a building—
(i) the site of which is on a designated island, and
(ii) which before the conversion had not been in use as a dwelling or had been in use as a single dwelling,
and references in this section and in section 365 to “conversion”, “conversion into a house” and “expenditure incurred on conversion” shall be construed accordingly;
“qualifying lease”, in relation to a house, means, subject to section 365 (1), a lease of the house the duration of which is not less than 12 months and the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium which does not exceed 10 per cent of the market value of the house at the time the conversion is completed and, in the case of a house which is a part of a building and is not saleable apart from the building of which it is a part, the market value of the house at the time the conversion is completed shall for the purposes of this paragraph be taken to be an amount which bears to the market value of the building at that time the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (2), (3)(b) and (4) of section 365 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of conversion in relation to the house is not less than the expenditure actually incurred on such conversion, and
(d) which without having been used subsequent to the incurring of the expenditure on the conversion is first let in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the first letting of the premises under a qualifying lease.
(2) For the purposes of this section, expenditure incurred on the conversion of a building shall be deemed to include expenditure incurred in the course of the conversion on either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
in relation to the building or any outoffice appurtenant to or usually enjoyed with the building, but shall not be deemed to include—
(i) any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts, or
(ii) any expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the conversion is not a house.
(3) For the purposes of subsection (2)(ii), where expenditure is attributable to a building in general and not directly to any particular house or non-residential unit comprised in the building on completion of the conversion, such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building.
(4) Subject to subsection (5), where a person, having made a claim in that behalf, proves to have incurred conversion expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 365 (5) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(5) (a) This subsection shall apply to any premium or other sum which is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor.
(b) Where any premiums or other sum to which this subsection applies or any part of such premium or such other sum, is not or is not treated as rent for the purposes of section 97 , the conversion expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (4) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the conversion expenditure actually incurred in relation to the qualifying premises which is to be treated under section 365 (5) as having been incurred in the qualifying period bears to the whole of the conversion expenditure incurred in relation to the qualifying premises.
(6) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the expenditure incurred on the conversion of that building or those buildings for the purposes of determining the conversion expenditure incurred in relation to the qualifying premises.
(7) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (4) in respect of conversion expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(8) Where the event mentioned in subsection (7)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of conversion expenditure in relation to the house equal to the amount of the conversion expenditure which under section 365 (5) or under this section (apart from subsection (5)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 365 (5) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house.
(9) Where conversion expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period conversion expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 365 (5) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the conversion expenditure incurred in relation to the house is to be treated under section 365 (5) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the conversion expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the conversion expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(10) This section shall not apply in the case of a conversion unless planning permission in respect of the conversion has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(11) Section 365 shall apply for the purposes of supplementing this section.
num: 363
paragraphs: —(1) In this section—
“qualifying lease”, in relation to a house, means, subject to section 365 (1), a lease of the house the duration of which is not less than 12 months and the consideration for the grant of which consists—
(a) solely of periodic payments all of which are or are to be treated as rent for the purposes of Chapter 8 of Part 4 , or
(b) of payments of the kind mentioned in paragraph (a), together with a payment by means of a premium—
(i) which is payable on or subsequent to the date of the completion of the refurbishment to which the relevant expenditure relates or which, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment, and
(ii) which does not exceed 10 per cent of the market value of the house on the date of completion of the refurbishment to which the relevant expenditure relates and, in the case of a house which is part of a building and is not saleable apart from the building of which it is a part, the market value of the house on that date shall for the purposes of this subparagraph be taken to be an amount which bears to the market value of the building on that date the same proportion as the total floor area of the house bears to the total floor area of the building;
“qualifying premises” means, subject to subsections (2), (3)(b) and (4) of section 365 , a house—
(a) which is used solely as a dwelling,
(b) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres,
(c) in respect of which there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of refurbishment in relation to the house is not less than the relevant expenditure actually incurred on such refurbishment, and
(d) which on the date of completion of the refurbishment to which the relevant expenditure relates is let (or, if not let on that date, is, without having been used after that date, first let) in its entirety under a qualifying lease and thereafter throughout the remainder of the relevant period (except for reasonable periods of temporary disuse between the ending of one qualifying lease and the commencement of another such lease) continues to be let under such a lease;
“refurbishment”, in relation to a building, means either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
where the carrying out of such works or the provision of such facilities is certified by the Minister for the Environment and Local Government, in any certificate of reasonable cost granted by that Minister in relation to any house contained in the building, to have been necessary for the purposes of ensuring the suitability as a dwelling of any house in the building and whether or not the number of houses in the building, or the shape or size of any such house, is altered in the course of such refurbishment;
“relevant expenditure” means expenditure incurred on the refurbishment of a specified building, other than expenditure attributable to any part (in this section referred to as a “non-residential unit”) of the building which on completion of the refurbishment is not a house, and for the purposes of this definition where expenditure is attributable to the specified building in general (and not directly to any particular house or non-residential unit comprised in the building on completion of the refurbishment), such an amount of that expenditure shall be deemed to be attributable to a non-residential unit as bears to the whole of that expenditure the same proportion as the total floor area of the non-residential unit bears to the total floor area of the building;
“relevant period”, in relation to a qualifying premises, means the period of 10 years beginning on the date of the completion of the refurbishment to which the relevant expenditure relates or, if the premises was not let under a qualifying lease on that date, the period of 10 years beginning on the date of the first such letting after the date of such completion;
“specified building” means a building—
(a) the site of which is on a designated island,
(b) in which before the refurbishment to which the relevant expenditure relates there is one or more than one house, and
(c) which on completion of that refurbishment contains (whether in addition to any non-residential unit or not) one or more than one house.
(2) Subject to subsection (3), where a person, having made a claim in that behalf, proves to have incurred relevant expenditure in relation to a house which is a qualifying premises—
(a) such person shall be entitled, in computing for the purposes of section 97 (1) the amount of a surplus or deficiency in respect of the rent from the qualifying premises, to a deduction of so much (if any) of the expenditure as is to be treated under section 365 (5) or under this section as having been incurred by such person in the qualifying period, and
(b) Chapter 8 of Part 4 shall apply as if that deduction were a deduction authorised by section 97 (2).
(3) (a) This subsection shall apply to any premium or other sum which—
(i) is payable, directly or indirectly, under a qualifying lease or otherwise under the terms subject to which the lease is granted, to or for the benefit of the lessor or to or for the benefit of any person connected with the lessor, and
(ii) is payable on or subsequent to the date of completion of the refurbishment to which the relevant expenditure relates or, if payable before that date, is so payable by reason of or otherwise in connection with the carrying out of the refurbishment.
(b) Where any premium or other sum to which this subsection applies, or any part of such premium or such other sum, is not or is not treated as rent for the purposes section 97 , the relevant expenditure to be treated as having been incurred in the qualifying period in relation to the qualifying premises to which the qualifying lease relates shall be deemed for the purposes of subsection (2) to be reduced by the lesser of—
(i) the amount of such premium or such other sum or, as the case may be, that part of such premium or such other sum, and
(ii) the amount which bears to the amount mentioned in subparagraph (i) the same proportion as the amount of the relevant expenditure actually incurred in relation to the qualifying premises which is to be treated under section 365 (5) as having been incurred in the qualifying period bears to the whole of the relevant expenditure incurred in relation to the qualifying premises.
(4) Where a qualifying premises forms a part of a building or is one of a number of buildings in a single development, or forms a part of a building which is itself one of a number of buildings in a single development, there shall be made such apportionment as is necessary of the relevant expenditure incurred on that building or those buildings for the purposes of determining the relevant expenditure incurred in relation to the qualifying premises.
(5) Where a house is a qualifying premises and at any time during the relevant period in relation to the premises either of the following events occurs—
(a) the house ceases to be a qualifying premises, or
(b) the ownership of the lessor's interest in the house passes to any other person but the house does not cease to be a qualifying premises,
then, the person who before the occurrence of the event received or was entitled to receive a deduction under subsection (2) in respect of relevant expenditure incurred in relation to the qualifying premises shall be deemed to have received on the day before the day of the occurrence of the event an amount as rent from the qualifying premises equal to the amount of the deduction.
(6) Where the event mentioned in subsection (5)(b) occurs in the relevant period in relation to a house which is a qualifying premises, the person to whom the ownership of the lessor's interest in the house passes shall be treated for the purposes of this section as having incurred in the qualifying period an amount of relevant expenditure in relation to the house equal to the amount of the relevant expenditure which under section 365 (5) or under this section (apart from subsection (3)(b)) the lessor was treated as having incurred in the qualifying period in relation to the house; but, in the case of a person who purchases such a house, the amount so treated as having been incurred by such person shall not exceed—
(a) the net price paid by such person on the purchase, or
(b) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 365 (5) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house.
(7) Where relevant expenditure is incurred in relation to a house and before the house is used subsequent to the incurring of that expenditure it is sold, the person who purchases the house shall be treated for the purposes of this section as having incurred in the qualifying period relevant expenditure in relation to the house equal to the lesser of—
(a) the amount of such expenditure which is to be treated under section 365 (5) as having been incurred in the qualifying period, and
(b) (i) the net price paid by such person on the purchase, or
(ii) in case only a part of the relevant expenditure incurred in relation to the house is to be treated under section 365 (5) as having been incurred in the qualifying period, the amount which bears to that net price the same proportion as that part bears to the whole of the relevant expenditure incurred in relation to the house;
but, where the house is sold more than once before it is used subsequent to the incurring of the relevant expenditure in relation to the house, this subsection shall apply only in relation to the last of those sales.
(8) This section shall not apply in the case of any refurbishment unless planning permission, in so far as it is required, in respect of the work carried out in the course of the refurbishment has been granted under the Local Government (Planning and Development) Acts, 1963 to 1993.
(9) Expenditure in respect of which a person is entitled to relief under this section shall not include any expenditure in respect of which any person is entitled to a deduction, relief or allowance under any other provision of the Tax Acts.
(10) Section 365 shall apply for the purposes of supplementing this section.
num: 364
paragraphs: —(1) In this section—
“qualifying expenditure”, in relation to an individual, means an amount equal to the amount of the expenditure incurred by the individual on the construction or, as the case may be, refurbishment of a qualifying premises which is a qualifying owner-occupied dwelling in relation to the individual after deducting from that amount of expenditure any sum in respect of or by reference to—
(a) that expenditure,
(b) the qualifying premises, or
(c) the construction or, as the case may be, refurbishment work in respect of which that expenditure was incurred,
which the individual has received or is entitled to receive, directly or indirectly, from the State, any board established by statute or any public or local authority;
“qualifying owner-occupied dwelling”, in relation to an individual, means a qualifying premises which is first used, after the qualifying expenditure has been incurred, by the individual as his or her only or main residence;
“qualifying premises”, in relation to the incurring of qualifying expenditure, means, subject to subsections (3) and (4)(a) of section 365 , a house—
(a) the site of which is on a designated island,
(b) which is used solely as a dwelling,
(c) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of construction or, as the case may be, refurbishment of the house is not less than the expenditure actually incurred on such construction or refurbishment, as the case may be, and
(d) the total floor area of which—
(i) is not less than 30 square metres and not more than 125 square metres in the case where the house is a separate self-contained flat or maisonette in a building of 2 or more storeys, or
(ii) in any other case, is not less than 35 square metres and not more than 125 square metres;
“refurbishment” has the same meaning as in section 363 .
(2) (a) Subject to subsection (3), where an individual, having made a claim in that behalf, proves to have incurred qualifying expenditure in a year of assessment, the individual shall be entitled, for that year of assessment and for any of the 9 subsequent years of assessment in which the qualifying premises in respect of which the individual incurred the qualifying expenditure is the only or main residence of the individual, to have a deduction made from his or her total income of an amount equal to 5 per cent of the amount of that expenditure.
(b) A deduction shall be given under this section in respect of qualifying expenditure only in so far as that expenditure is to be treated under section 365 (5) as having been incurred in the qualifying period.
(3) Where qualifying expenditure in relation to a qualifying premises is incurred by 2 or more persons, each of those persons shall be treated as having incurred the expenditure in the proportions in which they actually bore the expenditure and the expenditure shall be apportioned accordingly.
(4) Section 365 shall apply for the purposes of supplementing this section.
num: 365
paragraphs: —(1) A lease shall not be a qualifying lease for the purposes of section 361 , 362 or 363 if the terms of the lease contain any provision enabling the lessee or any other person, directly or indirectly, at any time to acquire any interest in the house to which the lease relates for a consideration less than that which might be expected to be given at that time for the acquisition of the interest if the negotiations for that acquisition were conducted in the open market at arm's length.
(2) A house shall not be a qualifying premises for the purposes of section 361 , 362 or 363 if—
(a) it is occupied as a dwelling by any person connected with the person entitled, in relation to the expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the house, to a deduction under section 361 (2), 362 (4) or 363 (2), as the case may be, and
(b) the terms of the qualifying lease in relation to the house are not such as might have been expected to be included in the lease if the negotiations for the lease had been at arm's length.
(3) (a) A house shall not be a qualifying premises for the purposes of section 361 or, in so far as it applies to expenditure other than expenditure on refurbishment, section 364 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 362 or 363 or, in so far as it applies to expenditure on refurbishment, section 364 unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(4) (a) A house shall not be a qualifying premises for the purposes of section 361 , 362 , 363 or 364 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of those sections are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(b) A house shall not be a qualifying premises for the purposes of section 361 , 362 or 363 unless, throughout the period of any qualifying lease related to that premises, the house is used as the sole or main residence of the lessee in relation to that qualifying lease.
(5) (a) For the purposes of determining, in relation to any claim under section 361 (2), 362 (4), 363 (2) or 364 (2), as the case may be, whether and to what extent expenditure incurred on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises is incurred or not incurred during the qualifying period, only such an amount of that expenditure as is properly attributable to work on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the premises actually carried out during the qualifying period shall be treated as having been incurred during that period.
(b) Where by virtue of section 360 (2) expenditure on the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, the qualifying premises were references to the development of such land.
(6) (a) For the purposes of sections 361 and 362 other than the purposes mentioned in subsection (5)(a), expenditure incurred on the construction of, or, as the case may be, conversion into, a qualifying premises shall be deemed to have been incurred on the date of the first letting of the premises under a qualifying lease.
(b) For the purposes of section 363 other than the purposes mentioned in subsection (5)(a), relevant expenditure incurred in relation to the refurbishment of a qualifying premises shall be deemed to have been incurred on the date of the commencement of the relevant period, in relation to the premises, determined as respects the refurbishment to which the relevant expenditure relates.
(c) For the purposes of section 364 other than the purposes mentioned in subsection (5)(a), expenditure incurred on the construction or refurbishment of a qualifying premises shall be deemed to have been incurred on the earliest date after the expenditure was actually incurred that the premises is in use as a dwelling.
(7) For the purposes of sections 361 to 363 , expenditure shall not be regarded as incurred by a person in so far as it has been or is to be met, directly or indirectly, by the State, by any board established by statute or by any public or local authority.
(8) Section 555 shall apply as if a deduction under section 361 (2), 362 (4) or 363 (2), as the case may be, were a capital allowance and as if any rent deemed to have been received by a person under section 361 (5), 362 (7) or 363 (5), as the case may be, were a balancing charge.
(9) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 361 , 362 , 363 or 364 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 366
paragraphs: —In this Chapter—
“qualifying area” means an area or areas in the Dublin Docklands Area (within the meaning of section 4 of the Dublin Docklands Development Authority Act, 1997 ) specified as a qualifying area by order under section 367 ;
“lease”, “lessee”, “lessor”, “premium” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“market value”, in relation to a building, structure or house, means the price which the unencumbered fee simple of the building, structure or house would fetch if sold in the open market in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the building, structure or house, less the part of that price which would be attributable to the acquisition of, or of rights in or over, the land on which the building, structure or house is constructed;
“qualifying period” means, subject to section 367 , the period commencing on the 1st day of July, 1997, and ending on the 30th day of June, 2000;
“refurbishment”, in relation to a building or structure and other than for the purposes of section 371 , means any work of construction, reconstruction, repair or renewal, including the provision or improvement of water, sewerage or heating facilities, carried out in the course of the repair or restoration, or maintenance in the nature of repair or restoration, of the building or structure.
num: 367
paragraphs: —(1) Subject to subsection (2), the Minister for Finance may, after consultation with the Minister for the Environment and Local Government, following a recommendation from the Executive Board (within the meaning of section 17 of the Dublin Docklands Development Authority Act, 1997 ) of the Dublin Docklands Development Authority (within the meaning of section 14 of that Act), by order direct that—
(a) the area or areas described in the order shall be a qualifying area—
(i) for the purposes of one or more sections of this Chapter, and
(ii) in relation to section 369 , for the purposes of that section, including or excluding the provisions of subsection (6) of that section as may be specified in the order, and
(b) as respects any such area so described in the order, the definition of “qualifying period” in section 366 shall be construed as a reference to such period as shall be specified in the order in relation to that area, but no such period specified in the order shall commence before the 1st day of July, 1997, or end after the 30th day of June, 2000.
(2) In considering the making of an order under subsection (1) in respect of an area and in particular for the purposes of determining whether that area should be a qualifying area for the purposes of one or more sections of this Chapter and, where the area is to be a qualifying area for the purposes of section 369 , whether the relief to be provided by virtue of section 369 is or is not to be subject to subsection (6) of that section, the Minister shall have regard to the following criteria—
(a) the consistency, in relation to the area, of the types of development for which relief is provided in one or more sections of this Chapter with the relevant provisions of the master plan for the Dublin Docklands Area prepared and adopted under section 24 of the Dublin Docklands Development Authority Act, 1997 , which consistency shall be certified by the Executive Board of the Dublin Docklands Development Authority,
(b) the market conditions in the area in terms of the existing and projected supply of, and the existing and projected demand for, the type of development for which relief is provided in one or more sections of this Chapter,
(c) the significance of the area for the overall regeneration of the Dublin Docklands Area, and
(d) the nature and extent of any barriers to the regeneration of the area.
(3) Every order made by the Minister for Finance under subsection (1) shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the order is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 368
paragraphs: —(1) This section shall apply to a building or structure the site of which is wholly within a qualifying area and which is to be an industrial building or structure by reason of its use for a purpose specified in section 268 (1)(a).
(2) Subject to subsection (4), section 271 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(b) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(c) subsection (3) of that section were deleted,
(d) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(e) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted.
(3) Subject to subsection (4), section 273 shall apply in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a building or structure to which this section applies as if—
(a) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(b) subsections (2)(b) and (3) to (7) of that section were deleted.
(4) In the case where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure to which this section applies, subsections (2) and (3) shall apply only if the total amount of the capital expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(5) For the purposes only of determining, in relation to a claim for an allowance under section 271 or 273 as applied by this section, whether and to what extent capital expenditure incurred on the construction or refurbishment of an industrial building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the building or structure actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
num: 369
paragraphs: —(1) (a) In this section—
“qualifying multi-storey car park” means a building or structure consisting of 2 or more storeys wholly or mainly in use for the purpose of providing, for members of the public generally without preference for any particular class of person, on payment of an appropriate charge, parking space for mechanically propelled vehicles;
“qualifying premises” means a building or structure the site of which is wholly within a qualifying area and which—
(i) apart from this section is not an industrial building or structure within the meaning of section 268 , and
(ii) (I) is in use for the purposes of a trade or profession, or
(II) whether or not it is so used, is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but does not include a car park (other than a qualifying multi-storey car park) or any part of a building or structure in use as or as part of a dwelling-house.
(b) Where part of a building or structure is a qualifying premises and part of it (in this paragraph referred to as “the second-mentioned part”) is not a qualifying premises and the capital expenditure incurred in the qualifying period on the construction or refurbishment of the second-mentioned part is not more than 10 per cent of the total capital expenditure incurred in that period on the construction or refurbishment of the building or structure, then, the building or structure and every part of it shall be treated as a qualifying premises.
(2) (a) Subject to paragraph (b) and subsections (3) to (6), the provisions of the Tax Acts (other than section 368 ) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction or refurbishment of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply—
(i) as if a qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by reason of its use for a purpose specified in section 268 (1)(a), and
(ii) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(b) An allowance shall be given by virtue of this subsection in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises only in so far as that expenditure is incurred in the qualifying period.
(3) In the case where capital expenditure is incurred in the qualifying period on the refurbishment of a qualifying premises, subsection (2) shall apply only if the total amount of the capital expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the qualifying premises immediately before that expenditure is incurred.
(4) For the purposes of the application, by subsection (2), of sections 271 and 273 in relation to capital expenditure incurred in the qualifying period on the construction or refurbishment of a qualifying premises—
(a) section 271 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted,
(ii) in subsection (2)(a)(i) of that section “to which subsection (3) applies” were deleted,
(iii) subsection (3) of that section were deleted,
(iv) the following subsection were substituted for subsection (4) of that section:
“(4) An industrial building allowance shall be of an amount equal to 50 per cent of the capital expenditure mentioned in subsection (2).”,
and
(v) in subsection (5) of that section “to which subsection (3)(c) applies” were deleted,
and
(b) section 273 shall apply as if—
(i) in subsection (1) of that section the definition of “industrial development agency” were deleted, and
(ii) subsections (2)(b) and (3) to (7) of that section were deleted.
(5) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs—
(a) more than 13 years after the qualifying premises was first used, or
(b) in a case where section 276 applies, more than 13 years after the capital expenditure on refurbishment of the qualifying premises was incurred.
(6) (a) Notwithstanding subsections (2) to (5), any allowance or charge which apart from this subsection would be made by virtue of subsection (2) in respect of capital expenditure incurred on the construction or refurbishment of a qualifying premises may be reduced to one-half of the amount which apart from this subsection would be the amount of that allowance or charge.
(b) Paragraph (a) shall apply where, in respect of an area, the Minister for Finance, having had regard to the criteria set out in subsection (2) of section 367 , has specified in an order under subsection (1) of that section that the area is a qualifying area for the purposes of this section and that the relief to apply is subject to this subsection.
(c) For the purposes of paragraph (a), the amount of an allowance or charge to be reduced to one-half shall be computed as if—
(i) this subsection had not been enacted, and
(ii) effect had been given to all allowances taken into account in so computing that amount.
(d) Nothing in this subsection shall affect the operation of section 274 (8).
(7) For the purposes only of determining, in relation to a claim for an allowance by virtue of subsection (2), whether and to what extent capital expenditure incurred on the construction or refurbishment of a qualifying premises is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the premises actually carried out during the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
(8) Where by virtue of subsection (2) an allowance is given under Chapter 1 of Part 9 in respect of any capital expenditure incurred on the construction or refurbishment of a qualifying premises, relief shall not be given in respect of that expenditure under that Chapter by virtue of any provision of the Tax Acts other than subsection (2).
num: 370
paragraphs: —(1) In this section—
“qualifying lease” means, subject to subsection (8), a lease in respect of a qualifying premises granted in the qualifying period on bona fide commercial terms by a lessor to a lessee not connected with the lessor, or with any other person entitled to a rent in respect of the qualifying premises, whether under that lease or any other lease;
“qualifying premises” means, subject to subsection (5)(a), a building or structure the site of which is wholly within a qualifying area and—
(a) (i) which is a building or structure in use for a purpose specified in section 268 (1)(a), and in respect of which capital expenditure is incurred in the qualifying period for which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under section 271 or 273 , as applied by section 368 ,
(ii) in respect of which an allowance is to be made, or will by virtue of section 279 be made, for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 by virtue of section 369 , or
(iii) which is a building or structure in use for the purposes specified in section 268 (1)(d), and in respect of the construction or refurbishment of which capital expenditure is incurred in the qualifying period for which an allowance would but for subsection (6) be made for the purposes of income tax or corporation tax, as the case may be, under Chapter 1 of Part 9 ,
and
(b) which is let on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure negotiated on an arm's length basis,
but, where capital expenditure is incurred in the qualifying period on the refurbishment of a building or structure in respect of which an allowance is to be made, or will by virtue of section 279 be made, or in respect of which an allowance would but for subsection (6) be made, for the purposes of income tax or corporation tax, as the case may be, under any of the provisions referred to in paragraph (a), the building or structure shall not be regarded as a qualifying premises unless the total amount of the expenditure so incurred is not less than an amount equal to 10 per cent of the market value of the building or structure immediately before that expenditure is incurred.
(2) For the purposes of this section, so much of a period, being a period when rent is payable by a person in relation to a qualifying premises under a qualifying lease, shall be a relevant rental period as does not exceed—
(a) 10 years, or
(b) the period by which 10 years exceeds—
(i) any preceding period, or
(ii) if there is more than one preceding period, the aggregate of those periods,
for which rent was payable by that person or any other person in relation to that premises under a qualifying lease.
(3) Subject to subsection (4), where in the computation of the amount of the profits or gains of a trade or profession a person is apart from this section entitled to any deduction (in this subsection referred to as “the first-mentioned deduction”) on account of rent in respect of a qualifying premises occupied by such person for the purposes of that trade or profession which is payable by such person for a relevant rental period in relation to that qualifying premises under a qualifying lease, such person shall be entitled in that computation to a further deduction (in this subsection referred to as “the second-mentioned deduction”) equal to the amount of the first-mentioned deduction but, where the first-mentioned deduction is on account of rent payable by such person to a connected person, such person shall not be entitled in that computation to the second-mentioned deduction.
(4) Where a person holds an interest in a qualifying premises out of which interest a qualifying lease is created directly or indirectly in respect of the qualifying premises and in respect of rent payable under the qualifying lease a claim for a further deduction under this section is made, and either such person or another person connected with such person—
(a) takes under a qualifying lease a qualifying premises (in this subsection referred to as “the second-mentioned premises”) occupied by such person or such other person, as the case may be, for the purposes of a trade or profession, and
(b) is apart from this section entitled, in the computation of the amount of the profits or gains of that trade or profession, to a deduction on account of rent in respect of the second-mentioned premises,
then, unless such person or such other person, as the case may be, shows that the taking on lease of the second-mentioned premises was not undertaken for the sole or main benefit of obtaining a further deduction on account of rent under this section, such person or such other person, as the case may be, shall not be entitled in the computation of the amount of the profits or gains of that trade or profession to any further deduction on account of rent in respect of the second-mentioned premises.
(5) (a) A building or structure in use for the purposes specified in section 268 (1)(d) shall not be a qualifying premises for the purposes of this section unless the person to whom an allowance under Chapter 1 of Part 9 would but for subsection (6) be made for the purposes of income tax or corporation tax, as the case may be, in respect of the capital expenditure incurred in the qualifying period on the construction or refurbishment of the building or structure elects by notice in writing to the appropriate inspector (within the meaning of section 950 ) to disclaim all allowances under that Chapter in respect of that capital expenditure.
(b) An election under paragraph (a) shall be included in the return required to be made by the person concerned under section 951 for the first year of assessment or the first accounting period, as the case may be, for which an allowance would but for subsection (6) have been made to that person under Chapter 1 of Part 9 in respect of that capital expenditure.
(c) An election under paragraph (a) shall be irrevocable.
(d) A person who has made an election under paragraph (a) shall furnish a copy of that election to any person (in this paragraph referred to as “the second-mentioned person”) to whom the person grants a qualifying lease in respect of the qualifying premises, and the second-mentioned person shall include the copy in the return required to be made by the second-mentioned person under section 951 for the year of assessment or accounting period, as the case may be, in which rent is first payable by the second-mentioned person under the qualifying lease in respect of the qualifying premises.
(6) Where a person who has incurred capital expenditure in the qualifying period on the construction or refurbishment of a building or structure in use for the purposes specified in section 268 (1)(d) makes an election under subsection (5)(a), then, notwithstanding any other provision of the Tax Acts—
(a) no allowance under Chapter 1 of Part 9 shall be made to the person in respect of that capital expenditure,
(b) on the occurrence, in relation to the building or structure, of any of the events referred to in section 274 (1), the residue of expenditure (within the meaning of section 277 ) in relation to that capital expenditure shall be deemed to be nil, and
(c) section 279 shall not apply in the case of any person who buys the relevant interest (within the meaning of section 269 ) in the building or structure.
(7) For the purposes of determining, in relation to paragraph (a)(iii) of the definition of “qualifying premises” and subsections (5) and (6), whether and to what extent capital expenditure incurred on the construction or refurbishment of a building or structure is incurred or not incurred in the qualifying period, only such an amount of that capital expenditure as is properly attributable to work on the construction or refurbishment of the building or structure actually carried out in the qualifying period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
(8) (a) In this subsection—
“current value”, in relation to minimum lease payments, means the value of those payments discounted to their present value at a rate which, when applied at the inception of the lease to—
(i) those payments, including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee, and
(ii) any unguaranteed residual value of the qualifying premises, excluding any part of such value for which the lessor will be accountable to the lessee,
produces discounted present values the aggregate amount of which equals the amount of the fair value of the qualifying premises;
“fair value”, in relation to a qualifying premises, means an amount equal to such consideration as might be expected to be paid for the premises on a sale negotiated on an arm's length basis less any grants receivable towards the purchase of the qualifying premises;
“inception of the lease” means the earlier of the time the qualifying premises is brought into use or the date from which rentals under the lease first accrue;
“minimum lease payments” means the minimum payments over the remaining part of the term of the lease to be paid to the lessor, and includes any residual amount to be paid to the lessor at the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee;
“unguaranteed residual value”, in relation to a qualifying premises, means that part of the residual value of that premises at the end of a term of a lease, as estimated at the inception of the lease, the realisation of which by the lessor is not assured or is guaranteed solely by a person connected with the lessor.
(b) A finance lease, that is—
(i) a lease in respect of a qualifying premises where, at the inception of the lease, the aggregate of the current value of the minimum lease payments (including any initial payment but excluding any payment or part of any payment for which the lessor will be accountable to the lessee) payable by the lessee in relation to the lease amounts to 90 per cent or more of the fair value of the qualifying premises, or
(ii) a lease which in all the circumstances is considered to provide in substance for the lessee the risks and benefits associated with ownership of the qualifying premises other than legal title to that premises,
shall not be a qualifying lease for the purposes of this section.
num: 371
paragraphs: —(1) In this section—
“qualifying expenditure”, in relation to an individual, means an amount equal to the amount of the expenditure incurred by the individual on the construction or, as the case may be, refurbishment of a qualifying premises which is a qualifying owner-occupied dwelling in relation to the individual after deducting from that amount of expenditure any sum in respect of or by reference to—
(a) that expenditure,
(b) the qualifying premises, or
(c) the construction or, as the case may be, refurbishment work in respect of which that expenditure was incurred,
which the individual has received or is entitled to receive, directly or indirectly, from the State, any board established by statute or any public or local authority;
“qualifying owner-occupied dwelling”, in relation to an individual, means a qualifying premises which is first used, after the qualifying expenditure has been incurred, by the individual as his or her only or main residence;
“qualifying premises”, in relation to the incurring of qualifying expenditure, means, subject to subsections (2) and (3) of section 372 , a house—
(a) the site of which is wholly within a qualifying area,
(b) which is used solely as a dwelling,
(c) in respect of which, if it is not a new house (for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 ) provided for sale, there is in force a certificate of reasonable cost the amount specified in which in respect of the cost of construction or, as the case may be, refurbishment of the house is not less than the expenditure actually incurred on such construction or refurbishment, as the case may be, and
(d) the total floor area of which is not less than 38 square metres and not more than 125 square metres;
“refurbishment”, in relation to a building, means either or both of the following—
(a) the carrying out of any works of construction, reconstruction, repair or renewal, and
(b) the provision or improvement of water, sewerage or heating facilities,
where the carrying out of such works or the provision of such facilities is certified by the Minister for the Environment and Local Government, in any certificate of reasonable cost granted by that Minister in relation to any house contained in the building, to have been necessary for the purposes of ensuring the suitability as a dwelling of any house in the building and whether or not the number of houses in the building, or the shape or size of any such house, is altered in the course of such refurbishment;
(2) Subject to subsection (3), where an individual, having made a claim in that behalf, proves to have incurred qualifying expenditure in a year of assessment, the individual shall be entitled, for that year of assessment and for any of the 9 subsequent years of assessment in which the qualifying premises in respect of which the individual incurred the qualifying expenditure is the only or main residence of the individual, to have a deduction made from his or her total income of an amount equal to—
(a) in the case where the qualifying expenditure has been incurred on the construction of the qualifying premises, 5 per cent of the amount of that expenditure, or
(b) in the case where the qualifying expenditure has been incurred on the refurbishment of the qualifying premises, 10 per cent of the amount of that expenditure.
(3) Where qualifying expenditure in relation to a qualifying premises is incurred by 2 or more persons, each of those persons shall be treated as having incurred the expenditure in the proportions in which they actually bore the expenditure, and the expenditure shall be apportioned accordingly.
(4) Section 372 shall apply for the purposes of supplementing this section.
num: 372
paragraphs: —(1) In section 371 —
“certificate of reasonable cost” means a certificate granted by the Minister for the Environment and Local Government for the purposes of section 371 stating that the amount specified in the certificate in relation to the cost of construction or refurbishment of the house to which the certificate relates appears to that Minister at the time of the granting of the certificate and on the basis of the information available to that Minister at that time to be reasonable, and section 18 of the Housing (Miscellaneous Provisions) Act, 1979 , shall, with any necessary modifications, apply to a certificate of reasonable cost as if it were a certificate of reasonable value within the meaning of that section;
“house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building;
“total floor area” means the total floor area of a house measured in the manner referred to in section 4 (2)(b) of the Housing (Miscellaneous Provisions) Act, 1979 .
(2) (a) A house shall not be a qualifying premises for the purposes of section 371 , in so far as it applies to expenditure other than expenditure on refurbishment, unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 4 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards of construction of houses and the provision of water, sewerage and other services in houses.
(b) A house shall not be a qualifying premises for the purposes of section 371 , in so far as it applies to expenditure on refurbishment, unless it complies with such conditions, if any, as may be determined by the Minister for the Environment and Local Government from time to time for the purposes of section 5 of the Housing (Miscellaneous Provisions) Act, 1979 , in relation to standards for improvements of houses and the provision of water, sewerage and other services in houses.
(c) A house shall not be a qualifying premises for the purposes of section 371 unless the house or, in a case where the house is one of a number of houses in a single development, the development of which it is a part complies with such guidelines as may from time to time be issued by the Minister for the Environment and Local Government, with the consent of the Minister for Finance, for the purposes of furthering the objectives of the Urban Renewal Act, 1986 , and, without prejudice to the generality of the foregoing, such guidelines may include provisions in relation to all or any one or more of the following—
(i) the design and the construction of, conversion into, refurbishment of, or, as the case may be, construction or refurbishment of, houses,
(ii) the total floor area and dimensions of rooms within houses, measured in such manner as may be determined by the Minister for the Environment and Local Government,
(iii) the provision of ancillary facilities and amenities in relation to houses, and
(iv) the balance to be achieved between houses of different types and sizes within a single development of 2 or more houses or within such a development and its general vicinity having regard to the housing existing or proposed in that vicinity.
(3) A house shall not be a qualifying premises for the purposes of section 371 unless persons authorised in writing by the Minister for the Environment and Local Government for the purposes of that section are permitted to inspect the house at all reasonable times on production, if so requested by a person affected, of their authorisations.
(4) For the purposes of section 371 , references in that section to the construction or refurbishment of any premises shall be construed as including references to the development of the land on which the premises is situated or which is used in the provision of gardens, grounds, access or amenities in relation to the premises and, without prejudice to the generality of the foregoing, as including in particular—
(a) demolition or dismantling of any building on the land,
(b) site clearance, earth moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(c) walls, power supply, drainage, sanitation and water supply, and
(d) the construction of any outhouses or other buildings or structures for use by the occupants of the premises or for use in the provision of amenities for the occupants.
(5) (a) For the purposes of determining, in relation to any claim under section 371 (2), whether and to what extent expenditure incurred on construction or refurbishment of a qualifying premises is incurred or not incurred during the qualifying period, only such an amount of that expenditure as is properly attributable to work on the construction or refurbishment of the premises actually carried out during the qualifying period shall be treated as having been incurred during that period.
(b) Where by virtue of subsection (4) expenditure on the construction or refurbishment of a qualifying premises includes expenditure on the development of any land, paragraph (a) shall apply with any necessary modifications as if the references in that paragraph to the construction or refurbishment of the qualifying premises were references to the development of such land.
(6) For the purposes of section 371 other than the purposes mentioned in subsection (5)(a), expenditure incurred on the construction or refurbishment of a qualifying premises shall be deemed to have been incurred on the earliest date after the expenditure was actually incurred on which the premises is in use as a dwelling.
(7) An appeal to the Appeal Commissioners shall lie on any question arising under this section or under section 371 (other than a question on which an appeal lies under section 18 of the Housing (Miscellaneous Provisions) Act, 1979 ) in the like manner as an appeal would lie against an assessment to income tax or corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 373
paragraphs: —(1) Subject to section 380 (1), this Part shall apply to a vehicle which is a mechanically propelled road vehicle constructed or adapted for the carriage of passengers, other than a vehicle of a type not commonly used as a private vehicle and unsuitable to be so used.
(2) In this Part, “the specified amount”, in relation to expenditure incurred on the provision or hiring of a vehicle to which this Part applies, means—
(a) £2,500, where the expenditure was incurred on or after the 16th day of May, 1973, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred under a contract entered into before that day where either—
(I) the expenditure was incurred within 12 months after that day, or
(II) the contract was one of hire-purchase or for purchase by instalments,
and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure where the contract of hire-purchase or for purchase by instalments was entered into before that day;
(b) £3,500, where the expenditure was incurred after the 28th day of January, 1976, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure under a contract entered into on or before that day;
(c) £4,000, where the expenditure was incurred on or after the 6th day of April, 1986, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure under a contract entered into before that day;
(d) £6,000, where the expenditure was incurred on or after the 28th day of January, 1988, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure under a contract entered into before that day;
(e) £7,000, where the expenditure was incurred on or after the 26th day of January, 1989, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure under a contract entered into before that day;
(f) £10,000, where the expenditure was incurred on or after the 30th day of January, 1992, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure under a contract entered into before that day;
(g) £13,000, where the expenditure was incurred on or after the 27th day of January, 1994, on the provision or hiring of a vehicle which on or after that day was first registered in the State under section 131 of the Finance Act, 1992 , without having been previously registered in any other State which provides for the registration of a mechanically propelled vehicle, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure incurred under a contract entered into before that day;
(h) £14,000, where the expenditure was incurred on or after the 9th day of February, 1995, on the provision or hiring of a vehicle which on or after that day was not a used or secondhand vehicle and was first registered in the State under section 131 of the Finance Act, 1992 , without having been previously registered in any other State which provides for the registration of a mechanically propelled vehicle, but such expenditure does not include—
(i) as respects sections 374 , 375 and 377 , expenditure incurred within 12 months after that day under a contract entered into before that day, and
(ii) as respects subsections (2) and (3) of section 378 and section 379 , expenditure incurred under a contract entered into before that day;
(i) £15,000, where the expenditure was incurred on or after the 23rd day of January, 1997, on the provision or hiring of a vehicle which, on or after that date was not a used or secondhand vehicle and was first registered in the State under section 131 of the Finance Act, 1992 , without having been previously registered in any other State which duly provides for the registration of a mechanically propelled vehicle.
(3) This Part (other than section 376 ) shall be construed as one with Part 9 , except that in section 375 “capital expenditure” shall be construed without regard to section 316 (1).
num: 374
paragraphs: —(1) In relation to a vehicle to which this Part applies, section 284 shall apply as if, for the purpose of subsection (3) of that section, the actual cost of the vehicle were taken to be the specified amount where the expenditure incurred on the provision of the vehicle exceeded that amount and, where an allowance which apart from this subsection would be made under section 284 is to be reduced by virtue of this subsection, any reference in the Tax Acts to an allowance made under section 284 shall be construed as a reference to that allowance as reduced under this subsection.
(2) In relation to a vehicle to which this Part applies, the allowances under section 284 to be taken into account for the purposes of Chapter 2 of Part 9 in computing the amount of expenditure still unallowed at any time shall be limited to those computed in accordance with subsection (1), and the expenditure incurred on the provision of the vehicle to be taken into account for the purposes of that Chapter shall be limited to the specified amount.
(3) Where the expenditure incurred on the provision of a vehicle to which this Part applies exceeds the specified amount, any balancing allowance or balancing charge shall be computed, in a case where there are sale, insurance, salvage or compensation moneys, as if the amount of those moneys (or, where in consequence of any provision of the Tax Acts other than this subsection some other amount is to be treated as the amount of those moneys, that other amount) were reduced in the proportion which the specified amount bears to the actual amount of that expenditure.
(4) (a) Where the expenditure incurred on the provision of a vehicle to which this Part applies exceeds the specified amount and—
(i) the person providing the vehicle (in this section referred to as “the prior owner”) sells the vehicle or gives it away so that subsection (5) of section 289 , or that subsection as applied by subsection (6) of that section, applies in relation to the purchaser or donee,
(ii) the prior owner sells the vehicle and the sale is a sale to which section 312 applies, or
(iii) in consequence of a succession to the trade or profession of the prior owner, section 313 (1) applies, then, in relation to the purchaser, donee or successor, the price which the vehicle would have fetched if sold in the open market or the expenditure incurred by the prior owner on the provision of the vehicle shall be treated for the purposes of section 289 , 312 or 313 as reduced in the proportion which the specified amount bears to the actual amount of that expenditure, and, in the application of subsection (3) to the purchaser, donee or successor, references to the expenditure incurred on the provision of the vehicle shall be construed as references to the expenditure so incurred by the prior owner.
(b) Where paragraph (a) has applied on any occasion in relation to a vehicle, and no sale or gift of the vehicle has since occurred other than one to which either section 289 or 312 applies, then, in relation to all persons concerned, the like consequences under paragraph (a) shall ensue as respects a gift, sale or succession within subparagraphs (i) to (iii) of that paragraph which occurs on any subsequent occasion as would ensue if the person who in relation to that sale, gift or succession is the prior owner had incurred expenditure on the provision of the vehicle of an amount equal to the expenditure so incurred by the person who was the prior owner on the first-mentioned occasion.
(5) In the application of section 290 to a case where the vehicle is the new machinery or plant referred to in that subsection, the expenditure shall be disregarded in so far as it exceeds the specified amount, but without prejudice to the application of subsections (1) to (4) to the vehicle.
(6) Where the capital expenditure incurred on the provision of a vehicle exceeds the specified amount but under section 317 (2) any part of that expenditure is to be treated as not having been incurred by a person, the amount which (subject to subsections (1) to (5)) is to be treated for the purposes of Part 9 as having been incurred by that person shall be reduced in the proportion which the specified amount bears to the capital expenditure incurred on the provision of the vehicle.
num: 375
paragraphs: —In determining what amount (if any) is allowable—
num: 376
paragraphs: —(1) In this section—
“qualifying expenditure” means the amount of expenditure incurred in relation to a vehicle to which this Part applies, being expenditure which but for this section—
(a) would be allowable as a deduction—
num: 377
paragraphs: —Where apart from this section the amount of any expenditure on the hiring (otherwise than by means of hire-purchase) of a vehicle to which this Part applies would be allowed to be deducted or taken into account as mentioned in section 375 , and the retail price of the vehicle at the time it was made exceeded the specified amount, the amount of that expenditure shall be reduced in the proportion which the specified amount bears to that price.
num: 378
paragraphs: —(1) In the case of a vehicle to which this Part applies, being a vehicle the retail price of which at the time of the contract in question exceeds the specified amount, subsections (2) to (4) shall apply.
(2) Where a person, having incurred capital expenditure on the provision of a vehicle to which this Part applies under a contract providing that such person shall or may become the owner of the vehicle on the performance of the contract, ceases to be entitled to the benefit of the contract without becoming the owner of the vehicle, that expenditure shall, in so far as it relates to the vehicle, be disregarded for the purposes of Chapter 2 of Part 9 and in determining what amount (if any) is allowable as mentioned in section 375 .
(3) Where subsection (2) applies, all payments made under the contract shall be treated for tax purposes (including in particular for the purposes of section 377 ) as expenditure incurred on the hiring of the vehicle otherwise than by means of hire-purchase.
(4) Where the person providing the vehicle takes it under a hire-purchase contract, then, in apportioning the payments under the contract between capital expenditure incurred on the provision of the vehicle and other expenditure, so much of those payments shall be treated as such capital expenditure as is equal to the price which would be chargeable, at the time the contract is entered into, to the person providing the vehicle if that person were acquiring it on a sale outright.
num: 379
paragraphs: —Where, having hired (otherwise than by means of hire-purchase) a vehicle to which this Part applies, a person subsequently becomes the owner of the vehicle and the retail price of the vehicle at the time it was made exceeded the specified amount, then, for the purposes of the Tax Acts (and in particular sections 374 and 377 )—
(a) so much of the aggregate of the payments for the hire of the vehicle and of any payment for the acquisition of the vehicle as does not exceed the retail price of the vehicle at the time it was made shall be treated as capital expenditure incurred on the provision of the vehicle, and as having been incurred when the hiring began, and
(b) the payments to be treated as expenditure on the hiring of the vehicle shall be rateably reduced so as to amount in the aggregate to the balance.
num: 380
paragraphs: —(1) Sections 374 , 375 and 377 , subsections (2) and (3) of section 378 and section 379 shall not apply where a vehicle is provided or hired, wholly or mainly, for the purpose of hire to or the carriage of members of the public in the ordinary course of trade.
(2) Sections 374 and 375 , subsections (2) and (3) of section 378 and section 379 shall not apply in relation to a vehicle provided by a person who is a manufacturer of a vehicle to which this Part applies, or of parts or accessories for such a vehicle, if the person shows that the vehicle was provided solely for the purpose of testing the vehicle or parts or accessories for such vehicle; but, if during the period of 5 years beginning with the time when the vehicle was provided, such person puts it to any substantial extent to a use which does not serve that purpose only, this subsection shall be deemed not to have applied in relation to the vehicle.
(3) (a) There shall be made all such additional assessments and adjustments of assessments as may be necessary for the purpose of applying subsections (2) and (3) of section 378 , section 379 and subsection (2), and any such additional assessments or adjustments of assessments may be made at any time.
(b) In the case of the death of a person who, if he or she had not died, would under subsections (2) and (3) of section 378 , section 379 and subsection (2) have become chargeable to tax for any year, the tax which would have been so chargeable shall be assessed and charged on his or her executors or administrators and shall be a debt due from and payable out of his or her estate.
num: 381
paragraphs: —(1) Subject to this section, where in any year of assessment any person has sustained a loss in any trade, profession or employment carried on by that person either solely or in partnership, that person shall be entitled, on making a claim in that behalf, to such repayment of income tax as is necessary to secure that the aggregate amount of income tax for the year ultimately borne by that person will not exceed the amount which would have been borne by that person if the income of that person had been reduced by the amount of the loss.
(2) This section shall not apply to any loss sustained in any year of assessment by the owner of a stallion from the sale of services of mares by the stallion or of rights to such services or by the part-owner of a stallion from the sale of such services or such rights.
(3) (a) In this subsection, “appropriate income” means either earned or unearned income according as income arising during the same period as the loss to the person sustaining the loss from the same activity would have been that person's earned or unearned income.
(b) For the purposes of subsection (1), the amount of income tax which would have been borne if income had been reduced by the amount of a loss shall be computed—
(i) where the loss has been sustained by an individual, on the basis of treating the loss as reducing—
(I) firstly, the appropriate income of the individual,
(II) secondly, the other income of the individual,
(III) thirdly, in a case where the individual, or, being a husband or wife, as the case may be, the individual's spouse, is assessed to tax in accordance with section 1017 , the appropriate income of the individual's wife or husband, as the case may be, and
(IV) finally, the other income of the individual's wife or husband, as the case may be, and
(ii) where the loss has been sustained in a trade carried on by a body corporate, on the basis of treating the loss as reducing—
(I) firstly, the income of the body corporate from profits or gains of the trade in which the loss was sustained, and
(II) then, the other income of the body corporate.
(4) The amount of a loss sustained in an activity shall for the purposes of this section be computed in the like manner as profits or gains arising or accruing from the activity would be computed under the relevant provisions of the Income Tax Acts.
(5) Where repayment has been made to a person for any year under this section—
(a) no portion of the loss which in the computation of the repayment was treated as reducing the person's income shall be taken into account in computing the amount of an assessment for any subsequent year, and
(b) so much of the loss as was required by subsection (3) to be treated as reducing income of a particular class or income from a particular source shall for the purposes of the Income Tax Acts be regarded as a deduction to be made from income of that class or from income from that source, as the case may be, in computing the person's total income for the year.
(6) Any claim to repayment under this section shall be made, in a form prescribed by the Revenue Commissioners, not later than 2 years after the end of the year of assessment and shall be made to and determined by the inspector; but any person aggrieved by any determination of the inspector on any such claim may, on giving notice in writing to the inspector within 21 days after notification to that person of the determination, appeal to the Appeal Commissioners.
(7) The Appeal Commissioners shall hear and determine an appeal to them under subsection (6) as if it were an appeal to them against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
num: 382
paragraphs: —(1) Where, in any trade or profession carried on by a person, either solely or in partnership, such person has sustained a loss (to be computed in the like manner as profits or gains under the provisions of the Income Tax Acts applicable to Cases I and II of Schedule D) in respect of which relief has not been wholly given under section 381 or under any other provision of the Income Tax Acts, such person may claim that any portion of the loss for which relief has not been so given shall be carried forward and, in so far as may be, deducted from or set off against the amount of profits or gains on which such person is assessed under Schedule D in respect of that trade or profession for any subsequent year of assessment, except that, if and in so far as relief in respect of any loss has been given to any person under this section, that person shall not be entitled to claim relief in respect of that loss under any other provision of the Income Tax Acts.
(2) Any relief under this section shall be given as far as possible from the assessment for the first subsequent year of assessment and, in so far as it cannot be so given, from the assessment for the next year of assessment and so on.
num: 383
paragraphs: —(1) Where in any year of assessment a person sustains a loss in any transaction (being a transaction of such kind that, if any profits had arisen from the transaction, such person would have been liable to be assessed in respect of those profits under Case IV of Schedule D) in which such person engages, whether solely or in partnership, such person may claim for the purposes of the Income Tax Acts that the amount of that loss shall, as far as may be, be deducted from or set off against the amount of profits or gains on which such person is assessed under Case IV of Schedule D for that year and that any portion of the loss for which relief is not so given shall be carried forward and, in so far as may be, deducted from or set off against the amount of profits or gains on which such person is assessed under that Case for any subsequent year of assessment.
num: 384
paragraphs: —(1) In this section, “the person chargeable” has the same meaning as in Chapter 8 of Part 4 .
num: 385
paragraphs: —(1) Where a trade or profession is permanently discontinued, and any person carrying on the trade or profession either solely or in partnership immediately before the time of the discontinuance has sustained in the trade or profession a loss to which this section applies (in this Chapter referred to as a “terminal loss”), then, subject to sections 386 to 389 , that person may claim for the purposes of the Income Tax Acts that the amount of the terminal loss shall, as far as may be, be deducted from or set off against the amount of profits or gains on which that person has been charged to income tax under Schedule D in respect of the trade or profession for the 3 years of assessment last preceding that in which the discontinuance occurs, and there shall be made all such amendments of assessments or repayments of tax as may be necessary to give effect to the claim.
(2) Relief shall not be given in respect of the same matter both under this section and under any other provision of the Income Tax Acts.
(3) Any relief under this section shall be given as far as possible from the assessment for a later rather than an earlier year.
num: 386
paragraphs: —(1) In this section, “the relevant capital allowances”, in relation to any year of assessment, means the capital allowances to be made in charging the profits or gains of the trade or profession for that year, excluding amounts carried forward from an earlier year, and for the purposes of paragraphs (a) and (c) of subsection (2) the amount of a loss shall be computed in the like manner as profits or gains are computed under the provisions of the Income Tax Acts applicable to Cases I and II of Schedule D.
(2) The question whether a person has sustained any, and if so what, terminal loss in a trade or profession shall for the purposes of section 385 be determined by taking the amounts, if any, of the following (in so far as they have not been otherwise taken into account so as to reduce or relieve any charge to income tax)—
(a) the loss sustained by the person in the trade or profession in the year of assessment in which it is permanently discontinued;
(b) the relevant capital allowances for that year of assessment;
(c) the loss sustained by the person in the trade or profession in the part of the preceding year of assessment beginning 12 months before the date of the discontinuance;
(d) the same fraction of the relevant capital allowances for that preceding year of assessment as the part beginning 12 months before the date of the discontinuance is of a year.
num: 387
paragraphs: —(1) The amount of the profits or gains on which a person has been charged to income tax for any year of assessment in respect of the profits or gains of a trade or profession shall, for the purposes of relief under section 385 from the assessment for that year, be taken to be the full amount of the profits or gains on which the person was assessable for that year reduced by—
(a) a sum equal to the total amount of the deductions, if any, in respect of capital allowances made in charging the profits or gains,
(b) a sum equal to the amount of the deductions, if any, in respect of payments made or losses sustained, which were to be made from the profits or gains in computing for income tax purposes the person's total income for the year, or would have been so made if the person were an individual, and
(c) in the case of a body of persons, a sum equal to so much of the profits or gains as was applied in payment of dividends;
but, where any deduction mentioned in paragraph (b) may be treated in whole or in part either as having been made from the profits or gains or as having been made from other income, the deduction shall, as far as may be, be treated for the purposes of this subsection as made from the other income.
(2) Where under subsection (1)(b) the amount of the profits or gains on which a person was assessable for any year is reduced by reference to a payment made by the person, a like reduction shall be made in the amount of the terminal loss for which relief may be given under section 385 for earlier years unless the payment was made wholly and exclusively for the purposes of the trade or profession.
num: 388
paragraphs: —For the purposes of sections 385 to 389 , a trade or profession shall be treated as permanently discontinued and a new trade or profession set up or commenced when it is so treated for the purposes of section 69 , or where by reference to section 1008 (1)(a)(ii) a several trade of a partner has been deemed to have been permanently discontinued; but—
(a) a person who continues to be engaged in carrying on the trade or profession immediately after such a discontinuance shall not be entitled to relief in respect of any terminal loss on that discontinuance, and
(b) on any discontinuance, a person not continuing to be so engaged may be given relief in respect of a terminal loss against profits or gains on which the person was charged in respect of the same trade or profession for a period before a previous discontinuance, if the person has been continuously engaged in carrying on the trade or profession between the 2 discontinuances, and, in the person's case, if the previous discontinuance occurred within 12 months before the others, it shall be disregarded for the purposes of section 386 (2).
num: 389
paragraphs: —(1) Any claim under section 385 shall be made to and determined by the inspector, but any person aggrieved by any decision of the inspector on any such claim may, on giving notice in writing to the inspector within 21 days after the notification to that person of the decision, appeal to the Appeal Commissioners.
(2) The Appeal Commissioners shall hear and determine an appeal to them under subsection (1) as if it were an appeal against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
num: 390
paragraphs: —(1) Subject to this section, where a person has been assessed to income tax for a year of assessment under section 238 in respect of a payment made wholly and exclusively for the purposes of a trade or profession, the amount on which income tax has been paid under that assessment shall for the purposes of sections 382 and 385 to 389 be treated as if it were a loss sustained in that trade or profession and relief in respect of such loss shall be allowed accordingly; but no relief shall be allowed under this section in respect of any such payment or any part of such payment which is not ultimately borne by the person assessed or which is charged to capital.
(2) (a) This subsection shall apply to expenditure incurred for the purposes of a trade or profession which is set up and commenced on or after the 22nd day of January, 1997.
(b) Where an individual who has set up and commenced a trade or profession has been assessed to tax for any year of assessment under section 238 in respect of a payment made—
(i) before the time the trade or profession has been set up and commenced, and
(ii) wholly and exclusively for the purposes of the trade or profession,
then, this section shall apply in relation to the payment as it would apply if the payment were made at that time.
(c) An allowance or deduction shall not be made under any provision of the Tax Acts, other than this section, in respect of any expenditure or payment which is treated under this section as incurred on the day on which a trade or profession is set up and commenced.
(3) This section shall not apply to any sum assessed under section 238 by virtue of section 246 (2), 757 or 1041 (1).
num: 391
paragraphs: —(1) In this Chapter—
“balancing charges” means balancing charges under Part 9 or Chapter 1 of Part 29 ;
“year of claim”, in relation to any claim under section 381 , means the year of assessment for which the claim is made.
(2) For the purposes of this Chapter—
(a) any reference to capital allowances or balancing charges for a year of assessment shall be construed as a reference to those to be made in charging the profits or gains of the trade for that year, excluding, in the case of allowances, amounts carried forward from an earlier year,
(b) effect shall be deemed to be given in charging the profits or gains of the trade for a year of assessment to allowances carried forward from an earlier year before it is given to allowances for the year of assessment, and
(c) any reference to an amount of capital allowances non-effective in a year of assessment shall be construed as referring to the amount to which effect cannot be given in charging the profits or gains of the trade for that year by reason of an insufficiency of profits or gains.
(3) This Chapter shall apply, with any necessary modifications, in relation to a profession or employment as it applies in relation to a trade.
num: 392
paragraphs: —(1) Subject to this Chapter, any claim made under section 381 for relief in respect of a loss sustained in any trade in any year of assessment (in this Chapter referred to as “the year of the loss”) may require the amount of the loss to be determined as if an amount equal to the capital allowances for the year of the loss were to be deducted in computing the profits or gains or losses of the trade in the year of the loss, and a claim may be so made notwithstanding that apart from those allowances a loss had not been sustained in the trade in the year of the loss.
(2) Where on any claim made by virtue of this Chapter relief is not given under section 381 for the full amount of the loss determined under subsection (1), the relief shall be referred, as far as may be, to the loss sustained in the trade rather than to the capital allowances in respect of the trade.
num: 393
paragraphs: —(1) The capital allowances for any year of assessment shall be taken into account under section 392 (1) only if and in so far as such capital allowances are not required to offset balancing charges for the year, and relief shall not be given by reference to the capital allowances so taken into account in respect of an amount greater than the amount non-effective in the year of assessment for which the claim is made.
(2) For the purposes of subsection (1), the capital allowances for any year of assessment shall be treated as required to offset balancing charges for the year up to the amount on which the balancing charges are to be made after deducting from that amount the amount, if any, of capital allowances for earlier years which is carried forward to that year and would, without the balancing charges, be non-effective in that year.
num: 394
paragraphs: —Where for any year of claim relief is given under section 381 by reference to any capital allowances, then, for the purposes of the Income Tax Acts, effect shall be deemed to have been given to those allowances up to the amount in respect of which relief is so given, and any relief previously given for a subsequent year on the basis that effect had not been so given to those allowances shall be adjusted, where necessary, by additional assessment.
num: 395
paragraphs: —(1) Where relief given to a person by virtue of section 392 (1) for any year of claim is affected by a subsequent alteration of the law, or by any discontinuance of the trade or other event occurring after the end of the year, any necessary adjustment may be made, and so much of any repayment of tax as exceeded the amount repayable in the events that happened shall, if not otherwise made good, be recovered from the person by assessment under Case IV of Schedule D.
num: 396
paragraphs: —(1) Where in any accounting period a company carrying on a trade incurs a loss in the trade, the company may make a claim requiring that the loss be set off for the purposes of corporation tax against any trading income from the trade in succeeding accounting periods, and (so long as the company continues to carry on the trade) its trading income from the trade in any succeeding accounting period shall then be treated as reduced by the amount of the loss, or by so much of that amount as cannot, on that claim or on a claim (if made) under subsection (2) or section 455 (3), be relieved against income or profits of an earlier accounting period.
(2) Where in any accounting period a company carrying on a trade incurs a loss in the trade, then, subject to subsection (4), the company may make a claim requiring that the loss be set off for the purposes of corporation tax against profits (of whatever description) of that accounting period and, if the company was then carrying on the trade and the claim so requires, of preceding accounting periods ending within the time specified in subsection (3), and, subject to that subsection and to any relief for an earlier loss, the profits of any of those periods shall then be treated as reduced by the amount of the loss, or by so much of that amount as cannot be relieved under this subsection against profits of a later accounting period.
(3) The time referred to in subsection (2) shall be a time immediately preceding the accounting period first mentioned in subsection (2) equal in length to the accounting period in which the loss is incurred; but the amount of the reduction which may be made under that subsection in the profits of an accounting period falling partly before that time shall not exceed a part of those profits proportionate to the part of the period falling within that time.
num: 397
paragraphs: —(1) (a) Where a company ceasing to carry on a trade has, in any accounting period falling wholly or partly within the previous 12 months, incurred a loss in the trade, the company may claim to set the loss off for the purposes of corporation tax against trading income from the trade in accounting periods falling wholly or partly within the 3 years preceding those 12 months (or within any shorter period throughout which the company has carried on the trade) and, subject to subsections (2) and (3) and to any relief for earlier losses, the trading income of any of those accounting periods shall then be treated as reduced by the amount of the loss, or by so much of that amount as cannot be relieved under this subsection against income of a later accounting period.
(b) Relief shall not be given under this subsection in respect of any loss in so far as the loss has been orcan be otherwise taken into account so as to reduce or relieve any charge to tax.
(2) Where a loss is incurred in an accounting period falling partly outside the 12 months mentioned in subsection (1), relief shall be given under that subsection in respect of a part only of that loss proportionate to the part of the period falling within those 12 months, and the amount of the reduction which may be made under that subsection in the trading income of an accounting period falling partly outside the 3 years mentioned in that subsection shall not exceed a part of that income proportionate to the part of the period falling within those 3 years.
(3) Subsections (5) to (8) of section 396 shall apply for the purposes of this section as they apply for the purposes of section 396 (1), and relief shall not be given under this section in respect of a loss incurred in a trade so as to interfere with any relief under section 243 in respect of payments made wholly and exclusively for the purposes of that trade.
num: 398
paragraphs: —(1) Notwithstanding subsection (5) of section 396 or subsection (3) of section 397 , in ascertaining for the purposes of those sections whether and to what extent a company has incurred a loss in carrying on a trade in the State through a branch or agency, the interest on, and other profits or gains from, a security held by or for the branch or agency shall be treated as a trading receipt of the trade if such interest or other profits or gains would, if sections 43 , 49 and 50 had not been enacted, have been so treated, or have been included in an amount so treated.
(2) Subsection (1) shall apply for the purposes of ascertaining whether and to what extent a company has incurred a loss where apart from that subsection the company would be treated as having incurred a loss and that loss would be—
(a) set-off against the trading income or profits (whether of that company or any other company) of, or
(b) incurred in,
an accounting period.
num: 399
paragraphs: —(1) (a) Where in any accounting period a company incurs a loss in a transaction in respect of which the company is within the charge to corporation tax under Case IV of Schedule D, the company may claim to set the loss off against the amount of any income arising from such transactions in respect of which the company is assessed to corporation tax under that Case for the same or any subsequent accounting period, and the company's income in any accounting period from such transactions shall then be treated as reduced by the amount of the loss, or by so much of that amount as cannot be relieved under this section against income of an earlier accounting period.
(b) Where a company sustains a loss in a transaction which, if profit had arisen from it, would be chargeable to tax by virtue of subsection (3) or (4) of section 814 , then, if the company is chargeable totax in respect of the interest payable on the amount of money the right to which has been disposed of, the amount of that interest shall be included in the amounts against which the company may claim to set off the amount of its loss under this subsection.
num: 400
paragraphs: —(1) For the purposes of this section—
(a) a trade carried on by 2 or more persons shall be treated as belonging to them in the shares in which they are entitled to the profits of the trade;
(b) a trade or interest in a trade belonging to any person as trustee (otherwise than for charitable or public purposes) shall be treated as belonging to the persons for the time being entitled to the income under the trust;
(c) a trade or interest in a trade belonging to a company shall, where the result of so doing is that subsection (5) or (10) applies in relation to an event, be treated in any of the ways permitted by subsection (2).
(2) For the purposes of this section, a trade or interest in a trade which belongs to a company engaged in carrying on the trade may be regarded—
(a) as belonging to the persons owning the ordinary share capital of the company and as belonging to those persons in proportion to the amount of their holdings of that capital, or
(b) in the case of a company which is a subsidiary company, as belonging to a company which is its parent company, or as belonging to the persons owning the ordinary share capital of that parent company, and as belonging to those persons in proportion to the amount of their holdings of that capital,
and any ordinary share capital owned by a company may, if any person or body of persons has the power to secure by means of the holding of shares or the possession of voting power in or in relation to any company, or by virtue of any power conferred by the articles of association or other document regulating any company, that the affairs of the company owning the share capital are conducted in accordance with that person's or that body of persons' wishes, be regarded as owned by that person or body of persons having that power.
(3) For the purposes of subsection (2)—
(a) references to ownership shall be construed as references to beneficial ownership;
(b) a company shall be deemed to be a subsidiary of another company if and so long as not less than 75 per cent of its ordinary share capital is owned by that other company, whether directly or through another company or other companies, or partly directly and partly through another company or other companies;
(c) the amount of ordinary share capital of one company owned by a second company through another company or other companies, or partly directly and partly through another company or other companies, shall be determined in accordance with subsections (5) to (10) of section 9 ;
(d) where any company is a subsidiary of another company, that other company shall be considered as its parent company unless both are subsidiaries of a third company.
(4) In determining for the purposes of this section whether or to what extent a trade belongs at different times to the same persons, persons who are relatives of one another and the persons from time to time entitled to the income under any trust shall respectively be treated as a single person, and for this purpose “relative” means husband, wife, ancestor, lineal descendant, brother or sister.
(5) (a) Where, on a company (in this section referred to as “the predecessor”) ceasing to carry on a trade, another company (in this section referred to as “the successor”) begins to carry on the trade and—
(i) on or at any time within 2 years after that event, the trade or an interest amounting to not less than a 75 per cent share in the trade belongs to the same persons as the trade or such an interest belonged to at some time within a year before that event, and
(ii) the trade is not, within the period taken for the comparison under subparagraph (i), carried on otherwise than by a company within the charge to tax in respect of the trade,
then, the Corporation Tax Acts shall apply subject to subsections (6) to (9).
(b) In subparagraphs (i) and (ii) of paragraph (a), references to the trade shall apply also to any other trade of which the activities comprise the activities of the first-mentioned trade.
(6) The trade shall not be treated as permanently discontinued nor a new trade as set up and commenced for the purpose of the allowances and charges provided for by sections 307 and 308 ; but there shall be made to or on the successor in accordance with those sections all such allowances and charges as would, if the predecessor had continued to carry on the trade, have been made to or on the predecessor, and the amount of any such allowance or charge shall be computed as if the successor had been carrying on the trade since the predecessor began to do so and as if everything done to or by the predecessor had been done to or by the successor (but so that no sale or transfer which on the transfer of the trade is made to the successor by the predecessor of any assets in use for the purpose of the trade shall be treated as giving rise to any such allowance or charge).
(7) The predecessor shall not be entitled to relief under section 397 except as provided by subsection (9) and, subject to any claim made by the predecessor under section 396 (2), the successor shall be entitled to relief under section 396 (1), as for a loss sustained by the successor in carrying on the trade, for any amount for which the predecessor would have been entitled to claim relief if the predecessor had continued to carry on the trade.
(8) Any securities within the meaning of section 748 which, at the time when the predecessor ceases to carry on the trade, form part of the trading stock belonging to the trade shall be treated for the purposes of that section as having been sold at that time in the open market by the predecessor and as having been purchased at that time in the open market by the successor.
(9) On the successor ceasing to carry on the trade—
(a) if the successor does so within 4 years of succeeding to the trade, any relief which might be given to the successor under section 397 on the successor ceasing to carry on the trade may, in so far as that relief cannot be given to the successor, be given to the predecessor as if the predecessor had incurred the loss (including any amount treated as a loss under section 397 (3)), and
(b) if the successor ceases to carry on the trade within one year of succeeding to the trade, relief may be given to the predecessor under section 397 in respect of any loss incurred by the predesessor (or any amount treated as such a loss under section 397 (3));
but, for the purposes of section 397 as it applies by virtue of this subsection to the giving of relief to the predecessor, the predecessor shall be treated as ceasing to carry on the trade when the successor does so.
(10) Where the successor ceases to carry on the trade within the period taken for the comparison under subsection (5)(a)(i) and, on its doing so, a third company begins to carry on the trade, then, no relief shall be given to the predecessor by virtue of subsection (9) by reference to that event; but, subject to that, subsections (6) to (9) shall apply both in relation to that event (together with the new predecessor and successor) and to the earlier event (together with the original predecessor and successor), but so that—
(a) in relation to the earlier event, “successor” shall include the successor at either event, and
(b) in relation to the later event, “predecessor” shall include the predecessor at either event,
and, if the conditions of this subsection are thereafter again satisfied, this subsection shall apply again in the like manner.
(11) Where, on a company ceasing to carry on a trade, another company begins to carry on the activities of the trade as part of its trade, that part of the trade carried on by the successor shall for the purposes of this subsection be treated as a separate trade, if the effect of so treating it is that subsection (5) or (10) applies to that event in relation to that separate trade, and where, on a company ceasing to carry on part of a trade, another company begins to carry on the activities of that part as its trade or part of its trade, the predecessor shall for the purposes of this section be treated as having carried on that part of its trade as a separate trade, if the effect of so treating it is that subsection (5) or (10) applies to that event in relation to that separate trade.
(12) Where under subsection (11) any activities of a company's trade are to be treated as a separate trade on the company ceasing or beginning to carry them on, any necessary apportionment shall be made of receipts or expenses.
(13) Where by virtue of subsection (12) any sum is to be apportioned and, at the time of the apportionment, it appears that it is material as respects the liability to tax (for whatever period) of 2 or more companies, any question which arises as to the manner in which the sum is to be apportioned shall, for the purposes of the tax of all those companies, be determined by the Appeal Commissioners who shall determine the question in the like manner as if it were an appeal against an assessment, and the provisions of the Income Tax Acts 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, and all those companies shall be entitled to appear before and be heard by the Appeal Commissioners or to make representations to them in writing.
(14) Any relief to be given under this section by means of discharge or repayment of tax shall be given on the making of a claim.
num: 401
paragraphs: —(1) In this section, “major change in the nature or conduct of a trade” includes—
(a) a major change in the type of property dealt in, or services or facilities provided, in the trade, or
(b) a major change in customers, outlets or markets of the trade,
and this section shall apply even if the change is the result of a gradual process which began outside the period of 3 years mentioned in subsection (2)(a).
(2) Where—
(a) within any period of 3 years, there is both a change in the ownership of a company and (whether earlier or later in that period or at the same time) a major change in the nature or conduct of a trade carried on by the company, or
(b) at any time after the scale of the activities in a trade carried on by a company has become small or negligible and before any considerable revival of the trade, there is a change in the ownership of the company,
relief shall not be given—
(i) under section 396 by setting a loss incurred by the company in an accounting period beginning before the change of ownership against any income or other profits of an accounting period ending after the change of ownership, or
num: 402
paragraphs: —(1) (a) In this section—
“functional currency” means—
(i) in relation to a company resident in the State, the currency of the primary economic environment in which the company operates, and
(ii) in relation to a company not resident in the State, the currency of the primary economic environment in which the company carries on trading activities in the State,
but, where the profit and loss account of a company for any period of account has been prepared in terms of the currency of the State, that currency shall be the functional currency of the company for that period;
“profit and loss account” and “rate of exchange” have the same meanings respectively as in section 79 ;
“representative rate of exchange” means a rate of exchange of a currency for another currency equal to the mid-market rate at close of business recorded by the Central Bank of Ireland, or by a similar institution of another State, for those 2 currencies.
(b) For the purposes of this section, the currency of the primary economic environment of a company shall be determined—
(i) in the case of a company resident in the State, with reference to the currency in which—
(I) revenues and expenses of the company are primarily generated, and
(II) the company primarily borrows and lends, and
(ii) in the case of a company not so resident which carries on trading activities in the State, with reference to the currency in which—
(I) revenues and expenses of those activities are primarily generated, and
(II) the company primarily borrows and lends for the purposes of those activities.
(c) For the purposes of this section, the day on which any expenditure is incurred shall be taken to be the day on which the sum in question becomes payable.
(2) (a) Subject to paragraph (b), the amount (which may be nil) of any allowance or charge to be made for any accounting period—
(i) in taxing a trade of a company, and
(ii) by reference to capital expenditure incurred by the company on or after the 1st day of January, 1994,
shall be—
(I) computed in terms of the functional currency of the company by reference to amounts expressed in that currency, and
(II) given effect, in accordance with section 307 (2)(a), by being treated as a trading expense or receipt, as the case may be, of the trade in computing the trading income or loss, expressed in that functional currency, of the trade for that accounting period.
(b) (i) For the purposes of the computation of an allowance or charge to be made for an accounting period (in this paragraph referred to as “the first-mentioned period”) by reference to capital expenditure incurred by a company on or after the 1st day of January, 1994, and
(ii) without prejudice to any allowance made by reference to that expenditure for an accounting period earlier than the first-mentioned period,
where that expenditure was incurred, or an allowance referable to that expenditure was computed, in terms of a currency other than the functional currency of the company for the first-mentioned period, then, that expenditure or allowance, as the case may be, shall be expressed in terms of that functional currency by reference to a representative rate of exchange of that functional currency for the other currency for the day on which that expenditure was incurred.
(3) (a) Subject to paragraph (b), for the purposes of sections 396 and 397 , the amount (which may be nil) of any set-off due to a company against income or profits of an accounting period in respect of a loss from a trade incurred by the company in an accounting period shall—
(i) be computed in terms of the company's functional currency by reference to amounts expressed in that currency, and
(ii) then be expressed in terms of the currency of the State by reference to the rate of exchange which—
(I) is used to express in terms of the currency of the State the amount of the income from the trade for the accounting period in which the loss is to be set off, or
(II) would be so used if there were such income.
(b) (i) For the purposes of the computation of any set-off due to a company against income or profits of an accounting period (in this paragraph referred to as “the first-mentioned period”) in respect of a loss from a trade incurred by the company in an accounting period, and
(ii) without prejudice to any set-off made against the income or profits of an accounting period earlier than the first-mentioned period by reference to that loss,
where that loss, or any set-off referable to that loss, was computed in terms of a currency other than the functional currency of the company for the first-mentioned period, then, that loss or set-off, as the case may be, shall be expressed in terms of that functional currency by reference to a rate of exchange of that functional currency for the other currency, being an average of representative rates of exchange of that functional currency for the other currency during the accounting period in which the loss was incurred.
num: 403
paragraphs: —(1) (a) In this section—
“chargeable period or its basis period” has the same meaning as in section 321 (2);
“lessee” and “lessor”, in relation to machinery or plant provided for leasing, mean respectively the person to whom the machinery or plant is or is to be leased and the person providing the machinery or plant for leasing, and “lessee” and “lessor” include respectively the successors in title of a lessee or a lessor;
“the relevant period” has the meaning assigned to it by subsection (9)(b);
“the specified capital allowances” means capital allowances in respect of—
(i) expenditure incurred on machinery or plant provided on or after the 25th day of January, 1984, for leasing in the course of a trade of leasing, or
(ii) the diminished value of such machinery or plant by reason of wear and tear,
other than capital allowances in respect of machinery or plant to which subsection (6), (7), (8) or (9) applies;
“trade of leasing” means—
(i) a trade which consists wholly of the leasing of machinery or plant, or
(ii) any part of a trade treated as a separate trade by virtue of subsection (2).
(b) For the purposes of this section—
(i) letting on charter a ship or aircraft which has been provided for such letting, and
(ii) letting any item of machinery or plant on hire,
shall be regarded as leasing of machinery or plant if apart from this paragraph it would not be so regarded.
num: 404
paragraphs: —(1) (a) In this section—
“agricultural machinery” means machinery or plant used or intended to be used for the purposes of a trade of farming (within the meaning of section 654 ) or machinery or plant of a type commonly used for such a trade which is used or intended to be used for the purposes of a trade which consists of supplying services which normally play a part in agricultural production;
“asset” means machinery or plant;
“chargeable period”, “chargeable period related to”, and “chargeable period or its basis period” have the same meanings respectively as in section 321 (2);
“fair value”, in relation to a leased asset, means an amount equal to such consideration as might be expected to be paid for the asset at the inception of the lease on a sale negotiated on an arm's length basis, less any grants receivable by the lessor towards the purchase of the asset;
“inception of the lease” means the date on which the leased asset is brought into use by the lessee or the date from which lease payments under the lease first accrue, whichever is the earlier;
“lease payments” means the lease payments over the term of the lease to be paid to the lessor in relation to the leased asset, and includes any residual amount to be paid to the lessor at or after the end of the term of the lease and guaranteed by the lessee or by a person connected with the lessee or under the terms of any scheme or arrangement between the lessee and any other person;
“lessee” and “lessor” have the same meanings respectively as in section 403 ;
“predictable useful life”, in relation to an asset, means the useful life of the asset estimated at theinception of the lease, having regard to the purpose for which the asset was acquired and on the assumption that—
(i) its life will end when it ceases to be useful for the purpose for which it was acquired, and
(ii) it will be used in the normal manner and to the normal extent throughout its life;
“relevant lease payment” means—
(i) the amount of any lease payment as provided under the terms of the lease, or
(ii) where the lease provides for the amount of any lease payment to be determined by reference to a rate known as the Dublin Interbank Offered Rate and a record of which is kept by the Central Bank of Ireland, or a similar rate, the amount calculated by reference to that rate if the rate per cent at the inception of the lease were the rate per cent at the time of the payment;
“relevant lease payments related to a chargeable period or its basis period” means relevant lease payments under the lease or the amounts which are treated as the relevant lease payments and which, if they were the actual amounts payable under the lease, would be taken into account in computing the income of the lessor for that chargeable period or its basis period or any earlier such period;
“relevant period” means the period—
(i) beginning at the inception of the lease, and
(ii) ending at—
(I) the earliest time at which the aggregate of amounts of the discounted present value at the inception of the lease of relevant lease payments which are payable at or before that time amounts to 90 per cent or more of the fair value of the leased asset, or
(II) if it is earlier, at the end of the predictable useful life of the asset,
and, for the purposes of this definition, relevant lease payments shall be discounted at a rate which, when applied at the inception of the lease to the amount of the relevant lease payments, produces discounted present values the aggregate of which equals the amount of the fair value of the leased asset at the inception of the lease, but where the duration of the relevant period determined in accordance with the preceding provisions of this definition is more than 7 years, the relevant period shall not be the period so determined but shall bethe period which would be determined in accordance with this definition if for “90 per cent” there were substituted “95 per cent”.
(b) For the purposes of this section—
(i) a lease of an asset shall be a relevant lease unless—
(I) as respects any chargeable period or its basis period of the lessor which falls wholly or partly in the relevant period, the aggregate of the amounts of relevant lease payments related to the chargeable period or its basis period and the amounts of relevant lease payments related to any earlier chargeable period or its basis period is not less than an amount determined by the formula—
W × P ×
90 + (10 × W)
__________
100
where—
P is the aggregate of the amounts of relevant lease payments payable by the lessee in relation to the leased asset in the relevant period, and
W is an amount determined by the formula—
E
__
R
where—
E is the length of the part of the relevant period which has expired at the end of the chargeable period or its basis period, and
R is the length of the relevant period, and
(II) except for an amount of relevant lease payments which is inconsequential, the excess of the total relevant lease payments under the lease over the aggregate of the relevant lease payments in the relevant period is payable to the lessor, or would be so payable if the relevant lease payments were the actual amounts payable under the lease, within a period the duration of which does not exceed—
(A) where the exception to the definition of “relevant period” does not apply, one-seventh of the duration of the relevant period, and
(B) where that exception does apply, one-ninth of the duration of the relevant period,
or one year, whichever is the greater, and which commences immediately after the end of the relevant period,
(ii) a lease, the duration of the relevant period in respect of which exceeds 10 years and which apart from this subparagraph would be a relevant lease, shall not be a relevant lease if it is a lease of an asset, being an asset—
(I) provided for the purposes of a project, specified in the list referred to in section 133 (8)(c)(iv), which has been approved for grant aid by the Industrial Development Authority, the Shannon Free Airport Development Company Limited or UdarÃ¡s na Gaeltachta, and
(II) to which section 283(5) or 285(7)(a)(i) applies,
and it would not be a relevant lease if for clauses (I) and (II) of subparagraph (i) there were substituted the following:
“(I) the aggregate of the relevant lease payments related to a chargeable period or its basis period of the lessor which falls wholly or partly in the period (in this subsection referred to as the ‘first period’) of 3 years beginning at the inception of the lease is not less than an amount determined by the formula—
V ×
D
____
100
×
80
____
100
×
M
___
12
where—
D is the rate per cent at the inception of the lease of the rate known as the 6 month Dublin Interbank Offered Rate and a record of which is maintained by the Central Bank of Ireland, expressed as a rate per annum,
M is the number of months in the chargeable period or its basis period, and
V is the fair value of the asset at the inception of the lease,
(II) as respects any chargeable period or its basis period of the lessor which falls wholly or partly in the period (in this subsection referred to as ‘the second period’) commencing immediately after the first period and ending at the end of the relevant period, the aggregate of the amounts of relevant lease payments related to the chargeable period or its basis period and the amounts of relevant lease payments related to any earlier chargeable period or its basis period falling wholly or partly in the second period is not less than an amount determined by the formula—
E
___
R
× P
where—
E is the length of the part of the second period which has expired at the end of the chargeable period or its basis period,
P is the aggregate of the amounts of relevant lease payments payable by the lessee in relation to the leased asset in the second period, and
R is the length of the second period, and
(III) except for an amount of relevant lease payments which is inconsequential, the excess of the total relevant lease payments under the lease over the aggregate of the relevant lease payments in the relevant period is payable to the lessor, or would be so payable if the relevant lease payments were the actual amounts payable under the lease, within aperiod of one year after the end of the relevant period.”,
(iii) an amount of relevant lease payments shall be treated as inconsequential if the aggregate of amounts, estimated at the inception of the lease, of discounted value, at the end of the period specified in clause (II) of subparagraph (i) or clause (III) of that subparagraph (construed in accordance with subparagraph (ii)), as the case may be, of the relevant lease payments after that time does not exceed 5 per cent of the fair value of the leased asset or £2,000, whichever is the lesser, and, for the purposes of this subparagraph, relevant lease payments shall be discounted at the rate specified in the definition of “relevant period”, and
(iv) where a chargeable period or its basis period, being an accounting period of a company, begins before and ends after a date, being the commencement of the relevant period, the first period or the second period or the end of such a period, as the case may be, it shall be divided into one part beginning on the day on which the accounting period begins and ending at the beginning or the end, as the case may be, of the relevant period, the first period or the second period, and another part beginning immediately after that time and ending on the day on which the accounting period ends, and both parts shall be treated as if they were separate accounting periods.
(2) (a) Where in the course of a trade an asset is provided by a person for leasing under a relevant lease, the letting of the asset under that relevant lease shall be treated as a separate trade of leasing (in this subsection referred to as a “specified leasing trade”) distinct from all other activities, including other leasing activities, of the person, and section 403 , apart from subsections (5) to (9) of that section, shall apply in relation to a specified leasing trade as it applies in relation to a trade of leasing within the meaning of that section.
(b) Sections 305 (1)(b), 308 (4) and 420 (2) shall not apply in relation to capital allowances—
(i) in respect of expenditure incurred on the provision of an asset, or
(ii) on account of the wear and tear of an asset,
which is provided by a person for leasing under a relevant lease.
(3) Notwithstanding subsection (1)(b), a lease of an asset which consists of agricultural machinery or plant shall not be a relevantlease unless it would be such a lease if the amounts of relevant lease payments related to any chargeable period or its basis period were taken to be an amount equal to 50 per cent of the aggregate of the amounts of relevant lease payments related to that chargeable period or its basis period and the amounts of relevant lease payments related to a period equal in length to, and ending immediately before the commencement of, that period.
(4) (a) Where at any time after the 11th day of April, 1994, either of the following events occurs—
(i) the terms of a lease of an asset entered into before that day are altered, or
(ii) a lessor and a lessee agree to terminate a lease of an asset and, at or about that time, a further agreement to lease the asset is entered into by the lessor and the lessee or an agreement is entered into by the lessor and a person connected with the lessee, by the lessee and a person connected with the lessor or by a person connected with the lessor and a person connected with the lessee,
such that the aggregate of the amounts of the lease payments which are payable, or which would be payable if the relevant lease payments were the actual amounts payable under the lease, after any time exceeds the aggregate of the amounts of such relevant lease payments which would have been payable after that time if the events in subparagraph (i) or (ii) had not taken place, then, notwithstanding subsection (6)(a), unless it is shown that the change or the termination was effected for bona fide commercial reasons, the lease (including the terminated lease) shall be treated as if it were at all times a relevant lease, and relief given under Part 9 , Chapter 1 or 2 of this Part, or section 396 or 420 , which would not have been given if the lease was a relevant lease, shall be withdrawn.
(b) The withdrawal of an allowance or relief under paragraph (a) shall be made—
(i) for the chargeable period related to the event giving rise to the withdrawal of the relief, and
(ii) in accordance with paragraph (c), and both—
(I) details of the event giving rise to the withdrawal of the allowance or relief, and
(II) the amount to be treated as income under paragraph (c),
shall be included in the return required to be made by the lessor under section 951 for that chargeable period.
(c) (i) Notwithstanding any other provision of the Tax Acts, where relief is to be withdrawn under paragraph (a) in respect of—
(I) any amount which was set off against income under section 305 ,
(II) the amount of any loss which was set off under section 307 , 308 , 396 or 420 against profits, or
(III) the amount of any loss which was treated by virtue of a claim under section 381 as reducing income,
and which would not have been so set off or treated if the lease were a relevant lease, such amount (in this subsection referred to as “the relevant amount”) as would not have been so set off or treated, increased in accordance with subparagraph (ii), shall be treated as income arising in the chargeable period specified in paragraph (b)(i).
(ii) The amount by which the relevant amount is to be increased under subparagraph (i) shall be an amount determined by the formula—
A ×
R
____
100
× M
where—
A is the relevant amount,
M is the number of months in the period beginning on the date on which tax for the chargeable period in which the losses were treated as reducing income, or set off against profits, as the case may be, was due and payable and ending on the date on which tax for the chargeable period for which the withdrawal of relief is to be made is due and payable, and
R is the rate per cent specified in section 1080 (1).
(5) Notwithstanding subsection (1)(b), where at any time on or after the 11th day of April, 1994, a person (in this subsection referred to as “the lessor”) acquires an asset from another person who before that date was the owner of the asset and at or about that time the lessor or a person connected with the lessor leases the asset to the other person or a person connected with the other person, then, unless—
(a) the asset is new and unused, or
(b) the lease would not be a relevant lease if—
(i) for the first formula in subsection (1)(b)(i)(I) there were substituted “W × P”, and
(ii) subsection (1)(b)(ii) had not been enacted,
the lease shall be a relevant lease for the purposes of this section.
(6) This section shall apply as on and from the 23rd day of December, 1993; but a lease of an asset shall not be a relevant lease if—
(a) a binding contract in writing for the letting of the asset was concluded before that day,
(b) the leasing of the asset is carried on in the course of relevant trading operations within the meaning of section 445 or 446 , or
(c) subject to subsections (4) and (5)—
(i) the relevant period does not exceed 5 years,
(ii) the fair value of the asset does not exceed £50,000 and, except where the assets are separate and distinct assets used independently of each other and the use of one is not an integral part of the use of the other, the fair value of an asset which is leased by a lessor to a lessee shall for the purposes of this subparagraph be treated as exceeding £50,000 if the aggregate of the fair value of such an asset and the fair value of any other asset leased by the lessor to the lessee in the period of 12 months ending at the inception of the lease of such an asset exceeds £50,000, and
(iii) the lease provides for lease payments to be made at annual or more frequent regular intervals throughout the period of the lease such that none of those payments, other than a payment which consists of the consideration for the disposal of the asset for an amount equal to its market value (being its market value if it were not subject to any lease) at the time of disposal, is significantly greater than any of the lease payments payable before it.
num: 405
paragraphs: —(1) Subject to subsection (2), where on or after the 24th day of April, 1992, a person incurs capital expenditure on the acquisition or construction of a building or structure which is or is to be an industrial building or structure by virtue of being a holiday cottage within the meaning of section 268 , and an allowance is to be made in respect of that expenditure under section 271 or 272 —
(a) neither section 305 (1)(b) nor section 308 (4) shall apply as respects that allowance, and
(b) neither section 381 nor section 396 (2) shall apply as respects the whole or part (as the case may be) of any loss which would not have arisen but for the making of that allowance.
(2) This section shall not apply to expenditure incurred before the 6th day of April, 1993, on the acquisition or construction of a building or structure (in this subsection referred to as “the holiday cottage”) which is or is to be an industrial building or structure by virtue of being a holiday cottage within the meaning of section 268 if before the 24th day of April, 1992—
(a) a binding contract in writing for the construction of the holiday cottage was entered into, or
(b) (i) a binding contract in writing for the purchase or lease of land for the construction of the holiday cottage was entered into, and
(ii) an application for planning permission for the construction of the holiday cottage was received by a planning authority.
num: 406
paragraphs: —Where a person incurs capital expenditure of the type to which subsection (7) of section 284 applies and an allowance is to be made in respect of that expenditure under that section—
(a) section 308 (4) shall not apply as respects that allowance, and
(b) section 396 (2) shall not apply as respects the whole or part (as the case may be) of any loss which would not have arisen but for the making of that allowance.
num: 407
paragraphs: —(1) In this section—
“lessee”, in relation to a ship provided for leasing, means the person to whom the ship is or is to be leased and includes the successors in title of a lessee;
“qualifying ship” means a seagoing vessel which—
(a) (i) is owned to the extent of not less than 51 per cent by a person or persons resident in the State, or
(ii) is the subject of a letting on charter without crew by a lessor not resident in the State,
(b) in the case of a vessel to which paragraph (a)(i) applies, is registered in the State under Part II of the Mercantile Marine Act, 1955 , and, in the case of a vessel to which paragraph (a)(ii) applies, is a vessel in respect of which it can be shown that the requirements of the Merchant Shipping Acts, 1894 to 1993, have been complied with as if it had been a vessel registered under that Part,
(c) is of not less than 100 tons gross tonnage, and
(d) is self-propelled,
but, notwithstanding anything in paragraph (a), (b), (c) or (d), does not include—
(i) a fishing vessel, other than a vessel normally used for the purposes of an activity mentioned in paragraph (d) of the definition of “qualifying shipping activities”,
(ii) a tug, other than a tug in respect of which a certificate has been given by the Minister for the Marine and Natural Resources certifying that in the opinion of the Minister the tug is capable of operating in seas outside the portion of the seas which are, for the purposes of the Maritime Jurisdiction Act, 1959 (as amended by the Maritime Jurisdiction (Amendment) Act, 1988 ), the territorial seas of the State,
(iii) a vessel (including a dredger) used primarily as a floating platform for working machinery or as a diving platform, and
(iv) any other vessel of a type not normally used for the purposes of qualifying shipping activities;
“qualifying shipping activities” means activities carried on by a company in the course of a trade and which consist of—
(a) the use of a qualifying ship for the purpose of carrying by sea passengers or cargo for reward,
(b) the provision on board the qualifying ship of services ancillary to that use of the qualifying ship,
(c) the granting of rights by virtue of which another person provides or will provide those services on board that qualifying ship,
(d) the subjecting of fish to a manufacturing process on board a qualifying ship,
(e) the letting on charter of a qualifying ship for use for those purposes where the operation of the ship and the crew of the ship remain under the direction and control of the company, or
(f) the use of a qualifying ship for the purposes of transporting supplies or personnel to, or providing services in respect of, a mobile or fixed rig, platform, vessel or installation of any kind at sea;
“qualifying shipping trade” means a trade, the income from which is within the charge to corporation tax, carried on in the relevant period, which consists solely of the carrying on of qualifying shipping activities or, in the case of a trade consisting partly of the carrying on of such activities and partly of the carrying on of other activities, that part of the trade consisting solely of the carrying on of qualifying shipping activities and which is treated by virtue of subsection (3) as a separate trade;
“relevant certificate” means a certificate issued with the consent of the Minister for Finance by the Minister for the Marine and Natural Resources in relation to the letting on charter of a ship certifying, on the basis of a business plan and any other information supplied by the lessee to the Minister for the Marine and Natural Resources, that that Minister is satisfied that the lease is in respect of a ship which—
(a) will result in an upgrading and enhancement of the lessee's fleet leading to improved efficiency and the maintenance of competitiveness,
(b) (i) has the potential to create a reasonable level of additional sustainable employment and other socio-economic benefits in the State, or
(ii) will assist in maintaining or promoting the lessee's trade in the carrying on of a qualifying shipping activity and the maintenance of a reasonable level of sustainable employment and other socio-economic benefits in the State,
and
(c) will result in the leasing of a ship which complies with current environmental and safety standards;
“the relevant period” means the period from the 1st day of January, 1987, to the 31st day of December, 2000;
“specified capital allowances” means capital allowances in respect of—
(a) expenditure incurred by any person in the relevant period on the provision of a qualifying ship which is in use in or is intended to be used in a qualifying shipping trade, or
(b) the diminished value by reason of wear and tear during the relevant period of a qualifying ship in use for the purposes of a qualifying shipping trade,
notwithstanding that any such capital allowances are not treated as trading expenses of the qualifying shipping trade.
(2) Before issuing a relevant certificate, the Minister for the Marine and Natural Resources shall be satisfied that the lease concerned is for bona fide commercial purposes and not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
(3) (a) Subject to paragraph (b), where during the relevant period a company carries on qualifying shipping activities as part of a trade, those activities shall be treated for the purposes of the Tax Acts, other than any provision of those Acts relating to the commencement or cessation of a trade, as a separate trade distinct from all other activities carried on by the company as part of the trade, and any necessary apportionment shall be made of receipts or expenses.
(b) This subsection shall not apply in relation to a claim by the company for the set-off under section 396 (1)—
(i) against income arising during the relevant period, of a loss incurred before the commencement of the relevant period, and
(ii) against income arising after the end of the relevant period, of a loss incurred during the relevant period.
(4) Notwithstanding any other provision of the Tax Acts apart from subsection (5), for the purposes of granting relief from tax in respect of any income or profits arising in the relevant period or for the purposes of determining the amount of such income or profits which is chargeable to tax—
(a) specified capital allowances shall be allowed only—
(i) in computing the income from a qualifying shipping trade, or
(ii) in computing or charging to tax any income arising from the letting on charter of the qualifying ship to which the specified capital allowances refer, other than letting on charter which is a qualifying shipping activity,
and shall not be allowed in computing any other income or profits or in taxing any other trade or in charging any other income to tax,
(b) a loss incurred in the relevant period in a qualifying shipping trade shall not be set off—
(i) against any profits under section 396 (2), except to the extent of the amount of income from a qualifying shipping trade included in those profits, or
(ii) against the total profits of a claimant company under section 420 (1), except to the extent of the amount of income from a qualifying shipping trade included in those total profits,
and
(c) the letting on charter of a ship referred to in paragraph (a)(ii) in the course of a trade shall be deemed, notwithstanding subsection (1)(c) of section 403 , to be a trade of leasing for the purposes of that section and to be a separate trade as provided for in subsection (2) of that section.
(5) As respects a ship a binding contract in writing for the acquisition or construction of which was concluded on or after the 1st day of July, 1996, subsection (4)(c) shall not apply in the case of a letting on charter of a ship referred to in that subsection where the lease in respect of the ship is a lease the terms of which comply with clauses (I) and (II) of section 404 (1)(b)(i), and where the lessee produces to the Revenue Commissioners a relevant certificate.
(6) A qualifying shipping trade shall not be regarded as a specified trade for the purposes of section 403 .
num: 408
paragraphs: —(1) In this section—
“property investment scheme” means any scheme or arrangement made for the purpose, or having the effect, of providing facilities, whether promoted by means of public advertisement or otherwise, for the public or a section of the public to share, either directly or indirectly and whether as beneficiaries under a trust or by any other means, in income or gains arising or deriving from the acquisition, holding or disposal of, or of an interest in, a building or structure or a part of a building or structure, but does not include a scheme or arrangement as respects which the Revenue Commissioners or, on appeal, the Appeal Commissioners, having regard to such information as may be produced to them, are of the opinion that—
(a) the manner in which persons share in the income or gains, and
(b) the number of persons who so share,
are in accordance with a practice which commonly prevailed in the State during the period of 5 years ending immediately before the 30th day of January, 1991, for the sharing of such income or gains by persons resident in the State and such that the persons so sharing qualified for relief under section 305 (1)(b) or 308 (4);
“specified interest” means an interest in or deriving from a building or structure held by a person pursuant to a property investment scheme.
(2) Where a person holds a specified interest, then, as respects expenditure incurred or deemed to be incurred on or after the 30th day of January, 1991, sections 305 (1)(b) and 308 (4) shall not apply as respects an allowance under section 271 or 272 which is to be madeto the person by reason of the holding by the person of the specified interest.
(3) The Appeal Commissioners shall hear and determine an appeal made to them under this section as if it were an appeal against an assessment to income tax, and the provisions of the Income Tax Acts 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.
num: 409
paragraphs: —(1) In this section—
“hotel investment” means capital expenditure incurred either on the construction of, or the acquisition of a relevant interest in, a building or structure which is to be regarded as an industrial building or structure within the meaning of subsection (1)(d) of section 268 , other than a building or structure to which subsection (3) of that section relates;
“hotel partnership” includes any syndicate, group or pool of persons, whether or not a partnership, through or by means of which a hotel investment is made;
“market value” shall be construed in accordance with section 548 ;
“member”, in relation to a hotel partnership, includes every person who participates in that partnership or who has contributed capital, directly or indirectly, to that partnership;
“preferential terms”, in relation to the acquisition of an interest referred to in subsection (3)(a)(i), means terms under which such interest is acquired for a consideration which, at the time of the acquisition, is or may be other than its market value.
(2) This section is for the purpose of counteracting any room ownership scheme entered into in connection with a hotel investment by a hotel partnership.
(3) For the purposes of this section—
(a) a scheme shall be a room ownership scheme in connection with a hotel investment if, at the time a hotel investment is made by a hotel partnership, there exists any agreement, arrangement, understanding, promise or undertaking (whether express or implied and whether or not enforceable or intended to be enforceable by legal proceedings) under or by virtue of which any member of that hotel partnership, or a person connected with such member, may—
(i) acquire on preferential terms an interest in, or
(ii) retain for use other than for the purposes of the trade of hotel-keeping,
any room or rooms in, or any particular part of, the building or structure which is the subject of the hotel investment, and
(b) where a hotel investment is made by one or more than one member of a hotel partnership, it shall be deemed to be made by the hotel partnership.
(4) Subject to subsection (5), no allowance shall be made under Chapter 1 of Part 9 in respect of a hotel investment by a hotel partnership where, in connection with any such investment, there exists a room ownership scheme.
(5) (a) Except where provided for in paragraph (b), this section shall apply to a hotel investment the capital expenditure in respect of which is incurred on or after the 26th day of March, 1997.
(b) This section shall not apply to a hotel investment if, before the 26th day of March, 1997, in respect of a building or structure which is the subject of such investment—
(i) a binding contract in writing was entered into for the construction of, or the acquisition of a relevant interest in, the building or structure, or
(ii) an application for planning permission for the construction of the building or structure was received by a planning authority.
num: 410
paragraphs: —(1) (a) In this section—
“trading or holding company” means a trading company or a company whose business consists wholly or mainly in the holding of shares or securities of trading companies which are its 90 per cent subsidiaries;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades.
(b) For the purposes of this section, a company shall be owned by a consortium if 75 per cent or more of the ordinary share capital of the company is beneficially owned between them by 5 or fewer companies resident in the State of which none beneficially owns less than 5 per cent of that capital, and those companies shall be called the members of the consortium.
(2) References in this section to payments received by a company shall apply to any payments received by another person on behalf of or in trust for the company, but shall not apply to any payments received by the company on behalf of or in trust for another person.
(3) In determining for the purposes of this section whether one company is a 51 per cent subsidiary of another company, that other company shall be treated as not being the owner of—
(a) any share capital which it owns directly or indirectly in a company not resident in the State, or
(b) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt.
(4) Where a company receives from another company (both being companies resident in the State) any payments to which this section applies, and either—
(a) the company making the payment is—
(i) a 51 per cent subsidiary of the other company or of a company so resident of which the other company is a 51 per cent subsidiary, or
(ii) a trading or holding company owned by a consortium the members of which include the company receiving the payment, or
(b) the company receiving the payment is a 51 per cent subsidiary of the company making the payment,
then, subject to subsections (5) to (7), the payment shall be made without deduction of income tax and neither section 238 nor section 246 shall apply to the payment.
(5) This section shall apply to any payments which for the purposes of corporation tax are charges on income of the company making them or would be so if they were not deductible in computing profits or any description of profits or if section 243 (7) did not apply to them, but shall not apply to payments received by a company on any investments if a profit on the sale of those investments would be treated as a trading receipt of that company.
(6) Where a company purports by virtue of subsection (4) to make any payment without deduction of income tax and income tax ought to have been deducted, the inspector may make such assessments, adjustments or set-offs as may be required for securing that the resulting liabilities to tax (including interest on unpaid tax) of the company making and the company receiving the payment are, in so far as possible, the same as they would have been if the income tax had been duly deducted.
(7) Where tax assessed under subsection (6) on the company which made the payment is not paid by that company before the expiry of 3 months from the date on which that tax is payable, that tax shall, without prejudice to the right to recover it from that company, be recoverable from the company which received the payment.
num: 411
paragraphs: —(1) (a) For the purposes of this section and the following sections of this Chapter—
“holding company” means a company whose business consists wholly or mainly in the holding of shares or securities of companies which are its 90 per cent subsidiaries and are trading companies;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades;
a company shall be owned by a consortium if all of the ordinary share capital of the company is directly and beneficially owned between them by 5 or fewer companies, and those companies shall be called the members of the consortium;
2 companies shall be deemed to be members of a group of companies if one company is the 75 per cent subsidiary of the other company or both companies are 75 per cent subsidiaries of a third company.
(b) In applying for the purposes of this section and the following sections of this Chapter the definition of “75 per cent subsidiary” in section 9 , any share capital of a registered industrial and provident society shall be treated as ordinary share capital.
(c) References in this section and in the following sections of this Chapter to a company shall apply only to companies resident in the State, and in determining for the purposes of this section and the following sections of this Chapter whether one company is a 75 per cent subsidiary of another company, the other company shall be treated as not being the owner of—
(i) any share capital which it owns directly in a company if a profit on a sale of the shares would be treated as a trading receipt of its trade,
(ii) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt, or
(iii) any share capital which it owns directly or indirectly in a company not resident in the State.
(2) Relief for trading losses and other amounts eligible for relief from corporation tax may in accordance with this Chapter be surrendered by a company (called the “surrendering company”) which is a member of a group of companies and, on the making of a claim by another company (called the “claimant company”) which is a member of the same group, may be allowed to the claimant company by means of a relief from corporation tax called “group relief”.
(3) Group relief shall also be available in accordance with the following provisions of this Chapter—
(a) where the surrendering company is a trading company owned by a consortium and is not a 75 per cent subsidiary of any company, and the claimant company is a member of the consortium,
(b) where the surrendering company is a trading company which—
(i) is a 90 per cent subsidiary of a holding company owned by a consortium, and
(ii) is not a 75 per cent subsidiary of a company other than the holding company,
and the claimant company is a member of the consortium, or
(c) where the surrendering company is a holding company owned by a consortium and is not a 75 per cent subsidiary of any company, and the claimant company is a member of the consortium;
but no claim may be made by a member of a consortium if a profit on a sale of the share capital of the surrendering company or holding company which that member owns would be treated as a trading receipt of that member nor if the member's share in the consortium in the relevant accounting period of the surrendering company or holding company is nil.
(4) Subject to the following provisions of this Chapter, 2 or more claimant companies may make claims relating to the same surrendering company and to the same accounting period of that surrendering company.
(5) A payment for group relief shall not—
(a) be taken into account in computing profits or losses of either company for corporation tax purposes, and
(b) be regarded as a distribution or a charge on income for any of the purposes of the Corporation Tax Acts,
and, in this subsection, “payment for group relief” means a payment made by the claimant company to the surrendering company in pursuance of an agreement between them as respects an amount surrendered by means of group relief, being a payment not exceeding that amount.
num: 412
paragraphs: —(1) Notwithstanding that at any time a company (in this subsection referred to as “the subsidiary company”) is a 75 per cent subsidiary or a 90 per cent subsidiary, within the meaning of section 9 , of another company (in this section referred to as “the parent company”), it shall not be treated at that time as such a subsidiary for the purposes of group relief unless additionally at that time—
(a) the parent company is beneficially entitled to not less than 75 per cent or, as the case may be, 90 per cent of any profits available for distribution to equity holders of the subsidiary company, and
(b) the parent company would be beneficially entitled to not less than 75 per cent or, as the case may be, 90 per cent of any assets of the subsidiary company available for distribution to its equity holders on a winding up.
(2) Subject to subsection (3), for the purposes of group relief a member's share in a consortium, in relation to an accounting period of the surrendering company, shall be whichever is the lowest in that period of the following percentages—
(a) the percentage of the ordinary share capital of the surrendering company beneficially owned by that member,
(b) the percentage to which that member is beneficially entitled of any profits available for distribution to equity holders of the surrendering company, and
(c) the percentage to which that member would be beneficially entitled of any assets of the surrendering company available for distribution to its equity holders on a winding up,
and, if any of those percentages have fluctuated in that accounting period, the average percentage over the period shall be taken for the purposes of this subsection.
(3) In any case where the surrendering company is a subsidiary of a holding company owned by a consortium, for references in subsection (2) to the surrendering company there shall be substituted references to the holding company.
num: 413
paragraphs: —(1) In this Chapter, “fixed-rate preference shares” means shares which—
(a) are issued for consideration which is or includes new consideration,
(b) do not carry any right either to conversion into shares or securities of any other description or to the acquisition of any additional shares or securities,
(c) do not carry any right to dividends other than dividends which—
(i) are of a fixed amount or at a fixed rate per cent of the nominal value of the shares, and
(ii) represent no more than a reasonable commercial return on the new consideration received by the company in respect of the issue of the shares,
and
(d) on repayment do not carry any rights to an amount exceeding that new consideration except in so far as those rights are reasonably comparable with those general for fixed dividend shares quoted on a stock exchange in the State.
(2) In this section, “new consideration” has the same meaning as in section 135 .
(3) (a) In this subsection—
“normal commercial loan” means a loan of or including new consideration and—
(i) which does not carry any right either to conversion into shares or securities of any other description or to the acquisition of additional shares or securities,
(ii) which does not entitle the loan creditor to any amount by means of interest which depends to any extent on the results of the company's business or any part of it or on the value of any of the company's assets or which exceeds a reasonable commercial return on the new consideration loaned, and
(iii) in respect of which the loan creditor is entitled on repayment to an amount which either does not exceed the new consideration loaned or is reasonably comparable with the amount generally repayable (in respect of an equal amount of new consideration) under the terms of issue of securities quoted on a stock exchange in the State;
“ordinary shares” means all shares other than fixed-rate preference shares.
(b) For the purposes of this Chapter, an equity holder of a company shall be any person who—
(i) holds ordinary shares in the company, or
(ii) is a loan creditor of the company in respect of a loan which is not a normal commercial loan,
and any reference in this Chapter to profits or assets available for distribution to a company's equity holders shall not include a reference to any profits or assets available for distribution to any equity holder otherwise than as an equity holder.
(4) Subsection (6) of section 433 apart from paragraph (b) of that subsection shall apply for the purposes of subsection (3)(b)(ii) as it applies for the purposes of Part 13 .
(5) Notwithstanding anything in subsections (1) to (4) but subject to subsection (6), where—
(a) any person has directly or indirectly provided new consideration for any shares or securities in the company, and
(b) that person or any person connected with that person uses for the purposes of such person's trade assets which belong to the company and in respect of which there is made to the company any of the allowances specified in Chapter 2 of Part 9 or section 670 , 673 , 674 , 677 , 680 or 765 ,
then, for the purposes of this Chapter, that person and no other person shall be treated as being an equity holder in respect of those shares or securities and as being beneficially entitled to any distribution of profits or assets attributable to those shares or securities.
(6) In any case where subsection (5) applies in relation to a bank in such circumstances that—
(a) the only new consideration provided by the bank as mentioned in subsection (5)(a) is provided in the normal course of its banking business by means of a normal commercial loan within the meaning of subsection (3), and
(b) the cost to the company concerned of the assets within subsection (5)(b) which are used as mentioned in that subsection by the bank or a person connected with the bank is less than the amount of that new consideration,
references in subsection (5), other than the reference in subsection (5)(a), to shares or securities in the company shall be construed as a reference to so much only of the loan referred to in paragraph (a) as is equal to the cost referred to in paragraph (b).
num: 414
paragraphs: —(1) Subject to the following provisions of this Chapter, for the purposes of section 412 the percentage to which one company is beneficially entitled of any profits available for distribution to the equity holders of another company means the percentage to which the first company would be so entitled in the relevant accounting period on a distribution in money to those equity holders of—
(a) an amount of profits equal to the total profits of the other company which arise in that accounting period (whether or not any of those profits are in fact distributed), or
(b) if there are no profits of the other company in that accounting period, profits of £100,
and in the following provisions of this Chapter that distribution is referred to as “the profit distribution”.
(2) For the purposes of the profit distribution, it shall be assumed that no payment is made by means of repayment of share capital or of the principal secured by any loan unless that payment is a distribution.
(3) Subject to subsection (2), where an equity holder is entitled as such to a payment of any description which apart from this subsection would not be treated as a distribution, it shall nevertheless be treated as an amount to which the equity holder is entitled on the profit distribution.
num: 415
paragraphs: —(1) Subject to the following provisions of this Chapter, for the purposes of section 412 the percentage to which one company would be beneficially entitled of any assets of another company available for distribution to its equity holders on a winding up means the percentage to which the first company would be so entitled if the other company were to be wound up and on that winding up the value of the assets available for distribution to its equity holders (after deducting any liabilities to other persons) were equal to—
(a) the excess, if any, of the total amount of the assets of the company, as shown in the balance sheet relating to its affairs as at the end of the relevant accounting period, over the total amount of those of its liabilities as so shown which are not liabilities to equity holders as such, or
(b) if there is no such excess or if the company's balance sheet is prepared to a date other than the end of the relevant accounting period, £100.
(2) In the following provisions of this Chapter, a winding up on the basis specified in subsection (1) is referred to as “the notional winding up”.
(3) If on the notional winding up an equity holder would be entitled as such to an amount of assets of any description which apart from this subsection would not be treated as a distribution of assets, it shall nevertheless be treated, subject to subsection (4), as an amount to which the equity holder is entitled on the distribution of assets on the notional winding up.
(4) (a) In this subsection, “new consideration” has the same meaning as in section 135 .
(b) Where an amount (in this subsection referred to as “the returned amount”), which corresponds to the whole or any part of the new consideration provided by a person who is an equity holder of a company for any shares or securities in respect of which such person is an equity holder, is applied by the company directly or indirectly in the making of a loan to, or in the acquisition of any shares or securities in, the equity holder or any person connected with the equity holder, then, for the purposes of this Chapter—
(i) the total amount of the assets referred to in subsection (1)(a) shall be taken to be reduced by a sum equal to the returned amount, and
(ii) the amount of assets to which the equity holder is beneficially entitled on the notional winding up shall be taken to be reduced by a sum equal to the returned amount.
num: 416
paragraphs: —(1) This section shall apply if any of the equity holders—
(a) to whom the profit distribution is made, or
(b) who is entitled to participate in the notional winding up,
holds as such equity holder any shares or securities which carry rights in respect of dividend or interest or assets on a winding up which are wholly or partly limited by reference to a specified amount or amounts (whether the limitation takes the form of the capital by reference to which a distribution is calculated or operates by reference to an amount of profits or assets or otherwise).
(2) Where this section applies, there shall be determined—
(a) the percentage of profits to which on the profit distribution the first company referred to in section 414 (1) would be entitled, and
(b) the percentage of assets to which on the notional winding up the first company referred to in section 415 (1) would be entitled,
if, to the extent that they are limited as mentioned in subsection (1), the rights of every equity holder within that subsection (including the first company concerned if it is such an equity holder) had been waived.
(3) Where on the profit distribution the percentage of profits determined as mentioned in subsection (2)(a) is less than the percentage of profits determined under section 414 (1) without regard to subsection (2)(a), the lesser percentage shall be taken for the purposes of section 412 to be the percentage of profits to which on the profit distribution the first company referred to in section 414 (1) would be entitled as mentioned in that section.
(4) Where on the notional winding up the percentage of assets determined as mentioned in subsection (2)(b) is less than the percentage of assets determined under section 415 (1) without regard to subsection (2)(b), the lesser percentage shall be taken for the purposes of section 412 to be the percentage to which on the notional winding up the first company referred to in section 415 (1) would be entitled of any assets of the other company available for distribution to its equity holders on a winding up.
num: 417
paragraphs: —(1) This section shall apply if at any time in the relevant accounting period any of the equity holders—
(a) to whom the profit distribution is made, or
(b) who is entitled to participate in the notional winding up,
holds as such an equity holder any shares or securities which carry rights in respect of dividend or interest or assets on a winding up which are of such a nature (as, for example, if any shares will cease to carry a right to a dividend at a future time) that, if the profit distribution or the notional winding up were to take place in a different accounting period, the percentage to which, in accordance with the preceding provisions of this Chapter, that equity holder would be entitled of profits on the profit distribution or of assets on the notional winding up would be different from the percentage determined in the relevant accounting period.
(2) Where this section applies, there shall be determined—
(a) the percentage of profits to which on the profit distribution the first company referred to in section 414 (1) would be entitled, and
(b) the percentage of assets to which on the notional winding up the first company referred to in section 415 (1) would be entitled,
if the rights of the equity holders in the relevant accounting period were the same as they would be in the different accounting period referred to in subsection (1).
(3) Where in the relevant accounting period an equity holder holds as such any shares or securities in respect of which arrangements exist by virtue of which, in that or any subsequent accounting period, the equity holder's entitlement to profits on the profit distribution or to assets on the notional winding up could be different as compared with the equity holder's entitlement if effect were not given to the arrangements, then, for the purposes of this section—
(a) it shall be assumed that effect would be given to those arrangements in a later accounting period, and
(b) those shares or securities shall be treated as though any variation in the equity holder's entitlement to profits or assets resulting from giving effect to the arrangements were the result of the operation of such rights attaching to the shares or securities as are referred to in subsection (1).
(4) Subsections (3) and (4) of section 416 shall apply for the purposes of this section as they apply for the purposes of that section, and accordingly references in those subsections to subsection (2)(a) and subsection (2)(b) of that section shall be construed respectively as references to subsection (2)(a) and subsection (2)(b) of this section.
(5) In any case where section 416 applies as well as this section, section 416 shall be applied separately (in relation to the profit distribution and the notional winding up)—
(a) on the basis specified in subsection (2), and
(b) without regard to that subsection,
and subsections (3) and (4) of section 416 shall apply accordingly in relation to the percentages so determined as if for “lesser” there were substituted “lowest”.
num: 418
paragraphs: —For the purposes of section 412 and sections 414 to 417 —
(a) the percentage to which one company is beneficially entitled of any profits available for distribution to the equity holders of another company, and
(b) the percentage to which one company would be beneficially entitled of any assets of another company on a winding up,
means the percentage to which the first company is or would be so entitled either directly or through another company or other companies or partly directly and partly through another company or other companies.
num: 419
paragraphs: —(1) In this Chapter, “the relevant accounting period” means—
(a) in a case within section 412 (1), the accounting period current at the time in question, and
(b) in a case within section 412 (2), the accounting period in relation to which the share in the consortium is to be determined.
(2) For the purposes of sections 413 to 418 , a loan to a company shall be treated as a security whether or not it is a secured loan and, if it is a secured loan, regardless of the nature of the security.
num: 420
paragraphs: —(1) Where in any accounting period the surrendering company has incurred a loss, computed as for the purposes of section 396 (2), in carrying on a trade, the amount of the loss may be set off for the purposes of corporation tax against the total profits of the claimant company for its corresponding accounting period; but this subsection shall not apply to so much of a loss as is excluded from section 396 (2) by section 396 (4) or 663 .
num: 421
paragraphs: —(1) In this section, “relief derived from a subsequent accounting period” means—
(a) relief under section 308 (4) in respect of capital allowances to be made for an accounting period after the accounting period the profits of which are being computed,
(b) relief under section 396 (2) in respect of a loss incurred in an accounting period after the accounting period the profits of which are being computed, and
(c) relief under section 397 in respect of a loss incurred in an accounting period after the end of the accounting period the profits of which are being computed.
(2) Group relief for an accounting period shall be allowed as a deduction against the claimant company's total profits for the period before reduction by any relief derived from a subsequent accounting period, but as reduced by any other relief from tax (including relief in respect of charges on income under section 243 (2)).
(3) That other relief shall be determined on the assumption that the company makes all relevant claims under section 308 (4) or 396 (2).
(4) The reductions to be made in total profits of an accounting period against which any relief derived from a subsequent accounting period is to be set off shall include any group relief for the first-mentioned accounting period.
num: 422
paragraphs: —(1) For the purposes of group relief, any accounting period of the claimant company which falls wholly or partly within an accounting period of the surrendering company shall correspond to that accounting period.
(2) Where an accounting period of the surrendering company and a corresponding accounting period of the claimant company do not coincide—
(a) the amount which may be set off against the total profits of the claimant company for the corresponding accounting period shall be reduced by applying the fraction—
A
__
B
(if that fraction is less than unity), and
(b) those profits against which the amount mentioned in paragraph (a) (as reduced where so required) may be set off shall be reduced by applying the fraction—
A
__
C
(if that fraction is less than unity),
where—
A is the length of the period common to the 2 accounting periods,
B is the length of the accounting period of the surrendering company, and
C is the length of the corresponding accounting period of the claimant company.
num: 423
paragraphs: —(1) Subject to this section, group relief shall be given only if the surrendering company and the claimant company are members of the same group, or fulfil the conditions for relief for a consortium, throughout the whole of the surrendering company's accounting period to which the claim relates and throughout the whole of the corresponding accounting period of the claimant company.
(2) Where on any occasion 2 companies become or cease to be members of the same group, then, for the purposes specified in subsection (3), it shall be assumed as respects each company that on that occasion (unless a true accounting period of the company begins or ends then) an accounting period of the company ends and a new one begins, the new accounting period to end with the end of the true accounting period (unless before then there is a further break under this subsection) and—
(a) that the losses or other amounts of the true accounting period are apportioned to the component accounting periods on a time basis according to their lengths, and
(b) that the amount of total profits for the true accounting period of the company against which group relief may be allowed in accordance with section 421 (2) is also so apportioned to the component accounting periods.
(3) Where the one company is the surrendering company and the other company is the claimant company—
(a) references in section 420 to accounting periods, to profits, and to losses, allowances, expenses of management or charges on income of the surrendering company, shall be construed in accordance with subsection (2);
(b) references in subsection (1) and in section 422 to accounting periods shall be so construed that if the 2 companies are members of the same group in the surrendering company's accounting period they shall under section 422 also be members of the same group in any corresponding accounting period of the claimant company;
(c) references in section 422 to profits, and amounts to be set off against the profits, shall be so construed that an amount apportioned under subsection (2) to a component accounting period may fall to be reduced under section 422 (2).
(4) Subsections (2) and (3) shall apply with the necessary modifications where a company begins or ceases to fulfil the conditions for relief for a consortium, either as a surrendering company or as a claimant company, as they apply where 2 companies become or cease to be members of the same group.
num: 424
paragraphs: —(1) In this section—
“control” has the meaning assigned to it by section 11 ;
“third company” means a company which, apart from any provision made by or under any arrangements specified in subsection (3)(b) or (4)(b), is not a member of the same group of companies as the first company (within the meaning of subsection (3)) or, as the case may be, the trading company or holding company to which subsection (4) applies.
(2) For the purposes of this section, a company shall be a successor of another company if it carries on a trade which in whole or in part the other company has ceased to carry on and the circumstances are such that—
(a) section 400 applies in relation to the 2 companies as the predecessor and the successor within the meaning of that section, or
(b) the 2 companies are connected with each other.
(3) Where apart from this section 2 companies (in this subsection referred to respectively as “the first company” and “the second company”) would be treated as members of the same group of companies and—
(a) in an accounting period one of the 2 companies has trading losses or other amounts eligible for relief from corporation tax which apart from this section it would be entitled to surrender as mentioned in section 411 (2), and
(b) arrangements are in existence by virtue of which, at some time during or after the expiry of that accounting period—
(i) the first company or any successor of the first company could cease to be a member of the same group of companies as the second company and could become a member of the same group of companies as a third company,
(ii) any person has or could obtain, or any persons together have or could obtain, control of the first company but not of the second company, or
(iii) a third company could begin to carry on the whole or any part of a trade which at any time in that accounting period is carried on by the first company, and could do so either as a successor of the first company or as a successor of another company which is not a third company but which, at some time during or after the expiry of that accounting period, has begun to carry on the whole or any part of that trade,
then, for the purposes of this Chapter, the first company shall be treated as not being a member of the same group of companies as the second company.
(4) Where a trading company is owned by a consortium or is a 90 per cent subsidiary of a holding company owned by a consortium and—
(a) in any accounting period the trading company had trading losses or other amounts eligible for relief from corporation tax which apart from this section it would be entitled to surrender as mentioned in section 411 (2), and
(b) arrangements are in existence by virtue of which—
(i) the trading company or any successor of the trading company could, at some time during or after the expiry of that accounting period, become a 75 per cent subsidiary of a third company,
(ii) any person who owns, or any persons who together own, less than 50 per cent of the ordinary share capital of the trading company has or together have, or could at some time during or after the expiry of that accounting period obtain, control of the trading company,
(iii) any person, other than a holding company of which the trading company is a 90 per cent subsidiary, either alone or together with connected persons, holds or could obtain, or controls or could control, the exercise of not less than 75 per cent of the votes which may be cast on a poll taken at a general meeting of the trading company in that accounting period or in any subsequent accounting period, or
(iv) a third company could begin to carry on, at some time during or after the expiry of that accounting period, the whole or any part of a trade which at any time in that accounting period is carried on by the trading company, and could do so either as a successor of the trading company or as a successor of another company which is not a third company but which, at some time during or after the expiry of that accounting period, has begun to carry on the whole or any part of that trade,
then, for the purposes of this Chapter, the trading company shall be treated as though it were not (as the surrendering company) within paragraph (a), (b) or (c) of section 411 (3).
(5) In any case where a trading company is a 90 per cent subsidiary of a holding company owned by a consortium, any reference in subsection (4) to the trading company, other than a reference in paragraph (b)(iv) of that subsection, shall be construed as including a reference to the holding company.
num: 425
paragraphs: —(1) Subject to this section, where—
(a) under a contract entered into after the 27th day of November, 1975, a company (in this section referred to as “the first company”) incurs capital expenditure on the provision of machinery or plant which the first company lets to another person by another contract (in this section referred to as a “leasing contract”),
(b) apart from this subsection the first company would be entitled to claim relief under subsection (1) or (2) of section 396 in respect of losses incurred on the leasing contract, and
(c) in the accounting period for which an allowance under section 283 or 285 in respect of the expenditure referred to in paragraph (a) is made to the first company, arrangements are in existence by virtue of which, at some time during or after the expiry of that accounting period, a successor company will be able to carry on any part of the first company's trade which consists of or includes the performance of all or any of the obligations which apart from the arrangements would be the first company's obligations under the leasing contract,
then, in the accounting period specified in paragraph (c) and in any subsequent accounting period, the first company shall not be entitled to claim relief as mentioned in paragraph (b) except in computing its profits (if any) arising under the leasing contract.
(2) For the purposes of this section, a company shall be a successor of the first company if the circumstances are such that—
(a) section 400 applies in relation to the first company and the other company as the predecessor and the successor respectively within the meaning of that section, or
(b) the 2 companies are connected with each other.
(3) For the purposes of this section, losses incurred on a leasing contract and profits arising under such a contract shall be computed as if the performance of the leasing contract were a trade begun to be carried on by the first company, separately from any other trade which it may carry on, at the commencement of the letting under the leasing contract.
(4) In determining whether the first company would be entitled to claim relief as mentioned in subsection (1)(b), any losses incurred on the leasing contract shall be treated as incurred in a trade carried on by that company separately from any other trade which it may carry on.
num: 426
paragraphs: —(1) For the purposes of this section, the amount of a company's share in the profits or loss of any accounting period of a partnership shall be such amount as is determined in accordance with section 1009 .
(2) Subsection (3) shall apply in relation to a company (in this section referred to as “the partner company”) which is a member of a partnership carrying on a trade if arrangements are in existence (whether as part of the terms of the partnership or otherwise) whereby—
(a) in respect of the whole or any part of the value of, or of any portion of, the partner company's share in the profits or loss of any accounting period of the partnership, another member of the partnership or any person connected with another member of the partnership receives any payment or acquires or enjoys, directly or indirectly, any other benefit in money's worth, or
(b) in respect of the whole or any part of the cost of, or any portion of, the partner company's share in the loss of any accounting period of the partnership, the partner company, or any person connected with that company, receives any payment or acquires or enjoys, directly or indirectly, any other benefit in money's worth, other than a payment in respect of group relief to the partner company by a company which is a member of the same group as the partner company for the purposes of group relief.
(3) (a) In this subsection, “relevant accounting period of the partnership” means any accounting period of the partnership in which any arrangements specified in subsection (2) are in existence or to which any such arrangements apply.
(b) In any case where this subsection applies in relation to the partner company—
(i) the company's share in the loss of the relevant accounting period of the partnership and its share in any charges on income (within the meaning of section 243 ) paid by the partnership in that accounting period shall not be available for set-off for the purposes of corporation tax except against its profits of the several trade,
(ii) except in accordance with subparagraph (i), no trading losses shall be available for set-off for the purposes of corporation tax against the profits of the company's several trade for the relevant accounting period of the partnership, and
(iii) except in accordance with subparagraphs (i) and (ii), no amount which apart from this subsection would be available for relief against profits shall be available for set-off for the purposes of corporation tax against so much of the company's total profits as consists of profits of its several trade for the relevant accounting period of the partnership.
num: 427
paragraphs: —(1) In this section, section 417 (3) and sections 424 to 426 , “arrangements” means arrangements of any kind, whether in writing or not.
(2) Where a company—
(a) makes a claim for group relief,
(b) being a party to a leasing contract (within the meaning of section 425 ) claims relief as mentioned in subsection (1)(b) of that section, or
(c) being a member of a partnership, claims any relief which, if section 426 (3) applied in relation to it, it would not be entitled to claim,
and the inspector has reason to believe that any relevant arrangements may exist, or may have existed at any time material to the claim, then, at any time after the claim is made, the inspector may serve notice in writing on the company requiring it to furnish the inspector, within such time, being not less than 30 days, from the giving of the notice as the inspector may direct, with—
(i) a declaration in writing stating whether or not any such arrangements exist or existed at any material time,
(ii) such information as the inspector may reasonably require for the purpose of satisfying the inspector whether or not any such arrangements exist or existed at any material time, or
(iii) both such a declaration and such information.
(3) In this section, “relevant arrangements”, in relation to a claim within any of paragraphs (a) to (c) of subsection (2), means arrangements referred to in the provision specified in the corresponding paragraph below—
(a) section 417 (3) or subsection (3) or (4) of section 424 ,
(b) section 425 (1)(c), or
(c) section 426 (2).
(4) In a case within paragraph (a) of subsection (2), a notice under that subsection may be served on the surrendering company (within the meaning of section 411 ) instead of or as well as on the company claiming relief.
(5) In a case within paragraph (c) of subsection (2), a notice under that subsection may be served on the partners instead of or as well as on the company, and accordingly may require the partners, instead of or as well as the company, to furnish the declaration, information or declaration and information concerned.
num: 428
paragraphs: —(1) Relief shall not be given more than once in respect of the same amount, whether by giving group relief and by giving some other relief (in any accounting period) to the surrendering company or by giving group relief more than once.
(2) In accordance with subsection (1), 2 or more claimant companies shall not, in respect of any one loss or other amount for which group relief may be given, and whatever their accounting periods corresponding to that of the surrendering company, obtain in aggregate more relief than could be obtained by a single claimant company whose corresponding accounting period coincided with the accounting period of the surrendering company.
(3) Where claims for group relief are made by more than one claimant company which relate to the same accounting period of the same surrendering company, and—
(a) all the claims so made are admissible only by virtue of subsection (2) or (3) of section 423 , and
(b) there is a part of the surrendering company's accounting period during which none of those claimant companies is a member of the same group as the surrendering company,
then, those claimant companies shall not obtain in all more relief than could be obtained by a single claimant company which was not a member of the same group as the surrendering company during that part of the surrendering company's accounting period (but was a member during the remainder of that accounting period).
(4) Where claims for group relief are made by a claimant company as respects more than one surrendering company for group relief to be set off against its total profits for any one accounting period, and—
(a) all the claims so made are admissible only by virtue of subsection (2) or (3) of section 423 , and
(b) there is a part of the claimant company's accounting period during which none of the surrendering companies by reference to which the claims are made is a member of the same group as the claimant company,
then, the claimant company shall not obtain in all more relief to be set off against its profits for the accounting period than it could obtain on a claim as respects a single surrendering company (with unlimited losses and other amounts eligible for relief) which was not a member of the same group as the claimant company during that part of the claimant company's accounting period (but was a member during the remainder of that accounting period).
(5) The following provisions shall apply as respects a claim (in this subsection referred to as a “consortium claim”) for group relief made by a company as a member of a consortium:
(a) a consortium claim, and a claim other than a consortium claim, shall not both have effect as respects the loss or other amount of the same accounting period of the same surrendering company unless each of the 2 claims is as respects a loss or other amount apportioned under section 423 (2)(a) to a component of that accounting period, and the 2 components do not overlap;
(b) in subsections (3) and (4) consortium claims shall be disregarded;
(c) paragraph (a) shall apply according to the order in which claims are made.
(6) Without prejudice to section 320 (6), any reference in Part 9 , Chapter 1 of Part 24 , Chapter 1 of Part 29 and section 765 to an allowance made shall include a reference to an allowance which would be made but for the granting of group relief or but for that and but for an insufficiency of profits or other income against which to make it.
num: 429
paragraphs: —(1) A claim for group relief—
(a) need not be for the full amount available,
(b) shall require the consent of the surrendering company notified to the inspector in such form as the Revenue Commissioners may require, and
(c) shall be made within 2 years from the end of the surrendering company's accounting period to which the claim relates.
(2) A claim for group relief by a company as a member of a consortium shall require the consent of each other member of the consortium, notified to the inspector in such form as the Revenue Commissioners may require, in addition to the consent of the surrendering company.
num: 430
paragraphs: —(1) For the purposes of the Corporation Tax Acts, “close company” means a company under the control of 5 or fewer participators, or of participators who are directors, but does not include—
(a) a company not resident in the State,
(b) a registered industrial and provident society, being a society within the meaning of section 698 ,
(c) a building society within the meaning of section 702 ,
(d) a company controlled by or on behalf of the State and not otherwise a close company, or
(e) a company within subsection (4) or section 431.
(2) For the purposes of this section—
(a) a company shall be treated as controlled by or on behalf of the State only if it is under the control of the State, or of persons acting on behalf of the State, independently of any other person, and
(b) where a company is so controlled, it shall not be treated as being otherwise a close company unless it can be treated as a close company by virtue of being under the control of persons acting independently of the State.
(3) A company resident in the State (but not within paragraph (b) or (c) of subsection (1)) shall also be a close company if, on a full distribution of its distributable income, more than 50 per cent of that income would be paid directly or indirectly to 5 or fewer participators, or to participators who are directors.
(4) A company shall not be treated as a close company—
(a) if—
(i) it is controlled by a company which is not a close company, or by 2 or more companies none of which is a close company, and
(ii) it cannot be treated as a close company except by taking as one of the 5 or fewer participators requisite for its being so treated a company which is not a close company,
or
(b) if it cannot be treated as a close company except by virtue of paragraph (c) of section 432 (2) and would not be a close company if the reference in that paragraph to participators did not include loan creditors who are companies other than close companies.
(5) References in subsection (4) to a close company shall be treated as including a company which if resident in the State would be a close company.
(6) Where shares in any company (in this subsection referred to as “the first company”) are at any time after the 5th day of April, 1976, held on trust for an exempt approved scheme (within the meaning of Chapter 1 of Part 30 ), then, unless the scheme is established wholly or mainly for the benefit of persons who are, or are dependants of, employees or directors or past employees or directors of—
(a) the first company,
(b) an associated company of the first company,
(c) a company under the control of any director, or associate of a director, of the first company or of 2 or more persons each of whom is such a director or associate, or
(d) a close company,
the persons holding the shares shall for the purposes of subsection (4) be deemed to be the beneficial owners of the shares and in that capacity to be a company which is not a close company.
num: 431
paragraphs: —(1) In this section, “share” includes “stock”.
(2) For the purposes of this section—
(a) a person shall be a principal member of a company—
(i) if such person possesses a percentage of the voting power in the company of more than 5 per cent and, where there are more than 5 such persons, if such person is one of the 5 persons who possess the greatest percentages, or
(ii) if (because 2 or more persons possess equal percentages of the voting power in the company) there are no such 5 persons, such person is one of the 6 or more persons (so as to include those 2 or more who possess equal percentages) who possess the greatest percentages,
(b) a principal member's holding shall consist of the shares which carry the voting power possessed by the principal member, and
(c) in determining the voting power which a person possesses, there shall be attributed to such person any voting power which for the purposes of section 432 would be attributed to such person under subsection (5) or (6) of that section.
(3) Subject to this section, a company shall not be treated as being at any time a close company if—
(a) shares in the company carrying not less than 35 per cent of the voting power in the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) have been allotted unconditionally to, or acquired unconditionally by, and are at that time beneficially held by, the public, and
(b) any such shares have within the preceding 12 months been the subject of dealings on a recognised stock exchange, and the shares have within those 12 months been quoted in the official list of a recognised stock exchange.
(4) Subsection (3) shall not apply to a company at any time when the total percentage of the voting power in the company possessed by all of the company's principal members exceeds 85 per cent.
(5) For the purposes of subsection (3), shares in a company shall be deemed to be beneficially held by the public only if the shares—
(a) are within subsection (6), and
(b) are not within the exceptions in subsection (7),
and the reference to shares which have been allotted unconditionally to, or acquired unconditionally by, the public shall be construed accordingly.
(6) Shares are within this subsection (as being beneficially held by the public) if the shares—
(a) are beneficially held by a company resident in the State which is not a close company, or by a company not so resident which would not be a close company if it were so resident,
(b) are held on trust for an exempt approved scheme (within the meaning of Chapter 1 of Part 30 ), or
(c) are not comprised in a principal member's holding.
(7) (a) Shares shall be deemed not to be held by the public if the shares are held—
(i) by any director, or associate of a director, of the company,
(ii) by any company under the control of any such director or associate, or of 2 or more persons each of whom is such a director or associate,
(iii) by an associated company of the company, or
(iv) as part of any fund the capital or income of which is applicable or applied wholly or mainly for the benefit of, or of the dependants of, the employees or directors, or past employees or directors, of the company, or of any company within subparagraph (ii) or (iii).
(b) References in this subsection to shares held by any person include references to any shares the rights or powers attached to which could for the purposes of section 432 be attributed to that person under subsection (5) of that section.
num: 432
paragraphs: —(1) For the purposes of this Part, a company shall be treated as another company's associated company at a particular time if, at that time or at any time within one year previously, one of the 2 companies has control of the other company, or both companies are under the control of the same person or persons.
(2) For the purposes of this Part, a person shall be taken to have control of a company if such person exercises, or is able to exercise or is entitled to acquire, control, whether direct or indirect, over the company's affairs, and in particular, but without prejudice to the generality of the foregoing, if such person possesses or is entitled to acquire—
(a) the greater part of the share capital or issued share capital of the company or of the voting power in the company,
(b) such part of the issued share capital of the company as would, if the whole of the income of the company were distributed among the participators (without regard to any rights which such person or any other person has as a loan creditor), entitle such person to receive the greater part of the amount so distributed, or
(c) such rights as would, in the event of the winding up of the company or in any other circumstances, entitle such person to receive the greater part of the assets of the company which would then be available for distribution among the participators.
(3) Where 2 or more persons together satisfy any of the conditions of subsection (2), they shall be taken to have control of the company.
(4) For the purposes of subsection (2), a person shall be treated as entitled to acquire anything which such person is entitled to acquire at a future date or will at a future date be entitled to acquire.
(5) For the purposes of subsections (2) and (3), there shall be attributed to any person any rights or powers of a nominee for such person, that is, any rights or powers which another person possesses on such person's behalf or may be required to exercise on such person's direction or behalf.
(6) For the purposes of subsections (2) and (3), there may also be attributed to any person all the rights and powers of—
(a) any company of which such person has, or such person and associates of such person have, control,
(b) any 2 or more companies of which such person has, or such person and associates of such person have, control,
(c) any associate of such person, or
(d) any 2 or more associates of such person,
including the rights and powers attributed to a company or associate under subsection (5), but excluding those attributed to an associate under this subsection, and such attributions shall be made under this subsection as will result in the company being treated as under the control of 5 or fewer participators if it can be so treated.
num: 433
paragraphs: —(1) For the purposes of this Part, “participator”, in relation to any company, means a person having a share or interest in the capital or income of the company and, without prejudice to the generality of the foregoing, includes—
(a) any person who possesses, or is entitled to acquire, share capital or voting rights in the company,
(b) any loan creditor of the company,
(c) any person who possesses, or is entitled to acquire, a right to receive or participate in distributions of the company (construing “distributions” without regard to section 436 or 437 ) or any amounts payable by the company (in cash or in kind) to loan creditors by means of premium on redemption, and
(d) any person who is entitled to secure that income or assets (whether present or future) of the company will be applied directly or indirectly for such person's benefit.
(2) (a) References in subsection (1) to being entitled to do anything apply where a person is entitled to do it at a future date or will at a future date be entitled to do it.
(b) Subsection (1) is without prejudice to any particular provision of this Part requiring a participator in one company to be treated as being also a participator in another company.
(3) (a) In this subsection, “relative” means husband, wife, ancestor, lineal descendant, brother or sister.
(b) For the purposes of this Part but subject to paragraph (c), “associate”, in relation to a participator, means—
(i) any relative or partner of the participator,
(ii) the trustee or trustees of any settlement in relation to which the participator is, or any relative (living or dead) of the participator is or was, a settlor (“settlement” and “settlor” having the same meanings respectively as in section 10 ), and
(iii) where the participator is interested in any shares or obligations of the company which are subject to any trust or are part of the estate of a deceased person, any other person interested in those shares or obligations,
and has a corresponding meaning in relation to a person other than a participator.
(c) Paragraph (b)(iii) shall not apply so as to make an individual an associate as being entitled or eligible to benefit under a trust—
(i) if the trust relates exclusively to an exempt approved scheme (within the meaning of Chapter 1 of Part 30 ), or
(ii) if the trust is exclusively for the benefit of the employees, or the employees and directors, of the company or their dependants (and not wholly or mainly for the benefit of the directors or their relatives) and the individual in question is not (and could not as a result of the operation of the trust become), either on his or her own or with his or her relatives, the beneficial owner of more than 5 per cent of the ordinary share capital of the company,
and, in applying subparagraph (ii), any charitable trusts which may arise on the failure or determination of other trusts shall be disregarded.
(4) For the purposes of this Part, “director” includes any person—
(a) occupying the position of director by whatever name called,
(b) in accordance with whose directions or instructions the directors are accustomed to act,
(c) who is a manager of the company or otherwise concerned in the management of the company's trade or business, and
(d) who is, either on his or her own or with one or more associates, the beneficial owner of, or able, directly or through the medium of other companies or by any other indirect means, to control, 20 per cent or more of the ordinary share capital of the company.
(5) In subsection (4)(d), “either on his or her own or with one or more associates” requires a person to be treated as owning or, as the case may be, controlling what any associate owns or controls, even if he or she does not own or control share capital on his or her own and, in subsection (3)(c)(ii), “either on his or her own or with his or her relatives” has a corresponding meaning.
(6) (a) For the purposes of this Part but subject to paragraph (b), “loan creditor”, in relation to a company, means a creditor in respect of—
(i) any debt incurred by the company for—
(I) any money borrowed or capital assets acquired by the company,
(II) any right to receive income created in favour of the company, or
(III) consideration the value of which to the company was (at the time when the debt was incurred) substantially less than the amount of the debt (including any premium on the debt),
or
(ii) any redeemable loan capital issued by the company.
(b) A person carrying on a business of banking shall not be deemed to be a loan creditor in respect of any loan capital issued or debt incurred by the company for money loaned by such person to the company in the ordinary course of that business.
(7) A person who is not the creditor in respect of any debt or loan capital to which subsection (6) applies but nevertheless has a beneficial interest in that debt or loan capital shall to the extent of that interest be treated for the purposes of this Part as a loan creditor in respect of that debt or loan capital.
num: 434
paragraphs: —(1) In this section—
“distributable income” of a company for an accounting period means—
(a) the income as computed in accordance with subsection (4), increased by the amount of the company's franked investment income for the accounting period reduced by the tax credit comprised in that income, but
(b) where the aggregate of the amounts specified in paragraphs (d) to (g) of subsection (4) exceeds the income as computed in accordance with that subsection apart from those paragraphs, the amount of the excess shall, in computing the amount of the distributable income, be deducted from the amount of the company's franked investment income for the accounting period as so reduced;
num: 435
paragraphs: —(1) The inspector may by notice in writing require any company which is, or appears to the inspector to be, a close company to furnish him or her within such time (not being less than 30 days) as may be specified in the notice with such particulars as he or she thinks necessary for the purposes of this Part.
(2) Where for the purposes of this Part any person in whose name any shares are registered is so required by notice in writing by the inspector, such person—
(a) shall state whether or not such person is the beneficial owner of the shares, and
(b) if not the beneficial owner of the shares or any of them, shall furnish the name and address of the person or persons on whose behalf the shares are registered in such person's name.
(3) Subsection (2) shall apply in relation to loan capital as it applies in relation to shares.
(4) (a) In this subsection, “securities” includes shares, stocks, bonds, debentures and debenture stock and any promissory note or other instrument evidencing indebtedness issued to a loan creditor of the company.
(b) For the purposes of this Part, the inspector may by notice in writing require—
(i) any company which appears to the inspector to be a close company to furnish him or her with particulars of any bearer securities issued by the company and the names and addresses of the persons to whom the securities were issued and the respective amounts issued to each person, and
(ii) any person to whom securities were so issued, or any person to whom or through whom such securities were subsequently sold or transferred, to furnish the inspector with such further information as he or she may require with a view to enabling him or her to ascertain the names and addresses of the persons beneficially interested in the securities.
num: 436
paragraphs: —(1) Subject to the exceptions mentioned in section 130 , “distribution”, in relation to a close company, includes, unless otherwise stated, any such amount as is required to be treated as a distribution by subsection (3).
(2) For the purposes of this section, any reference to a participator includes an associate of a participator, and any participator in a company which controls another company shall be treated as being also a participator in that other company.
(3) (a) Subject to paragraph (b), where a close company incurs expense in or in connection with the provision for any participator of living or other accommodation, entertainment, domestic or other services, or other benefits or facilities of whatever nature, the company shall be treated as making a distribution to such participator of an amount equal to so much of that expense as is not made good to the company by such participator.
(b) Paragraph (a) shall not apply to expense incurred in or in connection with the provision of benefits or facilities for a person to whom section 118 applies as a director or employee of the company, or the provision for the spouse, children or dependants of any such person of any pension, annuity, lump sum, gratuity or other like benefit to be given on his or her death or retirement.
(4) Any reference in subsection (3) to expense incurred in or in connection with any matter shall include a reference to a proper proportion of any expense incurred partly in or in connection with that matter, and section 119 shall apply for the purposes of subsection (3) as it applies for the purposes of section 118 , references to subsection (3) being substituted for references to section 118 (1).
(5) Subsection (3) shall not apply if the company and the participator are both resident in the State and—
(a) one is a subsidiary of the other or both are subsidiaries of a third company also so resident, and
(b) the benefit to the participator arises on or in connection with the transfer of assets or liabilities by the company to the participator, or to the company by the participator.
(6) The question whether one company is a subsidiary of another company for the purpose of subsection (5) shall be determined as if it were a question whether it is a 51 per cent subsidiary of the other company, except that the other company shall be treated as not being the owner of—
(a) any share capital which it owns directly in a company if a profit on a sale of the shares would be treated as a trading receipt of its trade,
(b) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt, or
(c) any share capital which it owns directly or indirectly in a company not resident in the State.
(7) (a) Where each of 2 or more close companies makes a payment to a person (in this paragraph referred to as “the first-mentioned person”) who is not a participator in that company, but is a participator in another of those companies, and the companies are acting in concert or under arrangements made by any person, then, each of those companies and any participator in it shall be treated as if the payment made to the first-mentioned person had been made by that company.
(b) This subsection shall apply with any necessary modifications in relation to the giving of any consideration and to the provision of any facilities as it applies in relation to the making of a payment.
num: 437
paragraphs: —(1) In this section, “interest” includes any other consideration paid or given by the close company for the use of money advanced, or credit given, by any person, and references to interest paid shall be construed accordingly.
(2) For the purposes of this section, a person shall have a material interest in a company if the person, either on the person's own or with any one or more of the person's associates, or if any associate of the person with or without any such other associates, is the beneficial owner of, or is able, directly or through the medium of other companies or by any other indirect means, to control, more than 5 per cent of the ordinary share capital of the company.
(3) Subject to the exceptions mentioned in section 130 (1), this section shall apply where in any accounting period any interest is paid by a close company to, or to an associate of, a person—
(a) who is a director of the close company, or of any company which controls or is controlled by the close company, and
(b) who has a material interest—
(i) in the close company, or
(ii) where the close company is controlled by another company, in that other company.
(4) Where the total amount so paid to any person in the accounting period exceeds the limit imposed in that person's case, the excess shall be deemed to be a distribution made by the close company to that person.
(5) The limit shall be calculated in the first instance as an overall limit applying to the aggregate of all interest which is within subsection (3) and which was paid by the close company in the accounting period and, where there are 2 or more different recipients, that overall limit shall be apportioned between them according to the amounts of interest paid to them respectively.
(6) The overall limit shall be a sum equal to interest at 13 per cent per annum or such other rate of interest as the Minister for Finance may from time to time prescribe on whichever is the lesser of—
(a) the total of the loans, advances and credits on which the interest within subsection (3) was paid by the close company in the accounting period or, if the total was different at different times in the accounting period, the average total over the accounting period, and
(b) the nominal amount of the issued share capital of the close company plus the amount of any share premium account (or other comparable account by whatever name called) of the company, taking both amounts as at the beginning of the accounting period.
(7) This section shall apply subject to section 436 (7).
num: 438
paragraphs: —(1) (a) Subject to this section, where a close company, otherwise than in the ordinary course of a business carried on by it which includes the lending of money, makes any loan or advances any money to an individual who is a participator in the company or an associate of a participator, the company shall be deemed for the purposes of this section to have paid in the year of assessment in which the loan or advance is made an annual payment of an amount which, after deduction of income tax at the standard rate for the year of assessment in which the loan or advance is made, is equal to the amount of the loan or advance.
(b) Section 239 shall apply for the purposes of the charge, assessment and recovery of the tax referred to in paragraph (a).
(c) The annual payment referred to in paragraph (a) shall not be a charge on the company's income within the meaning of section 243 .
(2) For the purposes of this section, the cases in which a close company is to be regarded as making a loan to any person shall include a case where—
(a) that person incurs a debt to the close company, or
(b) a debt due from that person to a third person is assigned to the close company,
and in such a case the close company shall be regarded as making a loan of an amount equal to the debt; but paragraph (a) shall not apply to a debt incurred for the supply by the close company of goods or services in the ordinary course of its trade or business unless the period of credit given exceeds 6 months or is longer than that normally given to the company's customers.
(3) Subsection (1) shall not apply to a loan made to a director or employee of a close company, or of an associated company of the close company, if—
(a) the amount of the loan, or that amount when taken together with any other outstanding loans which were made by the close company or any of its associated companies to the borrower, or to the spouse of the borrower, does not exceed £15,000,
(b) the borrower works full-time for the close company or any of its associated companies, and
(c) the borrower does not have a material interest in the close company or in any associated company of the close company but, if the borrower acquires such a material interest at a time when the whole or part of any such loan remains outstanding, the close company shall be regarded as making to the borrower at that time a loan of an amount equal to the sum outstanding.
(4) (a) Where, after a company has been assessed to tax under this section in respect of any loan or advance, the loan or advance or any part of it is repaid to the company, relief shall be given from that tax or a proportionate part of that tax by discharge or repayment.
(b) Relief under this subsection shall be given on a claim which shall be made within 10 years from the end of the year of assessment in which the repayment is made.
(5) Where under arrangements made by any person otherwise than in the ordinary course of a business carried on by that person—
(a) a close company makes a loan or advance which apart from this subsection does not give rise to any charge on the company under subsection (1), and
(b) some person other than the close company makes a payment or transfers property to, or releases or satisfies (in whole or in part) a liability of, an individual who is a participator in the company or an associate of a participator,
then, unless in respect of the matter referred to in paragraph (b) there is to be included in the total income of the participator or associate an amount not less than the loan or advance, this section shall apply as if the loan or advance had been made to the participator or associate.
(6) In subsections (1) and (5)(b), the references to an individual shall apply also to a company receiving the loan or advance in a fiduciary or representative capacity and to a company not resident in the State.
(7) For the purposes of this section, any participator in a company which controls another company shall be treated as being also a participator in that other company, and section 437 (2) shall apply for the purpose of determining whether a person has for the purpose of subsection (3) a material interest in a company.
(8) For the purposes of this section and in relation to any loan or advance made on or after the 23rd day of May, 1983, section 430 (1) shall apply as if paragraph (b) of that section were deleted.
num: 439
paragraphs: —(1) Subject to this section, where a company is assessed or liable to be assessed under section 438 in respect of a loan or advance and releases or writes off the whole or part of the debt in respect of the loan or advance, then—
(a) for the purpose of computing the total income of the person to whom the loan or advance was made, a sum equal to the amount so released or written off shall be treated as income received by such person after deduction of income tax by virtue of section 238 (at the standard rate for the year of assessment in which the whole or part of the debt was released or written off) from a corresponding gross amount,
(b) no repayment of income tax shall be made in respect of that income,
(c) notwithstanding paragraph (a), the income included by virtue of that paragraph in the total income of that person shall be treated for the purposes of sections 237 and 238 as not brought into charge to income tax, and
(d) for the purposes of section 59 (ii), any amount to be treated as income by virtue of paragraph (a) shall be treated as if income tax had been deducted from that amount at the standard rate for the year of assessment in which the whole or part of the debt was released or written off; but, where such amount (or the aggregate of such amounts if more than one) exceeds the amount of the individual's taxable income charged at the standard rate or the higher rate, the amount of the credit under section 59 (ii) in respect of the excess shall not, notwithstanding anything in section 59 , exceed the amount of the income tax, if any, charged on that excess.
(2) If the loan or advance referred to in subsection (1) was made to a person who has since died, or to trustees of a trust which has come to an end, this section, instead of applying to the person to whom it was made, shall apply to the person from whom the debt is due at the time of release or writing off (and accordingly, if it is due from such person as personal representative within the meaning of Chapter 1 of Part 32 , the amount treated as received by such person shall be, as regards the higher rate of tax, included for the purposes of that Chapter in the aggregate income of the estate), and subsection (1) shall apply accordingly with the necessary modifications.
(3) This section shall be construed together with section 438 .
num: 440
paragraphs: —(1) (a) Where for an accounting period of a close company the aggregate of the distributable investment income and the distributable estate income exceeds the distributions of the company for the accounting period, there shall be charged on the company an additional duty of corporation tax (in this section referred to as a “surcharge”) amounting to 20 per cent of the excess.
(b) Notwithstanding paragraph (a)—
(i) a surcharge shall not be made on a company where the excess is equal to or less than the lesser of the following amounts—
(I) £500 or, if the accounting period is less than 12 months, £500 proportionately reduced, and
(II) where the company has one or more associated companies, £500 divided by one plus the number of those associated companies or, if the accounting period is less than 12 months, £500 proportionately reduced divided by one plus the number of those associated companies;
(ii) where the excess is greater than the lesser amount on which by virtue of subparagraph (i) a surcharge would not be made, the amount of the surcharge shall not be greater than a sum equal to 80 per cent of the amount by which the excess is greater than that lesser amount.
(2) Where the aggregate of—
(a) the accumulated undistributed income of the company at the end of the accounting period, and
(b) any amount which, on or after the 27th day of November, 1975, was transferred to capital reserves or was used to issue shares, stock or securities as paid up otherwise than for new consideration (within the meaning of section 135 ) or was otherwise used so as to reduce the amount referred to in paragraph (a),
is less than the excess referred to in subsection (1), that subsection shall apply as if the amount of that aggregate were substituted for the excess.
(3) In applying subsection (1) to any accounting period of a company, an associated company which has not carried on any trade or business at any time in that accounting period (or, if an associated company during part only of that accounting period, at any time in that part of that accounting period) shall be disregarded.
(4) In determining how many associated companies a company has in an accounting period or whether a company has an associated company in an accounting period, an associated company shall be counted even if it was an associated company for part only of the accounting period, and 2 or more associated companies shall be counted even if they were associated companies for different parts of the accounting period.
(5) Where any amount on which a surcharge is made on a company under this section is distributed, the tax credit in respect of the distribution shall, except where otherwise provided, be that provided for by section 136 .
(6) A surcharge made under this section on a company in respect of an accounting period (in this subsection referred to as “the first-mentioned accounting period”)—
(a) shall be charged on the company for the earliest accounting period which ends on or after a day which is 12 months after the end of the first-mentioned accounting period, and
(b) shall be treated as corporation tax chargeable for that accounting period;
but where there is no such accounting period so ending, the surcharge shall be charged for, and treated as corporation tax of, the accounting period in respect of which it is made.
(7) The provisions of the Corporation Tax Acts relating to—
(a) assessments to corporation tax,
(b) appeals against such assessments (including the rehearing of appeals and the statement of a case for the opinion of the High Court), and
(c) the collection and recovery of corporation tax,
shall apply in relation to a surcharge made under this section as they apply to corporation tax charged otherwise than under this section.
num: 441
paragraphs: —(1) In this section, “service company” means, subject to subsection (2)—
(a) a close company whose business consists of or includes the carrying on of a profession or the provision of professional services,
(b) a close company having or exercising an office or employment, or
(c) a close company whose business consists of or includes the provision of services or facilities of whatever nature to or for—
(i) a company within either of the categories referred to in paragraphs (a) and (b),
(ii) an individual who carries on a profession,
(iii) a partnership which carries on a profession,
(iv) a person who has or exercises an office or employment, or
(v) a person or partnership connected with any person or partnership referred to in subparagraphs (i) to (iv);
but the provision by a close company of services or facilities to or for a person or partnership not connected with the company shall be disregarded for the purposes of this paragraph.
num: 442
paragraphs: —(1) In this Part—
“merchandise” means goods other than goods within the meaning of section 443 ;
“relevant accounting period” means an accounting period or part of an accounting period of a company ending on or before—
(a) where subsection (11) or (12) of section 443 applies, the 31st day of December, 2000, or
(b) in any other case, the 31st day of December, 2010;
“relief under this Part” means the reduction of corporation tax pro vided for in section 448 (2).
(2) For the purposes of this Part, where a part only of an accounting period of a company is a relevant accounting period, all amounts referable to the accounting period shall be apportioned, on the basis of the proportion which the length of the relevant accounting period bears to the length of the accounting period of the company, for the purpose of ascertaining any amount required to be taken into account in respect of the relevant accounting period.
num: 443
paragraphs: —(1) (a) In this Part, “goods” means, subject to this section, goods manufactured in the State in the course of a trade by the company which, in relation to the relevant accounting period, is the company claiming relief under this Part in relation to the trade.
(b) Where—
(i) there are 2 companies one of which manufactures goods and the other of which sells the goods in the course of its trade, and
(ii) one of the companies is a 90 per cent subsidiary of the other company or both companies are 90 per cent subsidiaries of a third company,
any goods manufactured in the State by one of the companies shall, when sold in the course of its trade by the other company, be deemed to have been manufactured in the State by that other company.
(c) Sections 412 to 417 shall apply for the purposes of paragraph (b)(ii) as they apply for the purposes of Chapter 5 of Part 12 .
(2) The definition of “goods” shall include fish produced in the State on a fish farm in the course of a trade by the company which, in relation to the relevant accounting period, is the company claiming relief under this Part in relation to the trade, and references in this Part to manufactured shall be construed, in relation to fish, as including references to produced and cognate words shall be construed accordingly.
(3) The definition of “goods” shall include plants cultivated in the State, by the process of plant biotechnology known as “micro-propagation” or “plant cloning”, in the course of a trade by the company which, in relation to the relevant accounting period, is the company claiming relief under this Part in relation to the trade, and references in this Part to manufactured shall be construed, in relation to such plants, as including references to cultivated and cognate words shall be construed accordingly.
(4) The definition of “goods” shall include—
(a) meat processed in the State in an establishment approved and inspected in accordance with the European Communities (Fresh Meat) Regulations, 1987 ( S.I. No. 284 of 1987 ), and
(b) subject to subsections (5) and (6)(a)(iii), fish which has been subjected to a process of manufacture in the State,
in the course of a trade by the company which, in the relevant accounting period, is the company claiming relief under this Part in relation to the trade, and references in this Part to manufactured and cognate words shall be construed accordingly.
(5) (a) The definition of “goods” shall not include goods sold by retail by the company claiming relief under this Part.
(b) For the purposes of paragraph (a), goods shall be deemed not to be sold by retail if they are sold—
(i) to a person who carries on a trade of selling goods of the class to which the goods so sold to such person belong,
(ii) to a person who uses goods of that class for the purposes of a trade carried on by such person, or
(iii) to a person, other than an individual, who uses goods of that class for the purposes of an undertaking carried on by such person.
(6) Without prejudice to the generality of subsection (1) and subject to subsections (2) to (4) and (8) to (15), goods shall not for the purposes of this section be regarded as manufactured if they are goods which result from a process—
(a) which consists primarily of any one of the following—
(i) dividing (including cutting), purifying, drying, mixing, sorting, packaging, branding, testing or applying any other similar process to a product, produce or material that is acquired in bulk so as to prepare that product, produce or material for sale or distribution, or any combination of such processes,
(ii) applying methods of preservation, pasteurisation or maturation or other similar treatment to any foodstuffs, or any combination of such processes,
(iii) cooking, baking or otherwise preparing food or drink for human consumption which is intended to be consumed, at or about the time it is prepared, whether or not in the building or structure in which it is prepared or whether or not in the building to which it is delivered after being prepared,
(iv) improving or altering any articles or materials without imposing on them a change in their character, or
(v) repairing, refurbishing, reconditioning, restoring or other similar processing of any articles or materials, or any combination of such processes,
or
(b) which, subject to subsection (1)(b), is not carried out by the company claiming relief under this Part.
(7) (a) In this subsection, “the intervention agency” means the Minister for Agriculture and Food, when exercising or performing any power or function conferred on that Minister by regulation 3 of the European Communities (Common Agricultural Policy) (Market Intervention) Regulations, 1973 ( S.I. No. 24 of 1973 ), and any other person when exercising or performing any corresponding power or function in any Member State of the European Communities.
(b) Notwithstanding any other provision of the Tax Acts, the definition of “goods” shall not include goods sold to the intervention agency.
(c) For the purposes of paragraph (b), the sale of goods to a person other than the intervention agency shall be deemed to be a sale to the intervention agency if and to the extent that those goods are ultimately sold to the intervention agency; but the rendering to the intervention agency of services consisting of the subjecting of meat belonging to the agency to a process of manufacture carried out in an establishment specified in subsection (4)(a) shall not be regarded as a sale of goods to the agency.
(8) For the purpose of relief under this Part, in relation to a company that carries on a trade which consists of or includes the repairing of ships—
(a) repairs carried out in the State to a ship shall be regarded as the manufacture in the State of goods, and
(b) any amount receivable in payment for such repairs so carried out shall be regarded as an amount receivable from the sale of goods.
(9) (a) In this subsection, “engineering services” means design and planning services the work on the rendering of which is carried out in the State in connection with chemical, civil, electrical or mechanical engineering works executed outside the territories of the Member States of the European Communities.
(b) For the purpose of relief under this Part, in relation to a company which carries on a trade which consists of or includes the rendering of engineering services—
(i) the rendering in the State of such services shall be regarded as the manufacture in the State of goods, and
(ii) any amount receivable in payment for such services so rendered shall be regarded as an amount receivable from the sale of goods.
(10) (a) In this subsection, “computer services” means one or more of the following—
(i) data processing services,
(ii) software development services, and
(iii) technical or consultancy services relating to either or both services specified in subparagraphs (i) and (ii),
the work on the rendering of which is carried out in the State in the course of a service undertaking in respect of which—
(I) (A) an employment grant was made by the Industrial Development Authority under section 25 of the Industrial Development Act, 1986 , or
(B) an employment grant was made by the Industrial Development Agency (Ireland) or Forbairt, as may be appropriate, under section 12 (2) of the Industrial Development Act, 1993 ,
(II) a grant under section 3, or financial assistance under section 4 , of the Shannon Free Airport Development Company Limited (Amendment) Act, 1970 , was made available by the Shannon Free Airport Development Company Limited, or
(III) financial assistance was made available by ÃdarÃ¡s na Gaeltachta under section 10 of the ÃdarÃ¡s na Gaeltachta Act, 1979 .
(b) For the purposes of relief under this Part, in relation to a company carrying on a trade which consists of or includes the rendering of computer services—
(i) the rendering of the computer services shall be regarded as the manufacture in the State of goods, and
(ii) any amount receivable in payment for the rendering of the computer services shall be regarded as an amount receivable from the sale of goods.
(11) (a) In this subsection, “qualifying shipping activities” and “qualifying shipping trade” have the same meanings respectively as in section 407 .
(b) For the purposes of relief under this Part, in relation to a company carrying on a qualifying shipping trade—
(i) qualifying shipping activities carried on in the course of the qualifying shipping trade shall be regarded as the manufacture in the State of goods, and
(ii) any amount receivable from the carrying on of qualifying shipping activities shall be regarded as an amount receivable from the sale of goods.
(12) (a) In this subsection—
“export goods” means goods which, in relation to the manufacturer of those goods, are goods for the purposes of this Part and which are exported by a Special Trading House which is not the manufacturer of the goods but which, in relation to the relevant accounting period, is the company claiming relief from tax by virtue of this subsection, where the selling by the Special Trading House of the goods so exported is selling by wholesale;
“selling by wholesale” means selling goods of any class to a person who carries on a business of selling goods of that class or who uses goods of that class for the purposes of a trade or undertaking carried on by such person;
“Special Trading House” means a company which exists solely for the purpose of carrying on a trade consisting solely of the selling of export goods manufactured by a firm which employs less than 200 persons.
(b) For the purposes of this subsection, goods shall be deemed to be exported when they are transported out of the State in the course of the selling by wholesale of those goods and are not subsequently transported into the State in the course of the selling by wholesale of those goods.
(c) For the purposes of relief under this Part, in relation to a Special Trading House—
(i) export goods when exported in the course of its trade by a Special Trading House shall be deemed to have been manufactured by the Special Trading House, notwithstanding that the manufacturer has claimed, or is entitled to claim, relief under this Part in respect of the sale by it of those goods, and
(ii) any amount receivable by the Special Trading House in payment for the sale of export goods shall be regarded as an amount receivable from the sale of goods.
(d) This subsection shall apply subject to the Export Promotion (Amendment) Act, 1987.
(13) For the purposes of relief under this Part, in relation to a company which carries on a trade, not being a relevant trading operation within the meaning of section 445 (7)(a), which consists of or includes the repair or maintenance of aircraft, aircraft engines or components—
(a) such repair or maintenance carried out in the State shall be regarded as the manufacture in the State of goods, and
(b) any amount receivable in payment for such repair or maintenance so carried out shall be regarded as an amount receivable from the sale of goods.
(14) (a) In this subsection, “film” means a film which is produced—
(i) on a commercial basis with a view to the realisation of profit, and
(ii) wholly or principally for exhibition to the public in cinemas or by means of television broadcasting or for training or documentary purposes,
and in respect of which not less than 75 per cent of the work on the production is carried out in the State.
(b) For the purposes of relief under this Part, in relation to a company carrying on a trade which consists of or includes the production of a film—
(i) the production of the film by the company claiming the relief shall be regarded as the manufacture in the State of goods, and
(ii) any amount receivable for that production shall be regarded as an amount receivable from the sale of goods.
(15) For the purposes of relief under this Part, in relation to a company which carries on a trade which consists of or includes the remanufacture and repair of computer equipment or of subassemblies where such equipment or subassemblies were originally manufactured by that company or a connected company—
(a) such remanufacture or repair carried out in the State shall be regarded as the manufacture in the State of goods, and
(b) any amount receivable in payment for such remanufacture or repair so carried out shall be regarded as an amount receivable from the sale of goods.
(16) (a) In this subsection—
“agricultural society” means a society—
(i) in relation to which both the following conditions are satisfied:
(I) the number of the society's members is not less than 50, and
(II) all or a majority of the society's members are persons who are mainly engaged in and derive the principal part of their income from husbandry,
or
(ii) to which a certificate under paragraph (b) relates;
“fishery society” means a society—
(i) in relation to which both the following conditions are satisfied:
(I) the number of the society's members is not less than 20, and
(II) all or a majority of the society's members are persons who are mainly engaged in and derive the principal part of their income from fishing,
or
(ii) to which a certificate under paragraph (c) relates;
“qualifying goods” means goods purchased by a society from its members where such goods, in relation to those members, are or would but for subsection (7) be goods for the purposes of this Part;
“qualifying society” means an agricultural society or a fishery society—
(i) which carries on a trade which consists wholly or mainly of the selling by wholesale of qualifying goods, and
(ii) all or a majority of the members of which are agricultural societies or fishery societies;
“selling by wholesale” means selling goods of any class to a person who carries on a business of selling goods of that class or who uses goods of that class for the purposes of a trade or undertaking carried on by such person;
“society” means a society registered under the Industrial and Provident Societies Acts, 1893 to 1978.
(b) The Minister for Finance may, on the recommendation of the Minister for Agriculture and Food, give a certificate entitling a society to be treated for the purposes of this subsection as an agricultural society notwithstanding that one or both of the conditions in paragraph (i) of the definition of “agricultural society” is or are not complied with in relation to the society.
(c) The Minister for Finance may, on the recommendation of the Minister for the Marine and Natural Resources, give a certificate entitling a society to be treated for the purposes of this subsection as a fishery society notwithstanding that one or both of the conditions in paragraph (i) of the definition of “fishery society” is or are not complied with in relation to the society.
(d) A certificate given under—
(i) paragraph (a) or (b) of section 70 (2) of the Finance Act, 1963 ,
(ii) paragraph (a) or (b) of section 220 (2) of the Income Tax Act, 1967 , or
(iii) paragraph (a) or (b) of section 18 (2) of the Finance Act, 1978 ,
shall, unless it has been revoked, be deemed to be a certificate given under paragraph (b) or (c), as the case may be.
(e) A certificate given under paragraph (b) or (c)—
(i) shall have effect as from such date, whether before or after the date on which it is given, as may be stated in the certificate, and
(ii) shall be published in Iris OifigiÃºil as soon as may be after the certificate is given.
(f) A certificate given under paragraph (b) or (c) may be revoked by the Minister for Finance at any time and notice of any such revocation shall be published as soon as may be in Iris OifigiÃºil.
(g) For the purposes of relief under this Part, in relation to a qualifying society—
(i) qualifying goods sold by wholesale in the course of its trade by the qualifying society shall be deemed to have been manufactured by the qualifying society, notwithstanding that the society which manufactured those goods has claimed, or is entitled to claim, relief under this Part in respect of the sale by it of those goods, and
(ii) any amount receivable from the sale of qualifying goods by the qualifying society shall be regarded as an amount receivable from the sale of goods.
(17) (a) In this subsection—
“agricultural society” and “society” have the same meanings respectively as in subsection (16);
“milk product” means butter, whey-butter, cream, cheese, condensed milk, dried or powdered milk, dried or powdered skim-milk, dried or powdered whey, chocolate crumb, casein, butter-oil, lactose, and any other product made wholly or mainly from milk or from a by-product of milk and approved for the purposes of this section by the Minister for Finance after consultation with the Minister for Agriculture and Food;
“qualifying company” means a company to which a certificate under paragraph (c) relates;
“qualifying trade” means a trade carried on by a company which consists wholly or mainly of the manufacture of milk products;
“relevant product” means milk purchased by an agricultural society from its members, being milk sold by the agricultural society to a qualifying company.
(b) For the purposes of this subsection (other than this paragraph), where a trade consists partly of the manufacture of milk products, then, unless the trade consists mainly of the application of a process of pasteurisation to milk, the part of the trade which consists of the manufacture of milk products shall be treated as a separate trade.
(c) Where the Minister for Agriculture and Food is satisfied that a company—
(i) carried on a qualifying trade during the whole of the period of 3 years ending immediately before the day from which the certificate specified subsequently in this paragraph has effect,
(ii) is carrying on a qualifying trade and intends to continue to carry it on for a period which when added to the period for which it has been carrying it on will amount to not less than 3 years, or
(iii) intends to carry on a qualifying trade for a period of not less than 3 years,
that Minister may, after consultation with the Minister for Finance, give a certificate to the company stating that the company may be treated as a qualifying company for the purposes of this subsection, and, whenever such a certificate is given to a company, the company shall be so treated during the period for which the certificate has effect.
(d) A certificate given under paragraph (c)—
(i) shall have effect for the period beginning on such day, whether before or after the day on which it is given, as may be specified in the certificate and ending on the day which is 2 years after that day, and
(ii) may be revoked by the Minister for Agriculture and Food after consultation with the Minister for Finance.
(e) Notice of a revocation under paragraph (d) shall be published as soon as may be in Iris OifigiÃºil and the revocation shall have effect as on and from the thirtieth day after the day on which it is so published.
(f) For the purposes of relief under this Part, in relation to the sale by an agricultural society of relevant products—
(i) relevant products shall be deemed to have been manufactured by the agricultural society, and
(ii) any amount receivable from the sale of relevant products by the agricultural society shall be regarded as an amount receivable from the sale of goods.
(18) For the purposes of relief under this Part, in relation to a company to which a profit or loss specified in section 80 arises, the amount of any profit which is deemed by that section to be a profit or gain of the trade carried on by the company shall be regarded as an amount receivable from the sale of goods.
(19) (a) In this subsection, “newspaper” means a newspaper—
(i) the contents of each issue of which consist wholly or mainly, as regards the quantity of printed matter contained in the newspaper, of information on the principal current events and topics of general public interest,
(ii) the format of which is commonly regarded as newspaper format, and
(iii) which is—
(I) printed on newsprint,
(II) intended to be sold to the public, and
(III) normally published at least fortnightly.
(b) For the purposes of relief under this Part, in relation to a company which carries on a trade which consists of or includes the production in the State of a newspaper—
(i) the production of the newspaper (including the rendering of advertising services in the course of the production of the newspaper) by the company shall be regarded as the manufacture in the State of goods, and
(ii) any amount receivable—
(I) from the sale of copies of the newspaper, or
(II) from the rendering by the company of advertising services in the course of the production of the newspaper,
shall be regarded as an amount receivable from the sale of goods.
(20) Subject to subsection (19), for the purposes of this Part, where in a relevant accounting period a company renders advertising services in the course of a trade carried on by it which consists wholly or partly of the production of a newspaper, magazine or other similar product, then—
(a) any amount receivable in payment for the rendering of such services shall not be regarded as an amount receivable from the sale of goods, and
(b) for the purposes of section 448 , the company's income from the trade for a relevant accounting period shall be regarded as not derived solely from the sale of goods and merchandise.
(21) For the purpose of relief under this Part, in relation to a company which carries on a trade which consists of or includes the rendering to another person of services by means of subjecting commodities or materials belonging to that person to any process of manufacturing—
(a) the rendering in the State of such services shall be regarded as the manufacture in the State of goods, and
(b) any amount receivable in payment for services so rendered shall be regarded as an amount receivable from the sale of goods.
(22) The inspector may by notice in writing require a company, a Special Trading House (within the meaning of subsection (12)), a qualifying society (within the meaning of subsection (16)) or an agricultural society (within the meaning of subsection (17)), as the case may be, claiming relief from tax by virtue of subsection (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19) or (21), as the case may be, to furnish him or her with such information or particulars as may be necessary for the purpose of giving effect to that subsection, and subsection (2) of section 448 shall apply as if the matters of which proof is required by that subsection included the information or particulars specified in a notice under this subsection.
num: 444
paragraphs: —(1) For the purposes of relief under this Part, income from the sale of goods shall not include income from—
num: 445
paragraphs: —(1) In this section—
“the airport” has the same meaning as in the Customs-Free Airport Act, 1947 ;
“company” means any company carrying on a trade;
“the Minister” means the Minister for Finance;
“qualified company” means a company the whole or part of the trade of which is carried on in the airport;
“relevant trading operations” means trading operations specified in a certificate given by the Minister under subsection (2);
“trading operation” means any trading operation which apart from this section and section 443 (13) is not the manufacture of goods for the purpose of this Part but is carried on by a qualified company.
(2) Subject to subsections (7) and (8), the Minister may give a certificate certifying that such trading operations of a qualified company as are specified in the certificate are, with effect from a date specified in the certificate, relevant trading operations for the purpose of this section, and any certificate so given shall, unless it is revoked under subsection (4), (5) or (6), remain in force until the 31st day of December, 2005.
(3) A certificate given under subsection (2) may be given either without conditions or subject to such conditions as the Minister considers proper and specifies in the certificate.
(4) Where in the case of a company in relation to which a certificate under subsection (2) has been given—
(a) the trade of the company ceases or becomes carried on wholly outside the airport, or
(b) the Minister is satisfied that the company has failed to comply with any condition subject to which the certificate was given,
the Minister may, by notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the notice.
(5) Where, in the case of a company in relation to which a certificate under subsection (2) has been given, the Minister is of the opinion that any activity of the company has had, or may have, an adverse effect on the use or development of the airport or is otherwise inimical to the development of the airport, then—
(a) the Minister may, by notice in writing served by registered post on the company, require the company to desist from such activity with effect from such date as may be specified in the notice, and
(b) if the Minister is not satisfied that the company has complied with the requirements of that notice, the Minister may, by a further notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the further notice.
(6) Where the Minister and a company in relation to which a certificate under subsection (2) has been given agree to the revocation of that certificate and its replacement by another certificate to be given to the company under subsection (2), the Minister may, by notice in writing served by registered post on the company, revoke the first-mentioned certificate with effect from such date as may be specified in the notice; but this subsection shall not affect the operation of subsection (4) or (5).
(7) The Minister shall not certify under subsection (2) that a trading operation is a relevant trading operation unless it is carried on in the airport and is within one or more of the following classes of trading operations—
(a) the repair or maintenance of aircraft,
(b) trading operations in relation to which the Minister is of the opinion, after consultation with the Minister for Public Enterprise, that they contribute to the use or development of the airport, or
(c) trading operations ancillary to any of those operations described in paragraph (a) or (b) or to any operations consisting apart from this section of the manufacture of goods.
(8) The Minister shall not certify under subsection (2) that any of the following trading operations is a relevant trading operation—
(a) the rendering of—
(i) services to embarking or disembarking aircraft passengers, including hotel, catering, money-changing or transport (other than air transport) services, or
(ii) services in connection with the landing, departure, loading or unloading of aircraft,
num: 446
paragraphs: —(1) In this section—
“the Area” means, subject to subsection (12), the Custom House Docks Area within the meaning of section 322 ;
“company” means any company carrying on a trade;
“the Minister” means the Minister for Finance;
“qualified company” means a company to which the Minister has given a certificate under subsection (2);
“relevant trading operations” means trading operations specified in a certificate given by the Minister under subsection (2);
“trading operation” means any trading operation which apart from this section is not the manufacture of goods for the purposes of this Part.
(2) Subject to subsections (7) and (9), the Minister may give a certificate certifying that such trading operations of a company as are specified in the certificate are, with effect from a date specified in the certificate, relevant trading operations for the purposes of this section, and any certificate so given shall, unless it is revoked under subsection (4), (5) or (6), remain in force until the 31st day of December, 2005.
(3) A certificate given under subsection (2) may be given either without conditions or subject to such conditions as the Minister considers proper and specifies in the certificate.
(4) Where in the case of a company in relation to which a certificate under subsection (2) has been given—
(a) the trade of the company ceases or, except in the case of a company in relation to which the Minister has, in accordance with subsection (9), given a certificate under subsection (2) and which has not yet commenced to carry on in the Area the trading operation or trading operations specified in the certificate, becomes carried on wholly outside the Area, or
(b) the Minister is satisfied that the company has failed to comply with any condition subject to which the certificate was given,
the Minister may, by notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the notice.
(5) Where, in the case of a company in relation to which a certificate under subsection (2) has been given, the Minister is of the opinion that any activity of the company has had, or may have, an adverse effect on the use or development of the Area or is otherwise inimical to the development of the Area, then—
(a) the Minister may, by notice in writing served by registered post on the company, require the company to desist from such activity with effect from such date as may be specified in the notice, and
(b) if the Minister is not satisfied that the company has complied with the requirements of that notice, the Minister may, by a further notice in writing served by registered post on the company, revoke the certificate with effect from such date as may be specified in the further notice.
(6) Where the Minister and a company in relation to which a certificate under subsection (2) has been given agree to the revocation of that certificate and its replacement by another certificate to be given to the company under subsection (2), the Minister may, by notice in writing served by registered post on the company, revoke the first-mentioned certificate with effect from such date as may be specified in the notice; but this subsection shall not affect the operation of subsection (4) or (5).
(7) Subject to subsection (9), the Minister shall not certify under subsection (2) that a trading operation is a relevant trading operation unless—
(a) it is carried on in the Area,
(b) the Minister is satisfied that it will contribute to the development of the Area as an International Financial Services Centre, and
(c) it is within one or more of the following classes of trading operations—
(i) the provision for persons not ordinarily resident in the State of services, in relation to transactions in foreign currencies, which are of a type normally provided by a bank in the ordinary course of its trade,
(ii) the carrying on on behalf of persons not ordinarily resident in the State of international financial activities, including in particular—
(I) global money-management,
(II) international dealings in foreign currencies and in futures, options and similar financial assets which are denominated in foreign currencies,
(III) dealings in bonds, equities and similar instruments which are denominated in foreign currencies,
(IV) insurance and related activities, or
(V) the management of the whole or part of the investments and other activities of a specified collective investment undertaking (within the meaning of section 734 ),
(iii) the provision for persons not ordinarily resident in the State of services of, or facilities for, processing, control, accounting, communication, clearing, settlement or information storage in relation to financial activities,
(iv) dealing by a company in commodity futures or commodity options on behalf of persons not ordinarily resident in the State—
(I) other than on behalf of persons who—
(A) carry on a trade in which commodities of a type which are the subject of the futures or options, as the case may be, are used in the course of the carrying on of the trade, or
(B) would be regarded as connected with a person who carries on such a trade,
or
(II) where dealing in futures and options, some or all of which are commodity futures or commodity options, as the case may be, is the principal relevant trading operation carried on by the company,
(v) the development or supply of computer software for use in the provision of services or facilities of a type referred to in subparagraph (iii) or for the reprocessing, analysing or similar treatment of information in relation to financial activities, or
(vi) trading operations similar to or ancillary to any of those operations described in the preceding provisions of this section in relation to which the Minister is of the opinion that they contribute to the use of the Area as an International Financial Services Centre.
(8) References in subsection (7) to any service or facility provided for, or any activity carried on on behalf of, a person not ordinarily resident in the State shall not include any such service or facility provided for, or any activity carried on on behalf of, the whole or any part of a trade carried on by that person in the State.
(9) Where the Minister would have certified a trading operation under subsection (2) but for the fact that the condition specified in subsection (7)(a) was not satisfied as respects the trading operation, the Minister may, notwithstanding that such condition is not satisfied, certify the trading operation under subsection (2) if the Minister is satisfied that—
(a) the trading operation is not carried on in the Area due to circumstances outside the control of the company carrying on the trading operation, and
(b) such company intends to carry on, and will commence to carry on, the trading operation in the Area within such period of time as the Minister may specify under subsection (3) as a condition subject to which the Minister gives the certificate under subsection (2) in respect of the trading operation.
(10) For the purpose of relief under this Part, in the case of a qualified company carrying on relevant trading operations—
(a) the relevant trading operations shall be regarded as the manufacture in the State of goods, and
(b) any amount receivable in payment for anything sold, or any services rendered, in the course of the relevant trading operations shall be regarded as an amount receivable from the sale of goods.
(11) The inspector may by notice in writing require a company claiming relief from tax by virtue of this section to furnish him or her with such information or particulars as may be necessary for the purpose of giving effect to this section, and subsection (2) of section 448 shall apply as if the matters of which proof is required by that subsection included the information or particulars specified in a notice under this section.
(12) (a) For the purposes of this section, the Minister for Finance, after consultation with the Minister for the Environment and Local Government, may, by order direct that the definition of “the Custom House Docks Area” in section 322 shall include such area or areas described in the order which but for the order would not be included in that definition and, where the Minister for Finance so orders, the definition of “the Custom House Docks Area” in that section shall for the purposes of this section be deemed to include that area or those areas.
(b) The Minister for Finance may, for the purposes of making an order under this section and an order under section 322 , exercise the powers to make those orders by making one order for the purposes of both of those sections.
(c) The Minister for Finance may make orders for the purpose of this section and any order made under this section shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the order is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 447
paragraphs: —An appeal to the Appeal Commissioners shall lie on any question arising under this Part in the like manner as an appeal would lie against an assessment to corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.
num: 448
paragraphs: —(1) (a) For the purposes of this section, “relevant corporation tax” means the corporation tax which, apart from this section, sections 157 , 158 , 239 , 241 , 440 , 441 , 442 and 827 and paragraphs 16 and 18 of Schedule 32 , would be chargeable for the relevant accounting period exclusive of the corporation tax chargeable on the part of the company's profits attributable to chargeable gains for that period.
(b) For the purposes of paragraph (a), the part of the company's profits attributable to chargeable gains for the relevant accounting period shall be taken to be the amount brought into the company's profits for that period for the purposes of corporation tax in respect of chargeable gains before any deduction for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description.
(2) (a) Subject to paragraph (b), where a company which carries on a trade which consists of or includes the manufacture of goods claims and proves as respects a relevant accounting period that during that period any amount was receivable in respect of the sale in the course of the trade of goods, corporation tax payable by the company for that period, in so far as it is referable to the income from the sale of those goods, shall be reduced by twenty-six thirty-sixths, and the corporation tax referable to the income from the sale of those goods shall be such an amount as bears to the relevant corporation tax the same proportion as the income from the sale of those goods bears to the total income brought into charge to corporation tax for the relevant accounting period.
(b) Where a company which carries on a trade which consists of or includes the manufacture of goods claims and proves as respects a relevant accounting period (being an accounting period beginning before the 1st day of April, 1997, and ending on or after that date) that during that period any amount was receivable in respect of the sale in the course of the trade of goods, corporation tax payable by the company for that period, in so far as it is referable to the income from the sale of those goods, shall be reduced—
(i) by twenty-eight thirty-eighths, in so far as it is corporation tax charged on profits which under section 26 (3) are apportioned to the period beginning on the 1st day of January, 1996, and ending on the 31st day of March, 1997, and
(ii) by twenty-six thirty-sixths, in so far as it is corporation tax charged on profits which under section 26 (3) are apportioned to the period beginning on the 1st day of April, 1997, and ending on the 31st day of December, 1998,
and the corporation tax referable to the income from the sale of those goods—
(I) shall, for the purposes of subparagraph (i), be such an amount as bears to the part of the relevant corporation tax charged on profits which under section 26 (3) are apportioned to the period beginning on the 1st day of January, 1996, and ending on the 31st day of March, 1997, the same proportion as the income from the sale of those goods bears to the total income brought into charge to corporation tax for the relevant accounting period, and
(II) shall, for the purposes of subparagraph (ii), be such an amount as bears to the part of the relevant corporation tax charged on profits which under section 26 (3) are apportioned to the period beginning on the 1st day of April, 1997, and ending on the 31st day of December, 1998, the same proportion as the income from the sale of those goods bears to the total income brought into charge to corporation tax for the relevant accounting period.
(3) For the purposes of subsection (2), “the income from the sale of those goods” shall be taken to be such sum as bears to the amount of the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise the same proportion as the amount receivable by the company in the relevant accounting period from the sale in the course of the trade of goods bears to the total amount receivable by the company in the relevant accounting period from the sale in the course of the trade of goods and merchandise.
(4) For the purposes of subsection (3), “the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise” shall be—
(a) in any case where the income from the trade is derived solely from sales of goods and merchandise, the amount of the company's income from the trade, and
(b) in any other case, such amount of the income from the trade as appears to the inspector or on appeal to the Appeal Commissioners to be just and reasonable.
(5) (a) For the purposes of this Part, the amount receivable by a company in a relevant accounting period from the sale of goods or merchandise—
(i) shall be deemed to be reduced by the amount of any duty paid or payable by the company in respect of the goods or merchandise or in respect of the materials used in their manufacture, and
(ii) shall not include any amount in respect of value-added tax chargeable on the sale of the goods or merchandise.
(b) The inspector may by notice in writing require a company making a claim for relief under this Part to furnish him or her with such information or particulars as may be necessary for the purposes of giving effect to this subsection, and subsection (2) shall apply as if the matters of which proof is required by that subsection included the information or particulars specified in a notice under this subsection.
(6) A company shall not be entitled to relief under this Part in relation to a trade as respects a relevant accounting period unless it makes a claim for the relief under subsection (2) before the date on which the assessment for the accounting period which coincides with or includes that relevant accounting period becomes final and conclusive.
(7) (a) In this subsection—
“the airport” and “the Area” have the same meanings respectively as in sections 445 and 446 ;
“the Minister” means the Minister for Finance;
“qualified company” includes, subject to paragraph (i), a company which has not carried on trading operations in the Area or the airport and which intends to carry on trading operations which will be relevant trading operations;
“relevant subsection” means subsection (2) of section 445 or subsection (2) of section 446 , as the case may be;
“relevant taxation”, in relation to an investor or a qualified company, means any tax imposed under the laws of any state by reason of the relief.
(b) Notwithstanding any other provision of this section but subject to paragraph (c), where the Minister is satisfied that the conditions specified in paragraph (d) are met, the Minister may by notice in writing given to a qualified company reduce the fraction (in this subsection referred to as “the relief”) by which corporation tax payable, in so far as it is referable to income from relevant trading operations, is to be, or but for this subsection would be, reduced under subsection (2) by specifying in the notice such lower fraction (in this subsection referred to as “the revised relief”) as the Minister deems appropriate by which that corporation tax is to be reduced.
(c) The reduction of the relief so as to determine the revised relief shall be no greater than is necessary to secure the result specified in paragraph (d)(iv).
(d) The conditions referred to in paragraph (b) are that—
(i) some or all of the shares in the qualified company are owned directly or indirectly (within the meaning of section 9 ) by a company or companies (in this subsection referred to as “the investors”) resident outside the State, or the qualified company is resident outside the State and is trading in the State through a branch or agency,
(ii) the qualified company (in this subparagraph referred to as the “first-mentioned qualified company”) is carrying on, or is about to carry on, a trade in the State which includes or consists of relevant trading operations and with levels of activity and employment in the State in relation to those operations either in the first-mentioned qualified company, or in another qualified company with which the first-mentioned qualified company has entered into an agreement in order to carry on such operations, which, having regard to the certificate issued or to be issued to the first-mentioned qualified company or the other qualified company, as the case may be, under the relevant subsection, are substantial and contribute, or will contribute, to the development of the Area as an International Financial Services Centre, or to the development of the airport, as the case may be,
(iii) the manner in which the investors or the qualified company, as the case may be, would but for this subsection be subject to relevant taxation in respect of income from relevant trading operations would result in the qualified company ceasing to carry on relevant trading operations carried on by it, or not carrying on relevant trading operations, as the case may be, in the State, and
(iv) the revised relief would ensure that all or a substantial part of the relevant trading operations of the qualified company will continue to be carried on, or will be carried on, as the case may be, in the State to an extent that they will continue to contribute, or will contribute, to the development of the Area as an International Financial Services Centre, or to the development of the airport, as the case may be.
(e) Where the Minister has given a notice pursuant to paragraph (b), subsection (2) shall apply as if the revised relief were substituted for the relief.
(f) Notwithstanding any other provision of this section, the Minister may, subject to paragraph (c), by notice given in writing to the qualified company—
(i) increase or decrease the revised relief specified in a preceding notice given to the qualified company under this subsection, or
(ii) reinstate the relief,
and, where the Minister has given such notice, paragraph (e) shall apply as if the revised relief specified in the notice given under paragraph (b) were the revised relief specified under this paragraph or the relief shall be reinstated, as the case may be.
(g) A notice given by the Minister under this subsection specifying a revised relief or an increase or decrease in such revised relief or a reinstatement of the relief shall have effect from the date specified in the notice which may be a date preceding the date on which the notice is given.
(h) Subject to paragraph (i), this subsection shall be construed together with sections 445 and 446 .
(i) In so far as this subsection is to be construed together with section 445 , it shall be so construed only in so far as the relevant trading operations carried on by a qualified company within the meaning of that section are trading operations which could be certified by the Minister as relevant trading operations for the purposes of section 446 if they were carried on in the Area rather than the airport.
num: 449
paragraphs: —(1) In this section—
“an amount receivable from the sale of goods” means an amount which—
(a) being an amount receivable from the sale of computer software, or
(b) by virtue of section 443(10)(b)(ii), 445(9)(b) or 446(10)(b),
is regarded as receivable from the sale of goods for the purposes of relief under this Part;
“relevant foreign tax”, where borne by a company in respect of an amount receivable from the sale of goods, means tax—
(a) which under the laws of any foreign territory has been deducted from that amount,
(b) which corresponds to income tax or corporation tax,
(c) which has not been repaid to the company, and
num: 450
paragraphs: —(1) (a) In this section—
“appropriate inspector”, “chargeable period” and “specified return date for the chargeable period” have the same meanings respectively as in Part 41 ;
num: 451
paragraphs: —(1) In this section—
“the Area” has the same meaning as it has for the purposes of section 446 ;
“foreign life assurance business” means relevant trading operations within the meaning of section 446 consisting of life assurance business with policy holders and annuitants who at the time such business is contracted reside outside the State and, as regards any policy issued or contract made, as the case may be, with such policy holders or annuitants in the course of such business, such policy or contract does not provide for—
(a) the granting of any additional contractual rights, or
(b) an option to have another policy or contract substituted for it,
at a time when the policy holder or annuitant, as the case may be, resides in the State;
“foreign unit trust business” means relevant trading operations within the meaning of section 446 consisting of the management of the investments of one or more qualifying unit trusts;
“qualifying unit trust” means a unit trust scheme—
(a) which is a registered unit trust scheme within the meaning of the Unit Trusts Act, 1972 ,
(b) the business of which—
(i) is carried on in the Area, or
(ii) is not so carried on but is carried on in the State and would be carried on in the Area but for circumstances outside the control of the person or persons carrying on the business,
and
(c) as respects which all holders of units in the scheme are persons resident outside the State;
“tax” means income tax, corporation tax or capital gains tax, as may be appropriate.
(2) Notwithstanding any other provision of the Tax Acts, the rate at which any tax is chargeable (before any credit is allowed for foreign tax) in respect of income arising or chargeable gains accruing from securities or possessions in any place outside the State that are investments of a foreign life assurance business or investments managed by a foreign unit trust business shall not exceed 10 per cent.
num: 452
paragraphs: —(1) (a) In this section—
“qualified company” and “relevant trading operations” have the same meanings as they have for the purposes of sections 445 and 446 , but trading operations shall not be treated as relevant trading operations (within the meaning of section 445 ) if they are not trading operations which could be certified by the Minister for Finance as relevant trading operations for the purposes of section 446 if they were carried on in the Area (within the meaning of section 446 ) rather than in the airport (within the meaning of section 445 );
num: 453
paragraphs: —(1) In this section, “control” has the same meaning as in section 11 .
(2) Where a company making a claim for relief under this Part (in this subsection referred to as “the buyer”) buys from another person (in this subsection referred to as “the seller”), and—
(a) the seller has control over the buyer or, the seller being a body corporate or partnership, the buyer has control over the seller or some other person has control over both the seller and the buyer, and
(b) the price in the transaction is less than that which might have been expected to obtain if the parties to the transaction had been independent parties dealing at arm's length,
then, the income or losses of the buyer and the seller shall be computed for any purpose of the Tax Acts as if the price in the transaction had been that which would have obtained if the transaction had been a transaction between independent persons dealing at arm's length.
(3) Where a company making a claim for relief under this Part (in this subsection referred to as “the seller”) sells goods to another person (in this subsection referred to as “the buyer”) and—
(a) the buyer has control over the seller or, the buyer being a body corporate or partnership, the seller has control over the buyer or some other person has control over both the seller and the buyer, and
(b) the goods are sold at a price greater than the price which they might have been expected to fetch if the parties to the transaction had been independent parties dealing at arm's length,
then, the income or losses of the buyer and the seller shall be computed for any purpose of the Tax Acts as if the goods had been sold by the seller to the buyer for the price which the goods would have fetched if the transaction had been a transaction between independent persons dealing at arm's length.
(4) For the purposes of subsection (3), a company shall be deemed to sell goods where and to the extent that for the purposes of this Part any amount receivable by it in payment for any trading activity is regarded as an amount receivable from the sale of goods, and “seller” and “buyer” shall be construed accordingly.
(5) The inspector may by notice in writing require a company making a claim for relief under this Part to furnish him or her with such information or particulars as may be necessary for the purposes of this section, and subsection (2) of section 448 shall apply as if the matters of which proof is required by that subsection included the information or particulars specified in a notice under this section.
num: 454
paragraphs: —(1) (a) In this section—
“trade” means a trade carried on by a company which consists of or includes the manufacture of goods (including activities carried on in an accounting period which, if the company had sufficient profits in that period and made a claim for relief in respect of the trade under this Part for that period, would be regarded for the purposes of this Part as the manufacture of goods);
“income from the sale of goods” in an accounting period in the course of a trade carried on by a company
shall, subject to section 422 as applied for the purposes of relief under section 456 , be such income as would be “the income from the sale of those goods” in that period in the course of the trade for the purposes of a claim under section 448 (2), if—
(i) no group relief under section 456 or loss relief under section 455 (3) were allowed against income from the trade in that period,
(ii) the company had sufficient profits, and
(iii) the company made a claim for relief under this Part;
“charges on income paid for the purpose of the sale of goods” in the course of a trade in an accounting period shall be such amount as would be the amount of the income from the sale of goods in that period if, notwithstanding section 448 (4), “the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise” for the purposes of section 448 (3) were the amount of so much of the charges on income paid wholly and exclusively for the purposes of the trade in that period as appears to the inspector or on appeal to the Appeal Commissioners to be referable to charges on income paid for the purpose of the sale of goods and merchandise;
“the sale of goods and merchandise” in the course of a trade carried on by a company means the sale of such goods and merchandise as would respectively be treated as goods and merchandise for the purposes of a claim under this Part, if the company had a sufficiency of profits and had made such a claim.
(b) For the purposes of this section, where an accounting period begins before the 1st day of January, 2011, and ends on or after that date, it shall be divided into one part beginning on the day on which the accounting period begins and ending on the 31st day of December, 2010, and another part beginning on the 1st day of January, 2011, and ending on the day the accounting period ends, and both parts shall be treated as if they were separate accounting periods.
(2) Notwithstanding section 243 , so much of the total amount of charges on income paid for the purpose of the sale of goods by a company in an accounting period ending on or before the 31st day of December, 2010, in the course of a trade or trades, as the case may be, shall not be allowed as a deduction against the total profits of the company for the period as exceeds the total amount, reduced by any loss relief under section 455 (3), of the company's income from the sale of goods in the course of the trade or trades, as the case may be, in the period.
(3) (a) Notwithstanding section 448 (3), the income of a company, referred to in the expression “the income from the sale of those goods”, for any accounting period for the purposes of section 448 (2) shall be the sum determined by section 448 (3) for that period reduced by any charges on income paid for the purpose of the sale of goods which are allowed as a deduction against the total profits of the company for that period.
(b) Notwithstanding section 4 (4)(b), the income of a company, referred to in the expression “total income brought into charge to corporation tax”, for any accounting period for the purposes of section 448 (2) shall be the sum determined by section 4 (4)(b) for that period reduced by any charges on income paid for the purposes of the sale of goods which are allowed as a deduction against the total profits of the company for that period.
(c) Where for any accounting period of a company—
(i) the corporation tax referable to the income of the company from the sale of goods is to be reduced under section 448 , and
(ii) charges on income paid for the purpose of the sale of goods have been allowed as a deduction against total profits,
then, notwithstanding section 148 , the charges on income paid for the purpose of the sale of goods shall be deducted from the amount of the relevant deduction in relation to the period for charges on income in section 148 (1).
num: 455
paragraphs: —(1) (a) In this section—
“trade”, “income from the sale of goods” and “the sale of goods and merchandise” have the same meanings respectively as in section 454 ;
“a loss from the sale of goods” in the course of a trade in an accounting period shall be such amount as would be the amount of the income from the sale of goods in that period if, notwithstanding section 448 (4), “the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise” for the purposes of section 448 (3) were the amount of so much of the loss, computed as for the purposes of section 396 (2), from the trade in the period as appears to the inspector or on appeal to the Appeal Commissioners to be referable to a loss incurred in the sale of goods and merchandise, but a loss such as is mentioned in section 407 (4)(b) shall not be a loss from the sale of goods.
(b) Section 454 (1)(b) shall apply for the purposes of this section as it applies for the purposes of section 454 .
(2) Notwithstanding section 396 (2) but subject to subsections (6) and (7), for the purposes of that section the amount of a loss in a trade incurred by a company in an accounting period shall be deemed to be reduced by the amount of a loss from the sale of goods, if any, incurred in the trade by the company in the accounting period.
(3) Subject to subsections (6) and (7), where in an accounting period a company carrying on a trade incurs a loss from the sale of goods, the company may make a claim requiring that the loss be set off for the purposes of corporation tax against its income from the sale of goods—
(a) of that accounting period, and
(b) if it was then carrying on the trade and if the claim so requires, of preceding accounting periods ending within the time specified in subsection (4),
and, subject to any relief for an earlier loss, to the extent that the trading income of any of those accounting periods consists of or includes income from the sale of goods, that trading income shall then be reduced by so much of the loss as cannot be relieved against trading income of a later accounting period.
(4) For the purposes of subsection (3), the time referred to in paragraph (b) of that subsection shall be the time immediately preceding the accounting period first-mentioned in subsection (3) equal in length to that accounting period; but the amount of the reduction which may be made under subsection (3) in the trading income of an accounting period falling partly before that time shall not exceed such part of the income from the sale of goods included in that trading income as bears to the income from the sale of goods the same proportion as the part of the accounting period falling within that time bears to the whole of that accounting period.
(5) (a) In section 448 (3) and for the purposes of determining “the amount” in the expression “the amount of the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise”, it shall be determined in accordance with section 448 (4) as if no relief for a loss in a trade had been claimed under this section.
(b) Notwithstanding section 448 (3), for the purposes of determining “the income” in the expression “the income from the sale of those goods” in an accounting period for the purposes of section 448 (2), it shall be the sum determined by section 448 (3) for that period reduced by any relief for a loss in a trade allowed under this section against income of the trade mentioned in section 448 (2) in that period.
(6) This section shall not apply to so much of a company's loss from the sale of goods in the course of a trade in an accounting period as does not exceed the amount of the capital allowances under Part 9 or Chapter 1 of Part 29 which are to be made for the accounting period in taxing the trade, and for the purposes of this subsection no account shall be taken of capital allowances other than capital allowances in respect of machinery or plant or an industrial building or structure—
(a) provided for the purposes of a project approved within the period of 2 years ending on the 31st day of December, 1988, by the Industrial Development Authority,
(b) the expenditure on the provision of which was incurred on or before the 31st day of March, 1995, and
(c) more than 50 per cent of the expenditure on the provision of which was incurred, or was the subject of a binding contract entered into, before the 1st day of April, 1992.
(7) This section shall not apply to so much of a company's loss from the sale of goods in the course of a trade in an accounting period as does not exceed the amount of the capital allowances under section 323 (2) deducted by the company in computing the loss which the company has incurred in that period in carrying on trading operations specified in a certificate given to it, and not subsequently revoked, by the Minister for Finance under section 446 .
num: 456
paragraphs: —(1) (a) In this section—
“trade”, “income from the sale of goods”, “charges on income paid for the purposes of the sale of goods” and “the sale of goods and merchandise” have the same meanings respectively as in section 454 ;
“a loss from the sale of goods” has the same meaning as in section 455 ;
“an excess of charges on income paid for the purpose of the sale of goods” in the course of the trade in an accounting period shall be so much of an amount, being the amount by which the charges on income paid by a company for the purpose of the sale of goods in the course of the trade in that period exceed the income from the sale of goods in the course of the trade in that period, as does not exceed the excess referred to in section 420 (6) as computed for the company for that period.
(b) Section 454 (1)(b) shall apply for the purposes of this section as it applies for the purposes of section 454 .
(2) (a) Notwithstanding subsections (1) and (6) of section 420 and section 421 but subject to subsection (4), where in any accounting period ending on or before the 31st day of December, 2010, the surrendering company incurs a loss from the sale of goods or an excess of charges on income paid for the purpose of the sale of goods, that loss or excess may be set off for the purposes of corporation tax against income from a trade of the claimant company for its corresponding accounting period to the extent of that income or, if it is less, to the extent of the income from the sale of goods in the course of the trade reduced by—
(i) charges on income paid for the purposes of the sale of goods (within the meaning of section 454 ), and
(ii) any loss relief under section 455 (3);
but no other relief shall be given in respect of that loss or excess to a company other than the surrendering company.
(b) Group relief allowed under paragraph (a) shall reduce the income from a trade of the claimant company for an accounting period—
(i) before relief granted under section 397 in respect of a loss incurred in a succeeding accounting period or periods, and
(ii) after the relief granted under section 396 in respect of a loss incurred in a preceding accounting period or periods.
(3) (a) For the purposes of section 448 (3), “the amount of the company's income for the relevant accounting period from the sale in the course of the trade mentioned in that subsection of goods and merchandise” shall be determined in accordance with section 448 (4) as if no group relief had been allowed under this section.
(b) Notwithstanding section 448 (3), “the income from the sale of those goods” in an accounting period for the purposes of section 448 (2) shall be the sum determined by section 448 (3) for that period reduced by any group relief allowed under this section against income of the trade mentioned in section 448 (2) in that period.
(4) This section shall not apply to so much of a loss from the sale of goods in the course of a trade in an accounting period as does not exceed the amount of the capital allowances under section 323 (2) deducted by the surrendering company in computing the loss which the company has incurred in that period in carrying on trading operations specified in a certificate given to it, and not subsequently revoked, by the Minister for Finance under section 446 .
(5) For the purposes of this section—
(a) in the case of a claim made by a company as a member of a consortium, only a fraction of a loss from the sale of goods or an excess of charges on income paid for the purpose of the sale of goods may be set off, and that fraction shall be equal to that member's share in the consortium, subject to any further reduction under section 422 (2), and
(b) section 422 shall apply as if—
(i) for “total profits” in subsection (2)(a) of that section there were substituted “income from a trade”, and
(ii) for “those profits” in subsection (2)(b) of that section there were substituted “the income from the sale of goods in the course of a trade of the claimant company”.
num: 457
paragraphs: —Where any part of the profits of an accounting period of a company is charged to corporation tax in accordance with section 22 , then—
(a) for the purposes of section 448 , the relevant corporation tax in relation to the accounting period shall be reduced by an amount determined by the formula—
R
____
100
× S
where—
R is the rate per cent specified in section 22 (1) in relation to the accounting period, and
S is an amount equal to so much of the profits of the company for the accounting period as are charged to tax in accordance with section 22 (1),
and
(b) notwithstanding section 4 (4)(b), the income of a company, referred to in the expression “total income brought into charge to corporation tax”, for the accounting period for the purposes of section 448 (2) shall be the sum determined by section 4 (4)(b) for that period reduced—
(i) in accordance with sections 454 and 455 , and
(ii) by an amount equal to so much of the profits of the company for the accounting period as are charged to tax in accordance with section 22 (1).
num: 458
paragraphs: —(1) An individual who, in the manner prescribed by the Income Tax Acts, makes a claim in that behalf and makes a return in the prescribed form of the individual's total income shall be entitled—
(a) for the purpose of ascertaining the amount of the income on which he or she is to be charged to income tax (in the Income Tax Acts referred to as “the taxable income”) to have such deductions as are specified in the provisions referred to in Part 1 of the Table to this section, but subject to those provisions, made from the individual's total income, and
(b) to have such reductions as are specified in the provisions referred to in Part 2 of that Table, but subject to those provisions, made in the income tax to be charged on the individual.
num: 459
paragraphs: —(1) A claimant shall not be entitled to an allowance, deduction or relief under the provisions specified in the Table to section 458 in respect of any income the tax on which the claimant is entitled to charge against any other person, or to deduct, retain or satisfy out of any payment which the claimant is liable to make to any other person.
(2) Except where otherwise provided, any allowance, deduction or relief under the provisions specified in the Table to section 458 shall be given either by discharge or reduction of the assessment, or by repayment of the excess which has been paid, or by all of those means, as the case may require.
(3) Any claim shall be accompanied by a declaration and statement in the prescribed form signed by the claimant setting out—
(a) all the particular sources from which the claimant's income arises and the particular amount arising from each source,
(b) all particulars of any yearly interest or other annual payments reserved or charged on the claimant's income, whereby the claimant's income is or may be diminished, and
(c) all particulars of sums which the claimant has charged or may be entitled to charge on account of tax against any other person, or which the claimant has deducted, or may be entitled to deduct, out of any payment to which the claimant is or may be liable.
num: 460
paragraphs: —(1) Subject to subsections (2) and (3), any repayment of income tax for any year of assessment to which any person may be entitled in respect of any allowance, deduction, relief or reduction under the provisions specified in the Table to section 458 shall, except where otherwise provided by the Income Tax Acts, be made at the standard rate of tax or at the higher rate, as the case may be.
(2) In the case of any person who proves as regards any year that, by reason of the allowances, deductions or reliefs to which that person is entitled, he or she has no taxable income for that year, any repayment to be made shall be a repayment of the whole amount of the tax paid by him or her, whether by deduction or otherwise, in respect of his or her income for that year.
(3) In relation to repayments of tax, the amount of tax to be repaid under this section to any person for any year shall not exceed a sum equal to the difference between the amount of tax paid by that person, whether by deduction or otherwise, in respect of his or her income for that year and the amount of tax which would be payable by him or her for that year if his or her total income had been charged to tax in accordance with the Income Tax Acts.
num: 461
paragraphs: —The deductions specified in this section for the purpose of ascertaining the taxable income of an individual for a year of assessment shall be—
(a) in a case in which the claimant is a married person who—
(i) is assessed to tax for the year of assessment in accordance with section 1017 , or
(ii) proves that his or her spouse is not living with him or her but is wholly or mainly maintained by him or her for the year of assessment and that the claimant is not entitled, in computing his or her income for tax purposes for that year, to make any deduction in respect of the sums paid by him or her for the maintenance of his or her spouse,
a deduction of £5,800,
(b) in a case in which the claimant in the year of assessment is—
(i) a widowed person, a deduction of £3,400, or
(ii) a widowed person, other than a person to whom paragraph (a) applies, whose spouse has died in that year of assessment, a deduction of £5,800, and
(c) in any other case, a deduction of £2,900.
num: 462
paragraphs: —(1) (a) In this section, “qualifying child”, in relation to any claimant and year of assessment, means—
(i) a child—
(I) born in the year of assessment,
(II) who, at the commencement of the year of assessment, is under the age of 16 years, or
(III) who, if over the age of 16 years at the commencement of the year of assessment—
(A) is receiving full-time instruction at any university, college, school or other educational establishment, or
(B) is permanently incapacitated by reason of mental or physical infirmity from maintaining himself or herself and had become so permanently incapacitated before he or she had attained the age of 21 years or had become so permanently incapacitated after attaining the age of 21 years but while he or she had been in receipt of such full-time instruction,
and
(ii) a child who is a child of the claimant or, not being such a child, is in the custody of the claimant and is maintained by the claimant at the claimant's own expense for the whole or part of the year of assessment.
(b) This section shall apply to an individual who is not entitled to a deduction mentioned in paragraph (a) or paragraph (b)(ii) of section 461 .
(2) Subject to subsection (3), where the claimant, being an individual to whom this section applies, proves for a year of assessment that a qualifying child is resident with him or her for the whole or part of the year, the claimant shall be entitled—
(a) if he or she is an individual to whom section 461 (b)(i) applies, to a deduction of £2,400, or
(b) if he or she is an individual to whom section 461 (c) applies, to a deduction of £2,900;
but this section shall not apply for any year of assessment in the case of a husband or a wife where the wife is living with her husband, or in the case of a man and woman living together as man and wife.
(3) A claimant shall be entitled to only one deduction under subsection (2) for any year of assessment irrespective of the number of qualifying children resident with the claimant in that year.
(4) (a) The references in subsection (1)(a) to a child receiving fulltime instruction at an educational establishment shall include references to a child undergoing training by any person (in this subsection referred to as “the employer”) for any trade or profession in such circumstances that the child is required to devote the whole of his or her time to the training for a period of not less than 2 years.
(b) For the purpose of a claim in respect of a child undergoing training, the inspector may require the employer to furnish particulars with respect to the training of the child in such form as may be prescribed by the Revenue Commissioners.
(5) (a) No deduction shall be allowed under this section for any year of assessment in respect of any child who is entitled in his or her own right to an income exceeding £720 in that year except that, if the amount of the excess is less than the deduction which would be allowable apart from this subsection, a deduction reduced by that amount shall be allowed.
(b) In calculating the income of the child for the purposes of paragraph (a), no account shall be taken of any income to which the child is entitled as the holder of a scholarship, bursary or other similar educational endowment.
(6) Where any question arises as to whether any person is entitled to an allowance under this section in respect of a child over the age of 16 years as being a child who is receiving full-time instruction referred to in this section, the Revenue Commissioners may consult the Minister for Education and Science.
num: 463
paragraphs: —(1) (a) For the purposes of this section, “qualifying child”, in relation to a claimant and a year of assessment, has the same meaning as in section 462 , and the question of whether a child is a qualifying child shall be determined on the same basis as it would be for the purposes of section 462 , and subsections (3), (4) and (6) of that section shall apply accordingly.
(b) This section shall apply to an individual whose spouse dies in a year of assessment (in this section referred to as a “claimant”).
(2) Where a claimant proves, in relation to any of the 3 years of assessment immediately following the year of assessment in which the claimant's spouse dies, that—
(a) he or she has not remarried before the commencement of the year, and
(b) a qualifying child is resident with him or her for the whole or part of the year,
the claimant shall, in respect of each of the years in relation to which the claimant so proves, be entitled, in computing the amount of his or her taxable income, to have a deduction made from his or her total income as follows—
(i) for the first of those 3 years, £1,500,
(ii) for the second of those 3 years, £1,000, and
(iii) for the third of those 3 years, £500;
but this section shall not apply for any year of assessment in the case of a man and woman living together as man and wife.
num: 464
paragraphs: —Where for any year of assessment an individual is entitled to a deduction under section 461 and proves that at any time during that year of assessment—
(a) the individual, or
(b) in the case of a married person whose spouse is living with him or her and who is assessed to tax in accordance with section 1017 , either the individual or the individual's spouse,
was of the age of 65 years or over, the individual shall, in addition to the allowance to which the individual is entitled under section 461 for that year of assessment, be entitled to a deduction of—
(i) in a case where the individual is a married person whose spouse is living with him or her and the individual is assessed to tax in accordance with section 1017 , £800, and
(ii) in any other case, £400.
num: 465
paragraphs: —(1) Where a claimant proves that he or she has living at any time during a year of assessment any child who—
(a) is under the age of 16 years and is permanently incapacitated by reason of mental or physical infirmity, or
(b) if over the age of 16 years at the commencement of the year, is permanently incapacitated by reason of mental or physical infirmity from maintaining himself or herself and had become so permanently incapacitated before he or she had attained the age of 21 years or had become so permanently incapacitated after attaining the age of 21 years but while he or she had been in receipt of full-time instruction at any university, college, school or other educational establishment, the claimant shall, subject to this section, be entitled in respect of each such child to a deduction of £700.
(2) (a) A child under the age of 16 years shall be regarded as permanently incapacitated by reason of mental or physical infirmity only if the infirmity is such that there would be a reasonable expectation that if the child were over the age of 16 years the child would be incapacitated from maintaining himself or herself.
(b) In the case of a child to whom subsection (1)(b) applies, the deduction shall be £700 or the amount expended by the claimant in the year of assessment on the maintenance of the child, whichever is the lesser.
(c) Any deduction under this section shall be in substitution for and not in addition to any deduction to which the claimant might be entitled in respect of the same child under section 466 .
(3) Where the claimant proves for the year of assessment—
(a) that the claimant has the custody of and maintains at his or her own expense any child who, but for the fact that that child is not a child of the claimant, would be a child referred to in subsection (1), and
(b) that neither the claimant nor any other individual is entitled to a deduction in respect of the same child under subsection (1) or under any other provision of this Part, or, if any other individual is entitled to such a deduction, that such other individual has relinquished his or her claim to that deduction,
the claimant shall be entitled to the same deduction in respect of the child as if the child were a child of the claimant.
(4) (a) The reference in subsection (1) to a child receiving fulltime instruction at an education establishment shall include a reference to a child undergoing training by any person (in this subsection referred to as “the employer”) for any trade or profession in such circumstances that the child is required to devote the whole of his or her time to the training for a period of not less than 2 years.
(b) For the purpose of a claim in respect of a child undergoing training, the inspector may require the employer to furnish particulars with respect to the training of the child in such form as may be prescribed by the Revenue Commissioners.
(5) (a) No deduction shall be allowed under this section in respect of any child entitled in his or her own right to an income exceeding £2,100 a year except that, if the amount of the excess is less than the deduction which would be allowable apart from this subsection, a deduction reduced by that amount shall be allowed.
(b) In calculating the income of the child for the purposes of paragraph (a), no account shall be taken of any income to which the child is entitled as the holder of a scholarship, bursary, or other similar educational endowment.
(6) Where any question arises as to whether any person is entitled to an allowance under this section in respect of a child over the age of 21 years as being a child who had become permanently incapacitated by reason of mental or physical infirmity from maintaining himself or herself after attaining that age but while in receipt of full-time instruction referred to in this section, the Revenue Commissioners may consult the Minister for Education and Science.
(7) Where for any year of assessment 2 or more individuals are or would but for this subsection be entitled under this section to relief in respect of the same child, the following provisions shall apply:
(a) only one deduction under this section shall be allowed in respect of the child;
(b) where the child is maintained by one parent only, that parent only shall be entitled to claim such deduction;
(c) where the child is maintained jointly by both parents, each parent shall be entitled to claim such part of such deduction as is proportionate to the amount expended by him or her on the maintenance of the child;
(d) in ascertaining for the purposes of this subsection whether a parent maintains a child and, if so, to what extent, any payment made by the parent for or towards the maintenance of the child which the parent is entitled to deduct in computing his or her total income for the purposes of the Income Tax Acts shall be deemed not to be a payment for or towards the maintenance of the child.
num: 466
paragraphs: —(1) In this section, “specified amount” means the aggregate of the payments to which an individual is entitled in a year of assessment in respect of an old age (contributory) pension at the maximum rate under the Social Welfare (Consolidation) Act, 1993 , if throughout the year of assessment such individual is entitled to such a pension and—
(a) has no adult dependant or qualified children (within the meaning, in each case, of that Act),
(b) is over the age of 80 years (or such other age as may be specified in that Act for the time being in place of the age of 80 years), and
(c) is living alone.
(2) Where for any year of assessment a claimant proves that he or she maintains at his or her own expense any person, being—
(a) a relative of the claimant, or of the claimant's spouse, incapacitated by old age or infirmity from maintaining himself or herself,
(b) the widowed father or widowed mother of the claimant or of the claimant's spouse, whether incapacitated or not, or
(c) a son or daughter of the claimant who resides with the claimant and on whose services the claimant, by reason of old age or infirmity, is compelled to depend, and being an individual whose total income from all sources for that year of assessment does not exceed, or does not exceed by £110 or more, a sum equal to the specified amount, the claimant shall be entitled in respect of each individual whom the claimant so maintains to a deduction of £110 reduced, if the total income of the individual so maintained exceeds the specified amount, by the amount of the excess.
(3) Where 2 or more individuals jointly maintain any individual referred to in paragraphs (a) to (c) of subsection (2), the deduction to be made under this section shall be apportioned between them in proportion to the amount or value of their respective contributions towards the maintenance of that individual.
num: 467
paragraphs: —(1) Subject to this section, where an individual for a year of assessment proves—
(a) (i) that throughout the year of assessment he or she was totally incapacitated by physical or mental infirmity, or
(ii) that, being an individual who for the relevant year of assessment is assessed to tax in accordance with section 1017 , the individual's spouse was throughout that year totally incapacitated by physical or mental infirmity, and
(b) that for the year of assessment he or she has employed a person for the purpose of having the care of the individual (being the individual or the individual's spouse) who is so incapacitated,
the individual shall, in computing the amount of his or her taxable income, be entitled to have a deduction made from his or her total income of—
(I) £7,500, if the amount ultimately borne by him or her in the year of assessment in employing the employed person is not less than £7,500, or
(II) the amount so borne, if it is less than £7,500.
(2) Not more than one deduction shall be allowed under this section to any claimant for any year of assessment.
(3) Where for any year of assessment a deduction is allowed to an individual under this section in respect of an employed person, the individual shall not be entitled to a deduction in respect of that person under section 465 or 466 .
num: 468
paragraphs: —(1) In this section, “blind person” means a person whose central visual acuity does not exceed 6/60 in the better eye with correcting lenses, or whose central visual acuity exceeds 6/60 in the better eye or in both eyes but is accompanied by a limitation in the fields of vision that is such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.
(2) Where an individual for a year of assessment proves that—
(a) he or she was for the whole or any part of the year of assessment a blind person, or
(b) he or she is assessed to tax for the year in accordance with section 1017 and that his or her spouse was for the whole or any part of the year a blind person,
the individual shall, in computing the amount of his or her taxable income for the year of assessment, be entitled to have a deduction of £700 made from his or her total income; but, in a case where paragraph (b) applies and the claimant proves in addition that he or she was for the whole or any part of the year a blind person, the claimant shall be entitled to a deduction of £1,600 in place of the deduction of £700.
num: 469
paragraphs: —(1) In this section—
“dependant”, in relation to an individual, means—
(a) where the individual is a married person who for the year of assessment is allowed a deduction mentioned in section 461 (a), the spouse of the individual,
(b) any person in respect of whom the individual is allowed for the year of assessment a deduction under section 465 or 466 , and
(c) a child who for the year of assessment—
(i) (I) is under the age of 16 years, or
(II) if over the age of 16 years at the commencement of the year of assessment, is receiving full-time instruction at any university, college, school or other educational establishment, and
(ii) is a child of the individual or, not being such a child, is in the custody of the individual and is maintained by the individual at the individual's own expense for the whole or part of the year of assessment;
“health care” means prevention, diagnosis, alleviation or treatment of an ailment, injury, infirmity, defect or disability, and includes care received by a woman in respect of a pregnancy other than routine maternity care, but does not include routine ophthalmic treatment or routine dental treatment;
“health expenses” means expenses in respect of the provision of health care, being expenses representing the cost of—
(a) the services of a practitioner,
(b) diagnostic procedures carried out on the advice of a practitioner,
(c) maintenance or treatment in a hospital,
(d) drugs or medicines supplied on the prescription of a practitioner,
(e) the supply, maintenance or repair of any medical, surgical, dental or nursing appliance used on the advice of a practitioner,
(f) physiotherapy or similar treatment prescribed by a practitioner,
(g) orthoptic or similar treatment prescribed by a practitioner, or
(h) transport by ambulance;
“hospital” means—
(a) any institution which is provided and maintained by a health board for the provision of services pursuant to the Health Acts, 1947 to 1996,
(b) any institution in which services are provided on behalf of a health board pursuant to the Health Acts, 1947 to 1996,
(c) any hospital, nursing home, maternity home or other institution approved of for the purposes of this section by the Minister for Finance after consultation with the Minister for Health and Children;
“practitioner” means any person who is—
(a) registered in the register established under section 26 of the Medical Practitioners Act, 1978 ,
(b) registered in the register established under section 26 of the Dentists Act, 1985 , or,
(c) in relation to health care provided outside the State, entitled under the laws of the country in which the care is provided to practise medicine or dentistry there;
“qualified person”, in relation to an individual, means the individual personally or any dependant of the individual;
“routine dental treatment” means the extraction, scaling and filling of teeth and the provision and repairing of artificial teeth or dentures;
“routine maternity care” means—
(a) care received by a woman in respect of a pregnancy otherwise than as a patient maintained in a hospital, or
(b) care received by a woman in respect of a pregnancy as a patient maintained in hospital where the total length of the period or periods during which she is so maintained is not more than 14 days or during the first 14 days of such maintenance where the total length of such period or periods is more than 14 days;
“routine ophthalmic treatment” means sight testing and advice as to the use of spectacles or contact lenses and the provision and repairing of spectacles or contact lenses.
(2) (a) Subject to this section, where an individual for a year of assessment proves that in the year of assessment he or she defrayed health expenses incurred for the provision of health care for any one qualified person and the amount of which in the aggregate exceeds £100, the individual shall be entitled, for the purpose of ascertaining the amount of the income on which he or she is to be charged to income tax, to have a deduction of the amount of the excess made from his or her total income.
(b) Where an individual proves that in the year of assessment he or she defrayed health expenses incurred for the provision of health care for qualified persons and which amount in the aggregate to more than £200, the individual shall be entitled, for the purpose of ascertaining the amount of the income on which he or she is to be charged to income tax, to have a deduction of the amount by which the aggregate of the health expenses so computed exceeds £200 made from his or her total income, and such deduction shall be in substitution for and not in addition to a deduction under paragraph (a).
(3) For the purposes of this section—
(a) (i) any expenses defrayed by a married man in a year of assessment shall be deemed to have been defrayed by his wife if for the year of assessment she is to be treated under the Income Tax Acts as living with him and she is assessed to tax in accordance with section 1017 , or
(ii) any expenses defrayed by a married woman in a year of assessment shall be deemed to have been defrayed by her husband if for the year of assessment she is to be treated under the Income Tax Acts as living with him and he is assessed to tax in accordance with section 1017 ,
(b) any expenses defrayed out of the estate of a deceased person by his or her executor or administrator shall be deemed to have been defrayed by the deceased person immediately before his or her death, and
(c) expenses shall be regarded as not having been defrayed in so far as any sum in respect of, or by reference to, the health care to which they relate has been, or is to be, received, directly or indirectly, by the individual or the individual's estate, or by any dependant of the individual or such dependant's estate, from any public or local authority or under any contract of insurance or by means of compensation or otherwise.
(4) Subsections (4) to (6) of section 465 shall, with any necessary modifications, apply for the purposes of determining whether relief is to be granted under this section as they apply in determining whether a deduction is to be allowed under that section; but, where the child's income exceeds the amount specified in subsection (5) of that section, relief under this section shall not be allowed.
(5) In making a claim for a deduction under this section, an individual who, after the end of the year of assessment for which the claim is made, has defrayed or is deemed to have defrayed any expenses relating to health care provided in that year may elect that all deductions to be allowed to him or her under this section for that year and for subsequent years of assessment shall be determined as if those expenses had been defrayed at the time when the health care to which they relate was provided.
(6) Notwithstanding sections 458 (2) and 459 (2)—
(a) any claim for a deduction under this section—
(i) shall be made in such form as the Revenue Commissioners may from time to time prescribe, and
(ii) shall be accompanied by such statements in writing as regards any class of expenses by reference to which the deduction is claimed, including statements by persons to whom payments were made, as may be indicated by the prescribed form as being required as regard expenses of that class, and
(b) in all cases relief from tax consequent on the allowance of a deduction under this section shall be given by means of repayment.
num: 470
paragraphs: —(1) In this section—
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“authorised insurer” means any undertaking entered in The Register of Health Benefits Undertakings, lawfully carrying on such business of insurance referred to in the definition of “relevant contract” but, in relation to an individual, also means any undertaking authorised pursuant to Council Directive No. 73/239/EEC of 24 July 19731 , Council Directive No. 88/357/EEC of 22 June 19882 , and Council Directive No. 92/49/EEC of 18 June 19923 , where a relevant contract was effected with the individual when the individual was not resident in the State but was resident in another Member State of the European Communities;
“relevant contract”, in relation to an individual, means a contract of insurance which provides specifically, whether in conjunction with other benefits or not, for the reimbursement or discharge, in whole or in part, of actual medical, surgical or nursing expenses (including the cost of maintenance at a hospital, nursing home or sanatorium) resulting from sickness of or accident to—
(a) the individual,
(b) the spouse of the individual, or
(c) the children or other dependants of the individual or of the spouse of the individual.
(2) Where an individual for a year of assessment proves that in the year preceding the year of assessment—
(a) the individual, or
(b) if the individual is a married person assessed to tax in accordance with section 1017 , the individual's spouse,
has made a payment to an authorised insurer under a relevant contract, then, the income tax to be charged on the individual if the individual made the payment, or on the individual's spouse if the individual's spouse made the payment, for the year of assessment, other than in accordance with section 16 (2), shall be reduced by an amount which is the lesser of—
(i) (I) where the payment covers no benefits other than such reimbursement or discharge as is referred to in the definition of “relevant contract”, an amount equal to the appropriate percentage of the full amount of the payment, or
(II) where the payment covers benefits other than such reimbursement or discharge as is referred to in the definition of “relevant contract”, an amount equal to the appropriate percentage of so much of the payment as is referable to such reimbursement or discharge,
and
(ii) the amount which reduces that income tax to nil.
(3) Where the income tax reduction of one of the spouses is ascertained in accordance with subsection (2), then—
(a) if there is no income tax to be charged on the spouse for the year of assessment, other than in accordance with section 16 (2), in relation to which relief under subsection (2) may be given, the relief may be given in relation to income tax to be charged on the other spouse for that year, other than in accordance with section 16 (2), and
(b) if the amount so ascertained exceeds the income tax to be charged on the spouse for the year of assessment, other than in accordance with section 16 (2), the excess may be used to reduce the income tax to be charged on the other spouse for that year, other than in accordance with section 16 (2).
(4) Where relief is given under this section, no relief or deduction under any other provision of the Income Tax Acts shall be given or allowed in respect of the payment or part of a payment, as the case may be.
1O.J. No. L228 of 16.8.1973, p.3.
2O.J. No. L172 of 4.7.1988, p.1.
3O.J. No. L228 of 11.8.1992, p.1.s
num: 471
paragraphs: —(1) In this section—
“benefit” and “permanent health benefit scheme” have the same meanings respectively as in section 125 ;
“contribution”, in relation to a permanent health benefit scheme, means any premium paid or other periodic payment made to the scheme in consideration of the right to benefit under it, being a premium or payment which bears a reasonable relationship to the benefits secured by it.
(2) Where an individual for a year of assessment proves that in that year of assessment he or she made a contribution or contributions to a bona fide permanent health benefit scheme or schemes, the individual shall be entitled, for the purpose of ascertaining the amount of the income on which he or she is to be charged to income tax, to have a deduction of so much of the contributions as does not exceed 10 per cent of his or her total income for that year of assessment made from his or her total income.
(3) In a case where the amount of a contribution made by an employer to a permanent health benefit scheme is charged to income tax under Chapter 3 of Part 5 as a perquisite of the office or employment of a director or employee, that amount shall be deemed for the purposes of subsection (2) to be a contribution made by the director or employee to the scheme in the year in respect of which it is so charged to income tax.
num: 472
paragraphs: —(1) (a) In this section—
“emoluments” means emoluments to which Chapter 4 of Part 42 applies or is applied, but does not include—
(i) emoluments paid directly or indirectly by a body corporate (or by any person who would be regarded as connected with the body corporate) to a proprietary director of the body corporate or to the spouse or child of such a proprietary director, and
(ii) emoluments paid directly or indirectly by an individual (or by a partnership in which the individual is a partner) to the spouse or child of the individual;
“director” means—
(i) in relation to a body corporate the affairs of which are managed by a board of directors or similar body, a member of that board or body,
(ii) in relation to a body corporate the affairs of which are managed by a single director or similar person, that director or person, and
(iii) in relation to a body corporate the affairs of which are managed by the members themselves, a member of the body corporate,
and includes any person who is or has been a director;
“proprietary director” means a director of a company who is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company;
“specified employed contributor” means a person who is an employed contributor for the purposes of the Social Welfare (Consolidation) Act, 1993 , but does not include a person—
(i) who is an employed contributor for those purposes by reason only of section 9(1)(b) of that Act, or
(ii) to whom Article 81, 82 or 83 of the Social Welfare (Consolidated Contributions and Insurability) Regulations, 1996 ( S.I. No. 312 of 1996 ), applies.
(b) For the purposes of the definition of “proprietary director”, ordinary share capital which is owned or controlled as referred to in that definition by a person, being a spouse or a minor child of a director, or by a trustee of a trust for the benefit of a person or persons, being or including any such person or such director, shall be deemed to be owned or controlled by such director and not by any other person.
(2) The exclusion from the definition of “emoluments” of the emoluments referred to in subparagraphs (i) and (ii) of that definition shall not apply for any year of assessment to any such emoluments paid to an individual, being a child (other than a child who is a proprietary director) to whom subparagraph (i) or (ii) of that definition relates, if for that year—
(a) (i) the individual is a specified employed contributor, or
(ii) the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), in so far as they apply, have, in relation to any such emoluments paid to the individual in the year of assessment, been complied with by the person by whom the emoluments are paid,
(b) the conditions of the office or employment, in respect of which any such emoluments are paid, are such that the individual is required to devote, throughout the year of assessment, substantially the whole of the individual's time to the duties of the office or employment and the individual does in fact do so, and
(c) the amount of any such emoluments paid to the individual in the year of assessment are not less than £3,600.
(3) Where an individual is in receipt of profits or gains from an office or employment held or exercised outside the State, such profits or gains shall be deemed to be emoluments within the meaning of subsection (1) if such profits or gains—
(a) are chargeable to tax in the country in which they arise,
(b) on payment by the person making such payment, are subject to a system of tax deduction similar in form to that provided for in Chapter 4 of Part 42 ,
num: 473
paragraphs: —(1) In this section—
“residential premises” means property held under a tenancy, being—
(a) a building or part of a building used or suitable for use as a dwelling, and
(b) land which the occupier of a building or part of a building used as a dwelling has for his or her own occupation and enjoyment with the building or part of a building as its garden or grounds of an ornamental nature;
“rent” includes any periodical payment in the nature of rent made in return for a special possession of residential premises or for the use, occupation or enjoyment of residential premises, but does not include so much of any rent or payment as—
(a) is paid or made to defray the cost of maintenance of or repairs to residential premises for which in the absence of agreement to the contrary the tenant would be liable,
(b) relates to the provision of goods or services,
(c) relates to any right or benefit other than the bare right to use, occupy and enjoy residential premises, or
(d) is the subject of a right of reimbursement or a subsidy from any source enjoyed by the person making the payment, unless such reimbursement or subsidy cannot be obtained;
“tenancy” includes any contract, agreement or licence under or in respect of which rent is paid, but does not include—
(a) a tenancy which apart from any statutory extension is a tenancy for a freehold estate or interest or for a definite period of 50 years or more,
(b) a tenancy in relation to which the person beneficially entitled to the rent is a Minister of the Government, the Commissioners of Public Works in Ireland or a housing authority for the purposes of the Housing Act, 1966 , or
(c) a tenancy in relation to which an agreement or provision exists under which the rent paid or part of it is or may be treated as consideration or part consideration, in whatever form, for the creation of a further or greater estate, tenancy or interest in the residential premises concerned or in any other property.
(2) (a) In this subsection, “the relevant limit” means—
(i) in the case of a claimant entitled to a deduction under section 461 (a), £2,000,
(ii) in the case of a widowed person, £1,500, and
(iii) in any other case, £1,000.
(b) Where in relation to income tax for a year of assessment an individual (in this section referred to as “the claimant”) proves that—
(i) at any time during the year of assessment he or she was of the age of 55 years or over, and
(ii) in the year of assessment, he or she has made a payment on account of rent in respect of residential premises which, during the period in respect of which the payment was made, was his or her only or main residence,
the claimant shall be entitled to a deduction of an amount equal to the lesser of—
(I) the aggregate of such payments proved to be so made, and
(II) the relevant limit.
(c) For the purposes of this subsection, where the claimant is a married person assessed to tax for the year of assessment in accordance with section 1017 , any payments made by the claimant's spouse, in respect of which that spouse would have been entitled to relief under this section if he or she were assessed to tax for the year of assessment in accordance with section 1016 (apart from subsection (2) of that section), shall be deemed to have been made by the claimant.
(3) (a) In this subsection—
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“the specified limit” means—
(1) in the case of a claimant entitled to a deduction under section 461 (a), £1,000,
(ii) in the case of a widowed person, £750, and
(iii) in any other case, £500.
(b) Where in relation to income tax for a year of assessment a claimant would but for paragraph (b)(i) of subsection (2) be entitled to relief in accordance with that subsection, the income tax to be charged on the claimant for that year of assessment, other than in accordance with section 16 (2), shall be reduced by an amount which is the least of—
(i) the amount equal to the appropriate percentage of the aggregate of the payments referred to in subsection (2)(b)(ii) proved to be so made,
(ii) the appropriate percentage of the specified limit, and
(iii) the amount which reduces that income tax to nil.
(4) (a) Where a payment is made partly on account of rent and partly on account of anything which is not rent, such apportionment of the payment shall be made as is necessary in order to determine for the purposes of this section the amount paid on account of rent.
(b) Any apportionment required by this subsection shall be made by the inspector according to the best of his or her knowledge and judgment.
(5) Where a payment on account of rent is made in respect of any period, that payment shall be deemed for the purposes of this section to be made in the year in which the period falls; but, if the period falls partly in one year and partly in another year, the amount of the payment made in respect of that period shall be apportioned to each year in the proportion which the part of the period falling in that year bears to the whole of the period, and the amount so apportioned to a year shall be deemed for the purposes of this section to be paid in that year.
(6) (a) Any claim for relief under this section in respect of rent paid in a year of assessment shall be accompanied by—
(i) a certificate and statement, in a form prescribed by the Revenue Commissioners, signed by the claimant setting out—
(I) the name, address and income tax reference number of the claimant,
(II) the name, address and, as may be appropriate, the income tax or corporation tax reference number of the person or body of persons beneficially entitled to the rent under the tenancy under which the rent was paid,
(III) the postal address of the premises in respect of which the rent was paid, and
(IV) full particulars of the tenancy under which the rent was paid,
and
(ii) a receipt or acknowledgement in respect of such rent given in accordance with subsection (8).
(b) Failure to furnish any of the particulars mentioned in paragraph (a)(i) or failure to furnish a receipt or acknowledgement mentioned in paragraph (a)(ii) shall be grounds for refusal of the claim; but—
(i) the inspector may waive the requirement at paragraph (a)(i)(II) on receipt of satisfactory proof that the claimant's inability to comply with that requirement is bona fide, and
(ii) the inspector may waive the requirements at paragraph (a)(ii) on receipt of satisfactory proof of the total rent paid in the relevant period and on being furnished with the name and address of the person or body of persons to whom it was paid.
(7) (a) Any person aggrieved by a decision of the inspector on any question arising under subsection (4) or (6) may, by notice in writing to that effect given to the inspector within 30 days from the date on which notice of the decision is given to that person, make an application to have his or her claim for relief heard and determined by the Appeal Commissioners.
(b) Where an application is made under paragraph (a), the Appeal Commissioners shall hear and determine the claim in the like manner as an appeal made to them against an assessment to income tax, and 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.
(8) (a) Where a person (in this subsection referred to as “the tenant”) who is entitled to relief under this section for a year of assessment, or who has reason to believe that he or she may be so entitled, requests a receipt or acknowledgement of the rent paid by him or her in that year, the person or body of persons beneficially entitled to the rent shall, within 7 days from the date of the request, give to the tenant a receipt or acknowledgement of the rent paid by the tenant in that year of assessment.
(b) Any receipt or acknowledgement given in accordance with this subsection shall be in writing and shall contain—
(i) the name and address of the tenant,
(ii) the name, address and, as may be appropriate, the income tax or corporation tax reference number of the person or body of persons giving the receipt or acknowledgement, and
(iii) the amount of the rent paid in the year of assessment and the period within that year in respect of which it is paid.
(9) (a) The Revenue Commissioners may make regulations, for the purpose of giving effect to this section, with respect to the allowance granted by this section, or to any matter ancillary or incidental thereto, or, in particular and without prejudice to the generality of the foregoing, to provide for—
(i) the proof by a claimant of a payment on account of rent,
(ii) the disclosure of information by a person in receipt of a payment on account of rent,
(iii) the maintenance of records and the production to and inspection by persons authorised by the Revenue Commissioners of such records and the taking by such persons of copies of or of extracts from such records, and
(iv) appeals with respect to matters arising under the regulations which would not otherwise be the subject of an appeal.
(b) Every regulation made under this section shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(10) Any deduction made under this section shall be in substitution for and not in addition to any deduction to which the individual might be entitled in respect of the same payment under any other provision of the Income Tax Acts.
num: 474
paragraphs: —(1) In this section—
“academic year”, in relation to an approved course, means a year of study commencing on a date not earlier than the 1st day of August in a year of assessment;
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“approved college” means a college in the State—
(a) which operates in accordance with a code of standards which from time to time may, with the consent of the Minister for Finance, be laid down by the Minister, and
(b) which the Minister approves of for the purposes of this section;
“approved course” means a full-time undergraduate course of study in an approved college which—
(a) is of at least 2 academic years' duration, and
(b) the Minister, having regard to a code of standards which from time to time may, with the consent of the Minister for Finance, be laid down by the Minister in relation to the quality of education to be offered on approved courses, approves of for the purposes of this section;
“dependant”, in relation to an individual, means a spouse or child of the individual or a person in respect of whom the individual is or was the legal guardian;
“the Minister” means the Minister for Education and Science;
“qualifying fees”, in relation to an approved course and an academic year, means the amount of fees chargeable in respect of tuition to be provided in relation to that course in that year which, with the consent of the Minister for Finance, the Minister approves of for the purposes of this section.
(2) Subject to this section, where an individual for a year of assessment proves that he or she has, on his or her own behalf or on behalf of his or her dependant, made a payment in respect of qualifying fees in respect of an approved course for the academic year in relation to that course commencing in that year of assessment, the income tax to be charged on the individual for that year of assessment, other than in accordance with section 16 (2), shall be reduced by an amount which is the lesser of—
(a) the amount equal to the appropriate percentage of the aggregate of all such payments proved to be so made, and
(b) the amount which reduces that income tax to nil.
(3) For the purposes of this section, a payment in respect of qualifying fees shall be regarded as not having been made in so far as any sum in respect of or by reference to such fees has been or is to be received, directly or indirectly, by the individual, or, as the case may be, his or her dependant, from any source whatever by means of grant, scholarship or otherwise.
(4) (a) Where the Minister is satisfied that an approved college, or an approved course in that college, no longer meets the appropriate code of standards laid down, the Minister may by notice in writing given to the approved college withdraw, with effect from the year of assessment following the year of assessment in which the notice is given, the approval of that college or course, as the case may be, for the purposes of this section.
(b) Where the Minister withdraws the approval of any college or course for the purposes of this section, notice of its withdrawal shall be published as soon as may be in Iris OifigiÃºil.
(5) On or before the 1st day of July in each year of assessment, the Minister shall furnish the Revenue Commissioners with full details of—
(a) all colleges and courses in respect of which approval has been granted and not withdrawn for the purposes of this section, and
(b) the amount of the qualifying fees in respect of each such course for the academic year commencing in that year of assessment.
num: 475
paragraphs: —(1) In this section—
“academic year”, in relation to an approved course, means a year of study commencing on a date not earlier than the 1st day of August in a year of assessment;
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“approved college”, in relation to a year of assessment, means a college or institution in the State, or a college or institution in another Member State of the European Communities providing distance education in the State, which—
(a) provides courses to which a scheme approved by the Minister under the Local Authority (Higher Education) Grants Acts, 1968 to 1992, applies, or
(b) operates in accordance with a code of standards which from time to time may, with the consent of the Minister for Finance, be laid down by the Minister,
and which the Minister approves of for the purposes of this section;
“approved course” means a part-time undergraduate course of study in an approved college which—
(a) is of at least 2 academic years' duration, and
(b) in the case of a course provided by a college to which paragraph (b) of the definition of “approved college” relates, the Minister, having regard to a code of standards which from time to time may, with the consent of the Minister for Finance, be laid down by the Minister in relation to the quality of education to be offered on such approved course, approves of for the purposes of this section;
“the Minister” means the Minister for Education and Science;
“qualifying fees”, in relation to an approved course and an academic year, means the amount of fees chargeable in respect of tuition to be provided in relation to that course in that year and which, in relation to a course to which paragraph (b) of the definition of “approved course” relates, the Minister, with the consent of the Minister for Finance, approves of for the purposes of this section;
“qualifying individual” means—
(a) an individual other than an individual who has been conferred with a certificate, diploma or degree in respect of the completion by him or her of an undergraduate course of study of not less than 2 academic years' duration, or
(b) an individual who has been conferred with a certificate or diploma as referred to in paragraph (a) and who is pursuing an approved course in respect of which the approved college certifies that the certificate or diploma, as the case may be, with which he or she has been conferred, has qualified him or her for exemption for one or more years of study from the normal duration of the approved course but is not otherwise an individual who is not a qualifying individual for the purposes of paragraph (a).
(2) Subject to this section, where for a year of assessment a qualifying individual proves that he or she has on his or her own behalf made a payment in respect of qualifying fees in respect of an approved course for the academic year in relation to that course commencing in that year of assessment, the income tax to be charged on the qualifying individual for that year of assessment, other than in accordance with section 16 (2), shall be reduced by an amount which is the lesser of—
(a) the amount equal to the appropriate percentage of the aggregate of all such payments proved to be so made, and
(b) the amount which reduces that income tax to nil.
(3) Notwithstanding subsection (2), where for any year of assessment—
(a) the spouse of a qualifying individual is assessed to tax in accordance with section 1017 , and
(b) qualifying fees are paid by the qualifying individual, or paid by that spouse on behalf of the qualifying individual, in respect of an approved course for the academic year in relation to that course commencing in that year of assessment,
then, relief under this section shall, except where section 1023 applies, be granted to the spouse of the qualifying individual in respect of the qualifying fees so paid as if he or she were a qualifying individual and the qualifying fees had been paid by him or her on his or her own behalf.
(4) For the purposes of this section, a payment in respect of qualifying fees shall be regarded as not having been made in so far as any sum in respect of or by reference to such fees has been or is to be received directly or indirectly by the qualifying individual from any source whatever by means of grant, scholarship or otherwise.
(5) (a) Where the Minister is satisfied that a college, within the meaning of paragraph (b) of the definition of “approved college”, or an approved course in that college, no longer meets the appropriate code of standards laid down, the Minister may by notice in writing given to the approved college withdraw, with effect from the year of assessment following the year of assessment in which the notice is given, the approval of that college or course, as the case may be, for the purposes of this section.
(b) Where the Minister withdraws the approval of any college or course for the purposes of this section, notice of its withdrawal shall be published as soon as may be in Iris OifigiÃºil.
(6) On or before the 1st day of July in each year of assessment, the Minister shall furnish the Revenue Commissioners with full details of all—
(a) courses,
(b) colleges, and
(c) the amount of qualifying fees for the academic year commencing in that year of assessment in respect of courses referred to in paragraph (a),
which the Minister has approved of for the purposes of this section.
(7) Where for the purposes of this section any question arises as to whether—
(a) a college is an approved college, or
(b) a course of study is an approved course,
the Revenue Commissioners may consult with the Minister.
num: 476
paragraphs: —(1) In this section—
“An Foras” means An Foras Ã?iseanna Saothair;
“approved course provider” means a person providing approved courses who—
(a) operates in accordance with a code of standards which from time to time may, with the consent of the Minister for Finance, be agreed between An Foras and the Minister, and
(b) is approved of by An Foras for the purposes of this section;
“approved course” means a course of study or training, other than a postgraduate course, provided by an approved course provider which—
(a) is confined to—
(i) such aspects of information technology, or
(ii) such foreign languages,
as are approved of by the Minister, with the consent of the Minister for Finance, for the purposes of this section,
(b) is of less than 2 years' duration,
(c) results in the awarding of a certificate of competence, and
(d) having regard to a code of standards which from time to time may, with the consent of the Minister for Finance, be agreed between An Foras and the Minister in relation to—
(i) the quality and standard of training to be provided on the approved course, and
(ii) the methods and facilities to be used by the course provider in delivering the course and in assessing competence,
is approved of by An Foras for the purposes of this section;
“certificate of competence”, in relation to an approved course, means a certificate awarded in accordance with the standards set out in the code of standards referred to in paragraph (d) of the definition of “approved course” and certifying that a minimum level of competence has been achieved by the individual to whom the certificate is awarded;
“foreign language” means a language other than an official language of the State;
“the Minister” means the Minister for Enterprise, Trade and Employment;
“qualifying fees”, in relation to an approved course, means the amount of fees chargeable in respect of tuition to be provided in relation to such course where the net amount of such fees are not less than £250 and to the extent that they do not exceed £1,000.
(2) (a) In this subsection, “appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year.
(b) Subject to this section, where an individual proves that—
(i) he or she has on his or her own behalf made a payment in respect of qualifying fees in respect of an approved course, and
(ii) has been awarded a certificate of competence in respect of that course,
the income tax to be charged on the individual, other than in accordance with section 16 (2), for the year of assessment in which that certificate of competence is awarded shall be reduced by an amount which is the lesser of—
(I) the amount equal to the appropriate percentage of the aggregate of all such payments proved to be so made, and
(II) the amount which reduces that income tax to nil.
(3) Where for a year of assessment in which an individual is awarded a certificate of competence—
(a) the spouse of the individual is assessed to tax in accordance with section 1017 , and
(b) qualifying fees are paid by the individual, or paid by that spouse on behalf of the individual, in respect of the approved course,
then, relief under this section shall, except where section 1023 applies, be granted to the spouse of the individual in respect of the qualifying fees so paid as if the qualifying fees had been paid by him or her on his or her own behalf.
(4) Relief under this section shall not be given in respect of an individual for a year of assessment in respect of more than one approved course.
(5) For the purposes of this section, a payment in respect of qualifying fees shall be regarded as not having been made in so far as any sum, in respect of or by reference to such fees, has been or is to be received either directly or indirectly by an individual from any source whatever by means of grant, scholarship or otherwise.
(6) An Foras, where it is satisfied that an approved course provider, or an approved course provided by an approved course provider, no longer meets the appropriate code of standards laid down, may by notice in writing given to the approved course provider withdraw the approval of that course provider or approved course, as the case may be, from such date as it considers appropriate, and this section shall cease to apply to that course provider or that course, as the case may be, with effect from that date.
(7) (a) As soon as may be practicable after An Foras has—
(i) approved a course provider or a course for the purposes of this section, or
(ii) withdrawn such approval,
An Foras shall notify the Revenue Commissioners in writing of such approval or withdrawal of approval.
(b) Where any question arises as to whether for the purposes of this section—
(i) a course provider is an approved course provider, or
(ii) a training course is an approved course,
the Revenue Commissioners may consult with An Foras.
(8) Any relief under this section shall be in substitution for and not in addition to any relief to which the individual might be entitled to in respect of the same payment under any other provision of the Income Tax Acts.
(9) This section shall come into operation on such date as may be fixed by order of the Minister for Finance.
num: 477
paragraphs: —(1) (a) In this section—
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“claimant” has the meaning assigned to it by subsection (2)
“financial year” means the period of 12 months ending on the 31st day of December in that year;
“group water supply scheme” means a scheme referred to in the Housing (Improvement Grants) Regulations, 1983 ( S.I. No. 330 of 1983 );
“service” means the provision by or on behalf of a local authority of—
(i) a supply of water for domestic purposes,
(ii) domestic refuse collection or disposal, or
(iii) domestic sewage disposal facilities;
“service charge” means a charge imposed under—
(i) the Local Government (Financial Provisions) (No. 2) Act, 1983 , or
(ii) section 65A (inserted by the Local Government (Sanitary Services) Act, 1962 , and amended by the Local Government (Financial Provisions) (No. 2) Act, 1983 ) of the Public Health (Ireland) Act, 1878 ,
in respect of the provision by a local authority of any service or services, and “service charges” shall be construed accordingly;
“specified limit” means £150.
(b) References in this section to an amount paid on time shall mean payment of that amount by such date or dates as a local authority shall decide.
(2) Where in relation to income tax for a year of assessment an individual (in this section referred to as a “claimant”) proves that in the financial year immediately before the year of assessment the amount which he or she was liable to pay in respect of service charges for that financial year has been paid in full and on time, the income tax to be charged on the claimant for that year of assessment, other than in accordance with section 16 (2), shall, subject to subsections (3) and (5), be reduced by an amount which is the least of—
(a) the amount equal to the appropriate percentage of the amount proved to be so paid,
(b) the appropriate percentage of the specified limit, and
(c) the amount which reduces that income tax to nil.
(3) (a) In the case of a claimant assessed to tax for the year of assessment in accordance with section 1017 , any payments made by the spouse of the claimant, in respect of which that spouse would have been entitled to relief under this section if the spouse were assessed to tax for the year of assessment in accordance with section 1016 (apart from subsection (2) of that section), shall be deemed to have been made by the claimant.
(b) In the case of an individual who resides on a full-time basis in the premises to which the service charges relate and pays such service charges in accordance with the requirements of this section on behalf of the claimant, that claimant may disclaim the relief provided by this section in favour of the individual, and such disclaimer shall be in such form as the Revenue Commissioners may require.
(4) A claimant who wishes to claim relief under this section shall furnish to the local authority to which a payment in respect of the service charges referred to in subsection (2) is made the claimant's identifying number, known as the Revenue and Social Insurance (RSI) Number.
(5) (a) Any claim for relief under this section shall, unless the details referred to in subsection (6) in respect of a claimant are provided on the basis set out in paragraph (c) of that subsection, be accompanied by a certificate given in accordance with subsection (6) or, in a case to which paragraph (a)(i) of subsection (7) applies, a receipt or acknowledgement referred to in clause (III) of that paragraph.
(b) Failure to furnish a certificate or receipt or acknowledgment mentioned in paragraph (a), or to be included in the return referred to in subsection (6)(c), shall be grounds for refusal of the claim.
(6) (a) Where in a financial year—
(i) a claimant has furnished his or her identifying number in accordance with subsection (4),
(ii) the total amount which he or she was liable to pay in respect of service charges for that year has been paid on time, and
(iii) arrears, if any, of service charges have been paid in accordance with guidelines in relation to the payment of arrears of service charges entitled “ Finance Act, 1995 — Payment of Service Charges Arrears” issued to local authorities by the Department of the Environment,
the local authority to which payment was made shall, subject to paragraph (c), give to the claimant a certificate in respect of such payment.
(b) A certificate given in accordance with this subsection shall contain—
(i) the name, address and the identifying number, known as the Revenue and Social Insurance (RSI) Number, of the claimant,
(ii) the name and address of the local authority giving the certificate,
(iii) the amount paid and the financial year in respect of which it was paid, and
(iv) confirmation that the payment referred to in subparagraph (iii) was paid on time and represents the full amount of the service charges which the claimant was liable to pay for the financial year for which the certificate was given.
(c) Each local authority shall, within one calendar month after the end of every financial year, provide the Revenue Commissioners with a return in such computerised format as the Revenue Commissioners may require for the purposes of giving effect to the relief provided for in this section and containing, in respect of every claimant who has furnished an identifying number mentioned in subsection (4), the details specified in subparagraphs (i), (iii) and (iv) of paragraph (b); but where exceptionally the return provided by a local authority is not a complete return, a supplementary return in similar format shall be provided to the Revenue Commissioners not later than 2 months after the end of that financial year.
(d) Where a local authority makes a return in accordance with paragraph (c), the certificate mentioned in paragraph (a) need not be given to any claimant referred to in such return.
(7) (a) Where the service consisting of the provision of domestic refuse collection or disposal—
(i) is provided and charged for by a person or body of persons other than a local authority and where such person or body of persons has—
(I) notified its provision to the local authority in whose functional area such service is provided,
(II) furnished to that local authority such information as the local authority may from time to time request concerning that person or body of persons or the service provided by that person or body of persons, and
(III) given a receipt or acknowledgement to a claimant containing—
(A) the name, address and, as may be appropriate, the income tax or corporation tax reference number of the person or body of persons,
(B) the claimant's name and address,
(C) the amount paid, and
(D) the financial year in respect of which the payment for the service was paid,
or
(ii) if provided by a local authority or by a person or body of persons referred to in subparagraph (i)(I), is charged for other than by means of a specified annual charge in respect of that service,
a claimant shall for the purposes of this section be deemed to have made a payment of £50 in respect of that service and shall be entitled to relief in respect of such an amount subject to this section other than—
(I) in a case where subparagraph (i) applies, subsection (6), or
(II) in a case where subparagraph (ii) applies, subsections (5) and (6).
(b) Where a service charge is imposed in respect of the provision of a service other than the service referred to in paragraph (a), this subsection shall apply only where the claimant also qualifies for relief under this section in respect of such service charge.
(8) The provision of a supply of water for domestic purposes effected by a group water supply scheme shall be treated for the purposes of this section as if it were provided by a local authority, and a payment by an individual member of such a scheme in respect of such provision shall be deemed to be a payment in respect of service charges.
(9) Any deduction made under this section shall be in substitution for and not in addition to any deduction to which the individual might be entitled in respect of the same payment under any other provision of the Income Tax Acts.
num: 478
paragraphs: —(1) In this section—
“appropriate percentage”, in relation to a year of assessment, means a percentage equal to the standard rate of tax for that year;
“installation” means the placing in position, including any necessary wiring, drilling, plastering or similar work, of a relevant alarm system;
“qualifying expenditure”, in relation to a qualifying individual, means expenditure incurred in the qualifying period in connection with either or both the provision and installation of a relevant alarm system in a premises which is the qualifying individual's sole or main residence, but does not include any expenditure in so far as it is in respect of the repair, maintenance or monitoring of such an alarm system;
“qualifying individual”, in relation to qualifying expenditure, means an individual who at the time the expenditure is incurred has attained the age of 65 years and who for the greater part of the year of assessment in which the expenditure is incurred lives alone;
“qualifying period” means the period beginning on the 23rd day of January, 1996, and ending on the 5th day of April, 1998;
“relative”, in relation to a qualifying individual, includes a relation by marriage and a person in respect of whom the individual is or was the legal guardian;
“relevant alarm system” means an electrical apparatus which when activated is designed to give notice to the effect that there is an intruder present or attempting to enter the premises in which it is installed.
(2) Where a claimant, being a qualifying individual or a relative of that individual, having made a claim in that behalf, proves that he or she has incurred qualifying expenditure in relation to the qualifying individual, the income tax to be charged on the claimant, other than in accordance with section 16 (2), for the year of assessment in which the expenditure is incurred shall be reduced by an amount which is the least of—
(a) the appropriate percentage of the qualifying expenditure,
(b) the appropriate percentage of £800, and
(c) the amount which reduces that income tax to nil.
(3) Any claim for relief under this section shall be in such form as may be prescribed by the Revenue Commissioners for the purpose and shall be accompanied by a receipt or receipts, as may be appropriate, for the amount of qualifying expenditure incurred; but, where the qualifying expenditure includes expenditure in respect of installation, the receipt in respect of such expenditure shall contain the installer's name and address and the installer's value-added tax registration number or income tax reference number.
(4) Any deduction made under this section shall be in substitution for and not in addition to any deduction to which the individual might be entitled in respect of the same payment under any other provision of the Income Tax Acts.
num: 479
paragraphs: —(1) (a) In this section—
“director” has the same meaning as in Chapter 3 of Part 5 ;
“eligible employee”, in relation to a qualifying company, means—
(i) where the company is a trading company, a director or an employee of the company, or
(ii) where the company is a holding company, a director or an employee of the company or of a company which is its 75 per cent subsidiary;
“eligible shares”, in relation to a qualifying company, means new shares forming part of the ordinary share capital of the company which—
(i) are fully paid up,
(ii) throughout the period of 5 years beginning with the date on which they are issued, carry no present or future preferential right to dividends or to the company's assets on its winding up and no present or future preferential right to be redeemed,
(iii) are not subject to any restrictions other than restrictions which attach to all shares of the same class, and
(iv) are issued to and acquired by an eligible employee in relation to the company at not less than their market value at the time of issue;
“holding company” means a company whose business consists wholly or mainly of the holding of shares or securities of trading companies which are its 75 per cent subsidiaries;
“market value” shall be construed in accordance with section 548 ;
“qualifying company” means a company which at the time the eligible shares are issued is—
(i) incorporated in the State,
(ii) resident in the State and not resident elsewhere, and
(iii) (I) a trading company, or
(II) a holding company;
“trading company” means a company whose business consists wholly or mainly of the carrying on wholly or mainly in the State of a trade or trades; “75 per cent subsidiary”, in relation to a company, has the meaning assigned to it for the purposes of the Corporation Tax Acts by section 9 , as applied for the purposes of section 411 by paragraphs (b) and (c) of subsection (1) of that section.
(b) References in this section to a disposal of shares include references to a disposal of an interest or right in or over the shares, and an individual shall be treated for the purposes of this section as disposing of any shares which he or she is treated by virtue of section 587 as exchanging for other shares.
(c) Shares in a company shall not be treated for the purposes of this section as being of the same class unless they would be so treated if dealt in on a stock exchange in the State.
(2) Subject to this section, where an eligible employee in relation to a qualifying company subscribes for eligible shares in the qualifying company, the eligible employee shall be entitled to have a deduction made from his or her total income for the year of assessment in which the shares are issued of an amount equal to the amount of the subscription; but a deduction shall not be given to the extent to which the amount subscribed by an eligible employee for eligible shares issued to him or her in all years of assessment exceeds £5,000.
(3) Subsection (2) shall not apply as respects any amount subscribed for eligible shares if within the period of 5 years from the date of their acquisition—
(a) those shares are disposed of, or
(b) the eligible employee who made the subscription receives in respect of those shares any money or money's worth which does not constitute income in his or her hands for the purpose of income tax,
and there shall be made all such assessments, additional assessments or adjustments of assessments as are necessary to withdraw any relief from income tax already given under subsection (2) in respect of the amount subscribed; but, where an event mentioned in paragraph (a) or (b) occurs after the fourth anniversary of the date on which the shares were issued to the eligible employee, relief shall be withdrawn only to the extent of 75 per cent of the amount which would otherwise be withdrawn.
(4) Except where the shares are in a company whose ordinary share capital, at the time of acquisition of the shares by the eligible employee, consists of shares of one class only, the majority of the issued shares of the same class as the eligible shares shall be shares other than—
(a) eligible shares, and
(b) shares held by persons who acquired their shares in pursuance of a right conferred on them or an opportunity afforded to them as a director or employee of the qualifying company or any of its 75 per cent subsidiaries.
(5) In relation to shares in respect of which relief has been given under subsection (2) and not withdrawn, any question—
(a) as to which (if any) such shares issued to an eligible employee at different times a disposal relates, or
(b) whether a disposal relates to such shares or to other shares,
shall for the purposes of this section be determined as for the purposes of section 498 .
(6) Where there occurs in relation to any of the eligible shares of an eligible employee (in this subsection referred to as “the original holding”) a transaction which results in a new holding (within the meaning of section 584 ) being equated with the original holding for the purposes of capital gains tax, then, for the purposes of subsection (3)—
(a) the new holding shall be treated as shares in respect of which relief under this section has been given,
(b) the transaction shall not be treated as involving a disposal of the original holding,
(c) the consideration for the disposal of the original holding to the extent that it consists of the new holding shall not be treated as money or money's worth, and
(d) a disposal of the whole or a part of the new holding shall be treated as a disposal of the whole or a corresponding part of the shares in respect of which relief has been given under this section.
(7) Any amount in respect of which relief is allowed under subsection (2) and not withdrawn shall be treated as a sum which by virtue of section 554 is to be excluded from the sums allowable under section 552 .
(8) An eligible employee shall not be entitled to relief under subsection (2) in respect of any shares unless the shares are subscribed for and issued for bona fide commercial reasons and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
num: 480
paragraphs: —(1) (a) In this section—
“director” and “proprietary director” have the same meanings respectively as in section 472 ;
“employee”, in relation to a body corporate, includes any person taking part in the management of the affairs of the body corporate who is not a director, and includes a person who is to be or has been an employee;
“part-time director”, in relation to a body corporate, means a director who is not required to devote substantially the whole of his or her time to the service of the body corporate;
“proprietary employee”, in relation to a company, means an employee who is the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company.
(b) For the purposes of the definitions of “proprietary director” and “proprietary employee”, ordinary share capital which is owned or controlled as referred to in those definitions by a person, being a spouse or a minor child of a director or employee, or by a trustee of a trust for the benefit of a person or persons, being or including any such person or such director or employee, shall be deemed to be owned or controlled by such director or employee and not by any other person.
num: 481
paragraphs: —(1) In this section—
“allowable investor company”, in relation to a qualifying company, means a company which is not connected with the qualifying company;
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing for the purposes of this section;
“film” means—
(a) as respects a film in respect of which the Minister did not receive before the 29th day of April, 1997, the application to enable the Minister to consider whether a certificate should be given under subsection (2)(a), a film of a kind which is included within the categories of films eligible for certification as set out in guidelines referred to in subsection (2), or
(b) as respects any other film, a film which is produced—
(i) on a commercial basis with a view to the realisation of profit, and
(ii) wholly or principally for exhibition to the public in cinemas or by means of television broadcasting,
but does not include a film made for exhibition as an advertising programme or as a commercial;
“the Minister” means the Minister for Arts, Heritage, Gaeltacht and the Islands;
“qualifying company” means a company which—
(a) is incorporated in the State,
(b) is resident in the State and not resident elsewhere,
(c) exists solely for the purposes of the production and distribution of only one qualifying film, and
(d) does not contain in its name registered under either or both the Companies Acts, 1963 to 1990, or the Registration of Business Names Act, 1963 , the words “Ireland”, “Irish”, “Ãireann”, “Ãire” or “national”,
but paragraph (d) shall apply only as respects a film (being the film the company exists for the production and distribution of) in respect of which the Minister did not receive before the 29th day of April, 1997, the application to enable the Minister to consider whether a certificate should be given under subsection (2)(a);
“qualifying film” means a film in respect of which the Minister has given a certificate under subsection (2) which has not been revoked under that subsection;
“qualifying individual”, in relation to a qualifying company, means an individual who is not connected with the company;
“qualifying period”—
(a) in relation to an allowable investor company, means the period commencing on the 23rd day of January, 1996, and ending on the 22nd day of January, 1999, and
(b) in relation to a qualifying individual, means the period commencing on the 23rd day of January, 1996, and ending on the 5th day of April, 1999;
“relevant deduction” means a deduction of an amount equal to 80 per cent of a relevant investment;
“relevant investment” means a sum of money which is—
(a) paid in the qualifying period to a qualifying company in respect of shares in the company by an allowable investor company on its own behalf or by a qualifying individual on that individual's own behalf, and is paid by the allowable investor company or by the qualifying individual, as the case may be, directly to the qualifying company,
(b) paid by the allowable investor company or the qualifying individual, as the case may be, for the purposes of enabling the qualifying company to produce a film in respect of which, at the time such sum of money is paid, the Minister has given notice in writing to the qualifying company that the Minister is satisfied for the time being that an application in writing containing such information as may be specified in guidelines referred to in subsection (2) has been made to enable the Minister to consider whether a certificate should be given to that company under that subsection, and
(c) used by the qualifying company within 2 years of the receipt of that sum for those purposes, but does not include a sum of money paid to the qualifying company on terms which provide that it will be repaid, other than a provision for its repayment in the event of the Minister not giving a certificate under subsection (2), and a reference to the making of a relevant investment shall be construed as a reference to the payment of such a sum to a qualifying company.
2) (a) (i) Subject to subparagraph (ii), the Minister, on the making of an application by a qualifying company, may, in accordance with guidelines laid down by the Minister with the consent of the Minister for Finance, give a certificate to a qualifying company stating, in relation to a film to be produced by the company, that the film may be treated as a qualifying film for the purposes of this section.
(ii) In relation to a film in respect of which the Minister did not receive before the 29th day of April, 1997, the application to enable the Minister to consider whether a certificate should be given under this paragraph, nothing in this section shall be construed as obliging the Minister to give a certificate under this paragraph, and in any case where, in relation to a film, the principal photography has commenced, the first animation drawings have commenced or the first model movement has commenced, as the case may be, before application is made by a qualifying company, the Minister shall not give a certificate under this paragraph.
(iii) An application under this section shall be in such form as the Minister may direct and shall contain such information as may be specified in the guidelines referred to in subparagraph (i).
(b) A certificate given by the Minister under paragraph (a) shall be subject to such conditions as the Minister may consider proper (having regard, in particular, to any contribution which the production of the film is expected to make to either or both the development of the film industry in the State and the promotion and expression of Irish culture) and specifies in the certificate, including—
(i) a condition that not less than—
(I) 75 per cent, or
(II) such lower percentage, not being less than 10 per cent, which in accordance with guidelines laid down under paragraph (a) the Minister specifies in the certificate,
of the work on the production of the film is carried out in the State,
(ii) subject to paragraph (c), a condition that the amount per cent of the total cost of production of the film which may be met by relevant investments shall not exceed the amount per cent (in paragraph (c) referred to as “the specified percentage”) specified in the certificate, and
(iii) a condition that the qualifying company shall, in respect of the qualifying film concerned, notify the Minister in writing of when the principal photography has commenced, the first animation drawings have commenced or the first model movement has commenced, as appropriate.
(c) (i) Subject to subparagraphs (ii) and (iii), the specified percentage shall not exceed—
(I) where the total cost of production of the film does not exceed £4,000,000, 60 per cent,
(II) where the total cost of production of the film exceeds £4,000,000 and does not exceed £5,000,000, the amount per cent (in this subparagraph referred to as “the allowable percentage”) where the amount of the allowable percentage is determined by the formula—
60 −
E
________
£100,000
where E is the excess of the total cost of production of the film over £4,000,000, and
(III) where the total cost of production of the film exceeds £5,000,000, 50 per cent;
but, in any case to which clause (I), (II) or (III) relates, the total cost of production of the film which is met by relevant investments shall not exceed £7,500,000, and where the percentage of the work on the production of the film carried out in the State (in this paragraph referred to as the “lower percentage”) is less than 50 per cent, this paragraph shall be construed as if the reference to 60 per cent, the reference to the allowable percentage and the reference to 50 per cent were a reference to the lower percentage.
(ii) (I) In relation to a film (other than an animation film) in respect of which the principal photography commences at any time during the months of October, November, December and January, and the production of the film continues to completion without unreasonable delay from that time, or
(II) in relation to a film in respect of which post production work is to be carried out wholly or mainly in the State,
the references in subparagraph (i) to—
(A) 60 per cent shall be construed as a reference to 66 per cent,
(B) 50 per cent shall be construed as a reference to 55 per cent, and
(C) £7,500,000 shall be construed as a reference to £8,250,000.
(iii) In relation to a film in respect of which not less than one-half of the amount of the total cost of production met by relevant investments has been met by relevant investments paid by allowable investor companies, the references in this paragraph (apart from this subparagraph) to—
(I) £7,500,000 shall be treated as a reference to £15,000,000 and
(II) £8,250,000 shall be treated as a reference to £16,500,000.
(d) The Minister may amend or revoke any condition (including a condition added by virtue of this paragraph) specified in the certificate, or add to such conditions, by giving notice in writing to the qualifying company concerned of the amendment, revocation or addition, and this section shall apply as if—
(i) a condition so amended or added by the notice was specified in the certificate, and
(ii) a condition so revoked was not specified in the certificate.
(e) Where a company fails to comply with any of the conditions to which a certificate issued to it under paragraph (a) is subject by virtue of paragraph (b) or (d)—
(i) that failure shall constitute the failure of an event to happen by reason of which relief is to be withdrawn under subsection (11), and
(ii) the Minister may, by notice in writing served by registered post on the company, revoke the certificate.
(3) Subject to this section, where in an accounting period an allowable investor company makes a relevant investment, it shall, on making a claim in that behalf, be given a relevant deduction from its total profits for the accounting period; but, where the amount of the relevant deduction to which the allowable investor company is entitled under this section in an accounting period exceeds its profits for that accounting period, an amount equal to 125 per cent of the amount of that excess shall be carried forward to the succeeding accounting period and the amount so carried forward shall be treated for the purposes of this section as if it were a relevant investment made in that succeeding accounting period.
(4) (a) Subject to paragraph (b), where in any period of 12 months (in paragraph (b) referred to as a “12 month period”) ending on an anniversary of the 22nd day of January, 1996, the amount or the aggregate amount of the relevant investments made, or treated as made, by an allowable investor company, or by such company and all companies (which other companies are referred to in paragraph (b) as “connected companies”) which at any time in that period would be regarded as connected with such company, exceeds £8,000,000—
(i) no relief shall be given under this section in respect of the amount of the excess, and
(ii) where there is more than one relevant investment, the inspector or, on appeal, the Appeal Commissioners shall make such apportionment of the relief available as shall be just and reasonable to allocate to each relevant investment a due proportion of the relief available and, where necessary, to grant to each allowable investor company concerned an amount of relief proportionate to the amount of the relevant investment or the aggregate amount of the relevant investments made by it in the period.
(b) No relief shall be given under this section in respect of the amount or the aggregate amount of the relevant investments (in this paragraph referred to as “the total amount”) made by an allowable investor company and its connected companies—
(i) to the extent that the amount of the relevant investment, or the total amount made in any one qualifying company, exceeds £3,000,000, and
(ii) where in any 12 month period the total amount exceeds £3,000,000, to the extent that the excess comprises a relevant investment or relevant investments made in a qualifying company to enable the company to produce a film, the total cost of production of which exceeds £4,000,000.
(5) Subject to this section, where in any year of assessment a qualifying individual makes a relevant investment, the individual shall, on making a claim in that behalf, be given a relevant deduction from his or her total income for that year of assessment.
(6) A relevant deduction shall not be given under this section in respect of any relevant investment made by a qualifying individual in a qualifying company in any year of assessment unless the amount of that relevant investment or the total amount of the relevant investments made by the individual in the qualifying company in that year is £200 or more and, for the purposes of this section in the case of a qualifying individual who is married and is assessed to tax for a year of assessment in accordance with section 1017 , any relevant investment made by the qualifying individual's spouse in the qualifying company in that year of assessment shall be deemed to have been made by the qualifying individual.
(7) A relevant deduction shall not be given to a qualifying individual under this section for a year of assessment to the extent to which the amount of the relevant investment or the total amount of the relevant investments (whether or not made in the same qualifying company) made or treated as made by the individual in that year of assessment exceeds £25,000.
(8) Where for any year of assessment a greater relevant deduction would be given to a qualifying individual under this section but for either or both of the following reasons—
(a) an insufficiency of total income, or
(b) the operation of subsection (7),
then, 125 per cent of the relevant deduction which cannot be given to the individual under this section for either or both of those reasons shall be carried forward to the next year of assessment and shall be treated for the purposes of this section as a relevant investment made by the individual in that next year; but an amount shall not be carried forward to any year of assessment after the year 1998-99.
(9) To the extent that an amount once carried forward to a year of assessment under subsection (8) (and treated as a relevant investment made by a qualifying individual in that year of assessment) gives rise to a relevant deduction which is not deducted from the qualifying individual's total income for that year of assessment, the amount shall to that extent be carried forward again to the next year of assessment (and treated as a relevant investment made by the individual in that next year), and so on for succeeding years of assessment; but an amount shall not be carried forward to any year of assessment after the year 1998-99.
(10) A relevant deduction under this section shall be given to a qualifying individual for any year of assessment as follows—
(a) in the first instance, in respect of an amount of relevant investment carried forward from an earlier year of assessment in accordance with subsection (8) or (9), and, in respect of such an amount so carried forward, for an earlier year of assessment in priority to a later year of assessment, and
(b) only thereafter, in respect of any other amount of relevant investment in respect of which a relevant deduction is to be given in that year of assessment.
(11) (a) A claim to relief under this section may be allowed at any time after the time specified in paragraph (b) in respect of the payment of a sum to a qualifying company, which, if it is used, within 2 years of its being paid, by the qualifying company for the production of a qualifying film, will be a relevant investment, if all the conditions for relief are or will be satisfied; but the relief shall be withdrawn if, by reason of the happening of any subsequent event including the revocation by the Minister of a certificate under subsection (2) or the failure of an event to happen which at the time the relief was given was expected to happen, the company or the individual, as the case may be, making the claim was not entitled to the relief allowed.
(b) The time referred to in paragraph (a) is the time when all of the following events have occurred—
(i) the payment in respect of which relief is claimed has been made, and
(ii) in relation to the qualifying film the principal photography has commenced, the first animation drawings have commenced or the first model movement has commenced, as appropriate.
(12) A claim for relief in respect of a relevant investment in a company shall not be allowed unless it is accompanied by a certificate issued by the company in such form as the Revenue Commissioners may direct and certifying that the conditions for the relief, in so far as they apply to the company and the qualifying film, are or will be satisfied in relation to that investment.
(13) Before issuing a certificate for the purposes of subsection (12), a company shall furnish the authorised officer with—
(a) a statement to the effect that it satisfies or will satisfy the conditions for the relief in so far as they apply in relation to the company and a film,
(b) a copy of any notification required to be given to the Minister under subsection (2)(b)(iii),
(c) a copy of the certificate, including a copy of any notice given by the Minister amending, revoking or adding a condition to that certificate, under subsection (2) in respect of the film, and
(d) such other information as the Revenue Commissioners may reasonably require.
(14) A certificate to which subsection (12) relates shall not be issued without the authority of the authorised officer.
(15) Any statement under subsection (13) shall—
(a) contain such information as the Revenue Commissioners may reasonably require,
(b) be in such form as the Revenue Commissioners may direct, and
(c) contain a declaration that it is correct to the best of the company's knowledge and belief.
(16) Where a company has issued a certificate for the purposes of subsection (12) or furnished a statement under subsection (13) and either—
(a) the certificate or statement was made fraudulently or negligently, or
(b) the certificate was issued in contravention of subsection (14),
then—
(i) the company shall be liable to a penalty not exceeding £500 or, in the case of fraud, not exceeding £1,000, and such penalty may, without prejudice to any other method of recovery, be proceeded for and recovered summarily in the like manner as in summary proceedings for the recovery of any fine or penalty under any Act relating to the excise, and
(ii) no relief shall be given under this section and, if any such relief has been given, it shall be withdrawn.
(17) For the purpose of regulations made under section 986 , no regard shall be had to the relief unless a claim for it has been duly made and admitted.
(18) An allowable investor company or a qualifying individual shall not be entitled to relief in respect of a relevant investment unless the relevant investment—
(a) has been made for bona fide commercial reasons and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax,
(b) has been or will be used in the production of a qualifying film, and
(c) is made at the risk of the allowable investor company or the qualifying individual, as the case may be, and—
(i) in a case where it is made by an allowable investor company, neither the company nor any person who would be regarded as connected with the company, or
(ii) in a case where it is made by a qualifying individual, neither the individual nor any person who would be regarded as connected with the individual,
is entitled to receive any payment in money or money's worth or other benefit directly or indirectly borne by or attributable to the qualifying company, other than a payment made on an arm's length basis for goods or services supplied or a payment out of the proceeds of exploiting the film to which the allowable investor company or the qualifying individual, as the case may be, is entitled under the terms subject to which the relevant investment is made.
num: 482
paragraphs: —(1) (a) In this section—
“approved building” means a building to which subsection (5) applies;
“approved garden” means a garden (other than a garden, being land occupied or enjoyed with an approved building as part of its garden or grounds of an ornamental nature) which, on application to the Minister and the Revenue Commissioners in that behalf by a person who owns or occupies the garden, is determined—
(i) by the Minister to be a garden which is intrinsically of significant horticultural, scientific, historical, architectural or aesthetic interest, and
(ii) by the Revenue Commissioners to be a garden to which reasonable access is afforded to the public;
“approved object”, in relation to an approved building, has the meaning assigned to it by subsection (6);
“authorised person” means—
(i) an inspector or other officer of the Revenue Commissioners authorised by them in writing for the purposes of this section, or
(ii) a person authorised by the Minister in writing for the purposes of this section;
“chargeable period” has the same meaning as in section 321 (2);
“the Minister” means the Minister for Arts, Heritage, Gaeltacht and the Islands;
“public place”, in relation to an approved building in use as a tourist accommodation facility, means a part of the building to which all patrons of the facility have access;
“qualifying expenditure”, in relation to an approved building, means expenditure incurred by the person who owns or occupies the approved building on one or more of the following—
(i) the repair, maintenance or restoration of the approved building or the maintenance or restoration of any land occupied or enjoyed with the approved building as part of its garden or grounds of an ornamental nature, and
(ii) to the extent that the aggregate expenditure in a chargeable period, being the year 1997-98 and any subsequent year of assessment, or an accounting period of a company beginning on or after the 6th day of April, 1997, does not exceed £5,000—
(I) the repair, maintenance or restoration of an approved object in the approved building,
(II) the installation, maintenance or replacement of a security alarm system in the approved building, and
(III) public liability insurance for the approved building;
“relevant expenditure”, in relation to an approved garden, means—
(i) in the case of expenditure incurrred in a chargeable period, being the year 1997-98 and any subsequent year of assessment, or an accounting period of a company beginning on or after the 6th day of April, 1997, expenditure incurred by the person who owns or occupies the approved garden on one or more of the following—
(I) the maintenance or restoration of the approved garden, and
(II) to the extent that the aggregate expenditure in a chargeable period does not exceed £5,000—
(A) the repair, maintenance or restoration of an approved object in the approved garden,
(B) the installation, maintenance or replacement of a security alarm system in the approved garden, and
(C) public liability insurance for the approved garden, and
(ii) in any other case, expenditure on the maintenance or restoration of the garden;
“security alarm system” means an electrical apparatus installed as a fixture in the approved building or in the approved garden which when activated is designed to give notice to the effect that there is an intruder present or attempting to enter the approved building or the approved garden, as the case may be, in which it is installed;
“tourist accommodation facility” means an accommodation facility—
(i) registered in the register of guest houses maintained and kept by Bord FÃ¡ilte Ãireann under Part III of the Tourist Traffic Act, 1939 , or
(ii) listed in the list published or caused to be published by Bord FÃ¡ilte Ãireann under section 9 of the Tourist Traffic Act, 1957 .
(b) For the purposes of this section, expenditure shall not be regarded as having been incurred in so far as any sum in respect of or by reference to the work to which the expenditure relates has been or is to be received directly or indirectly by the person making a claim in respect of the expenditure under subsection (2) from the State, from any public or local authority, from any other person or under any contract of insurance or by means of compensation or otherwise.
(c) For the purposes of this section, references to an approved building, unless the contrary intention is expressed, shall be construed as including a reference to any land occupied or enjoyed with an approved building as part of its garden or grounds of an ornamental nature.
(2) (a) Subject to this section, where a person (in this section referred to as “the claimant”), having made a claim in that behalf, proves that the conditions specified in paragraph (b) have been met, then, the Tax Acts shall apply as if the amount of the qualifying expenditure referred to in subparagraph (i) of paragraph (b) were a loss sustained in the chargeable period referred to in that subparagraph in a trade carried on by the claimant separate from any trade actually carried on by the claimant.
(b) The conditions referred to in paragraph (a) are—
(i) that the claimant has incurred in a chargeable period qualifying expenditure in relation to an approved building,
(ii) that the claimant has on or before the 1st day of January in the chargeable period in respect of which the claim is made and in each of the chargeable periods comprising whichever is the shortest of the following periods—
(I) the period consisting of the chargeable periods since the 23rd day of May, 1994,
(II) the period consisting of the chargeable periods since a determination under subsection (5)(a)(ii) was made in relation to the building,
(III) the period consisting of the chargeable periods since the approved building was purchased or occupied by the claimant,
(IV) the period consisting of the 5 chargeable periods immediately preceding the chargeable period for which the claim is made,
provided Bord FÃ¡ilte Ãireann (in this paragraph referred to as “the Board”) with particulars of—
(A) the name, if any, and address of the approved building, and
(B) the days and times during the year when access to the approved building is afforded to the public or the period or periods during the year when the approved building is in use as a tourist accommodation facility, as the case may be,
such particulars being provided to the Board on the understanding by the person and the Board that they may be published by the Board or by another body concerned with the promotion of tourism, and
(iii) where the approved building was in use as a tourist accommodation facility in any of the chargeable periods applicable for the purposes of subparagraph (ii), that the approved building was registered in the register of guest houses maintained and kept by the Board under Part III of the Tourist Traffic Act, 1939 , or listed in the list published or caused to be published by the Board under section 9 of the Tourist Traffic Act, 1957 , in those chargeable periods.
(c) Relief authorised by this subsection shall not apply for any chargeable period before the chargeable period in which the application concerned is made to the Revenue Commissioners under subsection (5)(a).
(3) (a) Where—
(i) by virtue of subsection (2), qualifying expenditure in a chargeable period is treated as if it were a loss sustained in the chargeable period in a trade carried on by the person separate from any trade actually carried on by that person, and
(ii) owing to an insufficiency of income, relief under the Tax Acts cannot be given for any part of the qualifying expenditure so treated (in this subsection referred to as “the unrelieved amount”),
then, the Tax Acts shall apply as if the unrelieved amount were a loss sustained in the following chargeable period in a trade carried on by the person separate from any trade actually carried on by that person.
(b) Where owing to an insufficiency of income relief under the Tax Acts cannot be given by virtue of paragraph (a) for any part of the unrelieved amount, then, the Tax Acts shall apply as if that part of the unrelieved amount were a loss sustained in the chargeable period following the period referred to in paragraph (a) in a trade carried on by the person separate from any trade actually carried on by that person.
(c) Where in any chargeable period relief under the Tax Acts is due by virtue of 2 or more of the following provisions, that is, subsection (2) and paragraphs (a) and (b), then, the following provisions shall apply:
(i) any relief due under those Acts by virtue of paragraph (b) shall be given in priority to any relief due under those Acts by virtue of subsection (2) or paragraph (a), and
(ii) where relief has been given in accordance with subparagraph (i) or where no such relief is due, any relief due under those Acts by virtue of paragraph (a) shall be given in priority to relief due under those Acts by virtue of subsection (2).
(4) No relief shall be allowed under this section for expenditure in respect of which relief may be claimed under any other provision of the Tax Acts.
(5) (a) This subsection shall apply to a building in the State which, on application to the Minister and the Revenue Commissioners in that behalf by a person who owns or occupies the building, is determined—
(i) by the Minister to be a building which is intrinsically of significant scientific, historical, architectural or aesthetic interest, and
(ii) by the Revenue Commissioners to be a building either—
(I) to which reasonable access is afforded to the public, or
(II) which is in use as a tourist accommodation facility for at least 6 months in any calendar year (in this subsection referred to as “the required period”) including not less than 4 months in the period commencing on the 1st day of May and ending on the 30th day of September in any such year.
(b) Without prejudice to the generality of the requirement that reasonable access be afforded to the public, access to a building shall not be regarded as being reasonable access afforded to the public unless—
(i) access to the whole or a substantial part of the building is afforded at the same time,
(ii) subject to temporary closure necessary for the purposes of the repair, maintenance or restoration of the building, access is so afforded for not less than 60 days (including not less than 40 days during the period commencing on the 1st day of May and ending on the 30th day of September) in any year and on each such day access is afforded in a reasonable manner and at reasonable times for a period, or periods in the aggregate, of not less than 4 hours, and
(iii) the price, if any, paid by the public in return for that access is in the opinion of the Revenue Commissioners reasonable in amount and does not operate to preclude the public from seeking access to the building.
(c) Where under paragraph (a) the Minister makes a determination in relation to a building and, by reason of any alteration made to the building or any deterioration of the building subsequent to the determination being made, the Minister considers that the building is no longer a building which is intrinsically of significant scientific, historical, architectural or aesthetic interest, the Minister may, by notice in writing given to the owner or occupier of the building, revoke the determination with effect from the date on which the Minister considers that the building ceased to be a building which is intrinsically of significant scientific, historical, architectural or aesthetic interest, and this subsection shall cease to apply to the building from that date.
(d) Where under paragraph (a) the Revenue Commissioners make a determination in relation to a building, and reasonable access to the building ceases to be afforded to the public or the building ceases to be used as a tourist accommodation facility for the required period, as the case may be, the Revenue Commissioners may, by notice in writing given to the owner or occupier of the building, revoke the determination with effect from the date on which they consider that such access or such use, as the case may be, so ceased, and—
(i) this subsection shall cease to apply to the building from that date, and
(ii) if relief has been given under this section in respect of qualifying expenditure incurred in relation to that building in the period of 5 years ending on the date from which the revocation has effect, that relief shall be withdrawn and there shall be made all such assessments or additional assessments as are necessary to give effect to this subsection.
(e) Where—
(i) the Revenue Commissioners make a determination (in this paragraph referred to as the “first-mentioned determination”) that a building is either a building to which reasonable access is afforded to the public or a building which is in use as a tourist accommodation facility for the required period,
(ii) such access ceases to be so afforded or such building ceases to be so used, as the case may be, in a chargeable period subsequent to the chargeable period in which the first-mentioned determination was made, and
(iii) on application to them in that chargeable period in that behalf by the person who owns or occupies the building, the Revenue Commissioners revoke the first-mentioned determination and make a further determination (in this paragraph referred to as the “second-mentioned determination”) with effect from the date of revocation of the first-mentioned determination—
(I) in the case of a building in respect of which a determination was made that it is a building to which reasonable access is afforded to the public, that the building is a building which is in use as a tourist accommodation facility for the required period, or
(II) in the case of a building in respect of which a determination was made that it is a building which is in use as a tourist accommodation facility for the required period, that the building is a building to which reasonable access is afforded to the public,
then, paragraph (d) shall not apply on the revocation of the first-mentioned determination and for the purposes of that paragraph the second-mentioned determination shall be treated as having been made at the time of the making of the first-mentioned determination.
(6) (a) In this subsection, “approved object”, in relation to an approved building, means an object (including a picture, sculpture, print, book, manuscript, piece of jewellery, furniture, or other similar object) or a scientific collection which is owned by the owner or occupier of the approved building and which, on application to them in that behalf by that person, is determined—
(i) by the Minister, after consideration of any evidence in relation to the matter which such owner or occupier submits to the Minister and after such consultation (if any) as may seem to the Minister to be necessary with such person or body of persons as in the opinion of the Minister may be of assistance to the Minister, to be an object which is intrinsically of significant national, scientific, historical or aesthetic interest, and
(ii) by the Revenue Commissioners, to be an object reasonable access to which is afforded, and in respect of which reasonable facilities for viewing are provided, in the building to the public.
(b) Without prejudice to the generality of the requirement that reasonable access be afforded, and that reasonable facilities for viewing be provided, to the public, access to and facilities for the viewing of an object shall not be regarded as being reasonable access afforded, or the provision of reasonable facilities for viewing, to the public unless, subject to such temporary removal as is necessary for the purposes of the repair, maintenance or restoration of the object as is reasonable—
(i) in a case where the approved building is a tourist accommodation facility, the object is displayed in a public place in the building, or
(ii) in the case of any other approved building—
(I) access to the object is afforded and such facilities for viewing the object are provided to the public on the same days and at the same times as access is afforded to the public to the approved building in which the object is kept, and
(II) the price, if any, paid by the public in return for such access is in the opinion of the Revenue Commissioners reasonable in amount and does not operate to preclude the public from seeking access to the object.
(c) Where under paragraph (a) the Minister makes a determination in relation to an object and, by reason of any alteration made to the object, or any deterioration of the object, subsequent to the determination being made, the Minister considers that the object is no longer an object which is intrinsically of significant national, scientific, historical or aesthetic interest, the Minister may, by notice in writing given to the owner or occupier of the building, revoke the determination with effect from the date on which the Minister considers that the object ceased to be an object which is intrinsically of significant national, scientific, historical or aesthetic interest, and this subsection shall cease to apply to the object from that date.
(d) Where under paragraph (a) the Revenue Commissioners make a determination in relation to an object and—
(i) reasonable access to the object ceases to be afforded, or reasonable facilities for the viewing of the object cease to be provided, to the public, or
(ii) the object ceases to be owned by the person to whom relief in respect of that qualifying expenditure has been granted under this section,
the Revenue Commissioners may, by notice in writing given to the owner or occupier of the approved building in which the object is or was kept, revoke that determination with effect from the date on which they consider that such access, such facilities for viewing or such ownership, as the case may be, so ceased, and—
(I) this subsection shall cease to apply to the object from that date, and
(II) if relief has been given under this section in respect of qualifying expenditure incurred in relation to that object in the period of 2 years ending on the date from which the revocation has effect, that relief shall be withdrawn and there shall be made all such assessments or additional assessments as are necessary to give effect to this subsection.
(7) (a) Where a person makes a claim under subsection (2), an authorised person may at any reasonable time enter the building in respect of which the qualifying expenditure has been incurred for the purpose of inspecting, as the case may be, the building or an object or of examining any work in respect of which the expenditure to which the claim relates was incurred.
(b) Whenever an authorised person exercises any power conferred on him or her by this subsection, the authorised person shall on request produce his or her authorisation for the purposes of this section to any person concerned.
(c) Any person who obstructs or interferes with an authorised person in the course of exercising a power conferred on the authorised person by this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.
(8) Notwithstanding that the Revenue Commissioners have before the 23rd day of May, 1994, made a determination in accordance with subsection (5)(a)(ii) that a building is a building to which reasonable access is afforded to the public, relief under subsection (2), in relation to qualifying expenditure incurred in a chargeable period beginning on or after the 1st day of January, 1995, in respect of the building shall not be given unless the person who owns or occupies the building satisfies the Revenue Commissioners on or before the 1st day of January in the chargeable period that it is a building to which reasonable access is afforded to the public having regard to subsection (5)(b)(ii).
(9) In respect of relevant expenditure incurred on or after the 6th day of April, 1993, this section shall, with any necessary modifications, apply in relation to an approved garden as it applies in relation to qualifying expenditure incurred in relation to an approved building.
(10) Any claim for relief under this section—
(a) shall be made in such form as the Revenue Commissioners may from time to time prescribe, and
(b) shall be accompanied by such statements in writing as regards the expenditure for which relief is claimed, including statements by persons to whom payments were made, as may be indicated by the prescribed form.
num: 483
paragraphs: —(1) (a) In this subsection, “public moneys” means moneys charged on or issued out of the Central Fund or provided by the Oireachtas.
(b) This section shall apply to a gift of money made to the Minister for Finance for use for any purpose for or towards the cost of which public moneys are provided and which is accepted by that Minister.
(2) Where a person who has made a gift to which this section applies claims relief from income tax or corporation tax by reference to the gift, subsection (3) or, as the case may be, subsection (4) shall apply.
(3) For the purposes of income tax for the year of assessment in which the person makes the gift, the amount of the gift shall be deducted from or set off against any income of the person chargeable to income tax for that year and income tax shall, where necessary, be discharged or repaid accordingly, and the total income of the person or, where the person is a married person whose income is deemed to be the income of his or her spouse, the total income of his or her spouse shall be calculated accordingly.
(4) For the purposes of corporation tax, where the person making the gift is a company, the amount of the gift shall be deemed to be a loss incurred by the company in a separate trade in the accounting period in which the gift is made.
num: 484
paragraphs: —(1) In this section—
“approved body” means any body or institution in the State which may be approved of for the purposes of this section by the Minister for Finance and which—
(a) provides in the State any course one of the conditions of entry to which is related to the results of the Leaving Certificate Examination, a matriculation examination of a recognised university in the State or an equivalent examination held outside the State, or
(b) (i) is established on a permanent basis solely for the advancement wholly or mainly in the State of one or more approved subjects,
(ii) contributes to the advancement of that subject or those subjects on a national or regional basis, and
(iii) is prohibited by its constitution from distributing to its members any of its assets or profits;
“approved subject” means—
(a) the practice of architecture,
(b) the practice of art and design,
(c) the practice of music and musical composition,
(d) the practice of theatre arts,
(e) the practice of film arts, or
(f) any other subject approved of for the purpose of this section by the Minister for Finance.
(2) This section shall apply to a gift of money which—
(a) is made to an approved body for the purpose of assisting that body to promote the advancement in the State of any approved subject,
(b) is applied by the approved body for that purpose, and
(c) is not deductible in computing for the purposes of tax the profits or gains of a trade or profession or is not income to which section 792 applies.
(3) (a) Where a person proves to have made a gift to which this section applies and claims relief from tax by reference to the gift, subsection (4) or, as the case may be, subsection (5) shall apply.
(b) In determining the net amount of the gift for the purposes of subsection (4) or (5), the amount or value of any consideration received by the person as a result of making the gift, whether received directly or indirectly from the approved body to which the gift was made or otherwise, shall be deducted from the amount of the gift.
(4) (a) For the purposes of income tax for the year of assessment in which a person makes a gift to which this section applies, the net amount of the gift shall, subject to subsection (5), be deducted from or set off against any income of the person chargeable to income tax for that year and tax shall where necessary be discharged or repaid accordingly, and the total income of the person or, where the person is a married person whose spouse is assessed to income tax in accordance with section 1017 , the total income of the spouse shall be calculated accordingly.
(b) Notwithstanding paragraph (a), relief under this section shall not be given to a person for a year of assessment—
(i) if the net amount of the gift (or the aggregate of the net amounts of gifts) made by the person in that year, being a gift or gifts, as the case may be, to which this section applies, does not exceed £100, or
(ii) to the extent to which the net amount of the gift (or the aggregate of the net amounts of gifts) made by the person in that year, being a gift or gifts, as the case may be, to which this section applies, exceeds £10,000.
(5) Where a gift to which this section applies is made by a company—
(a) the net amount of the gift shall for the purposes of corporation tax be deemed to be a loss incurred by the company in a separate trade in the accounting period of the company in which the gift is made, and
(b) the references in subsection (4)(b) to a year of assessment shall be construed as references to an accounting period of the company.
(6) (a) The Minister for Finance may, by notice in writing given to the body or institution, as the case may be, withdraw the approval of any body or institution for the purposes of this section, and on the giving of the notice the body or institution shall cease to be an approved body as respects any gifts made after the date of the notice referred to in paragraph (b).
(b) Where the Minister for Finance withdraws the approval of any body or institution for the purposes of this section, notice of its withdrawal shall be published as soon as may be in Iris OifigiÃºil.
num: 485
paragraphs: —(1) In this section—
“approved institution” means an institution in the State in receipt of public funding which provides courses to which a scheme approved by the Minister under the Local Authorities (Higher Education Grants) Acts, 1968 to 1992, applies, or any body established in the State for the sole purpose of raising funds for such an institution;
“approved project” means a project in respect of which the Minister has given a certificate under subsection (2) which certificate has not been revoked under that subsection;
“project” means one or more of the following—
(a) the undertaking of research,
(b) the acquisition of equipment,
(c) infrastructural development in institutions specified in the guidelines referred to in subsection (2)(a)(i), and
(d) the provision of facilities designed to increase student numbers in areas of skills needs;
“Minister” means the Minister for Education and Science;
“relevant gift” means a gift of money which—
(a) on or after the 6th day of April, 1997, is made to an approved institution for the sole purpose of funding an approved project,
(b) is or will be applied by the approved institution for that purpose, and
(c) apart from this section is not deductible in computing for the purposes of tax the profits or gains of a trade or profession, or is not income to which section 792 applies or is not a gift of money to which section 484 applies.
(2) (a) (i) The Minister, on the making of an application by an approved institution, may, in accordance with guidelines laid down by the Minister with the consent of the Minister for Finance, give a certificate to that institution stating that a project may be treated as an approved project for the purposes of this section.
(ii) An application under this subsection shall be in such form as the Minister may direct and shall contain such information as may be specified in the guidelines referred to in subparagraph (i).
(iii) The Minister shall consult the Higher Education Authority in relation to an application under this subsection.
(b) (i) A certificate given by the Minister under paragraph (a) shall be subject to such conditions as the Minister may consider proper and specifies in the certificate (including a condition as to the amount or the percentage amount of the total cost of the approved project which shall be met by relevant gifts).
(ii) The Minister may amend or revoke any condition specified in a certificate given under paragraph (a), or add to such conditions, by giving notice in writing to the approved institution of the amendment, revocation or addition, and this section shall apply as if—
(I) a condition so amended or added by the notice was specified in the certificate, and
(II) a condition so revoked was not specified in the notice.
(c) Where an approved institution fails to comply with any of the conditions to which a certificate given to it under paragraph (a) is subject by virtue of paragraph (b), the Minister may, by notice in writing given to the institution, revoke the certificate and the project shall cease to be an approved project as respects any gifts made to the institution after the date of the Minister's notice.
(3) Where it is proved to the satisfaction of the Revenue Commissioners that a person has made a relevant gift and the person claims relief from tax by reference to that gift, subsection (6) or, as the case may be, subsection (7) shall apply.
(4) Where a relevant gift is made by a chargeable person within the meaning of Part 41 , a claim under this section shall be made with the return required to be delivered by that person under section 951 for the chargeable period in which the gift is made.
(5) In determining the net amount of the gift for the purposes of subsection (6) or (7), the amount or value of any consideration received by the person concerned as a result of making the gift, whether received directly or indirectly from the approved institution to which the gift was made or otherwise, shall be deducted from the amount of the gift.
(6) For the purposes of income tax for the year of assessment in which a person makes a gift to which this section applies, the net amount of the gift shall be deducted from or set off against any income of the person chargeable to income tax for that year and tax shall where necessary be discharged or repaid accordingly, and the total income of the person or, where the person's spouse is assessed to income tax in accordance with section 1017 , the total income of the spouse shall be calculated accordingly.
(7) Where a relevant gift is made by a company, the net amount of the gift shall for the purposes of corporation tax be deemed to be a loss incurred by the company in a separate trade in the accounting period of the company in which the gift is made.
(8) Relief under this section shall not be given to a person for any year of assessment or accounting period, as the case may be, if the net amount of the gift (or the aggregate of the net amounts of gifts) made by such person in that year or accounting period, as the case may be, is less than £1,000.
(9) Every approved institution, when required to do so by notice from the Minister, shall within the time limited by the notice prepare and deliver to the Minister a return containing particulars of the aggregate amount of relevant gifts received by the institution in respect of each approved project.
(10) Where any question arises as to whether for the purposes of this section—
(a) an institution is an approved institution,
(b) a project is an approved project, or
(c) a gift is a relevant gift,
the Revenue Commissioners may consult with the Minister.
(11) For the purposes of a claim to relief under this section, an approved institution shall, on acceptance of a relevant gift, give to the person making the relevant gift a receipt which shall—
(a) contain a statement that—
(i) it is a receipt for the purposes of this section,
(ii) the institution is an approved institution for the purposes of this section,
(iii) the gift in respect of which the receipt is given is a relevant gift for the purposes of this section, and
(iv) the project in respect of which the relevant gift has been made is an approved project,
(b) show—
(i) the name and address of the person making the relevant gift,
(ii) the amount of the relevant gift in both figures and words,
(iii) the date of the relevant gift,
(iv) the full name of the approved institution,
(v) the date on which the receipt was issued, and
(vi) particulars of the approved project in respect of which the relevant gift has been made,
and
(c) be signed by a duly authorised official of the approved institution.
num: 486
paragraphs: —(1) In this section, “First Step” means the company incorporated under the Companies Acts, 1963 to 1990, on the 20th day of September, 1990, as First Step Limited.
(2) This section shall apply to a gift of money which—
(a) before the 1st day of January, 2000, is made to First Step,
(b) is applied by First Step solely for the objects for which it was incorporated, and
(c) is not deductible in computing for the purposes of corporation tax the profits or gains of a trade or profession or is not income to which section 792 applies.
(3) Where a company makes a gift to which this section applies and claims relief from tax by reference to the gift, the net amount of the gift shall for the purposes of corporation tax be deemed to be a loss incurred by the company in a separate trade in the accounting period of the company in which the gift is made.
(4) (a) In determining the net amount of the gift for the purposes of this section, the amount or value of any consideration received by the company as a result of making the gift, whether received directly or indirectly from First Step or any other person, shall be deducted from the amount of the gift.
(b) Relief under this section shall not be given to a company for an accounting period—
(i) if the net amount of the gift (or the aggregate of the net amounts of gifts) made by the company in that accounting period, being a gift or gifts, as the case may be, to which this section applies, does not exceed £500,
(ii) to the extent to which the net amount of the gift (or the aggregate of the net amounts of gifts) made by the company in that accounting period, being a gift or gifts, as the case may be, to which this section applies, exceeds £100,000,
(iii) in respect of a gift made at any time in the year ended on the 31st day of May in the year 1996, 1997, 1998 or 1999, if at that time the aggregate of the net amounts of all gifts to which this section applies made to First Step within that year exceeds £1,500,000, or
(iv) in respect of a gift made at any time in the period commencing on the 1st day of June, 1999, and ending on the 31st day of December, 1999, if at that time the aggregate of the net amounts of all gifts to which this section applies made to First Step within that period exceeds £875,000.
(5) A claim under this section shall be made with the return required to be delivered under section 951 for the accounting period in which the gift is made.
(6) Where a company makes a gift in respect of which relief is not to be given by virtue of subparagraph (iii) or (iv) of subsection (4)(b), First Step shall, by notice in writing given to the company within 30 days of the making of the gift, advise the company accordingly.
(7) Where a gift to which this section applies is made by a company in an accounting period of the company which is less than 12 months, the amounts specified in subparagraphs (i) and (ii) of subsection (4)(b) shall be proportionately reduced.
num: 487
paragraphs: —(1) (a) In this section—
“accounting profit” means the amount of profit, after taxation and before extraordinary items—
(i) shown in the profit and loss account—
(I) in the case of a company resident in the State, which is required under section 148 of the Companies Act, 1963 , to be laid before the annual general meeting of the company, or which would be so shown but for subsection (4) of section 149 of that Act, and
(II) in the case of a company not resident in the State and carrying on a trade in the State through a branch or agency, of that branch or agency and which is certified by the auditor appointed under section 160 of the Companies Act, 1963 , or under the law of the state in which the company is incorporated and which corresponds to that section, as presenting a true and fair view of the profit or loss attributable to that branch or agency,
(ii) reduced by the amount of such profit as is attributable to—
(I) dividends received from companies resident in the State which are members of the group of which that company is a member,
(II) gains on disposal of capital assets,
(III) relevant trading operations within the meaning of section 446 ,
(IV) trading operations carried on outside of the State and in respect of which the company is chargeable to corporation tax in the State and to tax on income in another state, and
(V) dividends received from companies not resident in the State,
and
(iii) increased—
(I) as respects income from sources specified in subparagraphs (III), (IV) and (V) of paragraph (ii), by an amount determined by the formula—
100
____
R
× T
where—
T is the corporation tax chargeable in respect of that income computed in accordance with the provisions of the Corporation Tax Acts and after allowing relief under Parts 14 and 35 , and
R is the rate of corporation tax for the accounting period concerned and to which section 21 relates, but where part of the accounting period falls in one financial year and the other part falls in the financial year succeeding the first-mentioned financial year, R shall be determined by applying the formula specified in section 78 (3)(b), and
(II) by the amount of stamp duty charged under section 64 of the Finance Act, 1989 , section 108 of the Finance Act, 1990 , section 200 of the Finance Act, 1992 , or section 142 of the Finance Act, 1995 , and under section 94 of the Finance Act, 1986 , as has been taken into account in computing that amount of profit, after taxation and before extraordinary items;
“adjusted group base tax”, in relation to a relevant period, means—
(i) an amount determined by the formula—
T × P
_____
B
where—
T is the group base tax,
P is the group profit of the relevant period, and
B is the group base profit,
or
(ii) if it is greater, the group advance corporation tax of the relevant period;
“advance corporation tax”, in relation to a relevant period, means the aggregate of the amounts of advance corporation tax paid or treated as paid by a company, and not repaid, under Chapter 8 of Part 6 , in respect of distributions made in accounting periods falling wholly or partly within the relevant period and, where an accounting period falls partly within a relevant period, the aggregate shall include a part of the advance corporation tax so paid proportionate to the part of the accounting period falling within the relevant period;
“base profit”, in relation to a company, means 50 per cent of the aggregate of the amounts of accounting profit of a company for accounting periods falling wholly or partly in the period beginning on the 1st day of April, 1989, and ending on the 31st day of March, 1991, and, where an accounting period falls partly within that period, the aggregate shall include a part of the accounting profit of the accounting period proportionate to the part of the accounting period falling within that period;
“base tax” means 50 per cent of the aggregate of the corporation tax chargeable on a company, exclusive of the corporation tax on the part of the company's profits attributable to chargeable gains and before the set-off of advance corporation tax under Chapter 8 of Part 6 , for accounting periods falling wholly or partly in the period beginning on the 1st day of April, 1989, and ending on the 31st day of March, 1991, and, where an accounting period falls partly within that period, the aggregate shall include a part of the corporation tax so chargeable for the accounting period proportionate to the part of the accounting period falling within that period;
“group advance corporation tax”, in relation to a relevant period, means the aggregate of the amounts of advance corporation tax in relation to the relevant period of companies which throughout the relevant period are members of the group;
“group base profit” means the aggregate of the amounts of base profit of companies which throughout the relevant period are members of the group;
“group base tax” means the aggregate of the amounts of base tax of companies which throughout the relevant period are members of the group, but where the amount of the group base tax is an amount which is—
(i) greater than 43 per cent, or
(ii) lower than 10 per cent,
of the group base profit, computed in accordance with this section but without regard to subparagraphs (III), (IV) and (V) of paragraph (ii), or subparagraph (I) of paragraph (iii), of the definition of “accounting profit”, the group base tax shall be deemed to be an amount equal to 25 per cent of the group base profit as so computed;
“group profit”, in relation to a relevant period, means the aggregate of the amounts of profit of the relevant period of companies which throughout that period are members of the group;
“group tax liability”, in relation to a relevant period, means the aggregate of the amounts of tax liability of the relevant period of companies which through out that period are members of the group;
“levy payment” means the aggregate of the amounts charged in the year 1992 or in any later year under section 200 of the Finance Act, 1992 , or section 142 of the Finance Act, 1995 , and which have been paid, on or before the date by which the amounts are payable, by companies which are members of a group;
“profit”, in relation to a relevant period, means the aggregate of the accounting profit, computed on the same basis as that on which the base profit of the company is computed, of a company for accounting periods falling wholly or partly within the relevant period, and, where an accounting period falls partly within a relevant period, the aggregate shall include a part of the accounting profit of the accounting period proportionate to the part of the accounting period falling within that relevant period;
“relevant period”, in relation to a levy payment, means a period beginning on the 1st day of April preceding the date on or before which the levy payment is to be made and ending on the 31st day of March next after that date;
“tax liability”, in relation to a relevant period, means the aggregate of the corporation tax which apart from this section would be chargeable on a company, exclusive of the corporation tax on the part of the company's profits attributable to chargeable gains and before the set-off of advance corporation tax under Chapter 8 of Part 6 , for accounting periods falling wholly or partly within the relevant period and, where an accounting period falls partly within that period, the aggregate shall include a part of the corporation tax so chargeable for the accounting period proportionate to the part of the accounting period falling within that period.
(b) For the purposes of this section—
(i) 2 companies shall be deemed to be members of a group if one company is a 75 per cent subsidiary of the other company or both companies are 75 per cent subsidiaries of a third company; but—
(I) in determining whether one company is a 75 per cent subsidiary of another company, the other company shall be treated as not being the owner of—
(A) any share capital which it owns directly in a company if a profit on a sale of the shares would be treated as a trading receipt of its trade, or
(B) any share capital which it owns indirectly, and which is owned directly by a company for which a profit on a sale of the shares would be a trading receipt,
and
(II) a company which is an assurance company within the meaning of section 706 shall not be a member of a group,
(ii) sections 412 to 418 shall apply for the purposes of this paragraph as they apply for the purposes of Chapter 5 of Part 12 ,
(iii) a company and all its 75 per cent subsidiaries shall form a group and, where that company is a member of a group as being itself a 75 per cent subsidiary, that group shall comprise all its 75 per cent subsidiaries and the first-mentioned group shall be deemed not to be a group; but a company which is not a member of a group shall be treated as if it were a member of a group which consists of that company, and accordingly references to group advance corporation tax, group base profit, group base tax, group profit and group tax liability shall be construed as if they were respectively references to advance corporation tax, base profit, base tax, profit and tax liability of that company,
(iv) the part of a company's profits attributable to chargeable gains for an accounting period shall be taken to be the amount brought into the company's profits for that period for the purposes of corporation tax in respect of chargeable gains before any deduction for charges on income, expenses of management or other amounts which can be deducted from or set against or treated as reducing profits of more than one description,
(v) the income or profit attributable to any trading operations or dividends shall be such amount of the income or profit as appears to the inspector or on appeal to the Appeal Commissioners to be just and reasonable, and
(vi) corporation tax chargeable in respect of any income shall be the corporation tax which would not have been chargeable but for that income.
(2) Where for a relevant period in relation to a levy payment the group tax liability exceeds the adjusted group base tax of that relevant period, all or part of the levy payment, not being greater than the excess of the group tax liability over the adjusted group base tax, may be set against the group tax liability of the relevant period in accordance with this section.
(3) (a) In this subsection, “appropriate inspector” has the same meaning as in section 950 .
(b) Where under subsection (2) an amount of levy payment may be set against the group tax liability of a relevant period, so much (in this paragraph referred to as “the apportionable part”) of the amount as bears to that amount the same proportion as the tax liability of the relevant period of a company which is a member of the group bears to the group tax liability of the relevant period shall be apportioned to the company, and the companies which are members of the group may, by giving notice in writing to the appropriate inspector within a period of 9 months after the end of the relevant period, elect to have the apportionable part apportioned in such manner as is specified in the notice.
(4) Where an amount is apportioned to a company under subsection (3), that amount shall be set against the tax liability of the relevant period of the company and, to the extent that an amount is so set off, it shall be treated for the purposes of the Corporation Tax Acts as if it were a payment of corporation tax made on the day on which that corporation tax is to be paid; but an amount or part of an amount which is to be treated as if it were a payment of corporation tax may not be repaid to a company by virtue of a claim to relief under the Corporation Tax Acts or for any other reason.
(5) Where under subsection (4) an amount is to be set against the tax liability of a relevant period of a company and the tax liability of the relevant period consists of the aggregate of corporation tax chargeable for more accounting periods than one, the amount shall be set against the corporation tax of each of those accounting periods in the proportion which the corporation tax of the accounting period or the part of the accounting period, as the case may be, and which is included in the tax liability of the relevant period bears to the tax liability of the relevant period.
(6) Where—
(a) the end of an accounting period (in this subsection referred to as “the first-mentioned accounting period”) of a company which is a member of a group does not coincide with the end of the relevant period,
(b) the tax liability of—
(i) one or more accounting periods of the company ending after the end of the first-mentioned accounting period, or
(ii) one or more accounting periods of any other member of the group ending after the end of the first-mentioned accounting period,
is to be taken into account in determining the amount of the levy payment which may be set off under this section against the corporation tax of—
(I) the first-mentioned accounting period, or one or more accounting periods ending before the end of that period, of the company, or
(II) one or more accounting periods of any other member of the group ending on or before the end of the first-mentioned accounting period,
and
(c) on the specified return date (within the meaning of section 950 ) it is not possible—
(i) for the first-mentioned accounting period, or any other accounting period ending before the end of that period, of the company, or
(ii) for one or more accounting periods of any other member of the group ending on or before the end of the first-mentioned accounting period,
to determine the amount of the levy payment which may be so set off,
then, the amount of levy payment which may be set off under this section against the corporation tax of an accounting period shall be taken to be the amount which would have been so set off if a period of 12 months ending on the last day of the most recent accounting period of the parent company (being a member of the group which is not a subsidiary of any other member of the group) which ends in the relevant period were the relevant period; but, where a part only of that period of 12 months falls after the 31st day of March, 1992, the amount to be set off under this subsection shall be reduced to an amount proportionate to the part of that period of 12 months falling after that day.
(7) (a) A company shall deliver, as soon as they become available, such particulars as are required to determine the amount of levy payment which apart from subsection (6)is to be set off against the corporation tax of an accounting period.
(b) Where an amount of levy payment has been set off against corporation tax of an accounting period under subsection (6) and the company delivers such particulars as are required to be delivered in accordance with paragraph (a), the inspector shall adjust any computation or assessment by reference to the difference between these amounts and any amount of corporation tax overpaid shall be repaid and any amount of corporation tax underpaid shall be paid.
(8) (a) An amount of tax to be repaid under subsection (7) shall be repaid with interest in all respects as if it were a repayment of preliminary tax under section 953 (7).
(b) Interest shall not be charged under section 1080 on any amount of tax underpaid under this subsection unless the amount is not paid within one month of the date on which the amount of the underpayment is notified to the chargeable person by the inspector, and the amount of tax so unpaid shall not be treated as part of the tax payable for the chargeable period for the purposes of section 958 (4)(b).
num: 488
paragraphs: —(1) In this Part—
“advance factory building” means a factory building the construction of which is—
(a) promoted by a local community group the objective of which, or one of the main objectives of which, is to promote the development of, and the creation of opportunities for employment in, its locality, and
(b) undertaken without any prior commitment, either direct or indirect, in writing or otherwise, by a person that either the person or any other person will enter into a lease for its use;
“associate” has the same meaning in relation to a person as it has by virtue of subsection (3) of section 433 in relation to a participator, except that the reference in paragraph (b) of that subsection to any relative of a participator shall be excluded from such meaning;
“certifying agency” means an industrial development agency, Bord FÃ¡ilte Ãireann, An Bord Iascaigh Mhara or An Bord TrÃ¡chtÃ¡la— The Irish Trade Board (as may be appropriate);
“certifying Minister” means the Minister for Agriculture and Food, the Minister for Arts, Heritage, Gaeltacht and the Islands or the Minister for the Marine and Natural Resources (as may be appropriate);
“control”, except in sections 493 (7) and 507 (2)(b), shall be construed in accordance with subsections (2) to (6) of section 432 ;
“debenture” has the same meaning as in section 2 of the Companies Act, 1963 ;
“director” shall be construed in accordance with section 433 (4);
“eligible shares” means new ordinary shares which, throughout the period of 5 years beginning on the date on which they are issued, carry no present or future preferential right to dividends or to a company's assets on its winding up and no present or future preferential right to be redeemed;
“factory building” has the same meaning as in section 2 of the Industrial Development Act, 1986 ;
“full-time employee” and “full-time director” have the same meanings respectively as in section 250 ;
“industrial development agency” means Forbairt, the Industrial Development Agency (Ireland), the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta (as may be appropriate);
“market value” shall be construed in accordance with section 548 ;
“ordinary shares” means shares forming part of a company's ordinary share capital;
“qualifying company” has the meaning assigned to it by section 495 ;
“qualifying trading operations” has the meaning assigned to it by section 496 (2);
“relevant employment”, in relation to a specified individual, means employment throughout the relevant period by the company in which the specified individual makes a relevant investment (being that individual's first such investment in that company) and where the specified individual is a full-time employee or full-time director of the company;
“relevant investment”, in relation to a specified individual, means the amount or the aggregate of the amounts subscribed in a year of assessment by the specified individual for eligible shares in a qualifying company which carries on or intends to carry on relevant trading operations;
“relevant period”, in relation to relief in respect of any eligible shares issued by a company, means—
(a) as respects sections 493 and 498 to 501 , the period beginning on the incorporation of the company (or, if the company was incorporated more than 2 years before the date on which the shares were issued, beginning 2 years before that date) and ending 5 years after the issue of the shares,
(b) as respects sections 495 , 496 , 503 and 507 , the period beginning on the date on which the shares were issued and ending either 3 years after that date or, where the company was not at that date carrying on a qualifying trade, 3 years after the date on which it subsequently began to carry on such a trade,
(c) as respects a relevant employment, the period beginning on the date on which the shares are issued or, if later, the date on which the employment commences and ending 12 months after that date, and
(d) as respects a specified individual, the period beginning on the date on which the shares are issued and ending either 2 years after that date or, where the company was not at that date carrying on relevant trading operations, 2 years after the date on which it subsequently began to carry on such operations;
“relevant trading operations” has the meaning assigned to it by section 497 ;
“specified individual” has the meaning assigned to it by section 494 ;
“the relief” and “relief” mean relief under section 489 , and references to the amount of the relief shall be construed in accordance with subsection (6) of that section;
“unquoted company” means a company none of whose shares, stocks or debentures are—
(a) listed in the official list of a stock exchange, or
(b) quoted on an unlisted securities market of a stock exchange other than on the market known as the Developing Companies Market of the Irish Stock Exchange.
(2) References in this Part to a disposal of shares include references to a disposal of an interest or right in or over the shares, and an individual shall be treated for the purposes of this Part as disposing of any shares which the individual is treated by virtue of section 587 as exchanging for other shares.
(3) References in this Part to the reduction of any amount include references to its reduction to nil.
(4) References in this Part to a trade shall be construed—
(a) without regard to so much of the definition of “trade” in section 3 as relates to adventures or concerns in the nature of trade, and
(b) as including—
(i) the construction and leasing of an advance factory building,
(ii) the research and development or other similar activity referred to in section 496 (2)(a)(x), and
(iii) the production, publication, marketing and promotion of a qualifying recording or qualifying recordings referred to in section 496 (2)(a)(xii);
but for the other purposes of the Tax Acts the question of whether a trade is being carried on shall be determined without regard to this subsection.
num: 489
paragraphs: —(1) This Part shall apply for affording relief from income tax where, subject to subsection (2)—
(a) an individual who qualifies for the relief subscribes for eligible shares in a qualifying company,
(b) those shares are issued to the individual for the purpose of raising money for a qualifying trade being carried on by the company or which the company intends to carry on, and
(c) the company provides satisfactory evidence, and it appears to the Revenue Commissioners after such consultation, if any, as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, that the money was used, is being used or is intended to be used—
(i) for the purposes of—
(I) enabling the company, or enlarging its capacity, to undertake qualifying trading operations,
(II) enabling the company to engage in, or assisting the company in—
(A) research and development,
(B) the acquisition of technological information and data,
(C) the development of new or existing products or services, or
(D) the provision of new products or services,
(III) enabling the company to identify new markets, and to develop new and existing markets, for its products and services, or
(IV) enabling the company to increase its sales of products or provision of services,
and
(ii) with a view to the creation or maintenance of employment—
(I) in the company, or
(II) in the case of qualifying trading operations referred to in section 496 (2)(a)(ix), in either or both a company contracted to construct the advance factory building concerned and a company which enters into a lease for its use.
(2) Where the money raised for the purpose specified in subsection (1)(b) was used, is being used or is intended to be used—
(a) for the purposes of qualifying trading operations referred to in section 496 (2)(a)(iv) and in respect of which money is raised or intended to be raised under this Part by virtue of section 496 (2)(a)(iv)(II), the evidence referred to in subsection (1)(c) shall include the certificate referred to in section 496 (5),
(b) for the purposes of qualifying trading operations referred to in section 496 (2)(a)(vii), the evidence referred to in subsection (1)(c) shall include the certificate referred to in section 496 (7),
(c) for the purposes of qualifying trading operations referred to in section 496 (2)(a)(x) (in this paragraph referred to as “the operations”), the evidence referred to in subsection (1)(c) shall include a certificate by an industrial development agency certifying that it is satisfied that the operations—
(i) have the potential to result in the commencement of qualifying trading operations referred to in subparagraphs (i), (ii) and (viii) of section 496 (2)(a), and
(ii) have commenced,
(d) for the purposes of qualifying trading operations referred to in section 496 (2)(a)(xii), the evidence referred to in subsection (1)(c) shall include the certificate referred to in section 496 (8),
(e) for the purpose of the construction and the leasing of an advance factory building, the evidence referred to in subsection (1)(c) shall include a certificate by an industrial development agency certifying that it has satisfied itself that—
(i) the building is or will be an advance factory building, and
(ii) (I) the advance factory building is or will be situated in an area which, on the basis of guidelines agreed with the consent of the Minister for Finance between the industrial development agency and the Minister for Enterprise, Trade and Employment or the Minister for Arts, Heritage, Gaeltacht and the Islands (as may be appropriate in the circumstances), was or is in particular need of development and of the creation of opportunities for employment, and
(II) the construction of the advance factory building contributes or will contribute significantly to meeting those needs, and
(f) for the purposes of relevant trading operations, the evidence referred to in subsection (1)(c) shall include a certificate under section 497 (2).
(3) Subject to subsections (4) and (5), relief in respect of the amount subscribed by an individual for any eligible shares shall be given as a deduction of that amount from his or her total income for the year of assessment in which the shares are issued.
(4) Where—
(a) in accordance with section 508 , relief is due in respect of an amount subscribed as nominee for a qualifying individual by the managers of a designated fund, and
(b) the eligible shares in respect of which the amount is subscribed are issued in the year of assessment following the year of assessment in which that amount was subscribed to the designated fund,
the individual may elect by notice in writing to the inspector to have the relief due given as a deduction from his or her total income for the year of assessment in which the amount was subscribed to the designated fund, instead of (as provided for in subsection (3)) as a deduction from his or her total income for the year of assessment in which the shares are issued.
(5) (a) Subject to this subsection, a specified individual may, in relation to a relevant investment made by such individual (being that individual's first such investment), elect by notice in writing to the inspector to have the relief due given as a deduction from such individual's total income for any one of the 5 years of assessment immediately before the year of assessment in which the eligible shares in respect of that investment are issued which such individual nominates for the purpose, instead of (as provided for in subsection (3)) as a deduction from the specified individual's total income for the year of assessment in which the shares are issued, and accordingly, subject to section 490 and paragraphs (c) and (d), for the purpose of granting such relief (but for no other purpose of this Part) the shares shall be deemed to have been issued in the year of assessment so nominated.
(b) Where the specified individual makes a subsequent relevant investment (being that individual's second such investment)—
(i) in the same company as such individual's first such investment, and
(ii) within either the year of assessment following the end of the year of assessment in which such individual's first such investment was made or the year of assessment subsequent to that year,
then, the specified individual may, in relation to such individual's second such investment, elect by notice in writing to the inspector to have the relief due given as a deduction from such individual's total income for any one of the 5 years of assessment immediately before the year of assessment in which the eligible shares in respect of such individual's first such investment were issued which such individual nominates for the purpose, instead of (as provided for in subsection (3)) as a deduction from such individual's total income for the year of assessment in which the eligible shares in respect of such individual's second such investment are issued, and accordingly, subject to section 490 and paragraphs (c) and (d), for the purpose of granting such relief (but for no other purpose of this Part) the shares issued in respect of the second such investment shall be deemed to have been issued in the year of assessment so nominated.
(c) Where any of the years of assessment following the year of assessment nominated under paragraph (a) or (b), as the case may be, precede the year of assessment in which the eligible shares in respect of the specified individual's first relevant investment are in fact issued, subsections (3) to (5) of section 490 shall operate to give relief in such years of assessment as may be nominated by such individual for that purpose.
(d) To the extent that the amount of the relief which would be due in respect of the specified individual's first relevant investment or second relevant investment, as the case may be, has not been given in accordance with paragraphs (a) to (c) it shall, subject to subsections (3) to (5) of section 490 , be given for the year of assessment in which the eligible shares in respect of the first such investment or the second such investment, as the case may be, are in fact issued or, if appropriate, a subsequent year of assessment.
(e) This subsection shall apply in respect of not more than 2 relevant investments made by a specified individual on or after the 2nd day of June, 1995.
(6) References in this Part to the amount of the relief are references to the amount of the deduction given under subsection (3), (4) or (5) (as may be appropriate).
(7) (a) Subject to paragraphs (b) and (c), the relief shall be given on a claim and shall not be allowed—
(i) (I) in the case of a relevant investment, unless and until the company commences to carry on the relevant trading operations, and
(II) in any other case, unless and until the company has carried on the trade for 4 months, and
(ii) if the company is not carrying on that trade at the time when the shares are issued, unless the company—
(I) expends not less than 80 per cent of the money subscribed for the shares on research and development work which is connected with and undertaken with a view to the carrying on of the trade, and begins to carry on the trade within 3 years after that time,
or
(II) otherwise begins to carry on the trade within 2 years after that time.
(b) In the case of qualifying trading operations referred to in section 496 (2)(a)(ix), for the purposes of paragraph (a), the trade shall be deemed to have commenced on the date on which the construction of the advance factory building commenced.
(c) In the case of qualifying trading operations referred to in section 496 (2)(a)(x), for the purposes of paragraph (a), the trade shall be deemed to have commenced on the date on which the certificate referred to in subsection (2)(c) was issued.
(8) Subject to subsection (7)(a)(i), a claim for relief may be allowed at any time if the conditions for the relief are then satisfied.
(9) In the case of a claim allowed before the end of the relevant period, the relief shall be withdrawn if by reason of any subsequent event it appears that the claimant was not entitled to the relief allowed.
(10) In the case of a claim allowed before a specified individual commences a relevant employment with the company in which that individual has made a relevant investment (being that individual's first such investment), the relief shall be withdrawn if the specified individual fails to commence such employment—
(a) within the year of assessment in which the investment is made, or
(b) if later, within 6 months of the date of—
(i) where the investment consists of the subscription of only one amount for eligible shares, that subscription, or
(ii) where the investment consists of the subscription of more than one amount for eligible shares, the last such subscription.
(11) Where by reason of its being wound up, or dissolved without winding up, the company carries on the qualifying trade for a period shorter than 4 months, subsection (7)(a)(i) shall apply as if it referred to that shorter period but only if it is shown that the winding up or dissolution was for bona fide commercial reasons and not as part of a scheme or arrangement the main purpose or one of the main purposes of which was the avoidance of tax.
(12) Subject to section 506 , no account shall be taken of the relief, in so far as it is not withdrawn, in determining whether any sums are excluded by virtue of section 554 from the sums allowable as a deduction in the computation of gains and losses for the purposes of the Capital Gains Tax Acts.
(13) Where an individual is entitled to relief under this section in respect of a subscription by him or her for eligible shares in a company, he or she shall not be entitled to relief in respect of that subscription under section 479 .
(14) (a) In this subsection, “distribution” has the same meaning as in the Corporation Tax Acts.
(b) For the purposes of this subsection, an amount specified or implied shall include an amount specified or implied in a foreign currency.
(c) This subsection shall apply to shares in a company where any agreement, arrangement or understanding exists which could reasonably be considered to eliminate the risk that the person beneficially owning those shares—
(i) might, at or after a time specified in or implied by that agreement, arrangement or understanding, be unable to realise directly or indirectly in money or money's worth an amount so specified or implied, other than a distribution, in respect of those shares, or
(ii) might not receive an amount so specified or implied of distributions in respect of those shares.
(d) The reference in this subsection to the person beneficially owning shares shall be deemed to be a reference to both that person and any person connected with that person.
(e) Relief from income tax shall not be allowed under this Part in respect of the amount subscribed for any shares to which this subsection applies.
(15) This section shall apply only where the shares concerned are issued in the period commencing on the 6th day of April, 1984, and ending on the 5th day of April, 1999.
num: 490
paragraphs: —(1) (a) Subject to section 508 and paragraph (b), the relief shall not be given in respect of any amount subscribed by an individual for eligible shares issued to the individual by any company in any year of assessment unless the amount or total amount subscribed by the individual for the eligible shares issued to the individual by the company in that year is £200 or more.
(b) In the case of an individual who is a married person assessed to tax for a year of assessment in accordance with section 1017 , any amount subscribed by the individual's spouse for eligible shares issued to that spouse in that year of assessment by the company shall be deemed to have been subscribed by the individual for eligible shares issued to the individual by the company.
(2) The relief shall not be given to the extent to which the amount or total amount subscribed by an individual for eligible shares issued to the individual in any year of assessment (whether or not by the same company) exceeds £25,000.
(3) (a) Where in any year of assessment a greater amount of relief would be given to an individual in respect of the amount or the total amount subscribed by the individual for eligible shares (in this subsection referred to as “the relevant subscription”) issued to the individual in that year or, where section 489 (4) applies, in the following year of assessment but for either or both of the following reasons—
(i) an insufficiency of total income, or
(ii) the operation of subsection (2),
the amount of the relief which would be given but for those reasons less the amount or the aggregate amount of any relief in respect of the relevant subscription which is given in that year of assessment shall be carried forward to the next year of assessment, and shall be treated for the purposes of the relief as an amount subscribed directly by the individual for eligible shares issued to the individual in that next year.
(b) This subsection shall not apply for any year of assessment subsequent to the year 1998-99.
(4) (a) If and in so far as an amount once carried forward to a year of assessment under subsection (3) (and treated as an amount subscribed directly by an individual for eligible shares issued to the individual in that year of assessment) is not deducted from his or her total income for that year of assessment, it shall be carried forward again to the next year of assessment (and treated as an amount subscribed directly by the individual for eligible shares issued to the individual in that next year), and so on for succeeding years of assessment.
(b) This subsection shall not apply for any year of assessment subsequent to the year 1998-99.
(5) The relief shall be given to an individual for any year of assessment in the following order—
(a) in the first instance, in respect of an amount carried forward from an earlier year of assessment in accordance with subsection (3) or (4) and, in respect of such an amount so carried forward, for an earlier year of assessment in priority to a later year of assessment, and
(b) only thereafter, in respect of any other amount for which relief is to be given in that year of assessment.
num: 491
paragraphs: —(1) In this section, “qualifying subsidiary”, in relation to a company, means a subsidiary of that company of a kind which a company may have by virtue of section 507 .
(2) (a) Subject to this section, where a company raises any amount through the issue of eligible shares (in this section referred to as “the relevant issue”), relief shall not be given in respect of the excess of the amount over the amount determined by the formula—
£1,000,000 – A
where A is the lesser of—
(i) £1,000,000, and
(ii) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares at any time before the relevant issue.
(b) Notwithstanding paragraph (a), in the case of a company which, or whose qualifying subsidiary, either carries on or intends to carry on qualifying trading operations referred to in section 496 (2) (a) (iv), this section shall apply, in relation to that company and money raised or intended to be raised by it under this Part by virtue of section 496 (2) (a) (iv) (II), as if in the formula in paragraph (a) and in the formula in subsection (3) “£100,000” were substituted for “£1,000,000” in each place where it occurs.
(3) Where a company raises any amount through a relevant issue and that company is associated (within the meaning of this section) with one or more other companies, then, as respects that company, relief shall not be given in respect of the excess of the amount so raised over the amount determined by the formula—
£1,000,000 – B
where B is an amount equal to so much as does not exceed £1,000,000 of the aggregate of all amounts raised through the issue of eligible shares at any time before or on the date of the relevant issue (other than the amount raised through the relevant issue) by all of the companies (including that company) which are associated within the meaning of this section.
(4) For the purposes of this section, a company shall be associated with another company where—
(a) in the case of that company, or a company which is, or was at any time, its qualifying subsidiary, and
(b) that other company, or a company which is, or was at any time, its qualifying subsidiary,
it could reasonably be considered that—
(i) both companies act in pursuit of a common purpose,
(ii) any person or any group of persons or groups of persons having a reasonable commonality of identity have or had the means or power, either directly or indirectly, to determine the trading operations carried on or to be carried on by both companies, or
(iii) both companies are under the control of any person or group of persons or groups of persons having a reasonable commonality of identity;
but for the purposes of this section a company shall not be considered as associated with another company by reason only of the fact that a subscription for eligible shares in both companies is made by a person or persons having the management of an investment fund designated under section 508 as nominee for any person or group or groups of persons.
(5) In determining for the purposes of the formula in subsection (2)(a) or, as the case may be, the formula in subsection (3) the amount to which paragraph (ii) of the definition of “A” in subsection (2)(a) or, as the case may be, the amount to which the definition of “B” in subsection (3) relates, account shall not be taken of any amount—
(a) which is subscribed by a person other than an individual who qualifies for relief, or
(b) in respect of which relief is precluded by virtue of section 490 .
(6) Where as a consequence of subsection (2) or (3) the giving of relief would be precluded on claims in respect of shares issued to 2 or more individuals, the available relief shall be divided between them respectively in proportion to the amounts which have been subscribed by them for the shares to which their claims relate and which apart from this section would be eligible for relief.
num: 492
paragraphs: —(1) (a) In this section, “relevant certificate” means a certificate from an authority (within the meaning of this section) given to a company in relation to a relevant issue, certifying, on the basis of a business plan of the company and any other information which the company supplies to the authority or which the authority may reasonably request the company to furnish to it, that, having regard to the amount of money raised or to be raised by the relevant issue, the authority is satisfied that—
(i) the purpose or purposes specified in section 489 (1)(c)(i) for which the money raised or to be raised is intended to be used has or have the potential to create a reasonable level of additional sustainable employment in the company, or
(ii) the money raised or to be raised is necessary to secure the survival of the company and maintain a reasonable level of sustainable employment.
(b) In considering whether to give a relevant certificate to a company, an authority shall have regard only to such guidelines for that purpose as may from time to time be agreed—
(i) with the consent of the Minister for Finance, between the certifying agency and the Minister for Arts, Heritage, Gaeltacht and the Islands or the Minister for Enterprise, Trade and Employment or the Minister for the Marine and Natural Resources or the Minister for Tourism, Sport and Recreation (as may be appropriate in the circumstances), or
(ii) between the certifying Minister and the Minister for Finance,
and those guidelines may, without prejudice to the generality of the foregoing, include provision—
(I) for the submission to the authority by the company concerned, in relation to its business plan, of an annual progress report in a form to be specified by the authority,
(II) to ensure that money raised through a relevant issue is used by a company or its qualifying subsidiary only for one or more of the purposes specified in section 489 (1)(c)(i) and for no other purposes,
(III) that the issue of the certificate does not represent any form of approval by the authority of the commercial viability of the qualifying trading operations carried on or to be carried on by the company concerned, and
(IV) for regarding as null and void from its date of issue a relevant certificate where the company concerned fails to comply with its business plan or any modification of that plan which may be agreed between it and the authority.
(2) In this section, “combined certificate” means a certificate given by an authority to a company which comprises—
(a) (i) a certificate referred to in section 489 (2)(c),
(ii) an approval of a development and marketing plan referred to section 495 (6)(a),
(iii) (I) an approval of a development and marketing plan referred to in section 495 (4)(a), and
(II) a certificate referred to in section 496 (7),
or
(iv) a certificate referred to in section 496 (8),
and
(b) a relevant certificate.
(3) In this section, “authority” means—
(a) in respect of qualifying trading operations referred to in subparagraph (i), (ii), (vi) or (x) of section 496 (2)(a), Forbairt, the Industrial Development Agency (Ireland), the Shannon Free Airport Development Company Limited or ÃdarÃ¡s na Gaeltachta (as may be appropriate); but, for the purposes of qualifying trading operations referred to in subparagraph (i) of section 496 (2)(a), “authority” shall mean Bord Iascaigh Mhara in the case of those qualifying trading operations in respect of which Bord Iascaigh Mhara administers a scheme of assistance to grant aid,
(b) in respect of qualifying trading operations referred to in subparagraph (vii), (viii) or (xi) of section 496 (2)(a), the Minister for Agriculture and Food,
(c) in respect of qualifying trading operations referred to in subparagraph (xii) of section 496 (2)(a), the Minister for Arts, Heritage, Gaeltacht and the Islands,
(d) in respect of qualifying trading operations referred to in subparagraph (xiii) of section 496 (2)(a), Bord FÃ¡ilte Ãireann, and
(e) in respect of qualifying trading operations referred to in subparagraph (xiv) of section 496 (2)(a), An Bord TrÃ¡chtÃ¡la.
(4) An authority shall not issue a combined certificate unless and until all necessary conditions have been satisfied for the issue of—
(a) in the first instance (as may be appropriate)—
(i) the certificate referred to in subparagraph (i) or (iv), as the case may be, of subsection (2)(a),
(ii) the approval referred to in subsection (2)(a)(ii), or
(iii) the approval and certificate referred to in subsection (2)(a)(iii),
and
(b) only thereafter, the relevant certificate.
(5) (a) Subject to this section, where on or after the 23rd day of January, 1996, a company raises any amount through the issue of eligible shares (in this section referred to as “the relevant issue”) for the purpose of qualifying trading operations other than those operations referred to in section 496 (2)(a)(ix), relief shall not be given in respect of the excess of the amount over the amount determined by the formula set out in the Table to this subsection unless the company produces to the Revenue Commissioners a relevant certificate or a combined certificate.
(b) Where the company referred to in paragraph (a) is associated with one or more other companies within the meaning of section 491 , then, A in the formula set out in the Table to this subsection shall include the aggregate of the amounts raised through the issue of eligible shares at any time before or on the date of the relevant issue (other than the amount raised through the relevant issue) by all the companies so associated (including that company).
TABLE
£250,000 – A
where A is the lesser of—
(i) £250,000, or
(ii) an amount equal to the aggregate of all amounts raised by the company through the issue of eligible shares before or on the date of the relevant issue (other than the amount raised through the relevant issue).
(6) Subsections (5) and (6) of section 491 shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of that section.
num: 493
paragraphs: —(1) (a) An individual shall qualify for relief if he or she subscribes on his or her own behalf for eligible shares in a qualifying company and is not at any time in the relevant period connected with the company.
num: 494
paragraphs: —(1) An individual shall be a specified individual if he or she qualifies for relief in respect of a relevant investment and complies with this section.
(2) (a) Subject to paragraph (b), the individual, in each of the 3 years of assessment preceding the year of assessment which precedes the year of assessment in which that individual makes a relevant investment (being that individual's first such investment), shall not have been in receipt of income chargeable to tax otherwise than under—
num: 495
paragraphs: —(1) In this section, “qualifying subsidiary”, in relation to a company, means a subsidiary of that company of a kind which a company may have by virtue of section 507 .
(2) A company shall be a qualifying company if it is incorporated in the State and complies with this section.
(3) (a) The company shall throughout the relevant period be an unquoted company which is resident in the State and not resident elsewhere, and be—
(i) a company which exists wholly for the purpose of carrying on wholly or mainly in the State one or more qualifying trades, or
(ii) a company whose business consists wholly of—
(I) the holding of shares or securities of, or the making of loans to, one or more qualifying subsidiaries of the company, or
(II) both the holding of such shares or securities, or the making of such loans and the carrying on wholly or mainly in the State of one or more qualifying trades.
(b) Where a company raises any amount through the issue of eligible shares for the purposes of raising money for a qualifying trade which is being carried on by a qualifying subsidiary or which such a qualifying subsidiary intends to carry on, the amount so raised shall be used for the purpose of acquiring eligible shares in the qualifying subsidiary and for no other purpose.
(4) (a) A company whose trade consists of the cultivation of horticultural produce within the meaning of section 496 (7) shall not be a qualifying company unless and until it has shown to the satisfaction of the Revenue Commissioners that it has submitted to, and has had approved of by, the Minister for Agriculture and Food (in this subsection referred to as “the Minister”) a 3 year development and marketing plan in respect of the company's trade, being a plan primarily designed and formulated to increase the exportation of such produce or to displace the importation of such produce.
(b) In considering whether to approve of such a plan, the Minister shall have regard only to such guidelines in relation to such approval as may from time to time be agreed between the Minister and the Minister for Finance, and those guidelines may, without prejudice to the generality of the foregoing, set out—
(i) the extent to which the company's interest in land and buildings (other than greenhouses) may form part of its total assets,
(ii) specific requirements which have to be met in order to comply with either of the objectives mentioned in paragraph (a), and
(iii) the extent to which the money raised through the issue of eligible shares should be used to identify new markets and to develop new or existing markets for the company's produce.
(5) A company whose trade consists of the production, publication, marketing and promotion of a qualifying recording within the meaning of section 496 (8) shall not be a qualifying company—
(a) unless it exists solely for the purposes of the production, publication, marketing and promotion of a qualifying recording or qualifying recordings by only one new artist, and
(b) unless and until it shows to the satisfaction of the Revenue Commissioners that a certificate referred to in section 496 (8) has been given and not revoked by the Minister for Arts, Heritage, Gaeltacht and the Islands to the company in relation to such qualifying recording or qualifying recordings;
but, where a certificate referred to in section 496 (8) is revoked by the Minister for Arts, Heritage, Gaeltacht and the Islands, the company shall not be a qualifying company.
(6) (a) A company whose trade includes one or more tourist traffic undertakings within the meaning of section 496 (9) shall not be a qualifying company unless and until it has shown to the satisfaction of the Revenue Commissioners that it has submitted to, and has had approved of by, Bord FÃ¡ilte Ãireann a 3 year development and marketing plan in respect of that undertaking or those undertakings, as the case may be, being a plan primarily designed and formulated to increase tourist traffic and revenue from outside the State.
(b) In considering whether to approve of such a plan, Bord FÃ¡ilte Ãireann shall have regard only to such guidelines in relation to such approval as may from time to time be agreed, with the consent of the Minister for Finance, between it and the Minister for Tourism, Sport and Recreation, and those guidelines may, without prejudice to the generality of the foregoing, set out—
(i) the extent to which the company's interests in land and buildings may form part of its total assets,
(ii) specific requirements which have to be met in order to comply with the objective mentioned in paragraph (a), and
(iii) the extent to which the money raised through the issue of eligible shares should be used in promoting outside the State the undertaking or undertakings, as the case may be.
(7) Without prejudice to the generality of subsection (3) but subject to subsection (8), a company shall cease to comply with subsection (3) if before the end of the relevant period a resolution is passed, or an order is made, for the winding up of the company (or, in the case of a winding up otherwise than under the Companies Act, 1963 , any other act is done for the like purpose) or the company is dissolved without winding up.
(8) A company shall not be regarded as ceasing to comply with subsection (3) by reason only of the fact that it is wound up or dissolved without winding up if—
(a) it is shown that the winding up or dissolution is for bonafide commercial reasons and not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax, and
(b) the company's net assets, if any, are distributed to its members before the end of the relevant period or, in the case of a winding up, the end (if later) of 3 years from the commencement of the winding up.
(9) The company's share capital shall not at any time in the relevant period include any issued shares not fully paid up.
(10) Subject to section 507 , the company shall not at any time in the relevant period—
(a) control (or together with any person connected with it control) another company or be under the control of another company (or of another company and any person connected with that other company), or
(b) be a 51 per cent subsidiary of another company or itself have a 51 per cent subsidiary,
and no arrangements shall be in existence at any time in that period by virtue of which the company could fall within paragraph (a) or (b).
(11) A company shall not be a qualifying company if, in the case of a company in which a relevant investment is made by a specified individual (being that individual's first such investment in that company), any transaction in the relevant period between the company and another company (being the immediate former employer of the individual), or a company which controls or is under the control of that other company, is otherwise than by means of a transaction at arm's length, or if—
(a) (i) an individual has acquired a controlling interest in the company's trade after the 5th day of April, 1984, and
(ii) at any time in the period mentioned in subsection (14) the individual has or has had a controlling interest in another trade,
and
(b) the trade carried on by the company or a substantial part of that trade—
(i) is concerned with the same or similar types of property or parts of property or provides the same or similar services or facilities as the other trade, or
(ii) serves substantially the same or similar outlets or markets as the other trade.
(12) For the purposes of this section, a person shall have a controlling interest in a trade—
(a) in the case of a trade carried on by a company, if—
(i) such person controls the company,
(ii) the company is a close company for the purposes of the Corporation Tax Acts and such person or an associate of such person is a director of the company and the beneficial owner of, or able directly or through the medium of other companies or by any other indirect means to control, more than 30 per cent of the ordinary share capital of the company, or
(iii) not less than 50 per cent of the trade could, in accordance with section 400 (2), be regarded as belonging to such person,
or
(b) in any other case, if such person is entitled to not less than 50 per cent of the assets used for, or the income arising from, the trade.
(13) For the purposes of subsection (12), there shall be attributed to any person any rights or powers of any other person who is an associate of that person.
(14) The period referred to in subsection (11)(a)(ii) shall be the period beginning 2 years before and ending 3 years after—
(a) the date on which the shares were issued, or
(b) if later, the date on which the company began to carry on the trade.
(15) In subsections (11) and (14), references to a company's trade shall include references to the trade of any of its subsidiaries.
num: 496
paragraphs: —(1) A trade shall be a qualifying trade if it complies with the requirements of this section.
(2) The trade shall throughout the relevant period—
(a) consist wholly or mainly of one or more of the following trading operations (in this Part referred to as “qualifying trading operations”)—
(i) the manufacture of goods within the meaning of Part 14 ; but—
(I) those trading operations or activities included in the definition, or regarded as the manufacture in the State, of “goods” for the purpose of Part 14 by virtue of subsections (3), (11), (12), (16), (17) and (19) of section 443 and of section 446 shall not, subject to the following provisions of this paragraph, be regarded as qualifying trading operations for the purposes of this Part, and
(II) the production of a film (within the meaning of section 481 ) shall not be regarded as qualifying trading operations for the purposes of this Part,
(ii) the rendering of services (other than relevant trading operations within the meaning of section 446 ) in the course of a service industry (within the meaning of the Industrial Development Act, 1986 ) in respect of which—
(I) (A) a grant towards the employment of persons was made by Forbairt or the Industrial Development Agency (Ireland) under section 12 (2) of the Industrial Development Act, 1993 , or
(B) shares in the qualifying company concerned were purchased or taken by Forbairt or the Industrial Development Agency (Ireland) in accordance with section 31 of the Industrial Development Act, 1986 ,
(II) a grant under section 3, or financial assistance under section 4 of the Shannon Free Airport Development Company Limited (Amendment) Act, 1970 , was made available by the Shannon Free Airport Development Company Limited, or
(III) financial assistance was made available by ÃdarÃ¡s na Gaeltachta under section 10 of the ÃdarÃ¡s na Gaeltachta Act, 1979 ,
(iii) in respect of a relevant investment, the rendering of services referred to in subparagraph (ii) in respect of which an employment grant would have been made or a grant or financial assistance would have been made available, as the case may be, by an industrial development agency under one of the provisions referred to in that subparagraph only for the fact that the industrial development agency concerned was or is precluded from making such an employment grant or making available such a grant or financial assistance, as the case may be, by reason of the fact that a grant or financial assistance had already been made by some other person,
(iv) in respect of—
(I) a relevant investment, or
(II) a subscription for eligible shares, other than such a subscription consisting of a relevant investment, made on or before the 5th day of April, 1998, and in respect of which a certificate for the purposes of this Part has been issued in accordance with subsection (5),
and notwithstanding subparagraph (ii), the rendering of relevant trading operations (within the meaning of section 446 ) carried on for the purposes of or in connection with trading operations on an exchange facility established in the Custom House Docks Area (within the meaning of section 322 ),
num: 497
paragraphs: —(1) For the purposes of this Part, “relevant trading operations” means qualifying trading operations (other than those operations referred to in section 496 (2)(a)(ix)) in respect of which a certifying agency or a certifying Minister, as the case may be (in this section referred to as “the authority”), has given a certificate under subsection (2).
(2) Subject to this section, the authority may, in respect of qualifying trading operations carried on or to be carried on by a company, give a certificate to the company certifying that the authority is satisfied, on the basis of such information as is supplied to the authority by the company or which the authority may reasonably require the company to furnish, that the carrying on of such qualifying trading operations by the company is or will be a bona fide new venture which, having regard to—
(a) the potential for the creation of additional sustainable employment, and
(b) the desirability of minimising the displacement of existing employment,
may be eligible—
(i) in the case of qualifying trading operations referred to in section 496 (2)(a)(v), based on guidelines agreed, with the consent of the Minister for Finance, between the certifying agency and the Minister for Arts, Heritage, Gaeltacht and the Islands or the Minister for Enterprise, Trade and Employment (as may be appropriate in the circumstances), for the payment of the grants or the financial assistance referred to in section 496 (2)(a)(ii) within a reasonable period after the completion of the feasibility study carried out in relation to the trading operations concerned in accordance with section 496 (2)(a)(v), and
(ii) in any other case but subject to subsection (4), based on guidelines agreed—
(I) with the consent of the Minister for Finance, between the certifying agency and the Minister for Arts, Heritage, Gaeltacht and the Islands or the Minister for Enterprise, Trade and Employment or the Minister for the Marine and Natural Resources or the Minister for Tourism, Sport and Recreation (as may be appropriate in the circumstances), or
(II) between the certifying Minister and the Minister for Finance,
to be grant aided under a scheme of assistance administered by the authority.
(3) The carrying on of qualifying trading operations referred to in subsection (2) by a company shall not be regarded as not being a bona fide new venture by reason only that they were carried on as or as part of a trade by another person at any time before the issue of the eligible shares in respect of which relief is claimed.
(4) A certificate to which subsection (2) relates may be given by—
(a) the Industrial Development Agency (Ireland) in respect of qualifying trading operations referred to in section 496 (2)(a)(iv),
(b) the Minister for Agriculture and Food in respect of qualifying trading operations referred to in section 496 (2)(a)(viii), or
(c) the Minister for Arts, Heritage, Gaeltacht and the Islands in respect of qualifying trading operations referred to in section 496 (2)(a)(xii),
without regard to whether such operations are eligible to be grant-aided but, in considering whether to give such a certificate, the agency or the Minister, as the case may be, shall have regard to such guidelines in relation to the giving of such a certificate as may be agreed—
(i) with the consent of the Minister for Finance, between the agency and the Minister for Enterprise, Trade and Employment, or
(ii) between the Minister for Agriculture and Food or the Minister for Arts, Heritage, Gaeltacht and the Islands (as may be appropriate) and the Minister for Finance.
(5) Bord FÃ¡ilte Ãireann shall not give a certificate under subsection (2) in a case where the value of a company's interests in land and buildings (excluding fixtures and fittings) is or is intended to be greater than 50 per cent of the value of its assets as a whole.
(6) An authority shall not give a certificate under subsection (2) unless the company concerned undertakes in writing to furnish the authority when requested to do so with such details in relation to the carrying on of the qualifying trading operations as the authority may specify.
num: 498
paragraphs: —(1) Where an individual disposes of any eligible shares before the end of the relevant period, then—
(a) in a case where the disposal is otherwise than by means of a bargain made at arm's length, the individual shall not be entitled to any relief in respect of those shares, and
(b) in any other case, the amount of relief to which the individual is entitled in respect of those shares shall be reduced by the amount or value of the consideration which the individual receives for those shares.
(2) Subsection (1) shall not apply to a disposal made by a wife to her husband at a time when she is treated as living with him for income tax purposes in accordance with section 1015 or to a disposal made at such a time by him to her; but where shares issued to one of them have been transferred to the other by a transaction inter vivos—
(a) that subsection shall apply on the disposal of the shares by the transferee to a third person, and
(b) if at any time the wife ceases to be treated as living with her husband for income tax purposes in accordance with section 1015 and any of those snares have not been disposed of by the transferee before that time, any assessment for withdrawing relief in respect of those shares shall be made on the transferee.
(3) (a) For the purposes of this subsection, references to an option or an agreement shall include references to a right or obligation to acquire or grant an option or enter into an agreement, and references to the exercise of an option shall include references to the exercise of an option which may be acquired or granted by the exercise of such a right or under such an obligation.
(b) Where in the relevant period an individual, either directly or indirectly—
(i) (I) acquires an option where the exercise of the option, either under the terms of the option or under the terms of any arrangement or undertaking subject to which or otherwise in connection with which the option is acquired, would—
(A) bind the person from whom the option was acquired or any other person, or
(B) cause that person or such other person,
to purchase or otherwise acquire any eligible shares for a price which, having regard to the terms of the option or the terms of such arrangement or undertaking and the net effect of those terms considered as a whole, is other than the market value of the eligible shares at the time the purchase or acquisition is made, or
(II) enters into an agreement where, either under the terms of the agreement or under the terms of any arrangement or understanding subject to which or otherwise in connection with which the agreement is made, it would—
(A) bind the person with whom the agreement is made or any other person, or
(B) cause that person or such other person,
to purchase or otherwise acquire any eligible shares in the manner described in clause (I),
or
(ii) (I) grants to any person an option where the exercise of the option, either under the terms of the option or under the terms of any arrangement or understanding subject to which or otherwise in connection with which the option is granted, would bind the individual to dispose, or cause the individual to dispose, of any eligible shares to the person to whom the individual granted the option or any other person for a price which, having regard to the terms of the option or the terms of such arrangement or understanding and the net effect of those terms considered as a whole, is other than the market value of the eligible shares at the time the disposal is made, or
(II) enters into an agreement where, either under the terms of the agreement or under the terms of any arrangement or understanding subject to which or otherwise in connection with which the agreement is made, it would bind the individual to dispose, or cause the individual to dispose, of any eligible shares to the person with whom the agreement is made or any other person in the manner described in clause (I),
the individual shall not be entitled to any relief in respect of the shares to which the option or the agreement relates.
(4) Where an individual holds ordinary shares of any class in a company and the relief has been given in respect of some shares of that class but not others, any disposal by the individual of ordinary shares of that class in the company shall be treated for the purposes of this section as relating to those in respect of which relief has been given under this Part rather than to others.
(5) Where the relief has been given to an individual in respect of shares of any class in a company which have been issued to the individual at different times, any disposal by the individual of shares of that class shall be treated for the purposes of this section as relating to those issued earlier rather than to those issued later.
(6) Where shares in respect of which the relief was given have by virtue of any such allotment mentioned in subsection (1) of section 584 (not being an allotment for payment) been treated under subsection (3) of that section as the same asset as a new holding—
(a) the new holding shall be treated for the purposes of subsection (4) as shares in respect of which the relief has been given, and
(b) a disposal of the whole or part of the new holding shall be treated for the purposes of this section as a disposal of the whole or a corresponding part of those shares.
(7) Shares in a company shall not be treated for the purposes of this section as being of the same class unless they would be so treated if dealt in on a stock exchange in the State.
num: 499
paragraphs: —(1) In this section, “ordinary trade debt” means any debt for goods or services supplied in the ordinary course of a trade or business where the credit period given does not exceed 6 months and is not longer than that normally given to the customers of the person carrying on the trade or business.
(2) In this section—
(a) any reference to a payment or transfer to an individual includes a reference to a payment or transfer made to the individual indirectly or to his or her order or for his or her benefit, and
(b) any reference to an individual includes a reference to an associate of the individual and any reference to the company includes a reference to any person connected with the company.
(3) For the purposes of this section, an individual shall receive value from a company where the company—
(a) repays, redeems or repurchases any of its share capital or securities which belong to the individual or makes any payment to the individual for giving up his or her right to any of the company's share capital or any security on its cancellation or extinguishment,
(b) repays any debt owed to the individual other than—
(i) an ordinary trade debt incurred by the company, or
(ii) any other debt incurred by the company—
(I) on or after the earliest date on which the individual subscribed for the shares in respect of which the relief is claimed, and
(II) otherwise than in consideration of the extinguishment of a debt incurred before that date,
(c) makes to the individual any payment for giving up his or her right to any debt on its extinguishment other than—
(i) a debt in respect of a payment of the kind mentioned in paragraph (d) or (e) of section 493 (3), or
(ii) a debt of the kind mentioned in subparagraph (i) or (ii) of paragraph (b),
(d) releases or waives any liability of the individual to the company or discharges, or undertakes to discharge, any liability of the individual to a third person,
(e) makes a loan or advance to the individual,
(f) provides a benefit or facility for the individual,
(g) transfers an asset to the individual for no consideration or for consideration less than its market value or acquires an asset from the individual for consideration exceeding its market value, or
(h) makes to the individual any other payment except a payment of the kind mentioned in paragraph (a), (b), (c), (d) or (e) of section 493 (3) or a payment in discharge of an ordinary trade debt.
(4) For the purposes of this section, an individual shall also receive value from the company where the individual receives in respect of ordinary shares held by the individual any payment or asset in a winding up or in connection with a dissolution of the company, being a winding up or dissolution within section 495 (8).
(5) For the purposes of this section, an individual shall also receive value from the company where any person who for the purposes of section 493 would be treated as connected with the company—
(a) purchases any of its share capital or securities which belong to the individual, or
(b) makes any payment to the individual for giving up any right in relation to any of the company's share capital or securities.
(6) The value received by an individual shall be—
(a) in a case within paragraph (a), (b) or (c) of subsection (3), the amount receivable by the individual or, if greater, the market value of the shares, securities or debt in question,
(b) in a case within subsection (3)(d), the amount of the liability,
(c) in a case within subsection (3)(e), the amount of the loan or advance,
(d) in a case within subsection (3)(f), the cost to the company of providing the benefit or facility less any consideration given for it by the individual,
(e) in a case within subsection (3)(g), the difference between the market value of the asset and the consideration (if any) given for it,
(f) in a case within subsection (3)(h), the amount of the payment,
(g) in a case within subsection (4), the amount of the payment or, as the case may be, the market value of the asset, and
(h) in a case within subsection (5), the amount receivable by the individual or, if greater, the market value of the shares or securities in question.
(7) For the purposes of subsection (3)(d), a company shall be treated as having released or waived a liability where the liability is not discharged by payment within 12 months of the time when it ought to have been discharged by payment.
(8) For the purposes of subsection (3)(e), there shall be treated as if it were a loan made by the company to the individual—
(a) the amount of any debt (other than an ordinary trade debt) incurred by the individual to the company, and
(b) the amount of any debt due from the individual to a third person which has been assigned to the company.
(9) Where an individual who subscribes for eligible shares in a company—
(a) has, before the issue of the shares but within the relevant period, received any value from the company, or
(b) on or after their issue but before the end of the relevant period, receives any such value,
then, the amount of the relief to which the individual is entitled in respect of the shares shall be reduced by the value so received.
(10) Where by virtue of this section any relief is withheld or withdrawn in the case of an individual to whom ordinary shares in a company have been issued at different times, the relief shall be withheld or withdrawn in respect of shares issued earlier rather than in respect of shares issued later.
num: 500
paragraphs: —(1) In this section—
“subsidiary” means a subsidiary of a kind which a qualifying company may have by virtue of section 507 ;
“trade” includes any business, profession or vocation, and references to a trade previously carried on include references to part of such a trade.
(2) An individual to whom subsection (3) applies shall not be entitled to relief in respect of any shares in a company where at any time in the relevant period the company or any of its subsidiaries—
(a) begins to carry on, as its trade or as a part of its trade, a trade previously carried on at any time in that period otherwise than by the company or any of its subsidiaries, or
(b) acquires the whole or greater part of the assets used for the purposes of a trade previously so carried on.
(3) This subsection shall apply to an individual where—
(a) any person or group of persons to whom an interest amounting in the aggregate to more than a 50 per cent share in the trade (as previously carried on) belonged at any time in the relevant period is a person or a group of persons to whom such an interest in the trade carried on by the company, or any of its subsidiaries, belongs or has at any such time belonged, or
(b) any person or group of persons who controls or at any such time has controlled the company is a person or a group of persons who at any such time controlled another company which previously carried on the trade,
and the individual is that person or one of those persons.
(4) An individual shall not be entitled to relief in respect of any shares in a company where—
(a) the company comes to acquire all of the issued share capital of another company at any time in the relevant period, and
(b) any person or group of persons who controls or has at any such time controlled the company is a person or a group of persons who at any such time controlled that other company,
and the individual is that person or one of those persons.
(5) For the purposes of subsection (3)—
(a) the person or persons to whom a trade belongs and, where a trade belongs to 2 or more persons, their respective shares in that trade shall be determined in accordance with paragraphs (a) and (b) of subsection (1), and subsections (2) and (3), of section 400 , and
(b) any interest, rights or powers of a person who is an associate of another person shall be treated as those of that other person.
num: 501
paragraphs: —(1) The relief to which an individual is entitled in respect of any shares in a company shall be reduced in accordance with subsection (4) if at any time in the relevant period the company repays, redeems or repurchases any of its share capital which belongs to any member other than—
(a) that individual, or
(b) another individual whose relief is thereby reduced by virtue of section 499 (3),
or makes any payment to any such member for giving up such member's right to any of the company's share capital on its cancellation or extinguishment.
(2) Subsection (1) shall not apply in relation to the redemption of any share capital for which the redemption date was fixed before the 26th day of January, 1984.
(3) Where—
(a) after the 5th day of April, 1984, a company issues share capital (in this subsection referred to as “the original shares”) of nominal value equal to the authorised minimum (within the meaning of the Companies (Amendment) Act, 1983 ) for the purposes of complying with the requirements of section 6 of that Act, and
(b) after the registrar of companies has issued the company with a certificate under section 6 of that Act the company issues eligible shares,
subsection (1) shall not apply in relation to any redemption of any of the original shares within 12 months of the date on which those shares were issued.
(4) Where subsection (1) applies, the amount of relief to which an individual is entitled shall be reduced by the amount receivable by the member or, if greater, the nominal value of the share capital in question and, where apart from this subsection 2 or more individuals would be entitled to relief, the reduction shall be made in proportion to the amounts of relief to which those individuals would have been entitled apart from this subsection.
(5) Where at any time in the relevant period a member of a company receives or is entitled to receive any value from the company within the meaning of this subsection, then, for the purposes of section 493 (4) in its application to any subsequent time—
(a) the amount of the company's issued ordinary share capital, and
(b) the amount of the part of that capital which consists of the shares relevant to section 493 (4) and the amount of the part consisting of the remainder,
shall each be treated as reduced in accordance with subsection (6).
(6) The amount of each of the parts mentioned in subsection (5)(b) shall be treated as equal to such proportion of that amount as the amount subscribed for that part less the relevant value bears to the amount subscribed, and the amount of the issued share capital shall be treated as equal to the sum of the amounts treated under this subsection as the amount of those parts respectively.
(7) In subsection (5)(b), the reference to the part of the capital which consists of the shares relevant to section 493 (4) is a reference to the part consisting of shares which (within the meaning of that section) the individual directly or indirectly possesses or is entitled to acquire, and in subsection (6) “the relevant value”, in relation to each of the parts mentioned in that subsection, means the value received by the member or members entitled to the shares of which that part consists.
(8) For the purposes of subsection (5), a member of a company receives or is entitled to receive value from the company within the meaning of that subsection in any case in which an individual would receive value from the company by virtue of paragraph (d), (e), (f), (g) or (h) of section 499 (3) (but treating as excepted from paragraph (h) all payments made for full consideration), and the value received shall be determined as for the purposes of that section.
(9) For the purposes of subsection (8), a person shall be treated as entitled to receive anything which the person is entitled to receive at a future date or will at a future date be entitled to receive.
(10) Where by virtue of this section any relief is withheld or withdrawn in the case of an individual to whom ordinary shares in the company have been issued at different times, the relief shall be withheld or withdrawn in respect of shares issued earlier rather than in respect of shares issued later.
num: 502
paragraphs: —An individual shall not be entitled to relief in respect of any shares unless the shares are subscribed and issued for bona fide commercial purposes and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
num: 503
paragraphs: —(1) A claim for the relief in respect of eligible shares issued by a company in any year of assessment shall be made—
(a) not earlier than—
(i) in the case of a relevant investment, the date on which the company commences to carry on the relevant trading operations, and
(ii) in any other case, the end of the period of 4 months mentioned in section 489 (7)(a) (i) (II),
and
(b) not later than 2 years after the end of that year of assessment or, if that period of 4 months ended after the end of that year, not later than 2 years after the end of that period.
(2) A claim for relief in respect of eligible shares in a company shall not be allowed unless it is accompanied by a certificate issued by the company in such form as the Revenue Commissioners may direct and certifying that the conditions for the relief, in so far as they apply to the company and the trade, are satisfied in relation to those shares.
(3) Before issuing a certificate under subsection (2), a company shall furnish the inspector with a statement to the effect that it satisfies the conditions for the relief, in so far as they apply in relation to the company and the trade, and has done so at all times since the beginning of the relevant period.
(4) No such certificate shall be issued without the authority of the inspector or where the company or a person connected with the company has given notice to the inspector under section 505 (2).
(5) Any statement under subsection (3) shall—
(a) contain such information as the Revenue Commissioners may reasonably require,
(b) be in such form as the Revenue Commissioners may direct, and
(c) contain a declaration that it is correct to the best of the company's knowledge and belief.
(6) Where a company has issued a certificate under subsection (2) or furnished a statement under subsection (3), and—
(a) the certificate or statement is made fraudulently or negligently, or
(b) the certificate was issued in contravention of subsection (4) the company shall be liable to a penalty not exceeding £500 or, in the case of fraud, £1,000, and such penalty may, without prejudice to any other method of recovery, be proceeded for and recovered summarily in the like manner as in summary proceedings for the recovery of any fine or penalty under any Act relating to the excise.
(7) For the purpose of regulations made under section 986 , no regard shall be had to the relief unless a claim for it has been duly made and admitted.
(8) For the purposes of section 1080 , income tax charged by an assessment—
(a) shall be regarded as due and payable notwithstanding that relief from the tax (whether by discharge or repayment) is subsequently given on a claim for the relief, but
(b) shall, unless paid earlier or due and payable later, be regarded as paid, to the extent that relief from tax is due under this Part, on the date of the making of the claim on which the relief is given,
and section 1081 shall not apply in consequence of any discharge or repayment for giving effect to the relief.
num: 504
paragraphs: —(1) Where any relief has been given which is subsequently found not to have been due, that relief shall be withdrawn by the making of an assessment to income tax under Case IV of Schedule D for the year of assessment for which the relief was given.
(2) Where any relief given in respect of shares for which either a married person or his or her spouse has subscribed, and which were issued while the married person was assessed in accordance with section 1017 , is to be withdrawn by virtue of a subsequent disposal of those shares by the person who subscribed for them and at the time of the disposal the married person is not so assessable, any assessment for withdrawing that relief shall be made on the person making the disposal and shall be made by reference to the reduction of tax flowing from the amount of the relief regardless of any allocation of that reduction under subsections (2) and (3) of section 1024 or of any allocation of a repayment of income tax under section 1020 .
(3) Subject to this section, any assessment for withdrawing relief which is made by reason of an event occurring after the date of the claim may be made within 10 years after the end of the year of assessment in which that event occurs.
(4) No assessment for withdrawing relief in respect of shares issued to any person shall be made by reason of any event occurring after his or her death.
(5) Where a person has, by a disposal or disposals to which section 498 (1)(b) applies, disposed of all the ordinary shares issued to the person by a company, no assessment for withdrawing relief in respect of any of those shares shall be made by reason of any subsequent event unless it occurs at a time when the person is connected with the company within the meaning of section 493 .
(6) Subsection (3) is without prejudice to section 924(2)(c).
(7) In its application to an assessment made by virtue of this section, section 1080 shall apply as if the date on which the income tax charged by the assessment becomes due and payable were—
(a) in the case of relief withdrawn by virtue of section 493 , 495 , 496 , 498 or 501 (1) in consequence of any event after the grant of the relief, the date of that event;
(b) in the case of relief withdrawn by virtue of section 498 (1) in consequence of a disposal after the grant of the relief, the date of the disposal;
(c) in the case of relief withdrawn by virtue of section 499 in consequence of a receipt of value after the grant of the relief, the date of the receipt;
(d) in the case of relief withdrawn by virtue of section 502 —
(i) in so far as effect has been given to the relief in accordance with regulations under section 986 , the 5th day of April in the year of assessment in which effect was so given, and
(ii) in so far as effect has not been so given, the date on which the relief was granted;
(e) in the case of relief withdrawn by virtue of—
(i) a specified individual failing or ceasing to hold a relevant employment, or
(ii) an individual ceasing to be a specified individual, the date of the failure or the cessation, as the case may be.
(8) For the purposes of subsection (7), the date on which the relief shall be granted is the date on which a repayment of tax for giving effect to the relief was made or, if there was no such repayment, the date on which the inspector issued a notice to the claimant showing the amount of tax payable after giving effect to the relief.
num: 505
paragraphs: —(1) Where an event occurs by reason of which any relief given to an individual is to be withdrawn by virtue of section 493 , 498 or 499 , the individual shall within 60 days of coming to know of the event give a notice in writing to the inspector containing particulars of the event.
(2) Where an event occurs by reason of which any relief in respect of any shares in a company is to be withdrawn by virtue of section 495 , 496 , 499 , 500 , 501 or 502 —
(a) the company, and
(b) any person connected with the company who has knowledge of that matter,
shall within 60 days of the event or, in the case of a person within paragraph (b), of that person coming to know of it, give a notice in writing to the inspector containing particulars of the event or payment.
(3) Where the inspector has reason to believe that a person has not given a notice which the person is required to give under subsection (1) or (2) in respect of any event, the inspector may by notice in writing require that person to furnish him or her within such time (not being less than 60 days) as may be specified in the notice with such information relating to the event as the inspector may reasonably require for the purposes of this Part.
(4) Where relief is claimed in respect of shares in a company and the inspector has reason to believe that it may not be due by reason of any arrangement or scheme mentioned in section 493 (11), 495 (10) or 502 , the inspector may by notice in writing require any person concerned to furnish him or her within such time (not being less than 60 days) as may be specified in the notice with—
(a) a declaration in writing stating whether or not, according to the information which that person has or can reasonably obtain, any such arrangement or scheme exists or has existed, and
(b) such other information as the inspector may reasonably require for the purposes of the provision in question and as that person has or can reasonably obtain.
(5) References in subsection (4) to the person concerned are, in relation to sections 493 (11) and 502 , references to the claimant and, in relation to sections 495 (10) and 502 , references to the company and any person controlling the company.
(6) Where relief has been given in respect of shares in a company—
(a) any person who receives from the company any payment or asset which may constitute value received (by that person or another) for the purposes of section 499 or 501 (5), and
(b) any person on whose behalf such a payment or asset is received,
shall, if so required by the inspector, state whether the payment or asset received by that person or on that person's behalf is received on behalf of any person other than that person and if so the name and address of that other person.
(7) Where relief has been claimed in respect of shares in a company, any person who holds or has held shares in the company and any person on whose behalf any such shares are or were held shall, if so required by the inspector, state whether the shares which are or were held by that person or on that person's behalf are or were held on behalf of any person other than that person and if so the name and address of that other person.
(8) No obligation as to secrecy imposed by statute or otherwise shall preclude the inspector from disclosing to a company that relief has been given or claimed in respect of a particular number or proportion of its shares.
num: 506
paragraphs: —(1) The sums allowable as deductions from the consideration in the computation for the purposes of capital gains tax of the gain or loss accruing to an individual on the disposal of shares in respect of which any relief has been given and not withdrawn shall be determined without regard to that relief, except that where those sums exceed the consideration they shall be reduced by an amount equal to the lesser of—
(a) the amount of that relief, and
(b) the excess;
but this subsection shall not apply to a disposal within section 1028 (5).
(2) In relation to shares in respect of which relief has been given and not withdrawn, any question—
(a) as to which of any such shares issued to a person at different times a disposal relates, or
(b) whether a disposal relates to such shares or to other shares,
shall for the purposes of capital gains tax be determined as for the purposes of section 498 .
(3) Where an individual holds ordinary shares in a company and the relief has been given in respect of some of the shares but not others, then, if there is a reorganisation (within the meaning of section 584 ) affecting those shares, section 584 (3) shall apply separately to the shares in respect of which the relief has been given and to the other shares (so that the shares of each kind shall be treated as a separate holding of original shares and identified with a separate new holding).
(4) There shall be made all such adjustments of capital gains tax, whether by means of assessment or by means of discharge or repayment of tax, as may be required in consequence of the relief being given or withdrawn.
num: 507
paragraphs: —(1) A qualifying company may in the relevant period have one or more subsidiaries if—
(a) the conditions in subsection (2) are satisfied in respect of the subsidiary or each subsidiary and, except where provided in subsection (3), continue to be so satisfied until the end of the relevant period, and
(b) the subsidiary or each subsidiary is a company—
(i) within section 495 (3)(a)(i), or
(ii) which exists solely for the purpose of carrying on any trade which consists solely of any one or more of the following trading operations—
(I) the purchase of goods or materials for use by the qualifying company or its subsidiaries,
(II) the sale of goods or materials produced by the qualifying company or its subsidiaries, or
(III) the rendering of services to or on behalf of the qualifying company or its subsidiaries.
(2) The conditions referred to in subsection (1)(a) are—
(a) that the subsidiary is a 51 per cent subsidiary of the qualifying company,
(b) that no other person has control of the subsidiary within the meaning of section 11 , and
(c) that no arrangements are in existence by virtue of which the conditions in paragraphs (a) and (b) could cease to be satisfied.
(3) The conditions referred to in subsection (1)(a) shall not be regarded as ceasing to be satisfied by reason only of the fact that the subsidiary or the qualifying company is wound up or dissolved without winding up if—
(a) it is shown that the winding up or dissolution is for bona fide commercial reasons and not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax, and
(b) the net assets, if any, of the subsidiary or, as the case may be, the qualifying company are distributed to its members before the end of the relevant period or, in the case of a winding up, the end (if later) of 3 years from the commencement of the winding up.
num: 508
paragraphs: —(1) Shares subscribed for, issued to, held by or disposed of for an individual by a nominee shall be treated for the purposes of this Part as subscribed for, issued to, held by or disposed of by that individual.
(2) (a) Relief shall be given, and section 490 (1) (a) shall not apply, in respect of an amount subscribed as nominee for an individual by a person or persons having the management of an investment fund designated by the Revenue Commissioners for the purposes of this section (in this Part referred to as “the managers of a designated fund”) where the amount so subscribed forms part of the fund.
(b) Except where provided by paragraph (a), relief shall not be given in respect of an amount subscribed as nominee for an individual by a person or persons having the management of an investment fund where the amount so subscribed forms part of the fund.
(3) The Revenue Commissioners may, if they think fit, having regard to the facts of the particular case and after such consultation, if any, as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, and subject to such conditions, if any, as they think proper to attach to the designation, designate an investment fund for the purposes of this Part.
(4) (a) The Revenue Commissioners may, by notice in writing given to the managers of a designated investment fund, withdraw the designation given for the purposes of this section to the fund in accordance with subsection (3) and, on the giving of the notice, the fund shall cease to be a designated fund as respects any subscriptions made after the date of the notice referred to in paragraph (b).
(b) Where the Revenue Commissioners withdraw the designation of any fund for the purposes of this section, notice of the withdrawal shall be published as soon as may be in Iris OifigiÃºil.
(5) Where an individual claims relief in respect of eligible shares in a company which have been issued to the managers of a designated fund as nominee for the individual, section 503 (2) shall apply as if it required—
(a) the certificate referred to in that section to be issued by the company to the managers, and
(b) the claim for relief to be accompanied by a certificate issued by the managers, in such form as the Revenue Commissioners may authorise, furnishing such information as the Revenue Commissioners may require and certifying that the managers hold certificates issued to them by the companies concerned, for the purposes of section 503 (2) in respect of the holdings of eligible shares shown on the managers' certificate.
(6) The managers of a designated fund may be required by a notice given to them by an inspector or other officer of the Revenue Commissioners to deliver to the officer within the time limited by the notice a return of the holdings of eligible shares shown on certificates issued by them in accordance with subsection (5) in the year of assessment to which the return relates.
(7) Section 503 (6) shall not apply in relation to any certificate issued by the managers of a designated fund for the purposes of subsection (5).
(8) Without prejudice to the generality of subsection (3), the Revenue Commissioners shall designate a fund for the purposes of this Part only if they are satisfied that—
(a) the fund is established under irrevocable trusts for the sole purpose of enabling individuals who qualify for the relief (in this subsection referred to as “qualifying individuals”) to invest in eligible shares of a qualifying company, and
(b) under the terms of the trusts it is provided that—
(i) the entire fund is to be invested without undue delay in eligible shares,
(ii) the fund is to subscribe only for shares which, subject to the circumstances of the qualifying individuals participating in the fund (in this subsection referred to as “participants”), qualify those participants for relief,
(iii) pending investment in eligible shares, any moneys subscribed for the purchase of shares are to be placed on deposit in a separate account with a bank licensed to transact business in the State,
(iv) any amounts received by means of dividends or interest are, subject to a commission in respect of management expenses at a rate not exceeding a rate which shall be specified in the deed of trust under which the fund has been established, to be paid without undue delay to the participants,
(v) any charges to be made by means of management or other expenses in connection with the establishment, the running, the winding down or the termination of the fund shall be at a rate not exceeding a rate which shall be specified in the deed of trust under which the fund is established,
(vi) audited accounts of the fund are submitted annually to the Revenue Commissioners as soon as may be after the end of each period for which accounts of the fund are made up,
(vii) the managers, the trustees of the fund and any of their associates are not for the time being connected either directly or indirectly with any company whose shares comprise part of the fund,
(viii) any discounts on eligible shares received by the trustees or managers of the fund are accepted solely for the benefit of the participants,
(ix) the fund is a closed fund and the closing date for participation precedes the making of the first investment,
(x) if a limit is placed on the size of the fund or a minimum amount for investment is stipulated, any subscriptions not accepted are to be returned without undue delay, and
(xi) no participant is allowed to have any shares in any company in which the fund has invested transferred into his or her name until 5 years have elapsed from the date of the issue of the shares to the fund.
num: 509
paragraphs: —(1) In this Chapter and in Schedule 11 —
“the appropriate percentage”, in relation to any shares, shall be construed in accordance with section 511 (3);
“approved scheme” shall be construed in accordance with section 510 (1);
num: 510
paragraphs: —(1) In this Chapter, references to an approved scheme are references to a scheme approved of as is mentioned in subsection (3) and, in relation to such a scheme—
(a) any reference to a participant is a reference to an individual to whom the trustees of the scheme have appropriated shares, and
(b) subject to section 514 , any reference to a participant's shares is a reference to the shares which have been appropriated to the participant by the trustees of an approved scheme.
(2) Any reference in this Chapter to the initial market value of any of a participant's shares is a reference to the market value of those shares determined—
(a) except where paragraph (b) applies, on the date on which the shares were appropriated to the participant, and
(b) if the Revenue Commissioners and the trustees of the scheme agree in writing, on or by reference to such earlier date or dates as may be provided for in the agreement.
num: 511
paragraphs: —(1) (a) In this Chapter, “the period of retention”, in relation to any of a participant's shares, means the period beginning on the date on which those shares are appropriated to the participant and ending on the second anniversary of that date or, if it is earlier—
(i) the date on which the participant ceases to be an employee or director of a relevant company by reason of injury or disability or on account of his or her being dismissed by reason of redundancy (within the meaning of the Redundancy Payments Acts, 1967 to 1991),
(ii) the date on which the participant reaches pensionable age (within the meaning of section 2 of the Social Welfare (Consolidation) Act, 1993 ), or
(iii) the date of the participant's death.
(b) In paragraph (a), “relevant company” means the company concerned or, if the scheme in question is a group scheme, a participating company and, in the application of paragraph (a) to a participant in a group scheme, the participant shall not be treated as ceasing to be an employee or director of a relevant company until such time as he or she is no longer an employee or director of any of the participating companies.
(2) In this Chapter, “the release date”, in relation to any of a participant's shares, means—
(a) as on and from the 10th day of May, 1997, the third anniversary of the date on which the shares were appropriated to the participant, and
(b) before the 10th day of May, 1997, the fifth anniversary of the date on which the shares were appropriated to the participant.
num: 512
paragraphs: —(1) Subject to sections 514 and 515 (6), any reference in this Chapter to the locked-in value of any of a participant's shares at any time shall be construed as follows:
(a) if before that time the participant has become chargeable to income tax by virtue of section 513 on a percentage of the amount or value of any capital receipt (within the meaning of that section) which is referable to those shares, the locked-in value of the shares shall be the amount by which their initial market value exceeds the amount or value of that capital receipt or, if there has been more than one such receipt, the aggregate of those receipts, and
(b) in any other case, the locked-in value of the shares shall be their initial market value.
num: 513
paragraphs: —(1) Subject to this section, where, in respect of or by reference to any of a participant's shares, the trustees become or the participant becomes entitled, before the release date, to receive any money or money's worth (in this section referred to as a “capital receipt”), the participant shall be chargeable to income tax under Schedule E for the year of assessment in which the entitlement arises on the appropriate percentage (determined as at the time when the trustees become or the participant becomes so entitled) of the amount or value of the receipt.
(2) Money or money's worth shall not be a capital receipt for the purposes of this section if or, as the case may be, to the extent that—
(a) it constitutes income in the hands of the recipient for the purposes of income tax,
(b) it consists of the proceeds of a disposal within section 512 , or
(c) it consists of new shares within the meaning of section 514 .
(3) Where, pursuant to a direction given by or on behalf of the participant or any person in whom the beneficial interest in the participant's shares is for the time being vested, the trustees—
(a) dispose of some of the rights arising under a rights issue within the meaning of section 512 (5)(b), and
(b) use the proceeds of that disposal to exercise other such rights,
the money or money's worth which constitutes the proceeds of that disposal shall not be a capital receipt for the purposes of this section.
(4) Where apart from this subsection the amount or value of a capital receipt would exceed the sum which, immediately before the entitlement to the receipt arose, was the locked-in value of the shares to which the receipt is referable, subsection (1) shall apply as if the amount or value of the receipt were equal to that locked-in value.
(5) Subsection (1) shall not apply in relation to a receipt if the entitlement to it arises after the death of the participant to whose shares it is referable.
(6) Subsection (1) shall not apply in relation to any receipt the amount or value of which (after any reduction under subsection (4)) does not exceed £10.
num: 514
paragraphs: —(1) In this section—
“new shares” means shares comprised in the new holding which were issued in respect of, or otherwise represent, shares comprised in the original holding;
“the corresponding shares”, in relation to any new shares, means those shares in respect of which the new shares were issued or which the new shares otherwise represent.
(2) This section shall apply where there occurs in relation to any of a participant's shares (in this section referred to as “the original holding”) a transaction (in this section referred to as a “company reconstruction”) which results in a new holding (within the meaning of section 584 ) being equated with the original holding for the purposes of capital gains tax.
(3) (a) Where shares are issued as part of a company reconstruction in circumstances such that section 131 (2) applies, those shares shall be treated for the purposes of this section as not forming part of the new holding.
(b) Nothing in this Chapter shall affect the application of section 130 (2)(c) or 132 (2).
(4) Subject to this section, references in this Chapter to a participant's shares shall be construed, after the time of the company reconstruction, as being or, as the case may be, as including, references to any new shares, and for the purposes of this Chapter—
(a) a company reconstruction shall be treated as not involving a disposal of shares comprised in the original holding,
(b) the date on which any new shares are to be treated as having been appropriated to the participant shall be the date on which the corresponding shares were appropriated, and
num: 515
paragraphs: —(1) Where the total of the initial market values of all the shares appropriated to an individual in any one year of assessment (whether under a single approved scheme or under 2 or more such schemes) exceeds £10,000, subsections (4) to (7) shall apply to any excess shares, that is, any share which caused that limit to be exceeded and any share appropriated after that limit was exceeded.
(2) For the purposes of subsection (1), where a number of shares is appropriated to an individual at the same time under 2 or more approved schemes, the same proportion of the shares appropriated at that time under each scheme shall be regarded as being appropriated before the limit of £10,000 is exceeded.
num: 516
paragraphs: —Where in connection with a direction to transfer the ownership of a participant's shares to which paragraph (c) of section 511 (4) applies the trustees receive such a sum as is referred to in that paragraph—
num: 517
paragraphs: —(1) Subject to subsections (3) and (4), as respects any accounting period, any sum expended in that accounting period by the company concerned or, in the case of a group scheme, by a participating company in making a payment or payments to the trustees of an approved scheme shall be included—
num: 518
paragraphs: —(1) This section shall apply to a sum expended on or after the 10th day of May, 1997, by a company in establishing a profit sharing scheme which the Revenue Commissioners approve of in accordance with Part 2 of Schedule 11 and under which the trustees acquire no shares before such approval is given.
(2) A sum to which this section applies shall be included—
num: 519
paragraphs: —(1) (a) This section shall apply to an employee share ownership trust which the Revenue Commissioners have approved of as a qualifying employee share ownership trust in accordance with Schedule 12 and which approval has not been withdrawn.
num: 520
paragraphs: —(1) In this Chapter—
“accountable person” has the meaning assigned to it by section 521 ;
“appropriate tax”, in relation to a relevant payment, means—
(a) where such payment does not include value-added tax, a sum representing income tax on the amount of that payment at the standard rate in force at the time of payment, and
(b) where such payment includes value-added tax, a sum representing income tax at the standard rate in force at the time of payment on the amount of that payment exclusive of the value-added tax;
“authorised insurer” has the same meaning as in section 470 ;
“basis period for a year of assessment”, in relation to a specified person, means—
num: 521
paragraphs: —(1) In this Chapter, “accountable person” means, subject to subsection (2), a person specified in Schedule 13 .
num: 522
paragraphs: —Subject to section 523 (1), where under a contract of insurance a claim is made to an authorised insurer in respect of relevant medical expenses—
(a) the insurer shall discharge the claim by making payment to the extent of the amount of the benefit, if any, due under the contract, to the practitioner who provided the professional services to the subscriber or member concerned to whom the relevant medical expenses relate, and
(b) the subscriber or member, as the case may be, shall be acquitted and discharged of such amount as is represented by the payment as if the subscriber or member had made such payment.
num: 523
paragraphs: —(1) (a) An accountable person making a relevant payment shall deduct from the amount of the payment the appropriate tax in relation to the payment.
(b) The specified person to whom the amount is payable shall allow such deduction on receipt of the residue of the payment.
(c) The accountable person making the deduction and, if the accountable person is an authorised insurer, any subscriber or member on whose behalf the accountable person is making the relevant payment shall be acquitted and discharged of such amount as is represented by the deduction, as if the amount had actually been paid.
(2) Where—
(a) in accordance with section 522 , a relevant payment has been made to a practitioner by an authorised insurer, and
(b) in accordance with subsection (1), the practitioner has allowed a deduction of appropriate tax in respect of that payment and a subscriber or member has been acquitted and discharged of so much money as is represented by the deduction,
the practitioner shall, if any amount in respect of the relevant medical expenses to which the relevant payment relates has been paid by the subscriber or member, pay to the subscriber or member, as the case may be, an amount equal to the amount by which the aggregate of the amount paid by the subscriber or member and the amount of the relevant payment exceeds the relevant medical expenses.
(3) (a) The Minister for Finance may make such regulations as that Minister considers necessary or expedient for the purpose of giving full effect to this Chapter in so far as it relates to authorised insurers and the making of payments under contracts of insurance in respect of relevant medical expenses, and, in particular but without prejudice to the generality of the foregoing, regulations under this subsection may—
(i) specify the circumstances and the manner in which a payment (other than a relevant payment) may be made or claimed in respect of relevant medical expenses, and
(ii) provide for the indemnification of an individual against claims in respect of relevant medical expenses, or any other claims arising out of acts done or omitted to be done by the individual pursuant to this Chapter or regulations made under this subsection in so far as this Chapter relates or those regulations relate to authorised insurers and the making of payments under contracts of insurance in respect of relevant medical expenses.
(b) Every regulation made under this subsection shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(4) The provisions of the Tax Acts relating to the computation of profits or gains shall not be affected by the deduction of appropriate tax from relevant payments in accordance with subsection (1), and accordingly the amount of such relevant payments shall be taken into account in computing the profits or gains of the specified person for tax purposes.
num: 524
paragraphs: —(1) The specified person shall furnish to the accountable person concerned—
(a) in the case of a specified person resident in the State or a person having a permanent establishment or fixed base in the State—
(i) details of the specified person's income tax or corporation tax number, as may be appropriate, and
(ii) if the relevant payment includes an amount in respect of value-added tax, the specified person's value-added tax registration number, and
(b) in the case of a specified person other than a person mentioned in paragraph (a), details of the specified person's country of residence and the specified person's tax reference in that country.
(2) Where the specified person has complied with subsection (1), the accountable person, on making a relevant payment, shall give to such person in a form prescribed by the Revenue Commissioners particulars of—
(a) the name and address of the specified person,
(b) the specified person's tax reference as furnished in accordance with paragraph (a)(i) or (b) of subsection (1),
(c) the amount of the relevant payment,
(d) the amount of the appropriate tax deducted from that payment, and
(e) the date on which the payment is made.
num: 525
paragraphs: —(1) Within 10 days from the end of every income tax month, an accountable person shall remit to the Collector-General all amounts of appropriate tax which the accountable person is liable under this Chapter to deduct from relevant payments made by the accountable person during that income tax month.
(2) Each remittance under subsection (1) shall be accompanied by a return containing, in relation to each specified person to whom a relevant payment has been made in the income tax month concerned, the particulars required by the return.
(3) A return shall be required to be made by an accountable person for an income tax month notwithstanding that no relevant payments were made by the accountable person in that income tax month.
(4) Every return shall be in a form prescribed by the Revenue Commissioners and shall include a declaration to the effect that the return is correct and complete.
(5) The Collector-General shall give the accountable person a receipt for the total amount so remitted.
(6) The provisions of the Income Tax Acts relating to the collection and recovery of income tax shall, in so far as they are applicable, apply to the collection and recovery of appropriate tax.
num: 526
paragraphs: —(1) Where in relation to an accounting period a specified person is within the charge to corporation tax and has borne appropriate tax referable to that accounting period, the specified person may, subject to section 529 , claim to have the amount of appropriate tax specified in subsection (4) set against corporation tax chargeable for that accounting period and, where such appropriate tax exceeds such corporation tax, to have the excess refunded to the specified person.
(2) Where in relation to a year of assessment a specified person is within the charge to income tax and has borne appropriate tax referable to the basis period for that year of assessment, the specified person may, subject to section 529 , claim to have the amount of appropriate tax specified in subsection (4) set against the income tax chargeable for the year of assessment and, where such appropriate tax exceeds such income tax, to have the excess refunded to the specified person.
(3) The specified person shall, in respect of each claim under subsection (1) or (2), furnish, in respect of each amount of appropriate tax included in the claim, the form given to the specified person by an accountable person in accordance with section 524 (2).
(4) The amount of the appropriate tax to be set against corporation tax for an accounting period or against income tax for a year of assessment in accordance with subsection (1) or (2) shall be the total of the appropriate tax referable to the accounting period or to the basis period for the year of assessment, as the case may be, which is included in the forms furnished in accordance with subsection (3) and not repaid under this Chapter.
num: 527
paragraphs: —(1) A specified person may make a claim for an interim refund of the whole or part of the appropriate tax referable to an accounting period or to a basis period for a year of assessment, as the case may be (in this section referred to as “the first-mentioned period”), and the inspector shall, if he or she is satisfied that the specified person making the claim has complied with the requirements of subsection (2), make such refund as is specified in subsection (3) and, subject to those requirements as modified by subsection (4)(a), make such refund as is specified in that subsection.
(2) The requirements of this subsection are—
(a) that the profits or gains for the accounting period or for the basis period for the year of assessment, as the case may be, immediately preceding the first-mentioned period have been finally determined for tax purposes,
(b) that the amount of tax which was payable for that accounting period or year of assessment corresponding to that basis period has been paid (whether by credit for appropriate tax or otherwise), and
(c) that the specified person shall, in respect of each relevant payment included in the claim, furnish to the inspector the form given to the specified person by an accountable person in accordance with section 524 (2).
(3) The amount of the tax to be refunded shall be the excess of the total of the appropriate tax included in the forms furnished in accordance with subsection (2)(c) (and not already repaid under the provisions of this section) over the amount of tax referred to in subsection (2)(b) less the amount which the specified person is liable to pay or remit—
(a) under the Value-Added Tax Act, 1972 , and the regulations made under that Act,
(b) under Chapter 4 of Part 42 and the regulations made under that Chapter, and
(c) in respect of employment contributions under the Social Welfare (Consolidation) Act, 1993 , and the regulations made under that Act.
(4) (a) Where the first-mentioned period is the period in which the trade or profession of the specified person has been set up and commenced, paragraphs (a) and (b) of subsection (2) shall not apply and the inspector shall, in accordance with this subsection, make an interim refund to the specified person in respect of appropriate tax deducted from relevant payments taken, or to be taken, into account in computing the profits or gains of the trade or profession.
(b) For the purposes of determining the amount of the interim refund, the inspector shall determine—
(i) an amount equal to the amount of tax at the standard rate on an amount determined by the formula—
E ×
A
_
B
×
C
_
P
where—
A is the estimated total amount of the relevant payments to be taken into account as income in computing for tax purposes the profits or gains of the first-mentioned period,
B is the estimated total sum of all amounts to be so taken into account as income in computing those profits or gains,
C is the estimated number of months or fractions of months comprised in the period in respect of which the claim to the refund is made,
E is the estimated amount to be laid out or expended wholly and exclusively by the specified person in the first-mentioned period for the purposes of the trade or profession, and
P is the estimated number of months or fractions of months comprised in the first-mentioned period,
and the inspector shall make the estimates referred to in this formula to the best of his or her knowledge and belief and in accordance with the information available to him or her, and
(ii) the amount of appropriate tax deducted from the relevant payments in respect of which forms have been furnished in accordance with subsection (2)(c) after deducting from that amount any amount of such tax already refunded for the period in respect of which the claim to a refund is made.
(c) The inspector shall refund an amount of appropriate tax equal to the lesser of the amounts determined at subparagraphs (i) and (ii) of paragraph (b).
(5) Where the specified person claims and proves the presence of particular hardship, the Revenue Commissioners may waive (in whole or in part) one or more of the conditions for the making of a refund specified in this section and, where they so waive such a condition or conditions, they shall determine, having regard to all the circumstances and taking into account the objects and intentions of subsections (1) to (4), an amount of a refund or a further refund which they consider to be just and reasonable and they shall authorise the inspector to make such refund or such further refund, as the case may be, accordingly.
(6) For the purposes of this section, the income of a specified person for an accounting period or a basis period for a year of assessment shall be the total of all amounts received or receivable by the specified person which are taken into account in computing the profits or gains of the specified person's trade or profession for that period.
num: 528
paragraphs: —Where the form referred to in either section 526 (3) or 527 (2)(c) relates to 2 or more specified persons, any necessary apportionment shall be made for the purposes of giving effect to sections 526 and 527 .
num: 529
paragraphs: —No amount of appropriate tax shall be set off or refunded more than once under this Chapter, and any amount of appropriate tax refunded in accordance with section 527 shall not be available for set-off under section 526 .
num: 530
paragraphs: —(1) In this Chapter—
“certificate of authorisation” means a certificate issued under section 531 (11);
“certificates of deduction” has the meaning assigned to it by section 531 (6)(f);
“construction operations” means operations of any of the following descriptions—
(a) the construction, alteration, repair, extension, demolition or dismantling of buildings or structures,
(b) the construction, alteration, repair, extension or demolition of any works forming, or to form, part of the land, including walls, roadworks, power lines, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for purposes of land drainage,
(c) the installation in any building or structure of systems of heating, lighting, air-conditioning, soundproofing, ventilation, power supply, drainage, sanitation, water supply, burglar or fire protection,
(d) the external cleaning of buildings (other than cleaning of any part of a building in the course of normal maintenance) or the internal cleaning of buildings and structures, in so far as carried out in the course of their construction, alteration, extension, repair or restoration,
(e) operations which form an integral part of, or are preparatory to, or are for rendering complete such operations as are described in paragraphs (a) to (d), including site clearance, earth-moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works,
(f) operations which form an integral part of, or are preparatory to, or are for rendering complete, the drilling for or extraction of minerals, oil, natural gas or the exploration for, or exploitation of, natural resources,
(g) the haulage for hire of materials, machinery or plant for use, whether used or not, in any of the construction operations referred to in paragraphs (a) to (f);
“the contractor” has the meaning assigned to it by the definition of “relevant contract”;
“director” means—
(a) in relation to a body corporate the affairs of which are managed by a board of directors or similar body, a member of that board or body,
(b) in relation to a body corporate the affairs of which are managed by a single director or similar person, that director or person,
(c) in relation to a body corporate the affairs of which are managed by the members themselves, a member of the body corporate,
and includes any person who is or has been a director;
“employee”, in relation to a body corporate, includes any person taking part in the management of the affairs of the body corporate who is not a director, and includes a person who is to be or has been an employee;
“forestry operations” means operations of any of the following descriptions—
(a) the thinning, lopping or felling of trees in woods, forests or other plantations,
(b) with effect from the 6th day of October, 1997, the planting of trees in woods, forests or other plantations,
(c) with effect from the 6th day of October, 1997, the maintenance of woods, forests and plantations and the preparation of land, including woods or forests which have been harvested, for planting,
(d) the haulage or removal of thinned, lopped or felled trees,
(e) the processing (including cutting or preserving) of wood from thinned, lopped or felled trees in sawmills or other like premises,
(f) the haulage for hire of materials, machinery or plant for use, whether used or not, in any of the operations referred to in paragraphs (a) to (e);
“meat processing operations” means operations of any of the following descriptions—
(a) the slaughter of cattle, sheep or pigs,
(b) the division (including cutting or boning), sorting, packaging (including vacuum packaging) or branding of, or the application of any other similar process to, the carcasses or any part of the carcasses of slaughtered cattle, sheep or pigs,
(c) the application of methods of preservation (including cold storage) to the carcasses or any part of the carcasses of slaughtered cattle, sheep or pigs,
(d) the loading or unloading of the carcasses or any part of the carcasses of slaughtered cattle, sheep or pigs at any establishment where any of the operations referred to in paragraphs (a) to (c) are carried on;
“the principal” has the meaning assigned to it by the definition of “relevant contract”;
“proprietary director”, means a director of a company who is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company;
“proprietary employee” means an employee who is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company;
“qualifying period” means the period of 3 years, or such shorter period as the inspector may allow, ending on the 5th day of April in the year preceding the year of assessment which is the first year of assessment of the period in respect of which a certificate of authorisation is sought;
“relevant contract” means a contract (not being a contract of employment) whereby a person (in this Chapter referred to as “the contractor”) is liable to another person (in this Chapter referred to as “the principal”)—
(a) to carry out relevant operations,
(b) to be answerable for the carrying out of such operations by others, whether under a contract with the contractor or under other arrangements made or to be made by the contractor, or
(c) to furnish the contractor's own labour or the labour of others in the carrying out of such operations,
but, as respects relevant contracts entered into on or after the 15th day of May, 1996, a separate relevant contract shall be deemed to exist between the principal and each individual member of a gang or group of persons, including a partnership in respect of which the principal has not received a relevant payments card, where relevant operations are performed collectively by the gang or group, notwithstanding that any payment or part of a payment in respect of such relevant operations is made by the principal to one or more of the gang or group or to some other person;
“relevant operations” means construction operations, forestry operations or meat processing operations, as the case may be;
“relevant payments card” has the meaning assigned to it by section 531 (12);
“relevant tax deduction card” has the meaning assigned to it by section 531 (6)(c)(ii);
“subcontractor” has the meaning assigned to it by section 531 (1).
(2) In relation to a case where a subcontractor is chargeable to corporation tax, unless the context otherwise requires, references in this Chapter to tax shall include references to corporation tax and references to a year of assessment shall include references to an accounting period.
(3) For the purposes of the definition of “proprietary director” and “proprietary employee”, ordinary share capital which is owned or controlled as referred to in those definitions by a person, being a spouse or a minor child of a director or employee, or by a trustee of a trust for the benefit of a person or persons, being or including any such person or such director or employee, shall be deemed to be owned or controlled by such director or employee and not by any other person.
num: 531
paragraphs: —(1) Subject to this section, where in the performance of a relevant contract in the case of which the principal is—
(a) a person who, in respect of the whole or any part of the relevant operations to which the contract relates, is the contractor under another relevant contract,
(b) a person—
(i) carrying on a business which includes the erection of buildings or the manufacture, treatment or extraction of materials for use, whether used or not, in construction operations,
(ii) carrying on a business of meat processing operations in an establishment approved and inspected in accordance with the European Communities (Fresh Meat) Regulations, 1987 ( S.I. No. 284 of 1987 ), or
(iii) carrying on a business which includes the processing (including cutting and preserving) of wood from thinned or felled trees in sawmills or other like premises or the supply of thinned or felled trees for such processing,
(c) a person connected with a company carrying on a business mentioned in paragraph (b),
(d) a local authority, a public utility society (within the meaning of section 2 of the Housing Act, 1966 ) or a body referred to in subparagraph (i) or (ii) of section 12(2)(a) or section 19 or 45 of that Act,
(e) a Minister of the Government,
(f) any board established by or under statute, or
(g) a person who carries on any gas, water, electricity, hydraulic power, dock, canal or railway undertaking, the principal makes a payment, or as respects relevant contracts entered into on or after the 15th day of May, 1996, is deemed to make a payment pursuant to subsection (3), to another person (whether the contractor or not and in this section referred to as “the subcontractor”), the principal shall deduct from the payment and pay to the Collector-General tax at the rate of 35 per cent of the amount of such payment.
(2) A person carrying on a business shall not be deemed to be a person of a kind specified in subsection (1)(b) by reason only of the fact that in the course of that business such person erects buildings for the use or occupation of such person or employees of such person.
(3) As respects relevant contracts entered into on or after the 15th day of May, 1996, where relevant operations are performed by a gang or group of persons, including a partnership in respect of which the principal has not received a relevant payments card, and notwithstanding that any payment or part of a payment in respect of such relevant operations is made by the principal to one or more of the gang or group or to some other person, then, for the purposes of this section and any regulations made under this section, such payment or part of a payment shall be deemed to have been made by the principal to the individual members of that gang or group in the proportions in which the payment or any amount in respect of the payment is to be divided amongst them.
num: 532
paragraphs: —All forms of property shall be assets for the purposes of the Capital Gains Tax Acts whether situated in the State or not, including—
(a) options, debts and incorporeal property generally,
(b) any currency other than Irish currency, and
(c) any form of property created by the person disposing of it, or otherwise becoming owned without being acquired.
num: 533
paragraphs: —The situation of assets specified in this section shall, except where otherwise provided by section 29 , be determined for the purposes of the Capital Gains Tax Acts in accordance with the following provisions:
(a) the situation of rights or interests (otherwise than by means of security) in or over immovable property shall be that of the immovable property;
(b) subject to this section, the situation of rights or interests (otherwise than by means of security) in or over tangible movable property shall be that of the tangible movable property;
(c) subject to this section, a debt, secured or unsecured, shall be situated in the State only if the creditor is resident in the State;
(d) shares or securities issued by any municipal or governmental authority, or by any body created by such an authority, shall be situated in the country of that authority;
(e) subject to paragraph (d), registered shares or securities shall be situated where they are registered and, if registered in more than one register, where the principal register is situated;
(f) a ship or aircraft shall be situated in the State only if the owner is resident in the State, and an interest or right in or over a ship or aircraft shall be situated in the State only if the person entitled to the interest or right is resident in the State;
(g) the situation of goodwill as a trade, business or professional asset shall be at the place where the trade, business or profession is carried on;
(h) patents, trade marks and designs shall be situated where they are registered and, if registered in more than one register, where each register is situated, and copyright, franchises, rights and licences to use any copyright material, patent, trade mark or design shall be situated in the State if they, or any rights derived from them, are exercisable in the State;
(i) a judgment debt shall be situated where the judgment is recorded.
num: 534
paragraphs: —For the purposes of the Capital Gains Tax Acts—
(a) references to a disposal of an asset include, except where the context otherwise requires, references to a part disposal of an asset, and
(b) there shall be a part disposal of an asset where an interest or right in or over the asset is created by the disposal, as well as where it subsists before the disposal, and, generally, there shall be a part disposal of an asset where, on a person making a disposal, any description of property derived from the asset remains undisposed of.
num: 535
paragraphs: —(1) In this section, “capital sum” means any money or money's worth not excluded from the consideration taken into account in the computation of the gain under Chapter 2 of this Part.
(2) (a) Subject to sections 536 and 537(1) and to any other exceptions in the Capital Gains Tax Acts, there shall be for the purposes of those Acts a disposal of an asset by its owner where any capital sum is derived from the asset notwithstanding that no asset is acquired by the person paying the capital sum, and this paragraph shall apply in particular to—
(i) capital sums received by means of compensation for any kind of damage or injury to an asset or for the loss, destruction or dissipation of an asset or for any depreciation or risk of depreciation of an asset,
(ii) capital sums received under a policy of insurance of the risk of any kind of damage or injury to, or the loss or depreciation of, an asset,
(iii) capital sums received in return for forfeiture or surrender of a right or for refraining from exercising a right, and
(iv) capital sums received as consideration for use or exploitation of an asset.
(b) Without prejudice to paragraph (a)(ii) but subject to paragraph (c), neither the rights of the insurer nor the rights of the insured under any policy of insurance, whether the risks insured relate to property or not, shall constitute an asset on the disposal of which a gain may accrue, and inthis paragraph “policy of insurance” does not include a policy of assurance on human life.
(c) Paragraph (b) shall not apply where the right to any capital sum within paragraph (a)(ii) is assigned after the event giving rise to the damage or injury to, or the loss or depreciation of, an asset has occurred, and for the purposes of the Capital Gains Tax Acts such an assignment shall be deemed to be a disposal of an interest in the asset concerned.
num: 536
paragraphs: —(1) (a) Subject to paragraph (b), where the recipient so claims, receipt of a capital sum within subparagraph (i), (ii), (iii) or (iv) of section 535 (2) (a) derived from an asset which is not lost or destroyed shall not be treated as a disposal of the asset if—
(i) the capital sum is wholly applied in restoring the asset, or
(ii) the capital sum is applied in restoring the asset except for a part of the capital sum which is not reasonably required for the purpose and which is small as compared with the whole capital sum;
but, if the receipt is not treated as a disposal, all sums which, if the receipt had been so treated, would have been taken into account as consideration for that disposal in the computation of a gain accruing on the disposal shall be deducted from any expenditure allowable under Chapter 2 of this Part as a deduction in computing a gain on the subsequent disposal of the asset.
(b) Paragraph (a) shall not apply to cases within subparagraph (ii) of that paragraph if immediately before the receipt of the capital sum there is no expenditure attributable to the asset under paragraphs (a) and (b) of section 552 (1) or if the consideration for the part disposal deemed to be effected on receipt of the capital sum exceeds that expenditure.
(2) Where an asset is lost or destroyed and a capital sum received as compensation for the loss or destruction, or under a policy of insurance of the risk of the loss or destruction, is, within one year of receipt or such longer period as the inspector may allow, applied in acquiring an asset in replacement of the asset lost or destroyed, the owner shall on due claim be treated for the purposes of the Capital Gains Tax Acts as if—
(a) the consideration for the disposal of the old asset were (if otherwise of a greater amount) of such amount as would secure that on the disposal neither a loss nor a gain accrued to such owner, and
(b) the amount of the consideration for the acquisition of the new asset were reduced by the excess of the amount of the capital sum received as compensation or under the policy of insurance, together with any residual or scrap value, over the amount of the consideration which such owner is treated as receiving under paragraph (a).
(3) A claim shall not be made under subsection (2) if part only of the capital sum is applied in acquiring the new asset; but, if all of that capital sum except for a part which is less than the amount of the gain (whether all chargeable gain or not) accruing on the disposal of the old asset is so applied, the owner shall on due claim be treated for the purposes of the Capital Gains Tax Acts as if—
(a) the amount of the gain so accruing were reduced to the amount of that part of the capital sum not applied in acquiring the new asset (and, if not all chargeable gain, with a proportionate reduction in the amount of the chargeable gain), and
(b) the amount of the consideration for the acquisition of the new asset were reduced by the amount by which the gain is reduced under paragraph (a).
(4) This section shall not apply in relation to a wasting asset.
num: 537
paragraphs: —(1) The conveyance or transfer as security of an asset or of an interest or right in or over an asset, or the transfer of a subsisting interest or right as security in or over an asset (including a retransfer on redemption of the security), shall not be treated for the purposes of the Capital Gains Tax Acts as involving any acquisition or disposal of the asset.
(2) Where a person entitled to an asset as security or to the benefit of a charge or incumbrance on an asset deals with the asset for the purpose of enforcing or giving effect to the security, charge or incumbrance, such person's dealings with the asset shall be treated for the purposes of the Capital Gains Tax Acts as if they were done through such person as nominee by the person entitled to the asset subject to the security, charge or incumbrance, and this subsection shall apply to the dealings of any person appointed to enforce or give effect to the security, charge or incumbrance as receiver and manager or judicial factor as it applies to the dealings of the person so entitled.
(3) An asset shall be treated as having been acquired free of any interest or right as security subsisting at the time of any acquisition of the asset, and as being disposed of free of any such interest or right subsisting at the time of the disposal and, where an asset is acquired subject to any such interest or right, the full amount of the liability thereby assumed by the person acquiring the asset shall form part of the consideration for the acquisition and disposal in addition to any other consideration.
num: 538
paragraphs: —(1) Subject to the Capital Gains Tax Acts and in particular to section 540 , the occasion of the entire loss, destruction, dissipation or extinction of an asset shall for the purposes of those Acts constitute a disposal of the asset whether or not any capital sum as compensation or otherwise is received in respect of the destruction, dissipation or extinction of the asset.
(2) Where on a claim by the owner of an asset the inspector is satisfied that the value of an asset has become negligible, the inspector may allow the claim, and thereupon the Capital Gains Tax Acts shall apply as if the claimant had sold and immediately reacquired the asset for a consideration of an amount equal to the value specified in the claim.
(3) For the purposes of subsections (1) and (2), a building and any permanent or semi-permanent structure in the nature of a building may be regarded as an asset separate from the land on which it is situated; but, where either of those subsections applies in accordance with this subsection, the person deemed to make the disposal of the building shall be treated as if such person had also sold and immediately reacquired the site of the building or structure (including in the site any land occupied for purposes ancillary to the use of the building or structure) for a consideration equal to its market value at that time.
num: 539
paragraphs: —A hire purchase or other transaction under which the use and enjoyment of an asset is obtained by a person for a period at the end of which the property in the asset will or may pass to such person shall be treated for the purposes of the Capital Gains Tax Acts, both in relation to such person and in relation to the person from whom the use and enjoyment of the asset is obtained, as if it amounted to an entire disposal of the asset to such person at the beginning of the period for which such person obtains the use and enjoyment of the asset, but subject to such adjustments of tax, whether by means of repayment or discharge of tax or otherwise, as may be required where the period for which such person has the use and enjoyment of the asset terminates without the property in the asset passing to such person.
num: 540
paragraphs: —(1) In this section—
“quoted option” means an option which at the time of abandonment or other disposal is quoted and dealt in on a stock exchange in the State or elsewhere in the same manner as shares;
“traded option” means an option which at the time of abandonment or other disposal is quoted on a stock exchange or a futures exchange in the State or elsewhere;
references to an option include references to an option binding the grantor to grant a lease for a premium or to enter into any other transaction which is not a sale, and references to buying and selling in pursuance of an option shall be construed accordingly.
(2) Without prejudice to sections 534 and 535 , the grant of an option, including—
(a) the grant of an option binding the grantor to sell an asset the grantor does not own and, because the option is abandoned, never has occasion to own, and
(b) the grant of an option binding the grantor to buy an asset which, because the option is abandoned, the grantor does not acquire,
shall constitute the disposal of an asset (being the option) for the purposes of the Capital Gains Tax Acts, but subject to the following provisions of this section as to treating the grant of an option as part of a larger transaction.
(3) Where an option is exercised, the grant of the option and the transaction entered into by the grantor in fulfilment of the grantor's obligations under the option shall be treated as a single transaction, and accordingly for the purposes of the Capital Gains Tax Acts—
(a) if the option binds the grantor to sell, the consideration for the option shall be part of the consideration for the sale, and
(b) if the option binds the grantor to buy, the consideration for the option shall be deducted from the cost of acquisition incurred by the grantor in buying in pursuance of the grantor's obligations under the option.
(4) The exercise of an option by the person for the time being entitled to exercise it shall not constitute the disposal of an asset for the purposes of the Capital Gains Tax Acts by that person; but, if an option is exercised, the acquisition of the option (whether directly from the grantor or not) and the transaction entered into by the person exercising the option in exercise of that person's rights under the option shall be treated as a single transaction, and accordingly for the purposes of the Capital Gains Tax Acts—
(a) if the option binds the grantor to sell, the cost of acquiring the option shall be part of the cost of acquiring the asset which is sold, and
(b) if the option binds the grantor to buy, the cost of the option shall be treated as a cost incidental to the disposal of the asset which is bought by the grantor of the option.
(5) (a) The abandonment of an option by the person for the time being entitled to exercise it shall constitute the disposal of an asset (being the option) for the purposes of the Capital Gains Tax Acts by that person.
(b) Subject to subsections (7) and (8)(a), the abandonment of an option by the person for the time being entitled to exercise it shall not for the purposes of the Capital Gains Tax Acts give rise to an allowable loss.
(6) In relation to the disposal by means of transfer of an option binding the grantor to sell or buy shares or securities which have a quoted market value on a stock exchange in the State or elsewhere, the option shall be regarded for the purposes of the Capital Gains Tax Acts as a wasting asset the life of which ends when the right to exercise the option ends, or when the option becomes valueless, whichever is the earlier, but without prejudice to the application of the provisions of Chapter 2 of this Part relating to wasting assets to other descriptions of options.
(7) Where an option, being an option to acquire assets exercisable by a person intending to use the assets, if acquired, for the purposes of a trade carried on by that person or which that person commences to carry on within 2 years of that person's acquisition of the option, is disposed of or abandoned, then—
(a) if the option is abandoned, subsection (5)(b) shall not apply, and
(b) section 560 (3) shall not apply.
(8) (a) Where—
(i) a quoted option to subscribe for shares in a company, or
(ii) a traded option,
is disposed of or abandoned, then—
(I) if the option is abandoned, subsection (5)(b) shall not apply, and
(II) section 560(3) and subsection (6) shall not apply.
(b) Where a quoted option to subscribe for shares in a company is dealt in within 3 months after the taking effect, with respect to the company granting the option, of any reorganisation, reduction, conversion or amalgamation to which section 584 , 585 , 586 or 587 applies (or within such longer period as the Revenue Commissioners may by notice in writing allow), the option shall for the purposes of section 584 , 585 , 586 or 587 be regarded as the shares which could be acquired by exercising the option, and section 548 (3) shall apply for determining its market value.
(9) This section shall apply in relation to an option binding the grantor both to sell and to buy as if it were 2 separate options with 50 per cent of the consideration attributed to each option.
(10) This section shall apply in relation to a forfeited deposit of purchase money or other consideration money for a prospective purchase or other transaction which is abandoned as it applies in relation to the consideration for an option which binds the grantor to sell and which is not exercised.
num: 541
paragraphs: —(1) (a) For the purposes of the Capital Gains Tax Acts but subject to paragraph (b), where a person incurs a debt to another person (being the original creditor), whether in Irish currency or in some other currency, no chargeable gain shall accrue to that creditor or to that creditor's personal representative or legatee on a disposal of the debt.
(b) Paragraph (a) shall not apply in the case of a debt on a security within the meaning of section 585 .
(2) Subject to subsection (1) and sections 585 and 586 , the satisfaction of a debt or part of a debt (including a debt on a security within the meaning of section 585 ) shall be treated for the purposes of the Capital Gains Tax Acts as a disposal of the debt or of that part by the creditor made at the time when the debt or that part is satisfied.
(3) Where property is acquired by a creditor in satisfaction of the creditor's debt or part of that debt, then, subject to sections 585 and 586 , the property shall not be treated for the purposes of the Capital Gains Tax Acts as disposed of by the debtor or acquired by the creditor for a consideration greater than its market value at the time of the creditor's acquisition of it; but, if under subsection (1) (and in a case not within either section 585 or 586 ) no chargeable gain is to accrue on a disposal of the debt by the original creditor and a chargeable gain accrues to that creditor on a disposal by that creditor of the property, the amount of the chargeable gain shall (where necessary) be reduced so as not to exceed the chargeable gain which would have accrued if that creditor had acquired the property for a consideration equal to the amount of the debt or that part of the debt.
(4) For the purposes of the Capital Gains Tax Acts, a loss accruing on the disposal of a debt acquired by the person making the disposal from the original creditor or the original creditor's personal representative or legatee at a time when the creditor or the creditor's personal representative or legatee is a person connected with the person making the disposal, and so acquired either directly or by one or more than one purchase through persons all of whom are connected with the person making the disposal, shall not be an allowable loss.
(5) Where the original creditor is a trustee and the debt when created is settled property, subsections (1) and (4) shall apply as if for the references to the original creditor's personal representative or legatee there were substituted references to any person becoming absolutely entitled as against the trustee to the debt on its ceasing to be settled property and to that person's personal representative or legatee.
(6) This section shall not apply to a debt owed by a bank which is not in Irish currency and which is represented by a sum standing to the credit of a person in an account in the bank, unless it represents currency acquired by the holder for the personal expenditure outside the State of the holder or his or her family or dependants (including expenditure on the maintenance of any residence outside the State).
(7) For the purposes of this section, a debenture issued by any company shall be deemed to be a security (within the meaning of section 585 ) if it is issued—
(a) on a reorganisation referred to in section 584 (2) or in pursuance of the debenture's allotment on any such reorganisation,
(b) in exchange for shares in or debentures of another company where the requirements of section 586 (2) are satisfied in relation to the exchange,
(c) under any arrangements referred to in section 587 (2),
(d) in connection with any transfer of assets referred to in section 631 ,
(e) in connection with any disposal of assets referred to in section 632 ,
(f) in the course of a transaction which is the subject of an application under section 637 , or
(g) in pursuance of rights attached to any debenture within paragraph (a), (b), (c), (d), (e) or (f).
(8) Paragraphs (d), (e) and (f), and (in so far as it relates to debentures within those paragraphs) paragraph (g), of subsection (7) shall apply as respects the disposal of a debenture on or after the 26th day of March, 1997.
num: 542
paragraphs: —(1) (a) Subject to paragraph (b) and subsection (2), for the purposes of the Capital Gains Tax Acts, where an asset is disposed of and acquired under a contract, the time at which the disposal and acquisition is made shall be the time at which the contract is made(and not, if different, the time at which the asset is conveyed or transferred).
(b) Where the contract is conditional (and in particular where it is conditional on the exercise of an option), the time at which the disposal and acquisition is made shall be the time at which the condition is satisfied.
(c) For the purposes of the Capital Gains Tax Acts, where an interest in land is acquired, otherwise than under a contract, by an authority possessing compulsory purchase powers, the time at which the disposal and acquisition is made shall be the time at which the compensation for the acquisition is agreed or otherwise determined (variations on appeal being disregarded for this purpose) or, if earlier, the time at which the authority enters on the land in pursuance of its powers.
(2) For the purposes of subparagraphs (i) to (iv) of section 535 (2)(a), the time of disposal shall be the time at which any capital sum is received.
num: 543
paragraphs: —(1) Without prejudice to the generality of the provisions of the Capital Gains Tax Acts as to the transactions which are disposals of assets, any transaction which under this section is to be treated as a disposal of an asset—
(a) shall be so treated (with a corresponding acquisition of an interest in the asset) notwithstanding that there is no consideration, and
(b) in so far as, on the assumption that the parties to the transaction were at arm's length, the party making the disposal could have obtained consideration or additional consideration for the disposal, shall be treated as not being at arm's length, and the consideration so obtainable, added to the consideration actually passing, shall be treated as the market value of what is acquired.
(2) (a) Where a person having control of a company exercises that control so that value passes out of shares in the company owned by such person or a person with whom such person is connected, or out of rights over the company exercisable by such person or by a person with whom such person is connected, and passes into other shares in or rights over the company, that exercise of such person's control shall be a disposal of the shares or rights out of which the value passes by the person by whom they were owned or exercisable.
(b) References in paragraph (a) to a person include references to 2 or more persons connected with one another.
(3) Where, after a transaction which results in the owner of land or of any other description of property becoming the lessee of the property, there is any adjustment of the rights and liabilities under the lease (whether or not involving the grant of a new lease) which as a whole is favourable to the lessor, that shall constitute a disposal by the lessee of an interest in the property.
(4) Where an asset is subject to any description of right or restriction, the extinction or abrogation in whole or in part of the right or restriction by the person entitled to enforce it shall constitute a disposal by that person of the right or restriction.
num: 544
paragraphs: —(1) In this Chapter, “renewals allowance” means a deduction allowable in computing profits, gains or losses for the purposes of the Income Tax Acts by reference to the cost of acquiring an asset in replacement of another asset, and for the purposes of this Chapter a renewals allowance shall be regarded as a deduction allowable in respect of the expenditure incurred on the asset which is being replaced.
(2) References in this Chapter to sums taken into account as receipts or as expenditure in computing profits, gains or losses for the purposes of the Income Tax Acts shall include references to sums which would be so taken into account but for the fact that any profits or gains of a trade, profession or employment are not chargeable to income tax or that losses are not allowable for those purposes.
(3) References in this Chapter to income or profits charged or chargeable to tax include references to income or profits taxed or, as the case may be, taxable by deduction at source.
(4) No deduction shall be allowable in a computation under the Capital Gains Tax Acts more than once from any sum or from more than one sum.
(5) For the purposes of any computation under this Chapter of a gain accruing on a disposal, any necessary apportionment shall be made of any consideration or of any expenditure, and the method of apportionment adopted shall, subject to this Chapter, be such method as appears to the inspector or on appeal the Appeal Commissioners to be just and reasonable.
(6) Section 557 and the other provisions of the Capital Gains Tax Acts for apportioning on a part disposal expenditure which is deductible in computing a gain shall be operated before the operation of and without regard to—
(a) section 1028(5),
(b) section 597, and
(c) any other provision making an adjustment to secure that neither a gain nor a loss accrues on a disposal.
(7) Any assessment to income tax or any decision on a claim under the Income Tax Acts, and any decision on an appeal under the Income Tax Acts against such an assessment or decision, shall be conclusive in so far as under any provision of the Capital Gains Tax Acts liability to tax depends on the provisions of the Income Tax Acts.
(8) In so far as the provisions of the Capital Gains Tax Acts require the computation of a gain by reference to events before the 6th day of April, 1974, all those provisions, including the provisions fixing the amount of the consideration deemed to be given on a disposal or an acquisition, shall apply except in so far as expressly excluded.
num: 545
paragraphs: —(1) Where under the Capital Gains Tax Acts an asset is not a chargeable asset, no chargeable gain shall accrue on its disposal.
(2) The amount of the gain accruing on the disposal of an asset shall be computed in accordance with this Chapter, and subject to the other provisions of the Capital Gains Tax Acts.
(3) Except where otherwise expressly provided by the Capital Gains Tax Acts, every gain shall be a chargeable gain.
num: 546
paragraphs: —(1) Where under the Capital Gains Tax Acts an asset is not a chargeable asset, no allowable loss shall accrue on its disposal.
(2) Except where otherwise expressly provided, the amount of a loss accruing on a disposal of an asset shall be computed in the same way as the amount of a gain accruing on a disposal is computed.
(3) Except where otherwise expressly provided, the provisions of the Capital Gains Tax Acts which distinguish gains which are chargeable gains from those which are not, or which make part of a gain a chargeable gain and part not, shall apply also to distinguish losses which are allowable losses from those which are not, and to make part of a loss an allowable loss and part not, and references in the Capital Gains Tax Acts to an allowable loss shall be construed accordingly.
(4) A loss accruing to a person in a year of assessment for which the person is neither resident nor ordinarily resident in the State shall not be an allowable loss for the purposes of the Capital Gains Tax Acts unless under section 29 (3) the person would be chargeable to capital gains tax in respect of a chargeable gain if there had been a gain instead of a loss on that occasion.
(5) Except where provided by section 573 , an allowable loss accruing in a year of assessment shall not be allowable as a deduction from chargeable gains in any earlier year of assessment, and relief shall not be given under the Capital Gains Tax Acts—
(a) more than once in respect of any loss or part of a loss, and
(b) if and in so far as relief has been or may be given in respect of that loss or part of a loss under the Income Tax Acts.
(6) For the purposes of section 31 , where, on the assumption that there were no allowable losses to be deducted under that section, a person would be chargeable under the Capital Gains Tax Acts at more than one rate of tax for a year of assessment, any allowable losses to be deducted under that section shall be deducted—
(a) if the person would be so chargeable at 2 different rates, from the chargeable gains which would be so chargeable at the higher of those rates and, in so far as they cannot be so deducted, from the chargeable gains which would be so chargeable at the lower of those rates, and
(b) if the person would be so chargeable at 3 or more rates, from the chargeable gains which would be so chargeable at the highest of those rates and, in so far as they cannot be so deducted, from the chargeable gains which would be so chargeable at the next highest of those rates, and so on.
num: 547
paragraphs: —(1) Subject to the Capital Gains Tax Acts, a person's acquisition of an asset shall for the purposes of those Acts be deemed to be for a consideration equal to the market value of the asset where—
(a) the person acquires the asset otherwise than by means of a bargain made at arm's length (including in particular where the person acquires it by means of a gift),
(b) the person acquires the asset by means of a distribution from a company in respect of shares in the company, or
(c) the person acquires the asset wholly or partly—
(i) for a consideration that cannot be valued,
(ii) in connection with the person's own or another person's loss of office or employment or diminution of emoluments, or
(iii) otherwise in consideration for or in recognition of the person's or another person's services or past services in any office or employment or of any other service rendered or to be rendered by the person or another person.
(2) (a) In this subsection, “shares” includes stock, debentures and any interests to which section 587 (3) applies and any option in relation to such shares, and references in this subsection to an allotment of shares shall be construed accordingly.
(b) Notwithstanding subsection (1) and section 584 (3), where a company, otherwise than by means of a bargain made at arm's length, allots shares in the company (in this subsection referred to as “the new shares”) to a person connected with the company, the consideration which the person gives or becomes liable to give for the new shares shall for the purposes of the Capital Gains Tax Acts be deemed to be an amount (including a nil amount) equal to the lesser of—
(i) the amount or value of the consideration given by the person for the new shares, and
(ii) the amount by which the market value of the shares in the company which the person held immediately after the allotment of the new shares exceeds the market value of the shares in the company which the person held immediately before the allotment or, if the person held no such shares immediately before the allotment, the market value of the new shares immediately after the allotment.
(3) Subsection (1) shall not apply to the acquisition of an asset where—
(a) there is no corresponding disposal of the asset, and
(b) (i) there is no consideration in money or money's worth for the asset, or
(ii) the consideration for the asset is of an amount or value which is lower than the market value of the asset.
(4) (a) Subject to the Capital Gains Tax Acts, a person's disposal of an asset shall for the purposes of those Acts be deemed to be for a consideration equal to the market value of the asset where—
(i) the person disposes of the asset otherwise than by means of a bargain made at arm's length (including in particular where the person disposes of it by means of a gift), or
(ii) the person disposes of the asset wholly or partly for a consideration that cannot be valued.
(b) Paragraph (a) shall not apply to a disposal by means of a gift made before the 20th day of December, 1974, and any loss incurred on a disposal by means of a gift made before that date shall not be an allowable loss.
num: 548
paragraphs: —(1) Subject to this section, in the Capital Gains Tax Acts, “market value”, in relation to any assets, means the price which those assets might reasonably be expected to fetch on a sale in the open market.
(2) In estimating the market value of any assets, no reduction shall be made in the estimate on account of the estimate being made on the assumption that the whole of the assets is to be placed on the market at the same time.
(3) (a) The market value of shares or securities quoted on a stock exchange in the State or in the United Kingdom shall, except where in consequence of special circumstances the prices quoted are by themselves not a proper measure of market value, be as follows—
(i) in relation to shares or securities listed in the Stock Exchange Official List-Irish—
(I) the price shown in that list at which bargains in the shares or securities were last recorded (the previous price), or
(II) where bargains other than bargains done at special prices were recorded in that list for the relevant date, the price at which the bargains were so recorded or, if more than one such price was so recorded, a price halfway between the highest and the lowest of such prices,
taking the amount under clause (I) if less than under clause (II) or if no such business was recorded on the relevant date, and taking the amount under clause (II) if less than under clause (I), and
(ii) in relation to shares or securities listed in the Stock Exchange Daily Official List—
(I) the lower of the 2 prices shown in the quotations for the shares or securities on the relevant date plus 25 per cent of the difference between those 2 figures, or
(II) where bargains other than bargains done at special prices were recorded in that list for the relevant date, the price at which the bargains were so recorded or, if more than one such price was so recorded, a price halfway between the highest and the lowest of such prices,
taking the amount under clause (I) if less than under clause (II) or if no such bargains were recorded for the relevant date, and taking the amount under clause (II) if less than under clause (I).
(b) Notwithstanding paragraph (a)—
(i) where the shares or securities are listed in both of the Official Lists referred to in that paragraph for the relevant date, the lower of the 2 amounts as ascertained under subparagraphs (i) and (ii) of that paragraph shall be taken,
(ii) this subsection shall not apply to shares or securities for which some other stock exchange affords a more active market, and
(iii) if the stock exchange concerned, or one of the stock exchanges concerned, is closed on the relevant date, the market value shall be ascertained by reference to the latest previous date or earliest subsequent date on which it is open, whichever affords the lower market value.
(4) Where shares and securities are not quoted on a stock exchange at the time at which their market value is to be determined by virtue of subsection (1), it shall be assumed for the purposes of such determination that in the open market which is postulated for the purposes of subsection (1) there is available to any prospective purchaser of the asset in question all the information which a prudent prospective purchaser of the asset might reasonably require if such prospective purchaser were proposing to purchase it from a willing vendor by private treaty and at arm's length.
(5) In the Capital Gains Tax Acts, “market value”, in relation to any rights of unit holders in any unit trust (including any unit trust legally established outside the State) the buying and selling prices of which are published regularly by the managers of the trust, means an amount equal to the buying price (that is, the lower price) so published on the relevant date or, if none was published on that date, on the latest date before that date.
(6) If and in so far as any appeal against an assessment to capital gains tax or against a decision on a claim under the Capital Gains Tax Acts involves the question of the value of any shares or securities in a company resident in the State, other than shares or securities quoted on a stock exchange, that question shall be determined in the like manner as an appeal against an assessment made on the company.
(7) Subsection (6) shall apply for the purposes of corporation tax as it applies for the purposes of capital gains tax.
num: 549
paragraphs: —(1) This section shall apply for the purposes of the Capital Gains Tax Acts where a person acquires an asset and the person making the disposal is connected with the person acquiring the asset.
(2) Without prejudice to the generality of section 547 , the person acquiring the asset and the person making the disposal shall be treated as parties to a transaction otherwise than by means of a bargain made at arm's length.
(3) Where on the disposal a loss accrues to the person making the disposal, the loss shall not be deductible except from a chargeable gain accruing to that person on some other disposal of an asset to the person acquiring the asset mentioned in subsection (1), being a disposal made at a time when they are connected persons.
(4) Subsection (3) shall not apply to a disposal by means of a gift in settlement if the gift and the income from it are wholly or primarily applicable for educational, cultural or recreational purposes, and the persons benefiting from the application for those purposes are confined to members of an association of persons for whose benefit the gift was made, not being persons all or most of whom are connected persons.
(5) Where the asset mentioned in subsection (1) is an option to enter into a sale or other transaction given by the person making the disposal, a loss accruing to a person acquiring the asset shall not be an allowable loss unless it accrues on a disposal of the option at arm's length to a person not connected with the person acquiring the asset.
(6) Where the asset mentioned in subsection (1) is subject to any right or restriction enforceable by the person making the disposal or by a person connected with that person, then (where the amount of the consideration for the acquisition is in accordance with subsection (2) deemed to be equal to the market value of the asset), that market value shall be what its market value would be if not subject to the right or restriction, reduced by the lesser of—
(a) the market value of the right or restriction, and
(b) the amount by which its extinction would enhance the value of the asset to its owner.
(7) Where the right or restriction referred to in subsection (6)—
(a) is of such a nature that its enforcement would or might effectively destroy or substantially impair the value of the asset without bringing any countervailing advantage either to the person making the disposal or a person connected with that person,
(b) is an option or other right to acquire the asset, or
(c) in the case of incorporeal property, is a right to extinguish the asset in the hands of the person giving the consideration by forfeiture or merger or otherwise,
then, the market value of the asset shall be determined, and the amount of the gain accruing on the disposal shall be computed, as if the right or restriction did not exist.
(8) (a) Where a person disposes of an asset to another person in such circumstances that—
(i) subsection (7) would but for this subsection apply in determining the market value of the asset, and
(ii) the person is not chargeable to capital gains tax under section 29 or 30 in respect of any gain accruing on the person's disposal of the asset,
then, as respects any subsequent disposal of the asset by the other person, that other person's acquisition of the asset shall for the purposes of the Capital Gains Tax Acts be deemed to be for an amount equal to the market value of the asset determined as if subsection (7) had not been enacted.
(b) This subsection shall apply—
(i) to disposals made on or after the 25th day of January, 1989, and
(ii) for the purposes of the determination of any deduction to be made from a chargeable gain accruing on or after the 25th day of January, 1989, in respect of an allowable loss, notwithstanding that the loss accrued or but for this section would have accrued on a disposal made before that day.
(9) Subsections (6) and (7) shall not apply to a right of forfeiture or other right exercisable on breach of a covenant contained in a lease of land or other property, or to any right or restriction under a mortgage or other charge.
num: 550
paragraphs: —Where a person is given, or acquires from one or more persons with whom such person is connected, by means of 2 or more transactions, assets of which the aggregate market value, when considered separately in relation to the separate other transactions, is less than the aggregate market value of those assets when considered together, then, for the purposes of the Capital Gains Tax Acts, the market value of the assets where relevant shall be taken to be the larger market value and that value shall be apportioned rateably to the respective disposals.
num: 551
paragraphs: —(1) In this section, “rent” includes any rent charge, fee farm rent and any payment in the nature of a rent.
num: 552
paragraphs: —(1) Subject to the Capital Gains Tax Acts, the sums allowable as a deduction from the consideration in the computation under this Chapter of the gain accruing to a person on the disposal of an asset shall be restricted to—
(a) the amount or value of the consideration in money or money's worth given by the person or on the person's behalf wholly and exclusively for the acquisition of the asset, together with the incidental costs to the person of the acquisition or, if the asset was not acquired by the person, any expenditure wholly and exclusively incurred by the person in providing the asset,
(b) the amount of any expenditure wholly and exclusively incurred on the asset by the person or on the person's behalf for the purpose of enhancing the value of the asset, being expenditure reflected in the state or nature of the asset at the time of the disposal, and any expenditure wholly and exclusively incurred by the person in establishing, preserving or defending the person's title to, or to a right over, the asset, and
(c) the incidental costs to the person of making the disposal.
(2) For the purposes of the Capital Gains Tax Act as respects the person making the disposal, the incidental costs to the person of the acquisition of the asset or of its disposal shall consist of expenditure wholly and exclusively incurred by that person for the purposes of the acquisition or, as the case may be, the disposal, being fees, commission or remuneration paid for the professional services of any surveyor, valuer, auctioneer, accountant, agent or legal advisor and costs of transfer or conveyance (including stamp duty), together with—
(a) in the case of the acquisition of an asset, costs of advertising to find a seller, and
(b) in the case of a disposal, costs of advertising to find a buyer and costs reasonably incurred in making any valuation or apportionment required for the purposes of the computation under this Chapter of the gain, including in particular expenses reasonably incurred in ascertaining market value where required by the Capital Gains Tax Acts.
(3) (a) Where—
(i) a company incurs expenditure on the construction of any building, structure or works, being expenditure allowable as a deduction under subsection (1) in computing a gain accruing to the company on the disposal of the building, structure or works, or of any asset comprising the building, structure or works,
(ii) that expenditure was defrayed out of borrowed money,
(iii) the company charged to capital all or any part of the interest on that borrowed money referable to a period ending on or before the disposal, and
(iv) the company is chargeable to capital gains tax in respect of the gain, then, the sums so allowable under subsection (1) shall include the amount of that interest charged to capital except in so far as such interest has been taken into account for the purposes of relief under the Income Tax Acts, or could have been so taken into account but for an insufficiency of income or profits or gains.
(b) Subject to paragraph (a), no payment of interest shall be allowable as a deduction under this section.
(4) Without prejudice to section 554 , there shall be excluded from the sums allowable as a deduction under this section any premium or other payment made under a policy of insurance of the risk of any kind of damage or injury to, or loss or depreciation of, the asset.
(5) In the case of a gain accruing to a person on the disposal of, or of a right or interest in or over, an asset to which the person became absolutely entitled as legatee or as against the trustees of settled property—
(a) any expenditure within subsection (2) incurred by the person in relation to the transfer of the asset to the person by the personal representatives or trustees, and
(b) any such expenditure incurred in relation to the transfer of the asset by the personal representatives or trustees,
shall be allowable as a deduction under this section.
num: 553
paragraphs: —Where—
(a) a company incurs expenditure on the construction of any building, structure or works, being expenditure allowable as a deduction under section 552 in computing a gain accruing to the company on the disposal of the building, structure or works, or of any asset comprising the building, structure or works,
(b) that expenditure was defrayed out of borrowed money, and
(c) the company charged to capital all or any of the interest on that borrowed money referable to a period or part of a period ending on or before the disposal,
then, the sums so allowable shall, notwithstanding section 552 (3)(b), include the amount of that interest charged to capital.
num: 554
paragraphs: —(1) There shall be excluded from the sums allowable under section 552 as a deduction any expenditure allowable as a deduction in computing the profits or gains or losses of a trade or profession for the purposes of income tax or allowable as a deduction in computing any other income or profits or gains or losses for the purposes of the Income Tax Acts and any expenditure which, although not so allowable as a deduction in computing any losses, would be so allowable but for an insufficiency of income or profits or gains, and this subsection shall apply irrespective of whether effect is or would be given to the deduction in computing the amount of tax chargeable or by discharge or repayment of tax or in any other way.
(2) Without prejudice to subsection (1), there shall be excluded from the sums allowable under section 552 as a deduction any expenditure which, if the assets or all the assets to which the computation relates were, and had at all times been, held or used as part of the fixed capital of a trade the profits or gains of which were chargeable to income tax, would be allowable as a deduction in computing the profits or gains or losses of the trade for the purposes of the Income Tax Acts.
num: 555
paragraphs: —(1) Section 554 shall not require the exclusion from the sums allowable as a deduction under section 552 of any expenditure as being expenditure in respect of which a capital allowance or renewals allowance is made but, in the computation of the amount of a loss accruing to the person making the disposal, there shall be excluded from the sums allowable as a deduction any expenditure to the extent to which any capital allowance or renewals allowance has been or may be made in respect of that expenditure.
(2) Where the person making the disposal acquired the asset—
(a) by a transfer to which section 289 (6) or 295 applies, or
(b) by a transfer by means of a sale in relation to which an election under section 312 (5) was made,
then, this section shall apply as if any capital allowance made to the transferor in respect of the asset had (except in so far as any loss to the transferor was restricted under those sections) been made to the person making the disposal (being the transferee) and, where the transferor acquired the asset by such a transfer, capital allowances which by virtue of this subsection may be taken into account in relation to the transferor shall also be taken into account in relation to the transferee, and so on for any series of transfers before the disposal.
(3) The amount of capital allowances to be taken into account under this section in relation to a disposal includes any allowances to be made by reference to the event which is the disposal, and there shall be deducted from the amount of the allowances the amount of any balancing charge to which effect has been or is to be given by reference to the event which is the disposal, or any earlier event, and of any balancing charge to which effect might have been so given but for the making of an election under section 290 .
num: 556
paragraphs: —(1) In this section—
“the consumer price index number” means the All Items Consumer Price Index Number compiled by the Central Statistics Office;
“the consumer price index number relevant to any year of assessment” means the consumer price index number at the mid-February before the commencement of that year expressed on the basis that the consumer price index at mid-November, 1968, was 100.
(2) (a) For the purposes of computing the chargeable gain accruing to a person on the disposal of an asset, each sum (in this section referred to as “deductible expenditure”) allowable as a deduction from the consideration for the disposal under paragraphs (a) and (b) of section 552 (1) shall be adjusted by multiplying it by the figure (in this section referred to as “the multiplier”) specified in subsection (5) or determined under subsection (6), as the case may be.
(b) This subsection shall not apply in relation to deductible expenditure where the person making the disposal had incurred the expenditure in the period of 12 months ending on the date of the disposal.
(3) For the purposes of the Capital Gains Tax Acts, it shall be assumed that an asset held by a person on the 6th day of April, 1974, was sold and immediately reacquired by such person on that date, and there shall be deemed to have been given by such person as consideration for the reacquisition an amount equal to the market value of the asset at that date.
(4) Subsections (2) and (3) shall not apply in relation to the disposal of an asset if as a consequence of the application of those subsections—
(a) a gain would accrue on that disposal to the person making the disposal and either a smaller gain or a loss would so accrue if those subsections did not apply, or
(b) a loss would so accrue and either a smaller loss or a gain would accrue if those subsections did not apply,
and accordingly, in a case to which paragraph (a) or (b) applies, the amount of the gain or loss accruing on the disposal shall be computed without regard to subsections (2) and (3); but, in a case where this subsection would otherwise substitute a loss for a gain or a gain for a loss, it shall be assumed in relation to the disposal that the relevant asset was acquired by the owner for a consideration such that neither a gain nor a loss accrued to the owner on making the disposal.
(5) In relation to the disposal of an asset made in the year 1997-98, the multiplier shall be the figure mentioned in column (2) of the Table to this subsection opposite the mention in column (1) of that Table of the year of assessment in which the deductible expenditure was incurred.
TABLE
Year of assessment in which deductible expenditure incurred
Multiplier
(1)
(2)
1974-75
num: 6
paragraphs: 112
1975-76
num: 4
paragraphs: 936
1976-77
num: 4
paragraphs: 253
1977-78
num: 3
paragraphs: 646
1978-79
num: 3
paragraphs: 368
1979-80
num: 3
paragraphs: 039
1980-81
num: 2
paragraphs: 631
1981-82
num: 2
paragraphs: 174
1982-83
num: 1
paragraphs: 829
1983-84
num: 1
paragraphs: 627
1984-85
num: 1
paragraphs: 477
1985-86
num: 1
paragraphs: 390
1986-87
num: 1
paragraphs: 330
1987-88
num: 1
paragraphs: 285
1988-89
num: 1
paragraphs: 261
1989-90
num: 1
paragraphs: 221
1990-91
num: 1
paragraphs: 171
1991-92
num: 1
paragraphs: 142
1992-93
num: 1
paragraphs: 101
1993-94
num: 1
paragraphs: 081
1994-95
num: 1
paragraphs: 063
1995-96
num: 1
paragraphs: 037
1996-97
num: 1
paragraphs: 016
(6) (a) The Revenue Commissioners shall make regulations specifying the multipliers, determined in accordance with paragraph (b), in relation to the disposal of an asset made in the year 1998-99 and shall make corresponding regulations in relation to the disposal of an asset made in each subsequent year of assessment.
(b) The multiplier, in relation to the disposal of an asset made in the year 1998-99 or any subsequent year of assessment, shall be the quotient, rounded up to 3 decimal places, obtainable by dividing the consumer price index number relevant to the year of assessment in which the disposal is made by the consumer price index number relevant to the year of assessment in which the deductible expenditure was incurred.
(7) Every regulation made under this section shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(8) A capital sum which under section 536 (1)(a) is to be deducted from any expenditure allowable as a deduction in computing a gain on the disposal of an asset shall be deducted from the sum applied in restoring the asset before subsection (2) is applied to the residue, if any, of that sum.
(9) An amount determined in accordance with subsection (3) in respect of an asset shall be reduced by any expenditure within section 565 which relates to the asset and which was incurred before the 6th day of April, 1974, and subsection (2) shall apply to the residue of that amount.
num: 557
paragraphs: —(1) Where a person disposes of an interest or rights in or over an asset and, generally wherever on the disposal of an asset, any description of property derived from that asset remains undisposed of, the sums which under paragraphs (a) and (b) of section 552 (1) are attributable to the asset shall be apportioned both for the purposes of the computation under this Chapter of the gain accruing on the disposal and for the purpose of applying this Chapter in relation to the property which remains undisposed of.
(2) Such portion of the expenditure shall be allowable as a deduction in computing under this Chapter the amount of the gain accruing on the disposal as bears the same proportion to the total of those sums as the value of the consideration for the disposal bears to the aggregate of that value and the market value of the property which remains, and the balance of the expenditure shall be attributed to the property which remains undisposed of.
(3) Any apportionment to be made in pursuance of this section shall be made before the operation of section 555 and, if after a part disposal there is a subsequent disposal of an asset, the capital allowances or renewals allowances to be taken into account in pursuance of that section in relation to the subsequent disposal shall, subject to subsection (4), be those referable to the sums which under paragraphs (a) and (b) of section 552 (1) are attributable to the asset whether before or after the part disposal, but those allowances shall be reduced by the amount (if any) by which the loss on the earlier disposal was restricted under that section.
(4) This section shall not be taken as requiring the apportionment of any expenditure which on the facts is wholly attributable to the asset or part of the asset which is disposed of or wholly attributable to the asset or part of the asset which remains undisposed of.
num: 558
paragraphs: —(1) Where on or after the 6th day of April, 1974, but before the 6th day of April, 1978, a person made a disposal (to which paragraph 6 of Schedule 1 to the Capital Gains Tax Act, 1975 , applied) of an asset held by such person on the 6th day of April, 1974, and—
num: 559
paragraphs: —(1) If and in so far as, in a case where assets have been merged or divided or have changed their nature, or rights or interests in or over assets have been created or extinguished, the value of an asset is derived from any other asset in the same ownership, an appropriate proportion of the sums allowable as a deduction in respect of the other asset under paragraphs (a) and (b) of section 552 (1) shall, both for the purpose of the computation of a gain accruing on the disposal of the first-mentioned asset and, if the other asset remains in existence, on a disposal of that other asset, be attributed to the first-mentioned asset.
(2) The appropriate proportion shall be computed by reference to the market value at the time of disposal of the assets (including rights or interests in or over the assets) which have not been disposed of and the consideration received in respect of the assets (including rights or interests in or over the assets) disposed of.
num: 560
paragraphs: —(1) In this Chapter—
“the residual or scrap value”, in relation to a wasting asset, means the predictable value, if any, which the wasting asset will have at the end of its predictable life as estimated in accordance with this section;
“wasting asset” means an asset with a predictable life not exceeding 50 years, but so that—
(a) freehold land shall not be a wasting asset whatever its nature and whatever the nature of the buildings or works on that land,
(b) “life”, in relation to any tangible movable property, means useful life, having regard to the purpose for which the tangible assets were acquired or provided by the person making the disposal,
(c) plant and machinery shall in every case be regarded as having a predictable life of less than 50 years, and in estimating that life it shall be assumed that its life will end when it is finally put out of use as being unfit for further use and that it will be used in the normal manner and to the normal extent and will be so used throughout its life as so estimated, and
(d) a life interest in settled property shall not be a wasting asset until the predictable expectation of life of the life tenant is 50 years or less, and the predictable life of life interests in settled property and of annuities shall be ascertained from actuarial tables approved by the Revenue Commissioners.
(2) The question as to what is the predictable life of an asset, and the question as to what is its predictable residual or scrap value, if any, at the end of that life, shall, in so far as those questions are not immediately answered by the nature of the asset, be taken in relation to any disposal of the asset as they were known or ascertainable at the time when the asset was acquired or provided by the person making the disposal.
(3) In the computation under this Chapter of the gain accruing on the disposal of a wasting asset, it shall be assumed—
(a) that any expenditure attributable to the asset under section 552 (1)(a), after deducting the residual or scrap value, if any, of the asset, is written off at a uniform rate from its full amount at the time when the asset is acquired or provided to nil at the end of its life, and
(b) that any expenditure attributable to the asset under section 552 (1)(b) is written off at a uniform rate from the full amount of that expenditure at the time when that expenditure is first reflected in the state or nature of the asset to nil at the end of its life.
(4) Where any expenditure attributable to the asset under section 552 (1) (b) creates or increases a residual or scrap value of the asset, the residual or scrap value to be deducted under subsection (3)(a) shall be the residual or scrap value so created or increased.
(5) Any expenditure written off under this section shall not be allowable as a deduction under section 552 .
num: 561
paragraphs: —(1) Subsections (3) to (5) of section 560 shall not apply in relation to a disposal of an asset—
(a) which, from the beginning of the period of ownership of the person making the disposal to the time when the disposal is made, is used solely for the purposes of a trade or profession and in respect of which that person has claimed or could have claimed any capital allowance in respect of any expenditure attributable to the asset under paragraph (a) or (b) of section 552 (1), or
(b) on which the person making the disposal has incurred any expenditure which has otherwise qualified in full for any capital allowance.
(2) In the case of the disposal of an asset which in the period of ownership of the person making the disposal has been used partly for the purposes of a trade or profession and partly for other purposes, or has been used for the purposes of a trade or profession for part of that period, or which has otherwise qualified in part only for capital allowances—
(a) the consideration for the disposal and any expenditure attributable to the asset under paragraph (a) or (b) of section 552 (1) shall be apportioned by reference to the extent to which that expenditure qualified for capital allowances,
(b) the computation under this Chapter of the gain on the disposal shall be made separately in relation to the apportioned parts of the expenditure and consideration,
(c) subsections (3) to (5) of section 560 shall not apply for the purposes of the computation in relation to the part of the consideration apportioned to use for the purposes of the trade or profession or to the expenditure qualifying for capital allowances,
(d) if an apportionment of the consideration for the disposal has been made for the purposes of making any capital allowance to the person making the disposal or for the purpose of making any balancing charge on that person, that apportionment shall be employed for the purposes of this section, and
(e) subject to paragraph (d), the consideration for the disposal shall be apportioned for the purposes of this section in the same proportions as the expenditure attributable to the asset is apportioned under paragraph (a).
num: 562
paragraphs: —(1) No allowance shall be made under section 552 —
(a) in the case of a disposal by means of assigning a lease of land or other property, for any liability remaining with or assumed by the person making the disposal by means of assigning the lease which is contingent on a default in respect of liabilities thereby or subsequently assumed by the assignee under the terms and conditions of the lease;
(b) for any contingent liability of the person making the disposal in respect of any covenant for quiet enjoyment or other obligation assumed—
(i) as vendor of land or of any estate or interest in land,
(ii) as a lessor, or
(iii) as grantor of an option binding that person to sell land or an interest in land or to grant a lease of land;
(c) for any contingent liability in respect of a warranty or representation made on a disposal by means of a sale or lease of any property other than land.
(2) Where it is shown to the satisfaction of the inspector that any contingent liability mentioned in subsection (1) has become enforceable and is being or has been enforced, such adjustment, whether by means of discharge or repayment of tax or otherwise, shall be made as may be necessary.
num: 563
paragraphs: —(1) (a) In the computation of a chargeable gain, consideration for the disposal shall be taken into account without any discount for postponement of the right to receive any part of the consideration and without regard to a risk of any part of the consideration being irrecoverable or to the right to receive any part of the consideration being contingent.
(b) Where any part of the consideration taken into account in accordance with paragraph (a) is shown to the satisfaction of the inspector to be irrecoverable, such adjustment, whether by means of discharge or repayment of tax or otherwise, shall be made as the case may require.
(2) Subsection (1) shall apply for the purposes of corporation tax as it applies for the purposes of capital gains tax.
num: 564
paragraphs: —(1) In the computation under this Chapter of the gain accruing on the disposal by an individual of woodland, there shall be excluded—
(a) consideration for the disposal of trees growing on the land, and
(b) notwithstanding section 535 (2), capital sums received under a policy of insurance in respect of the destruction of or damage or injury to trees by fire or other hazard on such land.
(2) In the computation under this Chapter of the gain, so much of the cost of woodland as is attributable to trees growing on the land shall be disregarded.
(3) References in this section to trees include references to saleable underwood.
num: 565
paragraphs: —There shall be excluded from the computation under this Chapter of a gain accruing on a disposal any expenditure which has been or is to be met directly or indirectly by any government, by any board established by statute or by any public or local authority whether in the State or elsewhere.
num: 566
paragraphs: — Schedule 14 shall apply for the purposes of the Capital Gains Tax Acts.
num: 567
paragraphs: —(1) References in the Capital Gains Tax Acts to any asset held by a person as trustee for another person absolutely entitled as against the trustee are references to a case where that other person has the exclusive right, or would have such a right if that other person were not an infant or other person under disability, subject only to satisfying any outstanding charge, lien or right of the trustees to resort to the asset for payment of duty, taxes, costs or other outgoings, to direct how that asset shall be dealt with.
(2) In relation to assets held by a person (in this subsection referred to as “the first-mentioned person”) as nominee for another person, or as trustee for another person absolutely entitled as against the trustee, or for any person who would be so entitled but for being an infant or other person under disability (or for 2 or more persons who are or would be jointly so entitled), the Capital Gains Tax Acts shall apply as if the property were vested in, and the acts of the first-mentioned person in relation to the assets were the acts of, the person or persons for whom the first-mentioned person is the nominee or trustee (acquisitions from or disposals to the first-mentioned person by that person or those persons being disregarded accordingly).
(3) Where exploration or exploitation activities are carried on by a person on behalf of the holder of a licence granted under the Petroleum and Other Minerals Development Act, 1960 , the holder of the licence shall for the purpose of any assessment to capital gains tax be deemed to be the agent of that person.
num: 568
paragraphs: —(1) Capital gains tax chargeable in respect of chargeable gains accruing to the trustees of a settlement or capital gains tax due from the personal representatives of a deceased person may be assessed and charged on and in the name of one or more of those trustees or personal representatives.
(2) Subject to section 567 (2), chargeable gains accruing to the trustees of a settlement or to the personal representatives of a deceased person, and capital gains tax chargeable on or in the name of such trustees or personal representatives, shall not be regarded for the purposes of the Capital Gains Tax Acts as accruing to or chargeable on any other person, nor shall any trustee or personal representative be regarded for the purposes of those Acts as an individual.
num: 569
paragraphs: —(1) In this section, “deed of arrangement” means a deed of arrangement to which the Deeds of Arrangement Act, 1887 , applies.
(2) In relation to assets held by a person as trustee or assignee in bankruptcy or under a deed of arrangement, the Capital Gains Tax Acts shall apply as if the assets were vested in, and the acts of the trustee or assignee in relation to the assets were the acts of, the bankrupt or debtor (acquisitions from or disposals to such person by the bankrupt or debtor being disregarded accordingly), and tax in respect of any chargeable gains which accrue to any such trustee or assignee shall be assessable on and recoverable from such trustee or assignee.
(3) Assets held by a trustee or assignee in bankruptcy or under a deed of arrangement at the death of the bankrupt or debtor shall for the purposes of the Capital Gains Tax Acts be regarded as held by a personal representative of the deceased, and—
(a) subsection (2) shall not apply after the death, and
(b) section 573 (2) shall apply as if any assets held by a trustee or assignee in bankruptcy or under a deed of arrangement at the death of the bankrupt or debtor were assets of which the deceased was competent to dispose and which then devolved on the trustee or assignee as if the trustee or assignee were a personal representative.
(4) Assets vesting in a trustee in bankruptcy after the death of the bankrupt or debtor shall for the purposes of the Capital Gains Tax Acts be regarded as held by a personal representative of the deceased, and subsection (2) shall not apply.
num: 570
paragraphs: —Where assets of a company are vested in a liquidator under section 230 of the Companies Act, 1963 , or otherwise, the Capital Gains Tax Acts shall apply as if the assets were vested in, and the acts of the liquidator in relation to the assets were acts of, the company (acquisitions from or disposals to the liquidator by the company being disregarded accordingly).
num: 571
paragraphs: —(1) In this section—
“accountable person” means—
(a) a liquidator of a company, or
(b) any person entitled to an asset by means of security or to the benefit of a charge or encumbrance on an asset or, as the case may be, any person appointed to enforce or give effect to the security, charge or encumbrance;
“the company” has the meaning assigned to it by subsection (6);
“the debtor” has the meaning assigned to it by subsection (5);
“referable capital gains tax” has the meaning assigned to it by subsection (2);
“referable corporation tax” has the meaning assigned to it by subsection (3);
“relevant disposal” has the same meaning as in section 648 .
(2) In this section—
(a) in a case where no chargeable gains other than the chargeable gains mentioned in subsection (5)(a) (in this subsection referred to as “the referable gains”) accrued to the debtor in the year of assessment, “referable capital gains tax” means the amount of capital gains tax which apart from subsection (5) would be assessable on the debtor in respect of the referable gains;
(b) in a case where, in addition to the referable gains, other chargeable gains accrued to the debtor in the year of assessment and, in charging all of those gains to capital gains tax without regard to subsection (5), the same rate of tax would apply, and either—
(i) none of the disposals on which the chargeable gains accrued is a relevant disposal, or
(ii) each of the disposals is a relevant disposal,
“referable capital gains tax” means an amount of tax determined by the formula—
A
___
B
× C
where—
A is the amount of capital gains tax which apart from subsection (5) would be assessable on the debtor in respect of the referable gains if no other chargeable gains accrued to the debtor in the year of assessment and if no deductions or reliefs were to be allowed against the referable gains,
B is the amount of capital gains tax which apart from subsection (5) would be assessable on the debtor in respect of all chargeable gains, including the referable gains, which accrued to the debtor in the year of assessment, if no deductions or reliefs were to be allowed against those chargeable gains, and
C is the amount of capital gains tax which apart from subsection (5) would be assessable on the debtor in respect of the total amount of chargeable gains, including the referable gains, which accrued to the debtor in the year of assessment;
(c) in any other case, “referable capital gains tax” means the amount of capital gains tax which apart from subsection (5) and taking into account—
(i) all other chargeable gains accruing to the debtor in the year of assessment, and
(ii) where appropriate, sections 546 (6), 601 (3) and 653 ,
would be the amount of capital gains tax appropriate to the referable gains.
(3) In this section—
(a) in a case where no chargeable gains other than—
(i) the chargeable gains mentioned in subsection (6)(a) (in this subsection referred to as “the referable gains”), or
(ii) any chargeable gains accruing on a relevant disposal,
accrued to the company in the accounting period, “referable corporation tax” means the amount of capital gains tax which apart from subsection (6) would be assessable on the company in respect of the referable gains on the assumptions that—
(I) notwithstanding any provision to the contrary in the Corporation Tax Acts, capital gains tax was to be charged in respect of the refereable gains in accordance with the Capital Gains Tax Acts, and
(II) accounting periods were years of assessment,
or, if it is less, the amount of corporation tax which apart from subsection (6) would be assessable on the company for the accounting period;
(b) in a case where, in addition to the referable gains, other chargeable gains (not being chargeable gains accruing on a relevant disposal) accrued to the company in the accounting period and, on the assumptions made in paragraph (a), in charging all of those gains to capital gains tax without regard to subsection (6), the same rate of tax would apply, “referable corporation tax” means an amount of tax determined by the formula—
D
___
E
× F
where—
D is the amount of capital gains tax which, apart from subsection (6) and on the assumptions made in paragraph (a), would be assessable on the company in respect of the referable gains if no other chargeable gains accrued to the company in the accounting period and if no deductions or reliefs were to be allowed against the referable gains,
E is the amount of capital gains tax which, apart from subsection (6) and on the assumptions made in paragraph (a), would be assessable on the company in respect of all chargeable gains including the referable gains (but not including chargeable gains accruing on a relevant disposal) which accrued to the company in the accounting period, if no deductions or reliefs were to be allowed against those chargeable gains, and
F is the amount (in this subsection referred to as “the notional amount”) of capital gains tax which apart from subsection (6) would in accordance with section 78 (2) be calculated in relation to the company for the accounting period in respect of all chargeable gains including the referable gains or, if it is less, the amount of corporation tax which apart from subsection (6) would be assessable on the company for the accounting period;
(c) (i) in any other case, “referable corporation tax” means, subject to subparagraph (ii), the amount of capital gains tax which, apart from subsection (6) and on the assumptions made in paragraph (a), and taking into account—
(I) all other chargeable gains (not being chargeable gains accruing on a relevant disposal) accruing to the company in the accounting period, and
(II) where appropriate, sections 546 (6) and 653 ,
would be the amount of capital gains tax appropriate to the referable gains;
(ii) in any case in which subparagraph (i) applies, if the notional amount is greater than the amount of corporation tax which apart from subsection (6) would be assessable on the company for the accounting period, “referable corporation tax” shall mean an amount determined by the formula—
G
___
H
× K
where—
G is the amount which under subparagraph (i) would be the referable corporation tax,
H is the notional amount, and
K is the amount of corporation tax which apart from subsection (6) would be assessable on the company for the accounting period.
(4) (a) In any case where, in calculating an amount of referable capital gains tax or referable corporation tax under subsection (2)(c) or (3)(c), deductions or reliefs were to be allowed against chargeable gains accruing in a year of assessment or in an accounting period and apart from this subsection those deductions or reliefs (or part of them) would be set against 2 or more chargeable gains chargeable at the same rate of capital gains tax, then, those deductions or reliefs (or, as the case may be, that part of them) shall, in so far as is necessary to calculate the amount of referable capital gains tax or referable corporation tax, be apportioned between the chargeable gains chargeable at the same rate in proportion to the amounts of those chargeable gains.
(b) In the case of chargeable gains accruing to a company (not being chargeable gains accruing on a relevant disposal), any reference in paragraph (a) to a rate of tax shall be construed as a reference to the rate of capital gains tax which would be applicable to those gains on the assumptions made in subsection (3)(a).
(5) Where section 537 (2) or 570 applies in respect of the disposal of an asset in a year of assessment by an accountable person, then, notwithstanding any provision of the Capital Gains Tax Acts—
(a) any referable capital gains tax in respect of any chargeable gains which accrue on the disposal shall be assessable on and recoverable from the accountable person,
(b) the referable capital gains tax shall be treated as a necessary disbursement out of the proceeds of the disposal and shall be paid by the accountable person out of those proceeds, and
(c) referable capital gains tax paid by the accountable person shall discharge a corresponding amount of the liability to capital gains tax, for the year of assessment in which the disposal is made, of the person (in this section referred to as “the debtor”) who apart from this subsection is the chargeable person in relation to the disposal.
(6) Where section 78 (8) or 537 (2) applies in respect of the disposal (not being a relevant disposal) of an asset in an accounting period of a company by an accountable person, then, notwithstanding any provision of the Corporation Tax Acts—
(a) any referable corporation tax in respect of any chargeable gains which accrue on the disposal shall be assessable on and recoverable from the accountable person,
(b) the referable corporation tax shall be treated as a necessary disbursement out of the proceeds of the disposal and shall be paid by the accountable person out of those proceeds, and
(c) referable corporation tax paid by the accountable person shall discharge a corresponding amount of the liability to corporation tax, for the accounting period in which the disposal is made, of the company (in this section referred to as “the company”) which apart from this subsection is the chargeable person in relation to the disposal.
num: 572
paragraphs: —(1) In this section—
“the Accountant” means the Accountant attached to the court or a deputy appointed by the Minister for Justice, Equality and Law Reform;
“court” means the High Court except where the reference is to the Circuit Court;
“funds in court” means any moneys (and investments representing such moneys), annuities, stocks, shares or other securities standing or to be placed to the account of the Accountant in the books of the Bank of Ireland or any company, and includes boxes and other effects.
(2) For the purposes of section 567 (2), funds in court shall be regarded as held by the Accountant as nominee for the persons entitled to or interested in the funds or, as the case may be, for their trustees.
(3) Where funds in court standing to an account in the books of the Accountant are invested or after investment are realised, the method by which the Accountant effects the investment or the realisation of investments shall not affect the question as to whether there is for the purposes of the Capital Gains Tax Acts an acquisition or, as the case may be, a disposal of an asset representing funds in court standing to that account, and in particular there shall for those purposes be an acquisition or disposal of assets notwithstanding that the investment of funds in court standing to an account in the books of the Accountant, or the realisation of funds which have been so invested, is effected by setting off in the Accountant's accounts investment in one account against realisation of investments in another.
(4) This section shall apply with any necessary modifications to funds in the Circuit Court as it applies to funds in court.
num: 573
paragraphs: —(1) In this section, references to assets of which a deceased person was competent to dispose are references to assets of the deceased which the deceased could if of full age and capacity have disposed of by will, assuming that all the assets were situated in the State and that the deceased was domiciled in the State, and include references to the deceased's severable share in any assets to which immediately before his or her death he or she was beneficially entitled as a joint tenant.
(2) For the purposes of the Capital Gains Tax Acts, the assets of which a deceased person was competent to dispose—
(a) shall be deemed to be acquired on his or her death by the personal representatives or other person on whom they devolve for a consideration equal to their market value at the date of the death; but
(b) shall not be deemed to be disposed of by him or her on his or her death (whether or not they were the subject of a testamentary disposition).
(3) Allowable losses sustained by an individual in the year of assessment in which he or she dies may, in so far as they cannot be deducted from chargeable gains accruing in that year, be deducted from chargeable gains accruing to the deceased in the 3 years of assessment preceding the year of assessment in which the death occurs, taking chargeable gains accruing in a later year before those accruing in an earlier year, and there shall be made all such amendments of assessments or repayments of tax as may be necessary to give effect to this subsection.
(4) In relation to property forming part of the estate of a deceased person, the personal representatives shall for the purposes of the Capital Gains Tax Acts be treated as being a single and continuing body of persons (distinct from the persons who may from time to time be the personal representatives), and that body shall be treated as having the deceased's residence, ordinary residence and domicile at the date of death.
(5) Where any asset is acquired by a person as legatee no chargeable gain shall accrue to the personal representatives, but the legatee shall be treated as if the personal representatives' acquisition of the asset had been the legatee's acquisition of the asset.
(6) Where not more than 2 years, or such longer period as the Revenue Commissioners may by notice in writing allow, after a death any of the dispositions of the property of which the deceased was competent to dispose, whether effected by will or under the law relating to intestacies or otherwise, are varied by a deed of family arrangement or similar instrument, this section shall apply as if the variations made by the deed or other instrument were effected by the deceased, and no disposition made by the deed or other instrument shall constitute a disposal for the purposes of the Capital Gains Tax Acts.
num: 574
paragraphs: —(1) (a) In relation to settled property, the trustees of a settlement shall for the purposes of the Capital Gains Tax Acts be treated as being a single and continuing body of persons (distinct from the persons who may from time to time be the trustees) and, subject to paragraph (b), that body shall be treated as being resident and ordinarily resident in the State unless the general administration of the trusts is ordinarily carried on outside the State and the trustees or a majority of them for the time being are not resident or not ordinarily resident in the State.
(b) A person carrying on a business which consists of or includes the management of trusts, and acting as trustees of a trust in the course of that business, shall be treated in relation to that trust as not resident in the State if the whole of the settled property consists of or derives from property provided by a person not at the time (or, in the case of a trust arising under a testamentary disposition or on an intestacy or partial intestacy, at his or her death) domiciled, resident or ordinarily resident in the State and, if in such a case the trustees or a majority of them are or are treated in relation to that trust as not resident in the State, the general administration of the trust shall be treated as ordinarily carried on outside the State.
(2) Where any amount of capital gains tax assessed on the trustees or any one trustee of a settlement in respect of a chargeable gain accruing to the trustee is not paid within 6 months from the date when it becomes payable by the trustees or trustee and, before or after the expiration of that period of 6 months, the asset in respect of which the chargeable gain accrued, or any part of the proceeds of sale of that asset, is transferred by the trustees to a person who as against the trustees is absolutely entitled to it, then, that person may, at any time within 2 years from the time when that amount of tax became payable, be assessed and charged (in the name of the trustees) to an amount of capital gains tax not exceeding the amount of capital gains tax chargeable on an amount equal to the amount of the chargeable gain and, where part only of the asset or of the proceeds was transferred, not exceeding a proportionate part of that amount.
(3) For the purposes of this section, where part of the property comprised in a settlement is vested in one trustee or set of trustees and part in another trustee or set of trustees (and in particular where settled land within the meaning of the Settled Land Act, 1882, is vested in the tenant for life and investments representing capital money are vested in the trustees of the settlement), they shall be treated as together constituting and, in so far as they act separately, as acting on behalf of a single body of trustees.
num: 575
paragraphs: —A gift in settlement, whether revocable or irrevocable, shall be a disposal of the entire property thereby becoming settled property notwithstanding that the donor has some interest as a beneficiary under the settlement and notwithstanding that the donor is a trustee or the sole trustee of the settlement.
num: 576
paragraphs: —(1) On the occasion when a person becomes absolutely entitled to any settled property as against the trustee, all the assets forming part of the settled property to which the person becomes so entitled shall be deemed for the purposes of the Capital Gains Tax Acts to have been disposed of by the trustee, and immediately reacquired by the trustee in the trustee's capacity as a trustee within section 567 (2), for a consideration equal to their market value.
(2) On the occasion when a person becomes absolutely entitled to any settled property as against the trustee, any allowable loss which has accrued to the trustee in respect of property which is, or is represented by, the property to which that person becomes so entitled (including any allowable loss carried forward to the year of assessment in which that occasion falls), being a loss which cannot be deducted from chargeable gains accruing to the trustee in that year, but before that occasion, shall be treated for the purposes of the Capital Gains Tax Acts as if it were an allowable loss accruing at that time to the person becoming so entitled, instead of to the trustee.
num: 577
paragraphs: —(1) (a) In this section, “life interest”, in relation to a settlement—
(i) includes a right under the settlement to the income of, or the use or occupation of, settled property for the life of a person (or for the lives of persons) other than the person entitled to the right,
(ii) does not include any right which is contingent on the exercise of the discretion of the trustee or the discretion of some other person, and
(iii) does not include an annuity, notwithstanding that the annuity is payable out of or charged on settled property or the income of settled property except where some or all of the settled property is appropriated by the trustees as a fund out of which the annuity is payable and there is no right of recourse to settled property not so appropriated, or to the income of settled property not so appropriated.
(b) Without prejudice to subsection (4)(b), where under paragraph (a) (iii) an annuity is to be treated as a life interest in relation to a settlement, the settled property or the part of the settled property appropriated by the trustees as a fund out of which the annuity is payable shall, while the annuity is payable and on the occasion of the death of the annuitant, be treated for the purposes of subsection (3) as being settled property under a separate settlement.
(2) Where by virtue of section 576 (1) the assets forming part of any settled property are deemed to be disposed of and reacquired by the trustee on the occasion when a person becomes absolutely entitled to the assets as against the trustee, then, if that occasion is the termination of a life interest by the death of the person entitled to that interest—
(a) no chargeable gain shall accrue on the disposal, and
(b) the reacquisition under that section shall be deemed to be for a consideration equal to the market value of the assets at the date of the death.
(3) On the termination of a life interest in possession in all or any part of settled property, the whole or a corresponding part of each of the assets forming part of the settled property and not ceasing at that time to be settled property shall be deemed for the purposes of the Capital Gains Tax Acts at that time to be disposed of by the trustee, and immediately reacquired by the trustee, for a consideration equal to the whole or a corresponding part of the market value of the asset.
(4) For the purposes of subsection (3)—
(a) a life interest which is a right to part of the income of settled property shall be treated as a life interest in a corresponding part of the settled property, and
(b) if there is a life interest in a part of the settled property and, where that interest is a life interest in income, there is no right of recourse to, or to the income of, the remainder of the settled property, the part of the settled property in which the life interest subsists shall while it subsists be treated for the purposes of this subsection as being settled property under a separate settlement.
(5) (a) Subject to paragraph (b), where—
(i) as a consequence of a termination, on the death of the person entitled to it, of a life interest in settled property, subsection (3) applies, and
(ii) an asset which forms the whole or any part of that settled property—
(I) is comprised in an inheritance (within the meaning of the Capital Acquisitions Tax Act, 1976 ) taken on the death, and
(II) is exempt from tax in relation to the inheritance under section 55 of that Act, or that section as applied by section 39 of the Finance Act, 1978 ,
that asset shall for the purposes of subsection (3), be excluded from the assets deemed to be disposed of and immediately reacquired.
(b) Where, in a year of assessment, in respect of an asset an exemption from tax in relation to an inheritance referred to in paragraph (a) ceases to apply, then, the chargeable gain which but for paragraph (a) would have accrued to the trustee on the termination of the life interest in accordance with subsection (3) shall be deemed to accrue to the trustee in that year of assessment and shall accordingly be included in the return required to be made by the trustee concerned under section 951 for that year of assessment.
num: 578
paragraphs: — Sections 576 (1) and 577 (3) shall apply where an annuity which is not a life interest within the meaning of section 577 is terminated by the death of the annuitant as they apply on the termination of a life interest (within the meaning of that section) by the death of the person entitled to that life interest.
num: 579
paragraphs: —(1) This section shall apply as respects chargeable gains accruing to the trustees of a settlement where the trustees are not resident and not ordinarily resident in the State, and where the settlor or one of the settlors is domiciled and either resident or ordinarily resident in the State, or was domiciled and either resident or ordinarily resident in the State when such settlor made the settlement.
(2) (a) Any beneficiary under the settlement who is domiciled and either resident or ordinarily resident in the State in any year of assessment shall be treated for the purposes of the Capital Gains Tax Acts as if an apportioned part of the amount, if any, on which the trustees would have been chargeable to capital gains tax under section 31 , if domiciled and either resident or ordinarily resident in the State in that year of assessment, had been chargeable gains accruing to the beneficiary in that year of assessment.
(b) For the purposes of this section, any amount referred to in paragraph (a) shall be apportioned in such manner as is just and reasonable between persons having interests in the settled property, whether the interest is a life interest or an interest in reversion, and so that the chargeable gain is apportioned as near as may be according to the respective values of those interests, disregarding in the case of a defeasible interest the possibility of defeasance.
(3) For the purposes of this section—
(a) where in any of the 5 years ending with that in which the chargeable gain accrues a person has received a payment or payments out of the income of the settled property made in exercise of a discretion, such person shall be regarded, in relation to that chargeable gain, as having an interest in the settled property of a value equal to that of an annuity of a yearly amount equal to 20 per cent of the total of the payments so received by such person in those 5 years, and
(b) where a person (in this paragraph referred to as “the recipient”) receives at any time after the chargeable gain accrues a capital payment made out of the settled property in exercise of a discretion, being a payment which represents the chargeable gain in whole or in part, then, except in so far as any part of the gain has been attributed under this section to some other person who is domiciled and resident or ordinarily resident in the State, the recipient shall, if domiciled and resident or ordinarily resident in the State, be treated as if the chargeable gain or, as the case may be, the part of the chargeable gain represented by the capital payment, had accrued to the recipient at the time when the recipient received the capital payment.
(4) In the case of a settlement made before the 28th day of February, 1974—
(a) subsection (2) shall not apply to a beneficiary whose interest is solely in the income of the settled property and who cannot, by means of the exercise of any power of appointment or power of revocation or otherwise, obtain for himself or herself, whether with or without the consent of any other person, any part of the capital represented by the settled property, and
(b) payment of capital gains tax chargeable on a gain apportioned to a beneficiary in respect of an interest in reversion in any part of the capital represented by the settled property may be postponed until that person becomes absolutely entitled to that part of the settled property, or disposes of the whole or any part of his or her interest, unless he or she can, by any means described in paragraph (a), obtain for himself or herself any of it at any earlier time,
and, for the purposes of this subsection, property added to a settlement after the settlement is made shall be regarded as property under a separate settlement made at the time when the property is so added.
(5) In any case in which the amount of any capital gains tax payable by a beneficiary under a settlement in accordance with this section is paid by the trustees of the settlement, such amount shall not for the purposes of income tax or capital gains tax be regarded as a payment to such beneficiary.
(6) This section shall not apply in relation to a loss accruing to the trustees of the settlement.
num: 580
paragraphs: —(1) For the purposes of identifying shares acquired with shares subsequently disposed of, in so far as the shares are of the same class, shares acquired at an earlier time shall for the purposes of the Capital Gains Tax Acts be deemed to have been disposed of before shares acquired at a later time.
(2) Shares shall not be treated for the purposes of this section as being of the same class unless, if dealt with on a stock exchange, they would be so treated, but shall be treated in accordance with this section notwithstanding that they are identified in a different way by a disposal or by the transfer or delivery giving effect to the disposal.
(3) This section shall apply to securities as it applies to shares.
(4) This section apart from subsection (2) shall apply in relation to any assets as it applies in relation to shares where the assets are of a nature to be dealt in without identifying the particular assets disposed of or acquired.
num: 581
paragraphs: —(1) For the purposes of the Capital Gains Tax Acts, where the same person in the same capacity disposes of shares of the same class as shares which such person acquired within 4 weeks preceding the disposal, the shares disposed of shall be identified with the shares so acquired within those 4 weeks.
(2) For the purposes of the Capital Gains Tax Acts, where the quantity of shares of the same class disposed of exceeds the quantity of shares of the same class acquired within the period of 4 weeks preceding the disposal, the excess shall be identified with shares of the same class acquired otherwise than within the period of 4 weeks.
(3) Where a loss accrues to a person on the disposal of shares and such person reacquires shares of the same class within 4 weeks after the disposal, that loss shall not be allowable under section 538 or 546 otherwise than by deduction from a chargeable gain accruing to such person on the disposal of the shares reacquired; but, if the quantity of shares so reacquired is less than the quantity so disposed of, such proportion of the loss shall be allowable under section 538 or 546 as bears the same proportion to the loss on the disposal as the quantity not reacquired bears to the quantity disposed of.
(4) In the case of a man and his wife living with him—
(a) subsections (1) and (2) shall, with the necessary modifications, apply where shares are acquired by one of them and shares of the same class are disposed of within 4 weeks by the other, and
(b) subsection (3) shall, with the necessary modifications, apply also where a loss on the disposal accrues to one of them and the acquisition after the disposal is made by the other.
(5) This section shall apply to securities as it applies to shares.
num: 582
paragraphs: —Where, as respects an issue of shares in or debentures of a company, a person gives any consideration on a date which is more than 12 months after the date on which the shares or debentures were allotted, the consideration shall, in the computation of a gain accruing to such person on a disposal of the shares or debentures, be deemed for the purposes of section 556 to be expenditure incurred on the date on which the consideration was given.
num: 583
paragraphs: —(1) In this section, “capital distribution” means any distribution from a company (including a distribution in the course of dissolving or winding up the company) in money or money's worth except a distribution which in the hands of the recipient constitutes income for the purposes of income tax.
(2) Where a person receives or becomes entitled to receive in respect of shares in a company any capital distribution from the company (other than a new holding within the meaning of section 584 ), such person shall be treated for the purposes of the Capital Gains Tax Acts as if such person had in consideration of that capital distribution disposed of an interest in the shares.
num: 584
paragraphs: —(1) In this section—
“new holding”, in relation to any original shares, means the shares in and debentures of the company which as a result of the reorganisation or reduction of capital represent the original shares (including such, if any, of the original shares as remain);
“original shares” means shares held before and concerned in the reorganisation or reduction of capital;
references to a reorganisation of a company's share capital include—
(a) any case where persons are, whether for payment or not, allotted shares in or debentures of the company in respect of and in proportion to (or as nearly as may be in proportion to) their holdings of shares in the company or of any class of shares in the company, and
(b) any case where there is more than one class of shares and the rights attached to shares of any class are altered;
references to a reduction of share capital do not include the paying off of redeemable share capital and, where shares in a company are redeemable by the company otherwise than by the issue of shares or debentures (with or without other consideration) and otherwise than in a liquidation, the shareholder shall be treated as disposing of the shares at the time of the redemption.
(2) This section shall apply for the purposes of the Capital Gains Tax Acts in relation to any reorganisation or reduction of a company's share capital.
(3) Subject to subsections (4) to (8), a reorganisation or reduction of a company's share capital shall not be treated as involving any disposal of the original shares or any acquisition of the new holding or any part of it; but the original shares (taken as a single asset) and the new holding (taken as a single asset) shall be treated as the same asset acquired as the original shares were acquired.
(4) (a) Where on a reorganisation or reduction of a company's share capital a person gives or becomes liable to give any consideration for such person's new holding or any part of it, that consideration shall, in the computation of a gain accruing to such person on a disposal of the new holding or any part of it, be deemed for the purposes of section 556 to be expenditure incurred on the date the consideration was given and, if the new holding or part of it is disposed of with a liability attaching to it in respect of that consideration, the consideration given for the disposal shall be adjusted accordingly.
(b) Notwithstanding paragraph (a), there shall not be treated as consideration given for the acquisition of the new holding—
(i) any surrender, cancellation or other alteration of the original shares or of the rights attached to the original shares, or
(ii) any consideration consisting of any application, in paying up the shares or debentures or any part of them, of any assets of the company, or of any dividend or other distribution declared out of those assets but not made;
but, if section 816 applies in relation to the issue of any of the shares, the sum in cash which the person would have received if the person had not exercised the option to receive additional share capital instead of a sum in cash shall be treated for the purposes of this subsection as consideration given for those shares.
(5) Where on a reorganisation or reduction of a company's share capital a person receives (or is deemed to receive), or becomes entitled to receive, any consideration other than the new holding for the disposal of an interest in the original shares, and in particular—
(a) where under section 583 such person is to be treated as if such person had in consideration of a capital distribution disposed of an interest in the original shares, or
(b) where such person receives (or is deemed to receive) a consideration from other shareholders in respect of a surrender of rights derived from the original shares,
such person shall be treated as if the new holding resulted from such person having for that consideration disposed of an interest in the original shares (but without prejudice to the original shares and the new holding being treated in accordance with subsection (3) as the same asset).
(6) Where, for the purpose of computing the gain or loss accruing to a person from the acquisition and disposal of any part of the new holding, it is necessary to apportion the cost of acquisition of any of the original shares between the part which is disposed of and the part which is retained, the apportionment shall be made by reference to market value at the date of the disposal (with such adjustment of the market value of any part of the new holding as may be required to offset any liability attaching to the new holding but forming part of the cost to be apportioned), and any corresponding apportionment for the purposes of subsection (5) shall be made in the like manner.
(7) Notwithstanding subsection (6)—
(a) where a new holding—
(i) consists of more than one class of shares in or debentures of the company and one or more of those classes is of shares or debentures which, at any time not later than the end of the period of 3 months beginning on the date on which the reorganisation or reduction of capital took effect, or of such longer period as the Revenue Commissioners may by notice in writing allow, had quoted market values on a recognised stock exchange in the State or elsewhere, or
(ii) consists of more than one class of rights of unit holders and one or more of those classes is of rights the prices of which were published regularly by the managers of the scheme at any time not later than the end of that period of 3 months (or longer if so allowed), and
(b) where, for the purpose of computing the gain or loss accruing to a person from the acquisition and disposal of the whole or any part of any class of shares or securities or rights of unit holders forming part of a new holding of the kind referred to in paragraph (a), it is necessary to apportion costs of acquisition between the part that is disposed of and the part that is retained,
then, the cost of acquisition of the new holding shall first be apportioned between the entire classes of shares or debentures or rights of which it consists by reference to market value on the first day (whether that day fell before the reorganisation or reduction of capital took effect or later) on which market values or prices were quoted or published for the shares, debentures or rights mentioned in paragraph (a) or (b) (with such adjustment of the market value of any class as may be required to offset any liability attaching thereto but forming part of the cost to be apportioned) and, for the purposes of this subsection, the day on which a reorganisation of share capital involving the allotment of shares or debentures or unit holders' rights takes effect shall be the day following the day on which the right to renounce any allotment expires.
(8) Where a person receives or becomes entitled to receive in respect of any shares in or debentures of a company a provisional allotment of shares in or debentures of the company and such person disposes of such person's rights, section 583 shall apply as if the amount of the consideration for the disposal were a capital distribution received by such person from the company in respect of the first-mentioned shares, and as if such person had, instead of disposing of the rights, disposed of an interest in those shares.
num: 585
paragraphs: —(1) In this section—
“conversion of securities” includes—
(a) a conversion of securities of a company into shares in the company,
(b) a conversion at the option of the holder of the securities converted as an alternative to the redemption of those securities for cash, and
(c) any exchange of securities effected in pursuance of any enactment which provides for the compulsory acquisition of any shares or securities and the issue of securities or other securities instead;
“security” includes any loan stock or similar security, whether of any government or of any public or local authority or of any company and whether secured or unsecured but excluding securities within section 607 .
(2) Section 584 shall apply with any necessary modifications in relation to the conversion of securities as it applies in relation to the reorganisation or reduction of a company's share capital.
num: 586
paragraphs: —(1) Subject to section 587 , where a company issues shares or debentures to a person in exchange for shares in or debentures of another company, section 584 shall apply with any necessary modifications as if the 2 companies were the same company and the exchange were a reorganisation of its share capital.
(2) This section shall apply only where—
(a) the company issuing the shares or debentures has, or in consequence of the exchange will have, control of the other company, or
(b) the first-mentioned company issues the shares or debentures in exchange for shares as the result of a general offer made to members of the other company or any class of them (with or without exceptions for persons connected with the first-mentioned company), the offer being made in the first instance on a condition such that if it were satisfied the first-mentioned company would have control of the other company.
(3) (a) In this subsection, “shares” includes stock, debentures and any interests to which section 587 (3) applies and also includes any option in relation to such shares.
(b) This section shall not apply to the issue by a company of shares in the company by means of an exchange referred to in subsection (1) unless it is shown that the exchange is effected for bona fide commercial reasons and does not form part of any arrangement or scheme of which the main purpose or one of the main purposes is avoidance of liability to tax.
num: 587
paragraphs: —(1) In this section, “scheme of reconstruction or amalgamation” means a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies, and references to shares or debentures being retained include their being retained with altered rights or in an altered form, whether as the result of reduction, consolidation, division or otherwise.
(2) Where under any arrangement between a company and the persons holding shares in or debentures of the company or any class of such shares or debentures, being an arrangement entered into for the purposes of or in connection with a scheme of reconstruction or amalgamation, another company issues shares or debentures to those persons in respect of and in proportion to (or as nearly as may be in proportion to) their holdings of the first-mentioned shares or debentures, but the first-mentioned shares or debentures are either retained by those persons or cancelled, then, those persons shall be treated as exchanging the first-mentioned shares or debentures for those held by them in consequence of the arrangement (any shares or debentures retained being for this purpose regarded as if they had been cancelled and replaced by a new issue), and accordingly section 586 (1) shall apply to such exchange of shares or debentures.
(3) Subsection (2) shall apply in relation to a company which has no share capital as if references to shares in or debentures of a company included references to any interests in the company possessed by members of the company, and sections 584 and 586 shall apply accordingly.
(4) (a) In this subsection, “shares” has the same meaning as in section 586 (3).
(b) This section shall not apply to the issue by a company of shares in the company under a scheme of reconstruction or amalgamation referred to in subsection (2) unless it is shown that the reconstruction or amalgamation is effected for bona fide commercial reasons and does not form part of any arrangement or scheme of which the main purpose or one of the main purposes is avoidance of liability to tax.
num: 588
paragraphs: —(1) In this section—
“assurance company” has the same meaning as in section 3 of the Insurance Act, 1936 ;
“free shares”, in relation to a member of the assurance company, means any shares issued by the successor company to that member in connection with the arrangement but for no new consideration;
“member”, in relation to the assurance company, means a person who is or has been a member of it, in that capacity, and any reference to a member includes a reference to a member of any particular class or description;
“new consideration” means consideration other than—
(a) consideration provided directly or indirectly out of the assets of the assurance company or the successor company, or
(b) consideration derived from a member's shares or other rights in the assurance company or the successor company.
(2) This section shall apply as on and from the 21st day of April, 1997, in respect of an arrangement between a company and its members, being an arrangement to which subsection (2) of section 587 applies by virtue of subsection (3) of that section, and where the company is an assurance company which carries on a mutual life business.
(3) Where in connection with the arrangement there is conferred on a member of the assurance company concerned any rights—
(a) to acquire shares in another company (in this section referred to as the “successor company”) in priority to other persons,
(b) to acquire shares in the successor company for consideration of an amount or value lower than the market value of the shares, or
(c) to free shares in the successor company,
then, any such rights so conferred on a member shall be regarded for the purposes of capital gains tax as an option (within the meaning of section 540 ) granted to and acquired by such member for no consideration and having no value at the time of that grant and acquisition.
(4) Where in connection with the arrangement shares in the successor company are issued to a member of the assurance company concerned, and such shares are treated under section 587 as having been exchanged by the member for the interest in the company possessed by the member, those shares shall, notwithstanding section 584 , be regarded for the purposes of section 552 (1)—
(a) as having been issued to the member for a consideration given by the member of an amount or value equal to the amount or value of any new consideration given by the member for the shares or, if no new consideration is given, as having been issued for no consideration, and
(b) as having, at the time of their issue to the member, a value equal to the amount or value of the new consideration so given or, if no new consideration is given, as having no value;
but this subsection is without prejudice to the operation where applicable of subsection (3).
(5) Subsection (6) shall apply in any case where—
(a) in connection with the arrangement, shares in the successor company are issued by that company to trustees on terms which provide for the transfer of those shares to members of the assurance company concerned for no new consideration, and
(b) the circumstances are such that in the hands of the trustees the shares constitute settled property.
(6) (a) Where this subsection applies, then, for the purposes of capital gains tax—
(i) the shares shall be regarded as acquired by the trustees for no consideration,
(ii) the interest of any member in the settled property constituted by the shares shall be regarded as acquired by the member for no consideration and as having no value at the time of its acquisition, and
(iii) where on the occasion of a member becoming absolutely entitled as against the trustees to any of the settled property, both the trustees and the member shall be treated as if, on the member becoming so entitled, the shares in question had been disposed of and immediately reacquired by the trustees, in their capacity as trustees within section 567 (2), for a consideration of such an amount as would secure that on the disposal neither a gain nor a loss would accrue to the trustees, and accordingly section 576 (1) shall not apply in relation to that occasion.
(b) Reference in paragraph (a) to the case where a member becomes absolutely entitled to settled property as against the trustees shall be taken to include reference to the case where the member would become so entitled but for being a minor or otherwise under a legal disability.
num: 589
paragraphs: —(1) Where a close company transfers an asset to any person otherwise than by means of a bargain made at arm's length and for a consideration of an amount or value less than the market value of the asset, an amount equal to the difference shall be apportioned among the issued shares of the company, and the holders of those shares shall be treated in accordance with subsections (2) and (3).
(2) For the purposes of the computation of a chargeable gain accruing on the disposal of any of those shares by the person owning them on the date of transfer, an amount equal to the amount so apportioned to that share shall be excluded from the expenditure allowable as a deduction under section 552 (1)(a) from the consideration for the disposal.
(3) Where the person owning any of those shares at the date of transfer is itself a close company, an amount equal to the amount apportioned to the shares so owned under subsection (1) to that close company shall be apportioned among the issued shares of that close company, and the holders of those shares shall be treated in accordance with subsection (2), and so on through any number of close companies.
(4) This section shall apply to a company within section 590 as it applies to a close company.
num: 590
paragraphs: —(1) This section shall apply as respects a chargeable gain accruing to a company—
(a) which is not resident in the State, and
(b) which would be a close company if it were resident in the State.
(2) Subject to this section, any person who at the time when the chargeable gain accrues to the company—
(a) is resident or ordinarily resident in the State,
(b) if an individual, is domiciled in the State, and
(c) holds shares in the company,
shall be treated for the purposes of the Capital Gains Tax Acts as if a part of the chargeable gain had accrued to that person.
(3) The part of the chargeable gain referred to in subsection (2) shall be equal to the proportion of the assets of the company to which that person would be entitled on a liquidation of the company at the time when the chargeable gain accrues to the company.
(4) This section shall not apply in relation to—
(a) any amount in respect of the chargeable gain which is distributed, whether by means of dividend or distribution of capital or on the dissolution of the company, to persons holding shares in the company or to creditors of the company within 2 years from the time when the chargeable gain accrued to the company,
(b) a chargeable gain accruing on the disposal of assets, being tangible property, whether movable or immovable, or a lease of such property, where the property was used only for the purposes of a trade carried on by the company wholly outside the State,
(c) a chargeable gain accruing on the disposal of currency or of a debt within section 541 (6), where the currency or debt is or represents money in use for the purposes of a trade carried on by the company wholly outside the State, or
(d) a chargeable gain in respect of which the company is chargeable to capital gains tax by virtue of subsection (3) or (7) of section 29 or to corporation tax by virtue of section 25 (2)(b).
(5) Subsection (4)(a) shall not prevent the making of an assessment in pursuance of this section but, if by virtue of subsection (4)(a) this section is excluded, all such adjustments, whether by means of repayment or discharge of tax or otherwise, shall be made as will give effect to subsection (4)(a).
(6) The amount of capital gains tax paid by a person in pursuance of subsection (2) (in so far as not reimbursed by the company) shall be allowable as a deduction in the computation under the Capital Gains Tax Acts of a gain accruing on the disposal by the person of the shares by reference to which the tax was paid.
(7) To the extent that it would reduce or extinguish chargeable gains accruing by virtue of this section to a person in a year of assessment, this section shall apply in relation to a loss accruing to the company on the disposal of an asset in that year of assessment as it would apply if a gain instead of a loss had accrued to the company on the disposal, but shall only so apply in relation to that person, and, subject to this subsection, this section shall not apply in relation to a loss accruing to the company.
(8) Where the person owning any of the shares in the company at the time when the chargeable gain accrued to the company is itself a company which is not resident in the State but which would be a close company if it were resident in the State, an amount equal to the amount apportioned under subsection (3) out of the chargeable gain to the shares so owned shall be apportioned among the issued shares of the second-mentioned company, and the holders of those shares shall be treated in accordance with subsection (2), and so on through any number of companies.
(9) Where any tax payable by any person by virtue of subsection (2) is paid by the company to which the chargeable gain accrues, or in a case under subsection (8) is paid by any such other company, the amount so paid shall not, for the purposes of income tax or for the purposes of the Capital Gains Tax Acts, be regarded as a payment to the person by whom the tax was originally payable.
(10) Where any tax payable by any company by virtue of subsection (2) is paid by the company to which the chargeable gain accrues, or in a case under subsection (8) is paid by any such other company, the amount so paid shall not for the purposes of corporation tax be regarded as a payment to the company by which the tax was originally payable.
(11) (a) In this subsection—
“group” shall be construed in accordance with subsections (1) (excluding paragraph (a)), (3) and (4) of section 616 ;
“non-resident group” of companies—
(i) in the case of a group none of the members of which is resident in the State, means that group, and
(ii) in the case of a group 2 or more members of which are not resident in the State, means the members not resident in the State.
(b) For the purposes of this section—
(i) sections 617 to 620 shall apply in relation to non-resident companies which are members of a non-resident group of companies as they apply in relation to companies resident in the State which are members of a group of companies, and
(ii) sections 623 and 625 shall apply as if for any reference in those sections to a group of companies there were substituted a reference to a non-resident group of companies, and as if references to companies were references to companies not resident in the State.
num: 591
paragraphs: —(1) In this section—
“director” has the same meaning as in section 116 ;
“eligible shares” and “ordinary shares” have the same meanings respectively as in section 488 ;
“full-time director”, “full-time employee”, “part-time director” and “part-time employee” have the same meanings respectively as in section 250 ;
“holding company” means a company whose business consists wholly or mainly in the holding of shares in, or securities of, one or more companies which are trading companies and which are its 51 per cent subsidiaries;
“material disposal” has the meaning assigned to it by subsection (5);
“ordinary share capital” has the same meaning as in section 2 ;
“the original holding” has the meaning assigned to it by subsection (2);
“qualifying company” has the meaning assigned to it by subsection (7);
“qualifying investment” has the meaning assigned to it by subsection (6);
“the reinvestor” has the meaning assigned to it by subsection (2);
“the specified period” has the meaning assigned to it by subsection (6)(b);
“trade” includes a profession, and “trading company”, “trading group”, “qualifying trade” (within the meaning of subsection (8)) and “qualifying trading operations” (within the meaning of that subsection) shall be construed accordingly;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades;
“trading group” means a holding company and one or more trading companies which are 51 per cent subsidiaries of the holding company;
“unquoted company” means a company none of whose shares, stocks or debentures are listed in the official list of a stock exchange or quoted on an unlisted securities market of a stock exchange;
“51 per cent subsidiary” has the meaning assigned to it by section 9 .
(2) (a) Subject to this section, where the consideration which an individual (in this section referred to as “the reinvestor”) obtains for any material disposal by him or her of shares in or securities of any company (in this section referred to as “the original holding”) is applied by him or her within the period of 3 years from the date of that disposal in acquiring a qualifying investment, the reinvestor shall, on making a claim in that behalf, be treated for the purposes of the Capital Gains Tax Acts as if the chargeable gain accruing on the disposal of the original holding did not accrue until he or she disposes of the qualifying investment.
(b) Notwithstanding paragraph (a), where—
(i) the disposal of the qualifying investment is a material disposal for the purposes of this section, and
(ii) the consideration for that disposal is applied by the reinvestor within the period of 3 years from the date of that disposal in acquiring another qualifying investment,
the reinvestor shall be treated as if the chargeable gain accruing on the disposal of the original holding did not accrue until he or she disposes of the other qualifying investment and any further qualifying investment which is acquired in a similar manner.
(3) (a) Where an individual is not entitled to be treated in accordance with subsection (2) solely by reason of not having satisfied the requirements of either or both paragraphs (a) and (e) of subsection (6), and—
(i) all the other requirements of this section have been satisfied,
(ii) the capital gains tax on the disposal of the original holding has been paid in full, and
(iii) the individual has, throughout a period of 2 years beginning within the specified period, been a full-time employee or a full-time director of the qualifying company,
then, the individual—
(I) shall be entitled on making a claim in that behalf to such repayment of capital gains tax as would secure that the tax which is ultimately borne by the individual does not exceed the tax which would have been borne by the individual if he or she had been entitled to be treated in accordance with subsection (2), and
(II) shall be treated for the purposes of the Capital Gains Tax Acts as if the chargeable gain accruing on the disposal of the original holding did not accrue until the individual disposes of the qualifying investment, and subsection (2)(b) shall apply for the purposes of this subsection as it applies for the purposes of subsection (2).
(b) No repayment of tax under this subsection shall carry interest.
(4) Subsection (2) shall not apply if part only of the amount or value of the consideration for the material disposal of the original holding is applied, within the period of 3 years from the date of that disposal, in acquiring a qualifying investment but, if all of the amount of that consideration except for a part which is less than the amount of the gain accruing on the disposal is so applied, the reinvestor shall, on making a claim in that behalf, be treated for the purposes of the Capital Gains Tax Acts as if the amount of the gain accruing on the disposal were reduced to the amount of the consideration not applied in acquiring a qualifying investment, and the balance of the gain shall be treated as if it did not accrue until the reinvestor disposes of the qualifying investment.
(5) For the purposes of this section, the disposal of shares in or securities of a company shall be a material disposal if—
(a) throughout the period of 3 years ending with the date of the disposal, or
(b) in a case where the company commenced to trade at any time in the period mentioned in paragraph (a), throughout the period beginning at that time and ending with the date of the disposal,
the following conditions are satisfied—
(i) the company has been a trading company or a holding company, and
(ii) the reinvestor has been a full-time employee, part-time employee, full-time director or part-time director of the company or, if that company is a member of a trading group, of one or more companies which are members of the trading group.
(6) For the purposes of this section, an individual shall be regarded as acquiring a qualifying investment where he or she acquires any eligible shares in a qualifying company if—
(a) he or she holds not less than 5 per cent of the ordinary share capital of the company at any time in the period (in this subsection referred to as “the initial period”) beginning on the date of the acquisition of the eligible shares and ending on the date which is one year after the date of the disposal of the original holding,
(b) he or she holds not less than 15 per cent of the ordinary share capital of the company at any time in the period (in this section referred to as “the specified period”) beginning on the date of the acquisition of the eligible shares and ending on the date which is 3 years after the date of the disposal of the original holding,
(c) within the specified period, the company uses the money raised through the issue of the eligible shares for the purposes of enabling it, or enlarging its capacity, to undertake qualifying trading operations (within the meaning of subsection (8)),
(d) the company is not—
(i) the company in which the original holding has subsisted, or
(ii) a company that was a member of the same trading group as that company,
and
(e) he or she becomes at any time within the initial period, and is throughout the period beginning at that time and—
(i) ending at the end of the specified period, or
(ii) in a case where the company is wound up or dissolved without winding up and the conditions mentioned in subsection (7)(d) are satisfied, ending at the time of the commencement of the winding up or dissolution of the company,
a full-time employee or a full-time director of the company.
(7) (a) For the purposes of this section and subject to paragraphs (b) to (d), a company shall be a qualifying company if it is incorporated in the State and if—
(i) it is throughout the specified period—
(I) an unquoted company resident in the State and not resident elsewhere, and
(II) a company which exists wholly for the purposes of carrying on wholly or mainly in the State of one or more qualifying trades,
and
(ii) it is not at any time in the specified period—
(I) under the control of another company (or of another company and any person connected with that other company), or
(II) without being under the control of another company, a 51 per cent subsidiary of that other company.
(b) A company shall be deemed not to have ceased to be a qualifying company solely by virtue of shares in the company commencing, at any time in the specified period, to be quoted on the market known as the Developing Companies Market of the Irish Stock Exchange.
(c) A company shall cease to be a qualifying company if at any time in the specified period a resolution is passed, or an order is made, for the winding up of the company (or in the case of a winding up otherwise than under the Companies Act, 1963 , any other act is done for the like purpose) or the company is dissolved without winding up.
(d) Notwithstanding paragraph (c), a company shall be deemed not to have ceased to be a qualifying company solely by virtue of the application of that paragraph where—
(i) it is shown that the winding up or dissolution is for bona fide commercial reasons and does not form part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of income tax, corporation tax or capital gains tax, and
(ii) the company's net assets, if any, are distributed to its members within 3 years from the commencement of the dissolution or the winding up.
(8) (a) In this subsection, “qualifying trading operations”, in relation to a trade, means all the operations of the trade excluding those of dealing in shares, securities, land, currencies, futures or traded options.
(b) A trade shall be a qualifying trade for the purposes of subsection (7) if throughout the specified period the trade—
(i) is conducted on a commercial basis and with a view to the realisation of profits, and
(ii) consists wholly or mainly of qualifying trading operations,
and a trade which during the specified period consists partly of qualifying trading operations and partly of other trading operations shall be regarded for the purposes of this subsection as a trade which consists wholly or mainly of qualifying trading operations only if the total amount receivable in the specified period by the company carrying on the trade from sales made and services rendered in the course of qualifying trading operations is not less than 75 per cent of the total amount receivable by the company from all sales made and services rendered in the course of the trade in the specified period.
(9) A claim for relief under this section may be made after the making of a material disposal and the acquisition of eligible shares in a qualifying company if all the conditions for the relief are or will be satisfied, but the relief shall be withdrawn if, by reason of the subsequent happening of any event or failure of an event to happen which at the time the relief was claimed was expected to happen, the individual by whom the relief was claimed is not entitled to the relief so claimed.
(10) The withdrawal of relief under subsection (9) shall be made—
(a) for the year of assessment in which the happening or failure to happen, as the case may be, of the event giving rise to the withdrawal of the relief occurred, and
(b) in accordance with subsection (11),
and both—
(i) details of the happening or the failure to happen, as the case may be, of the event giving rise to the withdrawal of relief, and
(ii) the amount to be treated as a gain under subsection (11),
shall be included in the return required to be made by the individual concerned under section 951 for that year of assessment.
(11) (a) Notwithstanding any other provision of the Capital Gains Tax Acts, where relief is to be withdrawn under subsection (9) for any year of assessment, such amount (in this subsection referred to as “the relevant amount”) of the chargeable gain which accrued to the reinvestor on the disposal of the original holding as was treated under subsection (2) or (4) as not accruing at that time—
(i) reduced in accordance with paragraph (b), and
(ii) increased in accordance with paragraph (c),
shall be treated as a gain which accrued in that year of assessment.
(b) The amount by which the relevant amount is to be reduced under paragraph (a)(i) is an amount equal to the aggregate of—
(i) to the extent that such excess has not been deducted in years of assessment subsequent to the year of assessment in which the disposal of the original holding occurred, the excess of the amount of the losses which would have been deducted under section 31 in the year of assessment in which the disposal of the original holding occurred, if relief under this section had not been claimed, over the amount of such losses which were so deducted in that year, and
(ii) any amount of chargeable gains in the year of assessment in which the disposal of the original holding occurred in respect of which the reinvestor would not by virtue of section 601 have been charged to capital gains tax if relief under this section had not been claimed.
(c) The amount by which the relevant amount is to be increased under paragraph (a)(ii) is an amount determined by the formula—
G ×
R
____
100
× M
where—
G is the relevant amount reduced in accordance with paragraph (b),
R is the rate per cent specified in section 1080 (1), and
M is the number of months in the period beginning on the date on which capital gains tax for the year of assessment in which the disposal of the original holding occurred was due and payable and ending on the date on which capital gains tax for the year of assessment for which the withdrawal of relief is to be made is due and payable.
(12) A chargeable gain or the balance of a chargeable gain which under subsection (2) or (4), as may be appropriate, is treated as accruing at a date later than the date of the disposal on which it accrued shall not be so treated for the purposes of section 556 .
(13) Without prejudice to the provisions of the Capital Gains Tax Acts providing generally for apportionments, where consideration is given for the acquisition or disposal of any assets some or part of which are shares or other securities to the acquisition or disposal of which a claim under this section relates and some or part of which are not, the consideration shall be apportioned in such manner as is just and reasonable.
(14) This section shall not apply unless the acquisition of a qualifying investment was made for bona fide commercial reasons and not wholly or partly for the purposes of realising a gain from the disposal of the qualifying investment.
num: 592
paragraphs: —(1) In this section—
“disposal” does not include a relevant disposal within the meaning of section 648 ;
“ordinary share capital” has the same meaning as in section 2 ;
“ordinary shares” means shares forming part of a company's ordinary share capital;
“period of ownership”, in relation to an individual making a disposal of qualifying shares, means the individual's period of continuous ownership of the shares in the same capacity ending on the date of such disposal and, for the purposes of this definition, where the shares were acquired by the individual on the death of that individual's spouse so that the individual's period of ownership would apart from this definition be treated as having commenced on the date of that death, the individual's period of ownership shall be deemed to be extended to include the individual's spouse's period of ownership ending on that date;
“qualifying company” shall be construed in accordance with subsection (2);
“qualifying shares”, in relation to a company, means ordinary shares of the company which are fully paid up and which carry no present or future preferential rights to dividends or to the company's assets on its winding up and no present or future preferential right to be redeemed;
“qualifying trade” shall be construed in accordance with subsection (4);
“qualifying trading operations”, in relation to a trade, means all the operations of the trade excluding those of dealing in shares, securities, land, currencies, futures or traded options;
“the specified period”, in relation to the disposal of qualifying shares, means the period of 3 years immediately preceding the date of the disposal of those shares;
“trade” includes a profession, and “qualifying trade” and “qualifying trading operations” shall be construed accordingly;
“unquoted company” means a company none of whose shares, stocks or debentures are listed in the official list of a stock exchange or quoted on an unlisted securities market.
(2) For the purposes of this section, a company shall be a qualifying company in relation to the disposal of qualifying shares where—
(a) at the date of acquisition of those shares, it is an unquoted company which is resident in the State and not resident elsewhere and which has an issued share capital the market value of which is not more than £25,000,000, and
(b) throughout the specified period, it is a company which is resident in the State and not resident elsewhere and—
(i) which exists wholly or mainly for the purposes of the carrying on of one or more qualifying trades, or
(ii) the business of which consists—
(I) wholly or mainly of the holding of shares in one or more connected companies, or
(II) wholly or mainly of both the holding of such shares and the carrying on of one or more qualifying trades.
(3) (a) A company shall be regarded as having satisfied the condition referred to in subsection (2)(b)(i) only if throughout the specified period not less than 75 per cent of the market value of all the issued share capital of the company derives from the carrying on by the company of one or more qualifying trades.
(b) A company shall be regarded as having satisfied the condition referred to in clause (I) or (II), as the case may be, of subsection (2)(b)(ii) only if throughout the specified period not less than 75 per cent of the market value of all the issued share capital of the company derives from the carrying on of one or more qualifying trades by the connected companies or, as the case may be, by the company and the connected companies.
(c) In a case where a connected company (in this paragraph referred to as “the first-mentioned company”) is a company whose business consists of the holding of shares in one or more companies, references in paragraph (b) to the connected companies shall be construed as including references to the companies which are connected with the first-mentioned company.
(4) For the purposes of this section, a trade shall be a qualifying trade if throughout the specified period it consists of qualifying trading operations and, where during that period a trade consists partly of qualifying trading operations and partly of other trading operations, the part of the trade which consists of other trading operations shall be treated as a separate trade.
(5) For the purposes of this section, where a company (in this subsection referred to as “the first-mentioned company”) holds shares in another company, that other company shall be regarded as connected with the first-mentioned company if—
(a) at the date of the acquisition of those shares by the first-mentioned company it was an unquoted company,
(b) it is resident in the State and not resident elsewhere, and
(c) not less than 20 per cent of the total voting rights in the company are exercisable by the first-mentioned company.
(6) As respects chargeable gains accruing to an individual on the disposal of qualifying shares in a qualifying company in a case where the individual's period of ownership of those shares is not less than 3 years, section 28 (3) shall apply as if the reference in that section to 40 per cent were a reference to 26 per cent.
(7) (a) In this subsection and in subsection (8), “original shares” and “new holding” have the same meanings respectively as in section 584 .
(b) If the time when an individual acquires qualifying shares would be determined under section 584 , 585 , 586 or 587 , it shall be determined in the same way for the purposes of this section where the following conditions are satisfied—
(i) both the original shares and the new holding constitute qualifying shares, and
(ii) the individual is not treated under section 584 (4) as giving or becoming liable to give any consideration, other than the original shares, for the acquisition of the new holding.
(8) (a) In a case where subsection (7)(b) applies and the new holding is held for a period of not less than 3 years, subsection (2) shall apply as if—
(i) in paragraph (a) of that subsection “at the date of acquisition of the original shares” were substituted for “at the date of acquisition of those shares”,
(ii) where the company in which the new holding subsists is not the company in which the original shares subsisted, in paragraph (a) of that subsection “the company in which the original shares subsisted is” were substituted for “it is”, and
(iii) in paragraph (b) of that subsection “the company in which the new holding subsists is” were substituted for “it is”.
(b) In a case where subsection (7)(b) applies and the new holding is held for a period of less than 3 years, subsection (2) shall apply—
(i) as if in paragraph (a) of that subsection “at the date of acquisition of the original shares” were substituted for “at the date of acquisition of those shares”, and
(ii) where the company in which the new holding subsists is not the company in which the original shares subsisted as if—
(I) in paragraph (a) of that subsection “the company in which the original shares subsisted is” were substituted for “it is”,
(II) in paragraph (b) of that subsection “throughout that part of the specified period commencing on the date of the acquisition of the new holding, the company in which the new holding subsists is” were substituted for “throughout the specified period, it is”, and
(III) the conditions referred to in paragraph (b) of that subsection applied also to the company in which the original shares subsisted but only in relation to the part of the specified period which does not include the part of that period mentioned in clause (II).
num: 593
paragraphs: —(1) This section shall apply for the purposes of the Capital Gains Tax Acts as respects any policy of assurance or contract for a deferred annuity on the life of any person.
(2) No chargeable gain shall accrue on the disposal of or of an interest in the rights under any such policy of assurance or contract except where the person making the disposal is not the original beneficial owner and acquired the rights or interests for a consideration in money or money's worth.
(3) Subject to subsection (2), the occasion of the payment of the sum or sums assured by a policy of assurance or of the first instalment of a deferred annuity, and the occasion of the surrender of a policy of assurance or of the rights under a contract for a deferred annuity, shall be the occasion of a disposal of the rights under the policy of assurance or contract for a deferred annuity, and the amount of the consideration for the disposal of a contract for a deferred annuity shall be the market value at that time of the right to the first and further instalments of the annuity.
(4) In subsection (3), the reference to payment of the sum assured shall include a reference to the transfer of investments or other assets to the owner of the policy in accordance with the policy.
num: 594
paragraphs: —(1) (a) (i) For the purposes of this section, a policy of assurance or contract for a deferred annuity on the life of any person, being a policy issued or a contract made before the 20th day of May, 1993, shall be treated as a policy issued or contract made, as the case may be, after that date if there is a variation of the policy or contract on or after that date which directly or indirectly increases the benefits secured by, or extends the term of, the policy or contract, as the case may be.
(ii) For the purposes of subparagraph (i), where a policy of assurance issued or a contract made before the 20th day of May, 1993, provides an option to have another policy or contract substituted for it or to have any of its terms changed, any change in the terms of the policy or contract made in pursuance of the option shall be deemed to be a variation of the policy or contract, as the case may be.
(b) Subject to subsection (2), this section shall be construed together with subsections (3) and (4) of section 593 as if subsection (3) of that section were not subject to subsection (2) of that section.
(c) (i) In this paragraph and in subsection (3)—
“assurance company” has the same meaning as in section 3 of the Insurance Act, 1936 ;
“excluded policy” means a policy of assurance or contract for a deferred annuity on the life of any person where the policy is issued to or the contract is made with, as the case may be, a person who did not continuously reside outside the State throughout the period of 6 months commencing on the date of issue or the date of contract, as the case may be;
“life assurance fund” has the same meaning as in the Insurance Acts 1909 to 1969;
“relevant company” means a company which is—
(I) resident in the State, or
num: 595
paragraphs: —(1) (a) In this section—
“relevant disposal” means a disposal of or an interest in the rights under any relevant policy, other than—
(i) a disposal by a person who is not the original beneficial owner of those rights and who acquired them or an interest in them for a consideration in money or money's worth, or
(ii) a disposal resulting directly from the death, disablement or disease of a person, or one of a class of persons, specified in the terms of the policy;
“relevant gain” means a chargeable gain arising on a relevant disposal;
“relevant policy” means a policy of life assurance or a contract for a deferred annuity on the life of any person, entered into or acquired by a company on or after the 11th day of April, 1994, which is not a policy to which section 594 (2) applies.
(b) (i) For the purposes of this section, a policy of assurance or a contract for a deferred annuity on the life of any person, entered into by a company before the 11th day of April, 1994, shall be treated as a policy or contract, as the case may be, entered into on or after that date if there is a variation of the policy or contract on or after that date which directly or indirectly increases the benefits secured by, or extends the term of, the policy or contract, as the case may be.
(ii) For the purposes of subparagraph (i), where a policy or contract entered into by a company before the 11th day of April, 1994, provides an option to have another policy or contract substituted for it or to have any of its terms changed, any change in the terms of the policy or contract which is made in pursuance of the option shall be deemed to be a variation of the policy or contract, as the case may be.
(c) Subject to subsection (2), this section shall be construed together with subsections (3) and (4) of section 593 , as if subsection (3) of that section were not subject to subsection (2) of that section.
(2) Section 593 (2) shall not apply in respect of any relevant disposal.
(3) (a) For the purposes of the Corporation Tax Acts—
(i) any relevant gain arising to a company shall be treated as if it were the net amount of a gain from the gross amount of which corporation tax has been deducted at the standard rate (within the meaning of section 3 ) of income tax,
(ii) the amount to be taken into account in respect of the relevant gain in computing in accordance with section 78 the company's chargeable gains, for the accounting period in which the relevant gain arises, shall be that gross amount, and
(iii) the corporation tax treated as deducted from that gross amount shall—
(I) be set off against the corporation tax assessable on the company for that accounting period, or
(II) in so far as it cannot be set off in accordance with clause (I), be repaid to the company.
(b) Paragraph (a) shall be disregarded for the purposes of section 546 (2).
(c) This subsection shall be construed together with the Corporation Tax Acts.
(4) For the purposes of this section, a contract, being a policy of life assurance or a contract for a deferred annuity on the life of any person, shall be treated as having been entered into by a company before the 11th day of April, 1994, if—
(a) (i) a document referable to the contract was served on the company in pursuance of section 52 of the Insurance Act, 1989 , before the 11th day of April, 1994, and
(ii) the company entered into the contract on or before the 22nd day of April, 1994,
or
(b) (i) the contract was entered into before the 30th day of June, 1994, by the company,
(ii) before the 11th day of April, 1994—
(I) there was in existence a binding agreement in writing under which the company was obliged to acquire land, and
(II) preliminary commitments or agreements had been entered into by the company—
(A) to obtain a loan, which was to be secured on the land, to defray money applied in acquiring the land, and
(B) to enter into the contract primarily for the purpose of repaying the loan,
and
(iii) the agreement under which the loan was advanced obliges the company to apply any payment made to it under the contract to the repayment of the loan before any other application by it of such payment.
num: 596
paragraphs: —(1) Where an asset acquired by a person otherwise than as trading stock of a trade carried on by the person is appropriated by that person for the purposes of the trade as trading stock (whether on the commencement of the trade or otherwise) and, if that person had then sold the asset for its market value, a chargeable gain or allowable loss would have accrued to that person, that person shall be treated for the purposes of the Capital Gains Tax Acts as having by such appropriation disposed of the asset by selling it for its then market value.
(2) Where at any time an asset forming part of the trading stock of a person's trade is appropriated by the person for any other purpose or is retained by the person on that person ceasing to carry on the trade, that person shall be treated for the purposes of the Capital Gains Tax Acts as having acquired the asset at that time for a consideration equal to the amount brought into the accounts of the trade in respect of the asset for the purposes of income tax on the appropriation or on that person ceasing to carry on the trade, as the case may be.
num: 597
paragraphs: —(1) In this section, “farming”, “trade”, “profession”, “office” and “employment” have the same meanings respectively as in the Income Tax Acts, but not so as to apply the provisions of those Acts as to the circumstances in which, on a change in the persons carrying on a trade, a trade is to be regarded as discontinued or as set up and commenced, and “a trade of dealing in or developing land” shall include a business of dealing in or developing land regarded as a trade under those Acts.
(2) This section shall apply with the necessary modifications in relation to—
(a) the discharge of the functions of a public authority,
(b) the occupation of woodlands where the woodlands are managed by the occupier on a commercial basis and with a view to the realisation of profits,
(c) a profession, office or employment,
(d) such of the activities of a body of persons whose activities are carried on otherwise than for profit and are wholly or mainly directed to the protection or promotion of the interests of its members in the carrying on of their trade or profession as are so directed,
(e) the activities of a body of persons, being a body not established for profit whose activities are wholly or mainly carried on otherwise than for profit, but in the case of assets within subsection (3)(b) only if they are both occupied and used by the body and in the case of other specified assets only if they are used by the body,
(f) such of the activities of a body of persons established for the sole purpose of promoting athletic or amateur games or sports as are directed to that purpose, and
(g) farming,
as it applies in relation to a trade.
(3) The following shall be assets for the purpose of this section—
(a) plant or machinery;
(b) except where the trade is a trade of dealing in or developing land, or of providing services for the occupier of land in which the person carrying on the trade has an estate or interest—
(i) any building or part of a building and any permanent or semi-permanent structure in the nature of a building occupied (as well as used) only for the purposes of the trade,
(ii) any land occupied (as well as used) only for the purposes of the trade, provided that where the trade is a trade of dealing in or developing land, but a profit on the sale of any land held for the purposes of the trade would not form part of the trading profits, the trade shall be treated for the purposes of this subsection as if it were not a trade of dealing in or developing land;
(c) goodwill.
(4) (a) Where—
(i) the consideration which a person carrying on a trade obtains for the disposal of, or of that person's interest in, assets (in this section referred to as “the old assets”) used only for the purposes of the trade throughout the period of ownership is applied by that person in acquiring other assets, or an interest in other assets (in this section referred to as “the new assets”),
(ii) the new assets on their acquisition are taken into use and used only for the purposes of the trade, and
(iii) the old assets and the new assets are assets of a kind specified in subsection (3),
then, the person carrying on the trade shall on making a claim in that behalf be treated for the purposes of the Capital Gains Tax Acts as if the chargeable gain accruing on the old assets did not accrue until that person ceases to use the new assets for the purposes of the trade.
(b) Where the consideration for the disposal of the new assets is applied in acquiring other new assets which on the acquisition are taken into use and used only for the purposes of the trade and are assets specified in subsection (3), then, the person carrying on the trade shall be treated as if the chargeable gain accruing on the disposal of the old assets did not accrue until that person ceases to use the other new assets for the purposes of the trade and any further new assets which are acquired in a similar manner, taken into use, and used only, for the purposes of the trade and are assets specified in subsection (3).
(5) Subsection (4) shall not apply if part only of the amount or value of the consideration for the disposal of or of the interest in the old assets is applied as described in that subsection, but if all of the amount or value of the consideration except for a part which is less than the amount of the gain (whether all chargeable gain or not) accruing on the disposal of or of the interest in the old assets is so applied, then, the person carrying on the trade shall on making a claim in that behalf be treated for the purposes of the Capital Gains Tax Acts as if the amount of the gain accruing on the disposal of the old assets were reduced to the amount of consideration not applied in the acquisition of the new assets (and if not all chargeable gain with a proportionate reduction in the amount of the chargeable gain) and the balance of the gain (or chargeable gain) shall be treated as if it did not accrue until that person ceases to use the new assets for the purposes of the trade.
(6) A chargeable gain or the balance of a chargeable gain which under subsection (4) or (5), as may be appropriate, is treated as accruing on a date later than the date of the disposal on which it accrued shall not be so treated for the purposes of section 556 .
(7) This section shall apply only if the acquisition of or of the interest in the new assets takes place, or an unconditional contract for the acquisition is entered into, in the period beginning 12 months before and ending 3 years after the disposal of or of the interest in the old assets, or at such earlier or later time as the Revenue Commissioners may by notice in writing allow; but, where an unconditional contract for the acquisition is so entered into, this section may be applied on a provisional basis without waiting to ascertain whether the new assets are, or the interest in the new assets is, acquired in pursuance of the contract, and when that fact is ascertained all necessary adjustments shall be made by making assessments or by repayment or discharge of tax, and shall be so made notwithstanding any limitation in the Capital Gains Tax Acts on the time within which assessments may be made.
(8) This section shall not apply unless the acquisition of or of the interest in the new assets was made for the purpose of their use in the trade, and not wholly or partly for the purpose of realising a gain from the disposal of or of the interest in the new assets.
(9) Where over the period of ownership or any substantial part of the period of ownership part of a building or structure is, and part is not, used for the purposes of a trade, this section shall apply as if the part so used, together with any land occupied for purposes ancillary to the occupation and use of that part of the building or structure, were a separate asset, and subject to any necessary apportionments of consideration for an acquisition or disposal of or of an interest in the building or structure and other land.
(10) Where the old assets were not used for the purposes of the trade throughout the period of ownership, this section shall apply as if a part of the asset representing its use for the purposes of the trade, having regard to the time and extent to which it was and was not used for those purposes, were a separate asset which had been wholly used for the purposes of the trade, and this subsection shall apply in relation to that part subject to any necessary apportionment of consideration for an acquisition or disposal of or of the interest in the asset.
(11) (a) This section shall apply in relation to a person who carries on 2 or more trades which are in different localities, but which are concerned wholly or mainly with goods or services of the same kind, as if, in relation to the assets used for the purposes of the trades, the trades were the same trade.
(b) This section shall apply in relation to a person who ceases to carry on a trade or trades (in this paragraph referred to as “the old trade or trades”) which the person has carried on for a period of 10 years or more and commences to carry on another trade or trades (in this paragraph referred to as “the new trade or trades”) within a period of 2 years from the date on which the person ceased to carry on the old trade or trades as if, in relation to the old assets used for the purposes of one of the old trades and the new assets used for the purposes of the new trade, the 2 trades were the same trade.
(12) Without prejudice to the provisions of the Capital Gains Tax Acts providing generally for apportionments, where consideration is given for the acquisition or disposal of assets some or part of which are assets in relation to which a claim under subsection (4) or (5) applies, and some or part of which are not, the consideration shall be apportioned in such manner as is just and reasonable.
num: 598
paragraphs: —(1) (a) In this section and in section 599 —
“chargeable business asset” means an asset (including goodwill but not including shares or securities or other assets held as investments) which is, or is an interest in, an asset used for the purposes of farming, or a trade, profession, office or employment, carried on by—
(i) the individual,
(ii) the individual's family company, or
(iii) a company which is a member of a trading group of which the holding company is the individual's family company,
other than an asset on the disposal of which no gain accruing would be a chargeable gain;
“family company”, in relation to an individual, means, subject to paragraph (b), a company the voting rights in which are—
(i) as to not less than 25 per cent, exercised by the individual, or
(ii) as to not less than 75 per cent, exercisable by the individual or a member of his or her family and, as to not less than 10 per cent, exercisable by the individual himself or herself;
“family”, in relation to an individual, means the husband or wife of the individual, and a relative of the individual or of the individual's husband or wife, and “relative” means brother, sister, ancestor or lineal descendant;
“full-time working director” means a director required to devote substantially the whole of his or her time to the service of the company in a managerial or technical capacity;
“holding company” means a company whose business (disregarding any trade carried on by it) consists wholly or mainly of the holding of shares or securities of one or more companies which are its 75 per cent subsidiaries;
“qualifying assets”, in relation to a disposal, includes—
(i) the chargeable business assets of the individual which apart from tangible movable property he or she has owned for a period of not less than 10 years ending with the disposal, and
(ii) the shares or securities which the individual has owned for a period of not less than 10 years ending with the disposal, being shares or securities of a company which has been a trading or a farming company and the individual's family company or a member of a trading group of which the holding company is that individual's family company during a period of not less than 10 years ending with the disposal and of which he or she has been a working director for a period of not less than 10 years during which period he or she has been a full-time working director of that company for a period of not less than 5 years;
“trade”, “farming”, “profession”, “office” and “employment” have the same meanings respectively as in the Income Tax Acts;
“trading company” means a company whose business consists wholly or mainly of the carrying on of one or more trades or professions;
“trading group” means a group of companies consisting of the holding company and its 75 per cent subsidiaries, the business of whose members taken together consists wholly or mainly of the carrying on of one or more trades or professions;
“75 per cent subsidiary” has the meaning assigned to it by section 9 .
(b) For the purposes of the definition of “family company”, where a company which is a holding company would not but for this paragraph be an individual's family company, but would be such a company if the individual had not at any time on or after the 6th day of April, 1987, and before the 6th day of April, 1990, disposed of shares in the company to a child (within the meaning of section 599 ) of the individual, the company shall be deemed to be the individual's family company.
(c) In this section, references to the disposal of the whole or part of an individual's qualifying assets include references to the disposal of the whole or part of the assets provided or held for the purposes of an office or employment by the individual exercising that office or employment.
(d) For the purposes of the definition of “qualifying assets”, there shall be taken into account—
(i) the period of ownership of a spouse of the individual as if it were a period of ownership of the individual,
(ii) where the chargeable business assets are new assets within the meaning of section 597 , the period of ownership of the old assets as if it were a period of ownership of the new assets,
(iii) where the qualifying assets are shares or securities in a family company to which section 600 applies, the period immediately before the transfer to the company of chargeable business assets during which those assets were owned by the individual as if it were a period of ownership of the individual of the qualifying assets or a period throughout which he or she was a full-time working director, as may be appropriate, and
(iv) a period immediately before the death of the spouse of the individual throughout which the deceased was a full-time working director as if it were a period throughout which the individual was a full-time working director.
(2) (a) Subject to this section, where an individual who has attained the age of 55 years disposes of the whole or part of his or her qualifying assets, then—
(i) if the amount or value of the consideration for the disposal does not exceed £250,000, relief shall be given in respect of the full amount of capital gains tax chargeable on any gain accruing on the disposal;
(ii) if the amount or value of the consideration for the disposal exceeds £250,000, the amount of capital gains tax chargeable on the gain accruing on the disposal shall not exceed 50 per cent of the difference between the amount of that consideration and £250,000.
(b) For the purposes of paragraph (a), the amount of capital gains tax chargeable in respect of the gain shall be the amount of tax which would not have been chargeable but for that gain.
(3) For the purposes of subsection (2), the consideration on the disposal of qualifying assets by the individual shall be aggregated, and nothing in this section shall affect the computation of gains accruing on the disposal of assets other than qualifying assets.
(4) Where a disposal of qualifying assets includes a disposal of shares or securities of the individual's family company, the amount of the consideration to be taken into account for the purposes of subsection (2) in respect of those shares or securities shall be the proportion of the consideration for those shares or securities which is equal to—
(a) in a case where the individual's family company is not a holding company, the proportion which the part of the value of the company's chargeable assets at the time of the disposal which is attributable to the value of the company's chargeable business assets bears to the whole of that value, and
(b) in a case where the individual's family company is a holding company, the proportion which the part of the value of the chargeable assets of the trading group (excluding shares or securities of one member of the group held by another member of the group) at the time of the disposal which is attributable to the value of the chargeable business assets of the trading group bears to the whole of that value;
but nothing in this section shall affect liability on any gains calculated by reference to the balance of the consideration for the disposal of those shares or securities.
(5) For the purposes of subsection (4), every asset shall be a chargeable asset except one on the disposal of which by the company or a member of the trading group, as the case may be, at the time of the disposal of the shares or securities, no gain accruing to the company or member of the trading group, as the case may be, would be a chargeable gain.
(6) (a) The total of the amounts of relief given under this section for any year of assessment and all years of assessment before such year shall not exceed such amount as would reduce the total amount of capital gains tax chargeable for all those years of assessment below the amount which would be chargeable if the disposals of qualifying assets had all been made in the year of assessment.
(b) Where at any time the relief given under this section exceeds the amount of relief which would be given if the disposals of qualifying assets for the year of assessment and all years of assessment before such year had been made in the year of assessment, any necessary adjustment may be made by means of assessment or additional assessment and such assessment may be made at any time not more than 10 years after the end of the year of assessment in which the last of such disposals is made.
(c) For the purposes of this subsection, a disposal of qualifying assets other than a disposal of the whole of such assets, by a husband to a wife or by a wife to a husband shall, notwithstanding section 1028 (5), be taken into account at the market value of the assets.
(7) Subsection (2) shall apply where under section 583 an individual is treated as disposing of interests in shares or securities of his or her family company in consideration of a capital distribution from the company (not being a distribution consisting of chargeable business assets) in the course of dissolving or winding up the company as it applies where he or she disposes of shares or securities of the company.
num: 599
paragraphs: —(1) (a) In this section, “child”, in relation to a disposal, includes a nephew or a niece who has worked substantially on a full-time basis for the period of 5 years ending with the disposal in carrying on, or assisting in the carrying on of, the trade, business or profession concerned or the work of, or connected with, the office or employment concerned.
(b) Subject to this section, where an individual who has attained the age of 55 years disposes of the whole or part of his or her qualifying assets to his or her child, relief shall be given in respect of the capital gains tax chargeable on any gain accruing on the disposal.
(c) For the purposes of paragraph (b), the capital gains tax chargeable in respect of the gain shall be the amount of tax which would not have been chargeable but for that gain.
(2) Nothing in this section shall affect the computation of gains accruing on the disposal of assets other than qualifying assets by an individual who makes a disposal within subsection (1).
(3) Section 598 (4) shall apply to a disposal within subsection (1) as it applies to a disposal within section 598 (2).
(4) (a) Where assets comprised in a disposal to a child in respect of which relief has been granted under this section are, within 6 years of the disposal by the individual concerned, disposed of by the child, the capital gains tax which if subsection (1) had not applied would have been charged on the individual on his or her disposal of those assets to the child shall be assessed and charged on the child, in addition to any capital gains tax chargeable in respect of the gain accruing to the child on the child's disposal of those assets.
(b) An assessment to give effect to this subsection shall not be out of time if made within 10 years after the end of the year of assessment in which the assets are disposed of by the child.
(5) The consideration on a disposal within subsection (1) shall not be taken into account for the purposes of aggregation under section 598 (3).
num: 600
paragraphs: —(1) In this section—
“net chargeable gains” means chargeable gains less allowable losses;
references to the business, in relation to shares or consideration received in exchange for the business, include references to assets of the business referred to in subsection (2).
(2) This section shall apply for the purposes of the Capital Gains Tax Acts where a person who is not a company transfers to a company a business as a going concern, together with the whole of the assets of the business or together with the whole of those assets other than cash, and the business is so transferred wholly or partly in exchange for shares (in this section referred to as “the new assets”) issued by the company to the person transferring the business.
(3) The amount determined under subsection (5) shall be deducted from the aggregate (in this section referred to as “the gain on the old assets”) of the net chargeable gains.
(4) For the purpose of computing any chargeable gain accruing on the disposal of any new asset—
(a) the amount determined under subsection (5) shall be apportioned between the new assets as a whole, and
(b) the sums allowable as a deduction under section 552 (1)(a) shall be reduced by the amount apportioned to the new asset under paragraph (a),
and, if the shares which comprise the new assets are not all of the same class, the apportionment between the shares under paragraph (a) shall be in accordance with their market values at the time they were acquired by the transferor.
(5) (a) In this subsection, “the cost of the new assets” means any sums which would be allowable as a deduction under section 552 (1)(a) if the new assets were disposed of as a whole in circumstances giving rise to a chargeable gain.
(b) The amount referred to in subsections (3) and (4)(a) shall be such portion of the gain on the old assets as bears the same proportion to the total of such gains as the cost of the new assets bears to the value of the whole of the consideration received by the transferor in exchange for the business.
(6) This section shall not apply to the transfer by a person of a business to a company wholly or partly in exchange for shares issued by the company, unless it is shown that the transfer is effected for bona fide commercial reasons and does not form part of any arrangement or scheme of which the main purpose or one of the main purposes is avoidance of liability to tax.
num: 601
paragraphs: —(1) An individual shall not be chargeable to capital gains tax for a year of assessment if the amount on which he or she is chargeable to capital gains tax under section 31 for that year does not exceed £1,000.
(2) Where the amount on which an individual is chargeable to capital gains tax under section 31 for a year of assessment exceeds £1,000, only the excess of that amount over £1,000 shall be charged to capital gains tax for that year.
(3) Where, on the assumption that subsection (2) did not apply, an individual would be chargeable under the Capital Gains Tax Acts at more than one rate of tax for a year of assessment, the relief to be given under that subsection in respect of the first £1,000 of chargeable gains shall be given—
(a) if the individual would be so chargeable at 2 different rates, in respect of the chargeable gains which would be so chargeable at the higher of those rates and, in so far as relief cannot be so given, in respect of the chargeable gains which would be so chargeable at the lower of those rates, and
(b) if the individual would be so chargeable at 3 or more rates, in respect of the chargeable gains which would be so chargeable at the highest of those rates and, in so far as relief cannot be so given, in respect of the chargeable gains which would be so chargeable at the next highest of those rates, and so on.
(4) In the case of an individual who dies in the year of assessment, this section shall apply with the substitution for the reference to the individual of a reference to his or her personal representatives, and the amount of chargeable gains shall be that on which the personal representatives are chargeable in respect of gains accruing before death.
(5) Relief shall not be given under this section where relief is allowed under section 598 or 599 .
num: 602
paragraphs: —(1) In this section, tangible movable property shall not include a wasting asset within the meaning of section 560 .
(2) Subject to this section, a gain accruing on a disposal by an individual of an asset which is tangible movable property shall not be a chargeable gain if the amount or value of the consideration for the disposal does not exceed £2,000.
(3) (a) The amount of capital gains tax chargeable in respect of a gain accruing on a disposal within subsection (2) for a consideration the amount or value of which exceeds £2,000 shall not exceed 50 per cent of the difference between the amount of that consideration and £2,000.
(b) For the purposes of this subsection, the capital gains tax chargeable in respect of the gain shall be the amount of tax which would not have been chargeable but for that gain.
(4) Subsections (2) and (3) shall not affect the amount of an allowable loss accruing on the disposal of an asset, but for the purposes of computing under the Capital Gains Tax Acts the amount of a loss accruing on the disposal by an individual of tangible movable property the consideration for the disposal shall, if less than £2,000, be deemed to be £2,000 and the losses which are allowable losses shall be restricted accordingly.
(5) Where 2 or more assets which have formed part of a set of articles of any description all owned at one time by one person are disposed of by that person—
(a) to the same person, or
(b) to persons who are acting in concert or who are connected persons,
whether on the same or different occasions, the 2 or more transactions shall be treated as a single transaction disposing of a single asset, but with any necessary apportionments of the reductions in tax and in allowable losses under subsections (3) and (4), and this subsection shall also apply where the assets or some of the assets are disposed of on different occasions, and one of those occasions falls after the 28th day of February, 1974, but before the 6th day of April, 1974, but not so as to make any gain accruing on a disposal before the 6th day of April, 1974, a chargeable gain.
(6) Where the disposal is of a right or interest in or over tangible movable property, then—
(a) in the first instance, subsections (2) to (4) shall be applied in relation to the asset as a whole, taking the consideration as including, in addition to the consideration for the disposal (in this subsection referred to as “the actual consideration”), the market value of what remains undisposed of,
(b) if the sum of the actual consideration and that market value exceeds £2,000, the limitation on the amount of tax in subsection (3) shall be to 50 per cent of the difference between that sum and £2,000 multiplied by the fraction equal to the actual consideration divided by that sum, and
(c) if that sum is less than £2,000, any loss shall be restricted under subsection (4) by deeming the consideration to be the actual consideration plus that fraction of the difference between that sum and £2,000.
(7) This section shall not apply—
(a) in relation to a disposal of commodities of any description by a person dealing on a terminal market or dealing with or through a person ordinarily engaged in dealing on a terminal market, or
(b) in relation to a disposal of currency of any description.
num: 603
paragraphs: —(1) Subject to this section, no chargeable gain shall accrue on the disposal of or of an interest in an asset which is tangible movable property and a wasting asset.
(2) Subsection (1) shall not apply to a disposal of or of an interest in an asset where—
(a) from the beginning of the period of ownership of the person making the disposal to the time when the disposal is made, the asset has been used and used solely for the purposes of a trade or profession and that person has claimed or could have claimed any capital allowance in respect of any expenditure attributable to the asset or interest under paragraph (a) or (b) of section 552 (1), or
(b) the person making the disposal has incurred any expenditure on the asset or interest which has otherwise qualified in full for any capital allowance.
(3) In the case of the disposal of or of an interest in an asset which, in the period of ownership of the person making the disposal, has been used partly for the purposes of a trade or profession and partly for other purposes, or has been used for the purposes of a trade or profession for part of that period, or which has otherwise qualified in part only for capital allowances—
(a) the consideration for the disposal and any expenditure attributable to the asset or interest under paragraph (a) or (b) of section 552(1) shall be apportioned by reference to the extent to which that expenditure qualified for capital allowances,
(b) the computation of the gain shall be made separately in relation to the apportioned parts of the expenditure and consideration, and
(c) subsection (1) shall not apply to any gain accruing by reference to the computation in relation to the part of the consideration apportioned to use for the purposes of the trade or profession, or to the expenditure qualifying for capital allowances.
(4) Subsection (1) shall not apply to a disposal of commodities of any description by a person dealing on a terminal market or dealing with or through a person ordinarily engaged in dealing on a terminal market.
num: 604
paragraphs: —(1) In this section, “the period of ownership”—
(a) where the individual has had different interests at different times, shall be taken to begin from the first acquisition taken into account in determining the expenditure which under the Capital Gains Tax Acts is allowable as a deduction in computing the amount of the gain to which this section applies, and
(b) for the purposes of subsections (3) to (5), shall not include any period before the 6th day of April, 1974.
(2) This section shall apply to a gain accruing to an individual on the disposal of or of an interest in—
(a) a dwelling house or part of a dwelling house which is or has been occupied by the individual as his or her only or main residence, or
(b) land which the individual has for his or her own occupation and enjoyment with that residence as its garden or grounds up to an area (exclusive of the site of the dwelling house) not exceeding one acre;
but, where part of the land occupied with a residence is and part is not within this subsection, then, that part shall be taken to be within this subsection which, if the remainder were separately occupied, would be the most suitable for occupation and enjoyment with the residence.
(3) The gain shall not be a chargeable gain if the dwelling house or the part of a dwelling house has been occupied by the individual as his or her only or main residence throughout the period of ownership or throughout the period of ownership except for all or any part of the last 12 months of that period.
(4) Where subsection (3) does not apply, such portion of the gain shall not be a chargeable gain as represents the same proportion of the gain as the length of the part or parts of the period of ownership during which the dwelling house or the part of a dwelling house was occupied by the individual as his or her only or main residence, but inclusive of the last 12 months of the period of ownership in any event, bears to the length of the period of ownership.
(5) (a) In this subsection, “period of absence” means a period during which the dwelling house or part of a dwelling house was not the individual's only or main residence and throughout which he or she had no residence or main residence eligible for relief under this section.
(b) For the purposes of subsections (3) and (4)—
(i) any period of absence throughout which the individual worked in an employment or office all the duties of which were performed outside the State, and
(ii) in addition, any period of absence not exceeding 4 years (or periods of absence which together did not exceed 4 years) throughout which the individual was prevented from residing in the dwelling house or the part of a dwelling house in consequence of the situation of the individual's place of work or in consequence of any condition imposed by the individual's employer requiring the individual to reside elsewhere, being a condition reasonably imposed to secure the effective performance by the employee of the employee's duties,
shall be treated as if in that period of absence the dwelling house or the part of a dwelling house was occupied by the individual as his or her only or main residence if both before and after the period the dwelling house (or the part in question) was occupied by the individual as his or her only or main residence.
(6) Where the gain accrues from the disposal of a dwelling house or part of a dwelling house part of which is used exclusively for the purposes of a trade, business or profession, the gain shall be apportioned and subsections (2) to (5) shall apply in relation to the part of the gain apportioned to the part which is not exclusively used for those purposes.
(7) Where at any time in the period of ownership there is a change in the dwelling house or the part of it which is occupied as the individual's residence, whether on account of a reconstruction or conversion of a building or for any other reason, or there have been changes as regards the use of part of the dwelling house for the purpose of a trade, business or profession or for any other purpose, the relief given by this section may be adjusted in such manner as the inspector and the individual may agree, or as the Appeal Commissioners may on an appeal consider to be just and reasonable.
(8) For the purposes of this section, an individual shall not be treated as having more than one main residence at any one time and in so far as it is necessary to determine which of 2 or more residences is an individual's main residence for any period—
(a) that question may be determined by agreement between the inspector and the individual on the latter giving notice in writing to the inspector by the end of the year 1975-76 or within 2 years from the beginning of that period if that is later, and
(b) failing such agreement, the question shall be determined by the inspector, whose determination may be as respects either the whole or specified parts of the period of ownership in question,
and notice of any determination by the inspector under paragraph (b) shall be given to the individual who may appeal to the Appeal Commissioners against that determination within 21 days of service of the notice.
(9) In the case of a man and his wife living with him—
(a) there may be for the purposes of this section only one residence or main residence for both so long as they are living together and, where a notice under subsection (8)(a) affects both the husband and his wife, it must be made by both,
(b) if the one disposes of, or of his or her interest in, the dwelling house or part of a dwelling house which is their only or main residence to the other, or if it passes on death to the other as legatee, the other's period of ownership shall begin with the beginning of the period of ownership of the one making the disposal or from whom it passes on death,
(c) if paragraph (b) applies but the dwelling house or part of a dwelling house was not the only or main residence of both throughout the period of ownership of the one making the disposal, account shall be taken of any part of that period during which it was the only or main residence of the one as if it was also the only or main residence of the other, and
(d) any notice under subsection (8)(b) which affects a residence owned by the husband and a residence owned by the wife shall be given to each and either may appeal under that subsection.
(10) This section shall also apply in relation to a gain accruing to a trustee on a disposal of settled property, being an asset within subsection (2), where during the period of ownership of the trustee the dwelling house or the part of a dwelling house mentioned in that subsection has been the only or main residence of an individual entitled to occupy it under the terms of the settlement, and in this section as so applied—
(a) references to the individual shall be taken as references to the trustee except in relation to the occupation of the dwelling house or the part of a dwelling house, and
(b) the notice which may be given to the inspector under subsection (8)(a) shall be a joint notice by the trustee and the person entitled to occupy the dwelling house or the part of a dwelling house.
(11) (a) In this subsection, “dependent relative”, in relation to an individual, means a relative of the individual, or of the wife or husband of the individual, who is incapacitated by old age or infirmity from maintaining himself or herself, or the widowed father or widowed mother (whether or not he or she is so incapacitated) of the individual or of the wife or husband of the individual.
(b) Where as respects a gain accruing to an individual on the disposal of, or of an interest in, a dwelling house or part of a dwelling house which is, or has at any time in his or her period of ownership been, the sole residence of a dependent relative of the individual, provided rent-free and without any other consideration, the individual so claims, such relief shall be given in respect of it and of its garden or grounds as would be given under this section if the dwelling house (or part of the dwelling house) had been the individual's only or main residence in the period of residence by the dependent relative, and shall be so given in addition to any relief available under this section apart from this subsection; but no more than one dwelling house (or part of a dwelling house) may qualify for relief as being the residence of a dependent relative of the claimant at any one time.
(12) (a) In this subsection—
“base date”, in relation to an asset disposed of by an individual, means the date of acquisition by the individual of the asset or, if the asset was held by the individual on the 6th day of April, 1974, that date;
“base value”, in relation to an asset disposed of by an individual, means the amount or value of the consideration, in money or money's worth, given by the individual or on his or her behalf wholly and exclusively for the acquisition of the asset exclusive of the incidental costs to the individual of the acquisition or, if the asset was held by the individual on the 6th day of April, 1974, the market value of the asset on that date;
“current use value” and “development land” have the same meanings respectively as in section 648 .
(b) Where—
(i) a gain accrues to an individual on the disposal of or of an interest in an asset which is development land, and
(ii) apart from this subsection relief would be given under this section in respect of the disposal of that asset (being an asset within subsection (2) or (11)),
then, subject to paragraph (c), that relief shall be given in respect of the gain (or where appropriate in respect of a portion of the gain) only to the extent (if any) to which such relief would be given if, in computing the chargeable gain accruing on the disposal (notwithstanding that the disposal was a disposal of development land), there were excluded from the computation—
(I) the amount (if any) by which the base value of the asset exceeds the current use value of the asset on the base date,
(II) the amount by which the consideration for the disposal of the asset exceeds the current use value of the asset on the date of the disposal,
(III) if the asset was not held by the individual on the 6th day of April, 1974, such proportion (if any) of the incidental costs to the individual of the acquisition of the asset as would be referable to the amount (if any) referred to in subparagraph (I), and
(IV) such proportion of the incidental costs to the individual of the disposal of the asset as would be referable to the amount referred to in subparagraph (II).
(c) Paragraph (b) shall not apply to a disposal made by an individual in any year of assessment if the total consideration in respect of all disposals made by that individual in that year and to which that paragraph would otherwise apply does not exceed £15,000.
(13) Apportionments of consideration shall be made wherever required by this section and in particular where a person disposes of a dwelling house only part of which is the person's only or main residence.
(14) This section shall not apply in relation to a gain if the acquisition of or of the interest in the dwelling house or the part of the dwelling house was made wholly or mainly for the purpose of realising a gain from the disposal of it, and shall not apply in relation to a gain in so far as the gain is attributable to any expenditure which was incurred after the beginning of the period of ownership and wholly or mainly for the purpose of realising a gain from the disposal.
num: 605
paragraphs: —(1) Where a person makes a disposal of or of an interest in property situate in the State (in this section referred to as “the original assets”) to an authority possessing compulsory purchase powers and claims and proves to the satisfaction of the Revenue Commissioners that—
(a) the disposal would not have been made but for—
(i) the exercise of those powers, or
(ii) the giving by the authority of formal notice of its intention to exercise those powers,
(b) the whole of the consideration for the disposal and no more is applied in acquiring other property situate in the State or an interest in such other property (in this section referred to as “the replacement assets”), and
(c) the original assets and the replacement assets are within one, and the same one, of the classes of assets specified in subsection (5),
then, for the purposes of the Capital Gains Tax Acts, the disposal shall not be treated as involving any disposal of the original assets and the acquisition shall not be treated as involving any acquisition of the replacement assets or any part of those assets, but the original assets and the replacement assets shall be treated as the same assets acquired as the original assets were acquired.
(2) In a case where subsection (1) would apply but for the fact that an amount in excess of the amount or value of the consideration for the disposal concerned is applied as described in paragraph (b) of that subsection—
(a) the person making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if, in consideration of that excess, that person had acquired at the time of the acquisition of the replacement assets a portion of those assets which bears to the whole the same proportion as the amount of the excess bears to the amount or value of the consideration applied in acquiring the replacement assets, and
(b) subsection (1) shall apply to the remainder of those assets and to the original assets.
(3) In a case where subsection (1) would apply but for the fact that part of the amount or value of the consideration for the disposal concerned is not applied as described in paragraph (b) of that subsection—
(a) the person making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if, in consideration of that part, that person had disposed of an interest in the original assets, and
(b) subsection (1) shall apply to the remainder of those assets and to the replacement assets.
(4) This section shall apply only if the acquisition of the replacement assets takes place, or an unconditional contract for the acquisition is entered into, in the period beginning 12 months before and ending 3 years after the disposal of the original assets, or at such earlier or later time as the Revenue Commissioners may by notice in writing allow; but, where an unconditional contract for the acquisition is so entered into, this section may be applied on a provisional basis without ascertaining whether the replacement assets are acquired in pursuance of the contract, and when that fact is ascertained all necessary adjustments shall be made by making assessments or by repayment or discharge of tax, and shall be so made notwithstanding any limitation in the Capital Gains Tax Acts on the time within which assessments may be made.
(5) The classes of assets referred to in subsection (1) shall be as follows:
Class 1
Assets of a trade carried on by the person making the disposal which consist of—
(a) plant or machinery;
(b) except where the trade is a trade of dealing in or developing land, or of providing services for the occupier of land in which the person carrying on the trade has an estate or interest—
(i) any building or part of a building and any permanent or semi-permanent structure in the nature of a building occupied (as well as used) only for the purposes of the trade,
(ii) any land occupied (as well as used) only for the purposes of the trade, provided that where the trade is a trade of dealing in or developing land, but a profit on the sale of any land held for the purposes of the trade would not form part of the trading profits, the trade shall be treated for the purposes of this subsection as if it were not a trade of dealing in or developing land;
(c) goodwill.
Class 2
Any land or buildings, not being land or buildings within Class 1, but excluding a dwelling house or part of a dwelling house in relation to which the person making the disposal would be entitled to claim relief under section 604 .
num: 606
paragraphs: —(1) This section shall apply to an object, being any picture, print, book, manuscript, sculpture, piece of jewellery or work of art which—
(a) in the opinion of the Revenue Commissioners, after such consultation (if any) as may seem to them to be necessary with such person or body of persons as in their opinion may be of assistance to them, has a market value of not less than £25,000 at the date when the object is loaned to a gallery or museum in the State, being a gallery or museum approved of by the Revenue Commissioners for the purposes of this section, and
(b) is the subject of or included in a display to which the public is afforded reasonable access in the gallery or museum to which it has been loaned for a period (in this section referred to as “the qualifying period”) of not less than 6 years from the date the object is so loaned.
(2) Where after the end of the qualifying period a disposal of an object to which this section applies is made by the person who had loaned the object in the circumstances described in subsection (1), the disposal shall be treated for the purposes of the Capital Gains Tax Acts as being made for such consideration as to secure that neither a gain nor a loss accrues on the disposal.
num: 607
paragraphs: —(1) The following shall not be chargeable assets—
(a) securities (including savings certificates) issued under the authority of the Minister for Finance,
(b) stock issued by—
(i) a local authority, or
num: 608
paragraphs: —(1) (a) In this subsection, “financial futures” and “traded options” mean respectively financial futures and traded options for the time being dealt in or quoted on any futures exchange or any stock exchange, whether or not that exchange is situated in the State.
(b) For the purposes of subsection (2), a contract entered into in the course of dealing in financial futures or traded options shall be regarded as an investment.
(2) A gain shall not be a chargeable gain if accruing to a person from the person's disposal of investments held by that person as part of a fund approved under section 774 , 784 (4) or 785 (5).
(3) Where part only of a fund is approved under a section referred to in subsection (2), the gain shall be exempt from being a chargeable gain to the same extent only as income derived from the assets would be exempt under that section.
(4) For the purposes of this section, the fund set up under section 6A of the Oireachtas (Allowances to Members) Act, 1938 (inserted by the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1960 ), shall be deemed to be a fund approved under section 774 .
num: 609
paragraphs: —(1) Subject to subsection (2), a gain shall not be a chargeable gain if it accrues to a charity and is applicable and applied for charitable purposes.
(2) Where property held on charitable trusts ceases to be subject to charitable trusts—
(a) the trustees shall be treated as if they had disposed of and immediately reacquired the property for a consideration equal to its market value, any gain on the disposal being treated as not accruing to a charity, and
(b) if and in so far as any of that property represents directly or indirectly the consideration for the disposal of assets by the trustees, any gain accruing on that disposal shall be treated as not having accrued to a charity,
and an assessment to capital gains tax chargeable by virtue of paragraph (b) may be made at any time not more than 10 years after the end of the year of assessment in which the property ceases to be subject to charitable trusts.
num: 610
paragraphs: —(1) A gain shall not be a chargeable gain if it accrues to a body specified in Part 1 of Schedule 15 .
num: 611
paragraphs: —(1) (a) Where a disposal of an asset is made otherwise than under a bargain at arm's length—
(i) to the State,
(ii) to a charity, or
(iii) to any of the bodies within section 28(3) of the Finance Act, 1931 ,
section 547 shall not apply but, if the disposal is for no consideration or for a consideration not exceeding the sums which would be allowable as a deduction under sections 552 and 828 (4) for the purposes of computing a chargeable gain, then—
(I) the disposal and acquisition shall be treated for the purposes of the Capital Gains Tax Acts as being made for such consideration as to secure that neither a gain nor a loss accrues on the disposal, and
(II) where the disposal is to a person within subparagraph (ii) or (iii) and the asset is later disposed of by that person in such circumstances that if a gain accrued on the later disposal it would be a chargeable gain, the capital gains tax which would have been chargeable in respect of the gain accruing on the earlier disposal if section 547 had applied in relation to it shall be assessed and charged on the person making the later disposal in addition to any capital gains tax chargeable in respect of the gain accruing to that person on the later disposal.
(b) Where relief was given under this subsection in respect of a disposal to a person of an asset, being a disposal made before the 20th day of December, 1978, and there is a later disposal of the asset by the person on or after that date, paragraph (a)(II) shall apply as if the first-mentioned disposal were the earlier disposal referred to in that paragraph.
(c) An assessment to give effect to paragraph (a)(II) shall not be out of time if made within 10 years after the end of the year of assessment in which the asset concerned is disposed of by the person making the later disposal.
(d) For the purposes of paragraph (a)(II), the amount of the capital gains tax which would have been chargeable in respect of the gain accruing on the earlier disposal shall be the amount of tax which would not have been chargeable but for that gain.
(2) Where under section 576 (1) or 577 (3) any assets or parts of any assets forming part of settled property are deemed to be disposed of and reacquired by the trustee, and—
(a) where the assets deemed to be disposed of under section 576 (1) are reacquired on behalf of the State, a charity or a body within section 28(3) of the Finance Act, 1931 , or
(b) the assets which or parts of which are deemed to be disposed of and reacquired under section 577 (3) are held for the purposes of the State, a charity or a body within section 28(3) of the Finance Act, 1931 ,
then, if no consideration is received by any person for or in connection with any transaction by virtue of which the State, the charity or other body becomes so entitled or the assets are so held, the disposal and acquisition of the assets to which the State, the charity or other body becomes so entitled or of the assets which are held as mentioned in paragraph (b) shall be treated for the purposes of Capital Gains Tax Acts as made for such consideration as to secure that neither a gain nor a loss accrues on the disposal.
num: 612
paragraphs: —For the purposes of the Capital Gains Tax Acts, an amount by means of capital sum or premium provided under the European Communities (Retirement of Farmers) Regulations, 1974 ( S.I. No. 116 of 1974 ), whether or not an annuity is granted in place of such capital sum or premium, shall not be deemed to form part of the consideration for the disposal in relation to which such capital sum or premium is provided.
num: 613
paragraphs: —(1) The following shall not be chargeable gains—
(a) any bonus payable under an instalment saving scheme within the meaning of section 53 of the Finance Act, 1970 ;
(b) any prize under section 22 of the Finance (Miscellaneous Provisions) Act, 1956 ;
(c) any sum obtained by means of compensation or damages for any wrong or injury suffered by an individual in his or her person or in his or her profession.
(2) Winnings from betting (including pool betting), lotteries, sweepstakes or games with prizes shall not be chargeable gains, and rights to winnings obtained by participating in any pool betting, lottery, sweepstake or game with prizes shall not be chargeable assets.
(3) No chargeable gain shall accrue on the disposal of a right to or to any part of—
(a) any allowance, annuity or capital sum payable out of any superannuation fund, or under any superannuation scheme, established solely or mainly for persons employed in a profession, trade, undertaking or employment, and their dependants,
(b) an annuity granted otherwise than under a contract for a deferred annuity by a company as part of its business of granting annuities on human life, whether or not including instalments of capital, or
(c) annual payments due under a covenant made by any person and not secured on any property.
(4) (a) No chargeable gain shall accrue on the disposal of an interest created by or arising under a settlement (including in particular an annuity or life interest and the reversion to an annuity or life interest)—
(i) by the person for whose benefit the interest was created by the terms of the settlement, or
(ii) by any other person except one who acquired, or derives that person's title from one who acquired, the interest for a consideration in money or money's worth, other than consideration consisting of another interest under the settlement.
(b) Subject to paragraph (a), where a person who has acquired an interest in settled property (including in particular the reversion to an annuity or life interest) becomes as the holder of that interest absolutely entitled as against the trustee to any settled property, the person shall be treated as disposing of the interest in consideration of obtaining that settled property, but without prejudice to any gain accruing to the trustee on the disposal of that property deemed to be effected by the trustee under section 576 (1).
num: 614
paragraphs: —(1) In this section, “capital distribution” has the same meaning as in section 583 .
(2) This section shall apply where a person connected with a company resident in the State receives or becomes entitled to receive in respect of shares in the company any capital distribution from the company, other than a capital distribution representing a reduction of capital, and—
(a) the capital so distributed derives from the disposal after the 5th day of April, 1976, of assets in respect of which a chargeable gain accrues to the company, or
(b) the distribution constitutes such a disposal of assets.
(3) Where the corporation tax assessed on the company for the accounting period in which the chargeable gain accrues included any amount in respect of chargeable gains, and any of the tax assessed on the company for that period is not paid within 6 months from the date when it becomes payable by the company, the person referred to in subsection (2) may by an assessment made within 2 years from that date be assessed and charged (in the name of the company) to an amount of that corporation tax—
(a) not exceeding the amount or value of the capital distribution which that person has received or became entitled to receive, and
(b) not exceeding a proportion equal to that person's share of the capital distribution made by the company of corporation tax on the amount and at the rate charged in respect of that gain in the assessment in which that tax was charged.
(4) A person paying any amount of tax under this section shall be entitled to recover a sum equal to that amount from the company.
(5) This section is without prejudice to any liability of the person receiving or becoming entitled to receive the capital distribution in respect of a chargeable gain accruing to such person by reference to the capital distribution as constituting a disposal of an interest in shares in the company.
num: 615
paragraphs: —(1) In this section—
“scheme of reconstruction or amalgamation” means a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies;
“trading stock” has the same meaning as in section 89 .
(2) Subject to this section, where—
(a) any scheme of reconstruction or amalgamation involves the transfer of the whole or part of a company's business to another company,
(b) at the time of the transfer both companies are resident in the State, and
(c) the first-mentioned company receives no part of the consideration for the transfer (otherwise than by the other company taking over the whole or part of the liabilities of the business),
then, in so far as relates to corporation tax on chargeable gains, the 2 companies shall be treated as if any assets included in the transfer were acquired by the one company from the other company for a consideration of such amount as would secure that on the disposal by means of the transfer neither a gain nor a loss would accrue to the company making the disposal, and for the purposes of section 556 the acquiring company shall be treated as if the respective acquisitions of the assets by the other company had been the acquiring company's acquisition of the assets.
(3) This section shall not apply in relation to an asset which until the transfer formed part of trading stock of a trade carried on by the company making the disposal, or in relation to an asset which is acquired as trading stock for the purposes of a trade carried on by the company acquiring the asset.
num: 616
paragraphs: —(1) For the purposes of this section and of the following sections of this Part—
(a) references to a company shall, subject to section 621 (1), apply only to a company, as limited by subsection (2), which is resident in the State;
(b) a principal company and all its 75 per cent subsidiaries shall form a group, and where a principal company is a member of a group as being itself a 75 per cent subsidiary that group shall comprise all its 75 per cent subsidiaries;
(c) “principal company” means a company of which another company is a 75 per cent subsidiary;
(d) in applying the definition of “75 per cent subsidiary” in section 9 , any share capital of a registered industrial and provident society shall be treated as ordinary share capital;
(e) “group” and “subsidiary” shall be construed with any necessary modifications where applied to a company incorporated under the law of a country outside the State.
(2) For the purposes of this section and of the following sections of this Part, references to a company shall apply only to—
(a) a company within the meaning of the Companies Act, 1963 ,
(b) a company constituted under any other Act or a charter or letters patent or (although resident in the State) formed under the law of a country or territory outside the State,
(c) a registered industrial and provident society, being a society within the meaning of section 698 , and
(d) a building society incorporated or deemed by virtue of section 124(2) of the Building Societies Act, 1989 , to be incorporated under that Act.
(3) For the purposes of this section and of the following sections of this Part, a group shall remain the same group so long as the same company remains the principal company of the group and, if at any time the principal company of a group becomes a 75 per cent subsidiary of another company, the group of which it was the principal company before that time shall be regarded as the same as the group of which that other company is the principal company or a 75 per cent subsidiary, and the question whether or not a company has ceased to be a member of a group shall be determined accordingly.
(4) For the purposes of this section and of the following sections of this Part, the passing of a resolution or the making of an order or any other act for the winding up of a company shall not be regarded as the occasion of that company or of any 75 per cent subsidiary of that company ceasing to be a member of a group of companies.
(5) (a) The following sections of this Part, except in so far as they relate to the recovery of tax, shall also apply in relation to bodies from time to time established by or under any enactment for the carrying on of any industry or part of an industry, or of any undertaking, under national ownership or control as if—
(i) such bodies were companies within the meaning of those sections,
(ii) any such bodies charged with related functions and subsidiaries of any of them formed a group, and
(iii) any 2 or more such bodies charged at different times with the same or related functions were members of a group.
(b) Paragraph (a) shall apply subject to any enactment by virtue of which property, rights, liabilities or activities of one such body mentioned in that paragraph are to be treated for corporation tax as those of another such body.
(6) For the purposes of this Part—
(a) section 557 and all other provisions for apportioning on a part disposal expenditure which is deductible in computing a gain shall be operated before the operation of and without regard to—
(i) section 617(1), and
(ii) any other enactment making an adjustment to secure that neither a gain nor a loss occurs on a disposal;
(b) section 589 shall not apply where the transfer is a disposal to which section 617 (1) applies.
num: 617
paragraphs: —(1) Notwithstanding any provision in the Capital Gains Tax Acts fixing the amount of the consideration deemed to be received on a disposal or given on an acquisition, where a member of a group of companies disposes of an asset to another member of the group, both members shall, except where provided by subsections (2) and (3), be treated, in so far as relates to corporation tax on chargeable gains, as if the asset acquired by the member to whom the disposal is made were acquired for a consideration of such amount as would secure that on the other member's disposal neither a gain nor a loss would accrue to that other member; but, where it is assumed for any purpose that a member of a group of companies has sold or acquired an asset, it shall be assumed also that it was not a sale to or acquisition from another member of the group.
(2) Subsection (1) shall not apply where the disposal is—
(a) a disposal of a debt from a member of a group of companies effected by satisfying the debt or part of it, or
(b) a disposal of redeemable shares in a company on the occasion of their redemption,
and the reference in that subsection to a member of a group of companies disposing of an asset shall not apply to anything which under section 583 is to be treated as a disposal of an interest in shares in a company in consideration for a capital distribution (within the meaning of that section) from that company, whether or not involving a reduction of capital.
(3) For the purposes of subsection (1), in so far as the consideration for the disposal consists of money or money's worth by means of compensation for any kind of damage or injury to assets, or for the destruction or dissipation of assets or for anything which depreciates or might depreciate an asset, the disposal shall be treated as being to the person who, whether as an insurer or otherwise, ultimately bears the burden of furnishing that consideration.
num: 618
paragraphs: —(1) Where a member of a group of companies acquires an asset as trading stock from another member of the group and the asset did not form part of the trading stock of any trade carried on by the other member, the member acquiring the asset shall be treated for the purposes of section 596 as having acquired the asset otherwise than as trading stock and immediately appropriated it for the purposes of the trade as trading stock.
(2) Where a member of a group of companies disposes of an asset to another member of the group and the asset formed part of the trading stock of a trade carried on by the member disposing of the asset but is acquired by the other member otherwise than as trading stock of a trade carried on by that other member, the member disposing of the asset shall be treated for the purposes of section 596 as having immediately before the disposal appropriated the asset for some purpose other than the purpose of use as trading stock.
num: 619
paragraphs: —(1) Where a company which is or has been a member of a group of companies disposes of an asset which it acquired from another member of the group at a time when both were members of the group, section 555 shall apply in relation to any capital allowances made to the other member (in so far as not taken into account in relation to a disposal of the asset by that other member), and so on as respects previous transfers of the asset between members of the group, but this shall not be taken as affecting the consideration for which an asset is deemed under section 617 (1) to be acquired.
(2) (a) Section 556 shall apply in relation to a disposal of an asset by a company which is or has been a member of a group of companies, and which acquired the asset from another member of the group at a time when both were members of the group, as if all members of the group for the time being were the same person, and as if the acquisition or provision of the asset by the group, so taken as a single person, had been the acquisition or provision of the asset by the member disposing of the asset.
(b) Notwithstanding paragraph (a), where at any time after the asset was acquired or provided by the group so taken as a single person and before the 24th day of April, 1992, there was an acquisition (in this paragraph referred to as “the later acquisition”) of the asset by a member of the group from another member of the group as a result of a relevant disposal (within the meaning of section 648 ), this subsection shall apply as if the reference in paragraph (a) to the acquisition or provision of the asset by the group were a reference to the later acquisition or, where there was more than one, the last such acquisition.
num: 620
paragraphs: —For the purposes of section 597 , all the trades carried on by members of a group of companies shall be treated as a single trade (except in a case of one member of the group acquiring, or acquiring the interest in, the new assets from another member or disposing of, or disposing of the interest in, the old assets to another member).
num: 621
paragraphs: —(1) For the purposes of this section—
“securities” includes any loan stock or similar security whether secured or unsecured;
references to the disposal of assets include references to any method by which one company which is a member of a group appropriates the goodwill of another member of the group;
a “group of companies” may consist of companies some or all of which are not resident in the State.
(2) References in this section to the disposal of shares or securities include references to the occasion of the making of a claim under section 538 (2) that the value of shares or securities has become negligible, and references to a person making a disposal shall be construed accordingly.
(3) This section shall apply as respects a disposal of shares in or securities of a company (in this section referred to as an “ultimate disposal”) if the value of the shares or securities has been materially reduced by a depreciatory transaction effected on or after the 6th day of April, 1974, and for this purpose “depreciatory transaction” means—
(a) any disposal of assets at other than market value by one member of a group of companies to another, or
(b) any other transaction satisfying the conditions of subsection (4); but a transaction shall not be treated as a depreciatory transaction to the extent that it consists of a payment which is required to be or has been taken into account, for the purposes of corporation tax on chargeable gains, in computing a chargeable gain or allowable loss accruing to the person making the ultimate disposal.
(4) The conditions referred to in subsection (3)(b) are—
(a) that the company, the shares in which or securities of which are the subject of the ultimate disposal, or any 75 per cent subsidiary of that company, was a party to the transaction, and
(b) that the parties to the transaction were or included 2 or more companies which at the time of the transaction were members of the same group of companies.
(5) Without prejudice to the generality of subsection (3), the cancellation of any shares in or securities of one member of a group of companies under section 72 of the Companies Act, 1963 , shall, to the extent that immediately before the cancellation those shares or securities were the property of another member of the group, be taken to be a transaction fulfilling the conditions in subsection (4).
(6) Where the person making the ultimate disposal is or has at any time been a member of the group of companies referred to in subsection (3) or (4), any allowable loss accruing on the disposal shall be reduced to such extent as appears to the inspector, or on appeal the Appeal Commissioners, or on a rehearing by a judge of the Circuit Court, that judge, to be just and reasonable having regard to the depreciatory transaction; but, if the person making the ultimate disposal is not a member of that group when disposing of the shares or securities, no reduction of the loss shall be made by reference to a depreciatory transaction which took place when that person was not a member of that group.
(7) The inspector, the Appeal Commissioners or the judge of the Circuit Court shall make the decision under subsection (6) on the basis that the allowable loss ought not to reflect any diminution in the value of the company's assets attributable to a depreciatory transaction, but allowance may be made for any other transaction on or after the 6th day of April, 1974, which has enhanced the value of the company's assets and depreciated the value of the assets of any other member of the group.
(8) (a) Where under subsection (6) a reduction is made in an allowable loss, any chargeable gain accruing on a disposal of the shares in or securities of any other company which was a party to the depreciatory transaction by reference to which the reduction was made, being a disposal not later than 10 years after the depreciatory transaction, shall be reduced to such extent as appears to the inspector, or on appeal to the Appeal Commissioners, or on a rehearing by a judge of the Circuit Court, that judge, to be just and reasonable having regard to the effect of the depreciatory transaction on the value of those shares or securities at the time of their disposal.
(b) Notwithstanding paragraph (a), the total amount of any one or more reductions in chargeable gains made by reference to a depreciatory transaction shall not exceed the amount of the reductions in allowable losses made by reference to that depreciatory transaction.
(c) All such adjustments, whether by means of discharge or repayment of tax or otherwise, as are required to give effect to this subsection may be made at any time.
num: 622
paragraphs: —(1) This section shall apply where one company (in this section referred to as “the first company”) has a holding in another company (in this section referred to as “the second company”) and the following conditions are fulfilled—
(a) that the holding amounts to, or is an ingredient in a holding amounting to, 10 per cent of all holdings of the same class in the second company,
(b) that the first company is not a dealing company in relation to the holding,
(c) that a distribution is or has been made on or after the 6th day of April, 1974, to the first company in respect of the holding, and
(d) that the effect of the distribution is that the value of the holding is or has been materially reduced.
(2) (a) Where this section applies in relation to a holding, section 621 shall apply in relation to any disposal of any shares or securities comprised in the holding, whether the disposal is by the first company or by any other company to which the holding is transferred by a transfer to which section 617 applies, as if the distribution were a depreciatory transaction and, if the companies concerned are not members of a group of companies, as if they were.
(b) Notwithstanding paragraph (a), the distribution shall not be treated as a depreciatory transaction to the extent that it consists of a payment which is required to be or has been taken into account, for the purposes of corporation tax on chargeable gains, in computing a chargeable gain or allowable loss accruing to the person making the ultimate disposal.
(3) This section shall be construed together with section 621 .
(4) For the purposes of this section, a company shall be a dealing company in relation to a holding if a profit on the sale of the holding would be taken into account in computing the company's trading profits.
(5) References in this section to a holding in a company are references to a holding of shares or securities by virtue of which the holder may receive distributions made by the company, but so that—
(a) a company's holdings of different classes in another company shall be treated as separate holdings, and
(b) holdings of shares or securities which differ in the entitlements or obligations they confer or impose shall be regarded as holdings of different classes.
(6) For the purposes of subsection (1)—
(a) all a company's holdings of the same class in another company shall be treated as ingredients constituting a single holding, and
(b) a company's holding of a particular class shall be treated as an ingredient in a holding amounting to 10 per cent of all holdings of that class if the aggregate of that holding and other holdings of that class held by connected persons amounts to 10 per cent of all holdings of that class.
num: 623
paragraphs: —(1) For the purposes of this section—
(a) 2 or more companies shall be associated companies if by themselves they would form a group of companies;
(b) a chargeable gain shall be deferred on a replacement of business assets if, by one or more claims under section 597 , a chargeable gain on the disposal of those assets is treated as not accruing until the new assets within the meaning of that section cease to be used for the purpose of a trade carried on by the company making the claim;
(c) an asset acquired by the chargeable company shall be treated as the same as an asset owned at a later time by that company or an associated company if the value of the second asset is derived in whole or in part from the first asset, and in particular where the second asset is a freehold, and the first asset was a leasehold and the lessee has acquired the reversion;
(d) references to a company ceasing to be a member of a group of companies shall not apply to cases where a company ceases to be a member of a group by being wound up or dissolved or in consequence of another member of the group being wound up or dissolved where the winding up or dissolution of the member or the other member, as the case may be, is for bona fide commercial reasons and is not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
(2) Where a company (in this section referred to as “the chargeable company”) ceases to be a member of a group of companies, this section shall apply as respects any asset which the chargeable company acquired from another company which was at the time of acquisition a member of that group of companies, but only if the time of acquisition fell within the period of 10 years ending with the time when the company ceases to be a member of the group.
(3) (a) Where 2 or more associated companies (in this subsection referred to as “the associated companies”) cease to be members of a group at the same time—
(i) subsection (2) shall not apply as respects an acquisition by one from another of the associated companies, and
(ii) where—
(I) a dividend has been paid or a distribution has been made by one of the associated companies to a company which is not one of the associated companies, and
(II) the dividend so paid or the distribution so made has been paid or made, as the case may be, wholly or partly out of profits which derive from the disposal of any asset by one to another of the associated companies,
the amount of the dividend paid or the amount or value of the distribution made, to the extent that it is paid or made, as the case may be, out of those profits, shall be deemed for the purposes of the Capital Gains Tax Acts to be consideration (in addition to any other consideration) received by the member of the group or former member of the group in respect of a disposal, being a disposal which gave rise to or was caused by the associated companies ceasing to be members of the group.
(b) Paragraph (a)(ii) shall not apply to a distribution other than a dividend where a company ceases to be a member of a group of companies before the 23rd day of April, 1996.
(4) If when the chargeable company ceases to be a member of the group the chargeable company, or an associated company also leaving the group, owns otherwise than as trading stock—
(a) the asset referred to in subsection (2), or
(b) property on the acquisition of which a chargeable gain in relation to the asset has been deferred on a replacement of business assets,
the chargeable company shall be treated for the purposes of the Capital Gains Tax Acts as if immediately after its acquisition of the asset it had sold and immediately reacquired the asset at market value at that time.
(5) Where any of the corporation tax assessed on a company in consequence of this section is not paid within 6 months from the date when it becomes payable, then—
(a) a company which on that date, or immediately after the chargeable company ceased to be a member of the group, was the principal company of the group, and
(b) a company which owned the asset on that date or when the chargeable company ceased to a member of the group,
may, at any time within 2 years from the time when the tax became payable, be assessed and charged (in the name of the chargeable company) to all or any part of that tax, and a company paying any amount of tax under this subsection shall be entitled to recover a sum of that amount from the chargeable company.
(6) Notwithstanding any limitation on the time for making assessments, an assessment to corporation tax chargeable in consequence of this section may be made at any time within 10 years from the time when the chargeable company ceased to be a member of the group, and where under this section the chargeable company is to be treated as having disposed of and reacquired an asset, all such recomputations of liability in respect of other disposals, and all such adjustments of tax, whether by means of assessment or by means of discharge or repayment of tax, as may be required in consequence of this section shall be made.
num: 624
paragraphs: —(1) Section 623 shall not apply in a case where—
(a) as part of a merger a company (in this section referred to as “company A”) ceases to be a member of a group of companies (in this section referred to as “the A group”), and
(b) it is shown that the merger was carried out for bona fide commercial reasons and that the avoidance of liability to tax was not the main or one of the main purposes of the merger.
(2) In this section, “merger” means an arrangement (including a series of arrangements)—
(a) whereby one or more companies (in this section referred to as “the acquiring company” or, as the case may be, “the acquiring companies”) none of which is a member of the A group acquires or acquire, otherwise than with a view to their disposal, one or more interests in the whole or part of the business which, before the arrangement took effect, was carried on by company A,
(b) whereby one or more members of the A group acquires or acquire, otherwise than with a view to their disposal, one or more interests in the whole or part of the business or each of the businesses which, before the arrangement took effect, was carried on either by the acquiring company or acquiring companies or by a company at least 90 per cent of the ordinary share capital of which was then beneficially owned by 2 or more of the acquiring companies, and
(c) in respect of which the conditions in subsection (4) are fulfilled.
(3) For the purposes of subsection (2), a member of a group of companies shall be treated as carrying on as one business the activities of that group.
(4) The conditions referred to in subsection (2)(c) are—
(a) that not less than 25 per cent by value of each of the interests acquired as mentioned in paragraphs (a) and (b) of subsection (2) consists of a holding of ordinary share capital, and the remainder of the interest or, as the case may be, of each of the interests acquired as mentioned in paragraph (b) of that subsection consists of a holding of share capital (of any description) or debentures or both,
(b) that the value or, as the case may be, the aggregate value of the interest or interests acquired as mentioned in subsection (2)(a) is substantially the same as the value or, as the case may be, the aggregate value of the interest or interests acquired as mentioned in subsection (2)(b), and
(c) that the consideration for the acquisition of the interest or interests acquired by the acquiring company or acquiring companies as mentioned in subsection (2)(a), disregarding any part of that consideration which is small by comparison with the total, either consists of, or is applied in the acquisition of, or consists partly of and as to the balance is applied in the acquisition of, the interest or interests acquired by members of the A group as mentioned in subsection (2)(b),
and for the purposes of this subsection the value of an interest shall be determined as at the date of its acquisition.
(5) Notwithstanding section 616 (1)(a), references in this section to a company shall include references to a company resident outside the State.
num: 625
paragraphs: —(1) (a) This section shall apply if a company (in this section referred to as “the subsidiary”) ceases to be a member of a group of companies, and on an earlier occasion shares in the subsidiary were disposed of by another company (in this section referred to as “the chargeable company”) which was then a member of that group in the course of an amalgamation or reconstruction in the group, but only if that earlier occasion fell within the period of 10 years ending on the date on which the subsidiary ceases to be a member of the group.
(b) References in this section to a company ceasing to be a member of a group of companies shall not apply to cases where a company ceases to be a member of a group by being wound up or dissolved or in consequence of another member of the group being wound up or dissolved.
(2) The chargeable company shall be treated for the purposes of the Capital Gains Tax Acts as if immediately before the earlier occasion it had sold and immediately reacquired the shares referred to in subsection (1)(a) at market value at that time.
(3) Where before the subsidiary ceases to be a member of the group the chargeable company has ceased to exist, or a resolution has been passed, or an order made, for the winding up of the company, or any other act has been done for the like purpose, any corporation tax to which, if the chargeable company had continued in existence, it would have been chargeable in consequence of this section may be assessed and charged (in the name of the chargeable company) on the company which is, at the time when the subsidiary ceases to be a member of the group, the principal company of the group.
(4) Where any of the corporation tax assessed on a company in consequence of this section, or in pursuance of subsection (3), is not paid within 6 months from the date when it becomes payable, then—
(a) a company which is on that date, or was on the earlier occasion, the principal company of the group, and
(b) any company taking an interest in the subsidiary as part of the amalgamation or reconstruction in the group, may at any time within 2 years from the time when the tax became payable, be assessed and charged (in the name of the chargeable company) to all or any part of that tax, and a company paying any amount of tax under this subsection shall be entitled to recover a sum of that amount from the chargeable company or, as the case may be, from the company assessed under subsection (3).
(5) Notwithstanding any limitation on the time for making assessments, an assessment to corporation tax chargeable in consequence of this section may be made at any time within 10 years from the time when the subsidiary ceased to be a member of the group and, in relation to any disposal of the property after the earlier occasion, there shall be made all such adjustments of tax, whether by means of assessment or by means of discharge or repayment of tax, as may be required in consequence of this section.
(6) For the purposes of this section, there shall be a disposal of shares in the course of an amalgamation or reconstruction in a group of companies if—
(a) section 586 or 587 applies to shares in a company so as to equate them with shares in or debentures of another company, and
(b) the companies are members of the same group, or become members of the same group as a result of the amalgamation or reconstruction.
(7) Where by virtue of section 587 shares are to be treated as cancelled and replaced by a new issue, references in this section to a disposal of shares include references to the occasion of the shares being so treated.
num: 626
paragraphs: —(1) Where at any time a chargeable gain accrues to a company which at that time is a member of a group of companies and any of the corporation tax assessed on the company for the accounting period in which the chargeable gain accrues is not paid within 6 months from the date when it becomes payable by the company, then, if the tax so assessed included any amount in respect of chargeable gains—
(a) a company which at the time when the gain accrued was the principal company of the group, and
(b) any other company which in any part of the period of 2 years ending with that time was a member of that group of companies and owned the asset disposed of or any part of it or, where the asset is an interest or right in or over another asset, owned either asset or any part of either asset,
may at any time within 2 years from the time when the tax became payable be assessed and charged (in the name of the company to whom the chargeable gain accrued) to an amount of that corporation tax not exceeding corporation tax on the amount and at the rate charged in respect of that gain in the assessment on the company to which the chargeable gain accrued.
(2) A company paying any amount of tax under subsection (1) shall be entitled to recover a sum of that amount—
(a) from the company to which the chargeable gain accrued, or
(b) if that company is not the company which was the principal company of the group at the time when the chargeable gain accrued, from that principal company,
and a company paying any amount under paragraph (b) shall be entitled to recover a sum of that amount from the company to which the chargeable gain accrued and, in so far as it is not so recovered, to recover from any company which is for the time being a member of the group and which has while a member of the group owned the asset disposed of or any part of that asset (or, where that asset is an interest or right in or over another asset, owned either asset or any part of either asset) such proportion of the amount unrecovered as is just having regard to the value of the asset at the time when the asset, or an interest or right in or over that asset, was disposed of by that company.
num: 627
paragraphs: —(1) (a) In this section and in section 628 —
“designated area”, “exploration or exploitation activities” and “exploration or exploitation rights” have the same meanings respectively as in section 13 ;
“exploration or exploitation assets” means assets used or intended for use in connection with exploration or exploitation activities carried on in the State or in a designated area;
“market value” shall be construed in accordance with section 548 ;
“the new assets” and “the old assets” have the meanings respectively assigned to them by section 597 .
(b) For the purposes of this section and section 628 , a company shall not be regarded as ceasing to be resident in the State by reason only that it ceases to exist.
(2) (a) In this subsection—
“control” shall be construed in accordance with subsections (2) to (6) of section 432 as if in subsection (6) of that section for “5 or fewer participators” there were substituted “persons resident in a relevant territory”;
“excluded company” means a company of which not less than 90 per cent of its issued share capital is held by a foreign company or foreign companies, or by a person or persons directly or indirectly controlled by a foreign company or foreign companies;
“foreign company” means a company which—
(i) is not resident in the State,
(ii) is under the control of a person or persons resident in a relevant territory, and
(iii) is not under the control of a person or persons resident in the State;
“relevant territory” means—
(i) the United States of America, or
(ii) a territory with the government of which arrangements having the force of law by virtue of section 826 have been made.
(b) Subject to paragraph (c), this section and section 628 shall apply to a company (in this section referred to as a “relevant company”) if at any time (in this section and in section 628 referred to as “the relevant time”) on or after the 21st day of April, 1997, the company ceases to be resident in the State.
(c) This section and section 628 shall not apply to a company which is an excluded company.
(3) A relevant company shall be deemed for the purposes of the Capital Gains Tax Acts—
(a) to have disposed of all its assets, other than assets excepted from this subsection by subsection (5), immediately before the relevant time, and
(b) to have immediately reacquired them,
at the market value of the assets at that time.
(4) Section 597 shall not apply where a relevant company—
(a) has disposed of the old assets, or of its interest in those assets, before the relevant time, and
(b) acquires the new assets, or its interest in those assets, after the relevant time,
unless the new assets are excepted from this subsection by subsection (5).
(5) Where at any time after the relevant time a relevant company carries on a trade in the State through a branch or agency—
(a) any assets which, immediately after the relevant time, are situated in the State and are used in or for the purposes of the trade, or are used or held for the purposes of the branch or agency, shall be excepted from subsection (3), and
(b) any new assets which, after that time, are so situated and are so used or so held shall be excepted from subsection (4),
and references in this subsection to assets situated in the State include references to exploration or exploitation assets and to exploration or exploitation rights.
num: 628
paragraphs: —(1) (a) In this section—
“deemed disposal” means a disposal which by virtue of section 627 (3) is deemed to have been made;
“foreign assets” of a company means any assets of the company which immediately after the relevant time are situated outside the State and are used in or for the purposes of a trade carried on by the company outside the State.
(b) For the purposes of this section, a company shall be a 75 per cent subsidiary of another company if and so long as not less than 75 per cent of its ordinary share capital (within the meaning of section 2 ) is owned directly by that other company.
(2) Where—
(a) immediately after the relevant time a company (in this section referred to as “the company”) to which this section applies by virtue of section 627 is a 75 per cent subsidiary of another company (in this section referred to as “the principal company”) which is resident in the State, and
(b) the principal company and the company jointly so elect by notice in writing given to the inspector within 2 years after the relevant time,
the Capital Gains Tax Acts shall apply subject to subsections (3) to (6).
(3) Any allowable losses accruing to the company on a deemed disposal of foreign assets shall be set off against the chargeable gains so accruing and—
(a) that deemed disposal shall be treated as giving rise to a single chargeable gain equal to the aggregate of those gains after deducting the aggregate of those losses, and
(b) the whole of that single chargeable gain shall be treated as not accruing to the company on that disposal but an equivalent amount (in this section referred to as “the postponed gain”) shall be taken into account in accordance with subsections (4) and (5).
(4) (a) In this subsection, “the appropriate proportion” means the proportion which the chargeable gain taken into account in determining the postponed gain in respect of the part of the relevant assets disposed of bears to the aggregate of the chargeable gains so taken into account in respect of the relevant assets held immediately before the time of the disposal.
(b) Where at any time within 10 years after the relevant time the company disposes of any assets (in this subsection referred to as “relevant assets”) the chargeable gains on which were taken into account in determining the postponed gain, there shall be deemed to accrue to the principal company as a chargeable gain at that time the whole or the appropriate proportion of the postponed gain in so far as not already taken into account under this subsection or subsection (5).
(5) Where at any time within 10 years after the relevant time—
(a) the company ceases to be a 75 per cent subsidiary of the principal company, or
(b) the principal company ceases to be resident in the State,
there shall be deemed to accrue to the principal company as a chargeable gain—
(i) where paragraph (a) applies, at that time, and
(ii) where paragraph (b) applies, immediately before that time,
the whole of the postponed gain in so far as not already taken into account under this subsection or subsection (4).
(6) Where at any time—
(a) the company has allowable losses which have not been allowed as a deduction from chargeable gains, and
(b) a chargeable gain accrues to the principal company under subsection (4) or (5),
then, if and to the extent that the principal company and the company jointly so elect by notice in writing given to the inspector within 2 years after that time, those losses shall be allowed as a deduction from that gain.
num: 629
paragraphs: —(1) In this section—
“chargeable period” means a year of assessment or an accounting period, as the case may be;
“controlling director”, in relation to a company, means a director of the company who has control of the company (construing control in accordance with section 432 );
“director”, in relation to a company, has the same meaning as in section 116 , and includes any person within section 433 (4);
“group” has the meaning which would be given by section 616 if in that section references to residence in the State were omitted and for references to “75 per cent subsidiaries” there were substituted references to “51 per cent subsidiaries”, and references to a company being a member of a group shall be construed accordingly;
“specified period”, in relation to a chargeable period, means the period beginning with the specified return date for the chargeable period (within the meaning of section 950 ) and ending 3 years after the time when a return under section 951 for the chargeable period is delivered to the appropriate inspector (within the meaning of section 950 );
“tax” means corporation tax or capital gains tax, as the case may be.
(2) This section shall apply at any time on or after the 21st day of April, 1997, where tax payable (being tax which but for section 627 or 628 would not be payable) by a company (in this section referred to as “the taxpayer company”) for a chargeable period (in this section referred to as “the chargeable period concerned”) is not paid within 6 months after the date on or before which the tax is due and payable.
(3) The Revenue Commissioners may, at any time before the end of the specified period in relation to the chargeable period concerned, serve on any person to whom subsection (4) applies a notice—
(a) stating the amount which remains unpaid of the tax payable by the taxpayer company for the chargeable period concerned and the date on or before which the tax became due and payable, and
(b) requiring that person to pay that amount within 30 days of the service of the notice.
(4) (a) This subsection shall apply to any person, being—
(i) a company which is, or during the period of 12 months ending with the time when the gain accrued was, a member of the same group as the taxpayer company, and
(ii) a person who is, or during that period was, a controlling director of the taxpayer company or of a company which has, or within that period had, control over the taxpayer company.
(b) This subsection shall apply in any case where the gain accrued before the 21st day of April, 1998, with the substitution in paragraph (a)(i) of “beginning with the 21st day of April, 1997, and” for “of 12 months”.
(5) Any amount which a person is required to pay by a notice under this section may be recovered from the person as if it were tax due by such person, and such person may recover any such amount paid on foot of a notice under this section from the taxpayer company.
(6) A payment in pursuance of a notice under this section shall not be allowed as a deduction in computing any income, profits or losses for any tax purposes.
num: 630
paragraphs: —In this Part—
“bilateral agreement” means arrangements having the force of law by virtue of section 826 ;
“company” means a company from a Member State;
“company from a Member State” has the meaning assigned to it by Article 3 of the Directive;
“the Directive” means Council Directive No. 90/434/EEC of 23 July 19901 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States;
“Member State” means a Member State of the European Communities;
“receiving company” means the company to which the whole or part of a trade is transferred in the course of a transfer;
“securities” means shares and debentures;
“shares” includes stock;
“transfer” means the transfer by a company of the whole or part of its trade in the circumstances set out in section 631 (1) or 634 (2), as the case may be;
“transferring company” means the company by which the whole or part of a trade is transferred in the course of a transfer.
1O.J. No. L225, 20.8.1990, p. 1.
num: 631
paragraphs: —(1) (a) This section shall apply where a company transfers the whole of a trade carried on by it in the State to another company and the consideration for the transfer consists solely of the issue to the transferring company of securities (in this section referred to as “the new assets”) in the receiving company.
(b) A company which transfers part of a trade to another company shall be treated for the purposes of this section as having carried on that part of its trade as a separate trade.
(2) (a) The transfer shall not be treated as giving rise to any allowance or charge provided for by section 307 or 308 .
(b) There shall be made to or on the receiving company in accordance with sections 307 and 308 all such allowances and charges as would, if the transferring company had continued to carry on the trade and had continued to use the transferred assets for the purposes of the trade, have been made to or on the transferring company in respect of any assets transferred in the course of the transfer, and the amount of any such allowance or charge shall be computed as if the receiving company had been carrying on the trade since the transferring company began to do so and as if everything done to or by the transferring company had been done to or by the receiving company.
(c) This subsection shall not apply as respects assets transferred in the course of a transfer if in consequence of the transfer, or a transaction of which the transfer is a part, the Corporation Tax Acts are to apply subject to subsections (6) to (9) of section 400 .
(3) For the purposes of the Capital Gains Tax Acts and, in so far as they apply to chargeable gains, the Corporation Tax Acts—
(a) the transfer shall not be treated as involving any disposal by the transferring company, and
(b) the receiving company shall be treated as if the assets transferred to it in the course of the transfer were acquired by it at the same time and for the same consideration at which they were acquired by the transferring company and as if all things done by the transferring company relating to the assets transferred in the course of the transfer had been done by the receiving company.
(4) Where, at any time within a period of 6 years commencing on the day on which the assets were transferred in the course of the transfer, the transferring company disposes of the new assets then, for the purposes of the Capital Gains Tax Acts and, in so far as they apply to chargeable gains, the Corporation Tax Acts, in computing any chargeable gain on the disposal of any new assets—
(a) the aggregate of the chargeable gains less allowable losses which but for subsection (3)(a) would have been chargeable on the transferring company shall be apportioned between the new assets as a whole, and
(b) the sums allowable as a deduction under section 552 (1)(a) shall be reduced by the amount apportioned to the new asset under paragraph (a),
and, if the securities which comprise the new assets are not all of the same type, the apportionment between the securities under paragraph (a) shall be in accordance with their market value at the time they were acquired by the transferring company.
(5) Subsections (2) to (4) shall not apply if—
(a) immediately after the time of the transfer—
(i) the assets transferred in the course of the transfer are not used for the purposes of a trade carried on by the receiving company in the State,
(ii) the receiving company would not be chargeable to corporation tax or capital gains tax in respect of any chargeable gains accruing to it on a disposal, if it were to make such a disposal, of any assets (other than cash) acquired in the course of the transfer, or
(iii) any of the assets are assets in respect of which, by virtue of being of a description specified in a bilateral agreement, the receiving company is to be regarded as not liable in the State to corporation tax or capital gains tax on gains accruing to it on a disposal,
or
(b) the transferring company and the receiving company jointly so elect by notice in writing to the inspector, and such notice shall be made by the time by which a return is to be made by the transferring company under section 951 for the accounting period in which the transfer takes place.
num: 632
paragraphs: —(1) Where a company disposes of an asset used for the purposes of a trade carried on by it in the State to another company which holds all of the securities representing the company's capital and but for this section the companies would not be treated in accordance with section 617 in respect of the asset, then, if—
(a) immediately after the disposal the company acquiring the asset commences to use the asset for the purposes of a trade carried on by it in the State, and
(b) the disposal is not, or does not form part of, a transfer to which section 631 applies,
sections 617 to 619 shall apply as if the companies were resident in the State.
(2) Subsection (5) of section 631 shall apply with any necessary modification for the purposes of this section as if references in that subsection to subsections (2) to (4) of that section were references to subsection (1) of this section.
num: 633
paragraphs: —Where a company, for the purposes of or in connection with a scheme of reconstruction or amalgamation (within the meaning of section 615 ), disposes of an asset which consists of development land (within the meaning of section 648 ) to another company and—
(a) the disposal is not made in the course of a transfer to which section 631 applies, and
(b) the company disposing of the asset and the company acquiring the asset would, if—
(i) the definition of “chargeable gains” in section 78 (4), and
(ii) section 649(1),
were deleted, be treated in accordance with section 615 (2) in respect of that asset,
then, the companies shall be treated for the purposes of the Capital Gains Tax Acts as if the asset was acquired by the one company from the other company for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the company making the disposal, and for the purposes of section 556 the acquiring company shall be treated as if the acquisition of the asset by the other company had been the acquiring company's acquisition of the asset.
num: 634
paragraphs: —(1) In this section—
“law of the Member State which has the effect of deferring a charge to tax on a gain” means any law of the Member State concerned which provides—
(a) that the gain accruing to the transferring company on the disposal of the assets in the course of the transfer is to be treated as not accruing until the disposal of the assets by the receiving company,
(b) that the receiving company is to be treated as having acquired the assets for a consideration of such amount as would secure that, for the purposes of charging the gain on the disposal to tax in that Member State, neither a gain nor a loss would accrue to the transferring company on the transfer and the receiving company is to be treated as if the acquisition of the assets by the transferring company had been the receiving company's acquisition of the assets, or
(c) such other deferral of a charge to tax as corresponds to paragraph (a) or (b);
“relevant certificate given by the tax authorities of a Member State” means a certificate so given and which states—
(a) whether gains accruing to the transferring company on the transfer would have been chargeable to tax under the law of the Member State but for—
(i) the Directive, or
(ii) any provision of the law of the Member State which has the effect of deferring a charge to tax on a gain in the case of such a transfer,
(b) if those gains accruing would have been so chargeable, the amount of tax which would have been payable under that law if, in so far as is permitted under that law, any losses arising on the transfer are set against any gains so arising and any deductions and reliefs available to the transferring company under that law other than the provisions mentioned in paragraph (a) had been claimed.
(2) Where—
(a) a company resident in the State transfers the whole or part of a trade which immediately before the time of the transfer it carried on in a Member State (other than the State) through a branch or agency to a company not resident in the State,
(b) the transfer includes the whole of the assets of the transferring company used for the purposes of the trade or the part of the trade or the whole of those assets other than cash, and
(c) the consideration for the transfer consists wholly or partly of the issue to the transferring company of securities in the receiving company,
then, tax specified in a relevant certificate given by the tax authorities of the Member State in which the trade was so carried on shall be treated for the purposes of Chapter 1 of Part 35 as tax—
(i) payable under the law of that Member State, and
(ii) in respect of which credit may be allowed under a bilateral agreement.
num: 635
paragraphs: —Notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts, sections 631 to 634 shall not apply as respects a transfer or disposal unless it is shown that the transfer or disposal, as the case may be, is effected for bona fide commercial reasons and does not form part of any arrangement or scheme of which the main purpose or one of the main purposes is avoidance of liability to income tax, corporation tax or capital gains tax.
num: 636
paragraphs: —(1) In this section, “appropriate inspector” has the same meaning as in section 950 .
(2) Where section 631 , 632 , 633 or 634 applies in relation to a transfer or disposal, the transferring company shall make a return of the transfer or disposal, as the case may be, to the appropriate inspector in such form as the Revenue Commissioners may require.
(3) Where corporation tax or capital gains tax payable by a company is to be reduced by virtue of section 634 , a return under this section shall include a relevant certificate given by the tax authorities of the Member State in which the trade was carried on immediately before the time of the transfer.
(4) A company shall make a return under this section within 9 months from the end of the accounting period in which the transfer occurs.
num: 637
paragraphs: —(1) The Revenue Commissioners may, on an application being made to them in writing in respect of a transaction—
(a) of a type specified in the Directive, and
(b) to which this Part does not apply,
give such relief as appears to them to be just and reasonable for the purposes of giving effect to the Directive.
(2) An application under this section shall be made in such form as the Revenue Commissioners may require.
num: 638
paragraphs: —Where for the purposes of this Part any sum is to be apportioned and at the time of the apportionment it appears that it is material as respects the liability to tax (for whatever period) of 2 or more companies, any question which arises as to the manner in which the sum is to be apportioned shall be determined for the purposes of the tax of all those companies by the Appeal Commissioners who shall determine the question in the like manner as if it were an appeal against an assessment, and the provisions of the Income Tax Acts 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, and all those companies shall be entitled to appear and be heard by the Appeal Commissioners or to make representations to them in writing.
num: 639
paragraphs: —(1) In this Chapter, except where the context otherwise requires—
“company” includes any body corporate;
“development”, in relation to any land, means—
(a) the construction, demolition, extension, alteration or reconstruction of any building on the land, or
(b) the carrying out of any engineering or other operation in, on, over or under the land to adapt it for materially altered use,
and “developing” and “developed” shall be construed accordingly;
“market value”, in relation to any property, means the price which that property might reasonably be expected to fetch if sold in the open market;
“trading stock” has the same meaning as in section 89 ;
any reference to the disposal of an interest in land includes a reference to the creation of an interest, and any reference to the acquisition of an interest in land includes a reference to the acquisition of an interest which ceases on the acquisition.
(2) For the purposes of this Chapter—
(a) a person shall not be regarded as disposing of an interest in land by reason of the person conveying or transferring the interest by means of security or of the person granting a lease of the land on terms which do not require the payment of any fine, premium or like sum, and
(b) an option or other right to acquire or dispose of any interest in any land shall be deemed to be an interest in the land.
(3) This Chapter shall apply notwithstanding Chapter 8 of Part 4 .
num: 640
paragraphs: —(1) For the purposes of subsection (2)—
(a) a dealing in land shall be regarded as taking place where a person having an interest in any land disposes, as regards the whole or any part of the land, of that interest or of an interest which derives from that interest, and
(b) a person who secures the development of any land shall be regarded as developing that land.
num: 641
paragraphs: —(1) Where a business of dealing in or developing land is, or is to be regarded as, a trade within Schedule D or a part of such a trade, the provisions applicable to Case I of that Schedule shall, as respects the computation of the profits or gains of the business, apply subject to subsections (2) to (4).
(2) (a) Any consideration (other than rent or an amount treated as rent under section 98 ) for the disposal of an interest in any land or in a part of any land shall be treated as a consideration for the disposal of trading stock and accordingly shall be taken into account as a trading receipt.
(b) Any interest in any land which is held by a person carrying on a trade (in this section referred to as “the trader”) and which has become trading stock of the trade shall thereafter, until the discontinuance of the trade, continue to be such trading stock.
(c) Where the trader has acquired an interest in any land otherwise than for consideration in money or money's worth, the trader shall, subject to paragraph (d), be deemed to have purchased the interest for a consideration equal to its market value at the time of acquisition.
(d) Where at the time of acquisition of an interest in any land the trade had not been commenced or the interest was not then appropriated as trading stock, the trader shall be deemed to have purchased the interest for a consideration equal to its market value at the time of its appropriation as trading stock.
num: 642
paragraphs: —(1) Where an interest in land is disposed of by any person (in this subsection referred to as “the disponer”) to a person connected with the disponer (in this subsection referred to as “the transferee”) and—
(a) the interest is disposed of at a price greater than its market value, and
(b) the price—
(i) is not to be taken into account in relation to the disponer in computing for tax purposes the profits or gains of a trade which is or includes a business of dealing in or developing land, but
(ii) is to be so taken into account in relation to the transferee,
the transferee shall for tax purposes be deemed to have acquired the interest at a price equal to the market value of the interest at the time of its acquisition by the transferee.
(2) (a) Where an interest in land is disposed of by any person (in this subsection referred to as “the disponer”) to a person connected with the disponer (in this subsection referred to as “the transferee”) and—
(i) the interest is disposed of at a price less than its market value, and
(ii) the price—
(I) is not to be taken into account in relation to the transferee in computing for tax purposes the profits or gains of a trade which is or includes a business of dealing in or developing land, but
(II) is to be so taken into account in relation to the disponer,
the disponer shall for tax purposes be deemed to have disposed of the interest at a price equal to the market value of the interest at the time of the disposal by the disponer.
(b) A disposal by means of gift shall be regarded for the purposes of this subsection as being a disposal at a nominal price.
(3) In the application of this section to a case in which a lease is granted, any reference to price shall be construed as a reference to the fine, premium or like sum payable for the grant of the lease.
num: 643
paragraphs: —(1) In this section and in section 644 —
“capital amount” means any amount in money or money's worth which apart from this section is not to be included in any computation of income for the purposes of the Tax Acts, and other expressions which include the word “capital” shall be construed accordingly;
“chargeable period” means an accounting period of a company or a year of assessment;
“land” includes any interest in land, and references to the land include references to all or any part of the land;
“share” includes stock;
references to property deriving its value from land include references to—
(a) any shareholding in a company, or any partnership interest, or any interest in settled property, deriving its value or the greater part of its value directly or indirectly from land, and
(b) any option, consent or embargo affecting the disposition of land.
(2) This section shall not apply to a gain accruing to an individual which by virtue of section 604 is exempt from capital gains tax or which would be so exempt but for subsection (14) of that section.
(3) This section shall apply in any case where—
(a) land or any property deriving its value from land is acquired with the sole or main object of realising a gain from disposing of the land,
(b) land is held as trading stock, or
(c) land is developed by a company with the sole or main object of realising a gain from disposing of the land when developed,
and any gain of a capital nature is obtained from disposing of the land—
(i) by the person acquiring, holding or developing the land, or by a person connected with that person, or
(ii) where any arrangement or scheme is effected as respects the land which enables the gain to be realised directly or indirectly by any transaction, or by any series of transactions, by any person who is a party to or concerned in the arrangement or scheme,
and this subsection shall apply whether that gain is obtained by any such person for that person's benefit or for the benefit of any other person.
(4) Where this section applies, the whole of any gain mentioned in subsection (3) shall for the purposes of the Tax Acts be treated—
num: 644
paragraphs: —(1) (a) Where a person (in this subsection referred to as “the first-mentioned person”) is assessed to tax under section 643 and that assessment to tax arises in consequence of and in respect of consideration receivable by another person (in this subsection referred to as “the second-mentioned person”)—
(i) the first-mentioned person shall be entitled to recover from the second-mentioned person any part of that tax which the first-mentioned person has paid,
(ii) if any part of that tax remains unpaid at the expiration of 6 months from the date when it became due and payable, it shall be recoverable from the second-mentioned person as though the second-mentioned person were the person so assessed, but without prejudice to the right to recover the tax from the first-mentioned person, and
(iii) for the purposes of subparagraph (i), the inspector shall on request furnish a certificate specifying the amount of income in respect of which tax has been paid and the amount of tax so paid, and the certificate shall be evidence until the contrary is proved of any facts stated in the certificate.
(b) For the purposes of this subsection, any amount which by virtue of section 643 is treated as the income of a person shall, notwithstanding any other provision of the Tax Acts, be treated as the highest part of the person's income.
num: 645
paragraphs: —(1) The inspector may by notice in writing require any person to furnish him or her within such time as may be specified in the notice (not being less than 30 days) with such particulars as the inspector thinks necessary for the purposes of sections 643 and 644 .
(2) The particulars which a person is obliged to furnish under this section, if required by notice to do so, shall include particulars as to—
(a) transactions or arrangements with respect to which the person is or was acting on behalf of others,
(b) transactions or arrangements which in the opinion of the inspector should properly be examined for the purposes of sections 643 and 644 , notwithstanding that in the opinion of the person to whom the notice is given no liability to tax arises under those sections, and
(c) whether the person to whom the notice is given has taken or is taking any transactions or arrangements of a description specified in the notice and, if so, what transactions or arrangements, and what part the person has taken or is taking in those transactions or arrangements.
(3) Notwithstanding anything in subsection (2), a solicitor shall not be deemed for the purposes of subsection (2)(c) to have taken part in any transaction or arrangements by reason only that he or she has given professional advice to a client in connection with the transaction or arrangements, and shall not, in relation to anything done by him or her on behalf of a client, be compellable under this section, except with the consent of the client, to do more than state that he or she is or was acting on behalf of a client, and give the name and address of the client.
num: 646
paragraphs: —(1) In this section, “basis period”, in relation to any year of assessment, means the period on the profits or gains of which income tax for that year is finally computed under Case I of Schedule D in respect of the trade or, where by virtue of the Income Tax Acts the profits or gains of any other period are taken to be the profits or gains of that period, that other period.
(2) Where—
(a) a person (in this section referred to as “the vendor”) carrying on a trade of dealing in or developing land (in this section referred to as “the trade”) disposes in the course of the trade of the full interest acquired by the person in any land,
(b) the person to whom the disposition is made (in this section referred to as “the purchaser”) is not connected with the vendor,
(c) the terms subject to which the disposition is made provide for the grant of a lease of the land by the purchaser to the vendor,
(d) a sum representing the value of the vendor's right to be granted a lease is to be taken into account as a consideration for the disposal in computing the profits or gains of the trade, and
(e) within 6 months after the time of the disposition, a lease of the land in accordance with those terms is granted by the purchaser to the vendor,
subsections (3) and (4) shall apply in relation to income tax for a year of assessment in the basis period for which the disposition is made.
(3) Where, at the time when any amount of income tax charged by an assessment in respect of the profits or gains of the trade would but for this subsection become due and payable, the vendor—
(a) retains the leasehold interest acquired by the vendor from the purchaser, and
(b) has not disposed, as regards the whole or any part of the land, of an interest derived from that leasehold interest,
then, a part of that amount of income tax equal to 90 per cent of so much of such tax as would not have been chargeable if no sum had to be taken into account as mentioned in subsection (2)(d) shall be payable in 9 equal instalments at yearly intervals the first of which is payable on the 1st day of January in the year following that in which but for this subsection that amount of income tax would have been payable.
(4) Where, in a case in which the postponement of payment of any amount of income tax has been authorised by subsection (3), the vendor—
(a) ceases to retain the leasehold interest acquired by the vendor from the purchaser,
(b) disposes, as regards the whole or any part of the land, of an interest derived from that leasehold interest,
(c) being an individual, dies, or
(d) being a company, commences to be wound up,
then, that amount of income tax or, as the case may be, so much of that amount of income tax as has not already become due and payable shall become due and payable forthwith.
num: 647
paragraphs: —(1) Where—
(a) for any accounting period the profits of a company consist of or include income from a trade of dealing in or developing land in the course of which the company disposes of the full interest acquired by it in any land,
(b) in relation to that disposal, the conditions specified in paragraphs (b) to (e) of section 646 (2) are satisfied, and
(c) at the time when any amount of corporation tax charged by an assessment for that accounting period would but for this section become due and payable the company—
(i) retains the leasehold interest acquired by it from the person to whom the disposition is made, and
(ii) has not disposed, as regards the whole or any part of the land, of an interest derived from that leasehold interest,
then, a part of that amount of corporation tax equal to 90 per cent of so much of that amount as would not have been chargeable if no sum had to be taken into account as mentioned in section 646 (2)(d) shall be payable in 9 equal instalments at yearly intervals the first of which shall be payable on the expiration of 12 months from the date on which but for this section that amount of corporation tax would have been payable.
(2) Where, in a case in which the postponement of payment of any amount of corporation tax has been authorised by subsection (1), the company—
(a) ceases to retain the leasehold interest acquired by it,
(b) disposes, as regards the whole or any part of the land, of an interest derived from that leasehold interest, or
(c) commences to be wound up,
then, that amount of corporation tax or, as the case may be, so much of that amount of corporation tax as has not already become due and payable shall become due and payable forthwith.
num: 648
paragraphs: —In this Chapter—
“the Act of 1963” means the Local Government (Planning and Development) Act, 1963 ;
“compulsory disposal” means a disposal to an authority possessing compulsory purchase powers, which is made pursuant to the exercise of those powers or the giving of formal notice of intention to exercise those powers, other than a disposal to which section 29 of the Act of 1963 applies;
“current use value”—
(a) in relation to land at any particular time, means the amount which would be the market value of the land at that time if the market value were calculated on the assumption that it was at that time and would remain unlawful to carry out any development (within the meaning of section 3 of the Act of 1963) in relation to the land other than development of a minor nature, and
(b) in relation to shares in a company (being shares deriving their value or the greater part of their value directly or indirectly from land, other than shares quoted on a stock exchange) at any particular time, means the amount which would be the market value of the shares at that time if the market value were calculated on the same assumption, in relation to the land from which the shares so derive value, as is mentioned in paragraph (a);
“development land” means land in the State the consideration for the disposal of which, or the market value of which at the time at which the disposal is made, exceeds the current use value of that land at the time at which the disposal is made, and includes shares deriving their value or the greater part of their value directly or indirectly from such land, other than shares quoted on a Stock Exchange;
“development of a minor nature” means development (not being development by a local authority or a statutory undertaker within the meaning of section 2 of the Act of 1963) which, under or by virtue of section 4 of the Act of 1963, is exempted development for the purposes of the Local Government (Planning and Development) Acts, 1963 to 1993;
“relevant disposal” means a disposal of development land made on or after the 28th day of January, 1982.
num: 649
paragraphs: —(1) Notwithstanding any provision to the contrary in the Corporation Tax Acts, a company shall not be chargeable to corporation tax in respect of chargeable gains accruing to it on relevant disposals, and accordingly—
(a) such gains shall not be regarded as profits of the company for the purposes of corporation tax, and
(b) the company shall be chargeable to capital gains tax under the Capital Gains Tax Acts in respect of those gains.
(2) Sections 617 and 621 to 626 shall apply with any necessary modifications in relation to capital gains tax to which a company is chargeable on chargeable gains accruing to the company on a relevant disposal as they apply in relation to corporation tax on chargeable gains, and references in those sections to corporation tax shall be construed as including references to capital gains tax.
(3) (a) Where a company which is or has been a member of a group of companies (within the meaning of section 616 ) makes a relevant disposal of an asset which, as a result of a disposal which was not a relevant disposal, the company had acquired from another member of that group at a time when both were members of the group, the amount of the chargeable gain accruing on the relevant disposal and the capital gains tax on that gain shall be computed as if all members of the group for the time being were the same person and as if the acquisition or provision of the asset by the group, so taken as a single person, had been the acquisition or provision of the asset by the member disposing of the asset.
(b) Notwithstanding paragraph (a), where under section 618 (2) or 623 a member of the group (in this paragraph referred to as “the first-mentioned member”) had been treated as having acquired or reacquired the asset at a time later than the original acquisition or provision of the asset by the first-mentioned member or by another member of the group, as the case may be, paragraph (a) shall apply as if the reference in that paragraph to the acquisition or provision of the asset by the group were a reference to its acquisition or reacquisition so treated as having been made by the first-mentioned member.
num: 650
paragraphs: — Sections 651 to 654 shall not apply to a relevant disposal made by an individual in any year of assessment if the total consideration in respect of all relevant disposals made by that individual in that year does not exceed £15,000.
num: 651
paragraphs: —For the purposes of computing the chargeable gain accruing to a person on a relevant disposal, the adjustment of sums allowable as deductions from the consideration for the disposal which under section 556 (2) would otherwise be made shall be made only to—
(a) such part of the amount or value of the consideration in money or money's worth given by the person or on the person's behalf wholly and exclusively for the acquisition of the asset, together with the incidental costs to the person of the acquisition, as is equal to the current use value of the asset at the date of the acquisition together with such proportion of the incidental costs to the person of the acquisition as would be referable to such value, or
(b) in the case of an asset to which section 556 (3) applies, such part of the market value of the asset on the 6th day of April, 1974, as is equal to the current use value of the asset on that date.
num: 652
paragraphs: —(1) Consideration obtained for a relevant disposal shall not be regarded for the purposes of relief under section 597 as having been obtained for the disposal of old assets within the meaning of that section.
(2) (a) In this subsection, “the relevant local authority”, in relation to a relevant disposal, means the council of a county or the corporation of a county or other borough or, where appropriate, the urban district council, in whose functional area the land being disposed of is situated.
(b) Subsection (1) shall not apply to a relevant disposal where the relevant local authority gives a certificate in writing to the person making the disposal stating that the land being disposed of is subject to a use which, on the basis of guidelines issued by the Minister for the Environment and Local Government, is inconsistent with the protection and improvement of the amenities of the general area within which that land is situated or is otherwise damaging to the local environment.
(3) (a) In this subsection—
“assets of an authorised racecourse” means assets of a racecourse which is an authorised racecourse where the assets are used for the provision of appropriate facilities or services to carry on horseracing at race meetings or to accommodate persons associated with horseracing, including members of the public;
“authorised racecourse” has the same meaning as in section 2 of the Irish Horseracing Industry Act, 1994.
(b) Subject to paragraph (c), subsection (1) shall not apply to consideration obtained for a relevant disposal where—
(i) throughout a period of 5 years ending with the time of disposal the old assets, and
(ii) the new assets within the meaning of section 597 ,
are assets of an authorised racecourse.
(c) Section 597 shall apply in relation to assets of an authorised racecourse as if—
(i) references in subsection (4) and (5) of that section to new assets ceasing to be used for the purposes of a trade included a reference to new assets ceasing to be assets of an authorised racecourse, and
(ii) subsection (11)(b) had not been enacted.
(4) Section 605 shall not apply to a relevant disposal.
(5) (a) In this subsection, “farming” has the same meaning as in section 654 .
(b) Subsection (4) shall not apply to a relevant disposal made to an authority possessing compulsory purchase powers where—
(i) at the time of the disposal the original assets (within the meaning of section 605 ) consist of land occupied and used only for the purposes of farming, and
(ii) the disposal is made—
(I) for the purposes of enabling the authority to construct, widen or extend a road or part of a road, or
(II) for a purpose connected with or ancillary to the construction, widening or extension of a road or part of a road by the authority.
(6) Subsections (1) and (4) shall not apply to a relevant disposal made by a body of persons established for the sole purpose of promoting athletic or amateur games or sports, being a disposal which is made in relation to such of the activities of that body as are directed to that purpose.
num: 653
paragraphs: —(1) Notwithstanding any provision to the contrary in the Capital Gains Tax Acts, any losses accruing on disposals which are not relevant disposals shall not, in the computation of a person's liability to capital gains tax in respect of chargeable gains accruing on relevant disposals, be deducted from the amount of those chargeable gains.
(2) In the computation of the amount on which under section 31 capital gains tax is to be charged on chargeable gains accruing on relevant disposals, any allowable losses accruing on relevant disposals may be deducted in accordance with that section but, in so far as they are so deducted, they shall not be treated as relevant allowable losses within the meaning of section 78 (4) for the purposes of the calculation required to be made under section 78 (2), and for the purposes of this subsection any necessary assessments or additional assessments, as may be appropriate, may be made.
num: 654
paragraphs: —In this Part other than in section 664 —
“farming” means farming farm land, that is, land in the State wholly or mainly occupied for the purposes of husbandry, other than market garden land;
“market garden land” means land in the State occupied as a nursery or garden for the sale of the produce (other than land used for the growth of hops), and “market gardening” shall be construed accordingly;
“occupation”, in relation to any land other than market garden land, means having the use of that land or having the right by virtue of any easement (within the meaning of section 96 ) to graze livestock on that land.
num: 655
paragraphs: —(1) For the purposes of the Tax Acts, farming shall be treated as the carrying on of a trade or, as the case may be, of part of a trade, and the profits or gains of farming shall be charged to tax under Case I of Schedule D.
(2) Notwithstanding anything to the contrary in Part 43 , farming carried on by any person, whether solely or in partnership, shall be treated as the carrying on of a single trade; but this subsection shall not prejudice or restrict the operation of Chapter 3 of Part 4 where a partnership trade of farming is set up and commenced or is permanently discontinued.
num: 656
paragraphs: —(1) In this section, “specified return date for the chargeable period” has the same meaning as in section 950 .
(2) Where trading stock of a trade of farming is transferred by a farmer (in this subsection referred to as “the transferor”) to another farmer (in this subsection referred to as “the transferee”), the transferor and the transferee may jointly elect that—
(a) section 89 (2)(b) shall not apply, and
(b) in computing their respective profits or gains from farming, the transferor and the transferee shall include such stock at the value at which the stock is included in the accounts of the transferor at the date of discontinuance,
and such election shall be made in writing on or before the specified return date for the chargeable period in which the stock is transferred.
num: 657
paragraphs: —(1) In this section—
“an individual to whom subsection (1) applies” means an individual carrying on farming in a year of assessment and—
(a) who at any time in the year of assessment is also carrying on either solely or in partnership another trade or profession,
(b) whose spouse, in a case where the individual is a married person, is at any time in the year of assessment also carrying on either solely or in partnership another trade or profession, other than a trade consisting solely of the provision of accommodation in buildings on the farm land occupied by the individual, the provision of such accommodation being ancillary to the farming of that farm land,
(c) who at any time in the year of assessment is a director of a company carrying on a trade or profession and is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other means, to control, more than 25 per cent of the ordinary share capital of the company, or
(d) whose spouse, in a case where the individual is a married person, is at any time in the year of assessment a director of a company carrying on a trade or profession and is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other means, to control, more than 25 per cent of the ordinary share capital of the company,
but paragraphs (b) and (d) shall not apply in a case where the wife of an individual is treated for tax purposes as not living with her husband;
“company” means a company within the meaning of the Companies Act, 1963 ;
“director” includes a person holding any office or employment under a company.
(2) The definition of “an individual to whom subsection (1) applies” shall apply in the case of a married person whose wife is carrying on farming, and shall apply in such a case as if the references to the individual were references to the individual's wife.
(3) For the purposes of paragraphs (c) and (d) of the definition of “an individual to whom subsection (1) applies”, ordinary share capital which is owned or controlled in the manner referred to in those paragraphs by a person, being the spouse or a minor child of a director, or by the trustee of a trust for the benefit of a person or persons, being or including any such person or such director, shall be deemed to be owned or controlled by such director and not by any other person.
(4) (a) Subject to paragraph (b), where an assessment in respect of profits or gains from farming is made for any year of assessment on an individual, other than an individual to whom subsection (1) applies, the individual may on giving notice in writing to that effect to the inspector within 30 days after the date of the notice of assessment elect to be charged to income tax for that year in respect of those profits or gains in accordance with subsection (5), and—
(i) the Income Tax Acts shall apply in relation to the assessment as if the notice given to the inspector were a notice of appeal against the assessment under section 933 , and
(ii) the assessment shall be amended as necessary so as to give effect to the election so made by the individual.
(b) This subsection shall not apply as respects any year of assessment where for either of the 2 immediately preceding years of assessment the individual was not charged to tax in respect of profits or gains from farming in accordance with section 65 (1).
num: 658
paragraphs: —(1) This section shall apply to any person carrying on farming, the profits or gains of which are chargeable to tax in accordance with section 655 .
(2) (a) Where a person to whom this section applies incurs, for the purpose of a trade of farming land occupied by such person, any capital expenditure on the construction of farm buildings (excluding a building or part of a building used as a dwelling), fences, roadways, holding yards, drains or land reclamation or other works, there shall be made to such person during a writing-down period of 7 years beginning with the chargeable period related to that expenditure, writing-down allowances (in this section referred to as “farm buildings allowances”) in respect of that expenditure and such allowances shall be made in taxing the trade.
(b) As respects each of the first 6 years of the writing-down period, the farm buildings allowance to be made under this subsection shall be 15 per cent of the capital expenditure referred to in paragraph (a) and, as respects the last year of the writing-down period, the farm buildings allowance to be made under this subsection shall be 10 per cent of that expenditure.
num: 659
paragraphs: —(1) This section shall apply to any person—
(a) carrying on farming, the profits or gains of which are chargeable to tax in accordance with section 655 ,
(b) for whom, in respect of capital expenditure to which paragraph (c) refers and in respect of farm land occupied by him or her, a farm nutrient management plan has been drawn up by an agency or planner approved to draw up such plans by the Department of Agriculture and Food, and drawn up in accordance with—
(i) the guidelines in relation to such plans entitled “Farm Nutrient Management Plan” issued by the Department of Agriculture, Food and Forestry on the 21st day of March, 1997, or
(ii) a plan drawn up under the scheme known as the Rural Environment Protection Scheme (REPS) or the scheme known as the Erne Catchment Nutrient Management Scheme, both being schemes administered by the Department of Agriculture and Food,
and
(c) who incurs capital expenditure on or after the 6th day of April, 1997, and before the 6th day of April, 2000, on the construction of those farm buildings (excluding a building or part of a building used as a dwelling) or structures specified in the Table to this section in the course of a trade of farming land occupied by such person where such building or structures are constructed in accordance with that farm nutrient management plan and are certified as being necessary by that agency or planner for the purpose of securing a reduction in or the elimination of any pollution arising from the trade of farming.
(2) Subject to the provisions of Article 6 of Council Regulation (EEC) No. 2328/91 of 15 July 19911 on improving the efficiency of agricultural structures, as amended, and subject to subsection (3), where a person to whom this section applies—
(a) has delivered to the Department of Agriculture and Food, a farm nutrient management plan referred to in subsection (1)(b), and
(b) incurs capital expenditure to which subsection (1) applies,
there shall be made to such person during a writing-down period of 8 years beginning with the chargeable period related to that expenditure, writing-down allowances (in this section referred to as “farm pollution control allowances”) in respect of that expenditure and such allowances shall be made in taxing the trade.
(3) The farm pollution control allowances to be made in accordance with subsection (2) in respect of capital expenditure incurred in a chargeable period shall be—
(a) as respects the first year of the writing-down period referred to in subsection (2)—
(i) where the capital expenditure incurred has not exceeded £20,000, an amount equal to 50 per cent of that expenditure, or
(ii) where the capital expenditure incurred has exceeded £20,000, an amount equal to £10,000,
(b) as respects the next 6 years of that writing-down period, an amount equal to 15 per cent of the balance of that expenditure after deducting the amount of any allowance made by virtue of paragraph (a), and
(c) as respects the last year of that writing-down period, an amount equal to 10 per cent of the balance of that expenditure after deducting the amount of any allowance made by virtue of paragraph (a).
(4) For the purposes of the application to this section of section 321 , “basis period” has the meaning assigned to it by section 306 .
(5) Any claim by a person for a farm pollution control allowance to be made to such person shall be included in the annual statement required to be delivered under the Income Tax Acts of the profits or gains from farming, and section 304 (4) shall apply in relation to the allowance as it applies in relation to allowances to be made under Part 9 .
(6) Any claim for a farm pollution control allowance shall be made to and determined by the inspector, but any person aggrieved by any decision of the inspector on any such claim may, on giving notice in writing to the inspector within 21 days after the notification to the person of the decision, appeal to the Appeal Commissioners.
(7) The Appeal Commissioners shall hear and determine an appeal to them made under subsection (6) as if it were an appeal against an assessment to tax, and the provisions of the Income Tax Acts 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.
(8) Subject to subsection (9), where a person who is entitled to farm pollution control allowances in respect of farm land occupied by the person transfers his or her interest in that farm land or any part of that farm land to another person, that other person shall, to the exclusion of the first-mentioned person, be entitled to the allowances under this section for the chargeable periods following the chargeable period in which the transfer of interest took place.
(9) Where the transfer of interest to which subsection (8) refers took place in relation to part of the farm land, subsection (8) shall apply to so much of the farm pollution control allowance as is properly referable to that part of the land as if it were a separate allowance.
(10) Where expenditure is incurred partly for a purpose for which a farm pollution control allowance is to be made and partly for another purpose, subsection (2) shall apply to so much only of that expenditure as on a just apportionment ought fairly to be treated as incurred for the first-mentioned purpose.
(11) No farm pollution control allowance shall be made in respect of any expenditure if for the same or any other chargeable period an allowance is or has been made in respect of that expenditure under Chapter 1 of Part 9 or section 658 .
(12) Expenditure shall not be regarded for the purposes of this section as having been incurred by a person in so far as it has been or is to be met directly or indirectly by the State or by any person other than the first-mentioned person.
(13) For the purposes only of determining, in relation to a claim for a farm pollution control allowance, whether and to what extent capital expenditure incurred on the construction of a building or structure to which this section applies is incurred or not incurred in the period specified in subsection (1)(c), only such an amount of that capital expenditure as is properly attributable to work on the construction of the building or structure actually carried out during that period shall (notwithstanding any other provision of the Tax Acts as to the time when any capital expenditure is or is to be treated as incurred) be treated as having been incurred in that period.
TABLE
Farm Buildings and Structures to Which Allowances for the Control of Pollution Apply
num: 1
paragraphs: Waste storage facilities including slurry tanks.
num: 2
paragraphs: Soiled water tanks.
num: 3
paragraphs: Effluent tanks.
num: 4
paragraphs: Tank fences and covers.
num: 5
paragraphs: Dungsteads and manure pits.
num: 6
paragraphs: Yard drains for storm and soiled water removal.
num: 7
paragraphs: Walled silos, silage bases and silo aprons.
num: 8
paragraphs: Housing for cattle, including drystock accommodation, byres, loose houses, slatted houses, sloped floor houses and kennels, roofed feed or exercise yards where such houses or structures eliminate soiled water.
num: 9
paragraphs: Housing for sheep and unroofed wintering structures for sheep and sheep dipping tanks.
1O.J. No. L218 of 6.8.1991, p. 1.
num: 660
paragraphs: —(1) In this section—
“balancing allowance” and “balancing charge” have the same meanings respectively as in Chapter 2 of Part 9 ;
“wear and tear allowance” means an allowance made under section 284 .
(2) In determining whether any, and if so what, wear and tear allowance, balancing allowance or balancing charge in respect of machinery or plant is to be made to or on any person for any chargeable period in taxing a trade of farming, there shall be deemed to have been made to that person, for every previous chargeable period in which the machinery or plant belonged to that person and which is a chargeable period to be taken into account for the purpose of this section, such wear and tear allowance or greater wear and tear allowance, if any, in respect of the machinery or plant as would have been made to that person if, in relation to every such previous chargeable period—
num: 661
paragraphs: —(1) This section shall apply to a loss sustained by a person in the carrying on of farming in any year of assessment, being a year for which such person was not chargeable to tax in respect of profits or gains from farming.
(2) No relief shall be given under section 382 in respect of a loss to which this section applies by deducting such loss from or setting it off against the amount of the profits or gains from farming assessed for any year of assessment.
num: 662
paragraphs: —(1) In this section—
“prior 3 years”, in relation to a loss incurred in a year of assessment, means the last 3 years of assessment before that year;
“prior period of loss” means the prior 3 years or, if losses were incurred in successive years of assessment amounting in the aggregate to a period longer than 3 years (and ending when the prior 3 years end), that longer period.
(2) (a) Any loss (including any amount in respect of allowances which by virtue of section 392 is to be treated as a loss) incurred in a trade of farming or market gardening shall not be available for relief under section 381 unless it is shown that, for the year of assessment in which the loss is claimed to have been incurred, the trade was being carried on on a commercial basis and with a view to the realisation of profits in the trade.
(b) Without prejudice to paragraph (a), any loss (including any amount in respect of allowances which by virtue of section 392 is to be treated as a loss) incurred in any year of assessment in a trade of farming or market gardening shall not be available for relief under section 381 if in each of the prior 3 years a loss was incurred in carrying on that trade.
(c) For the purposes of this section, the fact that a trade of farming or market gardening was being carried on at any time so as to afford a reasonable expectation of profit shall be conclusive evidence that it was then being carried on with a view to the realisation of profits.
(d) This subsection shall not restrict relief for any loss or any capital allowance where it is shown by the claimant—
(i) that the whole of the claimant's farming or market gardening activities in the year following the prior 3 years are of such a nature, and carried on in such a way, as would have justified a reasonable expectation of the realisation of profits in the future if those activities had been undertaken by a competent farmer or market gardener, and
(ii) that if such farmer or market gardener had undertaken those activities at the beginning of the prior period of loss, such farmer or market gardener could not reasonably have expected those activities to become profitable until after the end of the year following the prior period of loss.
(e) This subsection shall not restrict relief where the carrying on of the trade forms part of and is ancillary to a larger trading undertaking.
num: 663
paragraphs: —(1) In this section—
“prior 3 years”, in relation to a loss incurred in an accounting period, means the last 3 years before the beginning of the accounting period.
“prior period of loss” means the prior 3 years or, if losses were incurred in successive accounting periods amounting in all to a period longer than 3 years (and ending when the prior 3 years end), that longer period.
(2) (a) Any loss incurred in a trade of farming or market gardening shall not be available for relief under section 396 (2) unless it is shown that, for the accounting period in which the loss is claimed to have been incurred, the trade was being carried on on a commercial basis and with a view to the realisation of profits in the trade.
num: 664
paragraphs: —(1) (a) In this section—
“farm land” means land in the State wholly or mainly occupied for the purposes of husbandry and includes a building (other than a building or part of a building used as a dwelling) situated on the land and used for the purposes of farming that land;
“lease”, “lessee”, “lessor” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 ;
“qualifying lease” means a lease of farm land which is—
(i) in writing or evidenced in writing,
(ii) for a definite term of 5 years or more, and
(iii) made on an arm's length basis between a qualifying lessor or qualifying lessors and a lessee or lessees who is, or each of whom is, a qualifying lessee in relation to the qualifying lessor or the qualifying lessors;
“qualifying lessee”, in relation to a qualifying lessor or qualifying lessors, means an individual—
(i) who is not connected with the qualifying lessor or with any of the qualifying lessors, and
(ii) who uses any farm land leased by him or her from the qualifying lessor or the qualifying lessors for the purposes of a trade of farming carried on by him or her solely or in partnership;
“qualifying lessor” means an individual who—
(i) is aged 55 years or over or is permanently incapacitated by reason of mental or physical infirmity from carrying on a trade of farming, and
(ii) has not after the 30th day of January, 1985, leased the farm land which is the subject of the qualifying lease from a person or persons, who is or are, or one of whom is, connected with him or her, on terms which are not such as might have been expected to be included in a lease if the negotiations for the lease had been at arm's length;
“the specified amount”, in relation to any surplus or surpluses (within the meaning of section 97 (1)) arising in respect of the rent or the rents from any farm land let under a qualifying lease or qualifying leases, means, subject to paragraph (b), the lesser of—
(i) the amount of that surplus or the aggregate amount of those surpluses,
(ii) as respects a qualifying lease or qualifying leases made—
(I) in the period beginning on the 6th day of April, 1985, and ending on the 19th day of January, 1987, £2,000,
(II) in the period beginning on the 20th day of January, 1987, and ending on the 31st day of December, 1987, £2,800,
(III) in the period beginning on the 1st day of January, 1988, and ending on the 29th day of January, 1991, £2,000,
(IV) in the period beginning on the 30th day of January, 1991, and ending on the 22nd day of January, 1996—
(A) £4,000, in a case where the qualifying lease or qualifying leases is or are for a definite term of 7 years or more, and
(B) £3,000, in any other case, or
(V) on or after the 23rd day of January, 1996—
(A) £6,000, in a case where the qualifying lease or qualifying leases is or are for a definite term of 7 years or more, and
(B) £4,000, in any other case,
and
(iii) where the rent or rents was or were not receivable in respect of a full year's letting or lettings, such amount as bears to the amount determined in accordance with clause (I), (II), (III), (IV) or (V), as may be appropriate, of subparagraph (ii) the same proportion as the amount of the rent or the aggregate amount of the rents bears to the amount of the rent or the aggregate amount of the rents which would be receivable for a full year's letting or lettings.
(b) Where the income of a qualifying lessor consists of or includes rent or rents—
(i) from a qualifying lease or qualifying leases made in the period beginning on the 20th day of January, 1987, and ending on the 31st day of December, 1987, and from a qualifying lease made—
(I) in the period beginning on the 6th day of April, 1985, and ending on the 19th day of January, 1987, or
(II) in the period beginning on the 1st day of January, 1988, and ending on the 29th day of January, 1991,
the specified amount shall not exceed £2,800;
(ii) from a qualifying lease or qualifying leases made in the period beginning on the 30th day of January, 1991, and ending on the 22nd day of January, 1996, and from a qualifying lease made before the 30th day of January, 1991, the specified amount shall not exceed—
(I) £4,000, in a case where the qualifying lease or qualifying leases is or are for a definite term of 7 years or more, and
(II) £3,000, in any other case;
(iii) from a qualifying lease or qualifying leases made on or after the 23rd day of January, 1996, and from a qualifying lease made at any other time, the specified amount shall not exceed—
(I) £6,000, in a case where the qualifying lease or qualifying leases is or are for a definite term of 7 years or more, and
(II) £4,000, in any other case.
(2) Where for any year of assessment—
num: 665
paragraphs: —In this Chapter—
“accounting period”, in relation to a person, means—
(a) where the person is a company, an accounting period determined in accordance with section 27 , or
(b) where the person is not a company, a period of one year ending on the date to which the accounts of the person are usually made up,
but, where accounts have not been made up or where accounts have been made up for a greater or lesser period than one year, the accounting period shall be such period not exceeding one year as the Revenue Commissioners may determine;
“chargeable period” has the same meaning as in section 321 (2);
“company” has the same meaning as in section 4 ;
“period of account”, in relation to a person, means a period for which the accounts of the person have been made up;
“person” means a person resident in the State and not resident elsewhere and, unless the contrary intention appears, includes a company;
“specified return date for the chargeable period” has the same meaning as in section 950 ;
“trading income”, in relation to the trade of farming, means—
num: 666
paragraphs: —(1) Subject to this Chapter, where—
num: 667
paragraphs: — (1) In this section, “qualifying farmer” means an individual who—
(a) in the year 1993-94 or any subsequent year of assessment first qualifies for grant aid under the Scheme of Installation Aid for Young Farmers operated by the Department of Agriculture and Food under Council Regulation (EEC) No. 797/85 of 12 March 19851 or that Regulation as may be revised from time to time, or
num: 668
paragraphs: — (1) In this section—
“excess” means the excess of the relevant amount over the value of the stock to which this section applies at the beginning of the accounting period in which the disposal takes place;
“relevant amount” means the amount of any income received by a person as a result or in consequence of a disposal of stock to which this section applies;
“stock to which this section applies” means all cattle forming part of the trading stock of the trade of farming, where such cattle are compulsorily disposed of on or after the 6th day of April, 1993, under any statute relating to the eradication or control of diseases in livestock, and for the purposes of this section all cattle shall be regarded as compulsorily disposed of where, in the case of any disease eradication scheme relating to the eradication or control of brucellosis in livestock, all eligible cattle for the purposes of any such scheme, together with such other cattle as are required to be disposed of, are disposed of.
(2) Where stock to which this section applies is disposed of in an accounting period by a person carrying on the trade of farming, the person may elect to have the excess treated in accordance with subsections (3) to (5), and such election shall be made in such form and contain such information as the Revenue Commissioners may require.
(3) (a) Notwithstanding any other provision of the Tax Acts apart from paragraph (b), where a person elects in accordance with subsection (2), the excess shall be disregarded as respects the accounting period in which it arises and shall instead be treated for the purposes of the Tax Acts as arising in equal instalments in each of the 2 immediately succeeding accounting periods.
(b) Notwithstanding paragraph (a), where the person further elects, the excess shall be treated as arising in such equal instalments in the accounting period in which it arises and in the immediately succeeding accounting period.
(4) Where, not later than the end of the succeeding accounting period or succeeding accounting periods, as appropriate, referred to in subsection (3), the person incurs expenditure on the replacement of cattle in an amount not less than the relevant amount, the person shall be deemed to be entitled to a deduction under section 666 in respect of the amount of the excess, that section being applied as if “100 per cent” were substituted for “25 per cent”; but, where the expenditure incurred on such replacement is less than the relevant amount, the deduction under section 666 in each of the 2 accounting periods referred to in paragraph (a) or (b) of subsection (3) shall be reduced to an amount that bears the same proportion to the excess as the expenditure incurred in those 2 accounting periods bears to the relevant amount.
(5) An election under this section shall be made by notice in writing made on or before the specified return date for the chargeable period in which the stock to which this section applies is compulsorily disposed of.
num: 669
paragraphs: — (1) (a) Where a person has acquired or disposed of trading stock otherwise than in the normal conduct of the trade of farming, the person shall be treated for the purposes of this Chapter as having, at the beginning or end of the relevant period of account, trading stock of such value as appears to the inspector (or on appeal to the Appeal Commissioners) to be just and reasonable having regard to all the circumstances of the case.
(b) Where the value of a person's trading stock at the beginning of a period of account is not calculated on the basis used for the calculation of the value of the trading stock at the end of that period, the value of the trading stock at the beginning of that period shall for the purposes of this Chapter be treated as being what it would have been if it had been calculated on that basis.
(2) (a) In any case where a person's accounting period does not coincide with a period of account or with 2 or more consecutive periods of account, the person's increase in stock value in the accounting period shall be determined for the purposes of section 666 not in accordance with subsection (1) of that section but by reference to a period (in this section referred to as “the reference period”) determined in accordance with this subsection.
(b) In any case where the beginning of a person's accounting period does not coincide with the beginning of a period of account, the reference period shall begin at the beginning of the period of account which is current at the beginning of the person's accounting period.
(c) In any case where the end of the person's accounting period does not coincide with the end of a period of account, the reference period shall end at the end of the period of account which is current at the end of the person's accounting period.
(d) In any case where paragraph (b) does not apply, the reference period shall begin at the beginning of the person's accounting period and, in any case where paragraph (c) does not apply, the reference period shall end at the end of the person's accounting period.
(3) (a) In any case where subsection (2)(a) applies, a person's increase in stock value in the accounting period shall be determined for the purposes of section 666 by the formula—
A × (C − O)
___________
N
where—
A is the number of months in the person's accounting period,
C is the value of the person's trading stock at the end of the reference period,
O is the value of the person's trading stock at the beginning of the reference period, and
N is the number of months in the reference period.
(b) In any case where a person's increase in stock value in an accounting period is to be determined in accordance with paragraph (a), then, in section 666 and in subsections (4) to (6), any reference to the person's closing stock value shall be construed as a reference to the value of the person's trading stock at the end of the reference period.
(4) (a) A person shall not be entitled to a deduction under section 666 for an accounting period if that accounting period ends by virtue of the person ceasing to—
(i) carry on the trade of farming,
(ii) be resident in the State, or
num: 670
paragraphs: —(1) In this section—
num: 671
paragraphs: —(1) In this section, “marginal coal mine” means a coal mine in the State being worked for the purpose of the production of coal and in respect of which the Minister for the Marine and Natural Resources gives a certificate stating that that Minister is satisfied that the profits derived or to be derived from the working of that mine are such that, if tax is to be charged on those profits in accordance with the Income Tax Acts, other than this section, the mine is unlikely to continue to be worked.
(2) The Minister for Finance, after consultation with the Minister for the Marine and Natural Resources, may direct in respect of a marginal coal mine that for any particular year of assessment the tax chargeable on the profits of that mine shall be reduced to such amount (including nil) as may be specified by the Minister for Finance.
(3) Where a person is carrying on the trade of working a coal mine in respect of which the Minister for Finance gives a direction under subsection (2) in respect of a year of assessment, an allowance shall be made as a deduction in charging the profits of that trade to tax for that year of assessment of such amount as will ensure that the tax charged in respect of the profits of that trade shall equal the amount specified by that Minister.
(4) This section shall apply for corporation tax as it applies for income tax, and references to the Income Tax Acts, to years of assessment and to a deduction in charging the profits of a trade shall apply as if they were or included respectively references to the Corporation Tax Acts, to accounting periods and to a deduction made in computing the trading income for corporation tax.
num: 672
paragraphs: —(1) In this section and in sections 673 to 683 , except where otherwise provided or the context otherwise requires—
“development expenditure” means capital expenditure—
(a) on the development of a qualifying mine, or
(b) on the construction of any works in connection with a qualifying mine which are of such a nature that, when the mine ceases to be operated, they are likely to have so diminished in value that their value will be nil or almost nil,
and includes interest on money borrowed to meet such capital expenditure, but does not include expenditure on—
(i) the acquisition of the site of the mine or the site of any such works or of rights in or over any such site,
num: 673
paragraphs: —(1) Subject to subsections (2) and (3), where a person carrying on the trade of working a qualifying mine incurs on or after the 6th day of April, 1974, any development expenditure or exploration expenditure and makes application under section 670 for a mine development allowance for a chargeable period in respect of such expenditure—
num: 674
paragraphs: — (1) (a) Where a person who commences to carry on a trade of working a qualifying mine has incurred exploration expenditure and that expenditure was not incurred in connection with the qualifying mine, then, subject to paragraph (b), in taxing the trade for the chargeable period in which the person commences to carry on the trade, there shall be made an allowance of an amount equal to the amount of that expenditure.
(b) For the purposes of paragraph (a), no account shall be taken of exploration expenditure incurred before the 1st day of April, 1990, if the expenditure was incurred more than 10 years before the date on which the person commences to carry on the trade of working the qualifying mine.
num: 675
paragraphs: —(1) Subject to subsection (2), where exploration expenditure, in respect of which an allowance may be claimed by virtue of section 673 or 674 , or (as respects expenditure incurred on or after the 1st day of April, 1990) by virtue of section 673 as applied by section 679 , is or has been incurred by a body corporate (in this section referred to as “the exploration company”) and—
(a) another body corporate is or is deemed to be a wholly-owned subsidiary of the exploration company, or
(b) the exploration company is or is deemed to be a wholly-owned subsidiary of another body corporate,
then, the expenditure or so much of it as the exploration company specifies—
(i) in the case referred to in paragraph (a), may at the election of the exploration company be deemed to have been incurred by such other body corporate (being a body corporate which is or is deemed to be a wholly-owned subsidiary of the exploration company) as the exploration company specifies,
(ii) in the case referred to in paragraph (b), may at the election of the exploration company be deemed to have been incurred by the body corporate (in this paragraph referred to as “the parent body”) of which the exploration company was, at the time the expenditure was incurred, a wholly-owned subsidiary or by such other body corporate (being a body corporate which is or is deemed to be a wholly-owned subsidiary of the parent body) as the exploration company specifies,
and, in a case where that expenditure was incurred on a date before the incorporation of the body corporate so specified, sections 672 to 683 shall apply in relation to the granting of any allowance in respect of that expenditure as if that body corporate had been in existence at the time the expenditure was incurred and had incurred the expenditure at that time.
(2) (a) The same expenditure shall not be taken into account in relation to more than one trade by virtue of this section.
num: 676
paragraphs: —(1) Where—
num: 677
paragraphs: —(1) Where a person carrying on the trade of working a qualifying mine incurs on or after the 6th day of April, 1974, exploration expenditure in relation to which section 673 applies, there shall, in addition to any mine development allowance made in respect of such expenditure, be made to the person in taxing the trade for the chargeable period for which such mine development allowance is made an allowance (which shall be known as an “exploration investment allowance”) equal to 20 per cent of such expenditure, and section 670 (6) shall apply to an exploration investment allowance as it applies to a mine development allowance.
(2) (a) No allowance shall be made under this section in respect of exploration expenditure—
(i) incurred before the 6th day of April, 1974, whether or not such expenditure is by virtue of any provision of the Tax Acts deemed to have been incurred on or after that date, or
(ii) which is deemed to be incurred by a person other than the person who incurred the expenditure.
(b) Paragraph (a) shall not apply in respect of expenditure deemed under section 675 to have been incurred by a body corporate other than the body corporate which incurred the expenditure.
num: 678
paragraphs: —(1) Where on or after the 6th day of April, 1974, new machinery or new plant (other than vehicles suitable for the conveyance by road of persons or goods or the haulage by road of other vehicles) is provided for use for the purposes of the trade of working a qualifying mine, that machinery or plant shall, if it is not qualifying machinery or plant, be deemed for the purpose of section 285 to be qualifying machinery or plant.
(2) Where on or after the 6th day of April, 1974, a person carrying on the trade of working a qualifying mine incurs capital expenditure on the provision of new machinery or new plant (other than vehicles suitable for the conveyance by road of persons or goods or the haulage by road of other vehicles) for the purposes of that trade, there shall be made to the person for the chargeable period related to the expenditure an allowance equal to 20 per cent of the expenditure, and such allowance shall be made in taxing the trade.
(3) For the purposes of ascertaining the amount of any allowance to be made to any person under section 284 in respect of expenditure incurred during a chargeable period on any qualifying machinery or plant, no account shall be taken of an allowance under subsection (2) in respect of that expenditure, and in section 284 (4) “the allowances on that account” and “the allowances” where it occurs before “exceed” shall each be construed as not including a reference to any allowance made under subsection (2) to the person by whom the trade of working a qualifying mine is carried on.
(4) Where an allowance under subsection (2) has been made to any person in respect of expenditure incurred on the provision of qualifying machinery or plant and the machinery or plant is sold by that person without the machinery or plant having been used by that person for the purposes of the trade of working a qualifying mine or before the expiration of the period of 2 years from the day on which the machinery or plant began to be so used, the allowance shall be withdrawn and all such additional assessments and adjustments of assessments shall be made as may be necessary for or in consequence of the withdrawal of the allowance.
(5) For the purposes of this section—
(a) the day on which any expenditure is incurred shall be taken to be the day when the sum in question becomes payable,
(b) expenditure shall not be regarded as having been incurred by a person in so far as it has been or is to be met directly or indirectly by the State, by any board established by statute or by any public or local authority,
(c) any expenditure incurred for the purposes of a trade by a person about to carry on the trade shall be treated as if that expenditure had been incurred by that person on the first day on which that person carries on the trade,
(d) capital expenditure shall not include any expenditure which is allowed to be deducted in computing for the purposes of tax the profits or gains of a trade carried on by the person incurring the expenditure, and
(e) subsections (2) and (3) of section 306 shall apply in determining the chargeable period (being a year of assessment) for which an allowance is to be made under this section.
(6) For the purposes of the Income Tax Acts, any claim by a person for an allowance under this section in taxing the person's trade shall be included in the annual statement required to be delivered under those Acts of the profits or gains of the person's trade and shall be accompanied by a certificate signed by the claimant (which shall be deemed to form part of the claim) stating that the expenditure was incurred on the provision of qualifying machinery or plant and giving such particulars as show that the allowance is to be made.
(7) Section 304 (4) shall apply in relation to an allowance under subsection (2) as it applies in relation to allowances to be made under Part 9 .
num: 679
paragraphs: —(1) (a) In this section—
num: 680
paragraphs: —(1) Where a person carrying on the trade of working a qualifying mine incurs after the 31st day of March, 1974, capital expenditure on the acquisition of a scheduled mineral asset entitling such person to work deposits of scheduled minerals and in connection with that trade commences to work those deposits, such person shall be entitled to mine development allowances under section 670 in respect of that capital expenditure to the extent that such person would have been entitled to such allowances if that capital expenditure had been capital expenditure incurred in the development of the mine, but section 673 shall not apply in respect of any such expenditure.
num: 681
paragraphs: — (1) (a) In this section—
“integrated pollution control licence” means a licence granted under section 83 of the Environmental Protection Agency Act, 1992 ;
“mine rehabilitation fund”, in relation to a qualifying mine, means a fund—
(i) which consists of amounts paid by a person carrying on the trade of working a qualifying mine to another person (in this section referred to as “the fund holder”) not connected with the first-mentioned person,
(ii) which is obliged to be maintained under the terms—
(I) of a State mining facility, or
(II) of any other agreement in writing to which the Minister is a party and to which the State mining facility is subject,
(iii) the sole purpose of which is to have available at the time a qualifying mine ceases to be worked such amount as is specified in a certificate given by the Minister under subsection (2) as being the amount which in the Minister's opinion could reasonably be expected to be necessary to meet rehabilitation expenditure in relation to the qualifying mine, and
(iv) no part of which may be paid to the person, or a person connected with that person, who is working or has worked the qualifying mine except where—
(I) the fund holder has been authorised in writing by the Minister, and by either or both the relevant local authority and the Environmental Protection Agency, to make a payment to the person or the connected person, as the case may be, for the purposes of incurring rehabilitation expenditure in relation to the qualifying mine, or
(II) an amount may be paid to the person or the connected person, as the case may be, after a certificate of completion of rehabilitation in relation to the qualifying mine has been submitted to and approved by—
(A) the Minister, and
(B) either or both the relevant local authority and the Environmental Protection Agency;
“the Minister” means the Minister for the Marine and Natural Resources;
num: 682
paragraphs: —(1) In this section, “marginal mine” means a qualifying mine in respect of which the Minister for the Marine and Natural Resources gives a certificate stating that that Minister is satisfied that the profits derived or to be derived from the working of that mine are such that, if tax is to be charged on those profits in accordance with the Income Tax Acts, other than this section, the mine is unlikely to be worked or to continue to be worked.
(2) The Minister for Finance, after consultation with the Minister for the Marine and Natural Resources, may direct in respect of a marginal mine that for any particular year of assessment the tax chargeable on the profits of that qualifying mine shall be reduced to such amount (including nil) as may be specified by the Minister for Finance.
(3) Where a person is carrying on the trade of working a qualifying mine in respect of which the Minister for Finance gives a direction under subsection (2) in respect of a year of assessment, an allowance (which shall be known as a “marginal mine allowance”) shall be made as a deduction in charging the profits of that trade to income tax for that year of assessment of such amount or amounts as will ensure that the tax charged in respect of the profits of that trade shall equal the amount specified by that Minister.
(4) This section shall apply for corporation tax as it applies for income tax, and the references to the Income Tax Acts, to a year of assessment and to charging the profits of that trade to income tax shall apply as if they were respectively references to the Corporation Tax Acts, to an accounting period and to computing the profits of that trade for the purposes of corporation tax.
num: 683
paragraphs: —(1) In this section—
“chargeable period” means an accounting period of a company or a year of assessment;
num: 684
paragraphs: —(1) In this Chapter—
“abandonment activities”, in relation to a relevant field or any part of it, means those activities of a person, whether carried on by the person or on behalf of the person, which comply with the requirements of a petroleum lease held by the person, or, if the person is a company, held by the company or a company associated with it, in respect of—
(a) the closing down, decommissioning or abandonment of the relevant field or the part of it, as the case may be, or
(b) the dismantlement or removal of the whole or a part of any structure, plant or machinery which is not situated on dry land and which has been brought into use for the purposes of transporting as far as dry land petroleum won from the relevant field or from the part of it, as the case may be;
“abandonment expenditure”, in relation to a relevant field or any part of it, means expenditure incurred on abandonment activities in relation to the field or the part of it, as the case may be;
“chargeable period” means an accounting period of a company or a year of assessment;
“designated area” means an area designated by order under section 2 of the Continental Shelf Act, 1968 ;
“development expenditure” means capital expenditure incurred in connection with a relevant field on the provision for use in carrying on petroleum extraction activities of—
(a) machinery or plant,
(b) any works, buildings or structures, or
(c) any other assets,
which are of such a nature that when the relevant field ceases to be worked they are likely to be so diminished in value that their value will be nil or almost nil, but does not include—
(i) expenditure on any vehicle suitable for the conveyance by road of persons or goods or the haulage by road of other vehicles,
(ii) expenditure on any building or structure for use as a dwelling house, shop or office or for any purpose ancillary to the purposes of a dwelling house, shop or office,
(iii) (I) expenditure incurred on petroleum exploration activities, and
(II) payments made to the Minister for the Marine and Natural Resources on the application for, or in consideration of the granting of, a licence (other than a petroleum lease) or other payments made to that Minister in respect of the holding of the licence,
(iv) expenditure on the acquisition of the site of a relevant field, or of the site of any works, buildings or structures or of rights in or over any such site,
(v) expenditure on the acquisition of, or of rights in or over, deposits of petroleum,
(vi) expenditure on—
(I) machinery or plant, or
(II) works, buildings or structures,
provided for the processing or storing of petroleum won in the course of carrying on petroleum extraction activities, other than the initial treatment and storage of such petroleum,
or
(vii) any interest payment,
and “assets representing development expenditure” shall be construed accordingly and shall include any results obtained from any search or enquiry on which the expenditure was incurred;
“dry land” means land not permanently covered by water;
“exploration expenditure” means—
(a) capital expenditure incurred on petroleum exploration activities, and
(b) payments made to the Minister for the Marine and Natural Resources on the application for, or in consideration of the granting of, a licence (other than a petroleum lease) or other payments made to that Minister in respect of the holding of the licence,
but does not include any interest payment, and “assets representing exploration expenditure” shall be construed accordingly and shall include any results obtained from any search, exploration or enquiry on which the expenditure was incurred;
“initial treatment and storage”, in relation to petroleum won from a relevant field, means the doing of any of the following—
(a) subjecting petroleum so won to any process of which the sole purpose is to enable the petroleum to be safely stored, safely loaded into a tanker or safely accepted for refining,
(b) separating petroleum so won and consisting of gas from other petroleum so won,
(c) separating petroleum won and consisting of gas of a kind that is transported and sold in normal commercial practice from other petroleum so won and consisting of gas,
(d) liquefying petroleum so won and consisting of gas of such a kind as is mentioned in paragraph (c) for the purpose of transporting such petroleum,
(e) subjecting petroleum so won to any process so as to secure that petroleum disposed of without having been refined has the quality that is normal for petroleum so disposed of from the relevant field, or
(f) storing petroleum so won before its disposal or its appropriation to refining or to any use, except use in—
(i) winning petroleum from a relevant field, including searching in that field for and winning access to such petroleum, or
(ii) transporting as far as dry land petroleum that is won from a place not on dry land,
but does not include any activity carried on as part of or in association with the refining of petroleum;
“licence” means—
(a) an exploration licence,
(b) a lease undertaking,
(c) a licensing option,
(d) a petroleum prospecting licence,
(e) a petroleum lease, or
(f) a reserved area licence,
granted in respect of an area in the State or a designated area under the Petroleum and Other Minerals Development Act, 1960 , and which was granted subject to—
(i) the licensing terms set out in the Notice entitled “Ireland Exclusive Offshore Licensing Terms” presented to each House of the Oireachtas on the 29th day of April, 1975,
(ii) licensing terms presented to each House of the Oireachtas on a day or days which fall after the 29th day of April, 1975, or
(iii) licensing terms to which paragraph (i) or (ii) relates, as amended or varied from time to time;
“licensed area” means an area in respect of which a licence is in force;
“mining trade” means a trade consisting only of working a mine which is a qualifying mine or, in the case of a trade consisting partly of such an activity and partly of one or more other activities, the part of the trade consisting only of working such a mine which is treated by virtue of section 685 as a separate trade;
“petroleum” means petroleum (within the meaning of section 2 (1) of the Petroleum and Other Minerals Development Act, 1960 ) won or capable of being won under the authority of a licence;
“petroleum activities” means any one or more of the following activities—
(a) petroleum exploration activities,
(b) petroleum extraction activities, and
(c) the acquisition, enjoyment or exploitation of petroleum rights;
“petroleum exploration activities” means activities of a person carried on by the person or on behalf of the person in searching for deposits of petroleum in a licensed area, in testing or appraising such deposits or in winning access to such deposits for the purposes of such searching, testing or appraising, where such activities are carried on under a licence (other than a petroleum lease) authorising the activities and held by the person or, if the person is a company, held by the company or a company associated with it;
“petroleum extraction activities” means activities of a person carried on by the person or on behalf of the person under a petroleum lease authorising the activities and held by the person or, if the person is a company, held by the company or a company associated with it in—
(a) winning petroleum from a relevant field, including searching in that field for and winning access to such petroleum,
(b) transporting as far as dry land petroleum so won from a place not on dry land, or
(c) effecting the initial treatment and storage of petroleum so won from the relevant field;
“petroleum profits”, in relation to a company which is chargeable to corporation tax on its profits, means the income of the company from petroleum activities and any amount to be included in its total profits in respect of chargeable gains accruing to the company from disposals of petroleum-related assets;
“petroleum-related asset” means any of the following assets or any part of such an asset—
(a) any petroleum rights,
(b) any asset representing exploration expenditure or development expenditure,
(c) shares deriving their value or the greater part of their value, whether directly or indirectly, from petroleum activities, other than shares dealt in on a stock exchange;
“petroleum rights” means rights to petroleum to be extracted or to interests in, or to the benefit of, petroleum, and includes an interest in a licence;
“petroleum trade” means a trade consisting only of trading activities which are petroleum activities or, in the case of a trade consisting partly of such activities and partly of other activities, the part of the trade consisting only of trading activities which are petroleum activities which is treated by virtue of section 685 as a separate trade;
“qualifying mine” has the same meaning as in section 672 ;
“relevant field” means an area in respect of which a licence, being a petroleum lease, is in force.
(2) For the purposes of this Chapter, 2 companies shall be associated with one another if—
(a) one company is a 51 per cent subsidiary of the other company,
(b) each company is a 51 per cent subsidiary of a third company, or
(c) one company is owned by a consortium of which the other company is a member,
and for the purposes of paragraph (c) a company shall be owned by a consortium if all the ordinary share capital of that company is directly and beneficially owned between them by 5 or fewer companies, which companies are in this Chapter referred to as “the members of the consortium”.
num: 685
paragraphs: —(1) Where a person carries on any petroleum activities as part of a trade and those activities apart from any other activity would constitute a trade, those activities shall be treated for the purposes of the Tax Acts and the Capital Gains Tax Acts as a separate trade distinct from all other activities carried on by the person as part of the trade, and any necessary apportionment shall be made of receipts and expenses.
(2) Where a person works a qualifying mine as part of a trade, that activity shall be treated for the purposes of this Chapter as a separate trade distinct from all other activity carried on by the person as part of the trade, and any necessary apportionment shall be made of receipts and expenses.
num: 686
paragraphs: —(1) In this section—
“petroleum profits on which corporation tax falls finally to be borne”, in relation to a company, means the amount of the petroleum profits of the company after making all deductions and giving or allowing all reliefs that for the purposes of corporation tax are made from, or given or allowed against, or are treated as reducing—
(a) those profits, or
(b) income or chargeable gains, if any, included in those profits;
“relevant petroleum lease” means a petroleum lease in respect of a relevant field, being a field discovered by petroleum exploration activities carried on under a licence (other than a petroleum lease) which authorises the carrying on of those activities for a period which, apart from any extension of the period or revision or renewal of the licence—
(a) is not longer than 10 years, where the petroleum lease is granted by the Minister for the Marine and Natural Resources before the 1st day of June, 2003,
(b) is longer than 10 years but not longer than 15 years, where the petroleum lease is granted by the Minister for the Marine and Natural Resources before the 1st day of June, 2007, or
(c) is longer than 15 years, where the petroleum lease is granted by the Minister for the Marine and Natural Resources before the 1st day of June, 2013,
but a petroleum lease in respect of a relevant field shall be a relevant petroleum lease where—
(i) the field was discovered under a lease which is not a licence,
(ii) the lease under which the field was discovered expired before the petroleum lease is granted, and
(iii) the petroleum lease is granted by the Minister for the Marine and Natural Resources before the 1st day of June, 2003.
(2) (a) Subject to paragraph (b), corporation tax payable by a company for an accounting period shall be reduced by the amount, if any, determined by the formula—
I ×
R − 25
______
100
where—
I is the amount for the accounting period of the income to which this section applies, and
R is the rate per cent of corporation tax specified in section 21 (1) for the financial year or years in which the accounting period falls.
(b) Notwithstanding paragraph (a), where part of the accounting period falls in one financial year (in this paragraph referred to as “the first-mentioned financial year”) and the other part falls in the financial year succeeding the first-mentioned financial year and different rates of corporation tax are in force under section 21 (1) for each of those years, then, R in paragraph (a) shall be the rate per cent determined by the formula—
(A × C)
_______
E
+
(B × D)
_______
E
where—
A is the rate per cent in force for the first-mentioned financial year,
B is the rate per cent in force for the financial year succeeding the first-mentioned financial year,
C is the length of that part of the accounting period falling in the first-mentioned financial year,
D is the length of that part of the accounting period falling in the financial year succeeding the first-mentioned financial year, and
E is the length of the accounting period.
(3) The income to which this section applies shall be the income of a company for an accounting period determined by the formula—
(F − G) ×
S
___
T
where—
F is the amount for the accounting period of the company's petroleum profits on which corporation tax falls finally to be borne,
G is the amount to be included in the company's profits brought into charge to corporation tax for the accounting period in respect of chargeable gains accruing to the company from disposals of petroleum-related assets,
S is the aggregate of the income of the company for the accounting period which is—
(a) trading income attributable to sales of petroleum won by the company, or
(b) income, other than trading income, from the enjoyment or exploitation of petroleum rights,
under a relevant petroleum lease granted to the company or a company associated with the company, and
T is the aggregate of the income of the company for the accounting period from its petroleum trade or other petroleum activities.
(4) For the purposes of subsection (3), the income of a company for an accounting period which is trading income attributable to sales of petroleum won by the company under a relevant petroleum lease shall be the income, if any, determined by the formula—
O ×
P
___
Q
where—
O is the income of the company for the accounting period from its petroleum trade,
P is the aggregate of money or money's worth receivable by the company from sales in the accounting period of petroleum won by it under the relevant petroleum lease, and
Q is the aggregate of money or money's worth receivable by the company from sales of petroleum in the accounting period in the course of carrying on its petroleum trade.
num: 687
paragraphs: —(1) Notwithstanding sections 381 and 396 (2)—
(a) as respects a loss incurred by a person in a petroleum trade, relief shall not be given—
(i) under section 381 against any income other than income arising from petroleum activities, or
(ii) under section 396 (2) against any profits other than petroleum profits,
and
(b) as respects any loss, other than a loss incurred in a petroleum or a mining trade, incurred by a person, relief shall not be given—
(i) under section 381 against income arising from petroleum activities, or
(ii) under section 396 (2) against petroleum profits.
num: 688
paragraphs: —(1) In this section, “claimant company” and “surrendering company” have the meanings respectively assigned to them by section 411 .
(2) On a claim for group relief made by a claimant company in relation to a surrendering company, group relief shall not be allowed against any petroleum profits of the claimant company except to the extent that the claim relates to—
(a) a loss incurred by the surrendering company in a petroleum or mining trade, or
(b) charges on income paid, other than to a connected person, by the surrendering company which consist of payments made wholly and exclusively for the purposes of such a trade,
and group relief in respect of any such loss incurred by the surrendering company, or in respect of any charge on income paid by the surrendering company which is a payment made wholly and exclusively for the purposes of the petroleum or mining trade, shall not be allowed against any profits of the claimant company other than its petroleum profits.
num: 689
paragraphs: —(1) Notwithstanding any provision of the Capital Gains Tax Acts or of the Corporation Tax Acts relating to the deduction of allowable losses for the purposes of capital gains tax or of corporation tax on chargeable gains—
(a) an allowable loss accruing on a disposal of an asset other than a petroleum-related asset shall not be deducted from the amount of a chargeable gain accruing on a disposal of a petroleum-related asset, and
(b) an allowable loss accruing on a disposal of a petroleum-related asset shall not be deducted from the amount of a chargeable gain accruing on a disposal of an asset other than a petroleum-related asset.
(2) Subsection (11) of section 597 shall apply as respects the application of that section to a disposal of assets which have been used by the person disposing of them for the purposes of a petroleum trade as if each reference in that subsection to a “trade” or “trades” were respectively a reference to a “petroleum trade” or “petroleum trades” within the meaning of this Chapter.
num: 690
paragraphs: —(1) In computing the amount of—
(a) a person's profits or gains for the purposes of income tax, or
(b) a person's income for the purposes of corporation tax,
arising from a petroleum trade, no deduction shall be made in respect of—
(i) any interest payable by the person to a connected person to the extent that the amount of the interest exceeds for whatever reason the amount which, having regard to all the terms on which the money in respect of which it is payable was borrowed and the standing of the borrower, might have been expected to be payable if the lender and the borrower had been independent parties dealing at arm's length,
(ii) interest payable by the person on any money borrowed to meet expenditure incurred on petroleum exploration activities, or
(iii) interest payable by the person on any money borrowed to meet expenditure incurred in acquiring petroleum rights from a connected person.
(2) Section 130 (2)(d)(iv) shall not apply to so much of any interest as—
(a) would but for section 130 (2)(d)(iv) be deductible in computing the amount of a company's income from a petroleum trade,
(b) would not be precluded by subsection (1) from being so deducted, and
(c) is interest payable to a company which is a resident of the United States of America or of a territory with the government of which arrangements having the force of law by virtue of section 826 have been made,
num: 691
paragraphs: —(1) Section 160 shall apply subject to subsection (2).
(2) Where advance corporation tax is paid by a company (in this subsection referred to as “the distributing company”) in respect of a distribution made by it to an associated company resident in the State—
(a) that advance corporation tax shall not be set against the distributing company's liability to corporation tax on any income included in its petroleum profits, and
(b) if the benefit of any amount of that advance corporation tax is surrendered under section 166 by the distributing company to another company, the corresponding amount of advance corporation tax which under that section that other company is treated for the purposes of section 160 as having paid shall not be set against that other company's liability to corporation tax on any income included in its petroleum profits.
(3) This section shall not apply as respects any distribution made before the 24th day of April, 1992.
num: 692
paragraphs: —(1) Subject to subsection (4), the provisions of the Tax Acts relating to allowances and charges in respect of capital expenditure shall apply in relation to a petroleum trade as if each reference in those provisions to machinery or plant included a reference to assets, not being machinery or plant, representing development expenditure.
(2) In relation to assets representing development expenditure, section 284 (2) shall, subject to subsection (3), apply as if the reference in paragraph (a)(i) of that section to 15 per cent were a reference to 100 per cent.
(3) Assets representing development expenditure shall not be treated for the purposes of section 284 (1) as being in use for the purposes of a petroleum trade at the end of any chargeable period or its basis period which ends before the commencement of production of petroleum in commercial quantities from the relevant field in connection with which the assets were provided.
(4) The following provisions shall not apply as respects development expenditure—
(a) Chapters 1 and 3 of Part 9 ,
(b) section 283 ,
(c) section 670 ,
(d) Chapter 1 of Part 29 ,
(e) sections 763 to 765 , and
(f) section 768 .
(5) (a) For the purposes of this section, assets representing development expenditure shall be deemed to include assets (in this subsection referred to as “leased assets”) provided for leasing to a person carrying on a petroleum trade where such leased assets would, if they had been provided by that person, be assets representing development expenditure, and where this paragraph applies—
(i) section 284 shall apply as if the trade for the purposes of which the leased assets are (or would under section 298 (1) be regarded as being) in use were a petroleum trade carried on by the lessor, and
(ii) section 403 shall apply as if each reference in that section to machinery or plant included a reference to assets, not being machinery or plant, representing development expenditure.
(b) For the purposes of subsection (4), capital expenditure on the provision of leased assets shall be deemed to be development expenditure.
num: 693
paragraphs: —(1) Subject to subsections (5) and (16), where a person carrying on a petroleum trade has incurred any exploration expenditure (not being expenditure which has been or is to be met directly or indirectly by any other person) there shall be made to the person for the chargeable period related to the expenditure an allowance equal to the amount of the expenditure.
(2) (a) Subject to paragraph (b), where a person carrying on a petroleum trade has incurred any exploration expenditure in respect of which an allowance has been made to the person under subsection (1) and disposes of assets representing any amount of that expenditure, a charge (in this section referred to as a “balancing charge”) equal to the net amount or value of the consideration in money or money's worth received by the person on the disposal shall be made on the person for the chargeable period related to the disposal or, if the disposal occurs after the date on which the trade is permanently discontinued, for the chargeable period related to the discontinuance.
(b) The amount on which a balancing charge is made shall not exceed the amount of the allowance made to the person under subsection (1) in respect of the amount of exploration expenditure represented by the assets disposed of.
(3) Where any assets representing exploration expenditure are destroyed, those assets shall for the purposes of subsection (2) be treated as if they had been disposed of immediately before their destruction, and any sale, insurance, salvage or compensation moneys received in respect of the assets by the person carrying on the petroleum trade shall be treated as if those moneys were consideration received on that disposal.
(4) Where a person disposes of any assets representing exploration expenditure incurred by the person in connection with an area which at the time of the disposal is, or which subsequently becomes, a relevant field (or part of such a field), the person who acquires the assets shall, if that person carries on a petroleum trade which consists of or includes the working of the relevant field (or, as the case may be, the part of the relevant field), be deemed for the purposes of this section to have incurred—
(a) on the day on which that person acquires the assets, or
(b) if later, on the day on which that person commences to work the area connected with the assets as a relevant field (or, as the case may be, as part of the relevant field),
an amount of exploration expenditure equal to the lesser of—
(i) the amount of the exploration expenditure represented by the assets, and
(ii) the amount or value of the consideration given by that person on the acquisition of the assets.
(5) (a) Any exploration expenditure incurred by a person before the person commences to carry on a petroleum trade shall be treated for the purposes of subsection (1) as if that expenditure had been incurred by that person on the first day on which that person carries on the petroleum trade.
(b) Notwithstanding paragraph (a), no account shall be taken for the purposes of this subsection of expenditure incurred in connection with an area which is not a relevant field, or part of such a field, being worked in the course of carrying on the petroleum trade, if the expenditure was incurred more than 25 years before that first day.
(6) Where a person incurs exploration expenditure before commencing to carry on a petroleum trade and subsection (5) applies as respects that expenditure and, before the person commences to carry on that trade, the person disposes of assets representing any amount of that expenditure, the allowance to be made to the person under this section in respect of that expenditure shall be reduced by the net amount or value of any consideration in money or money's worth received by the person on that disposal.
(7) For the purposes of this section other than for the purposes of subsections (4) and (5)(a), the day on which any expenditure is incurred shall be taken to be the day on which the sum in question becomes payable.
(8) Any allowance or balancing charge made to or on a person under this section shall be made to or on the person in taxing the person's petroleum trade but, subject to subsection (4), such allowance shall not be made in respect of the same expenditure in taxing more than one such trade.
(9) Section 304 (4) shall apply in relation to an allowance under this section as it applies in relation to an allowance to be made under Part 9 .
(10) Section 307 (2)(a) shall apply for the purposes of this section, and subsections (2) to (7) of section 321 shall apply for the interpretation of this section.
(11) Subsections (2) and (3) of section 306 shall apply in determining the chargeable period (being a year of assessment) for which an allowance or a balancing charge is to be made under this section.
(12) References to capital expenditure in Part 9 and in section 670 , Chapter 1 of Part 29 and sections 763 to 765 shall be deemed not to include references to expenditure which is exploration expenditure, and exploration expenditure shall be deemed not to be expenditure on know-how for the purposes of section 768 .
(13) Notwithstanding subsection (12), the following provisions—
(a) section 312 ,
(b) subsections (1) and (2) of section 316 ,
(c) section 317 (2),
(d) section 318 , and
(e) subsections (4) and (5) of section 320 ,
shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of Part 9 and Chapter 1 of Part 29 .
(14) Part 19 shall apply as if—
(a) the reference in section 551 (3) to a balancing charge included a reference to a balancing charge under this section, and
(b) references in section 555 to a capital allowance (or capital allowances) and to a balancing charge included references respectively to an allowance (or allowances) and a balancing charge under this section.
(15) Section 319 shall apply as if subsections (1) and (2) of that section included references to this section.
(16) For the purposes of this section, a person shall be deemed not to be carrying on a petroleum trade unless and until the person is carrying on in the course of that trade trading activities which are petroleum extraction activities.
(17) Any reference in this section to assets representing any exploration expenditure shall be construed as including a reference to a part of or share in any such assets, and any reference in this section to a disposal or acquisition of any such assets shall be construed as including a reference to a disposal or acquisition of a part of or share in any such assets.
num: 694
paragraphs: —(1) For the purposes of section 693 , where exploration expenditure (not being expenditure which has been or is to be met directly or indirectly by any other person) is incurred by a company (in this section referred to as an “exploration company”) and—
(a) another company is a wholly-owned subsidiary of the exploration company, or
(b) the exploration company is at the time the exploration expenditure is incurred a wholly-owned subsidiary of another company (in this section referred to as “the parent company”),
then, the expenditure or so much of it as the exploration company specifies—
(i) in the case referred to in paragraph (a), may at the election of the exploration company be deemed to have been incurred by such other company (being a wholly-owned subsidiary of the exploration company) as the exploration company specifies, and
(ii) in the case referred to in paragraph (b), may at the election of the exploration company be deemed to have been incurred by the parent company or by such other company (being a wholly-owned subsidiary of the parent company) as the exploration company specifies.
(2) Where under subsection (1) exploration expenditure incurred by an exploration company is deemed to have been incurred by another company (in this subsection referred to as “the other company”)—
(a) the expenditure shall be deemed to have been incurred by the other company at the time at which the expenditure was actually incurred by the exploration company,
(b) in a case where the expenditure was incurred at a time before the incorporation of the other company, that company shall be deemed to have been in existence at the time the expenditure was incurred, and
(c) in the application of section 693 to a petroleum trade carried on by the other company, the expenditure shall be deemed—
(i) to have been incurred by the other company for the purposes of that trade, and
(ii) not to have been met directly or indirectly by the exploration company.
(3) The same expenditure shall not be taken into account in relation to more than one trade by virtue of this section.
(4) A deduction or allowance shall not be made in respect of the same expenditure both by virtue of this section and under some other provision of the Tax Acts.
num: 695
paragraphs: —(1) In this section, “abandonment losses” means so much of a loss in a petroleum trade incurred by a person in a chargeable period as does not exceed the total amount of allowances which—
(a) are to be made to the person for that chargeable period under this section, and
(b) have been taken into account in determining the amount of that loss in the petroleum trade.
(2) Subject to subsections (5) to (9), where in a chargeable period a person, who is or has been carrying on in relation to a relevant field or a part of it petroleum extraction activities other than effecting the initial treatment and storage of petroleum that is won from the relevant field, incurs abandonment expenditure (not being expenditure which has been or is to be met directly or indirectly by any other person) in relation to the field or the part of it, as the case may be, there shall be made to the person for the chargeable period an allowance equal to the amount of the expenditure.
(3) (a) Subject to paragraph (b), as respects so much of a loss in a petroleum trade incurred by a person in a chargeable period as is an abandonment loss, the person shall be entitled on making a claim in that behalf to such repayment of income tax as is necessary to secure that the aggregate amount of income tax for the chargeable period and the 3 chargeable periods immediately preceding it will not exceed the amount which would have been borne by the person if the person's income arising from petroleum activities for each of those chargeable periods had been reduced by the lesser of—
(i) the abandonment loss, and
(ii) so much of the abandonment loss as could not on that claim be treated as reducing such income of a later chargeable period.
(b) Relief under paragraph (a) in respect of a loss shall be deemed for the purposes of the Tax Acts to be relief given under section 381 (1) such that—
(i) no further relief shall be given under section 381 (1) in respect of so much of an abandonment loss as is an amount in respect of which relief has been given under paragraph (a), and
(ii) subsections (3) to (7) of section 381 and section 392 shall apply to relief under paragraph (a) as they apply to relief under section 381 .
(c) As respects so much of a loss in a petroleum trade incurred by a person in a chargeable period as is an abandonment loss, subsections (2) and (3) of section 396 shall apply as if the time specified in subsection (3) of that section were a period of 3 years ending immediately before the chargeable period in which the loss is incurred.
(4) So much of the abandonment losses, if any, incurred by a person on or before the day on which the person permanently discontinues to carry on a petroleum trade (in this subsection referred to as “the first-mentioned trade”) as would not apart from this subsection be allowed against or treated as reducing the person's or any other person's income or profits, shall be treated as incurred by the person in the first chargeable period of the first petroleum trade (in this section referred to as “the new trade”) to be carried on by the person after the permanent discontinuance of the first-mentioned trade as a trading expense of the new trade.
(5) Where a petroleum trade carried on by a person has been permanently discontinued, any abandonment expenditure incurred by the person after the discontinuance shall be treated for the purposes of subsection (2) as if that expenditure had been incurred by the person on the last day on which the person carries on the petroleum trade.
(6) For the purposes of this section other than subsections (4) and (5), the day on which any expenditure is incurred shall be taken to be the day on which the sum in question becomes payable.
(7) Any allowance made to a person under this section shall be made in taxing the person's petroleum trade, but such allowance shall not be made in respect of the same expenditure in taxing more than one trade.
(8) References to capital expenditure in Part 9 and in section 670 , Chapter 1 of Part 29 and sections 763 to 765 shall be deemed not to include references to expenditure which is abandonment expenditure; but subsections (1) and (2) of section 316 and sections 317 (2) and 320 (5) shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of Part 9 and Chapter 1 of Part 29 .
(9) Subsections (9) to (11) and (15) of section 693 shall apply for the purposes of this section as they apply for the purposes of that section.
num: 696
paragraphs: —(1) Where a person disposes, otherwise than by means of a sale at arm's length, of petroleum acquired by the person by virtue of petroleum activities carried on by the person, then, for the purposes of the Tax Acts the disposal of the petroleum and its acquisition by the person to whom the disposal was made shall be treated as having been for a consideration equal to the market value of the petroleum at the time the disposal was made.
(2) (a) In this subsection, “relevant appropriation”, in relation to any petroleum won or otherwise acquired in the course of the carrying on by a person of petroleum activities, means the appropriation of that petroleum to refining or to any use except use for petroleum extraction activities carried on by the person, and “relevantly appropriated” shall be construed accordingly.
(b) Where a person who carries on in the course of a trade petroleum activities and other activities makes a relevant appropriation of any petroleum won or otherwise acquired by the person in the course of the petroleum activities without disposing of the petroleum, then, for the purposes of the Tax Acts the person shall be treated as having at the time of the appropriation—
(i) sold the petroleum in the course of the petroleum trade carried on by the person, and
(ii) bought the petroleum in the course of a separate trade consisting of the activities other than the petroleum activities,
and as having so sold and bought the petroleum at a price equal to its market value at the time the petroleum was relevantly appropriated.
(3) For the purposes of this section, the market value at any time of any petroleum shall be the price which that petroleum might reasonably be expected to fetch on a sale of that petroleum at that time if the parties to the transaction were independent parties dealing at arm's length.
num: 697
paragraphs: —(1) In this section, “relevant period”, as respects a disposal, means the period beginning 12 months before and ending 3 years after the disposal, or such longer period as the Minister for the Marine and Natural Resources may, on the application of the person making the disposal, certify to be in that Minister's opinion reasonable having regard to the proper exploration, delineation or development of any licensed area.
(2) This section shall apply where on or after the 14th day of January, 1985, a person, with the consent of the Minister for the Marine and Natural Resources, makes a disposal of an interest in a licensed area (including the part disposal of such an interest or the exchange of an interest owned by the person in one licensed area for an interest in another licensed area) and the disposal is shown to the satisfaction of that Minister to have been made for the sole purpose of ensuring the proper exploration, delineation or development of any licensed area.
(3) Where this section applies as respects a disposal by a person (neither being nor including an exchange referred to in subsection (2)) and the consideration received by the person is in the relevant period wholly and exclusively applied (whether by the person, or on that person's behalf by the person acquiring the asset disposed of) for the purposes of either or both of the following—
(a) petroleum exploration activities, and
(b) searching for or winning access to petroleum in a relevant field,
then, for the purposes of the Capital Gains Tax Acts, if the person making the disposal makes a claim in that behalf, the disposal shall not be treated as involving any disposal of an asset but the consideration shall not, as respects any subsequent disposal of any asset acquired or brought into being or enhanced in value by the application of that consideration, be deductible from the consideration for that subsequent disposal in the computation of the chargeable gain accruing on that disposal.
(4) (a) Where this section applies as respects an exchange referred to in subsection (2), then, for the purposes of the Capital Gains Tax Acts, if the person making such an exchange makes a claim in that behalf, the exchange shall not be treated as involving any disposal or acquisition by that person of an asset, but the asset given by that person and the asset acquired by that person in the exchange shall be treated as the same asset acquired as the asset given by that person was acquired.
(b) Notwithstanding paragraph (a)—
(i) where the person receives for the exchange any consideration in addition to the interest in the other licensed area, this subsection shall not apply as respects the claim made by that person unless the additional consideration is applied in the relevant period in the manner referred to in subsection (3) but, where that additional consideration is so applied and the person makes a claim that this subsection should apply, it shall so apply as if the asset given by that person in exchange were such portion only of that asset as is equal in value to the interest in the other licensed area taken by that person in the exchange, and subsection (3) shall apply as if the remaining portion of the asset so given by that person were disposed of by that person for that additional consideration, and
(ii) where the person gives for the exchange any consideration in addition to the interest in a licensed area given by that person in the exchange, this subsection shall apply as respects the claim made by that person as if the interest in the other licensed area taken by that person in the exchange were such portion only of that interest as is equal in value to the interest in the licensed area given by that person in the exchange.
num: 698
paragraphs: — In this Chapter, except where the context otherwise requires—
“loan interest”, in relation to a society, means any interest payable by the society in respect of any mortgage, loan, loan stock or deposit;
“share interest”, in relation to a society, means any interest, dividend, bonus or other sum payable to a shareholder of the society by reference to the amount of the shareholder's holding in the share capital of the society;
“society” means a society registered under the Industrial and Provident Societies Acts, 1893 to 1978;
references to the payment of share interest or loan interest include references to the crediting of such interest.
num: 699
paragraphs: —(1) In computing for the purposes of Case I of Schedule D the profits or gains of a society, there shall be deducted as expenses any sums which—
(a) represent a discount, rebate, dividend or bonus granted by the society to members of the society or other persons in respect of amounts paid or payable by or to them on account of their transactions with the society, being transactions taken into account in that computation and calculated by reference to those amounts or to the magnitude of those transactions and not by reference to the amount of any share or interest in the capital of the society;
(b) are share interest or loan interest paid by the society, being interest wholly and exclusively laid out or expended for the purposes of the trade.
num: 700
paragraphs: —(1) Notwithstanding anything in the Tax Acts, any share or loan interest paid by a society—
num: 701
paragraphs: —(1) In this section—
“company” has the meaning assigned to it by section 5 (1);
“consideration” means consideration in money or money's worth;
“control”, in relation to a company, shall be construed in accordance with section 432 ;
“society” means a society registered under the Industrial and Provident Societies Acts, 1893 to 1978, which is an agricultural society or a fishery society within the meaning of section 443 (16).
(2) (a) In this subsection and in subsection (4), “the appropriate number”, in relation to a member's original shares, means such portion (or as near as may be to such portion) of the total number of the referable shares owned by the member at the time of the transfer as bears to that number the same proportion as the total number of shares in the company which are subject to the transfer bears to the total number of shares in the company owned by the society immediately before the transfer, and the number of the referable shares owned by a member shall be an amount determined by the formula—
A × B
______
C
×
D
___
B
where—
A is the market value of the shares in the company owned by the society immediately before the transfer,
B is the total number of the shares in the society in issue immediately before the transfer,
C is the market value of the total assets (including the shares in the company) of the society immediately before the transfer, and
D is the number of shares in the society owned by the member immediately before the transfer.
(b) Where on or after the 6th day of April, 1993, a society, being a society which at any time on or after that date controls or has had control of a company, transfers to the members of the society shares owned by it in the company (in this section referred to as “the transfer”) and—
(i) the transfer, in so far as it relates to any member, is in respect of and in proportion to, or as nearly as may be in proportion to, that member's holding of shares (in this section referred to as “the original shares”) in the society immediately before the transfer,
(ii) no consideration (apart from the consideration given by the members represented by the cancellation of the original shares referred to in subparagraph (iii)) for, or in connection with, the transfer is given to or received from any member (or any person connected with that member) by the society (or any person connected with the society), and
(iii) on the transfer or as soon as possible after the transfer, the original shares (or the appropriate number of those shares) of each member are cancelled without any consideration (apart from the consideration given to the members represented by the transfer to the members of the shares in the company) for or in connection with such cancellation being given to or received from any member (or any person connected with that member) by the society (or any person connected with the society) and, where the original shares (or the appropriate number of those shares) have been issued to a member at different times, any cancellation of such shares shall involve those issued earlier rather than those issued later,
then, subject to subsection (5), subsections (3) and (4) shall apply.
(3) For the purposes of the Corporation Tax Acts, the transfer shall be treated as—
(a) not being a distribution within the meaning of Part 6 , and
(b) being for a consideration of such amount as would secure that, for the purposes of charging the gain on the disposal by the society of the shares owned by it in the company, neither a gain nor a loss would accrue to the society.
(4) For the purposes of the Capital Gains Tax Acts—
(a) the cancellation of the original shares (or the appropriate number of those shares) shall not be treated as involving any disposal of those shares, and
(b) each member shall be treated as if the shares transferred to that member in the course of the transfer were acquired by that member at the same time and for the same consideration at which the original shares (or the appropriate number of those shares) were acquired by that member and, for the purposes of giving effect to this paragraph, where the original shares (or the appropriate number of those shares) have been issued to a member at different times, there shall be made all such apportionments as are in the circumstances just and reasonable.
(5) This section shall not apply unless it is shown that the transfer is effected for bona fide commercial reasons and does not form part of any arrangement or scheme of which the main purpose or one of the main purposes is avoidance of liability to corporation tax or capital gains tax.
(6) In a case where this section applies, the society concerned shall include in the return required to be made by it under section 884 a statement of the total number of shares cancelled in accordance with subsection (2)(b)(iii).
num: 702
paragraphs: —(1) In this section, “building society” means a building society within the meaning of the Building Societies Acts, 1874 to 1989.
(2) Where in the course of or as part of a union or amalgamation of 2 or more building societies or a transfer of engagements from one building society to another building society there is a disposal of an asset by one society to another society, both societies shall be treated for the purposes of corporation tax in respect of chargeable gains as if the asset were acquired from the society making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the society making the disposal.
num: 703
paragraphs: —(1) In this section and in Schedule 16 —
“building society” means a building society incorporated or deemed by section 124 (2) of the Building Societies Act, 1989 , to be incorporated under that Act, and references to “society” shall be construed accordingly;
“successor company” means a successor company within the meaning of Part XI of the Building Societies Act, 1989.
num: 704
paragraphs: —(1) In this Chapter and in Schedule 17 , “trustee savings bank” has the same meaning as in the Trustee Savings Banks Act, 1989 .
(2) Where any assets or liabilities of a trustee savings bank are transferred or deemed to be transferred to another trustee savings bank in accordance with Part IV of the Trustee Savings Banks Act, 1989 , those banks shall be treated for the purposes of the Tax Acts and the Capital Gains Tax Acts as if they were the same person.
num: 705
paragraphs: — Schedule 17 shall apply to the reorganisation in accordance with section 57 of the Trustee Savings Banks Act, 1989 , of—
(a) one or more trustee savings banks into a company, or
(b) a company referred to in subparagraph (i) of subsection (3)(c) of that section into a company referred to in subparagraph (ii) of that subsection.
num: 706
paragraphs: —(1) In this Part, unless the context otherwise requires—
“actuary” has the same meaning as in section 3 of the Insurance Act, 1936 ;
“annuity business” means the business of granting annuities on human life;
“annuity fund” means, where an annuity fund is not kept separately from the life assurance fund of an assurance company, such part of the life assurance fund as represents the liability of the company under its annuity contracts, as stated in its periodical returns;
“assurance company” has the same meaning as in section 3 of the Insurance Act, 1936 ;
“excluded annuity business”, in relation to an assurance company, means annuity business which—
(a) is not pension business, or the liability of the company in respect of which is not taken into account in determining the foreign life assurance fund (within the meaning of section 718 (1)) of the company, and
(b) arises out of a contract for the granting of an annuity on human life, being a contract effected, extended or varied on or after the 6th day of May, 1986, and which fails to satisfy any one or more of the following conditions—
(i) that the annuity shall be payable (whether or not its commencement is deferred for any period) until the end of a human life or for a period ascertainable only by reference to the end of a human life (whether or not continuing after the end of a human life),
(ii) that the amount of the annuity shall be reduced only on the death of a person who is an annuitant under the contract or by reference to a bona fide index of prices or investment values, and
(iii) that the policy document evidencing the contract shall expressly and irrevocably prohibit the company from agreeing to commutation in whole or in part of any annuity arising under the contract;
“general annuity business” means any annuity business which is not—
(a) excluded annuity business, or
(b) pension business,
and “pension business” shall be construed in accordance with subsections (2) and (3);
“life business” includes “life assurance business” and “industrial assurance business”, which have the same meanings respectively as in section 3 of the Insurance Act, 1936 , and where a company carries on both businesses may mean either;
“life assurance fund” and “industrial assurance fund” have the same meanings respectively as in the Insurance Acts, 1909 to 1969, and “life assurance fund”, in relation to industrial assurance business, means the industrial assurance fund;
“market value'” shall be construed in accordance with section 548 ;
“overseas life assurance company” means an assurance company having its head office outside the State but carrying on life assurance business through a branch or agency in the State;
“pension fund” and “general annuity fund” shall be construed in accordance with subsection (2);
“periodical return”, in relation to an assurance company, means a return deposited with the Minister for Enterprise, Trade and Employment under the Assurance Companies Act, 1909 , and the Insurance Act, 1936 ;
“policy” and “premium” have the same meanings respectively as in section 3 of the Insurance Act, 1936 ;
“special investment business”, “special investment fund” and “special investment policy” have the meanings respectively assigned to them by section 723 ;
“valuation period” means the period in respect of which an actuarial report is made under section 5 of the Assurance Companies Act, 1909 , as extended by section 55 of the Insurance Act, 1936 .
(2) Any division to be made between general annuity business, pension business and other life assurance business shall be made on the principle of—
(a) referring to pension business any premiums within subsection (3), together with the incomings, outgoings and liabilities referable to those premiums, and the policies and contracts under which they are or have been paid, and
(b) allocating to general annuity business all other annuity business except excluded annuity business,
and references to “pension fund” and “general annuity fund” shall be construed accordingly, whether or not such funds are kept separately from the assurance company's life assurance fund.
(3) The premiums to be referred to pension business shall be those payable under contracts which are (at the time when the premium is payable) within one or other of the following descriptions—
(a) any contract with an individual who is, or but for an insufficiency of profits or gains would be, chargeable to income tax in respect of relevant earnings (within the meaning of section 783 ) from a trade, profession, office or employment carried on or held by him or her, being a contract approved by the Revenue Commissioners under section 784 or 785 or any contract under which there is payable an annuity in relation to which section 786 (3) applies;
(b) any contract (including a contract of assurance) entered into for the purposes of, and made with the persons having the management of, an exempt approved scheme (within the meaning of Chapter 1 of Part 30 ), being a contract so framed that the liabilities undertaken by the assurance company under the contract correspond with liabilities against which the contract is intended to secure the scheme;
(c) any contract with the trustees or other persons having the management of a scheme approved under section 784 or 785 or under both of those sections, being a contract which—
(i) was entered into for the purposes only of that scheme, and
(ii) in the case of a contract entered into or varied on or after the 6th day of April, 1958, is so framed that the liabilities undertaken by the assurance company under the contract correspond with liabilities against which the contract is intended to secure the scheme;
and, in this subsection and in subsection (2), “premium” includes any consideration for an annuity.
(4) (a) In this subsection, “deduction” means any deduction, relief or set-off which may be treated for the purposes of corporation tax as reducing profits of more than one description.
(b) For the purposes of the Corporation Tax Acts, any deduction from the profits of an assurance company, being profits of more than one class of life assurance business referred to in section 707 (2), shall be treated as reducing the amount of the profits of each such class of business by an amount which bears the same proportion to the amount of the deduction as the amount of the profits of that class of business, before any deduction, bears to the amount of the profits of the company brought into charge to corporation tax.
num: 707
paragraphs: —(1) Subject to sections 709 and 710 , section 83 shall apply for computing the profits of a company carrying on life business, whether mutual or proprietary (and not charged to corporation tax in respect of it under Case I of Schedule D), whether or not the company is resident in the State, as that section applies in relation to an investment company, except that—
(a) there shall be deducted from the amount treated as expenses of management for any accounting period—
(i) any repayment or refund receivable in the period of the whole or part of a sum disbursed by the company for that period or any earlier period as expenses of management, including commissions (in whatever manner described),
(ii) reinsurance commissions earned by the company in the period, and
(iii) the amount of any fines or fees receivable in the period or profits arising from reversions in the period,
and in calculating profits arising from reversions the company may set off against those profits any losses arising from reversions in any previous accounting period during which any enactment granting this relief was in operation in so far as they have not already been so set off, and
(b) no deduction shall be made under section 83 (2)(b).
(2) (a) Where the life assurance business of an assurance company includes more than one of the following classes of business—
(i) pension business,
(ii) general annuity business,
(iii) special investment business, and
(iv) life assurance business (excluding such pension business, general annuity business and special investment business),
then, for the purposes of the Corporation Tax Acts, the business of each such class shall be treated as though it were a separate business, and subsection (1) shall apply separately to each such class of business as if it were the only business of the company.
(b) Any amount of an excess referred to in section 83 (3) which is carried forward from an accounting period ending before the 27th day of May, 1986, may for the purposes of section 83 (2) be deducted in computing the profits of the company for a later accounting period in respect of such of the classes of business referred to in paragraph (a) as the company may elect; but any amount so deducted in computing the profits from one of those classes of business shall not be deducted in computing the profits of the company from another of those classes of business.
(3) Relief under subsection (1) shall not be given for any amount of stamp duty (except any part of such amount as is referable to pension business) charged under subsection (8)(c) of section 92 of the Finance Act, 1982 , on any statement delivered by a company in accordance with subsection (8)(b) of that section in respect of any quarter commencing after the 27th day of May, 1986.
num: 708
paragraphs: —(1) For the purposes of this section and subject to subsections (2) to (4), the acquisition expenses for any period of an assurance company carrying on life assurance business shall be such of the following expenses of management, including commissions (in whatever manner described) and excluding any payment of rent in respect of which a deduction is to be made twice by virtue of section 324 , 333 or 345 in the computation of profits or gains, as are for that period attributable to the company's life assurance business (excluding pension business and general annuity business)—
(a) expenses of management which are disbursed solely for the purpose of the acquisition of business, and
(b) so much of any other expenses of management which are disbursed partly for the purpose of the acquisition of business and partly for other purposes as are properly attributable to the acquisition of business,
reduced by—
(i) any repayment or refund receivable in the period of the whole or part of management expenses within paragraph (a) or (b) and disbursed by the company for that period or any earlier period, and
(ii) reinsurance commission earned by the company in that period which is referable to life assurance business (excluding pension business and general annuity business).
(2) Subsection (1) shall not apply to acquisition expenses in respect of policies of life assurance issued before the 1st day of April, 1992, but without prejudice to the application of that subsection to any commission (in whatever manner described) attributable to a variation on or after that date in a policy of life assurance issued before that date, and for this purpose the exercise of any rights conferred by a policy shall be regarded as a variation of the policy.
(3) In subsection (1), “the acquisition of business” includes the securing on or after the 1st day of April, 1992, of the payment of increased or additional premiums in respect of a policy of assurance which has already been issued before, on or after that date.
(4) For the purposes of subsection (1) and in relation to any period, the expenses of management attributable to a company's life assurance business (excluding pension business and general annuity business) shall be expenses—
(a) which are disbursed for that period (disregarding any treated as so disbursed by section 83 (3)), and
(b) which, disregarding subsection (5), are deductible as expenses of management of such life assurance business in accordance with section 707 .
(5) Notwithstanding anything in section 707 , only one-seventh of the acquisition expenses for any accounting period (in this section referred to as “the base period”) shall be treated as deductible under that section for the base period, and in subsections (6) and (7) any reference to the full amount of the acquisition expenses for the base period is a reference to the amount of those expenses which would be deductible for that period apart from this subsection.
(6) Where by virtue of subsection (5) only a fraction of the full amount of the acquisition expenses for the base period is deductible under section 707 for that period, then, subject to subsection (7), a further one-seventh of the full amount shall be so deductible for each succeeding accounting period after the base period until the whole of the full amount has become so deductible, except that for any accounting period of less than a year the fraction of one-seventh shall be proportionately reduced.
(7) For any accounting period for which the fraction of the full amount of the acquisition expenses for the base period which would otherwise be deductible in accordance with subsection (6) exceeds the balance of those expenses which has not become deductible for earlier accounting periods, only that balance shall be deductible.
num: 709
paragraphs: —(1) Where an assurance company carries on life business in conjunction with insurance business of any other class, the life business shall for the purposes of corporation tax be treated as a separate business from any other class of business carried on by the company.
(2) In ascertaining for the purposes of section 396 or 397 whether and to what extent a company has incurred a loss on its life business, any profits derived from the investments of its life assurance fund (including franked investment income of a company resident in the State) shall be treated as part of the profits of that business.
num: 710
paragraphs: —(1) Where the profits of an assurance company in respect of its life business are for the purposes of the Corporation Tax Acts computed in accordance with the provisions applicable to Case I of Schedule D, the following provisions shall apply:
(a) such part of those profits as belongs or is allocated to, or is expended on behalf of, policyholders or annuitants shall be excluded in making the computation;
(b) such part of those profits as is reserved for policyholders or annuitants shall also be excluded in making the computation but, if any profits so excluded as being so reserved cease at any time to be so reserved and are not allocated to, or expended on behalf of, policyholders or annuitants, those profits shall be treated as profits of the company for the accounting period in which they ceased to be so reserved.
(2) (a) Subject to paragraph (b), where a company's trading operations consist solely of a foreign life assurance business (within the meaning of section 451 (1)) the following provisions shall apply:
num: 711
paragraphs: —(1) For the purpose of computing corporation tax on chargeable gains accruing to a fund or funds maintained by an assurance company in respect of its life business—
(a) (i) section 556 , and
(ii) section 607 ,
shall not apply, and
(b) section 581 shall, as respects—
(i) subsections (1) and (2) of that section, and
(ii) subsection (3) of that section, in so far as a chargeable gain is not thereby disregarded for the purposes of that subsection,
num: 712
paragraphs: —(1) Sections 129 and 153 (1) shall not apply as respects a distribution received by an assurance company in connection with that part of its life business the profits of which are charged to corporation tax otherwise than under Case I or IV of Schedule D, and the income represented by the distribution shall be equal to the aggregate of the amount of the distribution and the amount of the tax credit in respect of the distribution.
(2) Where an assurance company is entitled to a tax credit in respect of a distribution chargeable to corporation tax by virtue of subsection (1)—
(a) the assurance company may, subject to section 729 (5), set the credit against the corporation tax, as reduced by virtue of sections 713 (3) and 723 (6) or by either of those sections, chargeable on its profits for the accounting period in which the distribution is made and, where the credit exceeds that corporation tax, the excess shall be paid to the assurance company, and
(b) notwithstanding sections 4 and 156 , the income represented by the distribution shall not be franked investment income for the purposes of sections 83 and 157 .
num: 713
paragraphs: —(1) For the purposes of this section—
(a) “unrelieved profits” means the amount of profits on which corporation tax falls finally to be borne;
(b) the amount of tax which is or would be chargeable on a company shall be taken to be the amount of tax which is or would be so chargeable after allowance of any relief to which the company is or would be entitled otherwise than under this section or under section 136 , 712 (2) or 730 .
(2) A claim may be made under this section by an assurance company in respect of unrelieved profits from investments referable to life business, other than special investment business, carried on by the company.
(3) Where in a financial year (being the financial year 1997 and subsequent financial years) the rate per cent (in this subsection and in subsection (4) referred to as “the specified rate per cent”) of corporation tax specified in section 21 (1)(b) exceeds the standard rate per cent for either of the years of assessment, part of each of which falls within the financial year, the corporation tax in respect of any of the unrelieved profits of the company for that year shall be reduced on a claim in that behalf being made by the company by so much of that tax as is equal to the amount by which—
(a) the corporation tax chargeable on the company for that year in respect of the part specified in subsection (5) of the unrelieved profits,
exceeds—
(b) the corporation tax which would be so chargeable in respect of that part of those profits if the specified rate per cent for each part of the financial year which coincides with a part of a year of assessment were equal to the standard rate per cent for the year of assessment.
(4) In computing that part of those profits for the purposes of subsection (3)(b), section 78 (2) shall apply as if the rate per cent of capital gains tax specified in section 28 (3) were the specified rate per cent.
(5) (a) Subject to paragraph (b), the franked investment income from investments held in connection with a company's life business shall be apportioned between—
(i) policyholders or annuitants, and
(ii) shareholders,
num: 714
paragraphs: —(1) For the purposes of sections 707 and 713 , the exclusion by section 129 from the charge to corporation tax of franked investment income shall not prevent such income of a company resident in the State attributable to the investments of the company's life assurance fund from being taken into account as part of the profits in computing trading income in accordance with the provisions applicable to Case I of Schedule D.
num: 715
paragraphs: —(1) Except in the case of an assurance company charged to tax in accordance with the provisions applicable to Case I of Schedule D in respect of the profits of its life assurance business, profits arising to an assurance company from pension business or general annuity business shall be treated as annual profits or gains within Schedule D and shall be chargeable to corporation tax under Case IV of that Schedule, and for that purpose—
(a) the business of each such class shall be treated separately, and
num: 716
paragraphs: —(1) In this section, “taxed income” means income charged to corporation tax, otherwise than under section 715 , and franked investment income.
(2) In the case of a company carrying on general annuity business, the annuities paid by the company, in so far as referable to that business and in so far as they do not exceed the taxed income of the part of the annuity fund so referable, shall be treated as charges on income.
(3) Notwithstanding any other provision of the Corporation Tax Acts, any annuities which under subsection (2) are treated as charges on income of a company (in this subsection referred to as “the first-mentioned company”) for an accounting period shall not be allowed as deductions against any profits (whether of the first-mentioned company or of any other company) other than against that part of the total profits (including, where a claim is made under section 157 for the purposes mentioned in subsection (2)(a) of that section, any franked investment income) arising in that accounting period to the first-mentioned company from its general annuity business.
(4) In computing under section 715 the profits arising to an assurance company from general annuity business—
(a) taxed income shall not be taken into account as part of those profits, and
(b) of the annuities paid by the company and referable to general annuity business—
(i) those which under subsection (2) are treated as charges on income shall not be deductible, and
(ii) those which are not so treated shall, notwithstanding section 76 , be deductible.
(5) A company not resident in the State which carries on through a branch or agency in the State any general annuity business shall not be entitled to treat any part of the annuities paid by it which are referable to that business as paid out of profits or gains brought into charge to income tax.
num: 717
paragraphs: —(1) Exemption from corporation tax shall be allowed in respect of income from, and chargeable gains in respect of, investments and deposits of so much of an assurance company's life assurance fund and separate annuity fund, if any, as is referable to pension business.
(2) (a) In this subsection, “financial futures” and “traded options” mean respectively financial futures and traded options which are for the time being dealt in or quoted on any futures exchange or any stock exchange, whether or not that exchange is situated in the State.
(b) For the purposes of subsection (1), a contract entered into in the course of dealing in financial futures or traded options shall be regarded as an investment.
(3) The exemption from tax conferred by subsection (1) shall not exclude any sums from being taken into account as receipts in computing profits or losses for any purpose of the Corporation Tax Acts.
(4) Subject to subsection (5), the exclusion by section 129 from the charge to corporation tax of franked investment income shall not prevent such income being taken into account as part of the profits in computing under section 715 income from pension business.
(5) (a) Where for any accounting period there is apart from this subsection a profit arising to an assurance company from pension business (computed in accordance with section 715 ) and the company so elects as respects all or any part of its franked investment income arising in that period, being an amount of franked investment income not exceeding the amount of the profit arising from pension business, subsections (1) and (4) shall not apply to the franked investment income to which the election relates.
(b) An election under paragraph (a) shall be made by notice in writing given to the inspector not later than 2 years after the end of the accounting period to which the election relates or within such longer period as the Revenue Commissioners may by notice in writing allow.
(6) In computing under section 715 the profits from pension business, annuities shall be deductible notwithstanding section 76 (5), and a company shall not be entitled to treat as paid out of profits or gains brought into charge to income tax any part of the annuities paid by the company which is referable to pension business.
num: 718
paragraphs: —(1) In this section, “foreign life assurance fund” means—
(a) any fund representing the amount of the liability of an assurance company in respect of its life business with policyholders and annuitants residing outside the State whose proposals were made to, or whose annuity contracts were granted by, the company at or through a branch or agency outside the State, and
(b) where such a fund is not kept separately from the life assurance fund of the company, such part of the life assurance fund as represents the liability of the company under such policies and annuity contracts, such liability being estimated in the same manner as it is estimated for the purposes of the periodical returns of the company.
num: 719
paragraphs: —(1) In this section and in section 720 —
“average”, in relation to 2 amounts, means 50 per cent of the aggregate of those 2 amounts;
“closing”, in relation to an accounting period, means the position at the end of the valuation period which coincides with that accounting period or in which that accounting period falls;
“foreign life assurance fund” has the same meaning as in section 718 ;
“investment reserve”, in relation to an assurance company, means the excess of the value of the assets of the company's life business fund over the liabilities of the life business;
“life business fund” means the fund or funds maintained by an assurance company in respect of its life business other than its special investment business;
“linked assets” means assets of an assurance company identified in its records as assets by reference to the value of which benefits provided for under a policy or contract are to be determined;
“linked liabilities” means liabilities in respect of benefits to be determined by reference to the value of linked assets;
“opening”, in relation to an accounting period, means the position at the beginning of the valuation period which coincides with that accounting period or in which that accounting period falls;
“with-profits liabilities” means liabilities in respect of policies or contracts under which the policy holders or annuitants are eligible to participate in surplus.
(2) Each asset of the life business fund of an assurance company on the day on which an accounting period of the company ends shall, subject to this section, be deemed to have been disposed of and immediately reacquired by the company on that day at the asset's market value on that day.
(3) Subsection (2) shall not apply to—
(a) (i) assets to which section 607 applies, other than, with effect as on and from the 26th day of March, 1997, where such assets are held in connection with a contract or other arrangement which secures the future exchange of the assets for other assets to which that section does not apply, and
(ii) assets which are strips within the meaning of section 55 ,
(b) assets linked solely to pension business or special investment business, or
(c) assets of the foreign life assurance fund,
and, in relation to other assets which are not assets linked solely to life assurance business (excluding pension business, general annuity business and special investment business), shall apply only to the relevant chargeable fraction for an accounting period of each class of asset.
(4) In subsection (3), “the relevant chargeable fraction for an accounting period”—
(a) in relation to linked assets, means the fraction of which—
(i) the denominator is the average of such of the opening and closing life business liabilities as are liabilities in respect of benefits to be determined by reference to the value of linked assets other than—
(I) assets linked solely to life assurance business (excluding pension business, general annuity business and special investment business), special investment business or pension business, and
(II) assets of the foreign life assurance fund, and
num: 720
paragraphs: —(1) Subject to subsections (2) to (4), chargeable gains or allowable losses which would otherwise accrue on disposals deemed by virtue of section 719 to have been made in a company's accounting period (other than a period in which the company ceased to carry on life business) shall be treated, subject to paragraphs (b) and (c), as not accruing to the company, but instead—
(a) there shall be ascertained the difference (in this section referred to as “the net amount”) between the aggregate of those gains and the aggregate of those losses,
(b) one-seventh of the net amount shall be treated as a chargeable gain or, where it represents an excess of losses over gains, as an allowable loss accruing to the company in the accounting period, and
(c) a further one-seventh shall be treated as a chargeable gain or, as the case may be, as an allowable loss accruing in each succeeding accounting period until the whole amount has been accounted for.
(2) As respects chargeable gains or allowable losses accruing on disposals of rights under reinsurance contracts (within the meaning of section 594 (4)) deemed by virtue of section 719 to have been made in the accounting period or part of an accounting period falling wholly within the year ending on—
(a) the 31st day of December, 1997, this section shall not apply to three-sevenths,
(b) the 31st day of December, 1998, this section shall not apply to two-sevenths, or
(c) the 31st day of December, 1999, this section shall not apply to one-seventh,
of those chargeable gains and allowable losses.
(3) For any accounting period of less than one year, the fraction of one-seventh referred to in subsection (1)(c) shall be proportionately reduced and, where this subsection has applied in relation to any accounting period before the last for which subsection (1)(c) applies, the fraction treated as accruing in that last accounting period shall be reduced so as to secure that no more than the whole of the net amount has been accounted for.
(4) Where a company ceases to carry on life business before the beginning of the last of the accounting periods for which subsection (1)(c) would apply in relation to a net amount, the fraction of that amount which is treated as accruing in the accounting period in which the company ceases to carry on life business shall be such as to secure that the whole of the net amount has been accounted for.
(5) Where in an accounting period a company incurs a loss on the disposal (in this subsection referred to as the “first-mentioned disposal”) of an asset the gain or loss in respect of a deemed disposal of which was included in a net amount to which subsection (1)(b) applied for any preceding accounting period, then, so much of the allowable loss on the first-mentioned disposal as is equal to the excess of the amount of the loss over the amount which, if section 719 had not been enacted, would have been the allowable loss on the first-mentioned disposal shall be treated for the purposes of this section as an allowable loss which would otherwise accrue on disposals deemed by virtue of section 719 to have been made in the company's accounting period.
num: 721
paragraphs: —Where any investments or other assets are, in accordance with a policy issued in the course of life business carried on by an assurance company, transferred to the policyholder, the policyholder's acquisition of the assets and the disposal of the assets to the policyholder shall be deemed to be for a consideration equal to the market value of the assets—
(a) for the purposes of the Capital Gains Tax Acts, and
num: 722
paragraphs: —(1) This section shall apply in relation to policies of life assurance issued before the 6th day of April, 1974, by a company carrying on life business, being policies which-—
(a) provide for benefits consisting to any extent of investments of a specified description or of a sum of money to be determined by reference to the value of such investments, but
(b) do not provide for the deduction from those benefits of any amount by reference to tax chargeable in respect of chargeable gains.
(2) Where—
(a) the investments of the company's life assurance fund, in so far as referable to those policies, consist wholly or mainly of investments of the description so specified, and
(b) on the company becoming liable under any of those policies for any such benefits (including benefits to be provided on the surrender of a policy), a chargeable gain accrues to the company from the disposal, in meeting or for the purpose of meeting that liability, of investments of that description forming part of its life assurance fund, or would so accrue if the liability were met by or from the proceeds of such a disposal,
then, the company shall be entitled as against the person receiving the benefits to retain out of the benefits a part of the benefits not exceeding in amount or value corporation tax at the full rate in respect of the chargeable gain referred to in paragraph (b) computed without regard to any amount retained under this subsection and reduced in accordance with section 78 (1).
num: 723
paragraphs: —(1) In this section—
“excluded shares” means—
(a) shares in an investment company within the meaning of Part XIII of the Companies Act, 1990 ,
(b) shares in an undertaking for collective investment in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), or
(c) shares in a company, being shares the market value of which may be expected to approximate at all times to the market value of the proportion of the assets of the company which they represent;
“inspector”, in relation to any matter, means an inspector of taxes appointed under section 852 , and includes such other officers as the Revenue Commissioners shall appoint in that behalf;
“mortality cover” means any amount payable under a policy of life assurance in the event of the death of a person specified in the terms of that policy;
“ordinary shares” means shares forming part of a company's ordinary share capital;
“qualifying shares” means ordinary shares—
(a) in a company resident in the State, or
(b) (i) listed in the official list of the Irish Stock Exchange, or
(ii) dealt in on the smaller companies market, or the unlisted securities market, of the Irish Stock Exchange,
other than excluded shares;
“special investment business” means so much of the life business of an assurance company as is connected with special investment policies;
“special investment fund” means a fund in respect of which the conditions specified in subsection (2) are satisfied;
“special investment policy” means a policy of life assurance issued by an assurance company to an individual on or after the 1st day of February, 1993, in respect of which—
(a) the conditions specified in subsection (3) are satisfied, and
(b) a declaration of the kind specified in subsection (4) has been made to the assurance company;
“specified qualifying shares”, in relation to a special investment fund, means qualifying shares in a company the issued share capital of which has a market value of less than £100,000,000 when the shares are acquired for the fund.
(2) The conditions referred to in the definition of “special investment fund” are as follows:
(a) the fund shall be owned by an assurance company;
(b) the fund shall be kept separately from its other funds, if any, by the assurance company;
(c) the fund shall represent only the liabilities of the assurance company in respect of its special investment business, and accordingly there shall not be any arrangements whereby any asset of the fund is connected directly or indirectly with any business of the company other than its special investment business;
(d) the aggregate of the consideration given for shares which are at any time before the 1st day of February, 1994, assets of the fund shall not be less than—
(i) as respects qualifying shares, 40 per cent, and
(ii) as respects specified qualifying shares, 6 per cent,
of the aggregate of the consideration given for the assets which are assets of the fund at that time;
(e) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1995, assets of the fund shall not be less than—
(i) as respects qualifying shares, 45 per cent, and
(ii) as respects specified qualifying shares, 9 per cent,
of the aggregate of the consideration given for the assets which are assets of the fund at that time;
(f) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1996, assets of the fund shall not be less than—
(i) as respects qualifying shares, 50 per cent, and
(ii) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets which are assets of the fund at that time;
(g) the aggregate of the consideration given for shares which are at any time on or after the 1st day of February, 1996, assets of the fund shall not be less than—
(i) as respects qualifying shares, 55 per cent, and
(ii) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets which are assets of the fund at that time,
and for the purposes of paragraphs (d) to (g) the amount of the consideration given for assets of the fund shall be determined in accordance with sections 547 , 580 and 724 .
(3) The conditions referred to in the definition of “special investment policy” are as follows:
(a) the policy of life assurance concerned shall be designated by the assurance company concerned as a special investment policy;
(b) any payments received by the company in respect of the policy shall not, or shall not in the aggregate if there is more than one such payment, exceed £50,000;
(c) the company shall ensure that its liability in respect of the policy does not exceed £50,000 at any time on or after the fifth anniversary of the date on which the first payment was received by it in respect of the policy;
(d) the policy shall not be issued to or owned by an individual who is not of full age;
(e) the policy shall be issued to an individual—
(i) who is beneficially entitled to, and
(ii) to whom there shall be paid,
all amounts, other than mortality cover, payable under the policy by the company;
(f) except in the case of a policy issued to and owned jointly only by a couple married to each other, the policy shall not be a joint policy;
(g) unless the policy is issued to and owned jointly only by a couple married to each other, the policy shall be the only such policy owned by the individual;
(h) if the policy is to be issued to and owned jointly only by a couple married to each other, it shall be the only such policy, or one of 2 only such policies, owned only by them;
and for the purposes of paragraphs (d) to (h) references to ownership of a policy shall be construed as references to beneficial ownership of the policy.
(4) The declaration referred to in paragraph (b) of the definition of “special investment policy” shall be a declaration in writing to an assurance company which—
(a) (i) is made by the individual (in this section referred to as “the declarer”) to whom any amounts, other than mortality cover, are payable by the assurance company in respect of the policy in respect of which the declaration is made, and
(ii) is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time when the declaration is made the conditions referred to in paragraphs (d) to (h) of subsection (3) are satisfied in relation to the policy in respect of which the declaration is made,
(d) contains the full name and address of the individual beneficially entitled to any amounts, other than mortality cover, payable in respect of the policy in respect of which the declaration is made,
(e) contains an undertaking by the declarer that, if any of the conditions specified in paragraphs (d) to (h) of subsection (3) cease to be satisfied in respect of the policy in respect of which the declaration is made, the declarer will notify the assurance company accordingly, and
(f) contains such other information as the Revenue Commissioners may reasonably require for the purposes of this section.
(5) (a) An assurance company shall—
(i) keep and retain for not less than the longer of the following periods—
(I) a period of 6 years, and
(II) a period which, in relation to the policy in respect of which the declaration is made, ends not earlier than 3 years after the date on which the company ceases to have any liability in respect of the policy, and
(ii) on being so required by notice given to it in writing by an inspector, make available to the inspector within the time specified in the notice,
all declarations of the kind specified in subsection (4) which have been made to the company.
(b) The inspector may examine and take copies of or of extracts from a declaration made available to him or her under paragraph (a).
(6) The corporation tax chargeable on any profits on which corporation tax falls finally to be borne which are attributable to the special investment fund of an assurance company shall be reduced, for the purposes of the Tax Acts other than section 707 (4), so that, before it is reduced by any credit, relief or other deduction under the Tax Acts apart from this section, it is 10 per cent of those profits; but, in computing profits for the purposes of this subsection, section 78 (2) shall apply as if the rate per cent of capital gains tax specified in section 28 (3) were the rate per cent of corporation tax specified in section 21 (1)(b).
(7) For the purposes of computing income arising from, or chargeable gains accruing from the disposal of, assets of the special investment fund of an assurance company—
(a) each asset of the fund on the day on which an accounting period of the company ends shall be deemed to have been disposed of and immediately reacquired at the asset's market value on that day,
(b) without prejudice to the treatment of losses on such shares as allowable losses, gains accruing on the disposal or deemed disposal of eligible shares (within the meaning of Part 16 ) in a qualifying company (within the meaning of that Part) shall not be chargeable gains,
(c) section 712 shall not apply to distributions in respect of the shares mentioned in paragraph (b), and
(d) section 726 shall not apply.
num: 724
paragraphs: —Where an assurance company transfers the whole or part of an asset (any interest in or rights over an asset being regarded for the purposes of this section as part of the asset)—
(a) which it owned before the transfer, or which was created by the transfer, into, or
(b) which it owns after the transfer, out of,
its special investment fund, the company shall be deemed to have disposed of and immediately reacquired the asset or the part of the asset, as the case may be, at the market value of the asset or the part of the asset, as the case may be, at the time of the transfer.
num: 725
paragraphs: —(1) For the purposes of this section, a policy of life assurance held by an individual, whether married or not, shall not be a special investment policy at any particular time if—
(a) as respects the policy—
(i) a declaration of the kind specified in section 723 (4) has not been made, or
(ii) any of the conditions referred to in section 723 (3) is not satisfied at that time,
or
(b) as respects the individual, he or she has at that time a beneficial interest prohibited by section 839 in classes of investment mentioned in paragraphs (a) to (d) of subsection (1) of that section.
(2) Where an assurance company becomes aware at any time that a policy of life assurance which it has treated as a special investment policy is not such a policy—
(a) the assurance company shall ensure that in accordance with section 723 (2)(c) its special investment fund does not after that time represent its liability in respect of the policy, and
(b) for the purposes of the Tax Acts other than section 958 (4), the liability to corporation tax of the company for the accounting period in which it became aware that the policy was not a special investment policy shall be increased by an amount determined by the formula—
(A − B) ×
10
__
9
×
S − 10
______
100
where—
A is the amount which was the assumed liability, other than the liability, if any, in respect of mortality cover, of the company in respect of the policy immediately before it became aware that the policy was not a special investment policy,
B is—
(i) the amount which was the liability, other than the liability, if any, in respect of mortality cover, of the company in respect of the policy when the policy ceased to be a special investment policy, or
(ii) if the policy was never a special investment policy, the amount of the aggregate of the payments received and not repaid by the company in respect of the policy, and
S is the standard rate per cent for the year of assessment in which that accounting period ends.
num: 726
paragraphs: —(1) Any income of an overseas life assurance company from the investments of its life assurance fund (excluding the pension fund, general annuity fund and special investment fund, if any), wherever received, shall, to the extent provided in this section, be deemed to be profits comprised in Schedule D, and shall be charged to corporation tax under Case III of Schedule D.
(2) Distributions received from companies resident in the State shall be taken into account under this section notwithstanding their exclusion from the charge to corporation tax.
(3) Where an overseas life assurance company is entitled to an amount (in this subsection referred to as “the first amount”), being an amount which corresponds to a tax credit, by virtue of having received a distribution from a company not resident in the State, the distribution shall be treated for the purposes of this section as representing income equal to the aggregate of the amount or value of that distribution and the first amount.
(4) A portion only of the income from the investments of the life assurance fund (excluding the pension fund, general annuity fund and special investment fund, if any) shall be charged in accordance with subsection (1), and for any accounting period that portion shall be determined by the formula—
A × B
_____
C
where—
A is the total income from those investments for that period,
B is the average of the liabilities for that period to policyholders resident in the State and to policyholders resident outside the State whose proposals were made to the company at or through its branch or agency in the State, and
C is the average of the liabilities for that period to all the company's policyholders,
but any reference in this subsection to liabilities does not include liabilities in respect of special investment, general annuity or pension business.
(5) For the purposes of this section—
(a) the liabilities of an assurance company attributable to any business at any time shall be ascertained by reference to the net liabilities of the company as valued by an actuary for the purposes of the relevant periodical return, and
(b) the average of any liabilities for an accounting period shall be taken as 50 per cent of the aggregate of the liabilities at the beginning and end of the valuation period which coincides with that accounting period or in which that accounting period falls.
(6) (a) For the purposes of this subsection—
(i) “the average of branch liabilities for an accounting period” means the aggregate of the amounts represented by B in subsection (4), B in section 727 (2) and the average of the liabilities attributable to pension business for the accounting period, and
(ii) “the assets to which this subsection applies” are assets the gains from the disposal of which are chargeable to corporation tax by virtue of subsections (3) and (6) of section 29 together with assets the gains from the disposal of which would be so chargeable but for sections 551 , 607 and 613 .
(b) Where the average of branch liabilities for an accounting period exceeds the mean value for the accounting period of the assets to which this subsection applies, the amount to be included in profits under section 78 (1) shall be an amount determined by the formula—
A × B
_____
C
where—
A is the amount which apart from this subsection would be so included in profits,
B is the average of branch liabilities for the accounting period, and
C is the mean value for the accounting period of the assets to which this subsection applies.
(7) Section 70 (1) as applied to corporation tax shall not apply to income to which subsection (1) applies.
num: 727
paragraphs: —(1) Nothing in the Corporation Tax Acts shall prevent the distributions of companies resident in the State from being taken into account as part of the profits in computing under section 715 the profits arising from pension business and general annuity business to an overseas life assurance company.
(2) Any charge to tax under section 715 for any accounting period on profits arising to an overseas life assurance company from general annuity business shall extend only to a portion of the profits arising from that business, and that portion shall be determined by the formula—
A × B
_____
C
where—
A is the total amount of those profits,
B is the average of the liabilities attributable to that business for the relevant accounting period in respect of contracts with persons resident in the State or contracts with persons resident outside the State whose proposals were made to the company at or through its branch or agency in the State, and
C is the average of the liabilities attributable to that business for that accounting period in respect of all contracts.
(3) For the purposes of this section—
(a) the liabilities of an assurance company attributable to general annuity business at any time shall be ascertained by reference to the net liabilities of the company as valued by an actuary for the purposes of the relevant periodical return, and
(b) the average of any liabilities for an accounting period shall be taken as 50 per cent of the aggregate of the liabilities at the beginning and end of the valuation period which coincides with that accounting period or in which that accounting period falls.
num: 728
paragraphs: —The relief under section 707 available to an overseas life assurance company in respect of its expenses of management shall be limited to expenses attributable to the life assurance business carried on by the company at or through its branch or agency in the State.
num: 729
paragraphs: —(1) Section 77 (6) shall not affect the liability to tax of an overseas life assurance company in respect of the investment income of its life assurance fund under section 726 or in respect of the profits of its annuity business under sections 715 , 717 and 727 .
(2) For the purposes of section 25 (3) as it applies to life business, the amount of the income tax referred to in that section which shall be available for set-off under that section in an accounting period shall be limited in accordance with subsections (3) and (4).
(3) Where the company is chargeable to corporation tax for an accounting period in accordance with section 726 in respect of the income from the investments of its life assurance fund, the amount of income tax available for set-off against any corporation tax assessed for that period on that income shall not exceed an amount equal to income tax at the standard rate on the portion of income from investments which is chargeable to corporation tax by virtue of subsection (4) of that section.
(4) Where the company is chargeable to corporation tax for an accounting period in accordance with section 727 on a proportion of the total amount of the profits arising from its general annuity business, the amount of income tax available for set-off against any corporation tax assessed for that period on those profits shall not exceed an amount equal to income tax at the standard rate on the like proportion of the income from investments included in computing those profits.
(5) Where an overseas life assurance company receives a distribution in respect of which it is entitled to a tax credit, the company may claim to have that credit set off against any corporation tax assessed on the company under section 726 or 727 for the accounting period in which the distribution is received, but the amount of the tax credit, or aggregate of tax credits if more than one distribution has been received, which may be so set off shall not exceed an amount determined by the formula—
S × (A − B)
___________
100
where—
S is the standard credit rate per cent for the year of assessment in which the distribution is made,
A is the portion of the income from investments which is chargeable to corporation tax by virtue of section 726 (4) or, as the case may be, the portion determined in accordance with subsection (4) of the income from investments included in computing the total amount of the profits of the company arising from its general annuity business, and
B is the aggregate of the payments, the income tax on which, having regard to subsection (3) or (4), as the case may be, the company is entitled to set off against corporation tax by virtue of a claim under section 25 (3).
(6) Section 828 (4) shall not affect the liability to tax under section 726 of an overseas life assurance company in respect of gains from the disposal of investments held in connection with its life business.
(7) For the purposes of subsection (5), where an accounting period begins before the 6th day of April, 1997, and ends on or after that date, it shall be divided into one part beginning on the day which the accounting period begins and ending on the 5th day of April, 1997, and another part beginning on the 6th day of April, 1997, and ending on the day on which the accounting period ends and both parts shall be treated as separate accounting periods.
num: 730
paragraphs: —Where an overseas life assurance company—
(a) receives a distribution from a company resident in the State, and
(b) is not entitled to, or disclaims, by notice in writing to the appropriate inspector (within the meaning of section 950 (1)), relief in respect of the distribution under—
num: 731
paragraphs: —(1) In this section, “capital distribution” means any distribution from a unit trust, including a distribution in the course of terminating the unit trust, in money or money's worth except a distribution which in the hands of the recipient constitutes income for the purposes of income tax.
(2) For the purposes of the Capital Gains Tax Acts and without prejudice to section 567 and sections 574 to 578 , chargeable gains accruing to a unit trust in any year of assessment shall be assessed and charged on the trustees of the unit trust.
(3) The trustees of a unit trust shall for the purposes of the Capital Gains Tax Acts be treated as being a single and continuing body of persons (distinct from the persons who may from time to time be the trustees), and that body shall be treated as being resident and ordinarily resident in the State unless the general administration of the unit trust is ordinarily carried on outside the State and the trustees or a majority of them for the time being are not resident or not ordinarily resident in the State.
(4) Where a person receives or becomes entitled to receive in respect of units in a unit trust any capital distribution from the unit trust, such person shall be treated as having in consideration of that capital distribution disposed of an interest in the units.
(5) (a) Where throughout a year of assessment all the issued units in a unit trust are assets such that if those units were disposed of by the unit holder any gain accruing would be wholly exempt from capital gains tax (otherwise than by reason of residence or by virtue of section 739 (3)), gains accruing to the unit trust in that year shall not be chargeable gains.
(b) For the purposes of any assessment to capital gains tax, paragraph (a) shall not apply as respects a unit trust to which subsection (6) applies.
(6) Gains accruing on the disposal of units in a unit trust shall not be chargeable gains for the purposes of the Capital Gains Tax Acts where—
(a) the trustees of the unit trust have at all times (but not taking into account any time before the 6th day of April, 1974) been resident and ordinarily resident in the State, and
(b) the unit trust is a scheme which is established for the purpose or has the effect, solely or mainly, of providing facilities for the participation by the public as beneficiaries under a trust in profits or income arising from the acquisition, holding, management or disposal of securities or any other property whatever and which is administered by the holder of a licence under the Insurance Act, 1936 , and for participation in which, in respect of units first issued after the 14th day of June, 1973, a policy of assurance on human life is required to be effected (but so that the units do not become the property of the owner of the policy either as benefits or otherwise).
(7) (a) Subject to paragraph (b), where there is a disposal in any year of assessment of units in a unit trust—
(i) not being an undertaking for collective investment (within the meaning of section 738 ) which began carrying on business on or after the 25th day of May, 1993,
(ii) all the assets of which were throughout the year of assessment 1993-94 assets, whether mentioned in section 19 of the Capital Gains Tax Act, 1975 , or in any other provision of the Capital Gains Tax Acts, to which that section applied, and
(iii) the person disposing of the units acquired the units before the 6th day of April, 1994, then, the chargeable gain on the disposal shall be computed as if the units had been sold and immediately reacquired by that person on the 5th day of April, 1994, at their market value at that date.
(b) Paragraph (a) shall not apply in relation to the disposal of units—
(i) if as a consequence of the application of that paragraph a gain would accrue on that disposal to the person making the disposal and either a smaller gain or a loss would so accrue if that paragraph did not apply, or
(ii) if as a consequence of the application of that paragraph a loss would so accrue and either a smaller loss or a gain would accrue if that paragraph did not apply,
and accordingly in a case to which subparagraph (i) or (ii) applies, the amount of the gain or loss accruing on the disposal shall be computed without regard to this subsection (other than this paragraph) but, in a case where this paragraph would otherwise substitute a loss for a gain or a gain for a loss, it shall be assumed in relation to the disposal that the units were acquired by the person disposing of them for a consideration such that neither a gain nor a loss accrued to that person on making the disposal.
num: 732
paragraphs: —(1) In this section—
“securities” includes securities within section 607 and stocks, shares, bonds and obligations of any government, municipal corporation, company or other body corporate;
“quoted securities” means securities which, at any time at which they are to be taken into account for the purposes of this section, or at any time in the period of 6 years immediately before such time, have or have had quoted market values on a stock exchange in the State or elsewhere.
(2) This section shall apply—
(a) to a unit trust (in this section referred to as a “qualifying unit trust”)—
(i) which is a registered unit trust scheme (within the meaning of section 3 of the Unit Trusts Act, 1972 ),
(ii) the trustees of which are resident and ordinarily resident in the State,
(iii) the prices of units in which are published regularly by the managers,
(iv) all the units in which are of equal value and carry the same rights, and
(v) which, at all times since it was registered in the register established under the Unit Trusts Act, 1972 , but subject to subsection (7), satisfied the conditions specified in subsection (6), and
(b) to disposals of assets which are units in a qualifying unit trust (in this section referred to as “qualifying units”).
(3) Chargeable gains accruing to a qualifying unit trust in any year of assessment shall be chargeable to capital gains tax at one-half of the rate specified in section 28 (3).
(4) Chargeable gains which derive from the disposal of qualifying units and accrue to a person chargeable to capital gains tax shall be chargeable to tax at one-half of the rate at which those gains would be chargeable under the Capital Gains Tax Acts apart from this subsection.
(5) For any accounting period of a company, being an accounting period for which the company is chargeable to corporation tax in respect of chargeable gains—
(a) where the total amount of chargeable gains accruing to the company for the accounting period derives from the disposal of qualifying units, the amount which apart from this section would be included in respect of chargeable gains in the company's total profits for the accounting period under section 78 (1) shall be reduced by 50 per cent,
(b) where the total amount of chargeable gains accruing to the company for the accounting period includes—
(i) an amount in respect of such chargeable gains on the disposal of qualifying units, and
(ii) an amount in respect of such chargeable gains on the disposal of assets other than qualifying units,
the amount which apart from this section would be included in respect of chargeable gains in the company's total profits for the accounting period under section 78 (1) shall be reduced by such amount as bears to the amount to be so included the same proportion as one-half of the amount referred to in subparagraph (i) bears to the total of the amounts referred to in subparagraphs (i) and (ii).
(6) The conditions referred to in subsection (2)(a)(v) are that—
(a) not less than 80 per cent of the units were held by persons who acquired them pursuant to an offer made to the general public,
(b) the number of unit holders was not less than 50 and no one unit holder was the beneficial owner of more than 5 per cent of the units in issue at any time, and for the purposes of this paragraph a person and any persons with whom such person is connected shall be treated as one unit holder,
(c) the value of quoted securities held by the trustees on behalf of the unit trust was not less than 80 per cent by value of the assets so held by the trustees, and
(d) the securities held by the trustees on behalf of the unit trust in any one company did not exceed 15 per cent by value of the total securities so held by the trustees.
(7) The Revenue Commissioners may treat a unit trust as a qualifying unit trust for the purposes of this section notwithstanding that one or more of the conditions specified in subsection (6) was or were not complied with in relation to the unit trust—
(a) for the period ending on the 5th day of April, 1978, in the case where the unit trust became registered in the register established under the Unit Trusts Act, 1972 , before the 6th day of April, 1976, and
(b) for the period ending on a date not more than 2 years after the date on which the unit trust became registered in that register, in the case where the unit trust became so registered on or after the 6th day of April, 1976.
num: 733
paragraphs: —(1) In this section, references to a reorganisation of units in a trust scheme include—
(a) any case where persons are, whether for payment or not, allotted units in the scheme in respect of and in proportion to (or as nearly as may be in proportion to) their holdings of units in the scheme or of any class of units in the scheme, and
(b) any case where there is more than one class of units and the rights attached to units of any class are altered.
(2) (a) Subject to paragraph (b), section 584 shall apply with any necessary modification in relation to a reorganisation or reduction of units in any unit trust scheme registered under the Unit Trusts Act, 1972 , or authorised under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), as if (except as respects subsection (7) of that section)—
(i) that scheme were a company, and
(ii) the units in that scheme were shares in the company.
(b) Where but for this paragraph this section would apply to any reorganisation or reduction of units in a unit trust scheme in a year of assessment so that units which are deemed not to be chargeable assets for that year for the purposes of the Capital Gains Tax Acts would be treated as “original shares” or a “new holding” within the meaning of section 584 , that section shall not apply to that reorganisation or reduction of units in the unit trust scheme.
(3) The references in subsection (2) to section 584 do not include references to that section as applied by section 585 or 586 .
num: 734
paragraphs: —(1) (a) In this section and in Schedule 18 —
“accounting period”, in relation to a collective investment undertaking, means the chargeable period or its basis period (within the meaning of section 321 (2)) on the income or profits of which the undertaking is chargeable to income tax or corporation tax, as the case may be, for any chargeable period (within the meaning of that section), or would be so chargeable but for an insufficiency of income or profits, and—
(i) where 2 basis periods overlap, the period common to both shall be deemed to fall in the first basis period only,
(ii) where there is an interval between the end of the basis period for one chargeable period and the basis period for the next chargeable period, the interval shall be deemed to be part of the second basis period, and
(iii) the reference in paragraph (i) to the overlapping of 2 periods shall be construed as including a reference to the coincidence of 2 periods or to the inclusion of one period in another, and the reference to the period common to both shall be construed accordingly;
“the Acts” means the Tax Acts and the Capital Gains Tax Acts;
“the airport” has the same meaning as in the Customs-Free Airport Act, 1947 ;
“appropriate tax”, in relation to the amount of any relevant payment made by a collective investment undertaking or in relation to any amount of undistributed relevant income of such an undertaking, as the case may be, means a sum representing tax on the amount of the payment or the amount of the undistributed relevant income, as appropriate, at a rate equal to the standard rate of income tax in force at the time of the payment or at the end of the accounting period to which the undistributed relevant income relates, as the case may be, after making a deduction from that sum of an amount equal to, or to the aggregate of—
(i) in the case of a relevant payment—
(I) in so far as it is made wholly or partly out of relevant income which at a previous date had been or formed part of the undistributed relevant income of the undertaking, the amount of any appropriate tax deducted—
(A) from the relevant income, or
(B) where the payment, or that part of the payment which is made out of relevant income, is less than the relevant income, from such part of the relevant income as is represented by the payment, or that part of the payment, as the case may be, and
(II) any other amount or amounts of tax deducted—
(A) from the relevant profits out of which the relevant payment is made, or
(B) where the payment is less than the profits, from such part of the profits as is represented by the payment,
under any of the provisions of the Acts apart from this section and which is or are not repayable to the collective investment undertaking,
or
(ii) in the case of an amount of undistributed relevant income, any amount or amounts of tax deducted from the income under any of the provisions of the Acts apart from this section and which is or are not repayable to the collective investment undertaking,
but the amount of the deduction shall not exceed the amount of the sum;
“the Area” has the same meaning as it has for the purposes of section 446 ;
“chargeable gain” has the same meaning as in the Capital Gains Tax Acts;
“collective investor”, in relation to an authorised investment company (within the meaning of Part XIII of the Companies Act, 1990 ), means an investor, being a life assurance company, pension fund or other investor—
(i) who invests in securities or any other property whatever with moneys contributed by 50 or more persons—
(I) none of whom has at any time directly or indirectly contributed more than 5 per cent of such moneys, and
(II) each of a majority of whom has contributed moneys to the investor with the intention of being entitled, otherwise than on the death of any person or by reference to a risk of any kind to any person or property, to receive from the investor—
(A) a payment which, or
(B) payments the aggregate of which,
exceeds those moneys by a part of the profits or income arising to the investor,
and
(ii) who invests in the authorised investment company primarily for the benefit of those persons;
“collective investment undertaking” means, subject to paragraph (b)—
(i) a unit trust scheme which is or is deemed to be an authorised unit trust scheme (within the meaning of the Unit Trusts Act, 1990 ) and which has not had its authorisation under that Act revoked,
(ii) any other undertaking which is an undertaking for collective investment in transferable securities within the meaning of the relevant Regulations, being an undertaking which holds an authorisation, which has not been revoked, issued pursuant to the relevant Regulations,
(iii) a limited partnership which—
(I) has as its principal business, as expressed in the partnership agreement establishing the limited partnership, the investment of its funds in property, and
(II) has been authorised to carry on that business, under any enactment which provides for such authorisation, by the Central Bank of Ireland,
and where, in addition to being a collective investment undertaking, it is also a specified collective investment undertaking, and
(iv) any authorised investment company (within the meaning of Part XIII of the Companies Act, 1990 )—
(I) which has not had its authorisation under that Part of that Act revoked, and
(II) (A) which has been designated in that authorisation as an investment company which may raise capital by promoting the sale of its shares to the public and has not ceased to be so designated, or
(B) (aa) which is not a qualified company,
(bb) which in addition to being a collective investment undertaking is also a specified collective investment undertaking, and
(cc) where all the holders of units who must be resident outside the State, for the company to be a specified collective investment undertaking, are collective investors;
“distribution” has the same meaning as in the Corporation Tax Acts;
“qualified company” has, in relation to any business of a collective investment undertaking carried on in—
(i) the airport, the same meaning as it has for the purposes of section 445 , or
(ii) the Area, the same meaning as it has for the purposes of section 446 ;
“qualifying management company”, in relation to a collective investment undertaking, means a qualified company which in the course of relevant trading operations carried on by the qualified company manages the whole or any part of the investments and other activities of the business of the undertaking;
“relevant gains”, in relation to a collective investment undertaking, means gains accruing to the undertaking, being gains which would constitute chargeable gains in the hands of a person resident in the State;
“relevant income”, in relation to a collective investment undertaking, means any amounts of income, profits or gains which arise to or are receivable by the collective investment undertaking, being amounts of income, profits or gains—
(i) which are or are to be paid to unit holders as relevant payments,
(ii) out of which relevant payments are or are to be made to unit holders, or
(iii) which are or are to be accumulated for the benefit of, or invested in transferable securities for the benefit of, unit holders,
and which if they arose to an individual resident in the State would in the hands of the individual constitute income for the purposes of income tax;
“relevant payment” means a payment made to a unit holder by a collective investment undertaking by reason of rights conferred on the unit holder as a result of holding a unit or units in the collective investment undertaking, other than a payment made in respect of the cancellation, redemption or repurchase of a unit;
“relevant profits”, in relation to a collective investment undertaking, means the relevant income and relevant gains of the undertaking;
“relevant Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 );
“relevant trading operations” has, in relation to any business of a collective investment undertaking carried on by a qualified company in—
(i) the airport, the same meaning as it has for the purposes of section 445 , or
(ii) the Area, the same meaning as it has for the purposes of section 446 ;
num: 735
paragraphs: —(1) This section shall apply to any unit trust scheme (within the meaning of the Unit Trusts Act, 1972 ) where there is or was at any time in respect of any or all units issued after the 14th day of June, 1973, a requirement for participation in that unit trust scheme that a policy of assurance on human life be effected (but without those units becoming the property of the owner of the policy either as benefits or otherwise).
num: 736
paragraphs: —(1) Where the trustees of a unit trust scheme (within the meaning the Unit Trusts Act, 1990 ), which apart from section 735 would be a collective investment undertaking for the purposes of section 734 and Schedule 18 , have not later than the 1st day of November, 1992—
(a) paid the capital gains tax which would have been chargeable on them if—
(i) on the 31st day of March, 1992, they had disposed of all the assets of the unit trust scheme, and
(ii) the resulting chargeable gains were chargeable to tax at one-half of the rate at which they would have been chargeable under the Capital Gains Tax Acts apart from this subparagraph,
and
(b) given notice in writing to the Revenue Commissioners that they have paid that tax in accordance with paragraph (a),
num: 737
paragraphs: —(1) (a) In this section—
“inspector”, “ordinary shares”, and “qualifying shares” have the same meanings respectively as in section 723 ;
“authorised unit trust scheme” means a unit trust scheme which is or is deemed to be an authorised unit trust scheme (within the meaning of the Unit Trusts Act, 1990 ) and which has not had its authorisation under that Act revoked;
“market value” shall be construed in accordance with section 548 ;
“special investment scheme” means an authorised unit trust scheme in respect of which the conditions specified in subsection (2) are satisfied;
“special investment units” means units sold to an individual on or after the 1st day of February, 1993, by the management company or trustee under an authorised unit trust scheme in respect of which—
(a) the conditions specified in subsection (3) are satisfied, and
(b) a declaration of the kind specified in subsection (4) has been made to the management company or trustee;
“specified qualifying shares”, in relation to a special investment scheme, means qualifying shares in a company which, when the shares are acquired for the scheme, has an issued share capital the market value of which is less than £100,000,000;
“units”, in relation to an authorised unit trust scheme, means any units (whether described as units or otherwise) into which are divided the beneficial interests in the assets subject to any trust created under the scheme.
(b) A reference in this section to the management company or trustee under an authorised unit trust scheme shall be construed as a reference to the person in whom are vested the powers of management relating to property for the time being subject to any trust created pursuant to the scheme or, as the case may be, to the person in whom such property is or may be vested in accordance with the terms of the trust.
(2) (a) The conditions referred to in the definition of “special investment scheme” are as follows:
(i) the beneficial interests in the assets subject to any trust created under the authorised unit trust scheme concerned shall be divided into special investment units;
(ii) the aggregate of the consideration given for shares which are at any time before the 1st day of February, 1994, assets subject to any trust created under the scheme shall not be less than—
(I) as respects qualifying shares, 40 per cent, and
(II) as respects specified qualifying shares, 6 per cent,
of the aggregate of the consideration given for the assets which are at that time subject to any such trust;
(iii) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1995, assets subject to any trust created under the scheme shall not be less than—
(I) as respects qualifying shares, 45 per cent, and
(II) as respects specified qualifying shares, 9 per cent,
of the aggregate of the consideration given for the assets which are at that time subject to any such trust;
(iv) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1996, assets subject to any trust created under the scheme shall not be less than—
(I) as respects qualifying shares, 50 per cent, and
(II) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets which are at that time subject to any such trust;
(v) the aggregate of the consideration given for shares which are at any time on or after the 1st day of February, 1996, assets subject to any trust created under the scheme shall not be less than—
(I) as respects qualifying shares, 55 per cent, and
(II) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets which are at that time subject to any such trust.
(b) For the purposes of subparagraphs (ii) to (v) of paragraph (a), the amount of the consideration given for assets subject to any trust created under the scheme shall be determined in accordance with sections 547 and 580 .
(3) (a) The conditions referred to in the definition of “special investment units” are as follows:
(i) the special investment units shall be so designated in the trusts created under the authorised unit trust scheme concerned;
(ii) the aggregate of payments made on or before any day to the management company or trustee under the scheme by or on behalf of an individual in respect of special investment units owned, whether jointly or otherwise, by the individual on that day shall not exceed £50,000;
(iii) the management company or trustee under the scheme shall ensure that the aggregate of the market value of special investment units owned, whether jointly or otherwise, by any individual does not exceed £50,000 at any time on or after the fifth anniversary of the date on which the first payment was made by or on behalf of that individual in respect of those units;
(iv) special investment units shall not be sold to or owned by an individual who is not of full age;
(v) special investment units shall only be sold to an individual—
(I) who shall be beneficially entitled to, and
(II) to whom there shall be paid,
all amounts payable in respect of those units by the management company or trustee under the scheme;
(vi) except in the case of special investment units sold to and owned jointly only by a couple married to each other, units shall not be jointly owned;
(vii) except in the case of special investment units bought by and owned jointly only by a couple married to each other, an individual who owns such units of an authorised unit trust scheme shall not buy or own such units of another authorised unit trust scheme;
(viii) where a couple married to each other buy and jointly own special investment units of an authorised unit trust scheme, they shall not buy or own such units in any other such scheme either individually or jointly, other than units which they buy and jointly own in one other such scheme.
(b) For the purposes of subparagraphs (ii) to (iv) and (vi) to (viii) of paragraph (a), references to ownership of special investment units shall be construed as references to beneficial ownership of the units.
(c) For the purposes of subparagraphs (ii) and (iii) of paragraph (a), a disposal of special investment units of an authorised unit trust scheme acquired by an individual at different times shall be assumed to be a disposal of units acquired later, rather than of units acquired earlier, by the individual.
(4) The declaration referred to in the definition of “special investment units” is a declaration in writing to the management company or trustee under an authorised unit trust scheme which—
(a) (i) is made by the individual (in this section referred to as “the declarer”) to whom any amounts are payable by the management company or trustee in respect of units in respect of which the declaration is made, and
(ii) is signed by the declarer,
(b) is made in such form as may be prescribed or authorised by the Revenue Commissioners,
(c) declares that at the time when the declaration is made the conditions specified in subparagraphs (iv) to (viii) of subsection (3)(a) are satisfied in relation to the units in respect of which the declaration is made,
(d) contains the full name and address of the individual beneficially entitled to any amounts payable in respect of the units in respect of which the declaration is made,
(e) contains an undertaking by the declarer that, if any of the conditions referred to in subparagraphs (iv) to (viii) of subsection (3)(a) ceases to be satisfied in respect of the units in respect of which the declaration is made, the declarer will notify the management company or trustee accordingly, and
(f) contains such other information as the Revenue Commissioners may reasonably require for the purposes of this section.
(5) (a) The management company or trustee under an authorised unit trust scheme shall—
(i) keep and retain for not less than the longer of the following periods—
(I) a period of 6 years, and
(II) a period which, in relation to the units in respect of which the declaration is made, ends 3 years after the earliest date on which all of those units stand cancelled, redeemed or bought by the management company or trustee, and
(ii) on being so required by notice given to it in writing by an inspector, make available to the inspector within the time specified in the notice,
all declarations of the kind specified in subsection (4) which have been made to it.
(b) The inspector may examine and take copies of or of extracts from a declaration made available to him or her under paragraph (a).
num: 738
paragraphs: —(1) (a) In this section and in section 739 —
“chargeable period” means an accounting period of an undertaking for collective investment which is a company or, as respects such an undertaking which is not a company, a year of assessment;
“designated assets” means—
(i) land, or
(ii) shares in a company resident in the State which are not shares—
(I) listed in the official list, or
(II) dealt in on the smaller companies market or the unlisted securities market,
of the Irish Stock Exchange;
“designated undertaking for collective investment” means an undertaking for collective investment which, on the 25th day of May, 1993, owned designated assets for which that undertaking gave consideration (determined in accordance with section 547 ) the aggregate of which is not less than 80 per cent of the aggregate of the consideration (as so determined) which that undertaking gave for the total assets it owned at that date;
“distribution” has the same meaning as in the Corporation Tax Acts;
“guaranteed undertaking for collective investment” means an undertaking for collective investment all of the issued units of which, on the 25th day of May, 1993, are units in respect of each of which the undertaking will make one payment only, being a payment—
(i) to be made on a specified date in cancellation of those units, and
(ii) which is the aggregate of—
(I) a fixed amount, and
(II) an amount, which may be nil, determined by a stock exchange index or indices;
“relevant Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 );
“undertaking for collective investment” means, subject to paragraph (b)—
(i) a unit trust scheme, other than—
(I) a unit trust mentioned in section 731 (5)(a), or
(II) a special investment scheme (within the meaning of section 737 ),
which is or is deemed to be an authorised unit trust scheme (within the meaning of the Unit Trusts Act, 1990 ) and has not had its authorisation under that Act revoked,
(ii) any other undertaking which is an undertaking for collective investment in transferable securities within the meaning of the relevant Regulations, being an undertaking which holds an authorisation, which has not been revoked, issued pursuant to the relevant Regulations, or
(iii) any authorised investment company (within the meaning of Part XIII of the Companies Act, 1990 ) which—
(I) has not had its authorisation under that Part of that Act revoked, and
(II) has been designated in that authorisation as an investment company which may raise capital by promoting the sale of its shares to the public and has not ceased to be so designated,
which is neither a specified collective investment undertaking (within the meaning of section 734 (1)) nor an offshore fund (within the meaning of section 743 );
“unit” includes a share and any other instrument granting an entitlement—
(i) to a share of the investments or relevant profits of, or
(ii) to receive a distribution from,
an undertaking for collective investment;
“unit holder”, in relation to an undertaking for collective investment, means any person who by reason of the holding of a unit, or under the terms of a unit, in the undertaking is entitled to a share of any of the investments or relevant profits of, or to receive a distribution from, the undertaking;
“standard rate” has the same meaning as in section 3 (1);
“standard rate per cent” has the same meaning as in section 4 (1).
(b) For the purposes of this section and section 739 , references to an undertaking for collective investment (other than in this paragraph) shall be construed so as to include a reference to a trustee, management company or other such person who—
(i) is authorised to act on behalf, or for the purposes, of the undertaking, and
(ii) habitually does so,
to the extent that such construction brings into account for the purposes of this section and section 739 any matter relating to the undertaking, being a matter which would not otherwise be brought into account for those purposes.
(c) For the purposes of this section—
(i) as respects an undertaking for collective investment which is a company, where an accounting period of the company begins before the 6th day of April, 1994, and ends on or after that day, it shall be divided into 2 parts, one beginning on the day on which the accounting period begins and ending on the 5th day of April, 1994, and the other beginning on the 6th day of April, 1994, and ending on the day on which the accounting period ends, and both parts shall be treated as if they were separate accounting periods of the company, and
(ii) without prejudice to section 815 (2), any attribution of income or chargeable gains of such an undertaking to periods treated as separate accounting periods by virtue of subparagraph (i) shall be made—
(I) as respects such income, on the basis of the time that income arises to the undertaking, and
(II) as respects such capital gains, on the basis of the time of disposal of the assets concerned,
and section 4 (6) shall not apply for the purpose of such attribution.
(2) (a) Other than in the case of subsections (7) to (9) of section 734 , that section shall not apply, and the following provisions of this section shall apply, to an undertaking for collective investment as respects the chargeable periods of the undertaking ending on or after—
(i) the 6th day of April, 1994, if the undertaking was carrying on a collective investment business on the 25th day of May, 1993, or
(ii) the 25th day of May, 1993, if the undertaking was not carrying on such a business at that date.
(b) (i) As respects an undertaking for collective investment which is a company, the corporation tax which is chargeable on its profits on which corporation tax falls finally to be borne for a chargeable period shall be reduced for the purposes of the Tax Acts so that, before it is reduced by any credit, relief or other reduction under those Acts (other than under this section), it is the standard rate, for the year of assessment in which the chargeable period falls, of those profits.
(ii) For the purposes of this paragraph, where part of the chargeable period falls in one year of assessment (in this subparagraph referred to as “the first-mentioned year”) and the other part falls in the year of assessment succeeding the first-mentioned year and different standard rates are in force for each of those years, “the standard rate” shall be deemed to be a rate per cent determined by the formula—
(A × C)
_______
E
+
(B × D)
_______
E
where—
A is the standard rate per cent in force for the first-mentioned year,
B is the standard rate per cent in force for the year of assessment succeeding the first-mentioned year,
C is the length of that part of the chargeable period falling in the first-mentioned year,
D is the length of that part of the chargeable period falling in the year of assessment succeeding the first-mentioned year, and
E is the length of the chargeable period.
(c) In computing profits for the purposes of paragraph (b), section 78 (2) shall apply as if the rate per cent of capital gains tax specified in section 28 (3), were the rate per cent of corporation tax specified in section 21 (1)(b).
(d) As respects an undertaking for collective investment which is not a company—
(i) the capital gains tax which is chargeable on the chargeable gains accruing in a year of assessment to the undertaking shall be reduced so that the amount of such tax, before it is reduced by any credit, relief or other deduction under any provision, other than under this section, of the Tax Acts or the Capital Gains Tax Acts, is the standard rate, for the year of assessment, of the chargeable gains accruing to the undertaking, and
(ii) only so much of income arising or gains accruing to the undertaking shall be chargeable to income tax or capital gains tax, as the case may be, as is or is to be—
(I) paid to, or
(II) accumulated or invested for the benefit of,
unit holders in the undertaking or as would be so paid, accumulated or invested if any gains accruing to the scheme by virtue of subsection (4) were gains on an actual disposal of the assets concerned.
(3) (a) (i) Section 129 shall not apply as respects a distribution received by an undertaking for collective investment which is a company, and the income represented by the distribution shall be equal to the aggregate of the distribution and the amount of the tax credit in respect of the distribution.
(ii) Where an undertaking for collective investment which is a company is entitled to a tax credit in respect of a distribution which is chargeable to corporation tax by virtue of subparagraph (i)—
(I) it may set the credit against the corporation tax, as reduced by virtue of subsection (2)(b), chargeable on its profits for the chargeable period in which the distribution is made and where the credit exceeds that corporation tax the excess shall be paid to it, and
(II) notwithstanding sections 4 and 156 , the income represented by the distribution shall not be franked investment income for the purposes of sections 83 and 157 .
(b) Where a company resident in the State makes a distribution to an undertaking for collective investment which is not a company, the tax credit, if any, attaching to the distribution shall be set against—
(i) the income tax chargeable in respect of income arising to, or
(ii) the capital gains tax, as reduced by subsection (2)(d)(i), chargeable in respect of chargeable gains accruing to,
the undertaking for the year of assessment in which the distribution is made, and—
(I) where the credit exceeds the aggregate of that income tax and capital gains tax, the excess shall be paid to the undertaking, and
(II) a payment shall not be made in respect of the credit under section 136 (4).
(c) Notwithstanding Chapter 4 of Part 8 , that Chapter shall apply to a deposit (within the meaning of that Chapter) which is for the time being beneficially owned by an undertaking for collective investment which is not a company as if such a deposit were not a relevant deposit (within the meaning of that Chapter).
(4) (a) (i) Every asset of an undertaking for collective investment on the day on which a chargeable period of the undertaking ends shall, subject to subparagraph (ii) and paragraphs (b) to (e), be deemed to have been disposed of and immediately reacquired by the undertaking at the asset's market value on that day.
(ii) Subparagraph (i) shall not apply to—
(I) assets to which section 607 applies other than where such assets are held in connection with a contract or other arrangement which secures the future exchange of the assets for other assets to which that section does not apply, and
(II) assets which are strips within the meaning of section 55 .
(b) Subject to paragraphs (c) and (d), chargeable gains or allowable losses, which would otherwise accrue to an undertaking for collective investment on disposals deemed by virtue of paragraph (a) to have been made in a chargeable period (other than a period in which the collective investment business of the undertaking concerned ceases) of the undertaking, shall be treated, subject to subparagraphs (ii) and (iii), as not accruing to it, and instead—
(i) there shall be ascertained the difference (in this subsection referred to as “the net amount”) between the aggregate of those gains and the aggregate of those losses,
(ii) one-seventh of the net amount shall be treated as a chargeable gain or, where it represents an excess of losses over gains, as an allowable loss accruing to the undertaking on disposals of assets deemed to be made in the chargeable period, and
(iii) a further one-seventh shall be treated as a chargeable gain or, as the case may be, as an allowable loss accruing on disposals of assets deemed to be made in each succeeding chargeable period until the whole amount has been accounted for.
(c) For any chargeable period of less than one year, the fraction of one-seventh referred to in paragraph (b)(iii) shall be proportionately reduced and, where this paragraph has applied in relation to any chargeable period before the last such period for which paragraph (b)(iii) applies, the fraction treated as accruing in that last chargeable period shall be reduced so as to secure that no more than the whole of the net amount has been accounted for.
(d) Where the collective investment business of the undertaking concerned ceases before the beginning of the last of the chargeable periods for which paragraph (b)(iii) would apply in relation to a net amount, the fraction of that amount that is treated as accruing in the chargeable period in which the business ceases shall be such as to secure that the whole of the net amount has been accounted for.
(e) Where in a chargeable period an undertaking for collective investment incurs a loss on the disposal (in this paragraph referred to as “the first-mentioned disposal”) of an asset the gain or loss in respect of a deemed disposal of which was included in a net amount to which paragraph (b)(ii) applied for any preceding chargeable period, so much of the allowable loss on the first-mentioned disposal as is equal to the excess of the amount of the loss over the amount which but for paragraph (a) would have been the allowable loss on the first-mentioned disposal shall be treated for the purposes of paragraph (b) as an allowable loss which would otherwise accrue to the undertaking for collective investment on disposals deemed by virtue of paragraph (a) to have been made in the chargeable period.
(5) Notwithstanding the Capital Gains Tax Acts, for the purposes of computing chargeable gains accruing to an undertaking for collective investment—
(a) (i) section 556 , and
(ii) section 607 ,
shall not apply,
(b) section 581 shall as respects—
(i) subsections (1) and (2) of that section, and
(ii) subsection (3) of that section, in so far as a chargeable gain is not thereby disregarded for the purposes of that subsection,
apply as if subsection (4), paragraph (a)(ii) and paragraph (c) had not been enacted, and
(c) if the undertaking was carrying on a collective investment business on the 25th day of May, 1993, it shall be deemed to have acquired each of the assets it holds on the 5th day of April, 1994, apart from assets to which section 607 applies, at the asset's market value on that date.
(6) Subject to subsection (4)(b), where an undertaking for collective investment incurs allowable losses on disposals or deemed disposals of assets in a chargeable period, the amount (if any) by which the aggregate of such allowable losses exceeds the aggregate of chargeable gains on such disposals in the chargeable period shall—
(a) be disregarded for the purposes of section 31 ,
(b) be treated as reducing the income chargeable to income tax or corporation tax arising to the undertaking in that chargeable period, and
(c) to the extent that it is not treated as reducing income arising to the undertaking in that chargeable period, be treated for the purposes of the Capital Gains Tax Acts and this subsection as an allowable loss incurred on a disposal of an asset deemed to be made in the next chargeable period.
(7) (a) In this subsection—
num: 739
paragraphs: —(1) Subject to this section, as respects a payment made on or after the 6th day of April, 1994, in money or money's worth to a unit holder by reason of rights conferred on the holder as a result of holding units in an undertaking for collective investment—
(a) where the holder is not a company, the payment shall not be reckoned in computing the total income of the holder for the purposes of the Income Tax Acts, and
num: 740
paragraphs: —In this Chapter and in Schedules 19 and 20 —
“account period” shall be construed in accordance with subsections (8) to (10) of section 744 ;
“disposal” shall be construed in accordance with section 741 (2);
“distributing fund” shall be construed in accordance with subsections (2) and (3) of section 744 ;
“the equalisation account” has the meaning assigned to it by section 742 (1);
num: 741
paragraphs: —(1) This Chapter shall apply to a disposal by any person of an asset if at the time of the disposal—
(a) the asset constitutes a material interest in an offshore fund which is or has at any material time been a non-qualifying offshore fund, or
(b) the asset constitutes an interest in a company resident in the State or in a unit trust scheme, the trustees of which are at that time resident in the State and at a material time on or after the 1st day of January, 1991, the company or unit trust scheme was a non-qualifying offshore fund and the asset constituted a material interest in that fund,
and, for the purpose of determining whether the asset disposed of is within paragraph (b), subsection (3) of section 584 shall apply as it applies for the purposes of the Capital Gains Tax Acts.
(2) Subject to subsections (3) to (7) and section 742 , there shall be a disposal of an asset for the purposes of this Chapter if there would be such a disposal for the purposes of the Capital Gains Tax Acts.
(3) Notwithstanding anything in paragraph (b) of section 573 (2), where a person dies and the assets of which he or she was competent to dispose include an asset which is or has at any time been a material interest in a non-qualifying offshore fund, then, for the purposes of this Chapter (other than section 742 ) that interest shall, immediately before the acquisition referred to in paragraph (a) of section 573 (2), be deemed to be disposed of by the deceased for such a consideration as is mentioned in that paragraph; but nothing in this subsection shall affect the determination in accordance with subsection (1) of the question whether that deemed disposal is one to which this Chapter applies.
(4) Subject to subsection (3), section 573 shall apply for the purposes of this Chapter as it applies for the purposes of the Capital Gains Tax Acts, and the reference in that subsection to the assets of which a deceased person was competent to dispose shall be construed in accordance with subsection (1) of that section.
(5) Notwithstanding anything in section 586 or 587 , in any case where—
(a) a company (in this subsection referred to as “the acquiring company”) issues shares or debentures in exchange for shares in or debentures of another company (in this subsection referred to as “the acquired company”) and the acquired company is or was at a material time a non qualifying offshore fund and the acquiring company is not such a fund, or
(b) persons are to be treated in consequence of an arrangement as exchanging shares, debentures or other interests in or of an entity which is or was at a material time a non qualifying offshore fund for assets which do not constitute interests in such a fund,
then, section 586 (1) shall not apply for the purposes of this Chapter.
(6) In any case where (apart from subsection (5)) section 586 (1) would apply, the exchange concerned of shares, debentures or other interests in or of a non-qualifying fund shall for the purposes of this Chapter constitute a disposal of interests in the offshore fund for a consideration equal to their market value at the time of the exchange.
(7) (a) In this subsection, “relevant consideration” means consideration which, assuming the application to the disposal of the Capital Gains Tax Acts, would be taken into account in determining the amount of the gain or loss accruing on the disposal, whether that consideration was given by or on behalf of the person making the disposal or by or on behalf of a predecessor in title of the person making the disposal whose acquisition cost represents directly or indirectly the whole or any part of the acquisition cost of the person making the disposal.
(b) For the purposes of this section, a material time in relation to the disposal of an asset shall be any time on or after—
(i) the 6th day of April, 1990, where the asset was acquired on or before that date, or
(ii) where the asset was not so acquired, the earliest date on which any relevant consideration was given for the acquisition of the asset.
num: 742
paragraphs: —(1) For the purposes of this Chapter, an offshore fund operates equalisation arrangements if and at a time when arrangements are in existence which have the result that where—
(a) a person acquires by means of initial purchase a material interest in the fund at some time during a period relevant to the arrangements, and
(b) the fund makes a distribution for a period which begins before the date of the acquisition of that interest,
num: 743
paragraphs: —(1) In this Chapter, references to a material interest in an offshore fund shall be construed as references to such an interest in any of the following—
(a) a company resident outside the State,
(b) a unit trust scheme the trustees of which are not resident in the State, and
(c) any arrangements not within paragraph (a) or (b) which take effect by virtue of the law of a territory outside the State and which under that law create rights in the nature of co-ownership (without restricting that expression to its meaning in the law of the State),
and any reference in this Chapter to an offshore fund shall be construed as a reference to any such company, unit trust scheme or arrangements in which any person has an interest which is a material interest.
(2) Subject to subsections (3) to (9), a person's interest in a company, unit trust scheme or arrangements shall be a material interest if at the time when the person acquired the interest it could be reasonably expected that at some time during the period of 7 years beginning at the time of the acquisition the person would be able to realise the value of the interest (whether by transfer, surrender or in any other manner).
(3) For the purposes of subsection (2), a person shall be deemed to be able to realise the value of an interest if the person can realise an amount which is reasonably approximate to that portion which the interest represents (directly or indirectly) of the market value of the assets of the company or, as the case may be, of the assets subject to the scheme or arrangements.
(4) For the purposes of subsections (2) and (3)—
(a) a person shall be deemed to be able to realise a particular amount if the person is able to obtain that amount either in money or in the form of assets to the value of that amount, and
(b) if at any time an interest in an offshore fund has a market value which is substantially greater than the portion which the interest represents, as mentioned in subsection (3), of the market value at that time of the assets concerned, the ability to realise such a market value of the interest shall not be regarded as an ability to realise such an amount as is referred to in that subsection.
(5) An interest in a company, scheme or arrangements shall be deemed not to be a material interest if it is either—
(a) an interest in respect of any loan capital or debt issued or incurred for money which in the ordinary course of business of banking is loaned by a person carrying on that business, or
(b) a right arising under a policy of insurance.
(6) Shares in a company within subsection (1)(a) (in this section referred to as “the overseas company”) shall not constitute a material interest if—
(a) the shares are held by a company and the holding of them is necessary or desirable for the maintenance and development of a trade carried on by the company or a company associated with it,
(b) the shares confer at least 10 per cent of the total voting rights in the overseas company and a right in the event of a winding up to at least 10 per cent of the assets of that company remaining after the discharge of all liabilities having priority over the shares,
(c) not more than 10 persons hold shares in the overseas company and all the shares in that company confer both voting rights and a right to participate in the assets on a winding up, and
(d) at the time of its acquisition of the shares the company had such a reasonable expectation as is referred to in subsection (2) by reason only of the existence of either or both—
(i) an arrangement under which, at some time within the period of 7 years beginning at the time of acquisition, that company may require the other participators to purchase its shares, and
(ii) provisions of either an agreement between the participators or the constitution of the overseas company under which the company will be wound up within a period which is or is reasonably expected to be shorter than the period referred to in subsection (2),
and in this paragraph “participators” means the persons holding shares which are within paragraph (c).
(7) For the purposes of subsection (6)(a), a company shall be associated with another company if one company has control (within the meaning of section 432 ) of the other company or both companies are under the control (within the meaning of that section) of the same person or persons.
(8) An interest in a company within subsection (1)(a) shall be deemed not to be a material interest at any time when the following conditions are satisfied—
(a) that the holder of the interest has the right to have the company wound up, and
(b) that in the event of a winding up the holder is, by virtue of the interest and any other interest which the holder then holds in the same capacity, entitled to more than 50 per cent of the assets remaining after the discharge of all liabilities having priority over the interest or interests concerned.
(9) The market value of any asset for the purposes of this Chapter shall be determined in the like manner as it would be determined for the purposes of the Capital Gains Tax Acts except that, in the case of an interest in an offshore fund for which there are separate published buying and selling prices, section 548 (5) shall apply with any necessary modifications for determining the market value of the interest for the purposes of this Chapter.
num: 744
paragraphs: —(1) For the purposes of this Chapter, an offshore fund shall be a non-qualifying fund except during an account period of the fund in respect of which the fund is certified by the Revenue Commissioners as a distributing fund.
num: 745
paragraphs: —(1) Where a disposal to which this Chapter applies gives rise, in accordance with Schedule 20 , to an offshore income gain, then, subject to this section, the amount of that gain shall be treated for the purposes of the Tax Acts as—
(a) income arising at the time of the disposal to the person making the disposal, and
num: 746
paragraphs: —(1) Subject to subsection (2), section 579 shall apply in relation to its application to offshore income gains as if—
(a) for any reference to a chargeable gain there were substituted a reference to an offshore income gain,
(b) in subsection (2) of that section—
(i) for “the Capital Gains Tax Acts” there were substituted “the Tax Acts”, and
(ii) for “capital gains tax under section 31 ” there were substituted “income tax by virtue of section 745 ”,
and
(c) in subsection (5) of that section—
(i) for “any capital gains tax payable” there were substituted “any income tax or corporation tax payable”, and
(ii) for “for the purposes of income tax” there were substituted “for the purposes of income tax, corporation tax”.
(2) Where in any year of assessment—
(a) under section 579 (3), as it applies apart from subsection (1), a chargeable gain is to be attributed to a beneficiary, and
(b) under section 579 (3), as applied by subsection (1), an offshore income gain is also to be attributed to the beneficiary,
section 579 shall apply as if it required offshore income gains to be attributed before chargeable gains.
(3) Section 590 shall apply in relation to its application to offshore income gains as if—
(a) for any reference to a chargeable gain there were substituted a reference to an offshore income gain,
(b) for the reference in subsection (6) of that section to capital gains tax there were substituted a reference to income tax or corporation tax, and
(c) paragraphs (b) and (c) of subsection (4), and subsection (7), of that section were deleted.
(4) Section 917 shall apply in relation to offshore income gains as if—
(a) for “chargeable gains” there were substituted “offshore income gains”, and
(b) for “capital gains tax under section 579 or 590 ” there were substituted “income tax or corporation tax under section 579 or 590 , as applied by section 746 ”.
(5) Subject to subsection (6), for the purpose of determining whether an individual ordinarily resident in the State has a liability for income tax in respect of an offshore income gain arising on a disposal to which this Chapter applies where the disposal is made by a person resident or domiciled out of the State—
(a) sections 806 and 807 shall apply as if the offshore income gain arising to the person resident or domiciled out of the State constituted income becoming payable to such person, and
(b) accordingly any reference in sections 806 and 807 to income of, or payable or arising to, such person shall include a reference to the offshore income gain arising to such person by reason of the disposal to which this Chapter applies.
(6) To the extent that an offshore income gain is treated by virtue of subsection (1) or (3) as having accrued to any person resident or ordinarily resident in the State, that gain shall not be deemed to be the income of any individual for the purposes of sections 806 and 807 or Part 31 .
num: 747
paragraphs: —(1) This section shall apply where a disposal (being a disposal to which this Chapter applies) gives rise to an offshore income gain and, if that disposal also constitutes the disposal of the interest concerned for the purposes of the Capital Gains Tax Acts, that disposal is referred to in this section as “the disposal for the purposes of the Capital Gains Tax Acts”.
num: 748
paragraphs: —(1) In this Chapter and in Schedule 21 —
“distribution” has the same meaning as in the Corporation Tax Acts;
“interest” includes a distribution and any dividend which is not such a distribution and, in applying references to interest in relation to such a distribution, “gross interest” or “gross amount” means the distribution together with the tax credit to which the recipient of the distribution is entitled in respect of it and “net interest” means the distribution exclusive of any such tax credit;
“person” includes any body of persons, and references to a person entitled to any exemption from income tax include, in a case of an exemption expressed to apply to income of a trust or fund, references to the persons entitled to make claims for the granting of that exemption;
“securities” includes stocks and shares;
securities shall be deemed to be similar if they entitle their holders to the same rights against the same persons as to capital and interest and the same remedies for the enforcement of those rights, notwithstanding any difference in the total nominal amounts of the respective securities or in the form in which they are held or the manner in which they can be transferred.
(2) Subject to this section, this Chapter shall apply in the case of a purchase by a person (in this Chapter referred to as “the first buyer”) of any securities and their subsequent sale by the first buyer, where the result of the transaction is that interest becoming payable in respect of the securities (in this Chapter referred to as “the interest”) is receivable by the first buyer.
(3) This Chapter shall not apply in the case where—
(a) the time elapsing between the purchase by the first buyer and the first buyer's taking steps to dispose of the securities exceeds 6 months, or
(b) that time exceeds one month and in the opinion of the Revenue Commissioners the purchase and sale were each effected at the current market price and the sale was not effected in pursuance of an agreement or arrangement made before or at the time of the purchase.
(4) An appeal shall lie to the Appeal Commissioners with respect to any opinion of the Revenue Commissioners under subsection (3)(b) in the like manner as an appeal would lie against an assessment to income tax, and the provisions of the Income Tax Acts relating to appeals shall apply accordingly.
(5) The reference in subsection (3) to the first buyer taking steps to dispose of the securities shall be construed—
(a) if the first buyer sold the securities in the exercise of an option the first buyer had acquired, as a reference to the first buyer's acquisition of the option, and
(b) in any other case, as a reference to the first buyer selling the securities.
(6) (a) For the purposes of this Chapter but subject to paragraph (b), a sale of securities similar to, and of the like nominal amount as, securities previously bought (in this subsection referred to as “the original securities”) shall be equivalent to a sale of the original securities and subsection (5) shall apply accordingly, and, where the first buyer bought parcels of similar securities at different times, a subsequent sale of any of the securities shall, in so far as may be, be related to the last of the parcels to be bought, and then to the last but one, and so on.
(b) A person shall be under no greater liability to tax by virtue of this subsection than would have been the case if instead of selling the similar securities the person had sold the original securities.
(7) Where, at the time when a trade is or is deemed to be set up and commenced, any securities form part of the trading stock belonging to the trade, those securities shall be treated for the purposes of this section as having been sold at that time in the open market by the person to whom they belonged immediately before that time and as having been purchased at that time in the open market by the person thereafter engaged in carrying on the trade, and, subject to this subsection, where there is a change in the persons engaged in carrying on a trade which is not a change on which the trade is deemed to be discontinued, this section shall apply in relation to the person so engaged after the change as if anything done to or by that person's predecessor had been done to or by that person.
num: 749
paragraphs: —(1) Subject to this section, where the first buyer is engaged in carrying on a trade which consists of or comprises dealings in securities, then, in computing for any of the purposes of the Tax Acts the profits arising from or loss sustained in the trade, the price paid by the first buyer for the securities shall be reduced by the appropriate amount in respect of the interest determined in accordance with Schedule 21 .
(2) Where in the opinion of the Revenue Commissioners the first buyer is bona fide carrying on the business of a discount house in the State, or where the first buyer is a member of a stock exchange in the State who is recognised by the committee of that stock exchange as carrying on the business of a dealer, subsection (1) shall not apply in relation to securities bought in the ordinary course of such business.
num: 750
paragraphs: —Where the first buyer is entitled under any enactment to an exemption from tax which apart from this section would extend to the interest, then, subject to this section, the exemption shall not extend to an amount equal to the appropriate amount in respect of the interest determined in accordance with Schedule 21 ; but, if the first buyer is so entitled and any annual payment is payable by the first buyer out of the interest, the annual payment shall be deemed as to the whole of that payment—
(a) to be paid out of profits or gains not brought into charge to tax, and section 238 shall apply accordingly, and
(b) for the purposes of corporation tax, not to be a payment which is a charge on income.
num: 751
paragraphs: —(1) Where the first buyer carries on a trade not within section 749 , then, in ascertaining—
(a) for the purposes of income tax, whether any, and if so what, repayment of tax is to be made to the first buyer under section 381 by reference to any loss sustained in the trade for the year of assessment the first buyer's income for which includes the interest, there shall be disregarded—
num: 752
paragraphs: —(1) For the purposes of this Chapter and Schedule 22 —
(a) references to a dividend shall, except where the context otherwise requires, be construed as including references to a distribution, and to an amount which under any enactment is to be treated as a distribution, made on or after the 6th day of April, 1976,
(b) in relation to such a distribution, including an amount to be so treated as a distribution, references to a dividend being paid or becoming payable or being received or becoming receivable on shares shall be construed as references to a distribution or an amount to be so treated as a distribution being made or received in respect of shares or securities, and
(c) in applying references to a dividend in relation to a distribution, “gross amount” or “gross dividend” means the distribution together with the tax credit to which the recipient of the distribution is entitled in respect of it, and “net amount” or “net dividend” means the distribution exclusive of any such tax credit,
and in this subsection “distribution” has the same meaning as in the Corporation Tax Acts.
num: 753
paragraphs: —Where a person or a body of persons carries on a trade, other than such a trade mentioned in section 752 (3), and the person's or the body of persons' income for any year of assessment or, as the case may be, accounting period includes a dividend the net amount of which would, if the trade were such a trade mentioned in section 752 (3), be required to any extent to be taken into account as a trading receipt which has not borne tax, then, in ascertaining—
(a) for the purposes of income tax, whether any or what repayment of tax is to be made to that person or body of persons under section 381 by reference to any loss sustained in the trade for that year of assessment, there shall be disregarded—
(i) the gross amount corresponding to so much of that net amount as would have been required to be taken into account as a trading receipt which has not borne tax, and
(ii) any tax credit in respect of the amount required to be disregarded under subparagraph (i);
(b) for the purposes of corporation tax, the income or profits against which the loss may be set off under section 157 or 396 , there shall be disregarded the gross amount corresponding to so much of that net amount as would have been required to be taken into account as a trading receipt which has not borne tax.
num: 754
paragraphs: —(1) In this Chapter—
“the commencement of the patent”, in relation to a patent, means the date from which the patent rights become effective;
“income from patents” means—
(a) any royalty or other sum paid in respect of the user of a patent, and
(b) any amount on which tax is payable for any chargeable period by virtue of this Chapter;
“Irish patent” means a patent granted under the laws of the State;
“patent rights” means the right to do or to authorise the doing of anything which but for that right would be an infringement of a patent;
“the writing-down period” has the meaning assigned to it by section 755 (2).
(2) In this Chapter, any reference to the sale of part of patent rights includes a reference to the grant of a licence in respect of the patent in question, and any reference to the purchase of patent rights includes a reference to the acquisition of a licence in respect of a patent; but, if a licence granted by a person entitled to any patent rights is a licence to exercise those rights to the exclusion of the grantor and all other persons for the whole of the remainder of the term for which the rights subsist, the grantor shall be treated for the purposes of this Chapter as thereby selling the whole of the rights.
(3) Where, under section 77 of the Patents Act, 1992 , or any corresponding provisions of the law of any country outside the State, an invention which is the subject of a patent is made, used, exercised or vended by or for the service of the State or the government of the country concerned, this Chapter shall apply as if the making, user, exercise or vending of the invention had taken place in pursuance of a licence, and any sums paid in respect thereof shall be treated accordingly.
num: 755
paragraphs: —(1) Where a person incurs capital expenditure on the purchase of patent rights, there shall, subject to and in accordance with this Chapter, be made to that person writing-down allowances in respect of that expenditure during the writing-down period; but no writing-down allowance shall be made to a person in respect of any expenditure unless—
(a) the allowance is to be made to the person in taxing the person's trade, or
(b) any income receivable by the person in respect of the rights would be liable to tax.
(2) (a) Subject to paragraphs (b) to (d), the writing-down period shall be the 17 years beginning with the chargeable period related to the expenditure.
(b) Where the patent rights are purchased for a specified period, paragraph (a) shall apply with the substitution for the reference to 17 years of a reference to 17 years or the number of years comprised within that period, whichever is the less.
(c) Where the patent rights purchased begin one complete year or more after the commencement of the patent and paragraph (b) does not apply, paragraph (a) shall apply with the substitution for the reference to 17 years of a reference to 17 years less the number of complete years which, when the rights begin, have elapsed since the commencement of the patent or, if 17 complete years have so elapsed, of a reference to one year.
(d) For the purposes of this subsection, any expenditure incurred for the purposes of a trade by a person about to carry on the trade shall be treated as if that expenditure had been incurred by that person on the first day on which that person carries on the trade unless before that first day that person has sold all the patent rights on the purchase of which the expenditure was incurred.
num: 756
paragraphs: —(1) Where a person incurs capital expenditure on the purchase of patent rights and, before the end of the writing-down period, any of the following events occurs—
(a) the rights come to an end without being subsequently revived;
(b) the person sells all those rights or so much of those rights as the person still owns;
(c) the person sells part of those rights and the net proceeds of the sale (in so far as they consist of capital sums) are not less than the amount of the capital expenditure remaining unallowed;
no writing-down allowance shall be made to that person for the chargeable period related to the event or for any subsequent chargeable period.
(2) Where a person incurs capital expenditure on the purchase of patent rights and, before the end of the writing-down period, either of the following events occurs—
(a) the rights come to an end without being subsequently revived;
(b) the person sells all those rights or so much of those rights as the person still owns, and the net proceeds of the sale (in so far as they consist of capital sums) are less than the amount of the capital expenditure remaining unallowed;
there shall, subject to and in accordance with this Chapter, be made to that person for the chargeable period related to the event an allowance (in this Chapter referred to as a “balancing allowance”) equal to—
(i) if the event is the rights coming to an end, the amount of the capital expenditure remaining unallowed, and
(ii) if the event is a sale, the amount of the capital expenditure remaining unallowed less the net proceeds of the sale.
(3) Where a person who has incurred capital expenditure on the purchase of patent rights sells all or any part of those rights and the net proceeds of the sale (in so far as they consist of capital sums) exceed the amount of the capital expenditure remaining unallowed, if any, there shall, subject to and in accordance with this Chapter, be made on that person for the chargeable period related to the sale a charge (in this Chapter referred to as a “balancing charge”) on an amount equal to—
(a) the excess, or
(b) where the amount of the capital expenditure remaining unallowed is nil, the net proceeds of the sale.
(4) Where a person who has incurred capital expenditure on the purchase of patent rights sells a part of those rights and subsection (3) does not apply, the amount of any writing-down allowance made in respect of that expenditure for the chargeable period related to the sale or any subsequent chargeable period shall be the amount determined by—
(a) subtracting the net proceeds of the sale (in so far as they consist of capital sums) from the amount of the expenditure remaining unallowed at the time of the sale, and
(b) dividing the result by the number of complete years of the writing-down period which remained at the beginning of the chargeable period related to the sale,
and so on for any subsequent sales.
(5) References in this section to the amount of any capital expenditure remaining unallowed shall in relation to any event be construed as references to the amount of that expenditure less any writing-down allowances made in respect of that expenditure for chargeable periods before the chargeable period related to that event, and less also the net proceeds of any previous sale by the person who incurred the expenditure of any part of the rights acquired by the expenditure, in so far as those proceeds consist of capital sums.
(6) Notwithstanding subsections (1) to (5)—
(a) no balancing allowance shall be made in respect of any expenditure unless a writing-down allowance has been, or, but for the happening of the event giving rise to the balancing allowance, could have been, made in respect of that expenditure, and
(b) the total amount on which a balancing charge is made in respect of any expenditure shall not exceed the total writing-down allowances actually made in respect of that expenditure less, if a balancing charge has previously been made in respect of that expenditure, the amount on which that charge was made.
num: 757
paragraphs: —(1) (a) Subject to paragraphs (b) and (c), where a person resident in the State sells any patent rights and the net proceeds of the sale consist wholly or partly of a capital sum, that person shall, subject to this Chapter, be charged to tax under Case IV of Schedule D for the chargeable period in which the sum is received by that person and for successive chargeable periods, being charged in each period on the same fraction of the sum as the period is of 6 years (or such less fraction as has not already been charged).
(b) Where the person by notice in writing served on the inspector not later than 12 months after the end of the chargeable period in which the capital sum was received elects that the whole of that sum shall be charged to tax for the chargeable period in which the sum is received, it shall be charged to tax accordingly.
(c) Where the person by notice in writing served on the inspector not later than 12 months after the end of the chargeable period in which the capital sum was received applies to have the fraction referred to in paragraph (a) determined as being other than the same fraction as the chargeable period is of 6 years, then, if it appears to the Revenue Commissioners that hardship is likely to arise having regard to all the circumstances of the case unless a direction is given under this paragraph, they may direct that the fraction shall be the same fraction of the sum as the chargeable period is of a number of years other than 6 years, and that the charge shall be spread accordingly.
(2) (a) Where a person not resident in the State sells any patent rights and the net proceeds of the sale consist wholly or partly of a capital sum, and the patent is an Irish patent, then, subject to this Chapter—
num: 758
paragraphs: —(1) Notwithstanding section 81 , in computing the profits or gains of any trade, there shall be allowed to be deducted as expenses any fees paid or expenses incurred in obtaining for the purposes of the trade the grant of a patent or an extension of the term of a patent.
(2) Where—
(a) a person, otherwise than for the purposes of a trade carried on by the person, pays any fees or incurs any expenses in connection with the grant or maintenance of a patent or the obtaining of an extension of a term of a patent, and
(b) those fees or expenses would, if they had been paid or incurred for the purposes of a trade, have been allowable as a deduction in estimating the profits or gains of the trade,
there shall be made to the person for the chargeable period in which those fees or expenses were paid or incurred an allowance equal to the amount of those fees or expenses.
(3) Where a patent is granted in respect of any invention, an allowance equal to so much of the net amount of any expenses incurred by an individual who, whether alone or in conjunction with any other person, actually devised the invention as is properly ascribable to the devising of that invention (not being expenses in respect of which, or of assets representing which, an allowance is to be made under any other provision of the Tax Acts) shall be made to that individual for the year of assessment in which the expenses were incurred.
num: 759
paragraphs: —(1) In this section, any reference to the tax payable by a person includes, in cases where the income of an individual's spouse is deemed to be the income of the individual, references to the income tax payable by the individual's spouse.
(2) Where a royalty or other sum to which section 237 or 238 applies is paid in respect of the user of a patent and that user extended over a period of 6 complete years or more, the person receiving the payment may require that the tax payable by that person by reason of the receipt of that sum shall be reduced so as not to exceed the total amount of tax which would have been payable by that person if that royalty or sum had been paid in 6 equal instalments at yearly intervals, the last of which was paid on the date on which the payment was in fact made.
(3) Subsection (2) shall apply in relation to a royalty or other sum where the period of the user is 2 complete years or more but less than 6 complete years as it applies to the royalties and sums mentioned in that subsection, but with the substitution for the reference to 6 equal instalments of a reference to so many equal instalments as there are complete years comprised in that period.
(4) Nothing in this section shall apply to any sum to which section 238 applies by virtue of section 757 .
num: 760
paragraphs: —(1) In this section, any references to tax paid or borne or payable or to be paid or borne by a person include, in cases where the income of an individual's spouse is deemed to be income of the individual, references to the income tax paid or borne, or payable or to be paid or borne, by the individual's spouse.
(2) Where a person on whom, by reason of the receipt of a capital sum, a charge is to be, or would otherwise be, made under section 757 dies or, being a body corporate, commences to be wound up—
(a) no sums shall be charged under that section on that person for any chargeable period subsequent to that in which the death takes place or the winding up commences, and
(b) the amount to be charged for the chargeable period in which the death occurs or the winding up commences shall be increased by the total amounts which but for the death or winding up would have been charged for subsequent chargeable periods.
(3) (a) In the case of a death, the personal representatives may, by notice in writing served on the inspector not later than 21 days after notice has been served on them of the charge to be made by virtue of this section, require that the tax payable out of the estate of the deceased by reason of the increase provided for by this section shall be reduced so as not to exceed the amount determined in accordance with paragraph (b).
(b) The amount referred to in paragraph (a) shall be the total amount of tax which would have been payable by the deceased or out of his or her estate by reason of the operation of section 757 in relation to the capital sum if, instead of the amount to be charged for the year in which the death occurs being increased by the whole amount of the sums charged for subsequent years, the several amounts to be charged for the years beginning with that in which the capital sum was received and ending with that in which the death occurred had each been increased by that whole amount divided by the number of those years.
(4) (a) In this subsection, “the relevant period” has the same meaning as in Part 43 .
(b) Where, under Chapter 4 of Part 9 as modified by Part 43 , charges under section 757 are to be made on 2 or more persons as being the persons for the time being carrying on a trade, and the relevant period comes to an end, subsection (2) shall apply in relation to the ending of the relevant period as it applies where a body corporate commences to be wound up.
(c) Where paragraph (b) applies—
(i) the additional sums which under subsection (2) are to be charged for the year in which the relevant period ends shall be aggregated and apportioned among the members of the partnership immediately before the ending of the relevant period according to their respective interests in the partnership profits at that time and each partner (or, if that partner is dead, his or her personal representatives) charged for his or her proportion, and
(ii) each partner (or, if that partner is dead, his or her personal representatives) shall have the same right to require a reduction of the total tax payable by him or her or out of his or her estate by reason of the increase provided for by this section as would have been exercisable by the personal representatives under subsection (3) in the case of a death, and that subsection shall apply accordingly but as if the reference to the amount of tax which would have been payable by the deceased or out of his or her estate in the event mentioned in that subsection were a reference to the amount of tax which would in that event have been paid or borne by the partner in question or out of his or her estate.
num: 761
paragraphs: —(1) An allowance or charge under this Chapter shall be made to or on a person in taxing the person's trade if—
num: 762
paragraphs: —(1) Subject to subsection (2), Chapter 4 of Part 9 shall apply as if this Chapter were contained in that Part, and any reference in the Tax Acts to any capital allowance to be given by means of discharge or repayment of tax and to be available or available primarily against a specified class of income shall include a reference to any capital allowance given in accordance with section 761 (2).
(2) In Chapter 4 of Part 9 , as applied by virtue of subsection (1) to patent rights—
(a) the reference in section 312 (5) (a) (i) to the sum mentioned in paragraph (b) shall in the case of patent rights be construed as a reference to the amount of the capital expenditure on the acquisition of the patent rights remaining unallowed, computed in accordance with section 756 , and
(b) the reference in section 316 (1) to any expenditure or sum in the case of which a deduction of tax is to be or may be made under section 237 or 238 shall not include a sum in the case of which such a deduction is to be or may be so made by virtue of section 757 .
num: 763
paragraphs: —(1) In this section—
“designated area” means an area designated by order under section 2 of the Continental Shelf Act, 1968 ;
“exploring for specified minerals” means searching in the State for deposits of specified minerals or testing such deposits or winning access to such deposits, and includes the systematic searching for areas containing specified minerals and searching by drilling or other means for specified minerals within those areas, but does not include operations in the course of developing or working a mine;
“licence” means—
(a) an exploration licence,
(b) a petroleum prospecting licence,
(c) a petroleum lease, or
(d) a reserved area licence, duly granted before the 11th day of June, 1968, in respect of an area in the State, or on or after the 11th day of June, 1968, in respect of either or both a designated area and an area in the State, and which was or may be so granted subject to such licensing terms as were presented to each House of the Oireachtas, and includes any such licence the terms of which have been duly amended or varied from time to time;
“licensed area” means an area in respect of which a licence is in force;
“mine” means an underground excavation for the purpose of getting specified minerals;
“petroleum” includes—
(a) any mineral oil or relative hydrocarbon and natural gas and other liquid or gaseous hydrocarbons and their derivatives or constituent substances existing in its natural condition in strata (including, without limitation, distillate, condensate, casinghead gasoline and such other substances as are ordinarily produced from oil and gas wells), and
(b) any other mineral substance contained in oil or natural gas brought to the surface with them in the normal process of extraction, but does not include coal and bituminous shales and other stratified deposits from which oil can be extracted by distillation,
won or capable of being won under the authority of a licence;
“petroleum exploration activities” means activities of a person carried on by the person or on behalf of the person in searching for deposits in a licensed area, in testing or appraising such deposits or in winning access to such deposits for the purposes of such searching, testing and appraising, where such activities are carried on under a licence (other than a petroleum lease) authorising the activities and held by the person or, if the person is a company, held by the company or a company associated with it;
“petroleum extraction activities” means activities of a person carried on by the person or on behalf of the person under a petroleum lease authorising the activities and held by the person or, if the person is a company, held by the company or a company associated with it in—
(a) winning petroleum from a relevant field, including searching in that field for, and winning access to, such petroleum,
(b) transporting as far as dry land petroleum so won from a place not on dry land, or
(c) effecting the initial treatment and storage of petroleum so won from the relevant field;
“relevant field” means an area in respect of which a licence, being a petroleum lease, is in force;
“specified minerals” means the following minerals occurring in non-bedded deposits of such minerals, that is, barytes, felspar, serpentinous marble, quartz rock, soapstone, ores of copper, ores of gold, ores of iron, ores of lead, ores of manganese, ores of molybdenum, ores of silver, ores of sulphur and ores of zinc.
(2) In sections 764 and 765 —
“asset” includes part of an asset;
“expenditure on scientific research” does not include any expenditure incurred in the acquisition of rights in or arising out of scientific research;
“scientific research” means, subject to subsections (3) and (4), any activities in the fields of natural or applied science for the extension of knowledge.
(3) For the purposes of the definition of “scientific research”, that definition shall, subject to subsection (4), be construed as including and be deemed always to have included a provision excluding from that definition the following activities—
(a) exploring for specified minerals,
(b) petroleum exploration activities, and
(c) petroleum extraction activities.
(4) As respects activities carried on before the 29th day of January, 1992, subsection (3) shall not apply for the purpose of computing any charge to income tax or corporation tax on a person who has before the 3rd day of December, 1991, made a claim in respect of expenditure incurred in exploring for specified minerals or in respect of petroleum exploration activities or in respect of petroleum extraction activities.
(5) For the purposes of sections 764 and 765 , expenditure shall not be regarded as incurred by a person in so far as it is or is to be met directly or indirectly out of moneys provided by the Oireachtas or by any person other than the first-mentioned person.
(6) The same expenditure shall not be taken into account for any of the purposes of section 764 or 765 in relation to more than one trade.
num: 764
paragraphs: —(1) Where a person carrying on a trade either—
(a) incurs non-capital expenditure on scientific research relating to the trade, or
(b) pays any sum to—
(i) a body carrying on scientific research and approved for the purposes of this section by the Minister for Finance, or
(ii) an Irish university,
in order that such body or university may undertake scientific research,
then, the expenditure so incurred or the sum so paid shall be deducted as an expense in computing the profits or gains of the trade.
(2) Where a person carrying on a trade—
(a) incurs non-capital expenditure on scientific research or pays any sum to a body or university referred to in subsection (1)(b) in order that the body or university may undertake scientific research, and
(b) the expenditure so incurred or the sum so paid is not deductible as an expense under subsection (1) because the scientific research is not related to any trade being carried on by the person,
then, the expenditure so incurred or the sum so paid shall be deducted as an expense in computing the profits or gains of the person's trade.
num: 765
paragraphs: —(1) Where a person—
(a) incurs capital expenditure on scientific research,
(b) (i) is then carrying on a trade to which such expenditure relates, or
(ii) subsequently sets up and commences a trade which is related to such research,
(c) applies to the inspector for an allowance under this subsection in respect of such expenditure, and
(d) so applies—
(i) in the case where the expenditure was incurred while carrying on the trade, within 24 months after the end of the chargeable period in which it was incurred, or
(ii) in the case where the expenditure was incurred before the setting up and commencement of the trade, within 24 months after the end of the chargeable period in which the trade was set up and commenced,
then, subject to this section, there shall be made in taxing the trade for the chargeable period mentioned in whichever of subparagraphs (i) and (ii) of paragraph (d) is applicable an allowance equal to the amount of the expenditure.
(2) Where a person carrying on a trade incurs capital expenditure on scientific research in respect of which an allowance may not be made under subsection (1) because the scientific research is not related to any trade being carried on by that person, there shall be made in taxing that person's trade for the chargeable period in which the expenditure was incurred an allowance equal to the amount of the expenditure.
(3) Where an asset representing capital expenditure on scientific research ceases at any time from any cause whatever to be used for such research, relating to the trade carried on by the person who incurred the expenditure, then—
(a) an amount equal to the allowance made under this section in respect of that expenditure, or, if the value of the asset immediately before the cessation is less than that allowance, equal to that value, shall be treated as a trading receipt of the trade accruing immediately before the cessation, and
(b) in the application of section 284 to an allowance made in respect of the asset for any chargeable period after that in which the cessation takes place, the actual cost of the asset shall be treated as being reduced by the amount of the allowance effectively made.
(4) Where an allowance under this section is made to a person for any chargeable period in respect of expenditure represented wholly or partly by assets, no allowance in respect of those assets shall be made to that person under section 85 or 284 for that chargeable period.
(5) Section 304 (4) shall apply in relation to an allowance under subsection (1) or (2) as it applies in relation to allowances to be made under Part 9 .
num: 766
paragraphs: —(1) (a) In this section—
“appropriate inspector” has the same meaning as in section 950 ;
“base period” means the period of 12 months ending immediately before the commencement of the first relevant period;
“expenditure on research and development” means non-capital expenditure incurred by a company, being—
(i) an amount equal to 115 per cent of the aggregate of the amounts of—
(I) such part of the emoluments paid by the company to employees of the company engaged in the carrying out of research and development activities related to the company's trade as is laid out for the purposes of those activities, and
(II) expenditure incurred by the company on materials or goods used solely by the company in the carrying out of research and development activities related to the company's trade,
but where expenditure referred to in clauses (I) and (II) is incurred by a company (in this definition referred to as “the first-mentioned company”) which is a member of a group on behalf of another company which is a member of the group, the other company shall be treated for the purposes of the Corporation Tax Acts as having incurred the expenditure and the first-mentioned company shall be treated for those purposes as not having incurred the expenditure, and
(ii) a sum paid to another person, not being a person connected with the company, in order that such person may carry out research and development activities related to the company's trade;
“group base expenditure on research and development” means the aggregate of the amounts of expenditure on research and development incurred in the base period by qualified companies which throughout that period are members of the group;
“group expenditure on research and development”, in relation to a relevant period, means the aggregate of the amounts of expenditure on research and development—
(i) incurred, or treated as incurred, in the relevant period by qualified companies which throughout the relevant period are members of the group, and
(ii) certified as having been incurred by those companies in certificates given to the companies by persons who are auditors of the companies appointed under section 160 of the Companies Act, 1963 , or under the law of any territory where any such company is duly incorporated and which corresponds to that section;
“qualified company”, in relation to a relevant period, means a company which—
(i) throughout the relevant period carries on a trade which consists wholly or mainly of the manufacture of goods in the State, but trading operations of a company shall not be treated for the purposes of this section as the manufacture of goods in the State by virtue of any section of the Tax Acts other than section 443 ,
(ii) holds a certificate given to it by Forbairt which certifies that in the opinion of Forbairt the research and development activities which are proposed to be carried on by or on behalf of the company have the potential to achieve the purposes set out in paragraph (iii) of the definition of “research and development activities”,
(iii) notifies the appropriate inspector before the commencement of the research and development activities of its intention to carry out such activities or to have such activities carried out on its behalf,
(iv) maintains a record of expenditure incurred in the carrying on by it or on its behalf of research and development activities in accordance with a system approved by Forbairt of recording such expenditure, and
(v) does not, at any time during the period commencing on the 10th day of May, 1995, and ending 3 years after the commencement of the first relevant period, raise any amount through the issue of eligible shares within the meaning of section 488 ;
“qualifying expenditure on research and development attributable to a qualified company”, in relation to a relevant period, means so much of the amount of qualifying group expenditure on research and development in the relevant period as bears to that amount the same proportion as the amount of expenditure on research and development incurred by the company in the relevant period bears to the group expenditure on research and development in the relevant period;
“qualifying group expenditure on research and development”, in relation to a relevant period, means an amount determined by the formula—
E − (D + £25,000)
where—
E is the amount of group expenditure on research and development in the relevant period, and
D is—
(i) where the relevant period commences before the 1st day of June, 1996, the greater of—
(I) the amount of group base expenditure on research and development, and
(II) the amount of group expenditure on research and development in any relevant period preceding that relevant period,
and
(ii) where the relevant period commences on or after the 1st day of June, 1996, the amount of group base expenditure on research and development,
but—
(A) the qualifying group expenditure on research and development in relation to a relevant period shall not in any case exceed £150,000, and
(B) the aggregate of the amounts of qualifying group expenditure on research and development in all relevant periods shall not exceed the aggregate of the amounts specified in certificates given by Forbairt to companies which are members of the group;
“relevant period” means—
(i) in the case of a company which is a member of a group the end of the accounting periods of the members of which coincide, the period of 12 months throughout which one or more members of the group carried on a trade and ending at the end of the first accounting period of the company which commences on or after the 1st day of June, 1995,
(ii) in the case of a company which is a member of a group the end of the accounting periods of which do not coincide, the period specified in a notice in writing made jointly by companies which are members of the group and given to the appropriate inspector within a period of 9 months after the end of the period so specified, being a period of 12 months throughout which one or more members of the group carries on a trade and ending at the end of the first accounting period of a company which is a member of the group which accounting period commences on or after the 1st day of June, 1995, and
(iii) in any other case, the period of 12 months commencing on the 1st day of June, 1995,
and each subsequent period of 12 months, commencing immediately after the end of the preceding relevant period, which falls wholly in the period of 3 years commencing at the beginning of the first relevant period, but a period shall not be a relevant period if it commences on or after the 1st day of June, 1999;
“research and development activities” means systematic, investigative or experimental activities which—
(i) are carried on wholly or mainly in the State,
(ii) involve innovation or technical risk, and
(iii) are carried on for the purpose of—
(I) acquiring new knowledge with a view to that knowledge having a specific commercial application, or
(II) creating new or improved materials, products, devices, processes or services,
and other activities carried on wholly or mainly in the State for a purpose directly related to the carrying on of activities of the kind referred to in paragraph (iii), but activities that are carried on by means of—
(A) market research, market testing, market development, sales promotion or consumer surveys,
(B) quality control,
(C) the making of cosmetic modifications or stylistic changes to products, processes or production methods,
(D) management studies or efficiency surveys, or
(E) research in social sciences, arts or humanities,
shall not be research and development activities.
(b) For the purposes of this section—
(i) 2 companies shall be deemed to be members of a group if one company is an associated company (within the meaning of section 432 ) of the other company;
(ii) a company and all its associated companies shall form a group; but a company which is not a member of a group shall be treated as if it were a member of a group which consists of that company, and accordingly references to group expenditure on research and development, group base expenditure and qualifying group expenditure on research and development shall be construed as if they were respectively references to expenditure on research and development, base expenditure and qualifying expenditure on research and development;
(iii) systematic, investigative or experimental activities, or other activities, shall be regarded as carried on wholly or mainly in the State only if not less than 75 per cent of the total amount expended in the course of such activities is expended in the State;
(iv) as respects any relevant period commencing before the 1st day of June, 1996, expenditure on research and development shall not be regarded as having been incurred by a company which is a member of a group if any expenditure on research and development incurred in a relevant period or in the base period by a company which is a member of the group has been or is to be met directly or indirectly by the State or any person other than a company which is a member of the group;
(v) as respects any relevant period commencing on or after the 1st day of June, 1996, expenditure on research and development shall not be regarded as having been incurred in a relevant period by a company which is a member of a group if—
(I) in the relevant period the aggregate of amounts received by companies which are members of the group, being amounts paid directly or indirectly to the companies by the State or a person, other than a company which is a member of the group, to enable the company to meet the cost of such expenditure, exceeds £50,000, or
(II) it is expenditure—
(A) approved by Forbairt under any scheme administered by it, and
(B) which has been or is to be met to any extent directly or indirectly by the State or any person other than a company which is a member of the group.
(2) (a) In this subsection—
“income from the sale of goods” has the same meaning as in section 454 ;
“a loss from the sale of goods” has the same meaning as in section 455 .
(b) On making a claim in that behalf, a qualified company shall be entitled, in computing the trading income for an accounting period of a trade carried on by it, to deduct an amount equal to treble the qualifying expenditure on research and development attributable to the qualified company as is referable to the accounting period and, subject to paragraph (c), the company shall be entitled to such a deduction in addition to any deduction to which the qualified company may otherwise be entitled in respect of expenditure incurred on research and development.
(c) Where the amount referred to in paragraph (b) exceeds an amount which apart from this subsection would be the income from the sale of goods of the trade so referred to for the accounting period, then, the excess—
(i) shall not be deductible by virtue of paragraph (b), and
(ii) shall be treated as a loss incurred in that trade, which is a loss from the sale of goods, for the purposes of relief under—
(I) section 455 or 456 , or
(II) to the extent that such relief does not exceed the income from the sale of goods in the course of that trade in the accounting period for which that relief is given, section 396 (1).
(3) For the purposes of subsection (2)—
(a) where a relevant period coincides with an accounting period of a qualified company, the amount of qualifying expenditure on research and development attributable to the qualified company which relates to the accounting period of the company shall be the amount of that qualifying expenditure attributable to the qualified company, and
(b) where the relevant period does not coincide with an accounting period of the company—
(i) the qualifying expenditure on research and development attributable to the qualified company shall be apportioned to the accounting periods which fall wholly or partly in the relevant period, and
(ii) the amount so apportioned to an accounting period shall be treated as the amount of qualifying expenditure on research and development attributable to the qualified company which relates to that accounting period of the company.
(4) Where a company makes a claim under this section, the company shall be treated for the purpose of Part 16 as not being a qualifying company in respect of any amount raised, at any time during the period commencing on the 10th day of May, 1995, and ending 3 years after the commencement of the first relevant period, by the issue of eligible shares within the meaning of section 488 .
num: 767
paragraphs: —(1) In this section—
“approved body” means—
(a) the College of Industrial Relations, Ranelagh, Dublin, or
(b) any of the following colleges established under the Vocational Education Act, 1930 —
(i) colleges forming part of the Dublin Institute of Technology,
(ii) the Limerick College of Art, Commerce and Technology, or
(iii) regional technical colleges;
“approved subject” means—
(a) industrial relations,
(b) marketing, or
(c) any other subject which is approved for the purposes of this section by the Minister for Finance.
(2) Where a person carrying on a trade or profession—
(a) pays any sum to—
(i) an Irish university, or
(ii) an approved body,
for the purpose of enabling the university or the approved body to undertake research in, or engage in the teaching of, an approved subject, and
(b) the sum so paid is not income to which section 792 applies,
the sum so paid shall, if not otherwise so deductible, be deducted as an expense in computing the profits or gains of the person's trade or profession.
num: 768
paragraphs: —(1) In this section—
“control” has the same meaning as in section 312 ;
“know-how” means industrial information and techniques likely to assist in the manufacture or processing of goods or materials, or in the carrying out of any agricultural, forestry, fishing, mining or other extractive operations;
references to a body of persons include references to a partnership.
(2) (a) For the purposes of this subsection, a person incurring expenditure on know-how before the setting up and commencement of the trade in which it is used shall be treated as incurring it on that setting up and commencement.
num: 769
paragraphs: —(1) Where, before the day of the setting up or commencement of a trade consisting of the production for sale of manufactured goods, a person who is about to carry on the trade incurs or has incurred expenditure on the recruitment and training, with a view to their employment in the trade, of persons all or a majority of whom are Irish citizens, there shall be made to such person allowances in respect of that expenditure during a writing-down period of 3 years beginning on that day, and such allowances shall be made in taxing the trade.
(2) For the purposes of this section—
num: 770
paragraphs: —(1) In this Chapter, except where the context otherwise requires—
“administrator”, in relation to a retirement benefits scheme, means the person or persons having the management of the scheme, and references to the administrator of a scheme shall be deemed to include the person mentioned in section 772 (2) (c);
“approved scheme” means a retirement benefits scheme for the time being approved by the Revenue Commissioners for the purposes of this Chapter;
“company” includes any body corporate or unincorporated body of persons other than a partnership;
“director”, in relation to a company, includes—
(a) in the case of a company the affairs of which are managed by a board of directors or similar body, a member of that board or body,
(b) in the case of a company the affairs of which are managed by a single director or similar person, that director or person,
(c) in the case of a company the affairs of which are managed by the members themselves, a member of that company,
and includes a person who is to be or has been a director;
“employee”—
(a) in relation to a company, includes an officer of the company, any director of the company and any other person taking part in the management of the affairs of the company, and
(b) in relation to any employer, includes a person who is to be or has been an employee,
and “employer” and other cognate expressions shall be construed accordingly;
“exempt approved scheme” has the meaning assigned to it by section 774 ;
“final remuneration” means the average annual remuneration of the last 3 years' service;
“pension” includes annuity;
“relevant benefits” means any pension, lump sum, gratuity or other like benefit—
(a) given or to be given on retirement or on death or in anticipation of retirement or, in connection with past service, after retirement or death, or
(b) to be given on or in anticipation of or in connection with any change in the nature of the service of the employee in question,
but does not include any benefit which is to be afforded solely by reason of the death or disability of a person resulting from an accident arising out of or in the course of his or her office or employment and for no other reason;
“service” means service as an employee of the employer in question and other expressions, including “retirement”, shall be construed accordingly;
“statutory scheme” means a retirement benefits scheme established by or under any enactment.
(2) Any reference in this Chapter to the provision of relevant benefits, or of a pension, for employees of an employer includes a reference to the provision of those benefits or that pension by means of a contract between the administrator or the employer and a third person.
num: 771
paragraphs: —(1) In this Chapter, “retirement benefits scheme” means, subject to this section, a scheme for the provision of benefits consisting of or including relevant benefits, but does not include any scheme under the Social Welfare (Consolidation) Act, 1993 , providing such benefits.
(2) References in this Chapter to a scheme include references to a deed, agreement, series of agreements or other arrangements providing for relevant benefits, notwithstanding that it relates or they relate only to—
(a) a small number of employees or to a single employee, or
(b) the payment of a pension starting immediately on the making of the arrangements.
(3) The Revenue Commissioners may if they think fit treat a retirement benefits scheme relating to employees of 2 or more different classes or descriptions as being for the purposes of this Chapter 2 or more separate retirement benefits schemes relating respectively to such one or more of those classes or descriptions of those employees as the Revenue Commissioners think fit.
(4) For the purposes of this Chapter—
(a) employees may be regarded as belonging to different classes or descriptions if they are employed by different employers, and
(b) a particular class or description of employee may consist of a single employee or any number of employees.
num: 772
paragraphs: —(1) Subject to this section, the Revenue Commissioners shall approve any retirement benefits scheme for the purposes of this Chapter if it satisfies all of the prescribed conditions, namely—
(a) the conditions set out in subsection (2), and
(b) the conditions as respects benefits set out in subsection (3).
(2) The conditions referred to in subsection (1) (a) are—
(a) that the scheme is bona fide established for the sole purpose of providing relevant benefits in respect of service as an employee, being benefits payable to, or to the widow or widower, children or dependants or personal representatives of, the employee;
(b) that the scheme is recognised by the employer and employees to whom it relates, and that every employee who is or has a right to be a member of the scheme has been given written particulars of all essential features of the scheme which concern the employee;
(c) that there is a person resident in the State who will be responsible for the discharge of all duties imposed on the administrator of the scheme under this Chapter;
(d) that the employer is a contributor to the scheme;
(e) that the scheme is established in connection with some trade or undertaking carried on in the State by a person resident in the State;
(f) that no amount can be paid, whether during the subsistence of the scheme or later, by means of repayment of an employee's contributions under the scheme.
(3) The conditions as respects benefits referred to in subsection (1) (b) are—
(a) that any benefit for an employee is a pension on retirement at a specified age not earlier than 60 years and not later than 70 years, or on earlier retirement through incapacity, which does not exceed one-sixtieth of the employee's final remuneration for each year of service up to a maximum of 40 years;
(b) that any pension for any widow or widower of an employee who dies before retirement shall be a pension payable on the employee's death of an amount that does not exceed two-thirds of any pension or pensions which, consonant with the condition in paragraph (a), could have been provided for the employee on retirement on attaining the specified age, if the employee had continued to serve until the employee attained that age at an annual rate of remuneration equal to the employee's final remuneration;
(c) that any lump sums provided for any widow or widower, children, dependants or personal representatives of an employee who dies before retirement shall not exceed in the aggregate 4 times the employee's final remuneration;
(d) that any benefit for any widow or widower of an employee payable on the employee's death after retirement is a pension such that the amount payable to the widow or widower does not exceed two-thirds of any pension or pensions payable to the employee;
(e) that any pensions for the children or dependants of an employee who dies before retirement or on the employee's death after retirement shall not exceed in the aggregate one-half of the pension specified in paragraph (b) or (d), as the case may be;
(f) that no pension is capable in whole or in part of surrender, commutation or assignment, except in so far as the scheme allows an employee on retirement to obtain by commutation of the employee's pension a lump sum or sums not exceeding in all three-eightieths of the employee's final remuneration for each year of service up to a maximum of 40 years;
(g) that no other benefits are payable under the scheme.
(4) (a) The Revenue Commissioners may if they think fit having regard to the facts of a particular case and subject to such conditions, if any, as they think proper to attach to the approval, approve a retirement benefits scheme for the purposes of this Chapter, notwithstanding that it does not satisfy one or more of the prescribed conditions.
(b) The Revenue Commissioners may in particular approve by virtue of this subsection a scheme which—
(i) exceeds the limits imposed by the prescribed conditions as respects benefits for less than 40 years' service,
(ii) allows benefits to be payable on retirement within 10 years of the specified age or on earlier incapacity,
(iii) provides for the return in certain contingencies of employees' contributions and payment of interest (if any) on the contributions, or
(iv) relates to a trade or undertaking carried on only partly in the State and by a person not resident in the State.
(5) Where in the opinion of the Revenue Commissioners the facts concerning any scheme or its administration cease to warrant the continuance of their approval of the scheme, they may at any time, by notice in writing to the administrator, withdraw their approval on such grounds, and from such date, as may be specified in the notice.
(6) Where an alteration has been made in a retirement benefits scheme, no approval given as regards the scheme before the alteration shall apply after the date of the alteration unless the alteration has been approved by the Revenue Commissioners.
(7) For the purpose of determining whether a retirement benefits scheme, in so far as it relates to a particular class or description of employees, satisfies or continues to satisfy the prescribed conditions, that scheme shall be considered in conjunction with any other retirement benefits scheme or schemes relating to employees of that class or description, and, if those conditions are satisfied in the case of both or all of those schemes taken together, they shall be taken to be satisfied in the case of each of them but otherwise those conditions shall be taken to be satisfied in the case of none of them.
num: 773
paragraphs: —(1) The Revenue Commissioners may, if they think fit and subject to any undertakings and conditions that they think proper to attach to the approval, approve for the purposes of this Chapter a scheme of superannuation provided for under an agreement for the provision of services under section 58 of the Health Act, 1970 (in this section referred to as a “relevant scheme”) as if it were a retirement benefits scheme within the meaning of this Chapter and notwithstanding that it does not satisfy one or more of the conditions set out in subsections (2) and (3) of section 772 .
num: 774
paragraphs: —(1) This section shall apply as respects—
(a) any approved scheme shown to the satisfaction of the Revenue Commissioners to be established under irrevocable trusts, or
(b) any other approved scheme as respects which the Revenue Commissioners, having regard to any special circumstances, direct that this section shall apply,
and any scheme which is for the time being within paragraph (a) or (b) is in this Chapter referred to as an “exempt approved scheme”.
(2) This section shall apply only as respects income arising or contributions paid at a time when a scheme is an exempt approved scheme.
(3) Exemption from income tax shall, on a claim being made in that behalf, be allowed in respect of income derived from investments or deposits of a scheme if, or to such extent as the Revenue Commissioners are satisfied that, it is income from investments or deposits held for the purposes of the scheme.
(4) (a) In this subsection, “financial futures” and “traded options” mean respectively financial futures and traded options for the time being dealt in or quoted on any futures exchange or any stock exchange, whether or not that exchange is situated in the State.
(b) For the purposes of subsection (3), a contract entered into in the course of dealing in financial futures or traded options shall be regarded as an investment.
num: 775
paragraphs: —(1) Where—
(a) after the 21st day of April, 1997, there is an actual payment by an employer of a contribution under an exempt approved scheme,
(b) apart from this section that payment would be allowed to be deducted as an expense, or expense of management, of the employer in relation to any chargeable period, and
(c) the total of previously allowed deductions exceeds the relevant maximum,
then, the amount allowed to be so deducted in respect of the payment mentioned in paragraph (a) and of any other actual payments of contributions under the scheme which, having been made after the 21st day of April, 1997, are within paragraph (b) in relation to the same chargeable period shall be reduced by whichever is the lesser of the excess and the amount which reduces the deduction to nil.
(2) In relation to any such actual payment by an employer of a contribution under an exempt approved scheme as would be allowed to be deducted as mentioned in subsection (1) in relation to any chargeable period—
(a) the reference in that subsection to the total of previously allowed deductions is a reference to the aggregate of every amount in respect of the making, or any provision for the making, of that or any other contribution under the scheme, which has been allowed to be deducted as an expense, or expense of management, of that person in relation to all previous chargeable periods, and
(b) the reference to the relevant maximum is a reference to the amount which would have been that aggregate if the restriction on deductions for sums other than actual payments imposed by virtue of section 774 (6) had been applied in relation to every previous chargeable period,
and for the purposes of this subsection an amount the deduction of the whole or any part of which is to be taken into account as allowed in relation to more than one chargeable period shall be treated as if the amount allowed were a different amount in the case of each of those periods.
(3) For the purposes of this section, any payment which is treated under paragraph (d) of section 774 (6) as spread over a period of years shall be treated as actually paid at the time when it is treated as paid in accordance with that paragraph.
num: 776
paragraphs: —(1) This section shall apply to any statutory scheme established under a public statute.
num: 777
paragraphs: —(1) Subject to this Chapter, where pursuant to a retirement benefits scheme the employer in any year of assessment pays a sum with a view to the provision of any relevant benefits for any employee of that employer, then (whether or not the accrual of the benefits is dependent on any contingency), the sum paid, if not otherwise chargeable to income tax as income of the employee, shall be deemed for the purposes of the Income Tax Acts to be income of that employee for that year of assessment and assessable to income tax under Schedule E.
(2) Subject to this Chapter, where—
(a) the circumstances in which any relevant benefits under a retirement benefits scheme are to accrue are not such as will render the benefits assessable to income tax as emoluments of the employee in respect of whom the benefits are paid, and
(b) the provision of those benefits is not, or is not fully, secured by the payment of sums by the employer with a view to the provision of those benefits,
num: 778
paragraphs: —(1) Neither subsection (1) nor subsection (2) of section 777 shall apply where the retirement benefits scheme in question is—
(a) an approved scheme,
(b) a statutory scheme, or
(c) a scheme set up by a Government outside the State for the benefit, or primarily for the benefit, of its employees.
(2) Neither subsection (1) nor subsection (2) of section 777 shall apply for any year of assessment where apart from those subsections the employee is under the Income Tax Acts either not assessable to income tax in respect of the emoluments of his or her employment or is so assessable in respect of those emoluments on the basis of the amount received in the State.
(3) Where, in respect of the provision for an employee of any relevant benefits, a sum has been deemed to be income of the employee by virtue of subsection (1) or (2) of section 777 , and subsequently the employee proves to the satisfaction of the Revenue Commissioners—
(a) that no payment in respect of or in substitution for the benefits has been made, and
(b) that some event has occurred by reason of which no such payment will be made,
and the employee makes application for relief under this subsection within 6 years from the time when that event occurred, the Revenue Commissioners shall give relief in respect of tax on that sum by repayment or otherwise as may be appropriate, and, if the employee satisfies the Revenue Commissioners in relation to some particular part of the benefits but not the whole of the benefits, the Revenue Commissioners may give such relief as may seem to them just and reasonable.
num: 779
paragraphs: —(1) Subject to subsection (2), pensions paid under any scheme which is approved or is being considered for approval under this Chapter shall be charged to income tax under Schedule E, and Chapter 4 of Part 42 shall apply accordingly.
num: 780
paragraphs: —(1) In this section and in section 781 , “employee”, in relation to a statutory scheme, includes an officer.
(2) Subject to this section, tax shall be charged under this section on any repayment to an employee during his or her lifetime of any contribution (including interest on contributions, if any) if the payment is made under—
(a) a scheme which is or has at any time been an exempt approved scheme, or
(b) a statutory scheme established under a public statute.
(3) This section shall not apply where the employee's employment was carried on outside the State.
(4) Subsection (2)(a) shall not apply in relation to a contribution made after the scheme ceases to be an exempt approved scheme unless it again becomes an exempt approved scheme.
num: 781
paragraphs: —(1) Where—
(a) a scheme which is or has at any time been an approved scheme, or
(b) a statutory scheme established under a public statute,
contains a rule allowing in special circumstances a payment in commutation of an employee's entire pension, and any pension is commuted, whether wholly or not, under the rule, tax shall be charged on the amount by which the sum receivable exceeds—
(i) the largest sum which would have been receivable in commutation of any part of the pension if the scheme had contained a rule providing that the aggregate value of the relevant benefits payable to an employee on or after retirement, excluding any pension which was not commutable, should not exceed three-eightieths of the employee's final remuneration for each year of service up to a maximum of 40 years, or
(ii) the largest sum which would have been receivable in commutation of any part of the pension under any rule of the scheme authorising the commutation of part (but not the whole) of the pension, or which would have been so receivable but for those circumstances,
whichever gives the lesser amount chargeable to tax.
(2) This section shall not apply where the employee's employment was carried on outside the State.
num: 782
paragraphs: —(1) Where any payment is made or becomes due to an employer out of funds which are or have been held for the purposes of a scheme which is or has at any time been an exempt approved scheme, then—
(a) if the scheme relates to a trade or profession carried on by the employer, the payment shall be treated for the purposes of the Tax Acts as a receipt of that trade or profession receivable when the payment is due or on the last day on which the trade or profession is carried on by the employer, whichever is the earlier;
num: 783
paragraphs: —(1) (a) In this section—
“director” means—
(i) in relation to a body corporate the affairs of which are managed by a board of directors or similar body, a member of that board or body,
(ii) in relation to a body corporate the affairs of which are managed by a single director or similar person, that director or person,
(iii) in relation to a body corporate the affairs of which are managed by the members themselves, a member of the body corporate,
and includes any person who is or has been a director;
“employee”, in relation to a body corporate, includes any person taking part in the management of the affairs of the body corporate who is not a director, and includes a person who is or has been an employee;
“investment company” means a company the income of which consists mainly of investment income;
“investment income”, in relation to a company, means income which, if the company were an individual, would not be earned income;
“proprietary director” means a director of a company who is either the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company;
“proprietary employee”, in relation to a company, means an employee who is the beneficial owner of, or able, either directly or through the medium of other companies or by any other indirect means, to control, more than 15 per cent of the ordinary share capital of the company;
“sponsored superannuation scheme” means a scheme or arrangement relating to service in particular offices or employments and having for its object or one of its objects the making of provision in respect of persons serving in those offices or employments against—
(i) future retirement or partial retirement,
(ii) future termination of service through death or disability, or
(iii) similar matters,
being a scheme or arrangement under which any part of the cost of the provision so made is or has been borne otherwise than by those persons by reason of their service (whether it is the cost or part of the cost of the benefits provided, or of paying premiums or other sums in order to provide those benefits, or of administering or instituting the scheme or arrangement).
(b) For the purposes of the definitions of “proprietary director” and “proprietary employee”, ordinary share capital which is owned or controlled as is specified in those definitions by a person, being a spouse or an infant child of a director or employee, or by the trustee of a trust for the benefit of a person or persons, being or including any such person or such director or employee, shall be deemed to be owned or controlled by such director or employee and not by any other person.
num: 784
paragraphs: —(1) Where an individual—
(a) is (or but for an insufficiency of profits or gains would be) chargeable to tax in respect of relevant earnings from any trade, profession, office or employment carried on or held by him or her, and
(b) pays a premium or other consideration under an annuity contract for the time being approved by the Revenue Commissioners as being a contract by which the main benefit secured is a life annuity for the individual in his or her old age or under a contract for the time being approved under section 785 (in this Chapter referred to as a “qualifying premium”),
relief from income tax may be given in respect of the qualifying premium under section 787 .
(2) (a) Subject to subsection (3), the Revenue Commissioners shall not approve a contract unless it appears to them to satisfy the following conditions—
(i) that it is made by the individual with a person lawfully carrying on in the State the business of granting annuities on human life,
(ii) that it includes provision securing that no annuity payable under it shall be capable in whole or in part of surrender, commutation or assignment, and
(iii) that it does not—
(I) provide for the payment by that person during the life of the individual of any sum except sums payable by means of annuity to the individual,
(II) provide for the annuity payable to the individual to commence before the individual attains the age of 60 years or after he or she attains the age of 70 years,
(III) provide for the payment by that person of any other sums except sums payable by means of annuity to the individual's widow or widower and any sums which, in the event of no annuity becoming payable either to the individual or to a widow or widower, are payable to the individual's personal representatives by means of return of premiums, reasonable interest on premiums or bonuses out of profits,
(IV) provide for the annuity, if any, payable to a widow or widower of the individual to be of a greater annual amount than that paid or payable to the individual, or
(V) provide for the payment of any annuity otherwise than for the life of the annuitant.
(b) Notwithstanding paragraph (a), the contract may provide for the payment to the individual, at the time the annuity commences to be payable, of a lump sum by means of commutation of part of the annuity not exceeding 25 per cent of the value of the annuity if the individual elects, at or before the time when the annuity first becomes payable to him or her, to be paid the lump sum.
(3) The Revenue Commissioners may, if they think fit and subject to any conditions they think proper to impose, approve a contract otherwise satisfying the conditions referred to in subsection (2), notwithstanding that the contract provides for one or more of the following matters—
(a) the payment after the individual's death of an annuity to a dependant, not being the widow or widower of the individual;
(b) the payment to the individual of an annuity commencing before he or she attains the age of 60 years, where the annuity is payable on the individual becoming permanently incapable through infirmity of mind or body of carrying on his or her own occupation or any occupation of a similar nature for which he or she is trained or fitted;
(c) where the individual's occupation is one in which persons customarily retire before attaining the age of 60 years, the annuity to commence before the individual attains that age (but not before he or she attains the age of 50 years);
(d) where the individual's occupation is one in which persons customarily retire after attaining the age of 70 years, the annuity to commence after the individual attains that age (but not after he or she attains the age of 80 years);
(e) the annuity payable to any person to continue for a term certain (not exceeding 10 years) notwithstanding his or her death within that term, or the annuity payable to any person to terminate, or be suspended, on marriage (or remarriage) or in other circumstances;
(f) in the case of an annuity which is to continue for a term certain, the annuity to be assignable by will and, in the event of any person dying entitled to the annuity, the annuity to be assignable by his or her personal representatives in the distribution of the estate so as to give effect to a testamentary disposition, or to the rights of those entitled on intestacy or to an appropriation of the annuity to a legacy or to a share or interest in the estate.
(4) Subsections (1) to (3) shall apply in relation to a contribution under a trust scheme or part of a trust scheme approved by the Revenue Commissioners as they apply in relation to a premium under an annuity contract so approved, with the modification that for the condition in subsection (2)(a)(i) there shall be substituted a condition that the scheme (or the part of the scheme)—
(a) is established under the law of and administered in the State,
(b) is established for the benefit of individuals engaged in or connected with a particular occupation (or one or other of a group of occupations) and for the purpose of providing retirement annuities for those individuals with or without subsidiary benefits for their families or dependants, and
(c) is so established under irrevocable trusts by a body of persons comprising or representing the majority of the individuals so engaged in the State,
and with the necessary modifications of other references to the contract or the person with whom it is made, and exemption from income tax shall be allowed in respect of income derived from investments or deposits of any fund maintained for the purpose referred to in paragraph (b) under a scheme or part of a scheme for the time being approved under this subsection.
(5) The Revenue Commissioners may at any time, by notice in writing given to the persons by and to whom premiums are payable under any contract for the time being approved under this section or to the trustees or other persons having the management of any trust scheme so approved, withdraw that approval on such grounds and from such date (including a date before the date of the notice) as may be specified in the notice and, where any approval is so withdrawn, there shall be made such assessments as may be appropriate for the purpose of withdrawing any reliefs given under this Chapter consequent on the approval.
(6) Nothing in sections 4 and 6 of the Policies of Assurance Act, 1867 , shall be taken to apply to any contract approved under this section.
num: 785
paragraphs: —(1) The Revenue Commissioners may approve for the purposes of this Chapter a contract made by an individual with a person (in subsection (2) referred to as “the insurer”) lawfully carrying on in the State the business of granting annuities on human life if—
(a) the main benefit secured by the contract is the provision of an annuity for the wife or husband of the individual or for any one or more dependants of the individual, or
(b) the sole benefit secured by the contract is the provision of a lump sum on the death of the individual before he or she attains the age of 70 years (or any greater age approved under section 784 (3)(d)), being a lump sum payable to the individual's personal representatives.
(2) The Revenue Commissioners shall not approve a contract made by an individual with the insurer under subsection (1)(a) unless it appears to them to satisfy the following conditions—
(a) that any annuity payable to the wife or husband or dependant of the individual commences on the death of the individual;
(b) that any annuity payable under the contract to the individual commences at a time after the individual attains the age of 60 years and, unless the individual's annuity is one to commence on the death of a person to whom an annuity would be payable under the contract if that person survived the individual, cannot commence after the time when the individual attains the age of 70 years (or any greater age approved under section 784 (3)(d));
(c) that the contract does not provide for the payment by the insurer of any sum, other than any annuity payable to the individual's wife or husband or dependant or to the individual except, in the event of no annuity becoming payable under the contract, any sums payable to the individual's personal representatives by means of return of premiums, reasonable interest on premiums or bonuses out of profits;
(d) that the contract does not provide for the payment of any annuity otherwise than for the life of the annuitant;
(e) that the contract provides that no annuity payable under it shall be capable in whole or in part of surrender, commutation or assignment.
(3) The Revenue Commissioners may, if they think fit and subject to any conditions they think proper to impose, approve a contract under subsection (1)(a), notwithstanding that in one or more respects it does not appear to them to satisfy the conditions specified in subsection (2).
(4) Subsections (2) and (3) of section 784 shall not apply to the approval of a contract under this section.
(5) The Revenue Commissioners may approve a trust scheme or part of a trust scheme otherwise satisfying the conditions specified in paragraphs (a) to (c) of section 784 (4), notwithstanding that its main purpose is to provide annuities for the wives, husbands and dependants of the individuals, or lump sums payable to the individuals' personal representatives on death, and—
(a) subsections (1) to (4) shall apply with any necessary modifications in relation to such approval,
(b) this Chapter shall apply to the scheme or part of the scheme when so approved as it applies to a contract approved under this section, and
(c) the exemption from income tax provided in section 784 (4) shall apply to the scheme or part of the scheme when so approved.
(6) Except where otherwise provided in this Chapter, any reference in the Income Tax Acts to a contract, scheme or part of a scheme approved under section 784 shall include a reference to a contract, scheme or part of a scheme approved under this section.
num: 786
paragraphs: —(1) The Revenue Commissioners may, if they think fit and subject to any conditions they think proper to impose, approve an annuity contract under section 784 , notwithstanding that the contract provides that the individual by whom it is made may require a sum representing the value of his or her accrued rights under the contract—
(a) to be paid by the person with whom it is made to such other person as the individual may specify, and
(b) to be applied by such other person in payment of the premium or other consideration under an annuity contract made between the individual and that other person and approved by the Revenue Commissioners under that section,
if the first-mentioned contract is otherwise to be approved by the Revenue Commissioners under that section.
(2) References in subsection (1) to the individual by whom a contract is made include references to any widow, widower or dependant having accrued rights under the contract.
(3) Where, in accordance with a provision of the kind referred to in subsection (1) of an annuity contract approved under section 784 or a corresponding provision of a contract approved under section 785 (1)(a), a sum representing the value of accrued rights under one contract (in this subsection referred to as “the original contract”) is paid by means of premium or other consideration under another contract (in this subsection referred to as “the substituted contract”), any annuity payable under the substituted contract shall be treated as earned income of the annuitant to the same extent that an annuity under the original contract would have been so treated.
num: 787
paragraphs: —(1) For the purposes of relief under this section, an individual's relevant earnings shall be those earnings before giving effect to any deduction to be made from those earnings in respect of a loss or in respect of a capital allowance (within the meaning of section 2 ), and references to income in this section (other than references to total income) shall be construed similarly.
(2) For the purposes of this section, “net relevant earnings”, in relation to an individual and subject to subsections (3) to (5), means the amount of the individual's relevant earnings for the year of assessment in question less the amount of any deductions to be made from the relevant earnings in computing the individual's total income for that year, being either—
(a) deductions in respect of payments made by the individual, or
(b) deductions in respect of losses or of such allowances mentioned in subsection (1), being losses or allowances arising from activities, profits or gains of which would be included in computing relevant earnings of the individual or of the individual's spouse for the year of assessment.
(3) Where in any year of assessment for which an individual claims and is allowed relief under this section there is to be made in computing the total income of the individual or of the individual's spouse a deduction in respect of any such loss or allowance of the individual referred to in subsection (2)(b), and the deduction or part of it is to be so made from income other than relevant earnings, then, the amount of the deduction made from that other income shall be treated as reducing the individual's net relevant earnings for subsequent years of assessment and shall be deducted as far as may be from those of the following year, whether or not the individual claims or is entitled to claim relief under this section for that year, and in so far as it cannot be so deducted, then from those of the next year, and so on.
(4) Where an individual's income for any year of assessment consists partly of relevant earnings and partly of other income, then, as far as may be, any deductions to be made in computing the individual's total income, and which may be treated in whole or in part either as made from relevant earnings or as made from other income, shall be treated for the purposes of this section as being made from those relevant earnings in so far as they are deductions in respect of any such loss referred to in subsection (2)(b) and otherwise as being made from that other income.
(5) An individual's net relevant earnings for any year of assessment shall be computed without regard to any relief to be given for that year under this section either to the individual or to the individual's spouse.
(6) Where relief is to be given under this section in respect of any qualifying premium paid by an individual, the amount of that premium shall, subject to this section, be deducted from or set off against the individual's relevant earnings for the year of assessment in which the premium is paid.
(7) Where in relation to a year of assessment a qualifying premium is paid after the end of the year of assessment but on or before the 31st day of January in the year following the year of assessment, the premium may, if the individual so elects on or before that date, be treated for the purposes of this section as paid in the earlier year (and not in the year in which it is paid); but where—
(a) the amount of that premium, together with any qualifying premiums paid by the individual in the year to which the assessment relates (or treated as so paid by virtue of any previous election under this subsection), exceeds the maximum amount of the reduction which may be made under this section in the individual's relevant earnings for that year, or
(b) the amount of that premium itself exceeds the increase in that maximum amount which is due to taking into account the income on which the assessment is made,
the election shall have no effect as respects the excess.
(8) Subject to this section, the amount which may be deducted or set off in any year of assessment (whether in respect of one or more qualifying premiums and whether or not including premiums in respect of a contract approved under section 785 ) shall not be more than—
(a) in the case of an individual who at any time during the year of assessment was of the age 55 years or over, 20 per cent, and
(b) in any other case, 15 per cent,
of the individual's net relevant earnings for that year, and the amount to be deducted shall to the greatest extent possible include qualifying premiums in respect of contracts approved under section 785 .
(9) Subject to this section, the amount which may be deducted or set off in any year of assessment in respect of qualifying premiums paid under a contract approved under section 785 (whether in respect of one or more such premiums) shall not be more than 5 per cent of the individual's net relevant earnings for that year.
(10) Where in any year of assessment a reduction or a greater reduction would be made under this section in the relevant earnings of an individual but for either or both of the following reasons—
(a) an insufficiency of net relevant earnings, or
(b) the operation of subsection (9) (as respects a qualifying premium paid under a contract approved under section 785 ),
the amount of the reduction which would be made but for those reasons, less the amount of any reduction which is made in that year, shall be carried forward to the next year of assessment, and shall be treated for the purposes of relief under this section as the amount of a qualifying premium paid in that next year of assessment.
(11) If and in so far as an amount once carried forward under subsection (10) (and treated as the amount of a qualifying premium paid in the next year of assessment) is not deducted from or set off against the individual's net relevant earnings for that year of assessment, it shall be carried forward again to the following year of assessment (and treated as the amount of a qualifying premium paid in that year of assessment), and so on for succeeding years.
(12)(a) In this subsection, “individual's contract” means an approved annuity contract, other than one approved under section 785 .
(b) Paragraphs (c) and (d) shall apply for determining whether and the extent to which an amount carried forward under subsection (10) is to be treated as paid under an individual's contract on the one hand or a contract approved under section 785 on the other.
(c) Any part of the amount carried forward which is referable to a qualifying premium paid under a contract approved under section 785 shall, when carried forward on the first or any subsequent occasion, be treated for the purposes of this Chapter as the amount of a qualifying premium paid under a contract so approved.
(d) The balance, if any, of the amount shall when similarly carried forward be treated as a qualifying premium paid under an individual's contract.
(13) Where relief under this section for any year of assessment is claimed and allowed (whether or not relief is then to be given for that year), and afterwards there is made any additional assessment, alteration of an assessment, or other adjustment of the claimant's liability to tax, there shall be made also such adjustments, if any, as are consequential thereon in the relief allowed or given under this section for that or any subsequent year of assessment.
(14) Where relief under this section is claimed and allowed for any year of assessment in respect of any payment, relief shall not be given in respect of that payment under any other provision of the Income Tax Acts for the same or a later year of assessment nor (in the case of a payment under an annuity contract) in respect of any other premium or consideration for an annuity under the same contract.
(15) Relief shall not be given under this section in respect of a qualifying premium except on a claim made to and allowed by the inspector, but any person aggrieved by any decision of the inspector on any such claim may, on giving notice in writing to the inspector within 21 days after the notification to that person of the decision, appeal to the Appeal Commissioners.
(16) The Appeal Commissioners shall hear and determine an appeal to them under subsection (15) as if it were an appeal to them against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
num: 788
paragraphs: —(1) In this section—
“life annuity” means an annuity payable for a term ending with (or at a time ascertainable only by reference to) the end of a human life, whether or not there is provision for the annuity to end during the life on the expiration of a fixed term or on the happening of any event or otherwise, or to continue after the end of the life in particular circumstances;
“purchased life annuity” means a life annuity granted for a consideration in money or money's worth in the ordinary course of a business of granting annuities on human life.
(2) This section shall not apply to—
(a) any annuity which apart from this section would be treated for the purposes of the provisions of the Income Tax Acts relating to tax on annuities and other annual payments as consisting to any extent in the payment or repayment of a capital sum,
(b) any annuity purchased under or for the purposes of any sponsored superannuation scheme within the meaning of section 783 (1), or any scheme approved under section 784 , or in pursuance of any obligation imposed or offer or invitation made under or in connection with any such scheme, or any other annuity purchased by any person in recognition of another's services (or past services) in any office or employment,
(c) any annuity payable under a substituted contract within the meaning of section 786 (3),
(d) any annuity where the whole or part of the consideration for the grant of the annuity consisted of sums satisfying the conditions for relief from tax under section 787 , or
(e) any annuity purchased in pursuance of any direction in a will, or to provide for an annuity payable by virtue of a will or settlement out of income of property disposed of by the will or settlement (whether with or without resort to capital).
(3) A purchased life annuity (not being of a description excepted by subsection (2)) shall, for the purposes of the provisions of the Income Tax Acts relating to tax on annuities and other annual payments, be treated as containing a capital element and, to the extent of the capital element, as not being an annual payment or in the nature of an annual payment; but the capital element in such an annuity shall be taken into account in computing profits or gains or losses for other purposes of the Income Tax Acts in any circumstances in which a lump sum payment would be taken into account.
(4) In the case of any purchased life annuity to which this section applies—
(a) the capital element shall be determined by reference to the amount or value of the payments made or other consideration given for the grant of the annuity,
(b) the proportion which the capital element in any annuity payment bears to the total amount of that payment shall be constant for all payments on account of the annuity,
(c) where neither the term of the annuity nor the amount of any annuity payment depends on any contingency other than the duration of a human life or lives, that proportion shall be the same proportion which the total amount or value of the consideration for the grant of the annuity bears to the actuarial value of the annuity payments as determined in accordance with subsection (5), and
(d) where paragraph (c) does not apply, that proportion shall be such as may be just, having regard to that paragraph and to the contingencies affecting the annuity.
(5) For the purposes of subsection (4)—
(a) any entire consideration given for the grant of an annuity and for some other matter shall be apportioned as appears just (but so that a right to a return of premiums or other consideration for an annuity shall not be treated for this purpose as a distinct matter from the annuity),
(b) where it appears that the amount or value of the consideration purporting to be given for the grant of an annuity has affected, or has been affected by, the consideration given for some other matter, the aggregate amount or value of those considerations shall be treated as one entire consideration given for both and shall be apportioned under paragraph (a) accordingly, and
(c) the actuarial value of any annuity payments shall be taken to be their value as at the date when the first of those payments begins to accrue, that value being determined by reference to the prescribed tables of mortality and without discounting any payment for the time to elapse between that date and the date it is to be made.
(6) Where a person making a payment on account of any life annuity has been notified in the prescribed manner of any decision as to its being or not being a purchased life annuity to which this section applies or as to the amount of the capital element, if any, and has not been notified of any alteration of that decision, the notice shall be evidence until the contrary is proved as to those matters for the purpose of determining the amount of income tax which the person is entitled or required to deduct from the payment, or for which the person is liable in respect of the payment.
(7) Where a person making a payment on account of a purchased life annuity to which this section applies has not been notified in the prescribed manner of the amount of the capital element, the amount of income tax which the person is entitled or required to deduct from the payment, or for which the person is liable in respect of it, shall be the same as if the annuity were not a purchased life annuity to which this section applies.
(8) Any person, other than a company which is within the charge to corporation tax, carrying on a business of granting annuities on human life shall be entitled to repayment of any income tax borne by that person by deduction or otherwise for any year of assessment up to the amount of income tax which, if this section had not been enacted, that person would have been entitled to deduct and retain on making payments due in that year of assessment on account of life annuities and which in accordance with this section that person has not deducted.
(9) This section shall apply to life annuities whenever purchased or commencing, and the reference to section 787 in subsection (2)(d) shall be construed accordingly.
num: 789
paragraphs: —(1) Any question as to whether an annuity is a purchased life annuity to which section 788 applies, or what is the capital element in such an annuity, shall be determined by the inspector, but any person aggrieved by any decision of the inspector on any such question may appeal within the prescribed time to the Appeal Commissioners.
(2) Except where otherwise provided in this Chapter, the procedure to be adopted in giving effect to this Chapter shall be such as may be prescribed.
(3) The Revenue Commissioners may make regulations for prescribing anything which is to be prescribed under this Chapter, and the regulations may apply, for the purposes of this Chapter or of the regulations, any provision of the Income Tax Acts (with or without modifications), and in particular 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.
(4) Regulations under subsection (3) may in particular make provision as to the time limit for making any claim for relief from or repayment of tax under this Chapter and as to all or any of the following matters—
(a) the information to be given in connection with the determination of any question whether an annuity is a purchased life annuity to which section 788 applies, or what is the capital element in an annuity, and the persons who may be required to give any such information;
(b) the manner of giving effect to the decision on any such question, and the making of assessments for the purpose on the person entitled to the annuity (notwithstanding anything in section 237 );
(c) the extent to which any decision on any such question is to be binding and the circumstances in which it may be reviewed.
(5) Where any person, for the purpose of obtaining for that person or for any other person any relief from or repayment of tax under this Chapter, knowingly makes any false statement or false representation, that person shall be liable to a penalty of £500.
num: 790
paragraphs: —Where an individual has ceased to hold an office or employment and a pension, annuity or other annual payment is paid to the individual or to the individual's widow or widower, or to the individual's child or any of the individual's relatives or dependants by the person or the heirs, executors, administrators or successors of the person under whom the individual held such office or by whom the individual was so employed, such pension, annuity or other annual payment shall, notwithstanding that it is paid voluntarily or is capable of being discontinued, be deemed to be income for the purpose of assessment of income tax and shall be assessed and charged under Schedule D or E, as the case may require.
num: 791
paragraphs: —(1) In this Chapter and in paragraph 27 of Schedule 32 , except where the context otherwise requires, “disposition” includes any trust, covenant, agreement or arrangement.
(2) Any income of which any person (in this subsection referred to as “the first-mentioned person”) is able or has been able, without the consent of any other person by means of the exercise of any power of appointment, power of revocation or otherwise however by virtue or in consequence of a disposition made directly or indirectly by the first-mentioned person, to obtain for the first-mentioned person the beneficial enjoyment shall be deemed for the purposes of the Income Tax Acts to be the income of the person who is or was able to obtain such beneficial enjoyment, and not to be the income of any other person.
(3) Where any power referred to in subsection (2) may be exercised by a person with the consent of the wife or husband of the person, the power shall for the purposes of subsection (2) be deemed to be exercisable without the consent of another person, except where the husband and wife are living apart either by agreement or under an order of a court of competent jurisdiction.
(4) Where any power referred to in subsection (2) is exercisable by the wife or husband of the person who made the disposition, the power shall for the purposes of subsection (2) be deemed to be exercisable by the person who made the disposition.
num: 792
paragraphs: —(1) (a) In this subsection, “relevant individual” means an individual who is—
(i) permanently incapacitated by reason of mental or physical infirmity, or
(ii) aged 65 years or over.
(b) Any income which, by virtue of or in consequence of any disposition made directly or indirectly by any person (other than a disposition made for valuable and sufficient consideration), is payable to or applicable for the benefit of any other person, but excluding any income which—
(i) arises from capital of which the disponer by the disposition has divested absolutely himself or herself in favour of or for the benefit of the other person,
(ii) being payable to any university or college, being a university or college in the State, for the purpose of enabling that university or college to carry on research, is so payable for a period which is or may be 3 years or longer,
(iii) being payable to any body of persons to which section 209 applies, is so payable for a period which is or may be 3 years or longer,
(iv) being payable to a relevant individual for the individual's own use, is so payable for a period which exceeds or may exceed 6 years, or
(v) being applicable for the benefit of a named relevant individual, is so applicable for a period which exceeds or may exceed 6 years,
shall be deemed for the purposes of the Income Tax Acts to be the income of the person, if living, by whom the disposition was made and not to be the income of any other person.
(2) (a) This subsection shall apply to a disposition or dispositions of a kind or kinds referred to in subparagraphs (ii) to (v) of subsection (1)(b) made directly or indirectly by a person being an individual (in this subsection referred to as “the disponer”) except in so far as, by virtue or in consequence of such disposition or dispositions, income is payable or applicable in a year of assessment, in the manner referred to in subparagraph (iv) or (v) of that subsection, to or for the benefit of an individual referred to in subsection (1)(a)(i).
(b) Notwithstanding subsection (1), in relation to the disponer, any income which—
(i) is payable or applicable in a year of assessment by virtue or in consequence of a disposition or dispositions to which this subsection applies, and
(ii) is in excess of 5 per cent of the total income of the disponer for the year of assessment,
shall be deemed for the purposes of the Income Tax Acts to be the income of the disponer, if living, and not to be the income of any other person.
(c) Where paragraph (b) applies in relation to the disponer, for the purpose of determining for income tax purposes the amount of income which remains the income of persons other than the disponer for a year of assessment by virtue or in consequence of a disposition or dispositions to which this subsection applies, the aggregate of the income so remaining shall be apportioned amongst those other persons in proportion to their entitlements under such disposition or dispositions for that year.
(3) (a) In this subsection, “fund” means a fund—
(i) held on irrevocable trusts under the law of the State,
(ii) administered in the State, and
(iii) having for its sole purpose the granting of financial or other aid to universities, colleges or schools in the State in order to assist such universities, colleges or schools to teach any one or more of the natural sciences.
(b) The reference in subsection (1)(b) to any university or college, being a university or college in the State, for the purpose of enabling that university or college to carry on research shall include references to income payable—
(i) to any university, college or school, being a university, college or school in the State, for the purpose of assisting such university, college or school to teach any one or more of the natural sciences, or
(ii) to a fund within the meaning of this subsection.
num: 793
paragraphs: —(1) Where by virtue of section 792 any income tax becomes chargeable on and is paid by the person by whom the disposition was made, that person shall be entitled—
(a) to recover from any trustee or other person to whom the income is payable by virtue or in consequence of the disposition the amount of the tax so paid, and
(b) for that purpose to require the Revenue Commissioners to furnish to that person a certificate specifying the amount of the income in respect of which that person has so paid tax and the amount of the tax so paid, and any certificate so furnished shall be evidence until the contrary is proved of the matters of fact stated in that certificate.
(2) Where any person obtains in respect of any allowance or relief a repayment of income tax in excess of the amount of the repayment to which that person would but for section 792 have been entitled, an amount equal to the excess shall be paid by that person to the trustee or other person to whom the income is payable by virtue or in consequence of the disposition or, where there are 2 or more such persons, shall be apportioned among those persons as the case may require.
(3) Where any question arises as to the amount of any payment or as to any apportionment to be made under subsection (2), that question shall be decided by the Appeal Commissioners whose decision on that question shall be final.
(4) Any income which is deemed by virtue of this Chapter to be the income of any person shall be deemed to be the highest part of that person's income.
num: 794
paragraphs: —(1) In this Chapter—
“income” (except where in sections 795 (1), 796 (2)(b) and subsections (4) and (5) of section 797 it is immediately preceded by “as” or “that person's” and except also in section 798 ) includes any income chargeable to income tax by deduction or otherwise and any income which would have been so chargeable if it had been received in the State by a person resident or ordinarily resident in the State;
“settlement” includes any disposition, trust, covenant, agreement or arrangement, and any transfer of money or other property or of any right to money or other property.
(2) This Chapter shall apply to every settlement wherever and whenever made or entered into.
(3) This Chapter shall not apply in relation to any income arising under a settlement in any year of assessment for which the settlor is not chargeable to income tax as a resident in the State, and references in this Chapter to income shall be construed accordingly.
(4) This Chapter shall not apply to any income which, by virtue or in consequence of a settlement and during the life of the settlor, is in any year of assessment paid to or for the benefit of a minor, not being a child of the settlor, if such minor is permanently incapacitated by reason of mental or physical infirmity.
(5) For the purposes of this Chapter, the following provisions shall apply in relation to the construction of “irrevocable instrument”:
(a) an instrument shall not be an irrevocable instrument if the trusts of the instrument provide for all or any one or more of the following matters—
(i) the payment or application to or for the settlor for the settlor's own benefit of any capital or income or accumulations of income in any circumstances whatever during the life of a person (in this paragraph referred to as a “beneficiary”) to or for the benefit of whom any income or accumulations of income is or are or may be payable or applicable under the trusts of the instrument,
(ii) the payment or application during the life of the settlor to or for the husband or wife of the settlor for his own or her own benefit of any capital or income or accumulations of income in any circumstances whatever during the life of any beneficiary,
(iii) the termination of the trusts of the instrument by the act or on the default of any person, and
(iv) the payment by the settlor of a penalty in the event of the settlor failing to comply with the instrument;
(b) an instrument shall not be prevented from being an irrevocable instrument by reason only that the trusts of the instrument include any one or more of the following provisions—
(i) a provision under which any capital or income or accumulations of income will or may become payable to or applicable for the benefit of the settlor or the husband or wife of the settlor, on the bankruptcy of a person (in this paragraph referred to as a “beneficiary”) to or for the benefit of whom any income or accumulations of income is or are or may be payable or applicable under the trusts of the instrument,
(ii) a provision under which any capital or income or accumulations of income will or may become payable to or applicable for the benefit of the settlor or the husband or wife of the settlor, in the event of any beneficiary making an assignment of or charge on such capital or income or accumulations of income, and
(iii) a provision for the termination of the trusts of the instrument in such circumstances or manner that such termination would not, during the life of any beneficiary, benefit any person other than that beneficiary or that beneficiary's husband, wife or issue;
(c) “irrevocable instrument” includes instruments whenever made.
num: 795
paragraphs: —(1) Where, by virtue or in consequence of a settlement and during the life of the settlor, any income is in any year of assessment paid to or for the benefit of a person, such income shall, if at the time of payment such person is a minor, be treated for the purposes of the Income Tax Acts as income of the settlor for that year and not as income of any other person.
(2) For the purposes of this Chapter, but subject to section 796 —
(a) income which, by virtue or in consequence of a settlement to which this Chapter applies, is so dealt with that it or assets representing it will or may become payable or applicable to or for the benefit of a person in the future (whether on the fulfilment of a condition, or on the happening of a contingency, or as the result of the exercise of a power or discretion conferred on any person, or otherwise) shall be deemed to be paid to or for the benefit of that person, and
(b) any income dealt with in the manner referred to in paragraph (a) which is not required by the settlement to be allocated, at the time when it is so dealt with, to any particular person or persons shall be deemed to be paid in equal shares to or for the benefit of each of the persons to or for the benefit of whom or any of whom the income or assets representing it will or may become payable or applicable.
num: 796
paragraphs: —(1) In this section, “property” does not include any annual or other periodical payment secured by the covenant of the settlor, or by a charge made by the settlor on the whole or any part of the settlor's property or the whole or any part of the settlor's future income, or by both such covenant and such charge.
(2) Where by virtue of an irrevocable instrument property is vested in or held by trustees on such trusts that in any year of assessment section 795 would but for this section apply to the income of such property, the following provisions shall apply:
(a) section 795 shall not apply—
(i) in respect of any part of such income which is in that year of assessment accumulated for the benefit of a person, or
(ii) in respect of income arising in that year of assessment from accumulations of income referred to in subparagraph (i);
(b) whenever in any year of assessment any sum whatever is paid under the trusts of such irrevocable instrument out of—
(i) such property,
(ii) the accumulations of the income of such property,
(iii) the income of such property, or
(iv) the income of those accumulations,
to or for the benefit of a person who at the time of payment is a minor, such sum shall, subject to the limitation in paragraph (c), be deemed for the purposes of this Chapter to be paid as income;
(c) paragraph (b) shall not apply to so much of such sum as is equal to the amount by which the aggregate of such sum and all other sums (if any) paid after the 5th day of April, 1937, under the trusts of such irrevocable instrument to or for the benefit of that person or any other person (being a person who at the time of payment was a minor) exceeds the aggregate amount of the income arising after the 5th day of April, 1937, from such property together with the income arising after that date from those accumulations;
(d) for the purposes of paragraph (c), the reference in that paragraph to another sum paid to or for the benefit of a person who at the time of payment was a minor shall be construed, in relation to a payment to which this paragraph applies of any such sum, as a reference to a sum so paid to or for the benefit of a person who at the beginning of the year of assessment in which such other sum was paid was a minor;
(e) paragraph (d) shall apply to any payment of any such sum—
(i) made before the 6th day of April, 1971, or
(ii) in the case of a payment to or for the benefit of a child born after the 6th day of April, 1971, and so made by virtue or in consequence of a settlement made before the 28th day of April, 1971, made in the year 1971-72;
(f) for the purposes of paragraphs (c) and (d), references in those paragraphs to a person being at a particular time a minor shall, where that time is before the 6th day of April, 1986, be construed as references to a person who at that time was under the age of 21 years and was not or had not been married.
num: 797
paragraphs: —(1) Where by virtue of this Chapter any income tax becomes chargeable on and is paid by a settlor, such settlor shall be entitled—
(a) to recover from any trustee or other person to whom the income is payable by virtue or in consequence of the settlement the amount of the tax so paid, and
(b) for that purpose to require the Revenue Commissioners to furnish to such settlor a certificate specifying the amount of the income in respect of which such settlor has so paid tax and the amount of the tax so paid, and every certificate so furnished shall be evidence until the contrary is proved of the matters of fact stated in the certificate.
(2) Where any person obtains in respect of any allowance or relief a repayment of income tax in excess of the amount of the repayment to which that person would but for this Chapter have been entitled, an amount equal to the excess shall be paid by that person to the trustee or other person to whom the income is payable by virtue or in consequence of the settlement and, where there are 2 or more such trustees or other persons, in such proportions as the circumstances may require.
(3) Where any question arises as to the amount of any payment or as to any apportionment to be made under subsection (2), that question shall be decided by the Appeal Commissioners whose decision on that question shall be final.
(4) Any income which by virtue of this Chapter is treated as income of any person shall be deemed to be the highest part of that person's income.
num: 798
paragraphs: —(1) Where by any means whatever (including indirect means or means consisting of a series of operations and whenever adopted) a trade, which at any time before the adoption of such means was carried on by any person solely or in partnership, becomes a trade carried on by one or more than one child of such person or by means of a partnership in which such person and one or more than one child of such person are partners, the following provisions shall apply:
(a) such means shall for the purposes of this Chapter be deemed to constitute a settlement as respects which such person shall be deemed to be the settlor;
(b) the profits or gains arising from the trade after the adoption of such means, in so far as they arise to one or, as the case may be, more than one child of such person shall for the purposes of this Chapter be deemed to be the same income as would have arisen to such person had such means not been adopted;
(c) “income” where it first occurs in section 795 shall be deemed to include those profits or gains in so far as they arise to one or more than one child of such person.
(2) The amount of the income of a person from the profits or gains of a trade deemed by virtue of subsection (1) to be income of another person shall, if the first-mentioned person is engaged actively in the carrying on of the trade, be the full amount of that income reduced by a sum (in subsection (3) referred to as “the appropriate sum”) equal to the amount which would have been allowed in computing those profits or gains in respect of the first-mentioned person if that person, instead of being a person engaged in the carrying on of the trade, had been a person employed by a person or persons carrying on the trade.
num: 799
paragraphs: —(1) (a) In this Chapter—
“administration period” has the meaning assigned to it by section 800(1);
“charges on residue”, in relation to the estate of a deceased person, means the following liabilities properly payable out of the estate and interest payable in respect of those liabilities—
(i) funeral, testamentary, and administration expenses and debts,
(ii) general legacies, demonstrative legacies and annuities, and
(iii) any other liabilities of the deceased person's personal representatives as such,
but, in the case of any such liabilities which, as between persons interested under a specific disposition or in a legacy referred to in paragraph (ii) or in an annuity and persons interested in the residue of the estate, fall exclusively or primarily on the property that is the subject of the specific disposition or on the legacy or annuity, includes only such part (if any) of those liabilities as fall ultimately on the residue;
“foreign estate”, as regards any year of assessment, means an estate other than an Irish estate;
“Irish estate”, as regards any year of assessment, means an estate the income of which comprises only income which either has borne Irish income tax by deduction or in respect of which the personal representatives are directly assessable to Irish income tax, other than an estate any part of the income of which is income in respect of which the personal representatives are entitled to claim exemption from Irish income tax by reference to the fact that they are not resident or not ordinarily resident in the State;
“personal representative”, in relation to the estate of a deceased person, means his or her personal representative within the meaning of section 3 (1) of the Succession Act, 1965 , and includes any person who takes possession of or intermeddles with the property of the deceased and also includes any person having, in relation to the deceased, under the law of another country any functions corresponding to the functions for administration purposes under the law of the State of a personal representative within the meaning of that section, and references to personal representatives as such shall be construed as references to personal representatives in their capacity as having such functions;
“specific disposition” means a specific devise or bequest made by a testator, and includes any disposition having, whether by virtue of any enactment or otherwise, under the law of the State or of another country an effect similar to that of a specific devise or bequest under the law of the State.
(b) For the purposes of this Chapter—
(i) references to the aggregate income of the estate of a deceased person for any year of assessment shall be construed, subject to section 439 (2), as references to the aggregate income from all sources for that year of the personal representatives of the deceased as such, treated as consisting of—
(I) any such income chargeable to Irish income tax by deduction or otherwise, such income being computed at the amount on which that tax falls to be borne for that year, and
(II) any such income which would have been so chargeable if it had arisen in the State to a person resident and ordinarily resident in the State, such income being computed at the full amount of that income actually arising during that year, less such deductions as would have been allowable if it had been charged to Irish income tax, but excluding any income from property devolving on the personal representatives otherwise than as assets for payment of the debts of the deceased;
(ii) references to sums paid include references to assets transferred or appropriated by a personal representative to himself or herself and to debts set off or released;
(iii) references to sums payable include references to assets as to which an obligation to transfer or a right of a personal representative to appropriate to himself or herself is subsisting on the completion of the administration and to debts as to which an obligation to release is set off, or a right of a personal representative so to do in his or her own favour, is then subsisting;
(iv) references to amount in relation to assets referred to in subparagraphs (ii) and (iii) shall be construed as references to the value of those assets at the date on which they were transferred or appropriated, or at the completion of the administration, as the case may require, and, in relation to such debts, as references to the amount of such debts.
(2) For the purposes of this Chapter—
(a) a person shall be deemed to have an absolute interest in the residue of the estate of a deceased person, or in a part of the residue of that estate, if and so long as the capital of the residue or of that part of the residue, as the case may be, would if the residue had been ascertained be properly payable to the person or to another in the person's right for the person's benefit, or is properly so payable, whether directly by the personal representatives, or indirectly through a trustee or other person;
(b) a person shall be deemed to have a limited interest in the residue of the estate of a deceased person, or in a part of the residue of that estate, during any period (other than a period during which the person has an absolute interest in the residue or in that part of the residue, as the case may be) where the income of the residue or of that part of the residue, as the case may be, for that period would, if the residue had been ascertained at the commencement of that period, be properly payable to the person, or to another person in the person's right, for the person's benefit, whether directly by the personal representatives, or indirectly through a trustee or other person;
(c) real estate included (either by a specific or a general description) in a residuary gift made by the will of a testator shall be deemed to be a part of the residue of the testator's estate and not to be the subject of a specific disposition.
(3) Where different parts of the estate of a deceased person are the subjects respectively of different residuary dispositions, this Chapter shall apply in relation to each such part with the substitution—
(a) for references to the estate of references to that part of the estate, and
(b) for references to the personal representatives of the deceased as such of references to those personal representatives in their capacity as having the functions referred to in the definition of “personal representative” in relation to that part of the estate.
num: 800
paragraphs: —(1) This section shall apply in relation to a person who, during the period commencing on the death of a deceased person and ending on the completion of the administration of the estate of the deceased person (in this Chapter referred to as “the administration period”) or during a part of that period, has a limited interest in the residue of that estate or in a part of the residue of that estate.
(2) When any sum has been paid during the administration period in respect of that limited interest, the amount of that sum shall, subject to subsection (3), be deemed for the purposes of the Income Tax Acts to have been paid to that person as income for the year of assessment in which that sum was paid or, in the case of a sum paid in respect of an interest that has ceased, for the last year of assessment in which that interest was subsisting.
(3) On the completion of the administration of the estate—
(a) the aggregate amount of all sums paid before or payable on the completion of the administration in respect of that limited interest shall be deemed to have accrued due to that person from day to day during the administration period or the part of that period during which that person had that interest, as the case may be, and to have been paid to that person as it accrued due,
(b) the amount deemed to have been paid to that person by virtue of paragraph (a) in any year of assessment shall be deemed for the purposes of the Income Tax Acts to have been paid to that person as income for that year, and
(c) where the amount deemed to have been paid to that person as income for any year by virtue of this subsection is less or greater than the amount deemed to have been paid to that person as income for that year by virtue of subsection (2), such adjustments shall be made as are provided in section 804 .
(4) Any amount deemed to have been paid to that person as income for any year by virtue of this section shall—
(a) in the case of an Irish estate, be deemed to be income of such an amount as would after deduction of income tax at the standard rate of tax for that year be equal to the amount deemed to have been so paid and to be income that has borne income tax at that standard rate of tax;
num: 801
paragraphs: —(1) This section shall apply in relation to a person who during the administration period or a part of that period has an absolute interest in the residue of the estate of a deceased person or in a part of the residue of that estate.
(2) There shall be ascertained in accordance with section 802 the amount of the residuary income of the estate for each whole year of assessment, and for each part of a year of assessment, during which—
(a) the administration period was current, and
(b) that person had that interest,
and the amount so ascertained in respect of any year or part of a year, or, in the case of a person having an absolute interest in a part of a residue, a proportionate part of that amount, is in this Chapter referred to as the “residuary income” of that person for that year of assessment.
(3) When any sum has or any sums have been paid during the administration period in respect of that absolute interest, the amount of that sum or the aggregate amount of those sums shall, subject to subsection (4), be deemed for the purposes of the Income Tax Acts to have been paid to that person as income to the extent to which, and for the year or years of assessment for which, that person would have been treated for those purposes as having received income if—
(a) that person had had a right to receive in each year of assessment—
(i) in the case of an Irish estate, that person's residuary income for that year less income tax for that year at the standard rate of tax, or
(ii) in the case of a foreign estate, that person's residuary income for that year,
and
(b) that sum or the aggregate of those sums had been available for application primarily in or towards satisfaction of those rights as they accrued and had been so applied.
(4) In the case of an Irish estate, any amount deemed to have been paid to that person as income for any year by virtue of subsection (3) shall be deemed to be income of such an amount as would after deduction of income tax at the standard rate of tax for that year be equal to the amount deemed to have been so paid, and to be income which has borne income tax at the standard rate of tax.
(5) On the completion of the administration of the estate—
(a) the amount of the residuary income of that person for any year of assessment shall be deemed for the purposes of the Income Tax Acts to have been paid to that person as income for that year and, in the case of an Irish estate, shall be deemed to have borne tax by reference to the standard rate of tax, and
(b) where the amount deemed to have been paid to that person as income for any year by virtue of this subsection is less or greater than the amount deemed to have been paid to that person as income for that year by virtue of subsection (3) or (4), such adjustments shall be made as are provided in section 804 .
num: 802
paragraphs: —(1) The amount of the residuary income of an estate for any year of assessment shall be ascertained by deducting from the aggregate income of the estate for that year—
(a) the amount of any annual interest, annuity or other annual payment for that year which is a charge on residue and the amount of any payment made in that year in respect of any such expenses incurred by the personal representatives as such in the management of the assets of the estate as, in the absence of any express provision in a will, would be properly chargeable to income, but excluding any such interest, annuity or payment allowed or allowable in computing the aggregate income of the estate, and
(b) the amount of any of the aggregate income of the estate for that year to which a person has on or after assent become entitled by virtue of a specific disposition either for a vested interest during the administration period or for a vested or contingent interest on the completion of the administration.
(2) (a) In this subsection, “benefits received”, in relation to an absolute interest, means the following amounts in respect of all sums paid before, or payable on, the completion of the administration in respect of that interest—
(i) as regards a sum paid before the completion of the administration in the case of an Irish estate, such an amount as would, after deduction of income tax at the standard rate of tax for the year of assessment in which that sum was paid, be equal to that sum or, in the case of a foreign estate, the amount of that sum, and
(ii) as regards a sum payable on the completion of the administration in the case of an Irish estate, such an amount as would, after deduction of income tax at the standard rate of tax for the year of assessment in which the administration is completed, be equal to that sum or, in the case of a foreign estate, the amount of that sum.
(b) In the event of its appearing, on the completion of the administration of an estate in the residue of which, or in a part of the residue of which, a person had an absolute interest at the completion of the administration, that the aggregate of the benefits received in respect of that interest does not amount to as much as the aggregate for all years of the residuary income of the person having that interest, that person's residuary income for each year shall be reduced for the purpose of section 801 by an amount bearing the same proportion thereto as the deficiency bears to the aggregate for all years of that person's residuary income.
(3) In the application of subsection (2) to a residue or a part of a residue in which a person, other than the person having an absolute interest at the completion of the administration, had an absolute interest at any time during the administration period, the aggregates mentioned in that subsection shall be computed in relation to those interests taken together, and the residuary income of that other person shall also be subject to reduction under that subsection.
num: 803
paragraphs: —(1) Where the personal representatives of a deceased person have as such a right in relation to the estate of another deceased person such that, if that right were vested in them for their own benefit, they would have an absolute interest or a limited interest in the residue of that estate or in part of the residue of that estate, the personal representatives shall be deemed to have that interest notwithstanding that that right is not vested in them for their own benefit, and any amount deemed to be paid to them as income by virtue of this Chapter shall be treated as part of the aggregate income of the estate of the person whose personal representatives they are.
(2) Where different persons have successively during the administration period absolute interests in the residue of the estate of a deceased person or in a part of the residue of that estate, sums paid during that period in respect of the residue or of that part of the residue, as the case may be, shall be treated for the purpose of this Chapter as having been paid in respect of the interest of the person who first had an absolute interest in that residue or that part of that residue up to the amount of—
(a) in the case of an Irish estate, the aggregate for all years of that person's residuary income less income tax at the standard rate of tax, or
(b) in the case of a foreign estate, the aggregate for all years of that person's residuary income,
and, as to any balance up to a corresponding amount, in respect of the interest of the person who next had an absolute interest in that residue or that part of that residue, as the case may be, and so on.
(3) Where on the exercise of a discretion any of the income of the residue of the estate of a deceased person for any period (being the administration period or a part of the administration period) would, if the residue had been ascertained at the commencement of that period, be properly payable to any person, or to another person in that person's right, for that person's benefit, whether directly by the personal representatives or indirectly through a trustee or other person—
(a) the amount of any sum paid pursuant to an exercise of the discretion in favour of that person shall be deemed for the purposes of the Income Tax Acts to have been paid to that person as income for the year of assessment in which it was paid, and
(b) subsections (4) to (6) of section 800 shall apply in relation to an amount deemed to have been paid as income by virtue of paragraph (a).
num: 804
paragraphs: —(1) Where on the completion of the administration of an estate any amount is deemed by virtue of this Chapter to have been paid to any person as income for any year of assessment and—
(a) that amount is greater than the amount previously deemed to have been paid to that person as income for that year by virtue of this Chapter, or
(b) no amount has previously been so deemed to have been paid to that person as income for that year,
an assessment or additional assessment may be made on that person for that year and tax charged accordingly or, on a claim being made for the purpose, any relief or additional relief to which that person may be entitled shall be allowed accordingly.
(2) Where on the completion of the administration of an estate any amount is deemed by virtue of this Chapter to have been paid to any person as income for any year of assessment and that amount is less than the amount that has previously been so deemed to have been paid to that person, then—
(a) if an assessment has already been made on that person for that year, such adjustments shall be made in that assessment as may be necessary for the purpose of giving effect to the provisions of this Chapter which take effect on the completion of the administration, and any tax overpaid shall be repaid, and
(b) if—
(i) any relief has been allowed to that person by reference to the amount previously deemed by virtue of this Chapter to have been paid to that person as income for that year, and
(ii) the amount of that relief exceeds the amount of relief which could have been given by reference to the amount which, on the completion of the administration, is deemed to have been paid to that person as income for that year,
num: 805
paragraphs: —(1) (a) In this section—
“personal representative” has the same meaning as in section 799 (1);
“trustees” does not include personal representatives, but where personal representatives, on or before the completion of the administration of the estate of a deceased person, pay to trustees any sum representing income which, if the personal representatives were trustees, would be income to which this section applies, that sum shall be deemed to be paid to the trustees as income and to have borne income tax at the standard rate.
(b) This subsection shall be construed together with Chapter 1 of this Part.
(2) This section shall apply to income arising to trustees in any year of assessment in so far as it—
(a) is income which is to be accumulated or which is payable at the discretion of the trustees or any other person, whether or not the trustees have power to accumulate the income,
(b) is neither, before being distributed, the income of any person other than the trustees nor treated for any purpose of the Income Tax Acts as the income of a settlor,
(c) is not income arising under a trust established for charitable purposes only or income from investments, deposits or other property held for the purposes of a fund or scheme established for the sole purpose of providing relevant benefits within the meaning of section 770 ,
(d) exceeds the income applied in defraying the expenses of the trustees in that year which are properly chargeable to income, or would be so chargeable but for any express provisions of the trust, and
(e) is not distributed to one or more persons within that year of assessment or within 18 months after the end of that year of assessment in such circumstances that the income distributed is to be treated for the purposes of the Income Tax Acts as the income of the person or persons to whom it is distributed.
(3) (a) Income to which this section applies shall, in addition to being chargeable to income tax at the standard rate for the year of assessment for which it is so chargeable, be charged to an additional duty of income tax (in this section referred to as a “surcharge”) at the rate of 20 per cent.
(b) A surcharge to be made on trustees under this section in respect of income arising in a year of assessment (in this subsection referred to as “the first year of assessment”) shall—
(i) be charged on the trustees for the year of assessment in which a period of 18 months beginning immediately after the end of the first year of assessment ends, and
(ii) be treated as income tax chargeable for the year of assessment for which it is so charged.
(c) Subject to subsection (4), the Income Tax Acts shall apply in relation to a surcharge made under this section as they apply to income tax charged otherwise than by virtue of this section.
(4) Where income in respect of which a surcharge is made is distributed, no relief from or repayment in respect of the surcharge shall be allowed or made to the person to whom the income is distributed.
num: 806
paragraphs: —(1) In this section—
“assets” includes property or rights of any kind;
“associated operation”, in relation to any transfer, means an operation of any kind effected by any person in relation to any of the assets transferred or any assets representing whether directly or indirectly any of the assets transferred, or to the income arising from any such assets, or to any assets representing whether directly or indirectly the accumulations of income arising from any such assets;
“benefit” includes a payment of any kind;
“company” means any body corporate or unincorporated association;
“transfer”, in relation to rights, includes the creation of those rights.
(2) For the purposes of this section—
(a) any body corporate incorporated outside the State shall be treated as if it were resident out of the State whether it is so resident or not,
(b) a reference to an individual shall be deemed to include the husband or wife of the individual, and
(c) references to assets representing any assets, income or accumulations of income include references to shares in or obligations of any company to which, or obligations of any other person to whom, those assets, that income or those accumulations are or have been transferred.
(3) This section shall apply for the purpose of preventing the avoidance by individuals ordinarily resident in the State of liability to income tax by means of transfers of assets by virtue or in consequence of which, either alone or in conjunction with associated operations, income becomes payable to persons resident or domiciled out of the State.
(4) Where by virtue or in consequence of any such transfer, either alone or in conjunction with associated operations, such an individual has power to enjoy (within the meaning of this section), whether forthwith or in the future, any income of a person resident or domiciled out of the State which, if it were income of that individual received by that individual in the State, would be chargeable to tax by deduction or otherwise, that income shall, whether it would or would not have been chargeable to tax apart from this section, be deemed to be income of that individual for the purposes of the Income Tax Acts.
(5) (a) In this subsection, “capital sum” means—
(i) any sum paid or payable by means of loan or repayment of a loan, and
(ii) any other sum paid or payable otherwise than as income, being a sum not paid or payable for full consideration in money or money's worth.
(b) Where, whether before or after any such transfer, such an individual receives or is entitled to receive any capital sum the payment of which is in any way connected with the transfer or any associated operation, any income which, by virtue or in consequence of the transfer, either alone or in conjunction with associated operations, has become the income of a person resident or domiciled out of the State shall, whether it would or would not have been chargeable to tax apart from this section, be deemed to be the income of that individual for the purposes of the Income Tax Acts.
(6) An individual shall for the purposes of this section be deemed to have power to enjoy income of a person resident or domiciled out of the State where—
(a) the income is in fact so dealt with by any person as to be calculated, at some point of time and whether in the form of income or not, to enure for the benefit of the individual,
(b) the receipt or accrual of the income operates to increase the value to the individual of any assets held by the individual or for the individual's benefit,
(c) the individual receives or is entitled to receive at any time any benefit provided or to be provided out of that income or out of moneys which are or will be available for the purpose by reason of the effect or successive effects of the associated operations on that income and on any assets which directly or indirectly represent that income,
(d) the individual has power, by means of the exercise of any power of appointment or power of revocation or otherwise, to obtain for himself or herself, whether with or without the consent of any other person, the beneficial enjoyment of the income, or may in the event of the exercise of any power vested in any other person become entitled to the beneficial enjoyment of the income, or
(e) the individual is able, in any manner whatever and whether directly or indirectly, to control the application of the income.
(7) In determining whether an individual has power to enjoy income within the meaning of this section, regard shall be had to the substantial result and effect of the transfer and any associated operations, and all benefits which may at any time accrue to the individual (whether or not the individual has rights at law or in equity in or to those benefits) as a result of the transfer and any associated operations shall be taken into account irrespective of the nature or form of the benefits.
(8) Subsections (4) and (5) shall not apply where the individual shows in writing or otherwise to the satisfaction of the Revenue Commissioners—
(a) that the purpose of avoiding liability to taxation was not the purpose or one of the purposes for which the transfer or associated operations or any of them was effected, or
(b) that the transfer and any associated operations were bona fide commercial transactions and were not designed for the purpose of avoiding liability to taxation.
(9) In any case where a person is aggrieved by a decision taken by the Revenue Commissioners in exercise of their functions under subsection (8), the person shall be entitled to appeal to the Appeal Commissioners against the decision of the Revenue Commissioners and the Appeal Commissioners shall hear and determine the appeal as if it were an appeal against an assessment to tax, and the provisions of the Income Tax Acts 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.
num: 807
paragraphs: —(1) Income tax chargeable by virtue of section 806 shall be charged under Case IV of Schedule D.
(2) In computing the liability to income tax of an individual chargeable by virtue of section 806 , the same deductions and reliefs shall be allowed as would have been allowed if the income deemed to be income of the individual by virtue of that section had actually been received by the individual.
(3) Where an individual has been charged to income tax on any income deemed to be income of the individual by virtue of section 806 and that income is subsequently received by the individual, it shall be deemed not to form part of the individual's income again for the purposes of the Income Tax Acts.
num: 808
paragraphs: —(1) In this section, “settlement” and “settlor” have the same meanings respectively as in section 10 .
(2) The Revenue Commissioners or such officer as the Revenue Commissioners may appoint may by notice in writing require any person to furnish them within such time as they may direct (not being less than 28 days) with such particulars as they think necessary for the purposes of sections 806 , 807 and 809 .
(3) The particulars which a person shall furnish under this section, if required by such a notice to do so, shall include particulars as to—
(a) transactions with respect to which the person is or was acting on behalf of others;
(b) transactions which in the opinion of the Revenue Commissioners, or of such officer as the Revenue Commissioners may appoint, it is proper that they should investigate for the purposes of sections 806 , 807 and 809 , notwithstanding that in the opinion of the person to whom the notice is given no liability to tax arises under those sections;
(c) whether the person to whom the notice is given has taken or is taking any (and if so what) part in any (and if so what) transactions of a description specified in the notice.
(4) Notwithstanding anything in subsection (3), a solicitor shall not be deemed for the purposes of paragraph (c) of that subsection to have taken part in a transaction by reason only that the solicitor has given professional advice to a client in connection with that transaction, and shall not, in relation to anything done by the solicitor on behalf of a client, be compellable under this section, except with the consent of the client, to do more than state that the solicitor is or was acting on behalf of a client, and specify the name and address of the client and also—
(a) in the case of anything done by the solicitor in connection with the transfer of any asset by or to an individual ordinarily resident in the State to or by any body corporate mentioned in subsection (5), or in connection with any associated operation in relation to any such transfer, to specify the names and addresses of the transferor and the transferee or of the persons concerned in the associated operation, as the case may be;
(b) in the case of anything done by the solicitor in connection with the formation or management of any body corporate mentioned in subsection (5), to specify the name and address of the body corporate;
(c) in the case of anything done by the solicitor in connection with the creation, or with the execution of the trusts, of any settlement by virtue or in consequence of which income becomes payable to a person resident or domiciled out of the State, to specify the names and addresses of the settlor and of that person.
(5) The bodies corporate referred to in subsection (4) are bodies corporate resident or incorporated outside the State which are, or if resident in the State would be, close companies within the meaning of sections 430 and 431 .
(6) Nothing in this section shall impose on any bank the obligation to furnish any particulars of any ordinary banking transactions between the bank and a customer carried out in the ordinary course of banking business, unless the bank has acted or is acting on behalf of the customer in connection with the formation or management of any body corporate mentioned in subsection (4)(b) or in connection with the creation, or with the execution of the trusts, of any settlement mentioned in subsection (4)(c).
num: 809
paragraphs: —Where any income of any person is by virtue of the Income Tax Acts, and in particular, but without prejudice to the generality of the foregoing, by virtue of section 806 , to be deemed to be income of any other person, that income shall not be exempt from tax either—
(a) as being derived from any stock or other security to which section 43 , 47 , 49 or 50 applies, or
(b) by virtue of section 35 or 63 ,
by reason of the first-mentioned person not being resident, or not being ordinarily resident, or being neither domiciled nor ordinarily resident, in the State.
num: 810
paragraphs: —The provisions of the Income Tax Acts relating to the charge, assessment, collection and recovery of tax, to appeals against assessments and to cases to be stated for the opinion of the High Court shall apply to income tax chargeable by virtue of section 806 subject to any necessary modifications.
num: 811
paragraphs: —(1) (a) In this section—
“the Acts” means—
(i) the Tax Acts,
(ii) the Capital Gains Tax Acts,
(iii) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(iv) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(v) Part VI of the Finance Act, 1983 , and the enactments amending or extending that Part, and
(vi) the statutes relating to stamp duty,
and any instruments made thereunder;
“business” means any trade, profession or vocation;
“notice of opinion” means a notice given by the Revenue Commissioners under subsection (6);
“tax” means any tax, duty, levy or charge which in accordance with the Acts is placed under the care and management of the Revenue Commissioners and any interest, penalty or other amount payable pursuant to the Acts;
“tax advantage” means—
(i) a reduction, avoidance or deferral of any charge or assessment to tax, including any potential or prospective charge or assessment, or
(ii) a refund of or a payment of an amount of tax, or an increase in an amount of tax, refundable or otherwise payable to a person,
including any potential or prospective amount so refundable or payable,
arising out of or by reason of a transaction, including a transaction where another transaction would not have been undertaken or arranged to achieve the results, or any part of the results, achieved or intended to be achieved by the transaction;
“tax avoidance transaction” has the meaning assigned to it by subsection (2);
“tax consequences”, in relation to a tax avoidance transaction, means such adjustments and acts as may be made and done by the Revenue Commissioners pursuant to subsection (5) in order to withdraw or deny the tax advantage resulting from the tax avoidance transaction;
“transaction” means—
(i) any transaction, action, course of action, course of conduct, scheme, plan or proposal,
(ii) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable or intended to be enforceable by legal proceedings, and
(iii) any series of or combination of the circumstances referred to in paragraphs (i) and (ii),
whether entered into or arranged by one person or by 2 or more persons—
(I) whether acting in concert or not,
(II) whether or not entered into or arranged wholly or partly outside the State, or
(III) whether or not entered into or arranged as part of a larger transaction or in conjunction with any other transaction or transactions.
(b) In subsections (2) and (3), for the purposes of the hearing or rehearing under subsection (8) of an appeal made under subsection (7) or for the purposes of the determination of a question of law arising on the statement of a case for the opinion of the High Court, the references to the Revenue Commissioners shall, subject to any necessary modifications, be construed as references to the Appeal Commissioners or to a judge of the Circuit Court or, to the extent necessary, to a judge of the High Court, as appropriate.
(2) For the purposes of this section and subject to subsection (3), a transaction shall be a “tax avoidance transaction” if having regard to any one or more of the following—
(a) the results of the transaction,
(b) its use as a means of achieving those results, and
(c) any other means by which the results or any part of the results could have been achieved,
the Revenue Commissioners form the opinion that—
(i) the transaction gives rise to, or but for this section would give rise to, a tax advantage, and
(ii) the transaction was not undertaken or arranged primarily for purposes other than to give rise to a tax advantage,
and references in this section to the Revenue Commissioners forming an opinion that a transaction is a tax avoidance transaction shall be construed as references to the Revenue Commissioners forming an opinion with regard to the transaction in accordance with this subsection.
(3) (a) Without prejudice to the generality of subsection (2), in forming an opinion in accordance with that subsection and subsection (4) as to whether or not a transaction is a tax avoidance transaction, the Revenue Commissioners shall not regard the transaction as being a tax avoidance transaction if they are satisfied that—
(i) notwithstanding that the purpose or purposes of the transaction could have been achieved by some other transaction which would have given rise to a greater amount of tax being payable by the person, the transaction—
(I) was undertaken or arranged by a person with a view, directly or indirectly, to the realisation of profits in the course of the business activities of a business carried on by the person, and
(II) was not undertaken or arranged primarily to give rise to a tax advantage,
or
(ii) the transaction was undertaken or arranged for the purpose of obtaining the benefit of any relief, allowance or other abatement provided by any provision of the Acts and that the transaction would not result directly or indirectly in a misuse of the provision or an abuse of the provision having regard to the purposes for which it was provided.
(b) In forming an opinion referred to in paragraph (a) in relation to any transaction, the Revenue Commissioners shall have regard to—
(i) the form of that transaction,
(ii) the substance of that transaction,
(iii) the substance of any other transaction or transactions which that transaction may reasonably be regarded as being directly or indirectly related to or connected with, and
(iv) the final outcome and result of that transaction and any combination of those other transactions which are so related or connected.
(4) Subject to this section, the Revenue Commissioners as respects any transaction may at any time—
(a) form the opinion that the transaction is a tax avoidance transaction,
(b) calculate the tax advantage which they consider arises, or which but for this section would arise, from the transaction,
(c) determine the tax consequences which they consider would arise in respect of the transaction if their opinion were to become final and conclusive in accordance with subsection (5)(e), and
(d) calculate the amount of any relief from double taxation which they would propose to give to any person in accordance with subsection (5)(c).
(5) (a) Where the opinion of the Revenue Commissioners that a transaction is a tax avoidance transaction becomes final and conclusive, they may, notwithstanding any other provision of the Acts, make all such adjustments and do all such acts as are just and reasonable (in so far as those adjustments and acts have been specified or described in a notice of opinion given under subsection (6) and subject to the manner in which any appeal made under subsection (7) against any matter specified or described in the notice of opinion has been finally determined, including any adjustments and acts not so specified or described in the notice of opinion but which form part of a final determination of any such appeal) in order that the tax advantage resulting from a tax avoidance transaction shall be withdrawn from or denied to any person concerned.
(b) Subject to but without prejudice to the generality of paragraph (a), the Revenue Commissioners may—
(i) allow or disallow in whole or in part any deduction or other amount which is relevant in computing tax payable, or any part of such deduction or other amount,
(ii) allocate or deny to any person any deduction, loss, abatement, relief, allowance, exemption, income or other amount, or any part thereof, or
(iii) recharacterize for tax purposes the nature of any payment or other amount.
(c) Where the Revenue Commissioners make any adjustment or do any act for the purposes of paragraph (a), they shall afford relief from any double taxation which they consider would but for this paragraph arise by virtue of any adjustment made or act done by them pursuant to paragraphs (a) and (b).
(d) Notwithstanding any other provision of the Acts, where—
(i) pursuant to subsection (4)(c), the Revenue Commissioners determine the tax consequences which they consider would arise in respect of a transaction if their opinion that the transaction is a tax avoidance transaction were to become final and conclusive, and
(ii) pursuant to that determination, they specify or describe in a notice of opinion any adjustment or act which they consider would be, or be part of, those tax consequences,
then, in so far as any right of appeal lay under subsection (7) against any such adjustment or act so specified or described, no right or further right of appeal shall lie under the Acts against that adjustment or act when it is made or done in accordance with this subsection, or against any adjustment or act so made or done that is not so specified or described in the notice of opinion but which forms part of the final determination of any appeal made under subsection (7) against any matter specified or described in the notice of opinion.
(e) For the purposes of this subsection, an opinion of the Revenue Commissioners that a transaction is a tax avoidance transaction shall be final and conclusive—
(i) if within the time limited no appeal is made under subsection (7) against any matter or matters specified or described in a notice or notices of opinion given pursuant to that opinion, or
(ii) as and when all appeals made under subsection (7) against any such matter or matters have been finally determined and none of the appeals has been so determined by an order directing that the opinion of the Revenue Commissioners to the effect that the transaction is a tax avoidance transaction is void.
(6) (a) Where pursuant to subsections (2) and (4) the Revenue Commissioners form the opinion that a transaction is a tax avoidance transaction, they shall immediately on forming such an opinion give notice in writing of the opinion to any person from whom a tax advantage would be withdrawn or to whom a tax advantage would be denied or to whom relief from double taxation would be given if the opinion became final and conclusive, and the notice shall specify or describe—
(i) the transaction which in the opinion of the Revenue Commissioners is a tax avoidance transaction,
(ii) the tax advantage or part of the tax advantage, calculated by the Revenue Commissioners which would be withdrawn from or denied to the person to whom the notice is given,
(iii) the tax consequences of the transaction determined by the Revenue Commissioners in so far as they would refer to the person, and
(iv) the amount of any relief from double taxation calculated by the Revenue Commissioners which they would propose to give to the person in accordance with subsection (5)(c).
(b) Section 869 shall, with any necessary modifications, apply for the purposes of a notice given under this subsection or subsection (10) as if it were a notice given under the Income Tax Acts.
(7) Any person aggrieved by an opinion formed or, in so far as it refers to the person, a calculation or determination made by the Revenue Commissioners pursuant to subsection (4) may, by notice in writing given to the Revenue Commissioners within 30 days of the date of the notice of opinion, appeal to the Appeal Commissioners on the grounds and, notwithstanding any other provision of the Acts, only on the grounds that, having regard to all of the circumstances, including any fact or matter which was not known to the Revenue Commissioners when they formed their opinion or made their calculation or determination, and to this section—
(a) the transaction specified or described in the notice of opinion is not a tax avoidance transaction,
(b) the amount of the tax advantage or the part of the tax advantage, specified or described in the notice of opinion which would be withdrawn from or denied to the person is incorrect,
(c) the tax consequences specified or described in the notice of opinion, or such part of those consequences as shall be specified or described by the appellant in the notice of appeal, would not be just and reasonable in order to withdraw or to deny the tax advantage or part of the tax advantage specified or described in the notice of opinion, or
(d) the amount of relief from double taxation which the Revenue Commissioners propose to give to the person is insufficient or incorrect.
(8) The Appeal Commissioners shall hear and determine an appeal made to them under subsection (7) as if it were an appeal against an assessment to income tax and, subject to subsection (9), the provisions of the Income Tax Acts 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; but on the hearing or rehearing of the appeal—
(a) it shall not be lawful to enquire into any grounds of appeal other than those specified in subsection (7), and
(b) at the request of the appellants, 2 or more appeals made by 2 or more persons pursuant to the same opinion, calculation or determination formed or made by the Revenue Commissioners pursuant to subsection (4) may be heard or reheard together.
(9) (a) On the hearing of an appeal made under subsection (7), the Appeal Commissioners shall have regard to all matters to which the Revenue Commissioners may or are required to have regard under this section, and—
(i) in relation to an appeal made on the grounds referred to in subsection (7)(a), the Appeal Commissioners shall determine the appeal, in so far as it is made on those grounds, by ordering, if they or a majority of them—
(I) consider that the transaction specified or described in the notice of opinion or any part of that transaction is a tax avoidance transaction, that the opinion or the opinion in so far as it relates to that part is to stand,
(II) consider that, subject to such amendment or addition thereto as the Appeal Commissioners or the majority of them deem necessary and as they shall specify or describe, the transaction, or any part of it, specified or described in the notice of opinion, is a tax avoidance transaction, that the transaction or that part of it be so amended or added to and that, subject to the amendment or addition, the opinion or the opinion in so far as it relates to that part is to stand, or
(III) do not so consider as referred to in clause (I) or (II), that the opinion is void,
(ii) in relation to an appeal made on the grounds referred to in subsection (7)(b), they shall determine the appeal, in so far as it is made on those grounds, by ordering that the amount of the tax advantage or the part of the tax advantage specified or described in the notice of opinion be increased or reduced by such amount as they shall direct or that it shall stand,
(iii) in relation to an appeal made on the grounds referred to in subsection (7)(c), they shall determine the appeal, in so far as it is made on those grounds, by ordering that the tax consequences specified or described in the notice of opinion shall be altered or added to in such manner as they shall direct or that they shall stand, or
(iv) in relation to an appeal made on the grounds referred to in subsection (7)(d), they shall determine the appeal, in so far as it is made on those grounds, by ordering that the amount of the relief from double taxation specified or described in the notice of opinion shall be increased or reduced by such amount as they shall direct or that it shall stand.
(b) This subsection shall, subject to any necessary modifications, apply to the rehearing of an appeal by a judge of the Circuit Court and, to the extent necessary, to the determination by the High Court of any question or questions of law arising on the statement of a case for the opinion of the High Court.
(10) The Revenue Commissioners may at any time amend, add to or withdraw any matter specified or described in a notice of opinion by giving notice (in this subsection referred to as “the notice of amendment”) in writing of the amendment, addition or withdrawal to each and every person affected thereby, in so far as the person is so affected, and subsections (1) to (9) shall apply in all respects as if the notice of amendment were a notice of opinion and any matter specified or described in the notice of amendment were specified or described in a notice of opinion; but no such amendment, addition or withdrawal may be made so as to set aside or alter any matter which has become final and conclusive on the determination of an appeal made with regard to that matter under subsection (7).
(11) Where pursuant to subsections (2) and (4) the Revenue Commissioners form the opinion that a transaction is a tax avoidance transaction and pursuant to that opinion notices are to be given under subsection (6) to 2 or more persons, any obligation on the Revenue Commissioners to maintain secrecy or any other restriction on the disclosure of information by the Revenue Commissioners shall not apply with respect to the giving of those notices or to the performance of any acts or the discharge of any functions authorised by this section to be performed or discharged by them or to the performance of any act or the discharge of any functions, including any act or function in relation to an appeal made under subsection (7), which is directly or indirectly related to the acts or functions so authorised.
(12) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions, including the forming of an opinion, authorised by this section to be performed or discharged by the Revenue Commissioners, and references in this section to the Revenue Commissioners shall with any necessary modifications be construed as including references to an officer so nominated.
(13) This section shall apply as respects any transaction where the whole or any part of the transaction is undertaken or arranged on or after the 25th day of January, 1989, and as respects any transaction undertaken or arranged wholly before that date in so far as it gives rise to, or would but for this section give rise to—
(a) a reduction, avoidance or deferral of any charge or assessment to tax, or part thereof, where the charge or assessment arises by virtue of any other transaction carried out wholly on or after a date, or
(b) a refund or a payment of an amount, or of an increase in an amount, of tax, or part thereof, refundable or otherwise payable to a person where that amount or increase in the amount would otherwise become first so refundable or otherwise payable to the person on a date,
which could not fall earlier than the 25th day of January, 1989.
num: 812
paragraphs: —(1) In this section—
“interest” includes dividends, annuities and shares of annuities;
“securities” include stocks and shares of all descriptions.
(2) Where in any year of assessment or accounting period an owner (in this section referred to as “the owner”) of any securities sells or transfers the right to receive any particular interest payable (whether before or after such sale or transfer) in respect of those securities without selling or transferring those securities, then, and in every such case, the following provisions shall apply:
(a) for the purposes of the Tax Acts that interest (whether it would or would not be chargeable to tax if this section had not been enacted)—
(i) shall be deemed to be the income of the owner or, where the owner is not the beneficial owner of the securities and some other person (in this section referred to as “the beneficiary”) is beneficially entitled to the income arising from the securities, the income of the beneficiary,
(ii) shall be deemed to be income of the owner or the beneficiary, as the case may be, for that year of assessment or accounting period, as the case may be,
(iii) shall not be deemed to be income of any other person, and
num: 813
paragraphs: —(1) This section shall apply as respects any transaction effected with reference to the lending of money or the giving of credit, or the varying of the terms on which money is loaned or credit is given, or which is effected with a view to enabling or facilitating any such arrangement concerning the lending of money or the giving of credit.
(2) Subsection (1) shall apply whether the transaction is effected between the lender or creditor and the borrower or debtor, or between either of them and a person connected with the other or between a person connected with one and a person connected with the other.
num: 814
paragraphs: —(1) In this section—
“assignable deposit” means a deposit of money in any currency, which has been deposited with any person, whether it is to be repaid with or without interest and which at the direction of the depositor may be assigned with or without interest to another person;
“certificate of deposit” means a document relating to money in any currency, which has been deposited with the issuer or some other person, being a document which recognises an obligation to pay a stated amount to bearer or to order, with or without interest, and being a document by the delivery of which, with or without endorsement, the right to receive that stated amount, with or without interest, is transferable.
(2) This section shall apply to any right—
(a) to receive from any person an amount of money, with or without interest, which is stated in a certificate of deposit issued to the person who has deposited the money or to any other person, or
(b) to receive from any person an amount of money, with or without interest, being a right arising from an assignable deposit which may be assigned or transferred to another person by the person who has deposited the money or by any person who has acquired the right to do so.
num: 815
paragraphs: —(1) In this section—
“owner”, in relation to securities, means at any time the person who would be entitled, if the securities were redeemed at that time by the person who issued them, to the proceeds of the redemption;
“securities” includes—
(a) assets which are not chargeable assets for the purposes of capital gains tax by virtue of section 607 , and
(b) stocks, bonds and obligations of any government, municipal corporation, company or other body corporate, whether creating or evidencing a charge on assets or not,
but does not include shares (within the meaning of the Companies Act, 1963 ) of a company (within the meaning of that Act) or similar body.
(2) (a) Subject to paragraphs (b) to (d) and subsection (3), where the owner of a security (in this subsection referred to as “the owner”) sells or transfers, or causes or authorises to be sold or transferred, the security and where any interest payable in respect of the security is receivable otherwise than by the owner, then, for the purposes of this section—
(i) interest payable in respect of the security shall be deemed for the purposes of the Tax Acts to have accrued on a day to day basis from the date on which the owner acquired the security, and
num: 816
paragraphs: —(1) In this section—
“company” means any body corporate;
“quoted company” means a company whose shares or any class of whose shares—
(a) are listed in the official list of the Irish Stock Exchange or any other stock exchange, or
(b) are dealt in on the smaller companies market, the unlisted securities market or the exploration securities market of the Irish Stock Exchange or on any similar or corresponding market of any other stock exchange;
“share” means share in the share capital of a company and, other than in the definition of “quoted company”, includes stock and any other interest in the company.
(2) Where any person as a consequence of the exercise (whether before, on or after the declaration of a distribution of profits by a company which is not a quoted company) of an option to receive in respect of shares in the company either a sum in cash or additional share capital of the company receives such additional share capital, that person shall be deemed for the purposes of the Tax Acts to have received from the company, instead of such share capital, income equal to the sum that person would have received if that person had received the distribution in cash.
(3) Any income deemed under subsection (2) to have been received from a company by a person shall—
num: 817
paragraphs: —(1) (a) In this section—
“appeal” means an appeal made in accordance with section 933 ;
“close company” has the same meaning as it has, by virtue of sections 430 and 431 , for the purposes of the Corporation Tax Acts;
“market value” shall be construed in accordance with section 548 ;
“new consideration” has the same meaning as in section 135 ;
“shares” includes loan stock, debentures and any interest or rights in or over, or any option in relation to, shares, loan stock or debentures, and references to “shareholder” shall be construed accordingly.
(b)(i) For the purposes of this section, there shall be a disposal of shares by a shareholder where the shareholder disposes of shares or is treated under the Capital Gains Tax Acts as disposing of shares, and references to a disposal of shares shall include references to a part disposal of shares within the meaning of those Acts.
(ii) Where under any arrangement between a close company (in this subparagraph referred to as “the first-mentioned company”) and its, or some of its, shareholders (being any arrangement similar to an arrangement entered into for the purposes of or in connection with a scheme of reconstruction or amalgamation) another close company issues shares to those shareholders in respect of or in proportion to (or as nearly as may be in proportion to) their holdings of shares in the first-mentioned company, but the shares in the first-mentioned company are either retained by the shareholders or are cancelled, then, those shareholders shall for the purposes of this section be treated as making a disposal or a part disposal, as the case may be, of the shares in the first-mentioned company in exchange for those shares held by them in consequence of such arrangement.
(c) For the purposes of this section, the interest of a shareholder in a trade or business shall not be significantly reduced following a disposal of shares, or the carrying out of a scheme or arrangement of which the disposal of shares is a part, only if at any time after the disposal the percentage of—
(i) the ordinary share capital of the close company carrying on the trade or business at such time which is beneficially owned by the shareholder at such time,
(ii) any profits, which are available for distribution to equity holders, of the close company carrying on the trade or business at such time to which the shareholder is beneficially entitled at such time, or
(iii) any assets, available for distribution to equity holders on a winding up, of the close company carrying on the trade or business at such time to which the shareholder would be beneficially entitled at such time on a winding up of the close company, is not significantly less than the percentage of that ordinary share capital or those profits or assets, as the case may be, of the close company carrying on the trade or business at any time before the disposal—
(I) which the shareholder beneficially owned, or
(II) to which the shareholder was beneficially entitled,
at such time before the disposal, and sections 413 to 415 and section 418 shall apply, but without regard to section 411 (1)(c) in so far as it relates to those sections, with any necessary modifications, to the determination for the purposes of this paragraph of the percentage of share capital or other amount which a shareholder beneficially owns or is beneficially entitled to, as they apply to the determination for the purposes of Chapter 5 of Part 12 of the percentage of any such amount which a company so owns or is so entitled to.
(d) The value of any amount received in money's worth shall for the purposes of this section be the market value of the money's worth at the time of its receipt.
num: 818
paragraphs: —In this Part other than in section 825 —
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts, and
(c) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
and any instruments made thereunder;
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing for the purposes of this Part;
“present in the State”, in relation to an individual, means the personal presence of the individual in the State;
“tax” means any tax payable in accordance with any provision of the Acts.
num: 819
paragraphs: —(1) For the purposes of the Acts, an individual shall be resident in the State for a year of assessment if the individual is present in the State—
(a) at any one time or several times in the year of assessment for a period in the whole amounting to 183 days or more, or
(b) at any one time or several times—
(i) in the year of assessment, and
(ii) in the preceding year of assessment,
for a period (being a period comprising in the aggregate the number of days on which the individual is present in the State in the year of assessment and the number of days on which the individual was present in the State in the preceding year of assessment) in the aggregate amounting to 280 days or more.
(2) Notwithstanding subsection (1)(b), where for a year of assessment an individual is present in the State at any one time or several times for a period in the aggregate amounting to not more than 30 days—
(a) the individual shall not be resident in the State for the year of assessment, and
(b) no account shall be taken of the period for the purposes of the aggregate mentioned in subsection (1)(b).
(3) (a) Notwithstanding subsections (1) and, (2), an individual—
(i) who is not resident in the State for a year of assessment, and
(ii) to whom paragraph (b) applies,
may at any time elect to be treated as resident in the State for that year and, where an individual so elects, the individual shall for the purposes of the Acts be deemed to be resident in the State for that year.
(b) This paragraph shall apply to an individual who satisfies an authorised officer that the individual is in the State—
(i) with the intention, and
(ii) in such circumstances,
that the individual will be resident in the State for the following year of assessment.
(4) For the purposes of this section, an individual shall be deemed to be present in the State for a day if the individual is present in the State at the end of the day.
num: 820
paragraphs: —(1) For the purposes of the Acts, an individual shall be ordinarily resident in the State for a year of assessment if the individual has been resident in the State for each of the 3 years of assessment preceding that year.
(2) An individual ordinarily resident in the State shall not for the purposes of the Acts cease to be ordinarily resident in the State for a year of assessment unless the individual has not been resident in the State in each of the 3 years of assessment preceding that year.
num: 821
paragraphs: —(1) Where an individual is not resident but is ordinarily resident in the State, sections 17 and 18(1) and Chapter 1 of Part 3 shall apply as if the individual were resident in the State; but this section shall not apply in respect of—
(a) the income of an individual derived from one or more of the following—
(i) a trade or profession, no part of which is carried on in the State, and
(ii) an office or employment, all the duties of which are performed outside the State, and
(b) other income of an individual which in any year of assessment does not exceed £3,000.
(2) In determining for the purposes of subsection (1) whether the duties of an office or employment are performed outside the State, any duties performed in the State, the performance of which is merely incidental to the performance of the duties of the office or employment outside the State, shall be treated as having been performed outside the State.
num: 822
paragraphs: —(1) For the purposes of a charge to tax on any income, profits or gains from an employment, where during a year of assessment (in this section referred to as “the relevant year”)—
(a)(i) an individual who has not been resident in the State for the preceding year of assessment satisfies an authorised officer that the individual is in the State—
(I) with the intention, and
(II) in such circumstances,
that the individual will be resident in the State for the following year of assessment, or
(ii) an individual who is resident in the State satisfies an authorised officer that the individual is leaving the State, other than for a temporary purpose—
(I) with the intention, and
(II) in such circumstances,
that the individual will not be resident in the State for the following year of assessment,
and
(b) the individual would but for this section be resident in the State for the relevant year,
subsection (2) shall apply in relation to the individual.
(2) (a) An individual to whom paragraphs (a)(i) and (b) of subsection (1) apply shall be deemed to be resident in the State for the relevant year only from the date of his or her arrival in the State.
(b) An individual to whom paragraphs (a)(ii) and (b) of subsection (1) apply shall be deemed to be resident in the State for the relevant year only up to and including the date of his or her leaving the State.
(3) Where by virtue of this section an individual is resident in the State for part of a year of assessment, the Acts shall apply as if—
(a) income arising during that part of the year or, in a case to which section 71 (3) applies, amounts received in the State during that part of the year were income arising or amounts received for a year of assessment in which the individual is resident in the State, and
(b) income arising or, as the case may be, amounts received in the remaining part of the year were income arising or amounts received in a year of assessment in which the individual is not resident in the State.
num: 823
paragraphs: —(1) In this section—
“qualifying day”, in relation to an office or employment of an individual, means a day which is—
(a) one of at least 14 consecutive days on which the individual is absent from the State for the purposes of the performance of the duties of the office or employment or of those duties and the duties of other offices or employments of the individual outside the State and which (taken as a whole) are substantially devoted to the performance of such duties, and
(b) one on which the individual concerned is absent from the State at the end of the day,
but no day shall be counted more than once as a qualifying day;
“relevant period”, in relation to a year of assessment, means a continuous period of 12 months—
(a) part only of which is comprised in the year of assessment, and
(b) no part of which is comprised in another relevant period;
“the specified amount” means an amount determined by the formula—
D × E
_______
365
where—
D is the number of qualifying days in the year of assessment concerned, and
num: 824
paragraphs: —(1) An individual aggrieved by a decision of an authorised officer on any question arising under the provisions of this Chapter which require an individual to satisfy an authorised officer on such a question may, by notice in writing to that effect given to the authorised officer within 2 months from the date on which notice of the decision is given to the individual, make an application to have the question heard and determined by the Appeal Commissioners.
(2) Where an application is made under subsection (1), the Appeal Commissioners shall hear and determine the question concerned in the like manner as an appeal made to them against an assessment, and the provisions of the 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.
num: 825
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts, and
(c) the Capital Acquisitions Tax Act, 1976 ;
“donor” means an individual who makes a gift to the State;
“gift” means a gift of property to the State which, on acceptance of the gift by the Government pursuant to the State Property Act, 1954 , becomes vested pursuant to that Act in a State authority within the meaning of that Act;
“Irish tax” means any tax imposed by the Acts;
“property” includes interests and rights of any description;
“relevant date”, in relation to an individual (being a donor or the spouse of a donor), means the date (not being earlier than the 1st day of September, 1974) on which the individual leaves the State for the purpose of residence (other than occasional residence) outside the State;
“tax in that country” means any tax imposed in that country which is identical with or substantially similar to Irish tax;
“visits” means—
(a) in relation to a donor, visits by the donor to the State after the relevant date for the purpose of advising on the management of the property which is the subject of the gift, being visits that are in the aggregate less than 182 days in any year of assessment in which they are made, and
(b) in relation to the spouse of a donor, visits by that spouse when accompanying the donor on visits of the kind referred to in paragraph (a).
(2) Where for any year of assessment a person (being a donor or the spouse of a donor) is resident in a country outside the State for the purposes of tax in that country and is chargeable to that tax without any limitation as to chargeability, then, notwithstanding anything to the contrary in the Tax Acts—
(a) as respects the year of assessment in which the relevant date occurs, that person shall not as from the relevant date be regarded as ordinarily resident in the State for the purposes of Irish tax, and
(b) as respects any subsequent year of assessment, in determining whether that person is resident or ordinarily resident in the State for the purposes of Irish tax, visits shall be disregarded.
num: 826
paragraphs: —(1) Where the Government by order declare that arrangements specified in the order have been made with the government of any territory outside the State in relation to affording relief from double taxation in respect of—
(a) income tax;
(b) corporation tax in respect of income and chargeable gains;
(c) any taxes of a similar character imposed by the laws of the State or by the laws of that territory; and that it is expedient that those arrangements should have the force of law, then, subject to this section and sections 168 and 833 to 835 , the arrangements shall, notwithstanding any enactment other than section 168 , have the force of law.
num: 827
paragraphs: —Subject to any express amendments made by the Corporation Tax Acts and except in so far as arrangements made on or after the 31st day of March, 1976, provide otherwise, any arrangements made under section 361 of the Income Tax Act, 1967 , or any earlier enactment corresponding to that section, in relation to corporation profits tax shall apply in relation to corporation tax and income and chargeable gains chargeable to corporation tax as they are expressed to apply in relation to corporation profits tax and profits chargeable to corporation profits tax, and not as they apply in relation to income tax; but this section shall not affect the operation, as they apply to corporation tax, of section 826 (7) and paragraph 12 of Schedule 24 .
num: 828
paragraphs: —(1) For the purposes of giving relief from double taxation in relation to capital gains tax charged under the law of any country outside the State, in section 826 and Schedule 24 as they apply for the purposes of income tax, for references to income there shall be substituted references to chargeable gains, for references to the Income Tax Acts there shall be substituted references to the Capital Gains Tax Acts and for references to income tax there shall be substituted references to capital gains tax meaning, as the context may require, tax charged under the law of the State or tax charged under the law of a country outside the State.
num: 829
paragraphs: —(1) This section shall apply to any relief given with a view to promoting industrial, commercial, scientific, educational or other development in a territory outside the State.
num: 830
paragraphs: —(1) In this section—
“accounting period” includes a part of an accounting period;
“external tax” means a tax chargeable and payable under the law of the territory in which the paying company is resident, being a territory to which this section applies, and which corresponds to Irish corporation tax or income tax or both of those taxes, but a tax payable under the law of a province, state or other part of a country, or which is levied by or on behalf of a municipality or other local body, shall for the purposes of this subsection be deemed not to correspond to those taxes.
(2) This section shall apply to every territory other than—
(a) Northern Ireland and Great Britain,
(b) the United States of America, and
(c) a territory with the Government of which arrangements are for the time being in force by virtue of section 826 .
(3) Where a company (in this section referred to as “the investing company”) has paid by deduction or otherwise, or is liable to pay, by reference to any part of its income arising in a territory to which this section applies, tax for any accounting period and it is shown to the satisfaction of the Revenue Commissioners that—
(a) that part of the investing company's income consists of a dividend or interest paid to it by a company resident in the territory (in this section referred to as “the paying company”) not less than 50 per cent of the voting power in which is controlled directly or indirectly by the investing company,
(b) that dividend or interest arose from the investment in the paying company by the investing company, whether by means of loan or otherwise, of a sum or sums representing—
(i) profits the Irish tax referable to which was reduced to nil under—
(I) Part III of the Finance (Miscellaneous Provisions) Act, 1956 ,
(II) Chapter IV of Part XXV of the Income Tax Act, 1967 , or
(III) Part IV of the Corporation Tax Act, 1976 ,
(ii) such proportion of profits the Irish tax referable to which was reduced otherwise than to nil under those provisions as is equal to the proportion by which that Irish tax has been so reduced, or
(iii) profits arising from exempted trading operations which by virtue of—
(I) Parts I and II of the Finance (Miscellaneous Provisions) Act, 1958 ,
(II) Chapter I of Part XXV of the Income Tax Act, 1967 , or
(III) Part V of the Corporation Tax Act, 1976 ,
were not, in relation to the company by which such operations were carried on, taken into account for any purpose of—
(A) the Income Tax Acts,
(B) Part V of the Finance Act, 1920 , and the enactments amending or extending that Part, or
(C) the Corporation Tax Acts,
and
(c) the investing company has paid external tax in the territory in respect of that part of its income,
then, the Revenue Commissioners may grant to the investing company in respect of that accounting period such relief as is just with a view to affording relief in respect of the double taxation of that part of the investing company's income, but not exceeding the lesser of—
(aa) 50 per cent of the total of the corporation tax which but for this section would be payable by the investing company in respect of that part of its income, and
(bb) the amount of the external tax paid or payable in the territory in respect of that part of its income after deduction of any relief to which the company may be entitled in that territory.
(4) (a) External tax paid by the paying company in respect of its profits shall be taken into account in considering whether any, and if so what, relief ought to be allowed in respect of a dividend paid by the paying company to the investing company, and for the purposes of this section (other than this subsection) such tax or the appropriate part of such tax shall be regarded as external tax paid by the investing company.
num: 831
paragraphs: —(1) (a) In this section—
“arrangements” means arrangements having the force of law by virtue of section 826 ;
“bilateral agreement” means any arrangements, protocol or other agreement between the Government and the government of another Member State;
“company” means a company of a Member State;
“company of a Member State” has the meaning assigned to it by Article 2 of the Directive;
“the Directive” means Council Directive No. 90/435/EEC of 23 July 19901 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States;
“distribution” means income from shares or from other rights, not being debt claims, to participate in a company's profits, and includes any amount assimilated to income from shares under the taxation laws of the State of which the company making the distribution is resident;
“foreign tax” means any tax which—
(i) is payable under the laws of a Member State other than the State, and
(ii) (I) is specified in paragraph (c) of Article 2 of the Directive, or
(II) is substituted for and is substantially similar to a tax so specified;
“Member State” means a Member State of the European Communities;
“parent company” means a company resident in the State which owns at least 25 per cent of the share capital of a company not so resident, but where a bilateral agreement contains a provision to the effect—
(i) that a company shall only be a parent company during any uninterrupted period of at least 2 years throughout which at least 25 per cent of the share capital of the company not resident in the State is owned by the first-mentioned company, or
(ii) that—
(I) the requirement (being the requirement for the purposes of this definition) that a company resident in the State own at least 25 per cent of the share capital of the company not so resident shall be treated as a requirement that the company so resident holds at least 25 per cent of the voting rights in the company not so resident, or
(II) that requirement shall be so treated and a company shall only be a parent company during any uninterrupted period of at least 2 years throughout which at least 25 per cent of the voting rights in the company not resident in the State is held by the first-mentioned company,
then, in its application to a company to which the provision in the bilateral agreement applies, this definition shall apply subject to that provision and shall be construed accordingly.
(b) For the purposes of this section, a company shall be a subsidiary of another company which owns shares or holds voting rights in it where the other company's ownership of those shares or holding of those rights is sufficient for that other company to be a parent company.
(c) A word or expression used in this section and in the Directive has, unless the contrary intention appears, the same meaning in this section as in the Directive.
(2) Subject to subsections (3) and (4), where a parent company receives a distribution chargeable in the State to corporation tax, other than a distribution in a winding up, from its subsidiary—
(a) credit shall be allowed for—
(i) any withholding tax charged on the distribution by the Federal Republic of Germany, the Hellenic Republic or the Portuguese Republic, pursuant to the derogations provided for in Article 5 of the Directive, and
(ii) any foreign tax, not chargeable directly or by deduction in respect of the distribution, which is borne by the company making the distribution, and is properly attributable to the proportion of its profits which is represented by the distribution, in so far as that foreign tax exceeds so much of any tax credit in respect of the distribution as is payable to the parent company by the Member State in which the company making the distribution is resident,
against corporation tax in respect of the distribution to the extent that credit for such withholding tax and foreign tax would not otherwise be so allowed, and
(b) notwithstanding Chapter 2 of Part 4 , the distribution shall not be a dividend to which that Chapter applies.
num: 832
paragraphs: —(1) In this section—
num: 833
paragraphs: —(1) Schedule 24 shall apply for the purposes of giving effect to the Convention set out in Schedule 25 concluded on the 13th day of September, 1949, between the Government of Ireland and the Government of the United States of America.
(2) The Revenue Commissioners may from time to time make regulations in relation to the granting of the reliefs specified in the Convention and may in particular by those regulations provide—
(a) for securing that no such reliefs from taxation imposed by the laws of the United States of America as are provided for in the Convention shall enure to the benefit of persons not entitled to such reliefs, and
(b) for authorising, in cases where tax deductible from any periodical payment has, in order to comply with the terms of the Convention, not been deducted and it is discovered that the Convention does not apply to that payment, the recovery of the tax by assessment on the person entitled to the payment or by deduction from subsequent payments.
num: 834
paragraphs: —Exemption shall be granted from tax in respect of so much of the income of a citizen of the United States of America not resident in the State or of a corporation organised in the United States of America as is derived from the operation of a ship or ships documented under the laws of the United States of America.
num: 835
paragraphs: —Notwithstanding the repeal of section 362 of the Income Tax Act, 1967 , by section 23 (1) of the Finance Act, 1987 , where before the 9th day of July, 1987, an order was made under section 362 of the Income Tax Act, 1967 , the arrangement to which the order relates shall continue to have the force of law.
num: 836
paragraphs: —(1) An allowance payable under section 3 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992 , shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.
(2) Sections 114 and 115 shall not apply in relation to expenses in full settlement of which an allowance is payable under section 3 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992 , and no claim shall lie under those sections in respect of those expenses; but where a Minister of the Government, the Attorney General or a Minister of State, being—
(a) a member of DÃ¡il Ãireann for a constituency outside the county borough and the administrative county of Dublin, or
(b) a member of Seanad Ãireann whose main residence is situated outside that county borough and administrative county,
is, arising out of the performance of his or her duties as an office holder or as a member of the Oireachtas, obliged to maintain a second residence in addition to his or her main residence, he or she shall be granted a deduction under section 114 in respect of expenses incurred by him or her in maintaining that second residence.
num: 837
paragraphs: —In assessing the income tax chargeable under any Schedule on a member of the clergy or minister of any religious denomination, the following deductions may be made from any profits, fees or emoluments of his or her profession—
(a) any sums of money paid or expenses incurred by him or her wholly, exclusively and necessarily in the performance of his or her duty as a member of the clergy or minister of any religious denomination;
(b) such part of the rent (not exceeding one-eighth), as the inspector by whom the assessment is made may allow, paid by him or her in respect of a dwelling house any part of which is used mainly and substantially for the purposes of his or her duty as a member of the clergy or minister of any religious denomination.
num: 838
paragraphs: —(1) (a) In this section—
“designated broker” means a person—
(i) which is a dealing member firm of the Irish Stock Exchange or a member firm (which carries on a trade in the State through a branch or agency) of a stock exchange of any other Member State of the European Communities, and
(ii) which has sent to the Revenue Commissioners a notification of its name and address and of its intention to accept specified deposits;
“gains” means chargeable gains within the meaning of the Capital Gains Tax Acts, including gains which but for section 607 would be chargeable gains;
“market value” shall be construed in accordance with section 548 ;
“ordinary shares” means shares forming part of a company's ordinary share capital;
“qualifying shares” means ordinary shares in a company which are—
(i) listed in the official list of the Irish Stock Exchange, or
(ii) quoted on the market known as the Developing Companies Market, or the market known as the Exploration Securities Market, of the Irish Stock Exchange,
other than—
(I) shares in an investment company within the meaning of Part XIII of the Companies Act, 1990 ,
(II) shares in an undertaking for collective investment in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), or
(III) shares in a company, being shares the market value of which may be expected to approximate at all times to the market value of the proportion of the assets of the company which they represent;
“relevant income or gains” means the aggregate of the income and gains, including losses, arising from relevant investments, but only so much of income arising to or gains accruing to the special portfolio investment account shall be relevant income or gains as is or is to be—
(i) paid to, or
(ii) accumulated or invested for the benefit of,
the individual in whose name the special portfolio investment account is held, or would be so paid, accumulated or invested if any gains accruing to the account in accordance with subsection (4)(e) were gains on an actual disposal of the assets concerned;
“relevant investment” means an investment in—
(i) qualifying shares and specified qualifying shares, or
(ii) qualifying shares, specified qualifying shares and securities,
as the case may be, acquired by a designated broker by the expenditure of money contributed by means of a specified deposit, and held by a designated broker in a special portfolio investment account;
“securities” means securities—
(i) issued under the authority of the Minister for Finance, or
(ii) issued by the Electricity Supply Board, Radio TelefÃ­s Ãireann, ICC Bank plc, Bord Telecom Ãireann, Irish Telecommunications Investments plc, CÃ³ras Iompair Ãireann, ACC Bank plc, Bord na MÃ³na, AerlÃ­nte Ãireann cuideachta phoiblÃ­ theoranta, Aer Lingus plc or Aer Rianta cuideachta phoiblÃ­ theoranta,
which are listed in the official list of the Irish Stock Exchange;
“special portfolio investment account” means an account opened on or after the 1st day of February, 1993, in which a relevant investment is held and in respect of which the conditions referred to in paragraph (c) are complied with;
“specified deposit” means a sum of money paid by an individual to a designated broker for the purpose of acquiring assets which will form part of a relevant investment;
“specified qualifying shares”, in relation to a special portfolio investment account, means qualifying shares in a company which when the shares are acquired for the account has an issued share capital the market value of which is less than £100,000,000.
(b) For the purposes of this section, Chapter 4 of Part 8 shall be construed as if—
(i) references to “deposit”, “interest”, “relevant deposit”, “relevant deposit taker”, “relevant interest” and “special savings account” were respectively references to “specified deposit”, “income or gains”, “relevant investment”, “designated broker”, “relevant income or gains” and “special portfolio investment account” within the meaning of this section, and
(ii) subsections (4) and (5) of section 258 and section 259 had not been enacted.
(c) Notwithstanding subsection (3), section 264 shall apply to a special portfolio investment account as if—
(i) paragraphs (d) to (i) of subsection (1) of that section had not been enacted, and
(ii) the conditions in subsection (2) of this section had been included in subsection (1) of that section.
(2) The conditions referred to in subsection (1)(c)(ii) are:
(a) each special portfolio investment account and all assets held in such an account shall be kept separately from all other investment accounts, if any, operated by a designated broker;
(b) the amount of a specified deposit or, if there is more than one, the aggregate of such amounts in respect of assets held at the same time as part of a special portfolio investment account shall not exceed—
(i) in the case of a special portfolio investment account in respect of which—
(I) the first specified deposit was made on or before the 5th day of April, 2000, and
(II) an amount (in this paragraph referred to as “the particular amount”) equal to the whole or a part of the specified deposit or specified deposits has been used to acquire shares in a company quoted on the market known as the Developing Companies Market of the Irish Stock Exchange
and those shares are at that time held as assets of the special portfolio investment account,
£50,000 increased by the lesser of—
(A) the particular amount, and
(B) £10,000,
and
(ii) in the case of any other special portfolio investment account, £50,000;
(c) the designated broker shall ensure that the aggregate of the market value of a relevant investment does not exceed £50,000 at any time on or after the fifth anniversary of the date on which the first specified deposit was made by an individual in respect of that relevant investment;
(d) the aggregate of the consideration given for shares which are at any time before the 1st day of February, 1994, assets of a special portfolio investment account shall not be less than—
(i) as respects qualifying shares, 40 per cent, and
(ii) as respects specified qualifying shares, 6 per cent,
of the aggregate of the consideration given for the assets of the account at that time;
(e) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1995, assets of a special portfolio investment account shall not be less than—
(i) as respects qualifying shares, 45 per cent, and
(ii) as respects specified qualifying shares, 9 per cent,
of the aggregate of the consideration given for the assets of the account at that time;
(f) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1996, assets of a special portfolio investment account shall not be less than—
(i) as respects qualifying shares, 50 per cent, and
(ii) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets of the account at that time;
(g) the aggregate of the consideration given for shares which are at any time on or after the 1st day of February, 1996, assets of a special portfolio investment account shall not be less than—
(i) as respects qualifying shares, 55 per cent, and
(ii) as respects specified qualifying shares, 10 per cent,
of the aggregate of the consideration given for the assets of the account at that time;
and for the purposes of—
(I) paragraphs (b) and (c), a disposal of shares or securities, being shares or securities, as the case may be, of the same class acquired for a special portfolio investment account at different times, shall be assumed to be a disposal of shares or securities, as the case may be, acquired later, rather than of shares or securities, as the case may be, acquired earlier for the special portfolio investment account, and
(II) paragraphs (d) to (g), the amount of the consideration given for shares shall be determined in accordance with sections 547 and 580 .
(3) Chapter 4 of Part 8 (other than section 259 ) shall, subject to this section and with any other necessary modifications, apply to special portfolio investment accounts as it applies to special savings accounts; but that Chapter shall so apply as if, in relation to relevant interest payable in respect of a relevant deposit or relevant deposits held in a special savings account, the rate of appropriate tax were 10 per cent.
(4) (a) Paragraphs (b) to (h) shall apply notwithstanding any other provision of the Tax Acts and the Capital Gains Tax Acts.
(b) Where for any year of assessment a loss arises from the computation of relevant income or gains, that loss shall be included in the computation of the relevant income or gains of the special portfolio investment account for the next year of assessment, and, in so far as relief for the loss cannot be so given, it shall be set against such relevant income or gains in the next year of assessment and, where appropriate, in each subsequent year of assessment in so far as it cannot be so relieved, and no further relief shall be allowed under any provision of the Tax Acts or the Capital Gains Tax Acts in respect of that loss.
(c) Sections 556 , 601 , 607 and 1028(4) shall not apply in relation to any gains referable to a relevant investment.
(d) (i) In this paragraph—
num: 839
paragraphs: —(1) Subject to subsection (2), an individual shall not at the same time have a beneficial interest in investments of more than one of the following classes of investment—
(a) special savings accounts within the meaning of section 256 (1) (such an account being referred to subsequently in this section as a “special savings account”);
(b) special investment policies within the meaning of section 723 (1);
(c) special investment units within the meaning of section 737 ;
(d) special portfolio investment accounts within the meaning of section 838 .
(2) (a) An individual, whether married or not, who does not have a joint interest in an investment of a class mentioned in subsection (1) may have a beneficial interest, that is not a joint interest, in 2 such investments, being a special savings account and an investment of a class mentioned in paragraph (b), (c) or (d) of that subsection, during a period throughout which—
(i) as respects the special savings account, the condition specified in section 264 (1) (i) would be satisfied if “£25,000” were substituted for “£50,000” in that condition, or
(ii) as respects the other investment, the condition specified in section 723 (3) (b), 737 (3) (a) (ii) or 838 (2) (b) relevant to that investment would be satisfied if “£25,000” were substituted for “£50,000” in those conditions.
(b) A couple married to each other, neither of whom has an interest, that is not a joint interest, in an investment of a class mentioned in subsection (1), may have a joint beneficial interest—
(i) in 2 or 3 such investments, so long as those investments include a special savings account and an investment of a class mentioned in paragraph (b), (c) or (d) of that subsection, or
(ii) in 4 such investments, being 2 special savings accounts and 2 other investments of a class (which need not be the same class for the 2 investments) mentioned in paragraph (b), (c) or (d) of that subsection, during a period throughout which—
(I) as respects the special savings accounts, the condition specified in section 264 (1) (i) would be satisfied if “£25,000” were substituted for “£50,000” in that condition, or
(II) as respects the other investments, the condition specified in section 723 (3) (b), 737 (3) (a) (ii) or 838 (2) (b) relevant to each of those investments would be satisfied if “£25,000” were substituted for “£50,000” in those conditions.
(3) So long as an individual, whether married or not, does not have a beneficial interest in an investment of a class mentioned in subsection (1) other than—
(a) a beneficial interest, whether or not a joint interest, in one investment, or
(b) a joint beneficial interest in 2 investments, of a class (which need not be the same class where there are 2 investments) mentioned in paragraph (b), (c) or (d) of subsection (1), then, sections 723 , 737 and 838 shall apply to that one investment or those 2 investments, as the case may be, as if every reference to £50,000 in those sections were a reference to £75,000.
(4) Where an individual may hold a beneficial interest, whether jointly or otherwise, in an investment of a class mentioned in subsection (1) only for as long as a condition specified in the Tax Acts in respect of the investment would be satisfied if a reference to £25,000 were substituted for a reference to £50,000 in the condition so specified, then, any provision of those Acts which apart from this subsection would have the effect at any time of restricting that investment to an investment the value of which does not exceed £50,000 shall apply to that investment as if the reference to £50,000 in the provision were a reference to £25,000.
(5) Any declaration referred to in—
(a) paragraph (b) of the definition of “special savings account” in section 256 (1),
(b) paragraph (b) of the definition of “special investment policy” in section 723 (1), or
(c) paragraph (b) of the definition of “special investment units” in section 737 (1),
shall contain—
(i) such information in relation to the beneficial interest, which at the time the declaration is made the individual making the declaration holds, whether jointly or otherwise, in investments of a class mentioned in subsection (1), and
(ii) such undertakings, to the person to whom the declaration is made, to supply at any later time information in relation to such interests of that individual at that later time,
as the Revenue Commissioners may reasonably require for the purposes of this section.
num: 840
paragraphs: —(1) In this section—
“business entertainment” means entertainment (including the provision of accommodation, food and drink or any other form of hospitality in any circumstances whatever) provided directly or indirectly by—
(a) any person (in this definition referred to as “the first-mentioned person”),
(b) any person who is a member of the first-mentioned person's staff, or
(c) any person providing or performing any service for the first-mentioned person, the entertainment being entertainment that is provided in the course of, or is incidental to, the provision or performance of the service,
in connection with a trade carried on by the first-mentioned person, but does not include anything provided by that person for bona fide members of that person's staff unless its provision for them is incidental to its provision also for others;
a reference to expenses incurred in, or to the use of an asset for, providing entertainment includes a reference to expenses incurred in, or to the use of an asset for, providing anything incidental thereto;
a reference to a trade includes a reference to a business, profession or employment;
a reference to the members of a person's staff is a reference to persons employed by the person, directors of a company or persons engaged in the management of the company being for this purpose deemed to be persons employed by the company.
(2) In respect of any expenses incurred in providing business entertainment, no sum shall be—
num: 841
paragraphs: —(1) In this section—
“the Board” means the Voluntary Health Insurance Board;
“market value” shall be construed in accordance with section 548 .
(2) Section 396 shall not apply to a loss incurred by the Board in an accounting period ending before the 1st day of March, 1997.
(3) Notwithstanding any other provision of the Tax Acts, bonds and shares held by the Board on the 28th day of February, 1997, in the course of the business of carrying out schemes of voluntary health insurance shall be deemed to have been disposed of and immediately reacquired by the Board on that date at the assets' market value on that date.
num: 842
paragraphs: —(1) In this section, “relevant port company” has the same meaning as in paragraph 1 of Schedule 26.
num: 843
paragraphs: —(1) In this section—
“approved institution” means an institution in the State in receipt of public funding which provides courses to which a scheme approved by the Minister for Education and Science under the Local Authorities (Higher Education Grants) Acts, 1968 to 1992, applies;
“qualifying expenditure” means capital expenditure incurred on—
(a) the construction of a qualifying premises, or
(b) the provision of machinery or plant,
which, following receipt of the advice of An tÃdarÃ¡s, is approved for that purpose by the Minister for Education and Science with the consent of the Minister for Finance;
“qualifying premises” means a building or structure which—
(a) apart from this section is not an industrial building or structure within the meaning of section 268 , and
(b) (i) is in use for the purposes of third level education provided by an approved institution,
(ii) is let to an approved institution on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure which was negotiated on an arm's length basis, but does not include any part of a building or structure in use as or as part of a dwelling-house;
“An tÃdarÃ¡s” means the Body established by section 2 of the Higher Education Authority Act, 1971 .
(2) Subject to subsections (3) to (7), the provisions of the Tax Acts (other than section 317 (2)) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply in relation to qualifying expenditure on a qualifying premises—
(a) as if the qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Part 9 by reason of its use for a purpose specified in section 268 (1) (a), and
(b) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.
(3) In relation to qualifying expenditure on a qualifying premises section 272 shall apply as if—
(a) in subsection (3) (a) (ii) of that section the reference to 4 per cent were a reference to 15 per cent, and
(b) in subsection (4) (a) (ii) of that section the reference to 25 years were a reference to 7 years.
(4) No allowance shall be made under subsection (2) unless, before the commencement of construction of a qualifying premises, the Minister for Finance certifies that—
(a) an approved institution has procured or otherwise secured a sum of money, none of which has been met directly or indirectly by the State, which sum is not less than 50 per cent of the qualifying expenditure to be incurred on the qualifying premises, and
(b) such sum is to be used solely by the approved institution for the following purposes—
(i) paying interest on money borrowed for the purpose of funding the construction of the qualifying premises,
(ii) paying any rent on the qualifying premises during such times as the qualifying premises is the subject of a letting on such terms as are referred to in paragraph (b) (ii) of the definition of “qualifying premises”, and
(iii) purchasing the qualifying premises following the termination of the letting referred to in subparagraph (ii).
(5) Notwithstanding section 274 (1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs more than 7 years after the qualifying premises was first used.
(6) This section shall come into operation on the 1st day of July, 1997.
(7) The Minister for Finance may not give a certificate under subsection (4) at any time later than the 1st day of July, 2000.
num: 844
paragraphs: —(1) Subject to subsection (2), where a company carries on any business of mutual trading or mutual insurance or other mutual business, the provisions of the Corporation Tax Acts and of Schedule F relating to distributions shall apply to distributions made by the company, notwithstanding that they are made to persons participating in the mutual activities of that business and derive from those activities, but shall so apply only to the extent to which the distributions are made out of profits of the company which are brought into charge to corporation tax or out of franked investment income.
num: 845
paragraphs: —(1) In this section, “insurance business” includes assurance business within the meaning of section 3 of the Insurance Act, 1936 .
(2) In this section and in section 846 , “tax-free securities” means securities to which section 43 , 49 or 50 applies and which were issued with a condition regulating the treatment of the interest on the securities for tax purposes such that the interest on the securities is excluded in computing income or profits.
(3) (a) In this subsection, “securities” includes stocks and shares.
(b) Where a banking business, an insurance business or a business consisting wholly or partly in dealing in securities is carried on in the State by a person not resident in the State, then—
(i) in computing for the purposes of the Tax Acts the profits arising from, or loss sustained in, the business, and
(ii) in the case of an insurance business, also in computing the profits or loss from pension business and general annuity business under section 715 ,
section 76 shall not prevent the inclusion of interest, dividends and other payments to which section 35 or 63 extends notwithstanding the exemption from tax conferred by those sections respectively.
(4) Where—
(a) any business referred to in subsection (3) (b) is carried on in the State by a person not ordinarily resident in the State, and
(b) in making any computation referred to in that subsection with respect to that business, interest on tax-free securities is excluded by virtue of a condition of the issue of such securities,
any expenses attributable to the acquisition or holding of, or to any transaction in, the securities (but not including in those expenses any interest on borrowed money), and any profits or losses so attributable, shall also be excluded in making that computation.
(5) In the case of an overseas life assurance company (within the meaning of section 706 ), in computing for the purposes of section 726 the income from the investments of the life assurance fund of the company, any interest, dividends and other payments to which section 35 or 63 extends shall be included notwithstanding the exemption from tax conferred by those sections respectively.
num: 846
paragraphs: —(1) This section shall apply where section 845 (4) applies to a business for any accounting period.
(2) Up to the amount determined under this section (in this section referred to as “the amount ineligible for relief”), interest becoming due for payment on money borrowed for the purposes of the business—
(a) shall be excluded in any computation under the Tax Acts of the profits or loss arising from the business, and
(b) shall be excluded from the definition of “charges on income” in section 243 .
(3) In determining the amount ineligible for relief, account shall be taken of all money borrowed for the purposes of the business outstanding in the accounting period up to the total cost of the tax-free securities held for the purposes of the business in that period; but account shall not be taken of any borrowed money carrying interest which apart from subsection (2) would not be included in the computation under paragraph (a) of that subsection and would not be treated as a charge on income for the purposes of the Corporation Tax Acts.
(4) The amount ineligible for relief shall be equal to a year's interest on the amount of money borrowed which is to be taken into account under subsection (3) at a rate equal to the average rate of interest in the accounting period on money borrowed for the purposes of the business, except that in the case of an accounting period of less than 12 months interest shall be taken for that shorter period instead of for a year.
(5) For the purposes of this section, the cost of a holding of tax-free securities which has fluctuated in the accounting period shall be the average cost of acquisition of the initial holding, and of any subsequent acquisitions in the accounting period, applied to the average amount of the holding in the accounting period, and this subsection shall be applied separately to securities of different classes.
num: 847
paragraphs: —(1) (a) In this section—
“investment plan” means a plan of a company resident in the State—
(i) which involves the investment by the company or by a company associated with it of substantial permanent capital in the State for the purposes of the creation before a date specified in the plan of substantial new employment in the State in trading operations carried on or to be carried on in the State by the company or the company associated with it, and
(ii) which has been submitted before the commencement of its implementation to the Minister by the company for the purpose of enabling it to obtain relief under this section;
“the Minister” means the Minister for Finance;
“qualified company” means a company to which the Minister, following consultation with the Minister for Enterprise and Employment, has given a certificate, which certificate has not been revoked, under subsection (2);
“qualified foreign trading activities” means trading activities carried on by a qualified company through a branch or agency outside the State in a territory specified in the certificate given under subsection (2) to the company by the Minister following consultation with the Minister for Enterprise' Trade and Employment.
(b) For the purposes of this section—
(i) a company shall be associated with another company where one of the companies is a 75 per cent subsidiary of the other company or both companies are 75 per cent subsidiaries of a third company; but, in determining whether one company is a 75 per cent subsidiary of another company, the other company shall be treated as not being the owner of—
(I) any share capital which it owns directly in a company if a profit on the sale of the shares would be treated as a trading receipt of its trade, or
(II) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt,
(ii) sections 412 to 418 shall apply for the purposes of this paragraph as they would apply for the purposes of Chapter 5 of Part 12 if section 411 (1) (c) were deleted,
(iii) where a trade carried on by a qualified company consists partly of qualified foreign trading activities and partly of other trading activities, the company shall be treated as if it were carrying on distinct trades consisting of such qualified foreign trading activities and of such other trading activities,
(iv) there shall be attributed to each trade carried on, or treated under subparagraph (iii) as carried on, such profits or gains or losses as might have been expected to be made if each trade had been carried on under the same or similar conditions by a person independent of, and dealing at arm's length with, the person carrying on the other trade, and
(v) there shall be made all necessary apportionments as are just and reasonable for the purposes of computing—
(I) profits or gains or losses arising from, and
(II) the amount of any charges on income, expenses of management or other amount which can be deducted from or set off against or treated as reducing profits of more than one description as is incurred for the purposes of,
a trade carried on, or treated under subparagraph (iii) as carried on, by a qualified company.
(2) Where a plan has been duly submitted by a company resident in the State and the Minister, following consultation with the Minister for Enterprise, Trade and Employment, is satisfied that—
(a) the plan is an investment plan,
(b) the company, or a company associated with it, will, before a date specified in the plan and approved by the Minister, make the substantial permanent capital investment in the State under the investment plan for the purposes of the creation of the substantial new employment in the State,
(c) the creation of substantial new employment in the State under the investment plan will be achieved, and
(d) the maintenance of the employment so created in trading operations in the State will be dependent on the carrying on by the company of qualified foreign trading activities,
then, the Minister may give a certificate certifying that the company is a qualified company with effect from a date specified in the certificate.
(3) (a) The Minister shall draw up guidelines for determining whether for the purposes of subsection (2) a company and companies associated with it will create substantial new employment and will make a substantial permanent capital investment in the State.
(b) Without prejudice to the generality of paragraph (a), guidelines under that paragraph may—
(i) include a requirement for specified levels of—
(I) employment in the State, and
(II) permanent capital investment in the State,
and
(ii) specify such criteria for the purposes of this subsection as the Minister considers appropriate.
(4) A certificate issued under subsection (2) may be given subject to such conditions as the Minister, following consultation with the Minister for Enterprise, Trade and Employment, considers proper and specifies in the certificate.
(5) Where in the case of a company in relation to which a certificate under subsection (2) has been given the Minister, following consultation with the Minister for Enterprise, Trade and Employment, forms the opinion that such certificate ought to be revoked because any condition subject to which the certificate was given has not been complied with, the Minister may by notice in writing served by registered post on the company revoke the certificate with effect from such date as may be specified in the notice.
(6) Notwithstanding any other provision of the Corporation Tax Acts—
(a) profits or gains or losses arising from the carrying on of qualified foreign trading activities shall be disregarded for the purposes of those Acts, and
(b) no amount of any charges on income, expenses of management or other amount which apart from this paragraph may be deducted from or set off against or treated as reducing profits of more than one description, shall be so deducted, set off or treated, as is incurred for the purposes of a trade carried on, or treated under subsection (1) (b) (iii) as carried on, by a qualified company which consists of qualified foreign trading activities.
(7) A gain shall not be a chargeable gain for the purposes of the Capital Gains Tax Acts if it accrues to a qualified company on the disposal of an asset, other than an asset specified in paragraphs (a) to (d) of section 980 (2), used wholly and exclusively for the purposes of a trade carried on, or treated under subsection (1) (b) (iii) as carried on, by a qualified company which consists of qualified foreign trading activities.
(8) An inspector may by notice in writing require a qualified company to furnish him or her with such information or particulars as may be necessary for the purposes of giving relief under this section.
num: 848
paragraphs: —(1) (a) In this section—
“appropriate certificate”, in relation to a donation to a designated charity, means a certificate which is in such form as the Revenue Commissioners may prescribe and which contains—
(i) statements to the effect that—
(I) the donation satisfies the requirements of subsection (6), and
(II) the donor has paid or will pay to the Revenue Commissioners income tax of an amount equal to income tax at the standard rate for the relevant year of assessment on the grossed up amount of the donation, but not being—
(A) income tax which the donor is entitled to charge against any other person or to deduct, retain or satisfy out of any payment which the donor is liable to make to any other person, or
(B) appropriate tax within the meaning of Chapter 4 of Part 8 ,
and
(ii) the identifying number, known as the Revenue and Social Insurance (RSI) Number, of the donor;
“designated charity” means any body or institution in the State which, following application by it to the Minister in such form and containing such information as the Minister may require, is designated for the purposes of this section by the Minister with the consent of the Minister for Finance;
“the Minister” means the Minister for Foreign Affairs;
“qualifying donation” shall be construed in accordance with subsection (5);
“relevant year of assessment”, in relation to a qualifying donation, means the year of assessment in which the qualifying donation is made.
(b) For the purposes of this section, references, in relation to a donation, to the grossed up amount are to the amount which after deducting income tax at the standard rate for the relevant year of assessment leaves the amount of the donation.
(2) A body or institution shall not be designated by the Minister for the purposes of this section unless it shows to the satisfaction of the Minister that—
(a) it is a body of persons or trust established for charitable purposes only,
(b) it has been granted exemption from tax for the purposes of section 207 for a period of not less than 3 years before the date of the making of the application,
(c) the person concerned in the management or control of the body or institution ensures that in respect of each financial year of the body or institution there is prepared and furnished to the Minister—
(i) audited accounts comprising—
(I) an income and expenditure account or a profit and loss account, as appropriate, for its most recent financial year, and
(II) a balance sheet as at the last day of that financial year,
and
(ii) a report as to the activities of the body or institution, having regard to its charitable purposes, and
(d) it has as its sole object, relief and development in a country or countries where the country or countries concerned is or are for the time being on the List of Aid Recipients (Part 1: Aid to Developing Countries and Territories) produced by the Development Aid Committee of the Organisation for Economic Co-operation and Development.
(3) The Minister shall—
(a) maintain a list of the bodies and institutions designated for the purposes of this section, and
(b) from time to time as the Minister sees fit cause such list to be published in Iris OifigiÃºil.
(4) Where the Minister is satisfied that a body or institution ceases to comply with subsection (2), the Minister shall, with the consent of the Minister for Finance—
(a) withdraw the designation previously granted and such withdrawal shall apply from the beginning of the year of assessment in which notice in accordance with paragraph (b) is given, and
(b) cause notice of such withdrawal to be published in Iris OifigiÃºil within one month of such withdrawal.
(5) For the purposes of this section, a donation to a designated charity shall be a qualifying donation if—
(a) it is made by an individual (in this section referred to as “the donor”),
(b) it satisfies the requirements of subsection (6), and
(c) the donor—
(i) has given an appropriate certificate in relation to the donation to the designated charity, and
(ii) has paid the tax referred to in such appropriate certificate and is not entitled to claim a repayment of that tax or any part of that tax.
(6) A donation shall satisfy the requirements of this subsection if—
(a) it takes the form of the payment of a sum or sums of money,
(b) it is not subject to a condition as to repayment,
(c) neither the donor nor any person connected with the donor receives a benefit in consequence of making it,
(d) it is not conditional on or associated with, or part of an arrangement involving, the acquisition of property by the designated charity, otherwise than by means of gift, from the donor or a person connected with the donor,
(e) the sum or the aggregate of the sums paid in the relevant year of assessment to the designated charity is not less than £200,
(f) the sum or the aggregate of the sums paid does not, when aggregated with any other qualifying donation or qualifying donations made by the donor in the relevant year of assessment, exceed £750, and
(g) the donor is resident in the State for the relevant year of assessment.
(7) Where a donation is a qualifying donation, the Tax Acts shall apply in relation to the designated charity as if—
(a) the grossed up amount of the donation were an annual payment which was the income of the designated charity received by it under deduction of tax at the standard rate for the relevant year of assessment, and
(b) the provisions of those Acts which apply in relation to a claim to repayment of tax applied in relation to any claim to repayment of such tax by a designated charity;
but, if the total amount of the tax referred to in paragraph (i) (II) of the definition of “appropriate certificate” is not paid, the amount of any repayment which would otherwise be made to a designated charity in accordance with this section shall not exceed the amount of tax actually paid by the donor.
MANAGEMENT PROVISIONS
num: 849
paragraphs: —(1) In this section, “tax” means income tax, corporation tax and capital gains tax.
(2) All duties of tax shall be under the care and management of the Revenue Commissioners.
(3) The Revenue Commissioners may do all such acts as may be deemed necessary and expedient for raising, collecting, receiving and accounting for tax in the like and in as full and ample a manner as they are authorised to do in relation to any other duties under their care and management and, unless the Minister for Finance otherwise directs, shall appoint such officers and other persons for collecting, receiving, managing and accounting for any duties of tax as are not required to be appointed by some other authority.
(4) All such appointments shall continue in force, notwithstanding the death, or the ceasing to hold office, of any Revenue Commissioner, and the holders shall have power to execute the duties of their respective offices and to enforce in the execution of those offices all laws and regulations relating to tax in every part of the State.
(5) The Revenue Commissioners may suspend, reduce, discharge or restore, as they see fit, any such officer or person.
(6) Any act or thing required or permitted by this or any other statute to be done by the Revenue Commissioners in relation to tax may be done by any one Revenue Commissioner.
num: 850
paragraphs: —(1) The Minister for Finance shall appoint persons to be Appeal Commissioners for the purposes of the Income Tax Acts (in the Tax Acts and the Capital Gains Tax Acts referred to as “Appeal Commissioners”) and the persons so appointed shall, by virtue of their appointment and without other qualification, have authority to execute such powers and to perform such duties as are assigned to them by the Income Tax Acts.
(2) Appeal Commissioners shall be allowed such sums in respect of salary and incidental expenses as the Minister for Finance directs.
(3) The Minister for Finance shall cause an account of all appointments of Appeal Commissioners and their salaries to be laid before each House of the Oireachtas within 20 days of their appointment or, in the case of a House not then sitting, within 20 days after the next sitting of that House.
(4) Anything required to be done under the Income Tax Acts by the Appeal Commissioners or any other Commissioners may, except where otherwise expressly provided by those Acts, be done by any 2 or more Commissioners.
num: 851
paragraphs: —(1) There shall be a Collector-General, who shall be appointed by the Revenue Commissioners from among their officers and who shall hold such office at their will and pleasure.
(2) The Collector-General shall collect and levy the tax from time to time charged in all assessments to income tax, corporation tax and capital gains tax of which particulars have been transmitted to him or her under section 928 .
(3) (a) The Revenue Commissioners may nominate persons to exercise on behalf of the Collector-General any or all of the powers and functions conferred on the Collector-General by the Tax Acts and the Capital Gains Tax Acts.
(b) Those powers and functions, as well as being exercisable by the Collector-General, shall also be exercisable on his or her behalf by persons nominated under this subsection.
(c) A person shall not be nominated under this subsection unless he or she is an officer or employee of the Revenue Commissioners.
(4) If and so long as the office of Collector-General is vacant or the holder of that office is unable through illness, absence or other cause to fulfil his or her duties, a person nominated in that behalf by the Revenue Commissioners from among their officers shall act as the Collector-General, and any reference in this or any other Act to the Collector-General shall be construed as including, where appropriate, a reference to a person nominated under this subsection.
(5) The Revenue Commissioners may revoke a nomination under this section.
num: 852
paragraphs: —(1) The Revenue Commissioners may appoint inspectors of taxes, and all such inspectors and all other officers or persons employed in the execution of the Income Tax Acts shall observe and follow the orders, instructions and directions of the Revenue Commissioners.
(2) The Revenue Commissioners may revoke an appointment made under this section.
(3) Inspectors of taxes appointed by the Minister for Finance before the 27th day of May, 1986, shall be deemed to have been appointed by the Revenue Commissioners.
num: 853
paragraphs: —For the purpose of assessing and charging income tax in the cases mentioned in this section, the Governor and directors of the Bank of Ireland—
(a) shall be Commissioners,
(b) shall have all the necessary powers for that purpose, and
(c) shall make assessments under and subject to the Income Tax Acts in respect of—
(i) interest, annuities, dividends and shares of annuities, and the profits attached to the same, payable to the Bank of Ireland out of the public revenue of the State,
(ii) interest, annuities, dividends and shares of annuities entrusted to the Bank of Ireland for payment,
(iii) all other interest, annuities and dividends, and
(iv) all other profits chargeable with tax arising within any office or department under the management or control of the Bank of Ireland.
num: 854
paragraphs: —Where the Minister for Finance determines that, by reason of special circumstances existing in any particular public office, it is not expedient that the powers and duties of assessing and charging income tax in relation to that office or any one or more of such powers and duties should be exercised and performed in relation to that office by the inspector or other officer appointed in that behalf, the Revenue Commissioners shall appoint such officers or persons as may be approved of by the Minister for Finance to exercise such powers and duties in relation to that office.
num: 855
paragraphs: —The respective Commissioners for executing the Income Tax Acts in relation to offices and employments of profit and pensions and stipends shall, as soon as practicable after their appointment, meet and make and subscribe the declaration contained in Part 2 of Schedule 27 and may respectively elect a clerk and assessors and, if the tax cannot be deducted at the department or office of the Commissioners or at the office for which they act, they may, from among the officers in their respective departments, appoint separate assessors and collectors for each such department.
num: 856
paragraphs: —(1) Every Commissioner acting in the execution of the Income Tax Acts shall be chargeable with tax in the same manner as any other person, but shall take no part in the proceedings, and shall not be present, when any assessment, statement or schedule is under consideration, or any controversy or appeal is being determined, with reference to any case in which he or she is interested, either in his or her own right or in the right of any other person as his or her agent, except during the hearing of an appeal for the purpose of being examined orally by the Commissioners, and he or she shall withdraw during the consideration and determination of the controversy or appeal.
(2) A Commissioner who, in any case referred to in subsection (1), takes any part in the determination of any such controversy or appeal, or fails to withdraw, shall incur a penalty of £50.
(3) For the purposes of corporation tax, where an Appeal Commissioner is interested in his or her own right or in the right of any other person in any matter under appeal, he or she shall not take part in, or be present at, the hearing or determination of the appeal.
num: 857
paragraphs: —(1) Every person appointed to one of the offices named in Part 1 of Schedule 27 shall, before he or she commences to act in the execution of the Income Tax Acts in so far as those Acts relate to tax under Schedule D, make and subscribe the declaration contained in that Part in respect of his or her office.
(2) The declaration may be made before a Peace Commissioner.
num: 858
paragraphs: —(1) In this section, except where the context otherwise requires—
“the Acts” means—
(a) (i) the Customs Acts,
(ii) the statutes relating to the duties of excise and to the management of those duties,
(iii) the Tax Acts,
(iv) the Capital Gains Tax Acts,
(v) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(vi) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(vii) the statutes relating to stamp duty and to the management of that duty,
and any instruments made thereunder or under any other enactment and relating to tax, and
(b) the European Communities (Intrastat) Regulations, 1993 ( S.I. No. 136 of 1993 );
“authorised officer” means an officer of the Revenue Commissioners who is authorised, nominated or appointed under any provision of the Acts to exercise or perform any functions under any of the specified provisions, and “authorised” and “authorisation” shall be construed accordingly;
“functions” includes powers and duties;
“identity card”, in relation to an authorised officer, means a card which is issued to the officer by the Revenue Commissioners and which contains—
(a) a statement to the effect that the officer—
(i) is an officer of the Revenue Commissioners, and
(ii) is an authorised officer for the purposes of the specified provisions,
(b) a photograph and signature of the officer,
(c) a hologram showing the logo of the Office of the Revenue Commissioners,
(d) the facsimile signature of a Revenue Commissioner, and
(e) particulars of the specified provisions under which the officer is authorised;
“specified provisions”, in relation to an authorised officer, means either or both the provisions of the Acts under which the authorised officer—
(a) is authorised and which are specified on his or her identity card, and
(b) exercises or performs functions under the Customs Acts or any statutes relating to the duties of excise and to the management of those duties;
“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.
(2) Where, in the exercise or performance of any functions under any of the specified provisions in relation to him or her, an authorised officer is requested to produce or show his or her authorisation for the purposes of that provision, the production by the authorised officer of his or her identity card—
(a) shall be taken as evidence of authorisation under that provision, and
(b) shall satisfy any obligation under that provision which requires the authorised officer to produce such authorisation on request.
(3) This section shall come into operation on such day as the Minister for Finance may appoint by order.
num: 859
paragraphs: —(1) In this section—
“authorised officer” means an officer of the Revenue Commissioners nominated by them to be a member of the staff of the body;
“the body” has the meaning assigned to it by section 58 ;
“proceedings” includes any hearing before the Appeal Commissioners (within the meaning of the Revenue Acts);
“the Revenue Acts” means—
(a) the Customs Acts,
(b) the statutes relating to the duties of excise and to the management of those duties,
(c) the Tax Acts,
(d) the Capital Gains Tax Acts,
(e) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(f) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(g) the statutes relating to stamp duty and the management of that duty,
(h) Chapter IV of Part II of the Finance Act, 1992 , and
(i) Part VI of the Finance Act, 1983 ,
and any instruments made thereunder or under any other enactment and relating to tax;
“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.
(2) Notwithstanding any requirement made by or under any enactment or any other requirement in administrative and operational procedures, including internal procedures, all reasonable care shall be taken to ensure that the identity of an authorised officer shall not be revealed.
(3) In particular and without prejudice to the generality of subsection (2):
(a) where, for the purposes of exercising or performing his or her powers or duties under the Revenue Acts in pursuance of the functions of the body, an authorised officer may apart from this section be required to produce or show any written authority or warrant of appointment under those Acts or otherwise to identify himself or herself, the authorised officer shall—
(i) not be required to produce or show any such authority or warrant of appointment or to so identify himself or herself, for the purposes of exercising or performing his or her powers or duties under those Acts, and
(ii) be accompanied by a member of the Garda SÃ­ochÃ¡na who shall, on request by a person affected, identify himself or herself as a member of the Garda SÃ­ochÃ¡na and shall state that he or she is accompanied by an authorised officer;
(b) where, in pursuance of the functions of the body, an authorised officer exercises or performs in writing any of his or her powers or duties under the Revenue Acts or any provision of any other enactment, whenever passed, which relates to Revenue, such exercise or performance of his or her powers or duties shall be done in the name of the body and not in the name of the individual authorised officer involved, notwithstanding any provision to the contrary in any of those enactments;
(c) in any proceedings arising out of the exercise or performance, in pursuance of the functions of the body, of powers or duties by an authorised officer, any documents relating to such proceedings shall not reveal the identity of any authorised officer, notwithstanding any requirements to the contrary in any provision, and in any proceedings the identity of such officer other than as an authorised officer shall not be revealed other than to the judge or the Appeal Commissioner, as the case may be, hearing the case;
(d) where, in pursuance of the functions of the body, an authorised officer is required, in any proceedings, to give evidence and the judge or the Appeal Commissioner, as the case may be, is satisfied that there are reasonable grounds in the public interest to direct that evidence to be given by such authorised officer should be given in the hearing and not in the sight of any person, he or she may so direct.
num: 860
paragraphs: —(1) A Peace Commissioner may administer an oath to be taken before a Commissioner by any officer or person in any matter relating to the execution of the Tax Acts.
(2) An Appeal Commissioner may administer an oath to be taken before the Appeal Commissioners under the Tax Acts by any officer or person in any matter relating to the execution of the Tax Acts.
num: 861
paragraphs: —(1) Every assessment, charge, bond, warrant, notice of assessment or of demand, or other document required to be used in assessing, charging, collecting and levying income tax, corporation tax or capital gains tax shall be in accordance with the forms prescribed from time to time in that behalf by the Revenue Commissioners, and a document in the form prescribed and supplied or approved by them shall be valid and effectual.
(2) (a) In this subsection, “return” includes any statement, declaration or list.
(b) Any return under the Corporation Tax Acts shall be in such form as the Revenue Commissioners prescribe.
num: 862
paragraphs: —Anything required under the Tax Acts to be done by the Minister for Finance may be signified under the hand of the Secretary General, a Deputy Secretary or an Assistant Secretary of the Department of Finance.
num: 863
paragraphs: —(1) Subject to subsection (2), where any assessment to income tax or capital gains tax for any year, or any assessment to corporation tax for any accounting period or any return or other document relating to income tax, corporation tax or capital gains tax has been lost or destroyed, or has been so defaced or damaged as to be illegible or otherwise useless, the Revenue Commissioners, the Collector-General, inspectors and other officers respectively having powers in relation to income tax, corporation tax or capital gains tax may, notwithstanding anything to the contrary in any enactment, do all such acts and things as they might have done, and all acts and things done under or in accordance with this section shall be as valid and effectual for all purposes as they would have been if the assessment had not been made, or the return or other document had not been made or furnished, or required to be made or furnished.
(2) Where any person who is charged with income tax, corporation tax or capital gains tax in consequence or by virtue of any act or thing done under or in accordance with this section proves to the satisfaction of the Revenue Commissioners that that person has already paid any income tax or capital gains tax for the same year, or corporation tax for the same accounting period, in respect of the subject matter and on the account in respect of and on which that person is so charged, relief shall be given to the extent to which the liability of that person has been discharged by the payments so made either by abatement from the charge or by repayment, as the case may require.
num: 864
paragraphs: —(1) Notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts—
(a) all claims of exemption or for any allowance or deduction under those Acts,
(b) all claims for repayment of income tax, corporation tax or capital gains tax under those Acts, and
(c) (i) all claims to relief under those Acts where the relief is measured in the provision under which it is given, and
(ii) all matters and questions relating to any relief so measured,
in relation to which a right of appeal from a decision is, otherwise than by section 949 , not specifically provided,
shall be stated in such manner and form as the Revenue Commissioners may prescribe, and shall be made to and determined by the Revenue Commissioners or such officer of the Revenue Commissioners (including an inspector) as they may authorise in that behalf.
(2) Effect shall be given—
(a) to section 21 (2) and to that section as modified by sections 24(2) and 25(3) , and
(b) in so far as the exemptions from income tax conferred by the Corporation Tax Acts call for repayment of tax, to those exemptions,
by means of a claim.
num: 865
paragraphs: —Except where otherwise expressly provided by any provision of the Tax Acts or the Capital Gains Tax Act, no claim for repayment of income tax, corporation tax or capital gains tax under those Acts shall be allowed unless it is made within 10 years after the end of the year of assessment or, as the case may be, accounting period to which it relates.
num: 866
paragraphs: —Any person who, on that person's own behalf or on behalf of another person or body of persons, delivers a statement of the amount of the profits on which any income tax is chargeable shall observe the rules and directions contained in Schedule 28 in so far as those rules and directions are respectively applicable.
num: 867
paragraphs: —It shall be lawful for the Revenue Commissioners from time to time to make such amendments of the forms of declarations, lists and statements contained in Schedules 27 and 28 as appear to them to be necessary to give effect to the Income Tax Acts.
num: 868
paragraphs: —(1) Warrants issued under the authority of the Tax Acts shall be executed by the respective persons to whom they are directed.
(2) Members of the Garda SÃ­ochÃ¡na shall aid in the execution of the Tax Acts.
num: 869
paragraphs: —(1) (a) In this subsection, except where in paragraph (d) the context otherwise requires, “company” means any body corporate.
(b) Any notice, form or other document which under the Tax Acts or the Capital Gains Tax Acts is to be given, served, sent or delivered to or on a person by the Revenue Commissioners or by an inspector or other officer of the Revenue Commissioners may be either delivered to the person or left—
(i) in a case where the person is a company, at the company's registered office or place of business, or
(ii) in any other case, at the person's usual or last known place of abode or place of business or, if the person is an individual, at his or her place of employment.
(c) Any notice, form or other document referred to in paragraph (b) may be served by post addressed—
(i) in a case where the person is a company, to the company at either of the places specified in paragraph (b) (i), or
(ii) in any other case, to the person at any of the places specified in paragraph (b) (ii).
(d) Without prejudice to paragraphs (b) and (c), section 379 of the Companies Act, 1963 , shall apply in relation to the service on a company of any notice, form or other document referred to in this subsection as it applies in relation to the service of documents under that section on a company within the meaning of that Act.
(2) Any notice which under the Tax Acts or the Capital Gains Tax Acts is authorised or required to be given by the Revenue Commissioners may be signed and given by any officer of the Revenue Commissioners authorised by them for the purpose of giving notices of the class to which the notice belongs and, where so signed and given, shall be as valid and effectual as if signed under the hands of the Revenue Commissioners and given by them.
(3) Prima facie evidence of any notice given under the Tax Acts or the Capital Gains Tax Acts by the Revenue Commissioners or an inspector or other officer of the Revenue Commissioners may be given in any proceedings by the production of a document purporting to be a copy of the notice, and it shall not be necessary to prove the official positions or position of the persons or person by whom the notice purports to be given or, where it is signed, the signatures or signature or that the persons or person signing and giving it were or was authorised to do so.
(4) Notices to be given or delivered to, or served on, the Appeal Commissioners shall be valid and effectual if given or delivered to or served on their Clerk.
(5) This section shall apply notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts.
num: 870
paragraphs: —(1) An assessment, charge, warrant or other proceeding which purports to be made in accordance with the Income Tax Acts, the Corporation Tax Acts or the Capital Gains Tax Acts shall not be quashed, or deemed to be void or voidable, for want of form, or be affected by reason of a mistake, defect, or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of those Acts, and if the person or property charged or intended to be charged or affected thereby is designated therein according to common intent and understanding.
(2) For the purposes of the Tax Acts and the Capital Gains Tax Acts but subject to subsection (3), an assessment or a charge made on an assessment shall not be impeached or affected—
(a) by reason of a mistake in the assessment or the charge made on the assessment as to—
(i) the name or surname of a person liable,
(ii) the description of any profits or property, or
(iii) the amount of the tax charged;
(b) by reason of any variance between the notice and the certificate of charge or assessment.
(3) In cases of charge, the notice of charge shall be duly served on the person intended to be charged, and the notice and certificate shall respectively contain, in substance and effect, the particulars on which the charge is made, and every such charge shall be heard and determined on its merits by the Appeal Commissioners.
num: 871
paragraphs: —Any return, assessment or other document relating to chargeable gains or capital gains tax may be combined with one relating to income or income tax.
num: 872
paragraphs: —(1) Any information acquired, whether before or after the passing of this Act, in connection with any tax or duty under the care and management of the Revenue Commissioners may be used by them for any purpose connected with any other tax or duty under their care and management.
num: 873
paragraphs: —In any proceedings under or arising out of the Tax Acts before any court or person empowered to take evidence, prima facie proof of the fact that any person was a Commissioner or officer may be given by proving that, at the time when any matter in controversy in any such proceedings arose, that person was reputed to be or had acted as a Commissioner or officer.
num: 874
paragraphs: —(1) A Commissioner, sheriff, county registrar, clerk, inspector, assessor or Collector-General who acts, or is employed, in the execution of the Tax Acts or the Capital Gains Tax Acts shall not be liable to any penalty in respect of such execution other than as provided by those Acts.
(2) Where any civil or criminal proceeding against any officer or person employed in relation to any duty of income tax, corporation tax or capital gains tax on account of the seizure or detention of any goods is brought to trial, and a verdict or judgment is given against the defendant, then, if the court or judge certifies that there was probable cause for the seizure, the plaintiff shall not be entitled to any damages besides the goods seized, or the value of those goods, or to any costs, and the defendant shall not be liable to any punishment.
num: 875
paragraphs: —No appraisement or valuation given or made in pursuance and for the purposes of the Tax Acts or the Capital Gains Tax Acts shall be liable to any stamp duty.
num: 876
paragraphs: —Every person who is chargeable to income tax for any year of assessment and who in relation to that year has not been given a notice under section 877 or 879 and has not made a return of such person's total income shall, not later than one year after the end of the year of assessment, give notice to the inspector of taxes that such person is so chargeable.
num: 877
paragraphs: —(1) Every person chargeable under the Income Tax Acts, when required to do so by a notice given to such person by an inspector, shall, within the time limited by such notice, prepare and deliver to the inspector a statement in writing as required by the Income Tax Acts, signed by such person, containing the amount of the profits or gains arising to such person, from each and every source chargeable according to the respective schedules, estimated for the period specified in the notice and according to the Income Tax Acts.
num: 878
paragraphs: —(1) Every person (in this subsection referred to as “the first-mentioned person”) acting in any character on behalf of any incapacitated person or person not resident in the State who, by reason of such incapacity or non-residence in the State, may not be personally charged under the Income Tax Acts shall, whenever required to do so by a notice given to the first-mentioned person by an inspector, within the time permitted by such notice and in any district in which the first-mentioned person may be chargeable on the first-mentioned person's own account, deliver a statement described in section 877 of the profits or gains in respect of which income tax is to be charged on the first-mentioned person on account of that other person, together with the prescribed declaration.
(2) Where 2 or more such persons are liable to be charged for the same person—
(a) one statement only shall be required to be delivered which may be made by them jointly or by any one or more of them, and
(b) notice in writing may be given by any such persons to the inspector for each district in which they are called on for a statement stating in which district or districts they are respectively chargeable on their own account, and in which of those districts they desire to be charged on behalf of the person for whom they act, and they shall, if any one such person is liable to be charged on such person's own account in that district, be charged in that district accordingly by one assessment.
num: 879
paragraphs: —(1) In this section, “prescribed” means prescribed by the Revenue Commissioners and, in prescribing forms for the purposes of this section, the Revenue Commissioners shall have regard to the desirability of securing in so far as may be possible that no individual shall be required to make more than one return annually of the sources of the individual's income and the amounts derived from those sources.
(2) Every individual, when required to do so by a notice given to him or her in relation to any year of assessment by an inspector, shall within the time limited by the notice prepare and deliver to the inspector a return in the prescribed form of—
(a) all the sources of his or her income for the year of assessment in relation to which the notice is given;
(b) the amount of income from each source for the year of assessment computed in accordance with subsection (3);
(c) such further particulars for the purposes of income tax for the year of assessment as may be required by the notice or indicated by the prescribed form.
(3) The amount of income from any source to be included in a return under this section shall be computed in accordance with the Income Tax Acts; but, where under section 65 the profits or gains of a year ending on a date within the year of assessment are to be taken to be the profits or gains of that year of assessment, the computation shall be made by reference to that year ending on a date within that year of assessment.
(4) Where a person delivers to any inspector a return in a prescribed form, the person shall be deemed to have been required by a notice under this section to prepare and deliver that return.
num: 880
paragraphs: —(1) In this section—
“precedent partner” has the same meaning as in Part 43 ;
“prescribed” means prescribed by the Revenue Commissioners.
(2) The precedent partner of any partnership, when required to do so by a notice given to that partner in relation to any year of assessment by an inspector, shall within the time limited by the notice prepare and deliver to the inspector a return in the prescribed form of—
(a) all the sources of income of the partnership for the year of assessment in relation to which the notice is given;
(b) the amount of income from each source for the year of assessment computed in accordance with subsection (3);
(c) such further particulars for the purposes of income tax for the year of assessment as may be required by the notice or indicated by the prescribed form.
(3) The amount of income from any source to be included in a return under this section shall be computed in accordance with the Income Tax Acts; but where, in the case of a trade or profession, an account has been made up to a date within the year of assessment or more accounts than one have been made up to dates within that year, the computation shall be made by reference to the period, or to all the periods where there is more than one period, for which accounts have been so made up.
(4) Where a person delivers to any inspector a return in a prescribed form, the person shall be deemed to have been required by a notice under this section to prepare and deliver that return.
num: 881
paragraphs: —(1) Where an individual is required by a notice given under section 877 to deliver a statement in writing of the total income in respect of which the individual is chargeable to income tax and that income is or includes income of his or her spouse, the individual may, within 21 days from the date of the receipt of the notice, notify the inspector by whom the notice was given that the income in respect of which the individual is chargeable to income tax is or includes income of his or her spouse.
num: 882
paragraphs: —(1) In this section, “secretary” includes persons mentioned in section 1044 (2) and, in the case of a company not resident in the State, the agent, manager, factor or other representative of the company.
(2) Every company which commences to carry on a trade, profession or business shall, within 30 days from the date of such commencement, deliver to the Revenue Commissioners a statement in writing containing the following particulars—
(a) the name of the company,
(b) the address of its registered office in the State or, in the case of a company not resident in the State, the address of its principal place of business in the State,
(c) the name of the secretary or, in the case of a company not resident in the State, the name and address of the agent, manager, factor or other representative of the company,
(d) the date of commencement of the trade, profession or business or, in the case of a company not resident in the State, the date of commencement of its trade or profession in the State,
(e) the nature of the trade, profession or business, and
(f) the date to which the first accounts relating to such trade, profession or business will be made up;
but this subsection shall not apply to a company which is neither resident nor incorporated in the State unless it commences to carry on a trade, profession or business in the State.
(3) Subject to subsection (4), every company which is incorporated in the State and is neither resident in the State nor carrying on a trade, profession or business in the State shall, in every case within 30 days of—
(a) the date on which it commences to carry on a trade, profession or business, wherever carried on,
(b) any time at which there is a material change in information previously delivered by the company under this subsection, and
(c) the giving of a notice to the company by an inspector requiring a statement under this subsection,
deliver to the Revenue Commissioners a statement in writing containing particulars of—
(i) the name of the company,
(ii) the address of its registered office in the State and the address of its principal place of business,
(iii) the nature of the trade, profession or business,
(iv) the name and address of the secretary of the company,
(v) (I) where the company is controlled by a company the shares in which are listed in the official list of a recognised stock exchange and have been the subject of dealings on such an exchange in the period of 12 months ending at the time at which the statement is delivered, the name of that company and the address of its registered office, and
(II) in any other case, the name and address of any individual or individuals who have control of the company,
(vi) the territory in which the central management and control of the company is normally carried out, and
(vii) such other information as the Revenue Commissioners consider necessary for the purposes of determining the territory in which the company is resident for the purposes of tax.
(4) Subsection (3) shall not apply to a company (in this subsection referred to as “the first-mentioned company”) if, at the time at which a statement under that subsection would apart from this subsection have to be delivered, there is a company which is a 90 per cent subsidiary of the first-mentioned company carrying on a trade or profession in the State.
(5) For the purposes of this section—
(a) sections 412 to 418 shall apply for the purposes of this paragraph as they would apply for the purposes of Chapter 5 of Part 12 if section 411 (1) (c) were deleted, and
(b) control shall be construed in accordance with section 432 .
num: 883
paragraphs: —Every company which is chargeable to corporation tax for any accounting period and which has not made a return of its profits for that accounting period shall, not later than one year after the end of that accounting period, give notice to the inspector that it is so chargeable.
num: 884
paragraphs: —(1) In this section, “return” includes any statement, declaration or list.
(2) A company may be required by a notice served on it by an inspector or other officer of the Revenue Commissioners to deliver to the officer within the time limited by the notice a return of—
(a) the profits of the company computed in accordance with the Corporation Tax Acts—
(i) specifying the income taken into account in computing those profits, with the amount from each source,
(ii) giving particulars of all disposals giving rise to chargeable gains or allowable losses under the Capital Gains Tax Acts and the Corporation Tax Acts and particulars of those chargeable gains or allowable losses, and
(iii) giving particulars of all charges on income to be deducted against those profits for the purpose of the assessment to corporation tax, other than those included in paragraph (d),
(b) the distributions received by the company from companies resident in the State and the tax credits to which the company is entitled in respect of those distributions,
(c) all amounts of tax credits recoverable from the company under sections 157 (5) and 158(4) ,
(d) payments made from which income tax is deductible and to which subsections (3) to (5) of section 238 apply, and
(e) all amounts which under section 438 are deemed to be annual payments.
(3) An event which, apart from section 584 (3) as applied by section 586 or 587 , would constitute the disposal of an asset giving rise to a chargeable gain or an allowable loss under the Capital Gains Tax Acts and the Corporation Tax Acts shall for the purposes of this section constitute such a disposal.
(4) A notice under this section may require a return of profits arising in any period during which the company was within the charge to corporation tax, together with particulars of distributions received in that period from companies resident in the State and of tax credits to which the company is entitled in respect of those distributions.
(5) Every return under this section shall include a declaration to the effect that the return is correct and complete.
(6) A return under this section which includes profits which are payments on which the company has borne income tax by deduction shall specify the amount of income tax so borne.
(7) A notice under this section may require the inclusion in the return of particulars of management expenses, capital allowances and balancing charges which have been taken into account in determining the profits included in the return.
(8) Subsections (3), (4) and (5) (b) of section 913 shall apply in relation to a notice under this section as they apply in relation to a notice under any provision of the Income Tax Acts applied in relation to capital gains tax by section 913 .
(9) (a) In this subsection, “authorised officer” means an inspector or other officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this subsection.
(b) Where a company which has been duly required to deliver a return under this section fails to deliver the return, or where the inspector is not satisfied with the return delivered by any such company, an authorised officer may serve on that company a notice or notices in writing requiring the company to do any of the following—
(i) to deliver to the inspector or to the authorised officer copies of such accounts (including balance sheets) of the company as may be specified or described in the notice, within such period as may be specified in the notice, including, where the accounts have been audited, a copy of the auditor's certificate;
(ii) to make available for inspection by an inspector or by an authorised officer within such time as may be specified in the notice all such books, accounts and documents in the possession or power of the company as may be specified or described in the notice, being books, accounts and documents which contain information as to profits, assets or liabilities of the company.
(c) The inspector or authorised officer may take copies of or extracts from any books, accounts or documents made available for his or her inspection under this subsection.
num: 885
paragraphs: —(1) In this section—
“business” means—
(a) a profession, or
(b) a trade consisting solely of the supply (within the meaning of the Value-Added Tax Acts, 1972 to 1997) of a service and includes, in the case of a trade part of which consists of the supply of a service, that part, and also includes, in the case of a trade the whole or part of which consists of the supply of a service which incorporates the supply of goods in the course of the supply of that service, that trade or that part, as the case may be;
“specified person”, in relation to a business, means—
(a) where the business is carried on by an individual, that individual, and
(b) where the business is carried on by a partnership, the precedent partner;
“tax reference number”, in relation to a specified person, means each of the following—
(a) the Revenue and Social Insurance (RSI) Number stated on any certificate of tax-free allowances issued to that person by an inspector, not being a certificate issued to an employer in respect of an employee of that employer,
(b) the reference number stated on any return of income form or notice of assessment issued to that person by an inspector, and
(c) the registration number of that person for the purposes of value-added tax.
(2) For the purposes of the Tax Acts and the Capital Gains Tax Acts, the specified person in relation to a business shall ensure that the specified person's tax reference number or, if the specified person has more than one tax reference number, one of those tax reference numbers or, if the specified person has no tax reference number, the specified person's full names and address is or are stated on any document (being an invoice, credit note, debit note, receipt, account, statement of account, voucher or estimate relating to an amount of £5 or more) issued in the course of that business.
num: 886
paragraphs: —(1) In this section—
“linking documents” means documents drawn up in the making up of accounts and showing details of the calculations linking the records to the accounts;
“records” includes accounts, books of account, documents and any other data maintained manually or by any electronic, photographic or other process, relating to—
(a) all sums of money received and expended in the course of the carrying on or exercising of a trade, profession or other activity and the matters in respect of which the receipt and expenditure take place,
(b) all sales and purchases of goods and services where the carrying on or exercising of a trade, profession or other activity involves the purchase or sale of goods or services,
(c) the assets and liabilities of the trade, profession or other activity referred to in paragraph (a) or (b), and
(d) all transactions which constitute an acquisition or disposal of an asset for capital gains tax purposes.
(2) (a) Every person who—
num: 887
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts,
(c) the Value-Added Tax Act, 1972 ,
(d) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act, and
(e) Part VI of the Finance Act, 1983 ,
and any instruments made thereunder;
“records” means documents which a person is obliged by the Acts to keep, to issue or to produce for inspection, and any other written or printed material.
(2) For the purposes of the Acts and subject to the agreement of the Revenue Commissioners, records may be stored, maintained, transmitted, reproduced or communicated, as the case may be, by any electronic, photographic or other process approved of by the Revenue Commissioners, and in circumstances where the use of such process has been agreed by the Revenue Commissioners and subject to such conditions as they may impose.
(3) Where in accordance with subsection (2) records are preserved by electronic, photographic or other process, a statement contained in a document produced by any such process shall, subject to the rules of court, be admissible in evidence in any proceedings, whether civil or criminal, to the same extent as the records themselves.
num: 888
paragraphs: —(1) In this section, “lease”, “lessee”, “lessor”, “premises” and “rent” have the same meanings respectively as in Chapter 8 of Part 4 .
num: 889
paragraphs: —(1) In this section—
“tax reference number”, in relation to a person, has the meaning assigned to it by section 885 in relation to a specified person within the meaning of that section;
references to payments for services include references to payments in the nature of commission of any kind and references to payments in respect of expenses incurred in connection with rendering of services;
references to payments made include references to the giving of any valuable consideration, and the requirement imposed by subsection (5) to state the amount of a payment shall, in relation to any consideration given otherwise than in the form of money, be construed as a requirement to give particulars of the consideration.
(2) Every person carrying on a trade or business shall, if required to do so by notice from an inspector, make and deliver to the inspector a return of all payments of any kind specified in the notice made during the period so specified, being—
(a) payments made in the course of the trade or business, or of such part of the trade or business as may be specified in the notice, for services rendered in connection with the trade or business by persons ordinarily resident in the State and not employed in the trade or business,
(b) payments for services rendered in connection with the formation, acquisition, development or disposal of the trade or business, or any part of it, by persons ordinarily resident in the State and not employed in the trade or business, or
(c) periodical or lump sum payments made to persons ordinarily resident in the State in respect of any copyright.
(3) Every body of persons (which for the purposes of this section shall be deemed to include a Minister of the Government and any body established by or under statute) carrying on any activity which does not constitute a trade or business shall, if required to do so by a notice from an inspector, make and deliver to the inspector a return of all payments of a kind specified in the notice made during the period specified in the notice, being—
(a) payments made in the course of carrying on the activity, or such part of the activity as may be specified in the notice, for services rendered in connection with the activity by persons ordinarily resident in the State and not employed by that body of persons, or
(b) periodical or lump sum payments made to persons ordinarily resident in the State in respect of any copyright.
(4) A return required under subsection (2) or (3) shall, if the trade or business or other activity is carried on by an unincorporated body of persons, be made and delivered by the person who is, or performs the duties of, secretary of the body, and the notice shall be framed accordingly.
(5) A return under this section shall give the name and tax reference number of the person to whom each payment was made, the amount of the payment and such other particulars as may be specified in the notice, including particulars as to—
(a) the services or rights in respect of which the payment was made,
(b) the period over which any services were rendered, and
(c) any business name and any business or home address of the person to whom payment was made.
(6) A return under this section shall include payments made by the person or body of persons in the course of the trade, business or activity on behalf of any other person.
(7) No person shall be required under this section to include in a return—
(a) particulars of any payment from which income tax is deductible,
(b) particulars of payments made to any one person where the total of the payments to that person which would otherwise have to be included in the return does not exceed £500, or
(c) particulars of any payment made in a year of assessment ending more than 3 years before the service of the notice requiring the person to make the return.
(8) A person who fails to deliver, within the period limited in any notice served on the person under this section, a true and correct return which the person is required by the notice to deliver shall be liable to a penalty of £1,200.
(9) Penalties under this section may, without prejudice to any other method of recovery, be proceeded for and recovered summarily in the like manner as in summary proceedings for the recovery of any fine or penalty under any Act relating to the excise.
(10) In proceedings for the recovery of a penalty under this section, a certificate by an officer of the Revenue Commissioners which certifies that he or she has inspected the relevant records of the Revenue Commissioners and that it appears from them that during a stated period a stated return was not received from the defendant shall be evidence until the contrary is proved that the defendant did not during that period deliver that return, and any such certificate, purporting to be signed by an officer of the Revenue Commissioners, may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by an officer of the Revenue Commissioners.
num: 890
paragraphs: —(1) Every person (in this section referred to as “the first-mentioned person”) who, in whatever capacity, is in receipt of any money or value, or of profits or gains arising from any of the sources mentioned in the Income Tax Acts, of or belonging to any other person who is chargeable in respect of such money, value, profits or gains, or who would be so chargeable if that other person were resident in the State and not an incapacitated person, shall, whenever required to do so by a notice given to the first-mentioned person by an inspector, prepare and deliver, within the period mentioned in such notice, a return in the prescribed form, signed by the first-mentioned person, containing—
(a) a statement of all such money, value, profits or gains;
(b) the name and address of every person to whom all such money, value, profits or gains belong;
(c) a declaration whether every such person is of full age, a married woman, resident in the State or an incapacitated person.
(2) Where the first-mentioned person is acting jointly with any other person, the first-mentioned person shall, in the like manner, deliver a list of the names and addresses of all persons joined with the first-mentioned person at the time of delivery of the return mentioned in subsection (1).
(3) No person shall be required under this section to include in a return particulars of receipts (to which subsection (1) applies) of or belonging to any one person where the total of the receipts relating to that person which would otherwise have to be included in the return does not exceed £500.
num: 891
paragraphs: —(1) Subject to subsection (2), every person carrying on a trade or business who, in the ordinary course of the operations of the trade or business, receives or retains money in such circumstances that interest becomes payable on that money which is paid or credited without deduction of income tax, and in particular every person carrying on the trade or business of banking, shall, if required to do so by notice from an inspector, make and deliver to the inspector, within the time specified in the notice, a return of all interest so paid or credited by that person during a year specified in the notice in the course of that person's trade or business or any such part of that person's trade or business as may be so specified, giving the names and addresses of the persons to whom the interest was paid or credited and stating in each case the amount of the interest.
(2) (a) No interest paid or credited to any person shall be required to be included in any return under subsection (1) where the total amount of the interest paid or credited to that person which would otherwise have had to be included in the return does not exceed £50.
(b) The year specified in a notice under subsection (1) shall not be a year ending more than 3 years before the date of the service of the notice.
(3) Without prejudice to the generality of so much of subsection (1) as enables different notices to be served under that subsection in relation to different parts of a trade or business, separate notices may be served under that subsection as respects the transactions carried on at any branch or branches respectively specified in the notices, and any such separate notice shall, if served on the manager or other person in charge of the branch or branches in question, be deemed to have been duly served on the person carrying on the trade or business and, where such a separate notice is so served as respects the transactions carried on at any branch or branches, any notice subsequently served under subsection (1) on the person carrying on the trade or business shall not be deemed to extend to any transaction to which that separate notice extends.
(4) (a) This section shall, with any necessary modifications, apply in relation to the Post Office Savings Bank as if it were a trade or business carried on by An Post.
(b) This subsection shall apply notwithstanding section 4 of the Post Office Savings Bank Act, 1861 ; but, subject to paragraph (a), that section shall remain in full force and effect.
(5) Subsections (1) to (4) shall apply only to money received or retained in the State.
(6) (a) Subject to paragraphs (b) and (c), where a person to whom any interest is paid or credited in respect of any money received or retained in the State by notice in writing served on the person paying or crediting the interest—
(i) declares that the person who was beneficially entitled to that interest when it was paid or credited was not then resident in the State, and
(ii) requests that the interest shall not be included in any return under this section,
the person paying or crediting the interest shall not be required to include the interest in any such return.
(b) Where the person on whom a notice under paragraph (a) is served is not satisfied that the person who served the notice was resident outside the State when the interest was paid or credited—
(i) there shall be given to the person on whom the notice is served an affidavit, made by the person who served the notice, stating that person's name and address and the country in which that person was resident when the interest was paid or credited, and
(ii) if the person who served the notice was not beneficially entitled to that interest when it was paid or credited, the affidavit shall state, in addition to the particulars specified in subparagraph (i), the name and address of the person who was so entitled and the country in which that person was resident when the interest was paid or credited.
(c) Where the person on whom a notice under paragraph (a) is served is satisfied that the person who served the notice (in this paragraph referred to as “the server”) was not resident in the State when the interest was paid or credited and, if the server declares in the notice, or in a subsequent notice served on the person on whom the first-mentioned notice was served, that the server was not beneficially entitled to the interest when it was paid or credited, the server shall, if the person so entitled (in this paragraph referred to as “the beneficial owner”) is resident in the State, state in one of those notices or in a subsequent notice served on the person on whom the first-mentioned notice was served the name and address of the beneficial owner.
(7) A person to whom subsection (1) applies—
(a) shall keep and retain any notice served on that person in accordance with subsection (6), and any affidavit that accompanied the notice, for a period of 6 years from the date of the service of the notice,
(b) shall, if requested in writing by the Revenue Commissioners to do so, inform the Revenue Commissioners within the time specified in the request whether a notice has been served on that person in accordance with subsection (6) by such person as is named, and whose address is stated, in the request, and
(c) shall, if requested in writing by the Revenue Commissioners to do so, furnish to the Revenue Commissioners within the time specified in the request such notice served on that person in accordance with subsection (6) as is specified in the request and the affidavit that accompanied that notice.
num: 892
paragraphs: —(1) In this section, “securities” includes—
(a) shares, stocks, bonds, debentures and debenture stock of a company (within the meaning of section 4 (1)) and also any promissory note or other instrument evidencing indebtedness issued to a loan creditor (within the meaning of section 433 (6)) of a company,
(b) securities created and issued by the Minister for Finance under the Central Fund (Permanent Provisions) Act, 1965 , or under any other statutory powers conferred on that Minister and any stock, debenture, debenture stock, certificate of charge or other security which is issued with the approval of the Minister for Finance given under any Act of the Oireachtas and in respect of which the payment of interest and the repayment of capital is guaranteed by the Minister for Finance under that Act, and
(c) securities of the government of any country or territory outside the State.
(2) Where for any purpose of the Tax Acts any person (in this subsection referred to as “the holder”) in whose name any securities are registered is so required by notice in writing given by an inspector, the holder shall, within the time specified in the notice, state whether or not the holder is the beneficial owner of the securities and, if not the beneficial owner of the securities or any of them, shall furnish in respect of each person on whose behalf the securities are registered in the holder's name—
(a) the name and address of such person,
(b) the nominal value of the securities so registered on behalf of such person and, in so far as the securities consist of shares in a company, the number and class of such shares, and
(c) the date on which each security was so registered in the holder's name on behalf of such person.
num: 893
paragraphs: —(1) In this section—
“distribution” has the same meaning as it has for the purposes of the Corporation Tax Acts;
“intermediary” means any person who provides relevant facilities in relation to a relevant UCITS;
“relevant Directives” means Council Directive 85/611/EEC of 20 December 1985 1 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), and any Directive amending that Directive;
“relevant facilities”, in relation to a relevant UCITS, means—
(a) the marketing in the State of the units of the relevant UCITS,
(b) the acting in the State as an intermediary in the purchase of the units of the relevant UCITS by or on behalf of persons resident in the State or in the sale to such persons of such units, and
(c) the provision in the State on behalf of the relevant UCITS of facilities for the making of payments to holders of its units, the repurchase or redemption of its units or the making available of the information which the relevant UCITS is duly obliged to provide for the purposes of the relevant Directives;
“relevant UCITS” means an undertaking which—
(a) is situated in a member state of the European Communities other than the State,
(b) is a UCITS for the purposes of the relevant Directives, and
(c) markets its units in the State;
“tax reference number”, in relation to a person, has the meaning assigned to it by section 885 in relation to a specified person within the meaning of that section;
“UCITS” means an undertaking for collective investment in transferable securities to which the relevant Directives relate;
“units” includes shares and any other instruments granting an entitlement to—
(a) share in the investments or income of, or
(b) receive a distribution from,
a relevant UCITS.
(2) For the purposes of the Tax Acts and the Capital Gains Tax Acts, an intermediary shall, if required to do so by notice from an inspector, prepare and deliver to the inspector within such time, not being less than 30 days, as shall be specified in the notice a return of—
(a) the names and addresses and tax reference numbers of all persons resident in the State in respect of whom the intermediary has in the course of providing relevant facilities in relation to a relevant UCITS during such period as shall be specified in the notice—
(i) acted as an intermediary in the purchase by or on behalf of any of those persons of units in the relevant UCITS or in the sale to such persons of such units,
(ii) provided facilities for the making of payments by the relevant UCITS to any of those persons who hold units of the relevant UCITS, and
(iii) provided facilities for the repurchase or redemption of units of the relevant UCITS held by any of those persons,
and
(b) where appropriate, in respect of each such person—
(i) the name and address of each relevant UCITS—
(I) the units of which have been so purchased by or on behalf of or sold to that person in that period,
(II) on whose behalf facilities have been provided for the making of payments by the relevant UCITS to that person in that period, and
(III) on whose behalf facilities have been provided for the repurchase or redemption by the relevant UCITS in that period of units in the relevant UCITS held by that person,
and
(ii) (I) the value or total value of the units so purchased by or on behalf of or sold to that person,
(II) the amount of the payments so made by the relevant UCITS to that person, and
(III) the value or total value of the units held by that person which were so repurchased or redeemed by the relevant UCITS.
(3) Where a person resident in the State avails of relevant facilities provided by an intermediary in relation to relevant UCITS, that person shall furnish to the intermediary details which the intermediary is required to include in a return to the inspector in accordance with subsection (2), or would be required to include in such a return if a notice under the subsection were served on the intermediary, and the intermediary shall take all reasonable care (including, where necessary, the requesting of documentary evidence) to confirm that the details furnished are true and correct.
1O.J. No. L375 of 31.12.1985.
num: 894
paragraphs: —(1) In this section—
“appropriate inspector”, in relation to a person to whom this section applies, means—
(a) the inspector who has last given notice in writing to that person that he or she is the inspector to whom that person is required to deliver the return specified in subsection (3),
(b) where there is no such inspector as is referred to in paragraph (a), the inspector to whom it is customary for that person to deliver a return or statement of income or profits, or
(c) where there is no such inspector as is referred to in paragraphs (a) and (b), the inspector of returns specified in section 950 ;
“chargeable period” has the same meaning as in section 321 (2);
“relevant person” has the meaning assigned to it by subsection (2);
“specified provisions” means paragraphs (d) and (e) of section 888 (2) and sections 889 to 893 ,
“specified return date for the chargeable period”, in relation to a chargeable period, means—
(a) where the chargeable period is a year of assessment, the 31st day of January in the year of assessment following that year, and
(b) where the chargeable period is an accounting period of a company, the last day of the period of 9 months commencing on the day immediately following the end of the accounting period.
(2) (a) Subject to paragraphs (b) to (e), “relevant person” means any person who—
(i) has information of a kind,
(ii) makes a payment of a kind,
(iii) pays or credits interest of a kind, or
(iv) is in receipt of money or value or of profits or gains of a kind,
referred to in a specified provision.
(b) Subject to paragraph (e), any person who would be excluded from making a return under a specified provision for a chargeable period shall not be a relevant person.
(c) A person with information of the kind referred to in section 892 shall, subject to paragraph (e), be a relevant person only where the person is not the beneficial owner of the securities referred to in that section.
(d) A person with information of the kind referred to in section 893 shall, subject to paragraph (e), be a relevant person only where the person is an intermediary for the purposes of that section.
(e) A person who is not a relevant person by virtue of any of the provisions of paragraphs (b) to (d) shall not be excluded from being a relevant person by virtue of any other provision of this subsection.
(3) Every relevant person shall as respects a chargeable period prepare and deliver to the appropriate inspector on or before the specified return date for the chargeable period a return of all such matters and particulars as would be required to be contained in a return delivered pursuant to a notice given to the relevant person by the appropriate inspector under any of the specified provisions for the chargeable period.
(4) An inspector may exclude any person from the application of this section by giving that person a notice in writing that that person is excluded from the application of this section, and the notice shall have effect for such chargeable period or periods, or until such chargeable period or the happening of such event, as shall be specified in the notice.
(5) Where it appears appropriate to an inspector, the inspector may notify any relevant person that a return to be made under this section may be confined to a particular type or category of information, payment or receipt and, where the relevant person has been so notified, a return made on that basis shall satisfy this section.
(6) This section shall not affect the giving of a notice under any of the specified provisions and shall not remove from any person any obligation or requirement imposed on a person by such a notice, and the giving of a notice under any of the specified provisions to a person shall not remove from that person any obligation to prepare and deliver a return under this section.
(7) Sections 1052 and 1054 shall apply to a failure by a relevant person to deliver a return required by subsection (3), and to each and every such failure, as they apply to a failure to deliver a return referred to in section 1052 .
num: 895
paragraphs: —(1) In this section—
“appropriate inspector”, in relation to an intermediary or, as may be appropriate, a resident, means—
(a) the inspector who has last given notice in writing to the intermediary or, as the case may be, the resident that he or she is the inspector to whom the intermediary or, as the case may be, the resident is required to deliver a return or statement of income or profits,
(b) where there is no such inspector as is referred to in paragraph (a), the inspector to whom it is customary for the intermediary or, as the case may be, the resident to deliver such return or statement, or
(c) where there is no such inspector as is referred to in paragraphs (a) and (b), the inspector of returns specified in section 950 ;
“chargeable period” has the same meaning as in section 321 (2);
“deposit” means a sum of money paid to a person on terms under which it will be repaid with or without interest and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person to whom it is made;
“foreign account” means an account in which a deposit is held at a location outside the State;
“intermediary” means any person carrying on in the State a trade or business in the ordinary course of the operations of which that person provides a relevant service;
“relevant person” means a person who in the normal course of that person's trade or business receives or holds deposits;
“relevant service” means the acting in the State as an intermediary in or in connection with the opening of foreign accounts with relevant persons by or on behalf of residents;
“resident” means a person resident in the State;
“specified return date for the chargeable period”, in relation to a chargeable period, means—
(a) where the chargeable period is a year of assessment, the 31st day of January in the year of assessment following that year, and
(b) where the chargeable period is an accounting period of a company, the last day of the period of 9 months commencing on the day immediately following the end of the accounting period;
“tax reference number”, in relation to a resident, has the meaning assigned to it by section 885 in relation to a specified person within the meaning of that section.
(2) Every intermediary shall as respects a chargeable period prepare and deliver to the appropriate inspector on or before the specified return date for the chargeable period a return specifying in respect of every resident in respect of whom that intermediary has acted in the chargeable period as an intermediary in the opening of a foreign account—
(a) the full name and permanent address of the resident,
(b) the resident's tax reference number,
(c) the full name and address of the relevant person with whom the foreign account was opened,
(d) the date on which the foreign account was opened, and
(e) the amount of the deposit made in opening the foreign account.
(3) Where a resident requests an intermediary to provide the resident with a relevant service, the resident shall furnish to the intermediary the details which the intermediary is required to include in the return to the appropriate inspector in accordance with subsection (2) and the intermediary shall take all reasonable care (including, where necessary, the requesting of documentary evidence) to confirm that the details furnished are true and correct.
(4) (a) Where an intermediary fails—
(i) for any chargeable period to make a return required to be made by the intermediary in accordance with subsection (2),
(ii) to include in such a return for a chargeable period details of any resident to whom the intermediary provided a relevant service in the chargeable period, or
(iii) to take reasonable care to confirm the details of the kind referred to in subsection (2) furnished to the intermediary by a resident to whom the intermediary has provided a relevant service in a chargeable period,
the intermediary shall, in respect of each such failure, be liable to a penalty of £2,000.
(b) Where a resident fails—
(i) to furnish details of the kind referred to in subsection (2) to an intermediary who has provided the resident with a relevant service, or
(ii) knowingly or wilfully furnishes that intermediary with incorrect details of that kind,
the resident shall be liable to a penalty of £2,000.
(5) Penalties under subsection (4) may, without prejudice to any other method of recovery, be proceeded for and recovered summarily in the like manner as in summary proceedings for the recovery of any fine or penalty under any Act relating to the excise.
(6) Where in any chargeable period a resident opens, either directly or indirectly, a foreign account, or causes to be opened a foreign account in relation to which the resident is the beneficial owner of the deposit held in that account, the resident shall, notwithstanding anything to the contrary in section 950 or 1084 , be deemed for that chargeable period to be a chargeable person for the purposes of sections 951 and 1084 , and the return of income (within the meaning of section 1084 ) to be delivered by the resident for that chargeable period shall include the following particulars in relation to the account—
(a) the name and address of the relevant person with whom the account was opened,
(b) the date on which the account was opened,
(c) the amount of the deposit made in opening the account, and
(d) the name and address of the intermediary, if any, who provided a relevant service in relation to the opening of the account.
num: 896
paragraphs: —(1) In this section—
“material interest” shall be construed in accordance with section 743 (2);
“offshore fund” has the meaning assigned to it by section 743 (1), but a relevant UCITS within the meaning of section 893 (1) shall not be an offshore fund.
(2) As respects a material interest in an offshore fund, section 895 shall apply with any necessary modifications where it would not otherwise apply—
(a) to every person carrying on in the State a trade or business in the ordinary course of the operations of which such person acts as an intermediary in or in connection with the acquisition of such an interest, in the same manner as it applies to every intermediary within the meaning of that section, and
(b) to a person resident or ordinarily resident in the State who acquires such an interest in the same manner as it applies to a person resident in the State opening an account in which a deposit which such person beneficially owns is held at a location outside the State,
as if in that section—
(i) references to a deposit were references to any payment made by a person resident or ordinarily resident in the State in acquiring a material interest in an offshore fund,
(ii) references to a foreign account were references to such an interest,
(iii) references, however expressed, to the opening of a foreign account were references to the acquisition of such an interest, and
(iv) references to a relevant person were references to an offshore fund.
num: 897
paragraphs: —(1) (a) In this section, the references to payments made to persons in respect of their employment and to the remuneration of persons in their employment shall be deemed to include references to—
(i) any payments made to employed persons in respect of expenses,
(ii) any payments made on behalf of employed persons and not repaid, and
(iii) any payments made to the employees in a trade or business for services rendered in connection with the trade or business, whether the services were rendered in the course of their employment or not.
(b) The reference in paragraph (a) (i) to payments made to employed persons in respect of expenses includes a reference to sums put at the disposal of an employed person and paid away by the employed person.
(2) Every employer, when required to do so by notice from an inspector, shall within the time limited by the notice prepare and deliver to the inspector a return containing—
(a) the names and places of residence of all persons employed by that employer,
(b) particulars of any car (within the meaning of section 121 ) made available to those persons by reason of that employment,
(c) particulars of any preferential loan (within the meaning of section 122 ) made, released or written off by that employer in whole or in part and particulars of any interest released, written off or refunded by that employer in whole or in part and which was payable or paid on such loan,
(d) particulars of any relevant scholarships (within the meaning of section 193 ) in relation to those persons, not being a payment made before the 6th day of April, 1998, in respect of a scholarship (within the meaning of that section) awarded before the 26th day of March, 1997, and
(e) particulars of the payments made to those persons in respect of that employment, except persons who are not employed in any other employment and whose remuneration in the employment for the year does not exceed £1,500.
(3) Where the employer is a body of persons, the secretary of the body or other officer (by whatever name called) performing the duties of secretary shall be deemed to be the employer for the purposes of this section, and any director (within the meaning of section 116 ) of a body corporate (including a company), or person engaged in the management of that body corporate, shall be deemed to be a person employed.
(4) Where an employer is a body corporate (including a company), that body corporate, as well as the secretary or other officer performing the duties of secretary of the body corporate, shall be liable to a penalty for failure to deliver a return under this section.
(5) An employer shall not be liable to any penalty for omitting from any return under subsection (2) the name or place of residence of any person employed by the employer and not employed in any other employment, where it appears to the Revenue Commissioners that such person is entitled to total exemption from tax.
(6) Where for the purposes of a return under this section an employer apportions expenses incurred partly in or in connection with a particular matter and partly in or in connection with other matters—
(a) the return shall contain a statement that the sum included in the return is the result of such an apportionment,
(b) the employer, if required to do so by notice from the inspector, shall prepare and deliver to the inspector within the time limited by the notice a return containing full particulars as to the amount apportioned and the manner in which and the grounds on which the apportionment has been made, and
(c) where the inspector is dissatisfied with any such apportionment of expenses, the inspector may for the purposes of assessment apportion the expenses, but the employer may, on giving notice in writing to the inspector within 21 days after being notified of any such apportionment made by the inspector, appeal against that apportionment to the Appeal Commissioners.
(7) The Appeal Commissioners shall hear and determine an appeal to them under subsection (6) as if it were an appeal to them against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
num: 898
paragraphs: —(1) In this section, “rating authority” means—
(a) the corporation of a county or other borough,
(b) the council of a county, or
(c) the council of an urban district.
num: 899
paragraphs: —(1) In this section, “specified provisions” means paragraphs (d) and (e) of section 888 (2), sections 889 and 890 , and sections 892 to 894 .
(2) An inspector may make such enquiries or take such action within his or her powers as he or she considers necessary to satisfy himself or herself as to the accuracy or otherwise of any return, list, statement or particulars prepared and delivered under a specified provision.
(3) Subsection (2) shall not apply in respect of a return made under section 894 of such matters and particulars as would be required to be contained in a return delivered pursuant to a notice given to a relevant person by the appropriate inspector under section 891 for the chargeable period.
num: 900
paragraphs: —(1) In this section, “authorised officer” means an inspector or other officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section.
(2) Subject to subsection (3), where any person who has been duly required by an inspector to deliver a statement of the profits or gains arising to that person from any trade or profession fails to deliver the statement, or where the inspector is not satisfied with the statement delivered by that person, an authorised officer may serve on that person a notice in writing or notices in writing requiring that person to do any of the following—
(a) to deliver to an inspector or to the authorised officer copies of such accounts (including balance sheets) relating to the trade or profession as may be specified or described in the notice within such period as may be specified in the notice, including where the accounts have been audited a copy of the auditor's certificate;
(b) to make available, within such time as may be specified in the notice, for inspection by an inspector or by an authorised officer, all such books, accounts and documents in that person's possession or power as may be specified or described in the notice, being books, accounts and documents which contain information as to transactions of the trade or profession.
(3) (a) In this subsection, “precedent partner” has the same meaning as in Part 43 .
(b) In the case of a partnership carrying on a trade or profession, where a precedent partner who has been duly required by an inspector to deliver a statement of the profits or gains arising to the partnership from any trade or profession fails to deliver the statement, or where the inspector is not satisfied with the statement delivered by the precedent partner, an authorised officer may serve on the precedent partner a notice in writing or notices in writing requiring the precedent partner to do any of the following—
(i) to deliver to an inspector or to the authorised officer copies of such accounts (including balance sheets) relating to the trade or profession as may be specified or described in the notice within such period as may be specified in the notice, including where the accounts have been audited a copy of the auditor's certificate;
(ii) to make available, within such time as may be specified in the notice, for inspection by an inspector or by the authorised officer, all such books, accounts and documents in the precedent partner's possession or power or in the possession or power of the partnership as may be specified or described in the notice, being books, accounts and documents which contain information as to transactions of the trade or profession.
(4) The inspector or authorised officer may take copies of or extracts from any books, accounts or documents made available for his or her inspection under this section.
num: 901
paragraphs: —(1) Any person who has custody or possession of any books or papers relating to income tax or corporation tax shall, within one month next after notice in writing from the Revenue Commissioners requiring that person to do so, deliver such books or papers to the person named in the notice and, if the first-mentioned person fails to do so, that person shall incur a penalty of £50 for every such offence.
(2) The receipt of the person named in the notice shall be a sufficient discharge to the person delivering the books or papers.
num: 902
paragraphs: —(1) (a) In this section—
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“business” means any trade, profession or business (other than banking business within the meaning of the Central Bank Act, 1971 );
“documents” means those records required to be kept or retained under section 886 ;
“tax” means income tax or corporation tax.
(b) The persons who may be treated as the taxpayer under this section include a company which has ceased to exist and an individual who has died and, in relation to such an individual, the reference in subsection (2) to the spouse shall be construed as a reference to the widow or widower (the circumstance that she or he may have remarried being immaterial for the purposes of that subsection).
(c) The persons who in relation to a taxpayer are subject to this section shall be any person who is carrying on a business or was doing so at a material time, and any company whether carrying on a business or not.
(2) (a) For the purposes of this subsection, every director of a company shall be taken as being concerned with the management of any business carried on by the company, and a material time shall be any time which in the authorised officer's opinion is or may have been material in the ascertainment of any past or present tax liability of the taxpayer.
(b) Where a person (in this section referred to as “the taxpayer”)—
(i) delivers to an inspector a return or statement of the income, profits or gains arising to the taxpayer from—
(I) any business (past or present) carried on by the taxpayer or his or her spouse, or
(II) any business (past or present) with whose management either of them was concerned at a material time,
and the inspector is not satisfied with the return or statement, or
(ii) fails to deliver such a return or statement which the taxpayer is required to deliver under any provision of the Tax Acts,
the inspector may serve on the taxpayer a notice in writing stating—
(A) that the inspector is not satisfied with the return or statement delivered to him or her or, as the case may be, that such return or statement has not been delivered to the inspector, and
(B) that the inspector has requested an authorised officer to serve notice under this section on persons who in relation to the taxpayer are subject to this section.
(3) Where a notice under subsection (2) has been served on the taxpayer, an authorised officer may, for the purpose of enquiring into the tax liability of the taxpayer, by notice in writing served on any person who in relation to the taxpayer is subject to this section, require that person, within the period stated in the notice or such further period as the authorised officer may allow—
(a) to furnish the authorised officer with particulars of any business transactions which that person had with the taxpayer during a stated period, and
(b) to deliver to the authorised officer or, if the person to whom the notice is given so elects, to make available for inspection by an authorised officer such documents specified or described in the notice as are in that person's possession or power and as, in the first-mentioned officer's opinion, contain or may contain information relevant to any tax liability to which the taxpayer is, may be or may have been subject, or to the amount of any such tax liability.
(4) Nothing in this section shall be construed as requiring a person who is carrying on a profession and on whom a notice under subsection (3) has been served to furnish any particulars relating to a client to an authorised officer, or to deliver to, or make available for inspection by, an authorised officer any documents relating to a client, other than such particulars or documents—
(a) as pertain to the payment of fees or to other financial transactions, or
(b) as are otherwise material to the tax liability of the client,
and in particular such person shall not be required to disclose any information or professional advice of a confidential nature given to a client.
(5) Where a person fails to comply with a requirement duly made on the person under subsection (3) within the period stated in the notice containing the requirement or within such further period as may be allowed by the authorised officer concerned, the person shall be liable to a penalty of £1,000.
(6) Where documents are to be delivered to an authorised officer pursuant to a requirement duly made under subsection (3), copies of such documents may be delivered instead of the originals; but—
(a) the copies shall be photographic or otherwise by means of facsimile, and
(b) if so required by the authorised officer, the originals shall be made available for inspection by an authorised officer, failure to comply with this provision being treated as failure to comply with the requirement.
(7) An authorised officer may examine any documents furnished or made available for inspection under this section and may take copies of or extracts from them or retain them for the purposes of any legal proceedings instituted by an officer of the Revenue Commissioners or for the purposes of any criminal proceedings.
(8) When exercising any powers conferred by this section, an authorised officer shall if so requested by any person affected produce to that person a certificate of the Revenue Commissioners authorising him or her to exercise the powers conferred by this section.
num: 903
paragraphs: —(1) In this section—
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“emoluments”, “employer” and “tax deduction card” have the same meanings respectively as in Chapter 4 of Part 42 ;
“records” means any personnel records relating to the payment of emoluments or the provision of benefits in kind or perquisites, payroll files, wages sheets, certificates of tax-free allowances, tax deduction cards, certificates issued in accordance with regulation 22 of the Income Tax (Employment) Regulations, 1960 ( S.I. No. 28 of 1960 ), including any data (within the meaning of section 912 ) stored by any means approved under section 887 or by any other means or any other information or documents which the authorised officer may reasonably require.
(2) An authorised officer may at all reasonable times enter any premises or place where the authorised officer has reason to believe that—
(a) an employer is or has been carrying on any activity as an employer,
(b) any person is or was either paying emoluments or providing benefits in kind or perquisites,
(c) any person is or was in receipt of emoluments, benefits in kind or perquisites, or
(d) records are or may be kept,
and the authorised officer—
(i) may require any employer or any other person who is on those premises or in that place, other than a person who is there to purchase goods or to receive a service, to produce any records which the authorised officer requires for the purposes of his or her enquiry,
(ii) may, if the authorised officer has reason to believe that any of the records he or she has required to be produced to him or her under paragraph (i) have not been so produced, search on those premises or in that place for those records, and
(iii) may examine, make copies of, take extracts from, remove and retain any records for further examination or for the purposes of any legal proceedings instituted by an officer of the Revenue Commissioners or for the purposes of any criminal proceedings.
(3) An authorised officer may require any person, other than a person purchasing goods or receiving a service from an employer, to give the authorised officer all reasonable assistance, including providing information and explanations and furnishing documents required by the authorised officer.
(4) An authorised officer when exercising or performing his or her powers or duties under this section shall on request produce his or her authorisation for the purposes of this section.
(5) A person who does not comply with the requirements of an authorised officer in the exercise or performance of the authorised officer's powers or duties under this section shall be liable to a penalty of £1,000.
(6) The records referred to in this section shall be retained by the employer for a period of 6 years after the end of the year to which they refer or for such shorter period as the Revenue Commissioners may authorise in writing to the employer.
num: 904
paragraphs: —(1) In this section—
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“principal”, “relevant contract”, “relevant operations” and “subcontractor” have the same meanings respectively as in Chapter 2 of Part 18 ;
“records” means those records required to be kept—
(a) under section 531 and regulations made under that section,
and
(b) under section 886 .
(2) An authorised officer may at all reasonable times enter any premises or place where the authorised officer has reason to believe that—
(a) any relevant operations are or have been carried on,
(b) any person is making or has made payments to a subcontractor in connection with the performance by the subcontractor of a relevant contract in relation to which that person is the principal,
(c) any person is or has been in receipt of such payments, or
(d) records are or may be kept,
and the authorised officer may—
(i) require any principal or subcontractor, or any employee of, or any other person providing bookkeeping, clerical or other administrative services to, any principal or subcontractor, who is on that premises or in that place to produce any records which the authorised officer requires for the purpose of his or her enquiry,
(ii) if the authorised officer has reason to believe that any of the records he or she has required to be produced to him or her under this subsection have not been so produced, search on those premises or in that place for those records, and
(iii) examine, make copies of, take extracts from, remove and retain any records for a reasonable period for their further examination or for the purpose of any legal proceedings instituted by an officer of the Revenue Commissioners or for the purposes of any criminal proceedings.
(3) An authorised officer may require any principal or subcontractor, or any employee of, or any other person providing bookkeeping, clerical or other administrative services to, any principal or subcontractor, to give the authorised officer all reasonable assistance, including providing information and explanations and furnishing documents required by the authorised officer.
(4) An authorised officer when exercising or performing his or her powers or duties under this section shall on request produce his or her authorisation for the purposes of this section.
(5) A person who does not comply with the requirements of an authorised officer in the exercise or performance of the authorised officer's powers or duties under this section shall be liable to a penalty of £1,000.
(6) The records referred to in this section shall be retained for a period of 6 years after the end of the year to which they refer or for such shorter period as the Revenue Commissioners may authorise in writing.
num: 905
paragraphs: —(1) In this section—
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“property” means any asset relating to a tax liability;
“records” means any document or any other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form, which a person is obliged by any provision relating to tax to keep, retain, issue or produce for inspection or which may be inspected under any provision relating to tax;
“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners;
“tax liability” means any existing liability to tax or further liability to tax which may be established by an authorised officer following the exercise or performance of his or her powers or duties under this section.
(2) (a) An authorised officer may at all reasonable times enter any premises or place where the authorised officer has reason to believe that—
(i) any trade, profession or other activity, the profits or gains of which are chargeable to tax, is or has been carried on,
(ii) anything is or has been done in connection with any trade, profession or other activity the profits or gains of which are chargeable to tax,
(iii) any records relating to—
(I) any trade, profession, other source of profits or gains or chargeable gains,
(II) any tax liability, or
(III) any repayments of tax in regard to any person,
are or may be kept, or
(iv) any property is or has been located,
and the authorised officer may—
(A) require any person who is on those premises or in that place, other than a person who is there to purchase goods or to receive a service, to produce any records or property,
(B) if the authorised officer has reason to believe that any of the records or property which he or she has required to be produced to him or her under this subsection have not been produced, search on those premises or in that place for those records or property,
(C) examine any records or property and take copies of or extracts from any records,
(D) remove any records and retain them for a reasonable time for the purposes of their further examination or for the purposes of any legal proceedings instituted by an officer of the Revenue Commissioners or for the purposes of any criminal proceedings, and
(E) examine property listed in any records.
(b) An authorised officer may in the exercise or performance of his or her powers or duties under this section require any person whom he or she has reason to believe—
(i) is or was carrying on any trade, profession or other activity the profits or gains of which are chargeable to tax,
(ii) is or was liable to any tax, or
(iii) has information relating to any tax liability,
to give the authorised officer all reasonable assistance, including providing information and explanations or furnishing documents and making available for inspection property as required by the authorised officer in relation to any tax liability or any repayment of tax in regard to any person.
(c) Nothing in this subsection shall be construed as requiring any person carrying on a profession, or any person employed by any person carrying on a profession, to produce to an authorised officer any documents relating to a client, other than such documents—
(i) as pertain to the payment of fees to the person carrying on the profession or to other financial transactions of the person carrying on the profession,
(ii) as are otherwise material to the tax liability of the person carrying on the profession, or
(iii) as are already required to be provided following a request issued under section 16 of the Stamp Act, 1891,
and in particular that person shall not be required to disclose any information or professional advice of a confidential nature given to a client.
(d) This subsection shall not apply to any premises or place where a banking business (within the meaning of the Central Bank Act, 1971 ) is carried on or to any person or an employee of any person carrying on such a business.
(e) An authorised officer shall not, without the consent of the occupier, enter any premises, or that portion of any premises, which is occupied wholly and exclusively as a private residence, except on production by such officer of a warrant issued by a Judge of the District Court expressly authorising the authorised officer to so enter.
(f) A Judge of the District Court may issue a warrant under paragraph (e) if satisfied by information on oath that it is proper to do so for the purposes of this section.
(3) A person who does not comply with any requirement of an authorised officer in the exercise or performance of the authorised officer's powers or duties under this section shall be liable to a penalty of £1,000.
(4) An authorised officer when exercising or performing his or her powers or duties under this section shall on request show his or her authorisation for the purposes of this section.
num: 906
paragraphs: —Where an authorised officer (within the meaning of section 903 , 904 or 905 , as the case may be) in accordance with section 903 , 904 or 905 enters any premises or place, the authorised officer may be accompanied by a member or members of the Garda SÃ­ochÃ¡na, and any such member may arrest without warrant any person who obstructs or interferes with the authorised officer in the exercise or performance of his or her powers or duties under any of those sections.
num: 907
paragraphs: —(1) In this section—
“authorised officer” means an inspector or other officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“books” means—
(a) bankers' books within the meaning of the Bankers' Books Evidence Acts, 1879 and 1959, and
(b) records and documents of persons referred to in section 7 (4) of the Central Bank Act, 1971 ;
“financial institution” means—
(a) a person who holds or has held a licence under section 9 of the Central Bank Act, 1971 , and
(b) a person referred to in section 7(4) of that Act;
“person” (other than in the definition of “financial institution”) means an individual who is ordinarily resident in the State.
(2) Notwithstanding any other provision of the Tax Acts, where—
(a) a person who for the purposes of tax has been duly required by an inspector to deliver a statement of the profits or gains arising to that person from any trade or profession or to deliver to the inspector a return of income fails to deliver that statement or that return to the inspector, or
(b) the inspector is not satisfied with such a statement or return so delivered,
an authorised officer may—
(i) if the authorised officer has reasonable grounds to believe that that person maintains or maintained an account or accounts (being an account or accounts from which the person may withdraw moneys), the existence of which has not been disclosed to the Revenue Commissioners, with a financial institution or that there is likely to be information in the books of that institution indicating that that statement of profits or gains or that return of income is false to a material extent, and
(ii) on application by the authorised officer to the Appeal Commissioners, they determine that in all the circumstances the authorised officer is justified in requiring the financial institution to furnish him or her—
(I) with particulars of all accounts maintained by that person, either solely or jointly with any other person or persons, in that institution during a period not exceeding 10 years immediately preceding the date of the application, and
(II) with such information as may be specified by the authorised officer with the consent of the Appeal Commissioners relating to the financial transactions of that person, being information recorded in the books of that institution which would be material in determining the correctness of the statement of profits or gains or the return of income delivered by that person or, in the event of failure to deliver such statement or return, would be material in determining the liability of that person to tax,
require that financial institution to furnish such particulars or information.
(3) An application by an authorised officer under subsection (2) shall with any necessary modifications be heard by the Appeal Commissioners as if it were an appeal against an assessment to income tax, and a copy of the application shall, as soon as is practicable, be furnished by the authorised officer to the financial institution concerned and the person concerned, and that financial institution and that person shall be entitled—
(a) to be present during all the time of the hearing of the application,
(b) to produce lawful evidence, and
(c) to be represented by—
(i) a barrister,
(ii) a solicitor,
(iii) an accountant (being any person who has been admitted and is a member of an incorporated society of accountants),
(iv) a person who has been admitted and is a member of the body incorporated under the Companies Act, 1963 , on the 31st day of December, 1975, as “The Institute of Taxation in Ireland”, or
(v) such other person as the Appeal Commissioners permit,
to plead on their behalf before the Appeal Commissioners.
(4) Section 941 shall apply with any necessary modifications to a determination by the Appeal Commissioners under subsection (2) as it applies to the determination by those Commissioners of an appeal against an assessment to income tax.
(5) Where the Appeal Commissioners have made a determination in accordance with subsection (2), the authorised officer shall, as soon as practicable but not later than 14 days from the time at which such determination was made, give a notice in writing to the financial institution concerned and the person concerned stating that—
(a) such a determination has been made, and
(b) the financial institution should, within a period of 30 days from the time at which the financial institution received such notice, furnish the particulars or information as may be specified in the notice.
(6) A financial institution which fails to comply with a request issued to it by an authorised officer in accordance with subsection (2) shall be liable to a penalty of £15,000 and, if the failure continues after the expiry of the period specified in subsection (5) (a), a further penalty of £2,000 for each day on which the failure so continues.
num: 908
paragraphs: —(1) In this section—
“authorised officer” means an inspector or other officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section;
“books”, “financial institution” and “person” have the same meanings respectively as in section 907 ;
“judge” means a judge of the High Court.
(2) Where—
(a) a person who for the purposes of tax has been duly required by an inspector to deliver a statement of the profits or gains arising to that person from any trade or profession or to deliver to the inspector a return of income fails to deliver that statement or that return to the inspector, or
(b) the inspector is not satisfied with such a statement or return so delivered,
an authorised officer may, if he or she is of opinion that that person maintains or maintained an account or accounts, the existence of which has not been disclosed to the Revenue Commissioners, with a financial institution or that there is likely to be information in the books of that institution indicating that that statement of profits or gains or that return of income is false to a material extent, apply to a judge for an order requiring that financial institution to furnish the authorised officer—
(i) with full particulars of all accounts maintained by that person, either solely or jointly with any other person or persons, in that institution during a period not exceeding 10 years immediately preceding the date of the application, and
(ii) with such information as may be specified in the order relating to the financial transactions of that person, being information recorded in the books of that institution which would be material in determining the correctness of the statement of profits or gains or the return of income delivered by that person or, in the event of failure to deliver such statement or return, would be material in determining the liability of that person to tax.
(3) Where the judge to whom an application is made under subsection (2) is satisfied that there are reasonable grounds for making the application, that judge may, subject to such conditions as he or she may consider proper and specify in the order, make an order requiring the financial institution to furnish the authorised officer with such particulars and information as may be specified in the order.
(4) Where a judge makes an order under this section, he or she may also, on the application of the authorised officer concerned, make a further order prohibiting, for such period as the judge may consider proper and specify in the order, any transfer of, or any dealing with, without the consent of the judge, any assets or moneys of the person to whom the order relates that are in the custody of the financial institution at the time the order is made.
(5) (a) Where—
(i) a copy of any affidavit and exhibits grounding an application under subsection (2) or (4) and any order made under subsection (3) or (4) are to be made available to any of the persons referred to in subsection (2) or any of those persons' solicitor, or to the financial institution, as the case may be, and
(ii) the judge is satisfied on the hearing of the application that there are reasonable grounds in the public interest that such copy of an affidavit, exhibits or order, as the case may be, should not include the name or address of the authorised officer,
such copy, copies or order shall not include the name or address of that authorised officer.
(b) Where, on any application to the judge to vary or discharge an order made under this section, it is desired to cross-examine the deponent of any affidavit filed by or on behalf of the authorised officer and the judge is satisfied that there are reasonable grounds in the public interest to so order, the judge shall order either or both of the following—
(i) that the name and address of the authorised officer shall not be disclosed in court, and
(ii) that such cross-examination shall only take place in the sight and hearing of the judge and in the hearing only of all other persons present at such cross-examination.
(6) Every hearing of an application for an order under this section and of any appeal in connection with that application shall be held in camera.
num: 909
paragraphs: —(1) (a) In this section—
“asset” includes any interest in an asset;
“limited interest” means—
(i) an interest (other than a leasehold interest) for the duration of a life or lives or for a period certain, or
(ii) any other interest which is not an absolute interest;
“prescribed” means prescribed by the Revenue Commissioners;
“property” includes interests and rights of any description and, without prejudice to the generality of the foregoing, includes—
(i) in the case of a limited interest, the property in which the limited interest subsists or on which it is charged or secured or on which there exists a right to have it charged or secured,
(ii) an interest in expectancy,
(iii) an interest or share in a partnership, joint tenancy or estate of a deceased person,
(iv) stock or shares in a company which is in the course of liquidation,
(v) an annuity, and
(vi) property comprised in a settlement which the person concerned is empowered to revoke;
“settlement” has the same meaning as in section 794
“specified date”, in relation to a notice under subsection (2), means the date specified in the notice;
“tax” means income tax and capital gains tax.
(b) For the purposes of this section, the cost of acquisition to a person of an asset shall include—
(i) the amount or value of the consideration, in money or money's worth, given by the person or on the person's behalf for the acquisition of the asset, together with the incidental costs to the person of the acquisition or, if the asset was not acquired by the person, any expenditure incurred by the person in providing the asset, and
(ii) the amount of any expenditure incurred on the asset by the person or on the person's behalf for the purpose of enhancing the value of the asset, being expenditure reflected in the state or nature of the asset at the specified date, and any expenditure incurred by the person in establishing, preserving or defending the person's title to, or to a right over, the asset.
(2) Where for the purposes of tax a person is required under any provision of the Tax Acts or the Capital Gains Tax Acts to deliver a tax return to an inspector of taxes or to the inspector of returns (within the meaning of section 951 (11)), as the case may be, the inspector may require—
(a) that person, by notice in writing given to that person, and
(b) where that person and his or her spouse are, for the year of assessment to which the tax return relates, treated as living together for the purpose of section 1015 , that person's spouse, by notice in writing given to the spouse,
to deliver to the inspector within the time specified in the notice or within such further period as the inspector may allow a statement of affairs in the prescribed form as at the date specified in the notice, and that person or that person's spouse shall, if required by further notice or notices in writing by the inspector, deliver to the inspector within such time, not being less than 30 days, as may be specified in such further notice or notices, a statement verifying such statement of affairs together with such evidence, statement or documents required by the inspector in respect of any asset or liability shown on the statement of affairs, or in respect of any asset or liability which the inspector has reason to believe has been omitted from the statement of affairs.
(3) (a) In this section, “statement of affairs”, in relation to a notice under subsection (2), means—
(i) where the person to whom notice is given is an individual who is a chargeable person and the tax return concerned relates to income or capital gains in respect of which that individual is chargeable to tax otherwise than in a representative capacity or as a trustee, a statement of all the assets wherever situated to which that individual is beneficially entitled on the specified date and all the liabilities for which that individual is liable on the specified date,
(ii) where the person to whom notice is given is the spouse of an individual referred to in subparagraph (i), a statement of all the assets wherever situated to which that spouse is beneficially entitled on the specified date and all the liabilities for which that spouse is liable on the specified date,
(iii) where the person to whom notice is given is a chargeable person in a representative capacity and the tax return concerned relates to income or capital gains of a person (in this paragraph referred to as “the second-mentioned person”) in respect of which that chargeable person is so chargeable, a statement of all the assets wherever situated to which the second-mentioned person is beneficially entitled and which give rise to income or capital gains in respect of which that chargeable person is chargeable to tax in a representative capacity and all the liabilities for which the second-mentioned person is liable, or which are assets or liabilities in relation to which that chargeable person performs functions or duties in such a capacity on the specified date, or
(iv) where the person to whom notice is given is a chargeable person as a trustee of a trust and the tax return concerned relates to income or capital gains of a trust, a statement of all the assets and liabilities comprised in the trust on the specified date.
(b) Any assets to which a minor child of an individual referred to in subparagraph (i) or (ii) of paragraph (a) is beneficially entitled shall be included in that individual's statement of affairs under this section where—
(i) such assets at any time before their acquisition by the minor child were disposed of by that individual whether to the minor child or not, or
(ii) the consideration for the acquisition of such assets by the minor child was provided directly or indirectly by that individual.
(4) (a) A statement of affairs delivered under this section shall contain in relation to each asset included in the statement—
(i) a full description,
(ii) its location on the specified date,
(iii) the cost of acquisition to the person beneficially entitled to that asset,
(iv) the date of acquisition, and
(v) if it was acquired otherwise than by means of a bargain at arm's length, the name and address of the person from whom it was acquired and the consideration, if any, given to that person in respect of its acquisition.
(b) A statement of affairs delivered under this section shall, in the case of an asset which is an interest other than an absolute interest, contain particulars of the title under which the beneficial entitlement arises.
(c) A statement of affairs delivered under this section shall be signed by the person by whom it is delivered and shall include a declaration by that person that it is to the best of that person's knowledge, information and belief correct and complete.
(d) The Revenue Commissioners may require the declaration mentioned in paragraph (c) to be made on oath.
num: 910
paragraphs: —(1) For the purposes of the assessment, charge, collection and recovery of any tax or duty placed under their care and management, the Revenue Commissioners may, by notice in writing, request any Minister of the Government to provide them with such information in the possession of that Minister in relation to payments for any purposes made by that Minister, whether on that Minister's own behalf or on behalf of any other person, to such persons or classes of persons as the Revenue Commissioners may specify in the notice and a Minister so requested shall provide such information as may be specified.
(2) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this section to be performed or discharged by the Revenue Commissioners.
num: 911
paragraphs: —(1) For the purposes of the Capital Gains Tax Acts, an inspector or other officer mentioned in section 931 (1) shall be authorised to inspect any property for the purpose of ascertaining its market value and the person having the custody or possession of that property shall permit the inspector or other officer so authorised, on producing if so required evidence of his or her authority, to inspect it at such reasonable times as the Revenue Commissioners may consider necessary.
(2) Section 1057 shall apply to an inspector or other officer referred to in subsection (1) and to a person acting in the aid of such an inspector or officer as it applies in relation to the persons referred to in paragraphs (a) and (b) of subsection (1) of that section.
num: 912
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Customs Acts,
(b) the statutes relating to the duties of excise and to the management of those duties,
(c) the Tax Acts,
(d) the Capital Gains Tax Acts,
(e) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(f) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act, and
(g) Part VI of the Finance Act, 1983 ,
and any instruments made thereunder;
“data” means information in a form in which it can be processed;
“data equipment” means any electronic, photographic, magnetic, optical or other equipment for processing data;
“processing” means performing automatically logical or arithmetical operations on data, or the storing, maintenance, transmission, reproduction or communication of data;
“records” means documents which a person is obliged by any provision of the Acts to keep, issue or produce for inspection, and any other written or printed material;
“software” means any sequence of instructions used in conjunction with data equipment for the purpose of processing data or controlling the operation of the data equipment.
(2) Any provision under the Acts which—
(a) requires a person to keep, retain, issue or produce any records or cause any records to be kept, retained, issued or produced, or
(b) permits an officer of the Revenue Commissioners—
(i) to inspect any records,
(ii) to enter premises and search for any records, or
(iii) to take extracts from or copies of or remove any records,
shall, where the records are processed by data equipment, apply to the data equipment together with any associated software, data, apparatus or material as it applies to the records.
(3) An officer of the Revenue Commissioners may in the exercise or performance of his or her powers or duties require—
(a) the person by or on whose behalf the data equipment is or has been used, or
(b) any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material,
to afford him or her all reasonable assistance in relation to the exercise or performance of those powers or duties.
num: 913
paragraphs: —(1) The provisions of the Income Tax Acts relating to the making or delivery of any return, statement, declaration, list or other document, the furnishing of any particulars, the production of any document, the making of anything available for inspection, the delivery of any account or the making of any representation, shall, subject to any necessary modifications, apply in relation to capital gains tax as they apply in relation to income tax.
num: 914
paragraphs: —(1) For the purpose of obtaining particulars of chargeable gains, an inspector may by notice in writing require a return under any provision of this section.
(2) (a) In this subsection, “shares” includes units in a unit trust.
(b) An issuing house or other person carrying on a business of effecting public issues of shares or securities in any company, or placings of shares or securities in any company, either on behalf of the company or on behalf of holders of blocks of shares or securities which have not previously been the subject of a public issue or placing, may be required to make a return of all such public issues or placings effected by that person in the course of the business in the period specified in the notice requiring the return, giving particulars of the persons to or with whom the shares or securities are issued, allotted or placed, and the number or amount of the shares or securities so obtained by them respectively.
(3) A person not carrying on such a business may be required to make a return as regards any such issue or placing effected by that person and specified in the notice, giving particulars of the persons to or with whom the shares or securities are issued, allotted or placed and the number or amount of the shares or securities so obtained by them respectively.
(4) A member of a stock exchange in the State may be required to make a return giving particulars of any transactions effected by that member in the course of that member's business in the period specified in the notice requiring the return and giving particulars of—
(a) the parties to the transactions,
(b) the number or amount of the shares or securities dealt with in the respective transactions, and
(c) the amount or value of the consideration.
(5) A person (other than a member of a stock exchange in the State) who acts as an agent in the State in transactions in shares or securities may be required to make a return giving particulars of—
(a) any such transactions effected by that person in the period specified in the notice,
(b) the parties to the transactions,
(c) the number or amount of the shares or securities dealt with in the respective transactions, and
(d) the amount or value of the consideration.
(6) An auctioneer and any person carrying on a trade of dealing in any description of tangible movable property, or of acting as an agent or intermediary in dealings in any description of tangible movable property, may be required to make a return giving particulars of any transactions effected by or through that auctioneer or that person, as the case may be, in which any asset which is tangible movable property is disposed of for a consideration the amount or value of which, in the hands of the recipient, exceeds—
(a) as respects transactions effected on or after the 6th day of April, 1994, but before the 6th day of April, 1995, £5,000, and
(b) as respects transactions effected on or after the 6th day of April, 1995, £15,000.
(7) No person shall be required under this section to include in a return particulars of any transaction effected more than 3 years before the service of the notice requiring that person to make the return.
num: 915
paragraphs: —(1) In this section, references to shares include references to securities and loan capital.
(2) Where, for the purpose of obtaining particulars of chargeable gains, any person in whose name any shares of a company are registered is so required by notice in writing by the Revenue Commissioners or by an inspector, that person shall state whether or not that person is the beneficial owner of those shares and, if that person is not the beneficial owner of those shares or any of them, shall furnish the name and address of the person or persons on whose behalf the shares are registered in that person's name.
num: 916
paragraphs: —The Revenue Commissioners may by notice in writing require any person, being a party to a settlement, to furnish them within such time as they may direct (not being less than 28 days) with such particulars relating to the settlement as they think necessary for the purposes of the Capital Gains Tax Acts.
num: 917
paragraphs: —A person who—
(a) holds shares or securities in a company not resident or ordinarily resident in the State, or
(b) is beneficially interested or acts as agent for or on behalf of a person who is beneficially interested in settled property under a settlement the trustees of which are not resident or ordinarily resident in the State,
may be required by a notice by the Revenue Commissioners to give such particulars as the Revenue Commissioners may consider are required to determine whether the company or trust is within section 579 or 590 , and whether any chargeable gains have accrued to that company, or to the trustees of that settlement, in respect of which the person to whom the notice is given is liable to capital gains tax under section 579 or 590 .
num: 918
paragraphs: —(1) Assessments under Schedules D, E and F, except—
(a) such assessments as the Revenue Commissioners are empowered to make under Chapter 2 of Part 4 ,
(b) assessments to which section 853 applies, and
(c) such assessments as officers or persons appointed by the Revenue Commissioners are empowered to make under section 854 ,
shall be made by the inspectors or such other officers as the Revenue Commissioners shall appoint in that behalf.
(2) The inspector shall give due notice to each person assessed of every such assessment made by him or her, the amount of the assessment and the time allowed for giving notice of appeal against the assessment.
num: 919
paragraphs: —(1) Assessments to corporation tax shall be made by an inspector.
(2) (a) Where a company on whose profits the tax is to be assessed is resident in the State, the tax shall be assessed on the company.
(b) Where a company on whose profits the tax is to be assessed is not resident in the State, the tax shall be assessed on the company in the name of any agent, manager, factor or other representative of the company.
(3) The inspector shall give notice to the company assessed or, in the case of a company not resident in the State, to the agent, manager, factor or other representative of the company assessed of every assessment made by the inspector.
(4) (a) In this section, “information” includes information received from a member of the Garda SÃ­ochÃ¡na.
(b) Where—
(i) a company makes default in the delivery of a statement in respect of corporation tax, or
(ii) the inspector is not satisfied with a statement which has been delivered, or has received information as to its insufficiency,
the inspector shall make an assessment on the company concerned in such sum as according to the best of the inspector's judgment ought to be charged on that company.
(5) (a) In this subsection, “neglect” means negligence or a failure to give any notice, to make any return, statement or declaration, or to produce or furnish any list, document or other information required by or under the enactments relating to corporation tax; but a company shall be deemed not to have failed to do anything required to be done within a limited time if the company did it within such further time, if any, as the Revenue Commissioners or officer concerned may have allowed and, where a company had a reasonable excuse for not doing anything required to be done, the company shall be deemed not to have failed to do it if the company did it without unreasonable delay after the excuse had ceased.
(b) Where an inspector discovers that—
(i) any profits which ought to have been assessed to corporation tax have not been assessed,
(ii) an assessment to corporation tax is or has become insufficient, or
(iii) any relief which has been given is or has become excessive,
the inspector shall make an assessment in the amount or the further amount which ought in the inspector's opinion to be charged.
(c) Subject to paragraph (d) and any other provision allowing a longer period in any class of case, no assessment to corporation tax shall be made more than 10 years after the end of the accounting period to which it relates.
(d) In a case in which any form of fraud or neglect has been committed by or on behalf of any company in connection with or in relation to corporation tax, an assessment may be made on that company at any time for any accounting period for which by reason of the fraud or neglect corporation tax would otherwise be lost to the Exchequer.
(e) An objection to the making of any assessment on the ground that the time limited for the making of the assessment has expired shall be made only on appeal against the assessment.
(6) An assessment on a company's profits for an accounting period which falls after the commencement of the winding up of the company shall not be invalid because made before the end of the accounting period.
num: 920
paragraphs: —(1) Notwithstanding anything in the Income Tax Acts, the inspector or such other officer as the Revenue Commissioners shall appoint in that behalf may at any time grant, in relation to any assessment in respect of income tax chargeable for any year of assessment, any allowance, deduction or relief authorised by the Income Tax Acts.
(2) Whenever such inspector or other officer so grants any such allowance, deduction or relief in relation to an assessment, such assessment shall be deemed to be amended accordingly.
num: 921
paragraphs: —(1) In this section, “personal reliefs” means relief under any of the provisions specified in the Table to section 458 .
num: 922
paragraphs: —(1) In this section, “information” includes information received from a member of the Garda SÃ­ochÃ¡na.
num: 923
paragraphs: —(1) (a) A person appointed under section 855 to be an assessor and a person (in this section also referred to as an “assessor”) appointed under section 854 shall on request be furnished free of charge by any officer in the relevant department or office or by any agent by whom the same are payable with true accounts of any salaries, fees, wages, perquisites, profits, pensions or stipends chargeable under Schedule E.
(b) Every such assessor shall have access to all documents in his or her department or office which concern any such payments.
(c) Every such assessor may, if he or she is dissatisfied with any account referred to in paragraph (a) or in any case in which it may be necessary, require from any person to be charged an account of any salary, fees, wages, perquisites, profits, pensions or stipend, within the like period as is limited for the delivery of statements of profits or gains under the Income Tax Acts, and under the like penalty as is provided in the case of failure to deliver such statements.
(2) The assessors shall assess the persons who hold offices, or are entitled to pensions or stipends, in accordance with the annual amount thereof from the documents, accounts and papers in their respective departments.
(3) Every assessment shall set out—
(a) the full and just annual emoluments of every office and employment of profit, and the full annual amount of every pension or stipend,
(b) the names of the persons entitled to those emoluments, pensions or stipends, and
(c) the tax payable in each case.
(4) An assessor who fails to comply with this section shall be liable to a penalty not exceeding £100 and not less than £20.
num: 924
paragraphs: —(1) (a) Where the inspector discovers that—
(i) any properties or profits chargeable to income tax have been omitted from the first assessments,
(ii) a person chargeable—
(I) has not delivered any statement,
(II) has not delivered a full and proper statement,
(III) has not been assessed to income tax, or
(IV) has been undercharged in the first assessments, or
(iii) a person chargeable has been allowed, or has obtained from and in the first assessments, any allowance, deduction, exemption, abatement or relief not authorised by the Income Tax Acts,
num: 925
paragraphs: —(1) Where at any time, either during the year of assessment or in respect of that year, a person becomes entitled to any additional salary, fees or emoluments over and above the amount for which an assessment to income tax has been made on that person, or for which at the commencement of that year that person was liable to be charged to income tax, an additional assessment shall, as often as the case may require, be made on that person in respect of any such additional salary, fees or emoluments, so that he or she may be charged in respect of the full amount of his or her salary, fees or emoluments for that year.
(2) Where any person proves to the satisfaction of the inspector that the amount for which an assessment to income tax has been made in respect of that person's salary, fees or emoluments for any year of assessment exceeds the amount of the salary, fees or emoluments for that year, the assessment shall be adjusted and any amount overpaid by means of tax shall be repaid.
num: 926
paragraphs: —(1) Where—
(a) the total income of any individual from all sources, whether chargeable with income tax by deduction or otherwise, includes income from any source or sources which is to be computed on the basis of the actual amounts receivable in the year of assessment or where any deductions allowable on account of any annual sums paid out of the property or profits of an individual are to be allowed as deductions in respect of the year in which they are payable, and
(b) an assessment to income tax is being made before the end of the year of assessment to which such assessment to tax relates,
the inspector in making the assessment shall, in computing the total amount of income assessable to income tax, estimate the amount of income from each such source or the amount of any such allowable deductions and, in making any such estimate, the inspector shall have due regard to any corresponding amount of income or allowable deductions in the year preceding the year of assessment and shall, in computing the income tax payable, estimate the amount of tax to be credited under sections 59 and 997 .
(2) Where—
(a) an estimate has been made under subsection (1),
(b) notice of an appeal against the assessment to income tax has not been given, and
(c) the person assessed gives to the inspector within a period of one year from the end of the year of assessment particulars of the correct amount of the income or deductions in respect of which the estimate was made,
the inspector shall adjust the assessment by reference to the difference between the correct amount of income assessable to income tax and the amount of the assessment, and any amount of income tax overpaid shall be repaid.
num: 927
paragraphs: —(1) Where an inspector discovers that any set-off or payment of tax credit ought not to have been made or is or has become excessive, the inspector may make any such assessments as may in his or her judgment be required for recovering any tax that ought to have been paid or any payment of tax credit that ought not to have been made and generally for securing that the resulting liabilities to tax of the persons concerned are what they would have been if only such set-offs or payments had been made as ought to have been made.
(2) This Part, Part 40 and Part 42 shall apply to any assessment under this section for recovering a payment of tax credit as if it were an assessment to income tax for the year of assessment, or, in the case of a company, corporation tax for the accounting period, in respect of which the payment was claimed and as if that payment represented a loss of tax to the Exchequer, and any sum charged by any such assessment shall, subject to any appeal against the assessment, be due within 14 days after the issue of the notice of assessment.
num: 928
paragraphs: —(1) After assessments to income tax and corporation tax have been made, the inspectors shall transmit particulars of the sums to be collected to the Collector-General for collection.
(2) The entering by an inspector or other authorised officer of details of an assessment to income tax or corporation tax and of the tax charged in such an assessment in an electronic, photographic or other record from which the Collector-General may extract such details by electronic, photographic or other process shall constitute transmission of such details by the inspector or other authorised officer to the Collector-General.
(3) Subsection (2) shall apply for the purposes of value-added tax as it applies for the purposes of income tax or corporation tax with the substitution of “value-added tax” for “income tax or corporation tax”.
num: 929
paragraphs: —(1) A person who, either on the person's own account or on behalf of another person, has been assessed to income tax or corporation tax, and is by any error or mistake again assessed for the same year of assessment or the same accounting period, as the case may be, for the same cause and on the same account, may apply for relief to the Appeal Commissioners who, on proof to their satisfaction of the double assessment, shall cause the assessment, or so much of the assessment as constitutes a double assessment, to be vacated.
(2) Where it appears to the satisfaction of the Revenue Commissioners that a person has been assessed more than once for the same cause and for the same year of assessment or the same accounting period, as the case may be, they shall direct the whole, or such part, of any assessment as appears to be an overcharge to be vacated, and thereupon the whole, or such part, of the assessment shall be vacated accordingly.
(3) Where it is proved to the satisfaction of the Revenue Commissioners that any such double assessment has been made and that payment has been made on both assessments, they shall order the amount of the overpayment to be repaid to the applicant.
num: 930
paragraphs: —(1) Where any person who has paid tax charged under an assessment to—
(a) income tax made for any year of assessment, or
(b) corporation tax made for any accounting period,
alleges that the assessment was excessive by reason of some error or mistake in the return or statement made by that person for the purposes of the assessment, that person may, at any time not later than 6 years after the end of the year of assessment or the accounting period, as the case may be, within which the assessment was made, make an application in writing to the Revenue Commissioners for relief.
(2) On receiving any such application, the Revenue Commissioners shall inquire into the matter and shall, subject to this section, give by means of repayment such relief in respect of the error or mistake as is just and reasonable; but no relief shall be given under this section in respect of an error or mistake as to the basis on which the liability of the applicant ought to have been computed where the return or statement was in fact made on the basis of, or in accordance with, the practice generally prevailing at the time when the return or statement was made.
(3) In determining any application under this section, the Revenue Commissioners shall have regard to all the relevant circumstances of the case and in particular shall consider whether the granting of relief would result in the exclusion from the charge to income tax or corporation tax, as the case may be, of any part of the profits or income of the applicant, and for this purpose the Revenue Commissioners may take into consideration the liability of the applicant and assessments made on the applicant in respect of other years of assessment or accounting periods, as the case may be.
(4) Any person aggrieved by the determination of the Revenue Commissioners on an application made by that person under this section may, on giving notice in writing to the Revenue Commissioners within 21 days after the notification to that person of their determination, appeal to the Appeal Commissioners.
(5) The Appeal Commissioners shall thereupon hear and determine the appeal in accordance with the principles to be followed by the Revenue Commissioners in determining applications under this section and, subject to those principles, in the like manner as in the case of an appeal to them against an assessment to income tax, and 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; but neither the appellant nor the Revenue Commissioners shall be entitled to require a case to be stated for the opinion of the High Court otherwise than on a point of law arising in connection with the computation of profits or income.
num: 931
paragraphs: —(1) Assessments under the Capital Gains Tax Acts shall be made by inspectors or such other officers as the Revenue Commissioners shall appoint in that behalf.
num: 932
paragraphs: —Except where expressly authorised by the Tax Acts, an assessment to income tax or corporation tax shall not be altered before the time for hearing and determining appeals and then only in cases of assessments appealed against and in accordance with such determination, and if any person makes, causes, or allows to be made in any assessment any unauthorised alteration, that person shall incur a penalty of £50.
num: 933
paragraphs: —(1) (a) A person aggrieved by any assessment to income tax or corporation tax made on that person by the inspector or such other officer as the Revenue Commissioners shall appoint in that behalf (in this section referred to as “other officer”) shall be entitled to appeal to the Appeal Commissioners on giving, within 30 days after the date of the notice of assessment, notice in writing to the inspector or other officer.
(b) Where on an application under paragraph (a) the inspector or other officer is of the opinion that the person who has given the notice of appeal is not entitled to make such an appeal, the inspector or other officer shall refuse the application and notify the person in writing accordingly, specifying the grounds for such refusal.
(c) A person who has had an application under paragraph (a) refused by the inspector or other officer shall be entitled to appeal against such refusal by notice in writing to the Appeal Commissioners within 15 days of the date of issue by the inspector or other officer of the notice of refusal.
(d) On receipt of an application under paragraph (c), the Appeal Commissioners shall request the inspector or other officer to furnish them with a copy of the notice issued to the person under paragraph (b) and, on receipt of the copy of the notice, they shall as soon as possible—
(i) refuse the application for an appeal by giving notice in writing to the applicant specifying the grounds for their refusal,
(ii) allow the application for an appeal and give notice in writing accordingly to both the applicant and the inspector or other officer, or
(iii) notify in writing both the applicant and the inspector or other officer that they have decided to arrange a hearing at such time and place specified in the notice to enable them determine whether or not to allow the application for an appeal.
(2) (a) The Appeal Commissioners shall from time to time appoint times and places for the hearing of appeals against assessments and the Clerk to the Appeal Commissioners shall give notice of such times and places to the inspector or other officer.
(b) The inspector or other officer shall give notice in writing to each person who has given notice of appeal of the time and place appointed for the hearing of that person's appeal; but—
(i) notice under this paragraph shall not be given in a case in which subsection (3) (b) applies either consequent on an agreement referred to in that subsection or consequent on a notice referred to in subsection (3) (d), and
(ii) in a case where it appears to the inspector or other officer that an appeal may be settled by agreement under subsection (3), he or she may refrain from giving notice under this paragraph or may by notice in writing and with the agreement of the appellant withdraw a notice already given.
(c) Where, on application in writing in that behalf to the Appeal Commissioners, a person who has given notice of appeal to the inspector or other officer in accordance with subsection (1) (a) satisfies the Appeal Commissioners that the information furnished to the inspector or other officer is such that the appeal is likely to be determined on the first occasion on which it comes before them for hearing, the Appeal Commissioners may direct the inspector or other officer to give the notice in writing first mentioned in paragraph (b) and the inspector or other officer shall comply forthwith with such direction, and accordingly subparagraph (ii) of that paragraph shall not apply to that notice of appeal.
(3) (a) This subsection shall apply to any assessment in respect of which notice of appeal has been given, not being an assessment the appeal against which has been determined by the Appeal Commissioners or which has become final and conclusive under subsection (6).
(b) Where, in relation to an assessment to which this subsection applies, the inspector or other officer and the appellant come to an agreement, whether in writing or otherwise, that the assessment is to stand, is to be amended in a particular manner or is to be discharged or cancelled, the inspector or other officer shall give effect to the agreement and thereupon, if the agreement is that the assessment is to stand or is to be amended, the assessment or the amended assessment, as the case may be, shall have the same force and effect as if it were an assessment in respect of which no notice of appeal had been given.
(c) An agreement which is not in writing shall be deemed not to be an agreement for the purposes of paragraph (b) unless—
(i) the fact that an agreement was come to, and the terms agreed on, are confirmed by notice in writing given by the inspector or other officer to the appellant or by the appellant to the inspector or other officer, and
(ii) 21 days have elapsed since the giving of that notice without the person to whom it was given giving notice in writing to the person by whom it was given that the first-mentioned person desires to repudiate or withdraw from the agreement.
(d) Where an appellant desires not to proceed with the appeal against an assessment to which this subsection applies and gives notice in writing to that effect to the inspector or other officer, paragraph (b) shall apply as if the appellant and the inspector or other officer had, on the appellant's notice being received, come to an agreement in writing that the assessment should stand.
(e) References in this subsection to an agreement being come to with an appellant and the giving of notice to or by an appellant include references to an agreement being come to with, and the giving of notice to or by, a person acting on behalf of the appellant in relation to the appeal.
(4) All appeals against assessments to income tax or corporation tax shall be heard and determined by the Appeal Commissioners, and their determination on any such appeal shall be final and conclusive, unless the person assessed requires that that person's appeal shall be reheard under section 942 or unless under the Tax Acts a case is required to be stated for the opinion of the High Court.
(5) An appeal against an assessment may be heard and determined by one Appeal Commissioner, and the powers conferred on the Appeal Commissioners by this Part may be exercised by one Appeal Commissioner.
(6) (a) In default of notice of appeal by a person to whom notice of assessment has been given, the assessment made on that person shall be final and conclusive.
(b) Where a person who has given notice of appeal against an assessment does not attend before the Appeal Commissioners at the time and place appointed for the hearing of that person's appeal, the assessment made on that person shall, subject to subsection (8), have the same force and effect as if it were an assessment in respect of which no notice of appeal had been given.
(c) Where on the hearing of an appeal against an assessment—
(i) no application is or has been made to the Appeal Commissioners before or during the hearing of the appeal by or on behalf of the appellant for an adjournment of the proceedings on the appeal or such an application is or has been made and is or was refused, and
(ii) (I) a return of the appellant's income for the relevant year of assessment or, as the case may be, a return under section 884 has not been made by the appellant, or
(II) such a return has been made but—
num: 934
paragraphs: —(1) The inspector or such other officer as the Revenue Commissioners shall authorise in that behalf (in this section referred to as “other officer”) may attend every hearing of an appeal, and shall be entitled—
(a) to be present during all the hearing and at the determination of the appeal,
(b) to produce any lawful evidence in support of the assessment, and
(c) to give reasons in support of the assessment.
(2) (a) On any appeal, the Appeal Commissioners shall permit any barrister or solicitor to plead before them on behalf of the appellant or the inspector or other officer either orally or in writing and shall hear—
(i) any accountant, being any person who has been admitted a member of an incorporated society of accountants, or
(ii) any person who has been admitted a member of the body incorporated under the Companies Act, 1963 , on the 31st day of December, 1975, as “The Institute of Taxation in Ireland”.
(b) Notwithstanding paragraph (a), the Appeal Commissioners may permit any other person representing the appellant to plead before them where they are satisfied that such permission should be given.
(3) Where on an appeal it appears to the Appeal Commissioners by whom the appeal is heard, or to a majority of such Appeal Commissioners, by examination of the appellant on oath or affirmation or by other lawful evidence that the appellant is overcharged by any assessment, the Appeal Commissioners shall abate or reduce the assessment accordingly, but otherwise the Appeal Commissioners shall determine the appeal by ordering that the assessment shall stand.
(4) Where on any appeal it appears to the Appeal Commissioners that the person assessed ought to be charged in an amount exceeding the amount contained in the assessment, they shall charge that person with the excess.
(5) Unless the circumstances of the case otherwise require, where on an appeal against an assessment which assesses an amount which is chargeable to income tax or corporation tax it appears to the Appeal Commissioners—
(a) that the appellant is overcharged by the assessment, they may in determining the appeal reduce only the amount which is chargeable to income tax or corporation tax,
(b) that the appellant is correctly charged by the assessment, they may in determining the appeal order that the amount which is chargeable to income tax or corporation tax shall stand, and
(c) that the appellant ought to be charged in an amount exceeding the amount contained in the assessment, they may charge the excess by increasing only the amount which is chargeable to income tax or corporation tax.
(6) Where an appeal is determined by the Appeal Commissioners, the inspector or other officer shall give effect to the Appeal Commissioners' determination and thereupon, if the determination is that the assessment is to stand or is to be amended, the assessment or the amended assessment, as the case may be, shall have the same force and effect as if it were an assessment in respect of which no notice of appeal had been given.
(7) Every determination of an appeal by the Appeal Commissioners shall be recorded by them in the prescribed form at the time the determination is made and the Appeal Commissioners shall within 10 days after the determination transmit that form to the inspector or other officer.
num: 935
paragraphs: —(1) Where notice of appeal has been given against an assessment, the Appeal Commissioners may, whenever it appears to them to be necessary for the purposes of the Tax Acts, issue a precept to the appellant ordering the appellant to deliver to them, within the time limited by the precept, a schedule containing such particulars for their information as they may demand under the authority of the Tax Acts in relation to—
(a) the property of the appellant,
(b) the trade, profession or employment carried on or exercised by the appellant,
(c) the amount of the appellant's profits or gains, distinguishing the particular amounts derived from each separate source, or
(d) any deductions made in determining the appellant's profits or gains.
(2) The Appeal Commissioners may issue further precepts whenever they consider it necessary for the purposes of the Tax Acts, until complete particulars have been furnished to their satisfaction.
(3) A precept may be issued by one Appeal Commissioner.
num: 936
paragraphs: —(1) The inspector or such other officer as the Revenue Commissioners shall authorise in that behalf (in this section referred to as “other officer”) may, within a reasonable time to be allowed by the Appeal Commissioners after examination by the inspector or other officer of any schedule referred to in section 935 , object to that schedule or any part of that schedule, and in that case shall state in writing the cause of his or her objection according to the best of his or her knowledge or information.
(2) In every such case the inspector or other officer shall give notice in writing of his or her objection to the person chargeable in order that that person may, if that person thinks fit, appeal against the objection.
(3) A notice under subsection (2) shall be under cover and sealed, and addressed to the person chargeable.
(4) No assessment shall be confirmed or altered until any appeal against the objection has been heard and determined.
num: 937
paragraphs: —Where—
num: 938
paragraphs: —(1) Whenever the Appeal Commissioners are dissatisfied with a schedule or require further information relating to a schedule, they may at any time and from time to time by precept put any questions in writing concerning the schedule, or any matter which is contained or ought to be contained in the schedule, or concerning any deductions made in arriving at the profits or gains, and the particulars thereof, and may require true and particular answers in writing signed by the person chargeable to be given within 7 days after the service of the precept.
(2) The person chargeable shall within the time limited either answer any such questions in writing signed by that person, or shall present himself or herself to be examined orally before the Appeal Commissioners, and may object to and refuse to answer any question; but the substance of any answer given by that person orally shall be taken down in writing in that person's presence and be read over to that person and, after that person has had liberty to amend any such answer, he or she may be required to verify the answer on oath to be administered to him or her by any one of the Appeal Commissioners, and the oath shall be subscribed by the person by whom it is made.
(3) Where any clerk, agent or servant of the person chargeable presents himself or herself on behalf of that person to be examined orally before the Appeal Commissioners, the same provisions shall apply to his or her examination as in the case of the person chargeable who presents himself or herself to be examined orally.
num: 939
paragraphs: —(1) (a) The Appeal Commissioners may summon any person whom they think able to give evidence as respects an assessment made on another person to appear before them to be examined, and may examine such person on oath.
(b) The clerk, agent, servant or other person confidentially employed in the affairs of a person chargeable shall be examined in the same manner, and subject to the same restrictions, as in the case of a person chargeable who presents himself or herself to be examined orally.
(2) The oath shall be that the evidence to be given, touching the matter in question, by the person sworn shall be the truth, the whole truth and nothing but the truth, and the oath shall be subscribed by the person by whom it is made.
(3) A person who after being duly summoned—
(a) neglects or refuses to appear before the Appeal Commissioners at the time and place appointed for that purpose,
(b) appears but refuses to be sworn or to subscribe the oath, or
(c) refuses to answer any lawful question touching the matters under consideration,
shall be liable to a penalty of £750; but the penalty imposed in respect of any offence under paragraph (b) or (c) shall not apply to any clerk, agent, servant or other person referred to in subsection (1) (b).
num: 940
paragraphs: —Where—
num: 941
paragraphs: —(1) Immediately after the determination of an appeal by the Appeal Commissioners, the appellant or the inspector or such other officer as the Revenue Commissioners shall authorise in that behalf (in this section referred to as “other officer”), if dissatisfied with the determination as being erroneous in point of law, may declare his or her dissatisfaction to the Appeal Commissioners who heard the appeal.
(2) The appellant or inspector or other officer, as the case may be, having declared his or her dissatisfaction, may within 21 days after the determination by notice in writing addressed to the Clerk to the Appeal Commissioners require the Appeal Commissioners to state and sign a case for the opinion of the High Court on the determination.
(3) The party requiring the case shall pay to the Clerk to the Appeal Commissioners a fee of £20 for and in respect of the case before that party is entitled to have the case stated.
(4) The case shall set forth the facts and the determination of the Appeal Commissioners, and the party requiring it shall transmit the case when stated and signed to the High Court within 7 days after receiving it.
(5) At or before the time when the party requiring the case transmits it to the High Court, that party shall send notice in writing of the fact that the case has been stated on that party's application, together with a copy of the case, to the other party.
(6) The High Court shall hear and determine any question or questions of law arising on the case, and shall reverse, affirm or amend the determination in respect of which the case has been stated, or shall remit the matter to the Appeal Commissioners with the opinion of the Court on the matter, or may make such other order in relation to the matter, and may make such order as to costs as to the Court may seem fit.
(7) The High Court may cause the case to be sent back for amendment and thereupon the case shall be amended accordingly, and judgment shall be delivered after it has been amended.
(8) An appeal shall lie from the decision of the High Court to the Supreme Court.
(9) Notwithstanding that a case has been required to be stated or is pending, income tax or, as the case may be, corporation tax shall be paid in accordance with the determination of the Appeal Commissioners; but if the amount of the assessment is altered by the order or judgment of the Supreme Court or the High Court, then—
(a) if too much tax has been paid, the amount overpaid shall be refunded with such interest, if any, as the Court may allow, or
(b) if too little tax has been paid, the amount unpaid shall be deemed to be arrears of tax (except in so far as any penalty is incurred on account of arrears) and shall be paid and recovered accordingly.
num: 942
paragraphs: —(1) Any person aggrieved by the determination of the Appeal Commissioners in any appeal against an assessment made on that person may, on giving notice in writing to the inspector or such other officer as the Revenue Commissioners shall authorise in that behalf (in this section referred to as “other officer”) within 10 days after such determination, require that the appeal shall be reheard by the judge of the Circuit Court (in this section referred to as “the judge”) in whose circuit is situate, in the case of—
(a) a person who is not resident in the State,
(b) the estate of a deceased person,
(c) an incapacitated person, or
(d) a trust,
num: 943
paragraphs: —(1) Section 941 shall, subject to this section, apply to a determination given by a judge pursuant to section 942 in the like manner as it applies to a determination by the Appeal Commissioners, and any case stated by a judge pursuant to section 941 shall set out the facts, the determination of the Appeal Commissioners and the determination of the judge.
(2) The notice in writing required under section 941 (2) to be addressed to the Clerk to the Appeal Commissioners shall, in every case in which a judge is under the authority of this section required by any person to state and sign a case for the opinion of the High Court on the determination, be addressed by such person to the county registrar.
(3) The fee required under section 941 (3) to be paid to the Clerk to the Appeal Commissioners shall in any case referred to in subsection (2) be paid to the county registrar.
num: 944
paragraphs: —(1) Where the Appeal Commissioners have entertained an appeal against an assessment for any year of assessment or any accounting period and, after hearing argument on the appeal, have postponed giving their determination either for the purpose of considering the argument or for the purpose of affording to the appellant an opportunity of submitting in writing further evidence or argument, the Appeal Commissioners may, unless they consider a further hearing to be necessary, cause their determination to be sent by post to the parties to the appeal.
(2) Where the determination of an appeal by the Appeal Commissioners is sent to the parties by post under this section, a declaration of dissatisfaction under section 941 (1) or a notice requiring a rehearing under section 942 (1) may be made or given in writing within 12 days after the day on which the determination is so sent to the person making the declaration or giving the notice.
num: 945
paragraphs: —(1) A person aggrieved by any assessment under the Capital Gains Tax Acts made on the person by the inspector or other officer mentioned in section 931 (1) shall be entitled to appeal to the Appeal Commissioners on giving, within 30 days after the date of the notice of assessment, notice in writing to the inspector or other officer, and in default of notice of appeal by a person to whom notice of assessment has been given the assessment made on such person shall be final and conclusive.
(2) The provisions of the Income Tax Acts relating to—
(a) the appointment of times and places for the hearing of appeals,
(b) the giving of notice to each person who has given notice of appeal of the time and place appointed for the hearing of that person's appeal,
(c) the determination of an appeal by agreement between the appellant or the appellant's agent and an inspector of taxes or other officer mentioned in section 931 (1),
(d) the determination of an appeal by the appellant giving notice of the appellant's intention not to proceed with the appeal,
(e) the hearing, determination or dismissal of an appeal by the Appeal Commissioners, including the hearing, determination or dismissal of an appeal by one Appeal Commissioner,
(f) the assessment having the same force and effect as if it were an assessment in respect of which no notice of appeal had been given where the person who has given notice of appeal does not attend before the Appeal Commissioners at the time and place appointed,
(g) the extension of the time for giving notice of appeal and the readmission of appeals by the Appeal Commissioners and the provisions which apply where action by means of court proceedings has been taken,
(h) the rehearing of an appeal by a judge of the Circuit Court and the statement of a case for the opinion of the High Court on a point of law,
(i) the payment of tax in accordance with the determination of the Appeal Commissioners notwithstanding that an appeal is required to be reheard by a judge of the Circuit Court or that a case for the opinion of the High Court on a point of law has been required to be stated or is pending, and
(j) the procedures for appeal,
shall, with any necessary modifications, apply to an appeal under any provision of the Capital Gains Tax Acts providing for an appeal to the Appeal Commissioners as if the appeal were an appeal against an assessment to income tax.
num: 946
paragraphs: —(1) The Revenue Commissioners may make regulations—
(a) for the conduct of appeals against assessments and decisions on claims under the Capital Gains Tax Acts;
(b) entitling persons, in addition to those who would be so entitled apart from the regulations, to appear on such appeals;
(c) regulating the time within which such appeals or claims may be brought or made;
(d) where the market value of an asset on a particular date or an apportionment or any other matter may affect the liability to capital gains tax of 2 or more persons, enabling any such person to have the matter determined by the tribunal having jurisdiction to determine that matter if arising on an appeal against an assessment, and prescribing a procedure by which the matter is not determined differently on different occasions;
(e) authorising an inspector or other officer of the Revenue Commissioners, notwithstanding the obligation as to secrecy imposed by the Income Tax Acts or any other Act, to disclose—
(i) to a person entitled to appear on such an appeal, the market value of an asset as determined by an assessment or decision on a claim, or
(ii) to a person whose liability to tax may be affected by the determination of the market value of an asset on a particular date or an apportionment or any other matter, any decision on the matter made by an inspector or other officer of the Revenue Commissioners.
(2) Regulations under this section may contain such supplemental and incidental provisions as appear to the Revenue Commissioners to be necessary.
(3) Every regulation made under this section shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 947
paragraphs: —(1) Where it appears to the inspector that the determination of any amount on which a person may be chargeable to income tax or corporation tax by virtue of section 98 , 99 or 100 may affect the liability to income tax or corporation tax of other persons, the inspector shall give notice in writing to those persons as well as to the first-mentioned person of the determination the inspector proposes to make and of the rights conferred on them by this section.
(2) Any person to whom such a notice is given may within 21 days after the date on which it is given object to the proposed determination by notice in writing given to the inspector, and section 933 (7) shall apply, with any necessary modifications, in relation to any such notice as it applies in relation to a notice of appeal under section 933 .
(3) (a) Subject to paragraph (b), where notices have been given under subsection (1) and no notice of objection is duly given under subsection (2), the inspector shall make the determination as proposed in his or her notices and the determination shall not be called in question in any proceedings.
(b) This subsection shall not operate to prevent any person to whom notice has not been given under subsection (1) from appealing against any such determination of the inspector which may affect that person's liability to income tax or corporation tax, as the case may be.
(4) Where a notice of objection is duly given, the amount mentioned in subsection (1) shall be determined in the like manner as an appeal and shall be so determined by the Appeal Commissioners.
(5) All persons to whom notices have been given under subsection (1) may take part in any proceedings under subsection (4) and in any appeal arising out of those proceedings and shall be bound by the determination made in the proceedings or on appeal, whether or not they have taken part in the proceedings, and their successors in title shall also be so bound.
(6) A notice under subsection (1) may, notwithstanding any obligation as to secrecy or other restriction on the disclosure of information, include a statement of the grounds on which the inspector proposes to make the determination.
(7) An inspector may by notice in writing require any person to give, within 21 days after the date of the notice or within such longer period as the inspector may allow, such information as appears to the inspector to be required for deciding whether to give a notice under subsection (1) to any person.
num: 948
paragraphs: —(1) Any person charged to income tax under Schedule E may appeal to the Appeal Commissioners against the amount of tax deducted from that person's emoluments for any year.
(2) The Appeal Commissioners shall hear and determine an appeal to them under subsection (1) as if it were an appeal to them against an assessment to income tax, and the provisions of the Income Tax Acts 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, with the necessary modifications, apply accordingly.
num: 949
paragraphs: —(1) Any person aggrieved by any determination by the Revenue Commissioners, or such officer of the Revenue Commissioners (including an inspector) as they may have authorised in that behalf, on any claim, matter or question referred to in section 864 may, subject to section 957 and on giving notice in writing to the Revenue Commissioners or the officer within 30 days after notification to the person aggrieved of the determination, appeal to the Appeal Commissioners.
(2) The Appeal Commissioners shall hear and determine an appeal to them under subsection (1) as if it were an appeal against an assessment to income tax and the provisions of section 933 with respect to such appeals, together with the provisions of the Tax Acts 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.
(3) Where—
(a) a right of appeal to the Appeal Commissioners is given by any provision of the Tax Acts or the Capital Gains Tax Acts other than section 1037 , and
(b) such provision, while applying the provisions of the Tax Acts relating to appeals against assessments, does not apply the provisions of those Acts relating to the rehearing of appeals,
such provision shall be deemed to apply those provisions relating to the rehearing of appeals.
(4) In a case in which—
(a) a notice of appeal is not given within the time limited by subsection (1), or
(b) a person who has given notice of appeal does not attend before the Appeal Commissioners at the time and place appointed for the hearing of the person's appeal,
subsections (5) and (7) to (9) of section 933 shall apply with any necessary modifications.
num: 950
paragraphs: —(1) In this Part, except where the context otherwise requires—
“appeal” means an appeal under section 933 or, as respects capital gains tax, an appeal under section 945 ;
“appropriate inspector”, in relation to a chargeable person, means—
(a) the inspector who has last given notice in writing to the chargeable person that he or she is the inspector to whom the chargeable person is required to deliver a return or statement of income or profits or chargeable gains,
(b) in the absence of an inspector referred to in paragraph (a), the inspector to whom it is customary for the chargeable person to deliver such return or statement, or
(c) in the absence of an inspector referred to in paragraphs (a) and (b), the inspector of returns;
“assessment” means an assessment to tax made under the Income Tax Acts, the Corporation Tax Acts or the Capital Gains Tax Acts, as the case may be;
“chargeable gain” has the same meaning as in section 545 (3);
“chargeable period” has the same meaning as in section 321 (2);
“chargeable person” means, as respects a chargeable period, a person who is chargeable to tax for that period, whether on that person's own account or on account of some other person but, as respects income tax, does not include a person—
(a) whose total income for the chargeable period consists solely of emoluments to which Chapter 4 of Part 42 applies, and for this purpose a person whose total income for the chargeable period, other than emoluments to which that Chapter applies, is deducted in determining the amount of his or her tax-free allowances for the chargeable period by virtue of regulation 10(1)(b) of the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), shall be deemed for that chargeable period to be a person whose total income consists solely of emoluments to which that Chapter applies,
(b) who for the chargeable period has been exempted by an inspector from the requirements of section 951 by reason of a notice given under subsection (6) of that section, or
(c) who is chargeable to tax for the chargeable period by reason only of section 237 , 238 or 239 ,
but paragraph (a) shall not apply to a person who is a director or, in the case of a person to whom section 1017 applies, whose spouse is a director (within the meaning of section 116 ) of a body corporate other than a body corporate which during a period of 3 years ending on the 5th day of April in the chargeable period—
(i) was not entitled to any assets other than cash on hands, or a sum of money on deposit within the meaning of section 895 , not exceeding £100,
(ii) did not carry on a trade, business or other activity including the making of investments, and
(iii) did not pay charges on income within the meaning of section 243 ;
“determination of the appeal” means a determination by the Appeal Commissioners under section 933 (4), and includes an agreement referred to in section 933 (3) and an assessment becoming final and conclusive by virtue of section 933 (6);
“due date for the payment of an amount of preliminary tax” has the meaning assigned to it by section 958 (2);
“inspector”, in relation to any matter, includes such other officer as the Revenue Commissioners shall appoint in that behalf;
“inspector of returns” means the inspector nominated by the Revenue Commissioners under section 951 (11) to be the inspector of returns;
“precedent partner” has the same meaning as in Part 43 ;
“prescribed form” means a form prescribed by the Revenue Commissioners or a form used under the authority of the Revenue Commissioners, and includes a form which involves the delivery of a return by any electronic, photographic or other process approved of by the Revenue Commissioners;
“preliminary tax” means the amount of tax which a chargeable person is required to pay in accordance with section 952 ;
“specified provisions” means sections 877 to 881 and 884, paragraphs (a) and (d) of section 888 (1), and section 1023 ;
“specified return date for the chargeable period”, in relation to a chargeable period, means—
(a) where the chargeable period is a year of assessment, the 31st day of January in the year of assessment following that year,
(b) where the chargeable period is an accounting period of a company and subject to paragraph (c), the last day of the period of 9 months commencing on the day immediately following the end of the accounting period, and
(c) where the chargeable period is an accounting period of a company which ends on or before the date of commencement of the winding up of the company and the specified return date in respect of that accounting period would but for this paragraph fall on a date after the date of commencement of the winding up but not within a period of 3 months after that date, the date which falls 3 months after the date of commencement of the winding up;
“tax” means income tax, corporation tax or capital gains tax, as the case may be.
(2) Except in so far as otherwise expressly provided, this Part shall apply notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts.
(3) (a) Where any obligation or requirement is imposed on a person in any capacity under this Part and a corresponding obligation or requirement is imposed on that person in another capacity, the discharge of any one of those obligations or requirements shall not release the person from the other obligation or requirement.
(b) A person shall not in any capacity have an obligation or requirement imposed on that person under this Part by reason only that such obligation or requirement is imposed on that person in any other capacity.
(c) Where but for any of the subsequent provisions of this Part any such obligation or requirement would have been imposed on a person in more than one capacity, a release from such obligation or requirement under any of those provisions by reason of any fact or circumstance applying in relation to that person's liability to tax in any one capacity shall not release that person from such obligation or requirement as is imposed on that person in a capacity other than that in which that fact or circumstance applies.
num: 951
paragraphs: —(1) Every chargeable person shall as respects a chargeable period prepare and deliver to the appropriate inspector on or before the specified return date for the chargeable period a return in the prescribed form of—
(a) in the case of a chargeable person who is chargeable to income tax or capital gains tax for a chargeable period which is a year of assessment—
(i) all such matters and particulars as would be required to be contained in a statement delivered pursuant to a notice given to the chargeable person by the appropriate inspector under section 877 , if the period specified in such notice were the year of assessment which is the chargeable period, and
(ii) where the chargeable person is an individual who is chargeable to income tax or capital gains tax for a chargeable period, in addition to those matters and particulars referred to in subparagraph (i), all such matters and particulars as would be required to be contained in a return for the period delivered to the appropriate inspector pursuant to a notice given to the chargeable person by the appropriate inspector under section 879 , or
(b) in the case of a chargeable person who is chargeable to corporation tax for a chargeable period which is an accounting period, all such matters and particulars in relation to the chargeable period as would be required to be contained in a return delivered pursuant to a notice given to the chargeable person by the appropriate inspector under section 884 ,
and such further particulars as may be required by the prescribed form.
(2) The precedent partner of any partnership shall be deemed to be a chargeable person for the purposes of this section and shall as respects any chargeable period deliver to the appropriate inspector on or before the specified return date for that chargeable period the return which that partner would be required to deliver for that period under section 880 , if the inspector had given notice under that section before that specified date.
(3) (a) Where under subsection (1) or (2) a person delivers a return to an inspector, the person shall be deemed to have been required by a notice under section 877 to deliver a statement containing the matters and particulars contained in the return or to have been required by a notice under section 879 , 880 or 884 to deliver the return, as the case may be.
(b) Any provision of the Tax Acts relating to the taking of any action on the failure of a person to deliver a statement or return pursuant to a notice given under any of the sections referred to in paragraph (a) shall apply to a chargeable person in a case where such a notice has not been given as if the chargeable person had been given a notice on the specified return date for the chargeable period under such one or more of those sections as is appropriate to the provision in question.
(4) A chargeable person shall prepare and deliver to the appropriate inspector a return for a chargeable period as required by this section notwithstanding that the chargeable person has not received a notice from an inspector to prepare and deliver a statement or return for that period under any of the sections referred to in subsection (3) (a).
(5) (a) A return required by this section may be prepared and delivered by the chargeable person or by another person acting under the chargeable person's authority in that regard.
(b) Where a return is prepared and delivered by such other person, the Tax Acts shall apply as if it had been prepared and delivered by the chargeable person.
(c) A return purporting to be prepared and delivered by or on behalf of any chargeable person shall for the purposes of the Tax Acts be deemed to have been prepared and delivered by that person or by that person's authority, as the case may be, unless the contrary is proved.
(6) An inspector may exclude a person from the application of this section by giving the person a notice in writing stating that the person is excluded from the application of this section, and the notice shall have effect for such chargeable period or periods or until such chargeable period or until the happening of such event as shall be specified in the notice; but—
(a) where before the 25th day of May, 1988, a person has been given notice by the inspector that the person need not prepare and deliver a return for or until a specified chargeable period or until the happening of any event, the person shall be deemed to have been given notice to that effect under this subsection;
(b) where a person who has been given a notice under this subsection is chargeable to capital gains tax for any chargeable period, this subsection shall not operate so as to remove the person's obligation under subsection (1) to make a return of the person's chargeable gains for that chargeable period.
(7) (a) This section shall not affect the giving of a notice by an inspector under any of the specified provisions and shall not remove from any person any obligation or requirement imposed on the person by such a notice.
(b) The giving of a notice under any of the specified provisions to a person shall not remove from that person any obligation to prepare and deliver a return under this section.
(8) In a case to which section 1023 (5) applies, a return containing for both the husband and the wife the matters and particulars required by subsection (1) shall, if delivered by one spouse, satisfy the obligation of the other spouse under this section.
(9) Nothing in the specified provisions or in a notice given under any of those provisions shall operate so as to require a chargeable person to deliver a return for a chargeable period on a date earlier than the specified return date for the chargeable period.
(10) A certificate signed by an inspector which certifies that he or she has examined the relevant records and that it appears from those records—
(a) that as respects a chargeable period a named person is a chargeable person, and
(b) that on or before the specified return date for the chargeable period a return in the prescribed form was not received from that chargeable person,
shall be evidence until the contrary is proved that the person so named is a chargeable person as respects that chargeable period and that that person did not on or before the specified return date deliver that return, and a certificate certifying as provided by this subsection and purporting to be signed by an inspector may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by that inspector.
(11) (a) The Revenue Commissioners may nominate an inspector to be the inspector of returns for the purposes of this Part.
(b) The inspector of returns shall take delivery of returns under this section which he or she has directed to be delivered to him or her and of returns from persons in relation to whom he or she is the appropriate inspector in the circumstances specified in paragraph (c) of the definition of “appropriate inspector” in section 950 (1).
(c) The name of an inspector nominated under paragraph (a) and the address to which returns being delivered to him or her shall be directed shall be published annually in Iris OifigiÃºil.
(12) Sections 1052 and 1054 shall apply to a failure by a chargeable person to deliver a return in accordance with subsections (1) and (2) as they apply to a failure to deliver a return referred to in section 1052 .
num: 952
paragraphs: —(1) Every person who is a chargeable person as respects any chargeable period shall be liable to pay to the Collector-General in accordance with this section and section 958 the amount of that person's preliminary tax appropriate to that chargeable period.
(2) The amount of a chargeable person's preliminary tax appropriate to a chargeable period shall be the amount of tax which in the opinion of the chargeable person is likely to become payable by that person for the chargeable period by reason of an assessment or assessments for the chargeable period made or to be made by the inspector or which would be made by the inspector if the inspector did not elect under section 954 (4)) not to make an assessment.
(3) Preliminary tax shall be payable notwithstanding that the inspector has not given notice in respect of that tax under section 953 .
(4) Where on or before the due date for the payment of an amount of preliminary tax appropriate to a chargeable period the chargeable person by whom the tax is payable has received notice of an assessment for the period, the chargeable person shall not be liable to pay preliminary tax for that chargeable period.
(5) Any amount of preliminary tax appropriate to a chargeable period which is paid by and not repaid to a chargeable person in any capacity shall, to the extent of the amount of that payment or the extent of the amount of that payment less any amount that has been repaid, be treated as a payment on foot of the tax payable by the chargeable person for the chargeable period, being tax which is specified in an assessment or assessments made or to be made for that period on the chargeable person in that capacity.
num: 953
paragraphs: —(1) Where—
(a) a chargeable person defaults in the making of a payment of preliminary tax for a chargeable period, or
(b) at any time before the due date for the payment of an amount of preliminary tax for a chargeable period the inspector considers it appropriate to do so,
the inspector may give notice in writing to the chargeable person of the amount of the preliminary tax which in the opinion of the inspector ought to be paid by the chargeable person for that chargeable period; but a notice shall not be given under this subsection to a chargeable person for a chargeable period at any time after the chargeable person has delivered a return for that chargeable period.
(2) Subject to this section, an amount of preliminary tax specified in a notice under subsection (1) shall be due and payable to the Collector-General by the chargeable person on the due date for the payment of an amount of preliminary tax for the chargeable period to which the notice relates.
(3) Subject to subsection (4), where on or before the specified return date for a chargeable period the chargeable person—
(a) makes a payment of preliminary tax for the chargeable period under section 952 , or
(b) gives notice in writing to the Collector-General that the chargeable person considers that the chargeable person will not have a liability to pay tax for the chargeable period by reason of any assessment or assessments made or to be made by the inspector,
then, the amount of preliminary tax for the chargeable period specified in a notice given to the chargeable person under subsection (1), or the excess (if any) of that amount over the preliminary tax paid by the chargeable person for the chargeable period, shall not be payable.
(4) Where—
(a) the chargeable person defaults in delivering a return for a chargeable period to which a notice of preliminary tax under subsection (1) relates, and
(b) the amount of preliminary tax specified in the notice as increased under section 1084 is greater than the amount (if any) of the preliminary tax paid by the chargeable person under section 952 as increased under section 1084 ,
then—
(i) with effect from the specified return date for the chargeable period, subsection (3) shall not apply to that chargeable person for the chargeable period, and
(ii) the amount of preliminary tax specified in the notice, as increased under section 1084 but reduced by any preliminary tax paid by the chargeable person in the capacity to which the notice relates for the chargeable period, shall become due and payable in all respects as if subsection (3) had not been enacted.
(5) (a) Notwithstanding subsections (1) to (4) but subject to paragraph (b), an amount of preliminary tax, or any excess of that amount over the amount (if any) of the preliminary tax paid by the chargeable person for the chargeable period to which the notice relates, specified in a notice given under subsection (1) shall cease to be due and payable as on and from the date on which the inspector makes an assessment on the chargeable person for that chargeable period.
(b) Where action for the recovery of an amount of preliminary tax specified in a notice given under subsection (1) has been taken, being action by means of the institution of proceedings in any court or the issue of a certificate under section 962 , this subsection shall not apply to that amount of preliminary tax.
(6) (a) Subject to subsections (1) to (5), the amount of preliminary tax specified in a notice given under subsection (1) shall be collected and paid in all respects as if it were tax charged by an assessment in respect of which no appeal was pending.
(b) Section 870 shall apply to preliminary tax specified in a notice as it applies to tax specified in an assessment.
(c) Sections 928 (2) and 967 shall apply in all respects to an amount of preliminary tax specified in a notice under subsection (1) as if it were an amount of tax specified in an assessment.
(7) Where the amount of preliminary tax paid by a chargeable person for any chargeable period exceeds that person's tax liability for that period, the excess shall be repaid and the amount repaid shall carry interest at the rate of 0.6 per cent, or such other rate (if any) prescribed by the Minister for Finance by regulations, for each month or part of a month for the period from the date or dates of the payment of the amount or amounts giving rise to the overpayment, as the case may require, to the date on which the repayment is made; but—
(a) interest shall not be payable under this subsection—
(i) if it amounts to less than £10, or
(ii) to the extent that the excess arises from relief provided for by section 438 (4),
and
(b) income tax shall not be deductible on payment of interest under this subsection and such interest shall not be reckoned in computing income for the purposes of the Tax Acts.
(8) Where for a chargeable period a notice of preliminary tax has been given to a person by the inspector and the inspector is satisfied that—
(a) the person, being a chargeable person, has discharged all that person's tax liability for the chargeable period,
(b) the person is not a chargeable person as respects that chargeable period, or
(c) it is appropriate to do so,
the inspector may reduce the amount of preliminary tax specified in the notice given to the person to such amount (including nil) as the inspector deems appropriate having regard to the circumstances of the case.
(9) Where a provision of this section has the effect of providing that any preliminary tax specified in a notice under subsection (1) ceases to become payable, the provision shall not have the effect of removing from any chargeable person an obligation imposed on that person by section 952 to pay an amount of preliminary tax.
(10) Section 929 shall, with any necessary modifications, apply to notices of preliminary tax under this section as it applies to assessments.
(11) Apart from subsection (7), this section shall not apply to capital gains tax.
(12) Every regulation made under this section shall be laid before DÃ¡il Ãireann as soon as may be after it is made and, if a resolution annulling the regulation is passed by DÃ¡il Ãireann within the next 21 days on which DÃ¡il Ãireann has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 954
paragraphs: —(1) An assessment shall not be made on a chargeable person for a chargeable period at any time before the specified return date for the chargeable period unless at that time the chargeable person has delivered a return for the chargeable period, and an assessment shall not be made at a time when the making of the assessment is precluded under section 955 (2).
(2) Subject to subsection (3), an assessment made on a chargeable person for a chargeable period shall be made by the inspector by reference to the particulars contained in the chargeable person's return.
(3) Where—
(a) a chargeable person makes default in the delivery of a return for a chargeable period, or
(b) the inspector is not satisfied with the return which has been delivered, or has received any information as to its insufficiency,
nothing in this section shall prevent the inspector from making an assessment in accordance with section 919 (4) or 922 , as appropriate.
(4) (a) Where as respects a chargeable period the inspector is satisfied that a chargeable person has paid all amounts of tax which, if the inspector were to make an assessment on the chargeable person for the chargeable period, would be payable by the chargeable person for the chargeable period, the inspector may elect not to make an assessment on the chargeable person for the chargeable period and, where the inspector so elects, he or she shall give notice of the election to the chargeable person, and the amounts paid by the chargeable person shall be deemed to have been payable in all respects as if the inspector had made the assessment.
(b) Subject to section 955 (2), nothing in this subsection shall prevent an inspector from making an assessment on the chargeable person for the chargeable period at any time after the giving of the notice of election under this section.
(5) Where an inspector makes an assessment—
(a) under either of the provisions referred to in subsection (3) in default of the delivery of a return, or
(b) in circumstances where the chargeable person has calculated the amount of tax which will be payable by that person on foot of an assessment and the inspector does not at the time of the making of the assessment disagree with the tax as so calculated,
it shall not be necessary to set out in the notice of assessment any particulars other than particulars as to the amount of tax to be paid by the chargeable person.
(6) Notwithstanding subsections (1) to (5) but subject to section 955 (2), where a chargeable person has delivered a return for a chargeable period, the chargeable person may by notice in writing given to the inspector require the inspector to make an assessment for the chargeable period and the inspector shall make the assessment forthwith.
(7) Nothing in this section shall prevent an inspector from making an assessment in accordance with—
(a) section 977 (3) or subsection (2) or (3) of section 978 , as appropriate, and, notwithstanding sections 952 and 958 , tax specified in such an assessment shall be due and payable in accordance with section 979 ,
(b) subsection (4) or (5), as appropriate, of section 980 and, not withstanding sections 952 and 958 , tax specified in such an assessment shall be due and payable in accordance with section 980 (10), or
(c) section 1042 and, notwithstanding sections 952 and 958 , tax specified in such an assessment shall be due and payable in accordance with section 1042 .
num: 955
paragraphs: —(1) Subject to subsection (2) and to section 1048 , an inspector may at any time amend an assessment made on a chargeable person for a chargeable period by making such alterations in or additions to the assessment as he or she considers necessary, notwithstanding that tax may have been paid or repaid in respect of the assessment and notwithstanding that he or she may have amended the assessment on a previous occasion or on previous occasions, and the inspector shall give notice to the chargeable person of the assessment as so amended.
(2) (a) Where a chargeable person has delivered a return for a chargeable period and has made in the return a full and true disclosure of all material facts necessary for the making of an assessment for the chargeable period, an assessment for that period or an amendment of such an assessment shall not be made on the chargeable person after the end of the period of 6 years commencing at the end of the chargeable period in which the return is delivered and no additional tax shall be payable by the chargeable person and no tax shall be repaid to the chargeable person after the end of the period of 6 years by reason of any matter contained in the return.
(b) Nothing in this subsection shall prevent the amendment of an assessment—
(i) where a relevant return does not contain a full and true disclosure of the facts referred to in paragraph (a),
(ii) to give effect to a determination on any appeal against an assessment,
(iii) to take account of any fact or matter arising by reason of an event occurring after the return is delivered,
(iv) to correct an error in calculation, or
(v) to correct a mistake of fact whereby any matter in the assessment does not properly reflect the facts disclosed by the chargeable person,
and tax shall be paid or repaid where appropriate in accordance with any such amendment, and nothing in this section shall affect the operation of section 804 (3).
(3) A chargeable person who is aggrieved by an assessment or the amendment of an assessment on the grounds that the chargeable person considers that the inspector was precluded from making the assessment or the amendment, as the case may be, by reason of subsection (2) may appeal against the assessment or amended assessment on those grounds and, if on the hearing of the appeal the Appeal Commissioners determine—
(a) that the inspector was so precluded, the Tax Acts shall apply as if the assessment or the amendment, as the case may be, had not been made, and the assessment or the amendment of the assessment as appropriate shall be void, or
(b) that the inspector was not so precluded, the assessment or the assessment as amended shall stand, except to the extent that any amount or matter in that assessment is the subject of a valid appeal on any other grounds.
(4) (a) Where a chargeable person is in doubt as to the application of law to or the treatment for tax purposes of any matter to be contained in a return to be delivered by the chargeable person, that person may deliver the return to the best of that person's belief as to the application of law to or the treatment for tax purposes of that matter but that person shall draw the inspector's attention to the matter in question in the return by specifying the doubt and, if that person does so, that person shall be treated as making a full and true disclosure with regard to that matter.
(b) This subsection shall not apply where the inspector is, or on appeal the Appeal Commissioners are, not satisfied that the doubt was genuine and is or are of the opinion that the chargeable person was acting with a view to the evasion or avoidance of tax, and in such a case the chargeable person shall be deemed not to have made a full and true disclosure with regard to the matter in question.
(5) (a) In this subsection, “relevant chargeable period” means—
(i) where the chargeable period is a year of assessment for income tax, the year 1988-89 and any subsequent year of assessment,
(ii) where the chargeable period is a year of assessment for capital gains tax, the year 1990-91 and any subsequent year of assessment, and
(iii) where the chargeable period is an accounting period of a company, an accounting period ending on or after the 1st day of October, 1989.
(b) Sections 919 (5) (b) and 924 shall not apply in the case of a chargeable person for any relevant chargeable period, and all matters which would have been included in an additional first assessment under those sections shall be included in an amendment of the first assessment or first assessments made in accordance with this section.
(c) For the purposes of paragraph (b), where any amount of income, profits or gains or, as respects capital gains tax, chargeable gains was omitted from the first assessment or first assessments or the tax stated in the first assessment or first assessments was less than the tax payable by the chargeable person for the relevant chargeable period concerned, there shall be made such adjustments or additions (including the addition of a further first assessment) to the first assessment or first assessments as are necessary to rectify the omission or to ensure that the tax so stated is equal to the tax so payable by the chargeable person.
num: 956
paragraphs: —(1) (a) For the purpose of making an assessment on a chargeable person for a chargeable period or for the purpose of amending such an assessment, the inspector—
(i) may accept either in whole or in part any statement or other particular contained in a return delivered by the chargeable person for that chargeable period, and
(ii) may assess any amount of income, profits or gains or, as respects capital gains tax, chargeable gains, or allow any deduction, allowance or relief by reference to such statement or particular.
(b) The making of an assessment or the amendment of an assessment by reference to any statement or particular referred to in paragraph (a) (i) shall not preclude the inspector—
(i) from making such enquiries or taking such actions within his or her powers as he or she considers necessary to satisfy himself or herself as to the accuracy or otherwise of that statement or particular, and
(ii) subject to section 955 (2), from amending or further amending an assessment in such manner as he or she considers appropriate.
(c) Any enquiries and actions referred to in paragraph (b) shall not be made in the case of any chargeable person for any chargeable period at any time after the expiry of the period of 6 years commencing at the end of the chargeable period in which the chargeable person has delivered a return for the chargeable period unless at that time the inspector has reasonable grounds for believing that the return is insufficient due to its having been completed in a fraudulent or negligent manner.
(2) (a) A chargeable person who is aggrieved by any enquiry made or action taken by an inspector for a chargeable period, after the expiry of the period referred to in subsection (1) (c) in respect of that chargeable period, on the grounds that the chargeable person considers that the inspector is precluded from making that enquiry or taking that action by reason of subsection (1)(c) may, by notice in writing given to the inspector within 30 days of the inspector making that enquiry or taking that action, appeal to the Appeal Commissioners, and the Appeal Commissioners shall hear the appeal in all respects as if it were an appeal against an assessment.
(b) Any action required to be taken by the chargeable person and any further action proposed to be taken by the inspector pursuant to the inspector's enquiry or action shall be suspended pending the determination of the appeal.
(c) Where on the hearing of the appeal the Appeal Commissioners—
(i) determine that the inspector was precluded from making the enquiry or taking the action by reason of subsection (1)(c), the chargeable person shall not be required to take any action pursuant to the inspector's enquiry or action and the inspector shall be prohibited from pursuing his enquiry or action, or
(ii) decide that the inspector was not so precluded, it shall be lawful for the inspector to continue with his or her enquiry or action.
num: 957
paragraphs: —(1) No appeal may be made against—
(a) a notice of preliminary tax under section 953 ,
(b) the amount of any income, profits or gains or, as respects capital gains tax, chargeable gains, or the amount of any allowance, deduction or relief specified in an assessment or an amended assessment made on a chargeable person for a chargeable period, where the inspector has determined that amount by accepting without the alteration of and without departing from the statement or statements or the particular or particulars with regard to income, profits or gains or, as respects capital gains tax, chargeable gains, or allowances, deductions or reliefs specified in the return delivered by the chargeable person for the chargeable period, or
(c) the amount of any income, profits or gains or, as respects capital gains tax, chargeable gains, or the amount of any allowance, deduction or relief specified in an assessment or an amended assessment made on a chargeable person for a chargeable period, where that amount had been agreed between the inspector and the chargeable person, or any person authorised by the chargeable person in that behalf, before the making of the assessment or the amendment of the assessment, as the case may be.
(2) (a) Where—
(i) a chargeable person makes default in the delivery of a return, or
(ii) the inspector is not satisfied with the return which has been delivered by a chargeable person, or has received any information as to its insufficiency,
and the inspector makes an assessment in accordance with section 919 (4) or 922 , no appeal shall lie against that assessment until such time as—
(I) in a case to which subparagraph (i) applies, the chargeable person delivers the return, and
(II) in a case to which either subparagraph (i) or (ii) applies, the chargeable person pays or has paid an amount of tax on foot of the assessment which is not less than the tax which would be payable on foot of the assessment if the assessment were made in all respects by reference to the statements and particulars contained in the return delivered by the chargeable person,
and the time for bringing an appeal against the assessment shall be treated as commencing at the earliest date on which both the return has been delivered and that amount of tax has been paid, and references in this subsection to an assessment shall be construed as including references to any amendment of the assessment which is made before that earliest date.
(b) References in this subsection to an amount of tax shall be construed as including any amount of interest which would be due and payable under section 1080 on that tax at the date of payment of the tax, together with any costs incurred or other amounts which may be charged or levied in pursuing the collection of the tax contained in the assessment or the assessment as amended, as the case may be.
(3) Subject to subsections (1) and (2), where an assessment is amended under section 955 (not being an amendment made by reason of the determination of an appeal), the chargeable person may appeal against the assessment as so amended in all respects as if it were an assessment made on the date of the amendment and the notice of the assessment as so amended were a notice of the assessment, except that the chargeable person shall have no further right of appeal, in relation to matters other than additions to, deletions from, or alterations in the assessment, made by reason of the amendment, than the chargeable person would have had if the assessment had not been amended.
(4) Where an appeal is brought against an assessment or an amended assessment made on a chargeable person for any chargeable period, the chargeable person shall specify in the notice of appeal—
(a) each amount or matter in the assessment or amended assessment with which the chargeable person is aggrieved, and
(b) the grounds in detail of the chargeable person's appeal as respects each such amount or matter.
(5) Where, as respects an amount or matter to which a notice of appeal relates, the notice does not comply with subsection (4), the notice shall, in so far as it relates to that amount or matter, be invalid and the appeal concerned shall, in so far as it relates to that amount or matter, be deemed not to have been brought.
(6) The chargeable person shall not be entitled to rely on any ground of appeal that is not specified in the notice of appeal unless the Appeal Commissioners, or the judge of the Circuit Court, as the case may be, are or is satisfied that the ground could not reasonably have been stated in the notice.
num: 958
paragraphs: —(1) In this section—
“pre-preceding chargeable period”, in relation to a chargeable period, means the chargeable period next before the preceding chargeable period;
“specified due date” in relation to a year of assessment, means the 30th day of April in the year of assessment next after the year of assessment following that year of assessment.
(2) Preliminary tax appropriate to a chargeable period shall be due and payable—
(a) where the chargeable period is a year of assessment for income tax and subject to subsection (10), on or before the 1st day of November in the year of assessment,
(b) where the chargeable period is a year of assessment for capital gains tax, on or before the 1st day of November following the year of assessment, or
(c) where the chargeable period is an accounting period of a company—
(i) within the period of 6 months from the end of the accounting period, or
(ii) where apart from this subparagraph the last day of the period within which the preliminary tax would be due and payable would be a day after the 28th day of the month in which that period of 6 months ends, not later than the 28th day of that month,
and accordingly references in this Part to the due date for the payment of an amount of preliminary tax shall be construed as references to the 1st day of November in the year of assessment, the 1st day of November following the year of assessment, the last day of that period of 6 months or the 28th day of the month in which that period of 6 months ends, as the case may be.
(3) Subject to subsection (4), tax specified in an assessment made on a chargeable person for a chargeable period shall be due and payable—
(a) where the assessment is made before the due date for the payment of an amount of preliminary tax for the chargeable period, on or before that date, or
(b) where the assessment is made on or after that date—
(i) if the chargeable period is a year of assessment for income tax, on or before the specified due date for the year of assessment,
(ii) if the chargeable period is a year of assessment for capital gains tax, on or before the specified return date for the chargeable period or, if later, not later than one month from the date on which the assessment is made, and
(iii) if the chargeable period is an accounting period of a company, not later than one month from the date on which the assessment is made.
(4) Where but for this subsection tax specified in an assessment made on a chargeable person for a chargeable period would be due and payable in accordance with subsection (3) (b) and—
(a) the chargeable person has defaulted in the payment of preliminary tax for the chargeable period,
(b) the preliminary tax paid by the chargeable person for the chargeable period is less than, or less than the least of, as the case may be—
(i) 90 per cent of the tax payable by the chargeable person for the chargeable period,
(ii) in the case of an assessment to income tax made on a chargeable person for the chargeable period (being a year of assessment), the income tax payable for the preceding chargeable period, or
(iii) in the case of an assessment to income tax for the chargeable period (being a year of assessment) made on a chargeable person to whom subsection (10) applies, other than a chargeable person in relation to whom the amount of income tax payable or, taken in accordance with subsection (5) (a) to be payable, for the pre-preceding chargeable period was nil, 105 per cent of the income tax payable for the pre-preceding chargeable period,
or
(c) the preliminary tax payable by the chargeable person for the chargeable period was not paid by the date on which it was due and payable,
the tax specified in the assessment shall be deemed to have been due and payable on the due date for the payment of an amount of preliminary tax for the chargeable period.
(5) For the purposes of subparagraphs (ii) and (iii) of subsection (4) (b)—
(a) subject to subsection (7), where the chargeable person was not a chargeable person for the preceding chargeable period or for the pre-preceding chargeable period, the income tax payable for the preceding chargeable period or the pre-preceding chargeable period, as the case may be, shall be taken to be nil, and
(b) where, after the due date for the payment of an amount of preliminary tax for a chargeable period which is a year of assessment, an amount of additional income tax for the preceding chargeable period or, in the case of a chargeable person to whom subsection (10) applies, the pre-preceding chargeable period becomes payable, that additional income tax shall not be taken into account only if it became due and payable one month following the amendment to the assessment or the determination of the appeal, as the case may be, by virtue of subsection (8) (b) or (9) (b).
(6) For the purpose of subparagraphs (ii) and (iii) of subsection (4) (b), where the chargeable person is chargeable to income tax for a chargeable period—
(a) the tax payable for the preceding chargeable period or, in the case of a chargeable person to whom subsection (10) applies, the pre-preceding chargeable period shall be determined without regard to any relief to which the chargeable person is or may become entitled for the preceding chargeable period or the pre-preceding chargeable period, as the case may be, under Part 16 , and
(b) the tax payable for the preceding chargeable period or, in the case of a chargeable person to whom subsection (10) applies, the pre-preceding chargeable period shall be determined without regard to any relief to which the chargeable person is or may become entitled for the preceding chargeable period or the pre-preceding chargeable period, as the case may be, under section 481 .
(7) Where for a chargeable period, being a year of assessment for income tax, a chargeable person is assessed to tax in accordance with section 1017 , and that person was not so assessed for the preceding chargeable period or for the pre-preceding chargeable period or for both of those periods either—
(a) because the person's spouse was so assessed for either or both of those periods, or
(b) because the person and the person's spouse were assessed to tax in accordance with section 1016 or 1023 for either or both of those periods,
subparagraphs (ii) and (iii) of subsection (4) (b) and subsection (5) (a) shall apply as if the person and the person's spouse had elected in accordance with section 1018 or 1019 , as the case may be, for the person to be assessed to tax in accordance with section 1017 for any of those periods for which the person or the person's spouse were entitled to so elect or would have been so entitled if section 1019 had applied.
(8) (a) Subject to paragraph (b) and subsection (9), any additional tax due by reason of the amendment of an assessment for a chargeable period shall be deemed to be due and payable on the same day as the tax charged by the assessment before its amendment was due and payable.
(b) Where—
(i) the assessment was made after the chargeable person had delivered a return containing a full and true disclosure of all material facts necessary for the making of the assessment, or
(ii) the assessment had previously been amended following the delivery of the return containing such disclosure,
any additional tax due by reason of the amendment of the assessment shall be deemed to have been due and payable not later than one month from the date of the amendment.
(9) (a) The amount by which the tax, found to be payable for a chargeable period on the determination of an appeal against an assessment made on a chargeable person for the chargeable period, is in excess of the amount of the tax for the chargeable period referred to in section 957 (2) (a) (II) which the chargeable person had paid before the making of the appeal shall be deemed to be due and payable on the same date as the tax charged by the assessment is due and payable.
(b) Notwithstanding paragraph (a), where—
(i) the tax which the chargeable person had paid before the making of the appeal is not less than 90 per cent of the tax found to be payable on the determination of the appeal, and
(ii) the tax charged by the assessment was due and payable in accordance with subsection (3),
the excess referred to in that paragraph shall be deemed to be due and payable not later than one month from the date of the determination of the appeal.
(10) (a) This subsection shall apply to a chargeable person who authorises the Collector-General to collect preliminary tax by the debiting of the bank account of that person in accordance with paragraph (b) and complies with such conditions as the Collector-General may reasonably impose to ensure that an amount of preliminary tax payable by a chargeable person for a chargeable period will be paid by the chargeable person in accordance with this subsection on or before the 9th day of December in the year of assessment to which the preliminary tax relates by virtue of subsection (2) (a).
(b) Preliminary tax appropriate to a chargeable period where the chargeable period is a year of assessment for income tax shall be due and payable in the case of a chargeable person to whom this subsection applies in equal monthly instalments throughout the calendar year or a part of that year in which the due date for the payment of that preliminary tax in accordance with subsection (2) (a) falls, and the Collector-General shall debit the bank account of that chargeable person with such instalments on the 9th day of each month in that year or part of that year, as the case may be.
(c) Notwithstanding paragraph (b), the Collector-General may at any time agree to alter the amount of preliminary tax to be debited to the bank account of the chargeable person in accordance with this subsection.
(d) For the purposes of this section, a chargeable person who pays an amount of preliminary tax appropriate to a chargeable period in accordance with this subsection shall be deemed to have paid that amount of preliminary tax on the due date for the payment of an amount of preliminary tax for the chargeable period.
num: 959
paragraphs: —(1) Section 1048 shall apply to an amendment of an assessment under section 955 as it applies to an additional first assessment under section 924 .
(2) Where the inspector or any other officer of the Revenue Commissioners acting with the knowledge of the inspector causes to issue, manually or by any electronic, photographic or other process, a notice of preliminary tax bearing the name of the inspector or a notice of assessment or a notice of an amendment of an assessment bearing the name of the inspector, that notice of preliminary tax shall for the purposes of the Tax Acts and the Capital Gains Tax Acts be deemed to have been given by the inspector to the best of his or her opinion, and that assessment or amended assessment to which the notice of assessment or notice of amended assessment relates, as the case may be, shall for those purposes be deemed to have been made by the inspector to the best of his or her judgment.
(3) An assessment which is otherwise final and conclusive shall not for any purpose of the Tax Acts and the Capital Gains Tax Acts be regarded as not final and conclusive or as ceasing to be final and conclusive by reason only of the fact that the inspector has amended or may amend the assessment pursuant to section 955 and, where in the case of a chargeable person the inspector elects under section 954 (4) not to make an assessment for any chargeable period, the Tax Acts and the Capital Gains Tax Acts shall apply as if an assessment for that chargeable period made on the chargeable person had become final and conclusive on the date on which the notice of election is given.
(4) The giving by a chargeable person of a notice pursuant to section 876 shall not remove from the person an obligation to deliver a return under section 951 .
(5) The provisions of this Part as respects due dates for payment of tax shall apply subject to sections 579 (4) (b) and 981 .
(6) References in this Part to any provision of the Income Tax Acts shall, where appropriate for capital gains tax and unless the contrary intention appears, be construed as a reference to those provisions as applied in relation to capital gains tax by sections 913 , 931 , 976 , 1051 , 1077 or 1083 , as appropriate.
(7) Section 926 shall not apply to a chargeable person as respects any chargeable period.
num: 960
paragraphs: —Income tax contained in an assessment (other than an assessment made under Part 41 ) for any year of assessment shall be payable on or before the 1st day of November in that year, except that income tax included in any such assessment for any year of assessment which is made on or after the 1st day of November in that year shall be deemed to be due and payable not later than one month from the date on which the assessment is made.
num: 961
paragraphs: —(1) When income tax becomes due and payable, the Collector-General shall make demand of the respective sums given to him or her in charge to collect from the persons charged with those sums, or at the places of their last abode, or on the premises in respect of which the tax is charged, as the case may require.
(2) On payment of income tax, the Collector-General shall without charge give a receipt under his or her hand on the prescribed form.
num: 962
paragraphs: —(1) Whenever any person makes default in paying any sum which may be levied on that person in respect of income tax, the Collector-General may issue a certificate to the county registrar or sheriff of the county in which the defaulter resides or has a place of business certifying the amount of the sum so in default and the person on whom the sum is leviable.
(2) Immediately on receipt of the certificate the county registrar or sheriff shall proceed to levy the sum certified in the certificate to be in default by seizing all or any of the goods, animals and other chattels within his or her bailiwick belonging to the defaulter, and for such purposes the county registrar or sheriff shall (in addition to the rights, powers and duties conferred on him or her by this section) have all such rights, powers and duties as are for the time being vested in him or her by law in relation to the execution of a writ of fieri facias in so far as those rights, powers and duties are not inconsistent with the additional rights, powers and duties conferred on him or her by this section.
(3) A county registrar or sheriff executing a certificate under this section shall be entitled—
(a) if the sum certified in the certificate to be in default exceeds £15,000, to charge and (where appropriate) to add to that sum and (in any case) to levy under the certificate such fees and expenses, calculated according to the scales appointed by the Minister for Justice, Equality and Law Reform under section 14 (1) (a) of the Enforcement of Court Orders Act, 1926 , and for the time being in force, as the county registrar or sheriff would be entitled so to charge or add and to levy if the certificate were an execution order within the meaning of the Enforcement of Court Orders Act, 1926, (in this section referred to as an “execution order”) of the High Court,
(b) if the sum certified in the certificate to be in default exceeds £2,500 but does not exceed £15,000, to charge and (where appropriate) to add to that sum and (in any case) to levy under the certificate such fees and expenses, calculated according to the scales referred to in paragraph (a), as the county registrar or sheriff would be entitled so to charge or add and to levy if the certificate were an execution order of the Circuit Court, and
(c) if the sum certified in the certificate to be in default does not exceed £2,500, to charge and (where appropriate) to add to that sum and (in any case) to levy under the certificate such fees and expenses, calculated according to the scales referred to in paragraph (a), as the county registrar or sheriff would be entitled so to charge or add and to levy if the certificate were an execution order of the District Court.
num: 963
paragraphs: —(1) Where the amount due in respect of income tax does not exceed the amount which is the monetary limitation on the jurisdiction of the Circuit Court provided for in an action founded on quasi-contract at reference number 1 of the Third Schedule to the Courts (Supplemental Provisions) Act, 1961 , the Collector-General or other officer of the Revenue Commissioners duly authorised to collect the tax may sue in that officer's own name in the Circuit Court for the amount so due as a debt due to the Minister for Finance.
(2) Where the amount so due does not exceed the amount which is the monetary limitation on the jurisdiction of the District Court provided for in an action founded on contract by clause (i) of paragraph A of section 77 of the Courts of Justice Act, 1924 (as amended by the Courts Act, 1991 ), the Collector-General or other officer of the Revenue Commissioners duly authorised to collect the tax may sue in that officer's own name in the District Court for the amount so due as a debt due to the Minister for Finance.
(3) The cost of any such proceedings brought by the Collector-General or other officer under this section shall be subject to the law and practice applicable to the costs of a like proceeding for the recovery of an ordinary civil debt of like amount in the same Court.
num: 964
paragraphs: —(1) Where the Collector-General duly appointed to collect any income tax has instituted proceedings under section 963 , or continues under this section any proceedings brought under subsection (1) or (2) of that section, for the recovery of such tax and, while such proceedings are pending, such Collector-General ceases for any reason to be the Collector-General so appointed to collect such tax, the right of such Collector-General to continue such proceedings shall forthwith terminate and the Collector-General duly appointed to collect such tax in succession to the Collector-General so ceasing shall if the Collector-General so appointed so desires be entitled to become and be a party to such proceedings in the place of the Collector-General so ceasing and be entitled to continue such proceedings accordingly.
(2) Where the Collector-General duly appointed to collect any income tax in succession to another Collector-General institutes or continues proceedings under section 963 for the recovery of the tax or any balance of the tax, the other Collector-General shall for the purposes of the proceedings be deemed until the contrary is proved to have ceased to be the Collector-General appointed to collect the tax.
num: 965
paragraphs: —(1) In any proceedings in the Circuit Court or the District Court for or in relation to the recovery of income tax an affidavit duly made by an officer of the Revenue Commissioners deposing to any of the following matters—
(a) that the assessment of tax was duly made,
(b) that the assessment has become final and conclusive,
(c) that the tax or any specified part of the tax is due and out standing,
(d) that demand for the payment of the tax has been duly made,
shall be evidence until the contrary is proved of the matters so deposed to.
(2) Where the averments in the affidavit are not disputed by the defendant or respondent, it shall not be necessary for the officer by whom the affidavit was made to attend or give oral evidence at the hearing of the proceedings nor shall it be necessary to produce or put in evidence at the hearing any register, file, book of assessment or other record relating to the tax.
(3) Where any averment contained in the affidavit is disputed by the defendant or respondent, the judge shall, on such terms as to costs as he or she thinks just, give a reasonable opportunity by adjournment of the hearing or otherwise for the officer by whom the affidavit was made to attend and give oral evidence in the proceedings and for any register, file, book of assessment or other record relating to the tax to be produced and put in evidence in the proceedings.
num: 966
paragraphs: —(1) Without prejudice to any other means by which payment of sums due in respect of income tax may be enforced, an officer of the Revenue Commissioners authorised by them for the purposes of this subsection may sue in his or her own name in the High Court for the recovery of any sum due in respect of that tax, as a debt due to the Minister for Finance for the benefit of the Central Fund, from the person charged with that tax or from that person's executors or administrators or from any person from whom the sum in question is collectable, whether the person so charged was so charged before or after the passing of this Act, and the proceedings may be commenced by summary summons.
(2) Where an officer who has commenced proceedings pursuant to this section, or who has continued the proceedings by virtue of this subsection, dies or otherwise ceases for any reason to be an officer authorised for the purposes of subsection (1)—
(a) the right of such officer to continue the proceedings shall cease and the right to continue the proceedings shall vest in such other officer so authorised as may be nominated by the Revenue Commissioners,
(b) where such other officer is nominated, he or she shall be entitled accordingly to be substituted as a party to the proceedings in the place of the first-mentioned officer, and
(c) where an officer is so substituted, he or she shall give notice in writing of the substitution to the defendant.
(3) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying the following facts, that a person is an officer of the Revenue Commissioners and that he or she has been authorised by them for the purpose of subsection (1), shall be evidence until the contrary is proved of those facts.
(4) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying the following facts—
(a) that the plaintiff has ceased to be an officer of the Revenue Commissioners authorised by them for the purposes of subsection (1),
(b) that another person is an officer of the Revenue Commissioners,
(c) that such other person has been authorised by them for the purposes of subsection (1), and
(d) that such other person has been nominated by them, in relation to the proceedings, for the purposes of subsection (2),
shall be evidence until the contrary is proved of those facts.
(5) In proceedings pursuant to this section—
(a) a certificate signed by an inspector certifying the fact that before the institution of the proceedings a stated sum for income tax became due and payable by the defendant—
(i) under an assessment which had become final and conclusive, or
(ii) under section 942 (6),
and
(b) a certificate signed by the Collector-General certifying the following facts—
(i) that he or she is the Collector-General duly authorised to collect the stated sum referred to in paragraph (a),
(ii) that before the institution of the proceedings payment of that stated sum was duly demanded from the defendant, and
(iii) that that stated sum or a stated part of that sum remains due and payable by the defendant,
shall be evidence until the contrary is proved of those facts.
(6) In proceedings pursuant to this section, a certificate certifying the fact or facts referred to in subsection (3) or (4) or paragraph (a) or (b) of subsection (5) and purporting to be signed as specified in that subsection or paragraph may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by a person holding at the time of the signature the office or position indicated in the certificate as the office or position of the person signing.
(7) All or any of the sums due from any one person in respect of income tax may be included in the same summons.
(8) Subject to this section, the rules of the High Court for the time being applicable to civil proceedings commenced by summary summons shall apply to proceedings pursuant to this section.
num: 967
paragraphs: —In any proceedings in the District Court, the Circuit Court or the High Court for or in relation to the recovery of any income tax, a certificate signed by the Collector-General or other authorised officer certifying that before the institution of proceedings a stated sum of income tax transmitted in accordance with section 928 (2) became due and payable by the defendant—
(a) (i) under an assessment which had become final and conclusive, or
(ii) under section 942 (6),
and
(b) demand for the payment of the tax has been duly made,
shall be prima facie evidence until the contrary has been proved of those facts, and a certificate so certifying and purporting to be signed by the Collector-General or other authorised officer may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by the Collector-General or other authorised officer.
num: 968
paragraphs: —(1) In this section, “judgment” includes any order or decree.
(2) Where in any proceedings for the recovery of income tax judgment is given against the person against whom the proceedings are brought and the judgment provides for the arrest and imprisonment of that person, and a sum is accepted on account or in part payment of the amount for which the judgment was given—
(a) such acceptance shall not prevent or prejudice the recovery under the judgment of the balance remaining unpaid of that amount,
(b) the judgment shall be capable of being executed and enforced in respect of the balance as fully in all respects and by the like means as if the balance were the amount for which the judgment was given,
(c) the law relating to the execution and enforcement of the judgment shall apply in respect of the balance accordingly, and
(d) a certificate by a Secretary or an Assistant Secretary of the Revenue Commissioners stating the amount of the balance shall, for the purposes of the enforcement and execution of the judgment, be evidence until the contrary is proved of the amount of the balance.
num: 969
paragraphs: —Where any person is committed to prison by a court of competent jurisdiction for non-payment of a sum of money due to the Minister for Finance for the benefit of the Central Fund in respect of income tax, the Revenue Commissioners are hereby authorised and required at the expiration of 6 months from the date of the committal of such person to prison to order his or her discharge from prison whether the sum for the non-payment of which he or she was so committed has or has not been paid.
num: 970
paragraphs: —Where income tax is charged on the profits of royalties, markets or fairs, or on tolls, fisheries or any other annual or casual profits not distrainable, the owner or occupier or receiver of those profits shall be answerable for the income tax so charged, and may retain and deduct that tax out of any such profits.
num: 971
paragraphs: —(1) No goods or chattels whatever, belonging to any person at the time any income tax becomes in arrear, shall be liable to be taken by virtue of any execution or other process, warrant or authority whatever, or by virtue of any assignment, on any account or pretence whatever, except at the suit of the landlord for rent, unless the person at whose suit the execution or seizure is made or to whom the assignment was made pays or causes to be paid to the Collector-General before the sale or removal of the goods or chattels all arrears of income tax due at the time of seizure, or payable for the year in which the seizure is made.
(2) Where income tax is claimed for more than one year, the person at whose instance the seizure has been made may, on paying to the Collector-General the income tax which is due for one whole year, proceed in that person's seizure in the like manner as if no income tax had been claimed.
num: 972
paragraphs: —(1) Where any employed person has omitted to make payment of any income tax under Schedule D, E or F due and payable by that person for any year, the Revenue Commissioners may give notice to that person's employer at any time after a period of 3 months has elapsed since such income tax became due and payable requiring the employer to deduct the amount of income tax so in arrear from any remuneration payable by the employer to the employed person.
(2) On receipt of the notice, the employer shall deduct such sums, not exceeding in the aggregate the total amount of income tax so in arrear, at such times and in such manner as the Revenue Commissioners may direct and shall forthwith pay over the amounts so deducted to the Collector-General.
(3) Where any employer refuses or neglects to pay over to the Collector-General any sums within the time specified in the notice, the employer shall be liable to pay any such sum as if it had been duly assessed on the employer, and proceedings for the recovery of that sum may be taken in any manner prescribed by the Income Tax Acts, and failure on the part of the employer to deduct any such sum from the employed person shall not be any bar to the recovery of the sum by proceedings.
(4) Where the employer is a body of persons, subsections (3) and (4) of section 897 and subsections (2) and (3) of section 1044 shall apply in relation to anything required to be done under this section.
(5) An employer who pays over to the Collector-General any such sum of income tax as is required by the notice shall be acquitted and discharged of so much money as is represented by the payment as if that sum of money had actually been paid as remuneration to the employed person.
(6) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this section to be performed or discharged by the Revenue Commissioners.
num: 973
paragraphs: —(1) The Collector-General shall collect and levy the tax from time to time charged on all assessments to corporation tax of which particulars have been transmitted to him or her under section 928 (1).
num: 974
paragraphs: —The priority attaching to assessed taxes under sections 98 and 285 of the Companies Act, 1963 , shall apply to corporation tax.
num: 975
paragraphs: —(1) Subsection (2) of section 964 shall apply in relation to corporation tax as it applies in relation to income tax, and accordingly the reference in that subsection to income tax shall apply as if it was or included a reference to corporation tax.
(2) Section 980 (8) shall apply for corporation tax as for capital gains tax, and references to capital gains tax in that section shall apply accordingly as if they were or included references to corporation tax.
(3) Section 981 shall apply for the purposes of corporation tax as it applies for the purposes of capital gains tax.
num: 976
paragraphs: —(1) The Collector-General for the time being appointed under section 851 shall collect and levy capital gains tax from time to time charged in all assessments made under the Capital Gains Tax Acts of which particulars have been transmitted to him or her under section 928 (1) as applied to capital gains tax by section 931 , and the provisions of section 851 relating to the nomination by the Revenue Commissioners of persons to act as the Collector-General or to exercise the powers of the Collector-General shall apply to capital gains tax as they apply to income tax.
num: 977
paragraphs: —(1) In this section, “capital distribution” has the same meaning as in section 583 .
(2) This section shall apply where a person (in this section referred to as “the beneficiary”) connected with a company resident in the State receives or becomes entitled to receive in respect of shares in the company any capital distribution from the company, other than a capital distribution representing a reduction of capital, and—
(a) the capital so distributed derives from the disposal of assets in respect of which a chargeable gain accrues to the company, or
(b) the distribution constitutes such a disposal of assets.
(3) Where—
(a) the capital gains tax assessed on the company for the year of assessment in which the chargeable gain referred to in subsection (2) accrues includes any amount in respect of that chargeable gain, and
(b) any of the capital gains tax assessed on the company for that year is not paid within 6 months from the date when it becomes payable by the company,
the beneficiary may by an assessment made within 2 years from that date be assessed and charged (in the name of the company) to an amount of that capital gains tax—
(i) not exceeding the amount or value of the capital distribution which the beneficiary has received or became entitled to receive, and
(ii) not exceeding a proportion equal to the beneficiary's share of the capital distribution made by the company of capital gains tax on the amount of that gain at the rate in force when the gain accrued.
(4) A beneficiary paying any amount of tax under this section shall be entitled to recover a sum equal to that amount from the company.
(5) This section is without prejudice to any liability of the beneficiary receiving or becoming entitled to receive the capital distribution in respect of a chargeable gain accruing to that beneficiary by reference to the capital distribution as constituting a disposal of an interest in shares in the company.
num: 978
paragraphs: —(1) In this section—
“old asset” and “new asset” have the same meanings respectively as in section 597 ;
references to a donor include, in the case of an individual who has died, references to his or her personal representatives;
references to a gift include references to any transaction otherwise than by means of a bargain made at arm's length in so far as money or money's worth passes under the transaction without full consideration in money or money's worth, and “donor” and “donee” shall be construed accordingly.
(2) Where—
(a) a chargeable gain accrues in any year of assessment to any person on the disposal of an asset by means of a gift, and
(b) any amount of capital gains tax assessed on that person for that year of assessment is not paid within 12 months from the date when the tax becomes payable,
the donee may by an assessment made not later than 2 years from the date when the tax became payable be assessed and charged (in the name of the donor) to capital gains tax on an amount—
(i) not exceeding the amount of the chargeable gain so accruing, and
(ii) not exceeding such an amount of chargeable gains as would, if charged at the rate provided in section 28 (3), result in liability to an amount of capital gains tax equal to that amount of capital gains tax which was not paid by the donor.
(3) Where the gift consists of a new asset, the donee may, in addition to being assessed and charged under subsection (2) in respect of the new asset, be assessed and charged as if the chargeable gain on the disposal of the old asset were a chargeable gain on the disposal of the new asset the capital gains tax in respect of which was not paid within 12 months from the date when the tax had become payable.
(4) (a) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by means of a gift to a donee—
(i) the whole of the proceeds of the disposal, or
(ii) in a case where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, the whole of the proceeds of the disposal of the new asset,
subsections (2) and (3) shall apply to the amount of capital gains tax so assessed and charged.
(b) Where a person on whom capital gains tax is assessed and charged in respect of the disposal of an asset transfers directly or indirectly by means of a gift to a donee—
(i) part of the proceeds of the disposal, or
(ii) in a case where the asset is a new asset acquired by the use of the proceeds of the disposal of an old asset, part of the proceeds of the disposal of the new asset,
subsections (2) and (3) shall apply to such part of the amount of capital gains tax so assessed and charged as bears to the whole of such tax the same proportion that that part of the proceeds bears to the whole of those proceeds.
(5) The donee of a gift paying any amount of tax in pursuance of this section shall, subject to any terms or conditions of the gift, be entitled to recover a sum of that amount from the donor of the gift as a simple contract debt in any court of competent jurisdiction.
(6) This section shall apply in relation to a gift made to 2 or more donees with any necessary modifications and subject to the condition that each such donee shall be liable to be assessed and charged in respect only of such part of the amount of capital gains tax payable by the donees by virtue of this section as bears to the whole of such tax the same proportion as the part of the gift made to that donee bears to the whole of the gift.
num: 979
paragraphs: —Capital gains tax assessed on any person under section 977 (3) or subsections (2) and (3) of section 978 in respect of gains accruing in any year shall be payable by that person at or before the expiration of 3 months following that year, or at the expiration of a period of 2 months beginning with the date of the making of the assessment, whichever is the later.
num: 980
paragraphs: —(1) In this section—
“designated area” means an area designated by order under section 2 of the Continental Shelf Act, 1968 ;
“exploration or exploitation rights” has the same meaning as in section 13 ;
“shares” includes stock and any security.
(2) This section shall apply to assets that are—
(a) land in the State,
(b) minerals in the State or any rights, interests or other assets in relation to mining or minerals or the searching for minerals,
(c) exploration or exploitation rights in a designated area,
(d) shares in a company deriving their value or the greater part of their value directly or indirectly from assets specified in paragraph (a), (b) or (c), other than shares quoted on a stock exchange,
(e) shares, other than shares quoted on a stock exchange, to which section 584 applies, whether by virtue of that section or any other section, so that, as respects a person disposing of those shares, they are treated as the same shares as shares specified in paragraph (d), acquired as the shares so specified were acquired, and
(f) goodwill of a trade carried on in the State.
(3) This section shall not apply where the amount or value of the consideration in money or money's worth on a disposal does not exceed the sum of £100,000; but if an asset owned at one time by one person, being an asset to which this section would but for this subsection apply, is disposed of by that person in parts—
(a) to the same person, or
(b) to persons who are acting in concert or who are connected persons,
whether on the same or different occasions, the several disposals shall for the purposes of this subsection, but not for any other purpose, be treated as a single disposal.
(4) (a) Subject to paragraph (b), on payment of the consideration for acquiring an asset to which this section applies—
(i) the person by or through whom any such payment is made shall deduct from that payment a sum representing an amount of capital gains tax equal to 15 per cent of that payment,
(ii) the person to whom the payment is made shall allow such deduction on receipt of the residue of the payment, and
(iii) the person making the deduction shall, on proof of payment to the Revenue Commissioners of the amount so deducted, be acquitted and discharged of so much money as is represented by the deduction as if that sum had been actually paid to the person making the disposal.
(b) Where the person disposing of the asset produces to the person acquiring the asset a certificate issued under subsection (8) in relation to the disposal, no deduction referred to in paragraph (a) shall be made.
(5) Where any payment referred to in subsection (4) (a) is made by or on behalf of any person, that person shall forthwith deliver to the Revenue Commissioners an account of the payment and of the amount deducted from the payment, and the inspector shall, notwithstanding any other provision of the Capital Gains Tax Acts, assess and charge that person to capital gains tax for the year of assessment in which the payment was made on the amount of the payment at the rate of 15 per cent.
(6) Where, in relation to any payment referred to in subsection (4) (a), any person has made default in delivering an account required by this section, or where the inspector is not satisfied with the account, the inspector may estimate the amount of the payment to the best of his or her judgment and, notwithstanding section 31 , may assess and charge that person to capital gains tax for the year of assessment in which the payment was made on the amount so estimated at the rate of 15 per cent.
(7) Where the amount of capital gains tax assessed and charged under subsection (5) or (6) is paid, appropriate relief shall, on a claim being made in that behalf, be given to the person chargeable in respect of the gain on the disposal, whether by discharge or repayment or otherwise.
(8) A person chargeable to capital gains tax on the disposal of an asset to which this section applies may apply to the inspector for a certificate that tax should not be deducted from the consideration for the disposal of the asset and that the person acquiring the asset should not be required to give notice to the Revenue Commissioners in accordance with subsection (9) (a), and, if the inspector is satisfied that the person making the application is the person making the disposal and that—
(a) that person is resident in the State,
(b) no amount of capital gains tax is payable in respect of the disposal, or
(c) the capital gains tax chargeable for the year of assessment for which that person is chargeable in respect of the disposal of the asset and the tax chargeable on any gain accruing in any earlier year of assessment (not being a year ending earlier than the 6th day of April, 1974) on a previous disposal of the asset has been paid,
the inspector shall issue the certificate to the person making the application and shall issue a copy of the certificate to the person acquiring the asset.
(9) (a) Where—
(i) after the 2nd day of June, 1995, a person acquires an asset to which this section applies and section 978 does not apply,
(ii) the consideration for acquiring the asset is of such a kind that the deduction mentioned in subsection (4) cannot be made out of the consideration, and
(iii) the person disposing of the asset does not, at or before the time at which the acquisition is made, produce to the person acquiring the asset a certificate under subsection (8) in relation to the disposal, the person acquiring the asset shall within 7 days of the time at which the acquisition is made—
(I) notify the Revenue Commissioners of the acquisition in a notice in writing containing particulars of—
(A) the asset acquired,
(B) the consideration for acquiring the asset,
(C) the market value of that consideration estimated to the best of that person's knowledge and belief, and
(D) the name and address of the person making the disposal,
and
(II) pay to the Collector-General an amount of capital gains tax equal to 15 per cent of the market value of the consideration so estimated.
(b) Capital gains tax which by virtue of paragraph (a) (II) is payable by a person acquiring an asset shall—
(i) be payable by that person in addition to any capital gains tax which by virtue of any other provision of the Capital Gains Tax Acts is payable by that person,
(ii) be due within 7 days of the time at which that person acquires the asset, and
(iii) be payable by that person without the making of an assessment;
but tax which has become so due may be assessed on the person acquiring the asset (whether or not it has been paid when the assessment is made) if that tax or any part of that tax is not paid on or before the due date.
(c) Where any person acquiring an asset has in pursuance of paragraph (a) (II) paid any amount of capital gains tax by reference to the market value of the consideration for acquiring the asset, that person shall be entitled to recover a sum of that amount from the person disposing of the asset as a simple contract debt in any court of competent jurisdiction; but where a copy of a certificate under subsection (8) is issued to the person acquiring the asset, being a copy of a certificate in relation to the disposal by which the person acquired the asset, that person—
(i) shall not be entitled thereafter to so recover that sum, and
(ii) shall be repaid that amount of tax.
(d) This section shall apply in relation to the acquisition of an asset by 2 or more persons with any necessary modifications and subject to the condition that each such person shall be liable to be assessed and charged in respect only of such part of the amount of capital gains tax payable by those persons by virtue of paragraph (b) as bears to the whole of such tax the same proportion as the part of the asset acquired by that person bears to the whole of the asset.
(10) Notwithstanding sections 979 and 1042 , where an amount of capital gains tax is assessed and charged pursuant to this section, such amount shall be due and payable on the day after the day on which the assessment is made.
(11) (a) Subject to paragraph (b), where there is a disposal of assets by virtue of a capital sum being derived from those assets, the person paying the capital sum shall, notwithstanding that no asset is acquired by that person, be treated for the purposes of this section as acquiring the assets disposed of for a consideration equal to the capital sum, whether that sum is paid in money or money's worth, and this section shall, subject to any necessary modifications, apply accordingly.
(b) Paragraph (a) shall not apply where there is a disposal of an asset by virtue of a capital sum being derived from the asset under a policy of insurance of the risk of any kind of damage to the asset.
num: 981
paragraphs: —Where the consideration or part of the consideration taken into account in the computation of a chargeable gain is payable by instalments over a period beginning not earlier than the time when the disposal is made, being a period exceeding 18 months, then, if the person making the disposal satisfies the Revenue Commissioners that such person would otherwise suffer undue hardship, the capital gains tax on such a chargeable gain accruing on a disposal may, at such person's option, be paid by such instalments as the Revenue Commissioners may allow over a period not exceeding 5 years and ending not later than the time at which the last of the first-mentioned instalments is payable.
num: 982
paragraphs: —The priority attaching to assessed taxes under section 81 of the Bankruptcy Act, 1988 , and sections 98 and 285 of the Companies Act, 1963 , shall apply to capital gains tax.
num: 983
paragraphs: —In this Chapter, except where the context otherwise requires—
num: 984
paragraphs: —(1) This Chapter shall apply to all emoluments except emoluments which are emoluments in respect of which the employer has been notified by the inspector that they are emoluments which arise from an office or employment and from which, in the opinion of the inspector, having regard to the circumstances of the office or employment or to the amount of the emoluments, the deduction of tax by reference to this Chapter is impracticable.
(2) The inspector may, if a change in the circumstances of the office or employment or in the amount of the emoluments so warrants, cancel a notification given under subsection (1) by notice in writing given to the employer, and this Chapter shall then apply to payments of emoluments arising from the office or employment made after the date of such notice.
(3) Any notice issued by or on behalf of the Revenue Commissioners under section 125 of the Income Tax Act, 1967 , before the 6th day of April, 1986, shall not have effect in relation to emoluments arising in the year 1997-98 or any subsequent year of assessment.
num: 985
paragraphs: —On the making of any payment of any emoluments to which this Chapter applies, income tax shall, subject to this Chapter and in accordance with regulations under this Chapter, be deducted or repaid by the person making the payment notwithstanding that—
(a) when the payment is made no assessment has been made in respect of the emoluments, or
(b) the emoluments are in whole or in part emoluments for some year of assessment other than that during which the payment is made.
num: 986
paragraphs: —(1) The Revenue Commissioners shall make regulations with respect to the assessment, charge, collection and recovery of income tax in respect of emoluments to which this Chapter applies or of income tax for any previous year of assessment remaining unpaid, and those regulations may, in particular and without prejudice to the generality of the foregoing, include provision—
(a) for requiring any employer making any payment of emoluments to which this Chapter applies, when that employer makes the payment, to make a deduction or repayment of tax calculated by reference to such rate or rates of tax for the year as may be specified and any allowances, deductions and reliefs appropriate in the case of the employee as indicated by the particulars on the tax deduction card supplied in respect of the employee by the Revenue Commissioners;
(b) for rendering persons who are required to make any such deduction or repayment, in the case of a deduction (whether or not made), accountable for the amount of the tax and liable to pay that amount to the Revenue Commissioners and, in the case of a repayment, entitled (if a repayment has been made) to be paid it, or given credit for it, by the Revenue Commissioners;
(c) for the production to and inspection by persons authorised by the Revenue Commissioners of wages sheets and other documents and records for the purpose of satisfying themselves that tax in respect of emoluments to which this Chapter applies has been and is being duly deducted, repaid and accounted for;
(d) for the collection and recovery, whether by deduction from emoluments paid in any year or otherwise, of tax in respect of emoluments to which this Chapter applies which has not been deducted or otherwise recovered during the year;
(e) for appeals with respect to matters arising under the regulations which would not otherwise be the subject of an appeal;
(f) for the deduction of tax at the standard rate and at the higher rate in such cases or classes of cases as may be provided for by the regulations;
num: 987
paragraphs: —(1) Where any person does not comply with any provision of regulations under this Chapter requiring that person to send any return, statement, notification or certificate or to remit income tax to the Collector-General or fails to make any deduction or repayment in accordance with any regulation made pursuant to section 986 (1)(g), that person shall be liable to a penalty of £1,200.
(2) Where the person mentioned in subsection (1) is a body of persons, the secretary of the body shall be liable to a separate penalty of £750.
(3) All penalties for failure to comply with any provision of regulations under this Chapter may, without prejudice to any other method of the recovery, be proceeded for and recovered summarily in the like manner as in summary proceedings for the recovery of any fine or penalty under any Act relating to the excise.
(4) In proceedings for recovery of a penalty under this section—
(a) a certificate signed by an officer of the Revenue Commissioners which certifies that he or she has inspected the relevant records of the Revenue Commissioners and that it appears from them that during a stated period—
(i) a stated return, statement, notification or certificate was not received from the defendant,
(ii) stated wages sheets or other records or documents were not produced by the defendant,
(iii) the defendant did not remit stated tax to the Collector-General, or
(iv) the defendant did not make a stated deduction or repayment of tax,
shall be evidence until the contrary is proved that the defendant did not during that period send that return, statement, notification or certificate or did not produce those wages sheets or other records or documents or did not remit that tax to the Collector-General or did not make that deduction or repayment of tax;
(b) a certificate signed by an officer of the Revenue Commissioners which certifies that he or she has inspected the relevant records of the Revenue Commissioners and that it appears from them that a stated return or other document was duly sent to the defendant on a stated day shall be evidence until the contrary is proved that that person received that return or other document in the ordinary course;
(c) a certificate signed by an officer of the Revenue Commissioners which certifies that he or she has inspected the relevant records of the Revenue Commissioners and that it appears from them that during a stated period the defendant was an employer or a person whose name and address were registered in the register kept and maintained under regulation 8(4) of the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), shall be evidence until the contrary is proved that the defendant was during that period an employer or, as the case may be, a person whose name and address were so registered;
(d) a certificate certifying as provided for in paragraph (a), (b) or (c) and purporting to be signed by an officer of the Revenue Commissioners may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by an officer of the Revenue Commissioners.
num: 988
paragraphs: —(1) Where the Revenue Commissioners have reason to believe that a person is liable to send them a notification under regulation 8 of the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), and has not done so, they may register that person's name and address in the register kept and maintained under paragraph (4) of that regulation (in this section referred to as “the register”) and serve a notice on that person stating that that person has been so registered.
(2) Where a notice is served under subsection (1) on a person, the following provisions shall apply:
(a) if the person claims to be not liable to send the notification referred to in subsection (1), the person may, by giving notice in writing to the Revenue Commissioners within the period of 14 days from the service of the notice under subsection (1), require the claim to be referred to the Appeal Commissioners and their decision on the claim shall be final and conclusive;
(b) if no such claim is, within the time specified in paragraph (a), required to be referred, or if such claim is required to be referred and there is a determination by the Appeal Commissioners against the appellant, the appellant shall be regarded for the purposes of the Regulations referred to in subsection (1) as an employer who had sent a notification under paragraph (1) of regulation 8 of those Regulations;
(c) if a claim is required to be referred and there is a determination by the Appeal Commissioners in favour of the appellant, the Revenue Commissioners shall on that determination delete the appellant's name and address from the register.
(3) (a) Where a person whose name and address is registered in the register is not liable, under regulation 31 of the Regulations referred to in subsection (1), to remit to the Collector-General any amount of tax for an income tax month, such person shall, within the period of 9 days from the end of that month, make a declaration to that effect in a form prescribed by the Revenue Commissioners and shall send that form to the Collector-General.
(b) Where a person whose name and address is registered in the register ceases to pay emoluments to which this Chapter applies, such person shall, within the period of 14 days from the date on which such person ceased to pay such emoluments, notify the Revenue Commissioners to that effect.
(4) Section 987 shall apply to a non-compliance with subsection (3) as it applies to a non-compliance with regulations under this Chapter.
num: 989
paragraphs: —(1) In this section and in sections 990 and 991 , “the regulations” means any regulations under section 986 .
(2) Where the Revenue Commissioners have reason to believe that a person was liable under the regulations to remit income tax in relation to any income tax month, and the person has not remitted any income tax in relation to that income tax month, they may—
(a) estimate the amount of tax which should have been remitted by the person within the period specified in the regulations for the payment of such tax, and
(b) serve notice on the person of the amount so estimated.
(3) Where a notice is served under subsection (2) on a person, the following provisions shall apply:
(a) the person, if claiming to be not liable to remit any tax for the income tax month to which the notice relates, may by giving notice in writing to the Revenue Commissioners within the period of 14 days from the service of the notice require the claim to be referred for decision to the Appeal Commissioners and their decision shall be final and conclusive;
(b) on the expiration of that period, if no such claim is required to be so referred or, if such claim is required to be referred, on final determination by the Appeal Commissioners against the claim, the estimated tax specified in the notice shall be recoverable in the like manner and by the like proceedings as if—
(i) the person were an employer, and
(ii) the amount specified in the notice were the amount of tax which the person was liable under the regulations to deduct from emoluments paid by the person during the income tax month specified in the notice reduced by any amounts which the person was liable under the regulations to repay during the income tax month;
(c) if at any time after the service of the notice the person furnishes a declaration of the amount which the person is liable under the regulations to remit in respect of the income tax month specified in the notice and pays the tax in accordance with the declaration together with any interest and costs which may have been incurred in connection with the default, the notice shall, subject to paragraph (d), stand discharged and any excess of tax which may have been paid shall be repaid;
(d) where action for the recovery of tax specified in a notice under subsection (2) has been taken, being action by means of the institution of proceedings in any court or the issue of a certificate under section 962 , paragraph (c) shall not, unless the Revenue Commissioners otherwise direct, apply in relation to that notice until that action has been completed.
(4) A notice given by the Revenue Commissioners under subsection (2) may extend to 2 or more consecutive income tax months.
(5) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this section to be performed or discharged by the Revenue Commissioners.
num: 990
paragraphs: —(1) Where the inspector or such other officer as the Revenue Commissioners may nominate to exercise the powers conferred by this section (in this section referred to as “other officer”) has reason to believe that the total amount of tax which an employer was liable under the regulations to remit in respect of the respective income tax months comprised in any year of assessment was greater than the amount of tax (if any) paid by the employer in respect of those months, then, without prejudice to any other action which may be taken, the inspector or other officer—
(a) may make an estimate in one sum of the total amount of tax which in his or her opinion should have been paid in respect of the income tax months comprised in that year, and
(b) may serve notice on the employer specifying—
(i) the total amount of tax so estimated,
(ii) the total amount of tax (if any) remitted by the employer in relation to the income tax months comprised in that year, and
(iii) the balance of tax remaining unpaid.
(2) Where a notice is served on an employer under subsection (1)—
(a) the employer may, if claiming that the total amount of tax or the balance of tax remaining unpaid is excessive, on giving notice in writing to the inspector or other officer within the period of 30 days from the service of the notice, appeal to the Appeal Commissioners;
num: 991
paragraphs: —(1) Where any amount of tax which an employer is liable under this Chapter and any regulations under this Chapter to pay to the Revenue Commissioners is not so paid, simple interest on the amount shall be paid by the employer to the Revenue Commissioners, and such interest shall be calculated from the expiration of the period specified in the regulations for the payment of the amount and at the rate of 1.25 per cent for each month or part of a month during which the amount remains unpaid; but, if the amount of the interest as so calculated is less than £5, the amount of interest payable shall be £5.
(2) This section shall apply—
(a) to tax recoverable by virtue of a notice under section 989 as if the tax were tax which the person was liable under the regulations to pay for the respective income tax month or months referred to in the notice, and
(b) to tax recoverable by virtue of a notice under section 990 as if the tax were tax which the person was liable under the regulations to remit for the last income tax month of the year of assessment to which the notice relates.
num: 992
paragraphs: —The provisions of the Income Tax Acts relating to appeals shall apply with any necessary modifications to claims and appeals under sections 989 (3) and 990(2) as if those claims or appeals were appeals against assessments to income tax but, in relation to claims under section 989 (3), only in so far as those provisions apply to appeals to the Appeal Commissioners.
num: 993
paragraphs: —(1) (a) The provisions of any enactment relating to the recovery of income tax charged under Schedule E shall apply to the recovery of any amount of tax which an employer is liable under this Chapter and any regulations under this Chapter to pay to the Revenue Commissioners by reference to any income tax month as if that amount had been charged on the employer under Schedule E.
(b) In particular and without prejudice to the generality of paragraph (a), this subsection applies sections 962 , 963 , 966 and 998 .
(c) Provisions as applied by this subsection shall so apply subject to any modifications specified by regulations under section 986 .
(2) Proceedings may be brought for the recovery of the total amount which the employer is liable under this Chapter and any regulations under this Chapter to pay to the Revenue Commissioners by reference to any income tax month without distinguishing the amounts which the employer is liable to pay by reference to each employee and without specifying the employees in question, and for the purposes of the proceedings that total amount shall be one single cause of action or one matter of complaint; but nothing in this subsection shall prevent the bringing of separate proceedings for the recovery of each of the several amounts which the employer is so liable to pay by reference to any income tax month and to the employer's several employees.
(3) In proceedings instituted by virtue of this section for the recovery of any amount of tax—
(a) a certificate signed by an officer of the Revenue Commissioners which certifies that a stated amount of tax is due and payable by the defendant shall be evidence until the contrary is proved that that amount is so due and payable, and
(b) a certificate so certifying and purporting to be signed by an officer of the Revenue Commissioners may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by an officer of the Revenue Commissioners.
(4) Any reference in this section to an amount of tax shall include a reference to interest payable in the case in question under section 991 .
(5) This section shall apply to the recovery of—
(a) any amount of tax estimated under section 989 , and
(b) any amount of tax estimated under section 990 or any balance of tax so estimated but remaining unpaid,
as if the amount so estimated or the balance of tax so estimated but remaining unpaid were an amount of tax which any person paying emoluments was liable under this Chapter and any regulations under this Chapter to pay to the Revenue Commissioners.
num: 994
paragraphs: —(1) In this section, “employer's liability for the period of 12 months” means all sums which an employer was liable under this Chapter and any regulations under this Chapter to deduct from emoluments to which this Chapter applies paid by the employer during the period of 12 months mentioned in subsection (2), reduced by any amounts which the employer was liable under this Chapter and any regulations under this Chapter to repay during the same period, and subject to the addition of interest payable under section 991 .
(2) There shall be included among the debts which under section 81 of the Bankruptcy Act, 1988 , are to be paid in priority to all other debts in the distribution of the property of a bankrupt, arranging debtor or person dying insolvent so much as is unpaid of the employer's liability for the period of 12 months before the date on which the order of adjudication of the bankrupt was made, the petition of arrangement of the debtor was filed or, as the case may be, the person died insolvent.
num: 995
paragraphs: —For the purposes of subsection (2) (a) (iii) of section 285 of the Companies Act, 1963 —
(a) the amount referred to in that subsection shall be deemed to include any amount—
(i) which, apart from regulation 31A of the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 ), would otherwise have been an amount due at the relevant date in respect of sums which an employer is liable under this Chapter and any regulation under this Chapter (other than regulation 31A of those Regulations) to deduct from emoluments, to which this Chapter applies, paid by the employer during the period of 12 months next before the relevant date,
(ii) reduced by any amount which the employer was liable under this Chapter and any regulation under this Chapter to repay during that period, and
(iii) with the addition of any interest payable under section 991 ,
and
(b) the relevant date shall, notwithstanding subsection (1) of section 285 of the Companies Act, 1963 , be deemed to be the date which is the ninth day after the end of the income tax month in which the relevant date (within the meaning of that subsection) occurred.
num: 996
paragraphs: —(1) In this section—
“accounting period”, in relation to a trade or profession, means a period of 12 months ending on the date up to which the accounts of the trade or profession are usually made up and, where accounts of the trade or profession have not been made up, such period not exceeding 12 months as the Revenue Commissioners may determine;
“date of cessation”, in relation to an office or employment, means the date on which a person ceases to hold the office or employment;
“date of commencement”, in relation to an office or employment, means the date on which a person commences to hold the office or employment;
“period of account”, in relation to a trade or profession, means any period, other than an accounting period, for which the accounts of the trade or profession have been made up;
“period of accrual”, in relation to remuneration in respect of an office or employment in a trade or profession, means the period beginning on the later of—
(a) the first day of an accounting period, or period of account, of the trade or profession, or
(b) the date of commencement of the office or employment
and ending on the earlier of—
(i) the last day of an accounting period, or period of account, or
(ii) the date of cessation of the office or employment;
“relevant date” means—
(a) in relation to an accounting period, the last day of the period, and
(b) in relation to a period of account—
(i) where the period of account is less than 12 months, the last day of the period, and
(ii) where the period of account is more than 12 months, each 5th day of April within the period and the last day of the period;
“remuneration” includes all salaries, fees, wages, perquisites or profits whatever from an office or employment.
num: 997
paragraphs: —(1) No assessment under Schedule E for any year of assessment need be made in respect of emoluments to which this Chapter applies except where—
(a) the person assessable, by notice in writing given to the inspector within 5 years from the end of the year of assessment, requires an assessment to be made,
(b) the emoluments paid in the year of assessment are not the same in amount as the emoluments which are to be treated as the emoluments for that year, or
(c) there is reason to suppose that the emoluments would, if assessed, be taken into account in computing the total income of a person who is liable to tax at the higher rate or would be so liable if an assessment were made in respect of the emoluments;
but where any such assessment is made credit shall be given for the amount of any tax deducted or estimated to be deductible from the emoluments.
(2) Where an employer pays to the Revenue Commissioners any amount of tax which, pursuant to this Chapter and any regulations under this Chapter, the employer has deducted from emoluments, the employer shall be acquitted and discharged of the sum represented by the payment as if the employer had actually paid that sum to the employee.
num: 998
paragraphs: —(1) Every sum due in respect of income tax, corporation tax and capital gains tax and every fine, penalty or forfeiture incurred in connection with any of those taxes shall be deemed to be a debt due to the Minister for Finance for the benefit of the Central Fund, and shall be payable to the Revenue Commissioners and may (without prejudice to any other mode of recovery of such sum, fine, penalty or forfeiture) be sued for and recovered by action, or other appropriate proceedings, at the suit of the Attorney General in any court of competent jurisdiction.
(2) Moneys so due or payable to or for the benefit of the Central Fund shall have attached to them all such rights, privileges and priorities as have heretofore attached to such moneys, but this subsection shall not operate to make such moneys payable in priority to other debts.
num: 999
paragraphs: —(1) The Collector-General may sue out a debtor's summons and present a petition in bankruptcy in his or her own name in respect of taxes or duties due to the Minister for Finance for the benefit of the Central Fund, being taxes or duties which the Collector-General is empowered to collect and levy.
(2) Subject to this section, the rules of court for the time being applicable and the enactments relating to bankruptcy shall apply to proceedings taken by the Collector-General by virtue of this section.
num: 1000
paragraphs: —For the purposes of section 285 of the Companies Act, 1963 , and of section 994 , the sums referred to in section 285 (2) (a) (iii) of the Companies Act, 1963 , and in section 994 (1) shall be deemed to include—
(a) amounts of tax deducted under section 531 (1) and amounts of tax recoverable under regulation 12 of the Income Tax (Construction Contracts) Regulations, 1971 ( S.I. No. 1 of 1971 ),
(b) amounts of tax recoverable under section 989 , and
(c) amounts of tax recoverable under section 990 ,
which relate to a period or periods falling in whole or in part within the period of 12 months referred to in section 285 (2) (a) (iii) of the Companies Act, 1963 , or in section 994 (1), as may be appropriate, and in the case of any such amount for a period falling partly within and partly outside whichever of those periods of 12 months is appropriate, it shall be lawful to apportion the total sum or amount according to the respective lengths of the periods falling within the period of 12 months and outside the period of 12 months in order to determine the amount of tax which relates to the period of 12 months.
num: 1001
paragraphs: —(1) In this section, “relevant amount” means any amount which the company is liable to remit under—
(a) Chapter 4 of this Part, and
(b) the Value-Added Tax Act, 1972.
(2) Subject to this section, where a person holds a fixed charge (being a fixed charge created on or after the 27th day of May, 1986) on the book debts of a company (within the meaning of the Companies Act, 1963 ), such person shall, if the company fails to pay any relevant amount for which it is liable, become liable to pay such relevant amount on due demand, and on neglect or refusal of payment may be proceeded against in the like manner as any other defaulter.
(3) This section shall not apply—
(a) unless the holder of the fixed charge has been notified in writing by the Revenue Commissioners that a company has failed to pay a relevant amount for which it is liable and that by virtue of this section the holder of the fixed charge—
(i) may become liable for payment of any relevant amount which the company subsequently fails to pay, and
(ii) where paragraph (c) does not apply, has become liable for the payment of the relevant amount which the company has failed to pay,
(b) to any amounts received by the holder of the fixed charge from the company before the date on which the holder is notified in writing by the Revenue Commissioners in accordance with paragraph (a), and
(c) where, within the period from the 2nd day of June, 1995, to the 22nd day of June, 1995, or within 21 days of the creation of the fixed charge, whichever is the later, the holder of the fixed charge furnishes to the Revenue Commissioners a copy of the prescribed particulars of the charge delivered or to be delivered to the registrar of companies in accordance with section 99 of the Companies Act, 1963 , to any relevant amount which the company was liable to pay before the date on which the holder is notified in writing by the Revenue Commissioners in accordance with paragraph (a).
(4) The amount or aggregate amount which a person shall be liable to pay in relation to a company in accordance with this section shall not exceed the amount or aggregate amount which the person has, while the fixed charge on book debts in relation to the company is in existence, received directly or indirectly from that company in payment or in part payment of any debts due by the company to the person.
(5) The Revenue Commissioners may, at any time and by notice in writing given to the holder of the fixed charge, withdraw with effect from a date specified in the notice a notification issued by them in accordance with subsection (3); but such withdrawal shall not—
(a) affect in any way any liability of the holder of the fixed charge under this section which arose before such withdrawal, or
(b) preclude the issue under subsection (3) of a subsequent notice to the holder of the fixed charge.
(6) The Revenue Commissioners may nominate any of their officers to perform any acts and discharge any functions authorised by this section to be performed or discharged by the Revenue Commissioners.
num: 1002
paragraphs: —(1) (a) In this section, except where the context otherwise requires—
“the Acts” means—
(i) the Customs Acts,
(ii) the statutes relating to the duties of excise and to the management of those duties,
(iii) the Tax Acts,
(iv) the Capital Gains Tax Acts,
(v) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(vi) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act, and
(vii) the Stamp Act, 1891, and the enactments amending or extending that Act,
and any instruments made thereunder;
“additional debt”, in relation to a relevant person who has received a notice of attachment in respect of a taxpayer, means any amount which, at any time after the time of the receipt by the relevant person of the notice of attachment but before the end of the relevant period in relation to the notice, would be a debt due by the relevant person to the taxpayer if a notice of attachment were received by the relevant person at that time;
“debt”, in relation to a notice of attachment given to a relevant person in respect of a taxpayer and in relation to that relevant person and taxpayer, means, subject to paragraphs (b) to (e), the amount or aggregate amount of any money which, at the time the notice of attachment is received by the relevant person, is due by the relevant person (whether on that person's own account or as an agent or trustee) to the taxpayer, irrespective of whether the taxpayer has applied for the payment (to the taxpayer or any other person) or for the withdrawal of all or part of the money;
“deposit” means a sum of money paid to a financial institution on terms under which it will be repaid with or without interest and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the financial institution to which it is made;
num: 1003
paragraphs: —(1) (a) In this section—
“the Acts” means—
(i) the Tax Acts (other than Chapter 8 of Part 6 , Chapter 2 of Part 18 and Chapter 4 of this Part),
(ii) the Capital Gains Tax Acts, and
(iii) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
and any instruments made thereunder;
“approved body” means—
(i) the National Archives,
(ii) the National Gallery of Ireland,
(iii) the National Library of Ireland,
(iv) the National Museum of Ireland,
(v) the Irish Museum of Modern Art, or
(vi) in relation to the offer of a gift of a particular item or collection of items, any other such body (being a body owned, or funded wholly or mainly, by the State or by any public or local authority) as may be approved, with the consent of the Minister for Finance, by the Minister for Arts, Heritage, Gaeltacht and the Islands for the purposes of this section;
“arrears of tax” means tax due and payable in accordance with any provision of the Acts (including any interest and penalties payable under any provision of the Acts in relation to such tax)—
(i) in the case of income tax, corporation tax or capital gains tax, in respect of the relevant period, or
(ii) in the case of gift tax or inheritance tax, before the commencement of the calendar year in which the relevant gift is made,
which has not been paid at the time a relevant gift is made;
“current liability” means—
(i) in the case of income tax or capital gains tax, any liability to such tax arising in the year of assessment in which the relevant gift is made,
(ii) in the case of corporation tax, any liability to such tax arising in the accounting period in which the relevant gift is made,
(iii) in the case of gift tax or inheritance tax, any liability to such tax which becomes due and payable in the calendar year in which the relevant gift is made;
“designated officer” means—
(i) the member of the selection committee who represents the appropriate approved body on that committee where the approved body is so represented, or
(ii) in any other case, a person nominated in that behalf by the Minister for Arts, Heritage, Gaeltacht and the Islands;
“heritage item” has the meaning assigned to it by subsection (2) (a);
“market value” has the meaning assigned to it by subsection (3);
“relevant gift” means a gift of a heritage item to an approved body in respect of which no consideration whatever (other than relief under this section) is received by the person making the gift, either directly or indirectly, from the approved body or otherwise;
“relevant period” means—
(i) in the case of income tax and capital gains tax, any year of assessment preceding the year in which the relevant gift is made, and
(ii) in the case of corporation tax, any accounting period preceding the accounting period in which the relevant gift is made;
“selection committee” means a committee consisting of—
(i) the Chairperson of the Heritage Council,
(ii) the Director of the Arts Council,
(iii) the Director of the National Archives,
(iv) the Director of the National Gallery of Ireland,
(v) the Director of the National Library of Ireland,
(vi) the Director of the National Museum of Ireland, and
(vii) the Director of the Irish Museum of Modern Art,
and includes any person duly acting in the capacity of any of those persons as a result of the person concerned being unable to fulfil his or her duties for any of the reasons set out in paragraph (b) (ii);
“tax” means income tax, corporation tax, capital gains tax, gift tax or inheritance tax, as the case may be, payable in accordance with any provision of the Acts;
“valuation date” means the date on which an application is made to the selection committee for a determination under subsection (2) (a).
(b) (i) The selection committee may act notwithstanding one or more vacancies among its members and may regulate its own procedure.
(ii) If and so long as a member of the selection committee is unable through illness, absence or other cause to fulfil his or her duties, a person nominated in that behalf by the member shall act as the member of the committee in the place of the member.
(2) (a) In this section, “heritage item” means any kind of cultural item, including—
(i) any archaeological item, archive, book, estate record, manuscript and painting, and
(ii) any collection of cultural items and any collection of such items in their setting,
which, on application to the selection committee in writing in that behalf by a person who owns the item or collection of items, as the case may be, is determined by the selection committee, after consideration of any evidence in relation to the matter which the person submits to the committee and after such consultation (if any) as may seem to the committee to be necessary with such person or body of persons as in the opinion of the committee may be of assistance to them, to be an item or collection of items which is—
(I) an outstanding example of the type of item involved, pre-eminent in its class, whose export from the State would constitute a diminution of the accumulated cultural heritage of Ireland, and
(II) suitable for acquisition by an approved body.
(b) On receipt of an application for a determination under paragraph (a), the selection committee shall request the Revenue Commissioners in writing to value the item or collection of items, as the case may be, in accordance with subsection (3).
(c) The selection committee shall not make a determination under paragraph (a) where the market value of the item or collection of items, as the case may be, as determined by the Revenue Commissioners in accordance with subsection (3), at the valuation date—
(i) is less than £75,000, or
(ii) exceeds an amount (which shall not be less than £75,000) determined by the formula—
£750,000 − M
where M is an amount (which may be nil) equal to the market value at the valuation date of the heritage item (if any) or the aggregate of the market values at the respective valuation dates of all the heritage items (if any), as the case may be, in respect of which a determination or determinations, as the case may be, under this subsection has been made by the selection committee in any one calendar year and not revoked in that year.
(d) (i) An item or collection of items shall cease to be a heritage item for the purposes of this section if—
(I) the item or collection of items is sold or otherwise disposed of to a person other than an approved body,
(II) the owner of the item or collection of items notifies the selection committee in writing that it is not intended to make a gift of the item or collection of items to an approved body, or
(III) the gift of the item or collection of items is not made to an approved body within the calendar year following the year in which the determination is made under paragraph (a).
(ii) Where the selection committee becomes aware, at any time within the calendar year in which a determination under paragraph (a) is made in respect of an item or collection of items, that clause (I) or (II) of subparagraph (i) applies to the item or collection of items, the selection committee may revoke its determination with effect from that time.
(3) (a) For the purposes of this section, the market value of any item or collection of items (in this subsection referred to as “the property”) shall be estimated to be the price which in the opinion of the Revenue Commissioners the property would fetch if sold in the open market on the valuation date in such manner and subject to such conditions as might reasonably be calculated to obtain for the vendor the best price for the property.
(b) The market value of the property shall be ascertained by the Revenue Commissioners in such manner and by such means as they think fit, and they may authorise a person to inspect the property and report to them the value of the property for the purposes of this section, and the person having custody or possession of the property shall permit the person so authorised to inspect the property at such reasonable times as the Revenue Commissioners consider necessary.
(c) Where the Revenue Commissioners require a valuation to be made by a person authorised by them, the cost of such valuation shall be defrayed by the Revenue Commissioners.
(4) Where a relevant gift is made to an approved body—
(a) the designated officer of that body shall give a certificate to the person who made the relevant gift, in such form as the Revenue Commissioners may prescribe, certifying the receipt of that gift and the transfer of the ownership of the heritage item the subject of that gift to the approved body, and
(b) the designated officer shall transmit a duplicate of the certificate to the Revenue Commissioners.
(5) Subject to this section, where a person has made a relevant gift the person shall, on submission to the Revenue Commissioners of the certificate given to the person in accordance with subsection (4), be treated as having made on the date of such submission a payment on account of tax of an amount equal to the market value of the relevant gift on the valuation date.
(6) A payment on account of tax which is treated as having been made in accordance with subsection (5) shall be set in so far as possible against any liability to tax of the person who is treated as having made such a payment in the following order—
(a) firstly, against any arrears of tax due for payment by that person and against an arrear of tax for an earlier period in priority to a later period, and for this purpose the date on which an arrear of tax became due for payment shall determine whether it is for an earlier or later period, and
(b) only then, against any current liability of the person which the person nominates for that purpose,
and such set-off shall accordingly discharge a corresponding amount of that liability.
(7) To the extent that a payment on account of tax has not been set off in accordance with subsection (6), the balance remaining shall be set off against any future liability to tax of the person who is treated as having made the payment which that person nominates for that purpose.
(8) Where a person has power to sell any heritage item in order to raise money for the payment of gift tax or inheritance tax, such person shall have power to make a relevant gift of that heritage item in or towards satisfaction of that tax and, except as regards the nature of the consideration and its receipt and application, any such relevant gift shall be subject to the same provisions and shall be treated for all purposes as a sale made in exercise of that power, and any conveyances or transfers made or purporting to be made to give effect to such a relevant gift shall apply accordingly.
(9) A person shall not be entitled to any refund of tax in respect of any payment on account of tax made in accordance with this section.
(10) Interest shall not be payable in respect of any overpayment of tax for any period which arises directly or indirectly by reason of the set-off against any liability for that period of a payment on account of tax made in accordance with this section.
(11) Where a person makes a relevant gift and in respect of that gift is treated as having made a payment on account of tax, the person concerned shall not be allowed relief under any other provision of the Acts in respect of that gift.
(12) (a) The Revenue Commissioners shall as respects each year compile a list of the titles (if any), descriptions and values of the heritage items (if any) in respect of which relief under this section has been given.
(b) Notwithstanding any obligation as to secrecy imposed on them by the Acts or the Official Secrets Act, 1963 , the Revenue Commissioners shall include in their annual report to the Minister for Finance the list (if any) referred to in paragraph (a) for the year in respect of which the report is made.
num: 1004
paragraphs: —(1) In this section, “particular income” means income arising outside the State, the amount of which is or is included in the amount (in this section referred to as “the relevant amount”) on which in accordance with the Tax Acts income tax or corporation tax is computed.
(2) Subject to subsections (3) to (5), this section shall apply where income tax or corporation tax is charged by an assessment for any period and the tax has not been paid.
(3) In any case in which, on or after the date on which the income tax or corporation tax has become payable, such proof is given to the Revenue Commissioners as satisfies them that particular income cannot, by reason of legislation in the country in which it arises or of executive action of the government of that country, be remitted to the State, the Revenue Commissioners may for the purposes of collection treat the assessment as if the relevant amount did not include the particular income, but such treatment shall terminate on the Revenue Commissioners ceasing to be so satisfied.
(4) The Revenue Commissioners may for the purposes of this section call for such information as they consider necessary.
(5) Any person who is dissatisfied with a decision of the Revenue Commissioners under subsection (3) may, by giving notice in writing to the Revenue Commissioners within 21 days after the notification of the decision to that person, apply to have the matter referred to the Appeal Commissioners as if it were an appeal against an assessment, and the provisions of the Tax Acts 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.
num: 1005
paragraphs: —(1) In this section, “particular gains” means chargeable gains accruing from the disposal of assets situated outside the State, the amount of which is or is included in the amount (in this section referred to as “the relevant amount”) on which in accordance with the Capital Gains Tax Acts the tax is computed.
(2) Subject to subsections (3) to (5), this section shall apply where capital gains tax has been charged by an assessment for the year in which the particular gains accrued and the tax has not been paid.
(3) In any case in which, on or after the date on which the capital gains tax has become payable, such proof is given to the Revenue Commissioners as satisfies them that particular gains cannot, by reason of legislation in the country in which they have accrued or of executive action of the government of that country, be remitted to the State, the Revenue Commissioners may for the purposes of collection treat the assessment as if the relevant amount did not include the particular gains, but such treatment shall terminate on the Revenue Commissioners ceasing to be so satisfied.
(4) The Revenue Commissioners may for the purposes of this section call for such information as they consider necessary.
(5) Any person who is dissatisfied with a decision of the Revenue Commissioners under subsection (3) may, by giving notice in writing to the Revenue Commissioners within 21 days after the notification of the decision to that person, apply to have the matter referred to the Appeal Commissioners as if it were an appeal against an assessment, and the provisions of the Income Tax Acts 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.
num: 1006
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts,
(c) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(d) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act, and
(e) Part VI of the Finance Act, 1983 , and the enactments amending or extending that Part,
and any instruments made thereunder;
“certificate” means a certificate issued under section 962 ;
“county registrar” means a person appointed to be a county registrar under section 35 of the Court Officers Act, 1926 ;
“defaulter” means a person specified or certified in an execution order or certificate on whom a relevant amount specified or certified in the order or certificate is leviable;
“execution order” has the same meaning as in the Enforcement of Court Orders Act, 1926;
“fees” means the fees known as poundage fees payable under section 14 (1) of the Enforcement of Court Orders Act, 1926 , and orders made under that section for services in or about the execution of an execution order directing or authorising the execution of an order of a court by the seizure and sale of a person's property or, as may be appropriate, the fees corresponding to those fees payable under section 962 for the execution of a certificate;
“interest on unpaid tax” means interest which has accrued under any provision of the Acts providing for the charging of interest in respect of unpaid tax, including interest on an undercharge of tax which is attributable to fraud or neglect;
“relevant amount” means an amount of tax or interest on unpaid tax;
“tax” means any tax, duty, levy or charge which, in accordance with any provision of the Acts, is placed under the care and management of the Revenue Commissioners;
references, as respects an execution order, to a relevant amount include references to any amount of costs specified in the order.
(2) Where—
(a) an execution order or certificate specifying or certifying a defaulter and relating to a relevant amount is lodged with the appropriate sheriff or county registrar for execution,
(b) the sheriff or, as the case may be, the county registrar gives notice to the defaulter of the lodgment or of his or her intention to execute the execution order or certificate by seizure of the property of the defaulter to which it relates, or demands payment by the defaulter of the relevant amount, and
(c) the whole or part of the relevant amount is paid to the sheriff or, as the case may be, the county registrar or to the Collector-General, after the giving of that notice or the making of that demand,
then, for the purpose of the liability of the defaulter for the payment of fees and of the exercise of any rights or powers in relation to the collection of fees for the time being vested by law in sheriffs and county registrars—
(i) the sheriff or, as the case may be, the county registrar shall be deemed to have entered, in the execution of the execution order or certificate, into possession of the property referred to in paragraph (b), and
(ii) the payment mentioned in paragraph (c) shall be deemed to have been levied, in the execution of the execution order or certificate, by the sheriff or, as the case may be, the county registrar,
and fees shall be payable by the defaulter to such sheriff or, as the case may be, country registrar accordingly in respect of the payment mentioned in paragraph (c).
num: 1007
paragraphs: —(1) In this Part—
“annual payment” means any payment from which, apart from any insufficiency of profits or gains of the persons making it, income tax is deductible under section 237 ;
“balancing charge” means a balancing charge under Part 9 or Chapter 1 of Part 29 , as the case may be;
num: 1008
paragraphs: —(1) In the case of a partnership trade, the Income Tax Acts shall, subject to this Part, apply in relation to any partner in the partnership as if for any relevant period—
(a) any profits or gains arising to that partner from the trade and any loss sustained by that partner in the trade were respectively profits or gains of, and loss sustained in, a trade (in this Part referred to as a “several trade”) carried on solely by that partner, being a trade—
(i) set up or commenced at the beginning of the relevant period, or if that partner commenced to be engaged in carrying on the partnership trade at some time in the relevant period other than the beginning of that period, at the time when that partner so commenced, and
(ii) when that partner ceases to be engaged in carrying on the partnership trade either during the relevant period or at the end of that period, permanently discontinued at the time when that partner so ceases, and
(b) that partner had paid the part that partner was liable to bear of any annual payment paid by the partnership.
(2) (a) For any year or period within the relevant period the amount of the profits or gains arising to any partner from that partner's several trade, or the amount of loss sustained by that partner in that trade, shall for the purposes of subsection (1) be taken to be so much of the full amount of the profits or gains of the partnership trade or, as the case may be, of the full amount of the loss sustained in the partnership trade as would fall to that partner's share on an apportionment of those profits or gains or, as the case may be, of that loss made in accordance with the terms of the partnership agreement as to the sharing of profits and losses.
(b) Where the year or period (in this paragraph referred to as “the period of computation”) for which the profits or gains of, or the loss sustained in, the several trade of a partner is to be computed under this subsection is or is part of a year or period for which an account of the partnership trade has been made up, sections 65 and 107 shall apply in relation to the partner as if an account of that partner's several trade had been made up for the period of computation.
(3) (a) For the purposes of subsection (2) and subject to paragraph (b), the full amount of the profits or gains of the partnership trade for any year or period, or the full amount of the loss sustained in such trade in any year or period, shall, subject to section 1012 , be determined by the inspector, and any such determination shall be made as it would have been made if the trade—
(i) had been set up or commenced at the beginning of the relevant period,
(ii) where the relevant period has come to an end, had been permanently discontinued at the end of that period, and
(iii) had at all times within the relevant period been carried on by one and the same person and everything done in the carrying on of the trade to or by the persons by whom it was in fact carried on had been done to or by that person.
(b) In a case in which the relevant period began at some time before the 6th day of April, 1965, and the trade was not treated for the purposes of income tax as having been set up or commenced at that time—
(i) the relevant period shall for the purposes of this subsection be deemed to have begun at the time at which the trade was treated for the purposes of income tax as having been set up or commenced, and
(ii) any profits or gains arising to any person from the trade, or any loss sustained by that person in the trade, for any year or period within the relevant period during which that person was engaged in the trade on that person's own account shall be deemed to be profits or gains arising to that person from, or, as the case may be, a loss sustained by that person in, a partnership trade in which that person was entitled during the year or period in question to the full amount of the profits or gains arising or was liable to bear the full amount of the loss.
num: 1009
paragraphs: —(1) In this section, profits shall not be taken as including chargeable gains.
(2) Subject to this section, subsections (1),(2) (a) and (3) of section 1008 shall apply for the purposes of corporation tax as they apply for the purposes of income tax.
(3) Where the whole or part of an accounting period of a company is or is part of a period for which an account of a partnership trade has been made up, any necessary apportionment shall be made in computing the profits from or loss sustained in the company's several trade for the accounting period of the company.
(4) (a) In this subsection, “the relevant amount” means—
(i) where the year of assessment and the accounting period coincide, the whole amount of the appropriate share of the joint allowance or, as the case may be, the whole amount of the appropriate share of the joint charge, and
(ii) where part only of the year of assessment is within the accounting period, such portion of the appropriate share of the joint allowance or, as the case may be, such portion of the appropriate share of the joint charge as is apportioned to that part of the year of assessment which falls within the accounting period.
(b) Where a capital allowance equal to an appropriate share of a joint allowance would be made, if section 21 (2) had not been enacted, in charging to income tax the profits of a company's several trade for any year of assessment, the relevant amount shall for corporation tax purposes be treated as a trading expense of the company's several trade for any accounting period of the company any part of which falls within that year of assessment.
(c) Where a balancing charge equal to an appropriate share of a joint charge would be made, if section 21 (2) had not been enacted, in charging to income tax the profits of a company's several trade for any year of assessment, the relevant amount shall for corporation tax purposes be treated as a trading receipt of the company's several trade for any accounting period of the company any part of which falls within that year of assessment.
(d) Notwithstanding section 1010 (8), any reference in this subsection to a joint allowance for a year of assessment shall not include a reference to any capital allowance which is or could be brought forward from a previous year of assessment.
(5) Where under this section an amount is to be apportioned to—
(a) a part of an accounting period of a company,
(b) a part of a period for which an account of a partnership trade has been made up, or
(c) a part of a year of assessment,
the apportionment shall be made by reference to the number of months or fractions of months contained in that part and in the remainder of that accounting period, period or year, as the case may be.
num: 1010
paragraphs: —(1) The provisions of the Income Tax Acts relating to the making of capital allowances and balancing charges in charging the profits or gains of a trade shall, in relation to the several trade of a partner in a partnership, apply subject to this section.
(2) Where for any year of assessment a claim has been made as provided by subsection (9) by the precedent partner for the time being of any partnership, there shall be made to any partner in the partnership in charging the profits or gains of that partner's several trade a capital allowance in respect of any expenditure or property equal to that partner's appropriate share of any capital allowance for that year, excluding any amount carried forward from an earlier year, (in this section referred to as a “joint allowance”) which, apart from any insufficiency of profits or gains, might have been made in respect of that expenditure or property in charging the profits or gains of the partnership trade if the Income Tax Acts had provided that those profits should be charged by joint assessment on the persons carrying on the trade in the year of assessment as if—
(a) those persons had at all times been carrying on the trade and everything done to or by their predecessors in, or in relation to, the carrying on of the trade had been done to or by them, and
(b) the trade had been set up or commenced at the beginning of the relevant period and, where the relevant period has come to an end, had been permanently discontinued at the end of that period.
(3) There shall be made for any year of assessment on any partner in a partnership in charging the profits or gains of that partner's several trade a balancing charge equal to that partner's appropriate share of any balancing charge (in this section referred to as a “joint charge”) which would have been made for that year in charging the profits or gains of the partnership trade if the Income Tax Acts had provided that those profits should be charged as specified in subsection (2).
(4) Where at the end of the relevant period a person or a partnership of persons succeeds to a partnership trade and any property which immediately before the succession takes place was in use for the purposes of the partnership trade and, without being sold, is immediately after the succession takes place in use for the purposes of the trade carried on by the successor or successors, section 313 (1) shall apply as it applies where by virtue of section 69 a trade is to be treated as discontinued.
(5) Where for a partnership trade the relevant period began at some time before the 6th day of April, 1965, and the trade was not treated for the purposes of income tax as having been set up or commenced at that time, the relevant period shall for the purposes of subsections (2) and (3) be deemed to have begun at the time at which the trade was treated for the purposes of income tax as having been set up or commenced.
(6) (a) In relation to any partnership trade, the total amount of all joint allowances for any year of assessment and the total amount of all joint charges for that year shall, subject to section 1012 , be determined by the inspector.
(b) Where after a determination has been made under paragraph (a) the inspector becomes aware of any facts or events by reference to which the determination is in his or her opinion incorrect, the inspector may from time to time and as often as appears to him or her to be necessary make a revised determination, and any such revised determination shall supersede any earlier determination and any such additional assessments or repayments of tax shall be made as may be necessary.
(7) (a) In this subsection, “trading period” means, where the relevant period begins or ends during the year of assessment for which the joint allowance or joint charge is computed, the part of that year of assessment which falls within the relevant period or, in any other case, that year of assessment.
(b) Subject to paragraph (c), for any year of assessment the partners' appropriate shares of a joint allowance or of a joint charge shall be determined by apportioning the full amount of that allowance or charge between the partners on the same basis as a like amount of profits arising in the trading period from the partnership trade, and accruing from day to day over that period, would be apportioned in accordance with the terms of the partnership if any salary, interest on capital or other sum to which any partner was entitled without regard to the amount of the profits arising from the partnership trade had already been provided for.
(c) Where for any year of assessment all the partners (any deceased partner being represented by his or her legal representatives) allege, by notice in writing signed by them and sent to the inspector within 24 months after the end of the year of assessment, that hardship is caused to one or more partners by the apportionment of a joint allowance or joint charge on the basis set out in paragraph (b), the Revenue Commissioners may, on being satisfied that hardship has been caused, give such relief as in their opinion is just by making a new apportionment of the joint allowance or joint charge, and any such new apportionment shall for the purposes of the Income Tax Acts apply as if it were an apportionment made under paragraph (b), and such additional assessments or repayments of tax shall be made as may be necessary.
(8) (a) In this subsection, “capital allowance brought forward” means—
(i) any capital allowance or part of a capital allowance due to be made to the partnership for the year 1964-75 or any earlier year of assessment which might, if Part VIII of the Finance Act, 1965 , had not been enacted, have been carried forward and made as a deduction in charging the profits or gains of the partnership trade for the year 1965-76, and
(ii) any capital allowance or part of a capital allowance due to be made to a partner for the year 1965-76 or a later year of assessment which but for this subsection might have been carried forward and made as a deduction in charging the profits or gains of the several trade of the partner for a year of assessment subsequent to that for which the capital allowance was computed.
(b) For any year of assessment the aggregate amount of all capital allowances brought forward shall for the purposes of making the assessments on the partners be deemed to be a joint allowance for that year, and subsection (7) shall apply accordingly.
(9) In relation to a partnership trade—
(a) any claim for a joint allowance for any year of assessment shall be made by the precedent partner as if it were a claim for a capital allowance to be made to that partner and shall be included in the return delivered by that partner under section 880 in relation to that year of assessment, and
(b) any claim for a joint allowance shall be deemed to be a claim by every partner for a capital allowance to be made to such partner, being a capital allowance equal to such partner's appropriate share of that/joint allowance.
num: 1011
paragraphs: —(1) Where for any year of assessment a charge under section 757 (in this section referred to as a “joint charge”) would have been made in charging the profits or gains of a partnership trade if the Income Tax Acts had provided that those profits or gains should be charged as specified in section 1010 (2), there shall be made on any partner in the partnership in charging the profits or gains of that partner's several trade a charge under section 757 equal to that partner's appropriate share of the joint charge.
(2) A partner's appropriate share of a joint charge for the purposes of subsection (1) shall be determined in the same way as the partner's appropriate share of a joint charge within the meaning of section 1010 is to be determined by virtue of subsection (7) of that section.
num: 1012
paragraphs: —(1) The inspector may give notice to the partnership concerned of any determination made by him or her under section 1008 (3) or 1010 (6) by delivering a statement in writing of that determination to the precedent partner for the time being of the partnership, and the provisions of the Income Tax Acts relating to appeals against assessments to income tax shall, with any necessary modifications, apply in relation to any determination and any notice of a determination as if they were respectively such an assessment and notice of such an assessment.
(2) Where a determination has become final and conclusive or, in the case of a determination under subsection (6) of section 1010 has become final and conclusive subject to paragraph (b) of that subsection, no question as to its correctness shall be raised on the hearing or on the rehearing of an appeal by any partner either against an assessment in respect of the profits or gains of that partner's several trade or against a determination by the inspector on a claim under section 381 .
(3) Where on any appeal mentioned in subsection (2) any question arises as to an apportionment to be made under section 1008 (2) or 1010 (7) and it appears that the question is material as respects the liability to income tax (for whatever year of assessment) of 2 or more persons, all those persons shall be notified of the time and place of the hearing and shall be entitled to appear and be heard by the Appeal Commissioners or to make representations to them in writing.
num: 1013
paragraphs: —(1) In this section—
“the aggregate amount”, in relation to a trade, means—
(a) in the case of an individual, the aggregate of amounts given or allowed to the individual at any time under any of the specified provisions—
(i) in respect of a loss sustained by him or her in the trade, or of interest paid by him or her by reason of his or her participation in the trade, in any relevant year of assessment, or
(ii) as an allowance to be made to him or her for any relevant year of assessment either in taxing the trade or by means of discharge or repayment of tax to which he or she is entitled by reason of his or her participation in the trade,
and
(b) in the case of a company, the aggregate of amounts given or allowed to the company (in this section referred to as “the partner company”) or to another company at any time under any of the specified provisions—
(i) in respect of a loss incurred by the partner company in the trade, or of charges paid by it or another company by reason of its participation in the trade, in any relevant accounting period, or
(ii) as an allowance to be made to the partner company for any relevant accounting period either in taxing the trade or by means of discharge or repayment of tax to which it is entitled by reason of its participation in the trade;
“limited partner”, in relation to a trade, means—
(a) a person carrying on the trade as a limited partner in a limited partnership registered under the Limited Partnerships Act, 1907 ,
(b) a person carrying on the trade as a general partner in a partnership who is not entitled to take part in the management of the trade but is entitled to have the person's liabilities, or those liabilities beyond a certain limit, for debts or obligations incurred for the purposes of the trade, discharged or reimbursed by some other person, or
(c) a person who carries on the trade jointly with others and, under the law of any territory outside the State, is not entitled to take part in the management of the trade and is not liable beyond a certain limit for debts or obligations incurred for the purposes of the trade;
“relevant accounting period” means an accounting period of the partner company which ends on or after the specified date and at any time during which it carried on the trade as a limited partner;
“the relevant time” means—
(a) in the case of an individual, the end of the relevant year of assessment in which the loss is sustained or the interest is paid, or for which the allowance is to be made (except that where the individual ceased to carry on the trade during that year of assessment it is the time when he or she so ceased), and
(b) in the case of a partner company, the end of the relevant accounting period in which the loss is incurred or the charges are paid, or for which the allowance is to be made (except that where the partner company ceases to carry on the trade during that accounting period it is the time when the partner company so ceased);
“relevant year of assessment” means a year of assessment which ends after the specified date and at any time during which the individual carried on the trade as a limited partner;
“the specified date” means the 22nd day of May, 1985;
“the specified provisions” means—
(a) in the case of an individual, sections 245 to 255 , 305 and 381 , and
(b) in the case of a company, sections 243 , 308 (4) and 396 (2) and subsections (1), (2) and (6) of section 420 .
(2) (a) Where, in the case of an individual who is a limited partner in relation to a trade, an amount may apart from this section be given or allowed under any of the specified provisions—
(i) in respect of a loss sustained by the individual in the trade, or of interest paid by him or her by reason of his or her participation in the trade, in a relevant year of assessment, or
(ii) as an allowance to be made to the individual for a relevant year of assessment either in taxing the trade or by means of discharge or repayment of tax to which he or she is entitled by reason of his or her participation in the trade,
such an amount may be given or allowed—
(I) as respects a contribution by a limited partner to the trade of the limited partnership made before the 24th day of April, 1992, otherwise than against income consisting of profits or gains arising from the trade, or
(II) as respects such a contribution made on or after the 24th day of April, 1992, only against income consisting of profits or gains arising from the trade,
and only to the extent that the amount given or allowed or, as the case may be, the aggregate amount in relation to that trade does not exceed the amount of his or her contribution to the trade at the relevant time.
(b) Where, in the case of a partner company which is a limited partner in relation to a trade, an amount may apart from this section be given or allowed under any of the specified provisions—
(i) in respect of a loss sustained by the partner company in the trade, or of charges paid by the partner company or another company by reason of its participation in the trade, in a relevant accounting period, or
(ii) as an allowance to be made to the partner company for a relevant accounting period either in taxing the trade or by means of discharge or repayment of tax to which it is entitled by reason of its participation in the trade,
such an amount may be given or allowed to the partner company—
(I) as respects a contribution by a limited partner to the trade of the limited partnership made before the 24th day of April, 1992, otherwise than against profits or gains arising from the trade, or to another company, or
(II) as respects such a contribution made on or after the 24th day of April, 1992, only against profits or gains arising from the trade,
and only to the extent that the amount given or allowed or, as the case may be, the aggregate amount in relation to that trade does not exceed the partner company's contribution to the trade at the relevant time.
(3) (a) A person's contribution to a trade at any time shall be the aggregate of—
(i) the amount which the person has contributed to the trade as capital and has not subsequently, either directly or indirectly, drawn out or received back from the partnership or from a person connected with the partnership (other than anything, in relation to expenditure which the person has incurred on behalf of the partnership trade or in providing facilities for the partnership trade, which the person is or may be entitled so to draw out or receive back at any time when the person carries on the trade as a limited partner or which the person is or may be entitled to require another person to reimburse the person), and
(ii) the amount of any profits or gains of the trade to which the person is entitled but which the person has not received in money or money's worth.
(b) A person shall for the purposes of paragraph (a) be treated as having received back an amount contributed by the person to the partnership if—
(i) the person received consideration of that amount or value for the sale of the person's interest, or any part of the person's interest, in the partnership,
(ii) the partnership or any person connected with the partnership repays that amount of a loan or an advance from the person, or
(iii) the person receives that amount or value for assigning any debt due to the person from the partnership or from any person connected with the partnership.
(4) (a) This subsection shall apply, in relation to an amount given or allowed under any of the specified provisions, as respects a contribution by a partner to the trade of the partnership made on or after the 11th day of April, 1994.
(b) For the purposes of this section, where in connection with the making of a contribution to a partnership trade by a general partner in the partnership—
(i) there exists any agreement, arrangement, scheme or understanding under which the partner is required to cease to be a partner in the partnership at any time before the partner is entitled to receive back from the partnership the full amount of the partner's contribution to the trade, or
(ii) by virtue of any agreement, arrangement, scheme or understanding—
(I) any asset owned by the partner is exempt from execution on goods or from a process or mode of enforcement of a debt of the partner or the partnership, or
(II) any other limit or restriction is placed on the creditor's entitlement to recover any such debt from the partner,
the partner shall be treated as a person who is not entitled to take part in the management of the trade but is entitled to have the person's liabilities, or the person's liabilities beyond a certain limit, for debts or obligations incurred for the purposes of the trade, discharged or reimbursed by some other person.
(c) In determining whether an amount is given or allowed under any of the specified provisions as respects a contribution to a trade on or after the 11th day of April, 1994, any amount which would not otherwise have been given or allowed by virtue of this section but for a contribution to a trade on or after that date and on the basis that paragraph (a) had not been enacted shall be treated as given or allowed as respects such a contribution.
(5) (a) In determining whether an amount is given or allowed under any of the specified provisions as respects a contribution to a trade on or after the 24th day of April, 1992, any amount which would not otherwise have been given or allowed by virtue of this section but for a contribution to a trade on or after that date and on the basis that paragraphs (a) (II) and (b) (II) of subsection (2) had not been enacted shall be treated as given or allowed as respects such a contribution.
(b) Notwithstanding paragraph (a) and paragraphs (a) (II) and (b) (II) of subsection (2), this section shall apply in so far as the trade of a limited partnership consists of the management and letting of holiday cottages within the meaning of section 268 , where—
(i) a written contract for the construction of the holiday cottages was signed and construction work had commenced before the 24th day of April, 1992, and
(ii) the construction work is completed before the 6th day of April, 1993,
as if references to on or after the 24th day of April, 1992, were references to on or after the 1st day of September, 1992.
num: 1014
paragraphs: —(1) In this section, “grouping” means a European Economic Interest Grouping formed on the terms, in the manner and with the effects laid down in—
(a) Council Regulation (EEC) No 2137/85 of 25 July 19851 on the European Economic Interest Grouping (EEIG), and
(b) the European Communities (European Economic Interest Groupings) Regulations, 1989 ( S.I. No. 191 of 1989 ),
and references to members of a grouping shall be construed accordingly.
(2) Notwithstanding anything in the Tax Acts or in the Capital Gains Tax Acts, a grouping shall be neither—
(a) charged to income tax, corporation tax or capital gains tax, as the case may be, in respect of profits or gains or chargeable gains arising to it, nor
(b) entitled to relief for a loss sustained by it,
and any assessment required to be made on such profits or gains or chargeable gains, and any relief for a loss, shall as appropriate be made on and allowed to the members of a grouping in accordance with this section.
(3) This Part (other than sections 1009 , 1010 (8) and 1013 ) and sections 30 and 913(7) shall apply with any necessary modifications to the activities of a grouping in the same manner as they apply to a trade or profession carried on by 2 or more persons in partnership.
(4) In particular but without prejudice to the generality of subsection (3), the provisions mentioned in that subsection shall in their application for the purposes of this section apply as if—
(a) references to a partnership agreement were references to the contract forming or providing for the formation of a grouping,
(b) references to a partner were references to a member of a grouping, and
(c) anything done or required to be done by the precedent acting partner was done or required to be done by the grouping.
1O.J. L 119, 31.07.1985 p.1.
num: 1015
paragraphs: —(1) In this Chapter, “the inspector”, in relation to a notice, means any inspector who might reasonably be considered by the person giving notice to be likely to be concerned with the subject matter of the notice or who declares himself or herself ready to accept the notice.
(2) A wife shall be treated for income tax purposes as living with her husband unless either—
(a) they are separated under an order of a court of competent jurisdiction or by deed of separation, or
(b) they are in fact separated in such circumstances that the separation is likely to be permanent.
(3) (a) In this Chapter, references to the income of a wife include references to any sum which apart from this Chapter would be included in computing her total income, and this Chapter shall apply in relation to any such sum notwithstanding that some enactment (including, except in so far as the contrary is expressly provided, an enactment passed after the passing of this Act) requires that that sum should not be treated as income of any person other than her.
(b) In the Income Tax Acts, a reference to a person who has duly elected to be assessed to tax in accordance with a particular section includes a reference to a person who is deemed to have elected to be assessed to tax in accordance with that section, and any reference to a person who is assessed to tax in accordance with section 1017 for a year of assessment includes a reference to a case where the person and his or her spouse are assessed to tax for that year in accordance with section 1023 .
(4) Any notice required to be served under any section in this Chapter may be served by post.
num: 1016
paragraphs: —(1) Subject to subsection (2), in any case in which a wife is treated as living with her husband, income tax shall be assessed, charged and recovered, except as is otherwise provided by the Income Tax Acts, on the income of the husband and on the income of the wife as if they were not married.
(2) Where an election under section 1018 has effect in relation to a husband and wife for a year of assessment, this section shall not apply in relation to that husband and wife for that year of assessment.
num: 1017
paragraphs: —(1) Where in the case of a husband and wife an election under section 1018 to be assessed to tax in accordance with this section has effect for a year of assessment—
(a) the husband shall be assessed and charged to income tax, not only in respect of his total income (if any) for that year, but also in respect of his wife's total income (if any) for any part of that year of assessment during which she is living with him, and for this purpose and for the purposes of the Income Tax Acts that last-mentioned income shall be deemed to be his income,
(b) the question whether there is any income of the wife chargeable to tax for any year of assessment and, if so, what is to be taken to be the amount of that income for tax purposes shall not be affected by this section, and
(c) any tax to be assessed in respect of any income which under this section is deemed to be income of a woman's husband shall, instead of being assessed on her, or on her trustees, guardian or committee, or on her executors or administrators, be assessable on him or, in the appropriate cases, on his executors or administrators.
(2) Any relief from income tax authorised by any provision of the Income Tax Acts to be granted to a husband by reference to the income or profits or gains or losses of his wife or by reference to any payment made by her shall be granted to a husband for a year of assessment only if he is assessed to tax for that year in accordance with this section.
num: 1018
paragraphs: —(1) A husband and his wife, where the wife is living with the husband, may at any time during a year of assessment, by notice in writing given to the inspector, jointly elect to be assessed to income tax for that year of assessment in accordance with section 1017 and, where such election is made, the income of the husband and the income of the wife shall be assessed to tax for that year in accordance with that section.
(2) Where an election is made under subsection (1) in respect of a year of assessment, the election shall have effect for that year and for each subsequent year of assessment.
(3) Notwithstanding subsections (1) and (2), either the husband or the wife may, in relation to a year of assessment, by notice in writing given to the inspector before the end of the year, withdraw the election in respect of that year and, on the giving of that notice, the election shall not have effect for that year or for any subsequent year of assessment.
(4) (a) A husband and his wife, where the wife is living with the husband and where an election under subsection (1) has not been made by them for a year of assessment (or for any prior year of assessment) shall be deemed to have duly elected to be assessed to tax in accordance with section 1017 for that year unless before the end of that year either of them gives notice in writing to the inspector that he or she wishes to be assessed to tax for that year as a single person in accordance with section 1016 .
(b) Where a husband or his wife has duly given notice under paragraph (a), that paragraph shall not apply in relation to that husband and wife for the year of assessment for which the notice was given or for any subsequent year of assessment until the year of assessment in which the notice is withdrawn, by the person who gave it, by further notice in writing to the inspector.
num: 1019
paragraphs: —(1) In this section—
“the basis year”, in relation to a husband and wife, means the year of marriage or, if earlier, the latest year of assessment preceding that year of marriage for which details of the total incomes of both the husband and the wife are available to the inspector at the time they first elect, or are first deemed to have duly elected, to be assessed to tax in accordance with section 1017 ;
“year of marriage”, in relation to a husband and wife, means the year of assessment in which their marriage took place.
(2) Subsection (3) shall apply for a year of assessment where, in the case of a husband and wife who are living together—
(a) (i) an election (including an election deemed to have been duly made) by the husband and wife to be assessed to income tax in accordance with section 1017 has effect in relation to the year of assessment, and
(ii) the husband and the wife by notice in writing jointly given to the inspector before the 6th day of July in the year of assessment elect that the wife should be assessed to income tax in accordance with section 1017 ,
or
(b) (i) the year of marriage is the year 1993-94 or a subsequent year of assessment,
(ii) not having made an election under section 1018 (1) to be assessed to income tax in accordance with section 1017 , the husband and wife have been deemed for that year of assessment, in accordance with section 1018 (4), to have duly made such an election, but have not made an election in accordance with paragraph (a) (ii) for that year, and
(iii) the inspector, to the best of his or her knowledge and belief, considers that the total income of the wife for the basis year exceeded the total income of her husband for that basis year.
(3) Where this subsection applies for a year of assessment, the wife shall be assessed to income tax in accordance with section 1017 for that year, and accordingly references in section 1017 or in any other provision of the Income Tax Acts, however expressed—
(a) to a husband being assessed, assessed and charged or chargeable to income tax for a year of assessment in respect of his own total income (if any) and his wife's total income (if any), and
(b) to income of a wife being deemed for income tax purposes to be that of her husband,
shall, subject to this section and the modifications set out in subsection (6) and any other necessary modifications, be construed respectively for that year of assessment as references—
(i) to a wife being assessed, assessed and charged or chargeable to income tax in respect of her own total income (if any) and her husband's total income (if any), and
(ii) to the income of a husband being deemed for income tax purposes to be that of his wife.
(4) (a) Where in accordance with subsection (3) a wife is by virtue of subsection (2) (b) to be assessed and charged to income tax in respect of her total income (if any) and her husband's total income (if any) for a year of assessment—
(i) in the absence of a notice given in accordance with subsection (1) or (4) (a) of section 1018 or an application made under section 1023 , the wife shall be so assessed and charged for each subsequent year of assessment, and
(ii) any such charge shall apply and continue to apply notwithstanding that her husband's total income for the basis year may have exceeded her total income for that year.
(b) Where a notice under section 1018 (4) (a) or an application under section 1023 is withdrawn and, but for the giving of such a notice or the making of such an application in the first instance, a wife would have been assessed to income tax in respect of her own total income (if any) and the total income (if any) of her husband for the year of assessment in which the notice was given or the application was made, as may be appropriate, then, in the absence of an election made in accordance with section 1018 (1) (not being such an election deemed to have been duly made in accordance with section 1018 (4)), the wife shall be so assessed to income tax for the year of assessment in which that notice or application is withdrawn and for each subsequent year of assessment.
(5) Where an election is made in accordance with subsection (2) (a) (ii) for a year of assessment, the election shall have effect for that year and each subsequent year of assessment unless it is withdrawn by further notice in writing given jointly by the husband and the wife to the inspector before the 6th day of July in a year of assessment and the election shall not then have effect for the year for which the further notice is given or for any subsequent year of assessment
(6) For the purposes of the other provisions of this section and as the circumstances may require—
(a) a reference in the Income Tax Acts, however expressed, to an individual or a claimant, being a man, a married man or a husband shall be construed respectively as a reference to a woman, a married woman or a wife, and a reference in those Acts, however expressed, to a woman, a married woman or a wife shall be construed respectively as a reference to a man, a married man or a husband, and
(b) any provision of the Income Tax Acts shall, in so far as it may relate to the treatment of any husband and wife for the purposes of those Acts, be construed so as to give effect to this section.
num: 1020
paragraphs: —(1) In this section—
“income tax month” means a month beginning on the 6th day of any of the months of April to March in any year of assessment;
“year of marriage”, in relation to a husband and wife, means the year of assessment in which their marriage took place.
(2) Section 1018 shall not apply in relation to a husband and his wife for the year of marriage.
(3) Where, on making a claim in that behalf, a husband and his wife prove that the amount equal to the aggregate of the income tax paid and payable by the husband on his total income for the year of marriage and the income tax paid and payable by his wife on her total income for the year of marriage is in excess of the income tax which would have been payable by the husband on his total income and the total income of his wife for the year of marriage if—
(a) he had been charged to income tax for the year of marriage in accordance with section 1017 , and
(b) he and his wife had been married to each other throughout the year of marriage,
they shall be entitled, subject to subsection (4), to repayment of income tax of an amount determined by the formula—
A ×
B
___
12
where—
A is the amount of the aforementioned excess, and
B is the number of income tax months in the period between the date on which the marriage took place and the end of the year of marriage, part of an income tax month being treated for this purpose as an income tax month in a case where the period consists of part of an income tax month or of one or more income tax months and part of an income tax month.
(4) Any repayment of income tax under subsection (3) shall be allocated to the husband and to the wife concerned in proportion to the amounts of income tax paid and payable by them, having regard to subsection (2), on their respective total incomes for the year of marriage.
(5) Any claim for a repayment of income tax under subsection (3) shall be made in writing to the inspector after the end of the year of marriage and shall be made by the husband and wife concerned jointly.
(6) (a) Subsections (1) and (2) of section 459 and section 460 shall apply to a repayment of income tax under this section as they apply to any allowance, deduction, relief or reduction under the provisions specified in the Table to section 458.
num: 1021
paragraphs: —(1) This section shall apply for a year of assessment in the case of a husband and wife one of whom is assessed to income tax for the year of assessment in accordance with section 1017 and to whom section 1023 does not apply for that year.
(2) Where for a year of assessment this section applies in the case of a husband and wife, any repayment of income tax to be made in respect of the aggregate of the net tax deducted or paid under any provision of the Tax Acts (including a tax credit in respect of a distribution from a company resident in the State) in respect of the total income (if any) of the husband and of the total income (if any) of the wife shall be allocated to the husband and the wife concerned in proportion to the net amounts of tax so deducted or paid in respect of their respective total incomes; but this subsection shall not apply where a repayment, which but for this subsection would not be made to a spouse, is less than £20.
(3) Notwithstanding subsection (2), where the inspector, having regard to all the circumstances of a case, is satisfied that a repayment or a greater part of a repayment of income tax arises by reason of some allowance or relief which, if sections 1023 and 1024 had applied for the year of assessment, would have been allowed to one spouse only, the inspector may make the repayment to the husband and the wife in such proportions as the inspector considers just and reasonable.
num: 1022
paragraphs: —(1) Where—
(a) an assessment to income tax (in this section referred to as “the original assessment”) has been made for any year of assessment on a man, or on a man's trustee, guardian or committee, or on a man's executors or administrators,
(b) the Revenue Commissioners are of the opinion that, if an application for separate assessment under section 1023 had been in force with respect to that year of assessment, an assessment in respect of or of part of the same income would have been made on, or on the trustee, guardian or committee of, or on the executors or administrators of, a woman who is the man's wife or was his wife in that year of assessment, and
(c) the whole or part of the amount payable under the original assessment has remained unpaid at the expiration of 28 days from the time when it became due,
the Revenue Commissioners may give to that woman, or, if she is dead, to her executors or administrators, or, if an assessment referred to in paragraph (b) could in the circumstances referred to in that paragraph have been made on her trustee, guardian or committee, to her or to her trustee, guardian or committee, a notice stating—
(i) particulars of the original assessment and of the amount remaining unpaid under that assessment, and
(ii) to the best of their judgment, particulars of the assessment which would have been so made,
and requiring the person to whom the notice is given to pay the amount which would have been payable under the last-mentioned assessment if it conformed with those particulars, or the amount remaining unpaid under the original assessment, whichever is the less.
(2) The same consequences as respects—
(a) the imposition of a liability to pay, and the recovery of, the tax with or without interest,
(b) priority for the tax in bankruptcy or in the administration of the estate of a deceased person,
(c) appeals to the Appeal Commissioners, the rehearing of such appeals and the stating of cases for the opinion of the High Court, and
(d) the ultimate incidence of the liability imposed,
shall follow on the giving of a notice under subsection (1) to a woman, or to her trustee, guardian or committee, or to her executors or administrators, as would have followed on the making on her, or on her trustee, guardian or committee, or on her executors or administrators, as the case may be, of an assessment referred to in subsection (1) (b), being an assessment which—
(i) was made on the day of the giving of the notice,
(ii) charged the same amount of tax as is required to be paid by the notice,
(iii) fell to be made and was made by the authority who made the original assessment, and
(iv) was made by that authority to the best of that authority's judgment,
and the provisions of the Income Tax Acts relating to the matters specified in paragraphs (a) to (d) shall, with the necessary modifications, apply accordingly.
(3) Where a notice is given under subsection (1), tax up to the amount required to be paid by the notice shall cease to be recoverable under the original assessment and, where the tax charged by the original assessment carried interest under section 1080 , such adjustment shall be made of the amount payable under that section in relation to that assessment and such repayment shall be made of any amounts previously paid under that section in relation to that assessment as are necessary to secure that the total sum, if any, paid or payable under that section in relation to that assessment is the same as it would have been if the amount which ceases to be recoverable had never been charged.
(4) Where the amount payable under a notice under subsection (1) is reduced as the result of an appeal or of a case stated for the opinion of the High Court—
(a) the Revenue Commissioners shall, if having regard to that result they are satisfied that the original assessment was excessive, cause such relief to be given by means of repayment or otherwise as appears to them to be just; but
(b) subject to any relief so given, a sum equal to the reduction in the amount payable under the notice shall again become recoverable under the original assessment.
(5) The Revenue Commissioners and the inspector or other proper officer shall have the like powers of obtaining information with a view to the giving of, and otherwise in connection with, a notice under subsection (1) as they would have had with a view to the making of, and otherwise in connection with, an assessment referred to in subsection (1)(b) if the necessary conditions had been fulfilled for the making of such an assessment.
(6) Where a woman dies who at any time before her death was a wife living with her husband, he or, if he is dead, his executors or administrators may, not later than 2 months from the date of the grant of probate or letters of administration in respect of her estate or, with the consent of her executors or administrators, at any later date, give to her executors or administrators and to the inspector a notice in writing declaring that, to the extent permitted by this section, he disclaims or they disclaim responsibility for unpaid income tax in respect of all income of hers for any year of assessment or part of a year of assessment, being a year of assessment or part of a year of assessment for which any income of hers was deemed to be his income and in respect of which he was assessed to tax under section 1017 .
(7) A notice given to the inspector pursuant to subsection (6) shall be deemed not to be a valid notice unless it specifies the names and addresses of the woman's executors or administrators.
(8) Where a notice under subsection (6) has been given to a woman's executors or administrators and to the inspector—
(a) it shall be the duty of the Revenue Commissioners and the Appeal Commissioners to exercise such powers as they may then or thereafter be entitled to exercise under subsections (1) to (5) in connection with any assessment made on or before the date when the giving of that notice is completed, being an assessment in respect of any of the income to which that notice relates, and
(b) the assessments (if any) to tax which may be made after that date shall, in all respects and in particular as respects the persons assessable and the tax payable, be the assessments which would have been made if—
(i) an application for separate assessment under section 1023 had been in force in respect of the year of assessment in question, and
(ii) all assessments previously made had been made accordingly.
num: 1023
paragraphs: —(1) In this section and in section 1024 , “personal reliefs” means relief under any of the provisions specified in the Table to section 458 , apart from relief under sections 462 and 463 .
(2) Where an election by a husband and wife to be assessed to income tax in accordance with section 1017 has effect in relation to a year of assessment and, in relation to that year of assessment, an application is made for the purpose under this section in such manner and form as may be prescribed by the Revenue Commissioners, either by the husband or by the wife, income tax for that year shall be assessed, charged and recovered on the income of the husband and on the income of the wife as if they were not married and the provisions of the Income Tax Acts with respect to the assessment, charge and recovery of tax shall, except where otherwise provided by those Acts, apply as if they were not married except that—
(a) the total deductions from total income allowed to the husband and wife by means of personal reliefs shall be the same as if the application had not had effect with respect to that year,
(b) the total tax payable by the husband and wife for that year shall be the same as the total tax which would have been payable by them if the application had not had effect with respect to that year, and
(c) section 1024 shall apply.
(3) An application under this section in respect of a year of assessment may be made—
(a) in the case of persons marrying during the course of that year, before the 6th day of July in the following year, and
(b) in any other case, within 6 months before the 6th day of July in that year.
(4) Where an application is made under subsection (2), that subsection shall apply not only for the year of assessment for which the application was made, but also for each subsequent year of assessment; but, in relation to a subsequent year of assessment, the person who made the application may, by notice in writing given to the inspector before the 6th day of July in that year, withdraw that election and, on the giving of that notice, subsection (2) shall not apply for the year of assessment in relation to which the notice was given or any subsequent year of assessment.
(5) A return of the total incomes of the husband and of the wife may be made for the purposes of this section either by the husband or by the wife but, if the Revenue Commissioners are not satisfied with any such return, they may require a return to be made by the wife or by the husband, as the case may be.
(6) The Revenue Commissioners may by notice require returns for the purposes of this section to be made at any time.
num: 1024
paragraphs: —(1) This section shall apply where pursuant to an application under section 1023 a husband and wife are assessed to tax for a year of assessment in accordance with that section.
(2) (a) Subject to subsection (3), the benefit flowing from the personal reliefs for a year of assessment may be given either by means of reduction of the amount of the tax to be paid or by repayment of any excess of tax which has been paid, or by both of those means, as the case requires, and shall be allocated to the husband and the wife, in so far as it flows from—
(i) relief under sections 244 , 328 , 337 , 349 , 364 and 371 , in the proportions in which they incurred the expenditure giving rise to the relief;
(ii) relief under sections 461 , 464 , 465 (other than subsection (3)) and 468 , in the proportions of one-half and one-half;
(iii) relief in respect of a child under section 465 (3) and relief in respect of a dependent relative under section 466 , to the husband or to the wife according as he or she maintains the child or dependent relative;
(iv) relief under section 467 , in the proportions in which they bear the cost of employing the person in respect of whom the relief is given;
(v) relief under section 469 , in the proportions in which they bore the expenditure giving rise to the relief;
(vi) relief under sections 470 and 473 , to the husband or to the wife according as he or she made the payment giving rise to the relief;
(vii) relief under section 471 , in the proportions in which they incurred the expenditure giving rise to the relief;
(viii) relief under section 472 , to the husband or to the wife according as the emoluments from which the deduction under that section is made are emoluments of the husband or of the wife;
(ix) relief under sections 474 , 475 , 476 , 477 , 478 and 479 , in the proportions in which they incurred the expenditure giving rise to the relief;
(x) relief under section 481 , in the proportions in which they made the relevant investment giving rise to the relief;
(xi) relief under Part 16 , in the proportions in which they subscribed for the eligible shares giving rise to the relief;
num: 1025
paragraphs: —(1) In this section—
“maintenance arrangement” means an order of a court, rule of court, deed of separation, trust, covenant, agreement, arrangement or any other act giving rise to a legally enforceable obligation and made or done in consideration or in consequence of—
(a) the dissolution or annulment of a marriage, or
(b) such separation of the parties to a marriage as is referred to in section 1015 (2),
and a maintenance arrangement relates to the marriage in consideration or in consequence of the dissolution or annulment of which, or of the separation of the parties to which, the maintenance arrangement was made or arises;
“payment” means a payment or part of a payment, as the case may be;
a reference to a child of a person includes a child in respect of whom the person was at any time before the making of the maintenance arrangement concerned entitled to a deduction under section 465 .
(2) (a) This section shall apply to payments made directly or indirectly by a party to a marriage under or pursuant to a maintenance arrangement relating to the marriage for the benefit of his or her child, or for the benefit of the other party to the marriage, being payments—
(i) which are made at a time when the wife is not living with the husband,
(ii) the making of which is legally enforceable, and
(iii) which are annual or periodical;
but this section shall not apply to such payments made under a maintenance arrangement made before the 8th day of June, 1983, unless and until such time as one of the following events occurs, or the earlier of such events occurs where both occur—
(I) the maintenance arrangement is replaced by another maintenance arrangement or is varied, and
(II) both parties to the marriage to which the maintenance arrangement relates, by notice in writing to the inspector, jointly elect that this section shall apply,
and where such an event occurs in either of those circumstances, this section shall apply to all such payments made after the date on which the event occurs.
(b) For the purposes of this section and of section 1026 but subject to paragraph (c), a payment, whether conditional or not, which is made directly or indirectly by a party to a marriage under or pursuant to a maintenance arrangement relating to the marriage (other than a payment of which the amount, or the method of calculating the amount, is specified in the maintenance arrangement and from which, or from the consideration for which, neither a child of the party to the marriage making the payment nor the other party to the marriage derives any benefit) shall be deemed to be made for the benefit of the other party to the marriage.
(c) Where the payment, in accordance with the maintenance arrangement, is made or directed to be made for the use and benefit of a child of the party to the marriage making the payment, or for the maintenance, support, education or other benefit of such a child, or in trust for such a child, and the amount or the method of calculating the amount of such payment so made or directed to be made is specified in the maintenance arrangement, that payment shall be deemed to be made for the benefit of such child, and not for the benefit of any other person.
(3) Notwithstanding anything in the Income Tax Acts but subject to section 1026 , as respects any payment to which this section applies made directly or indirectly by one party to the marriage to which the maintenance arrangement concerned relates for the benefit of the other party to the marriage—
(a) the person making the payment shall not be entitled on making the payment to deduct and retain out of the payment any sum representing any amount of income tax on the payment,
num: 1026
paragraphs: —(1) Where a payment to which section 1025 applies is made in a year of assessment by a party to a marriage (being a marriage which has not been dissolved or annulled) and both parties to the marriage are resident in the State for that year, section 1018 shall apply in relation to the parties to the marriage for that year of assessment as if—
(a) in subsection (1) of that section “, where the wife is living with the husband,” were deleted, and
(b) subsection (4) of that section were deleted.
(2) Where by virtue of subsection (1) the parties to a marriage elect as provided for in section 1018 (1), then, as respects any year of assessment for which the election has effect—
(a) subject to subsection (1) and paragraphs (b) and (c), the Income Tax Acts shall apply in the case of the parties to the marriage as they apply in the case of a husband and wife who have elected under section 1018 (1) and whose election has effect for that year of assessment,
(b) the total income or incomes of the parties to the marriage shall be computed for the purposes of the Income Tax Acts as if any payments to which section 1025 applies made in that year of assessment by one party to the marriage for the benefit of the other party to the marriage had not been made, and
(c) income tax shall be assessed, charged and recovered on the total income or incomes of the parties to the marriage as if an application under section 1023 had been made by one of the parties and that application had effect for that year of assessment.
(3) Notwithstanding subsection (1), where a payment to which section 1025 applies is made in a year of assessment by a spouse who is a party to a marriage, that has been dissolved, for the benefit of the other spouse, and—
(a) the dissolution was under either—
(i) section 5 of the Family Law (Divorce) Act, 1996 , or
(ii) the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State,
(b) both spouses are resident in the State for tax purposes for that year of assessment, and
(c) neither spouse has entered into another marriage,
then, subsections (1) and (2) shall, with any necessary modifications, apply in relation to the spouses for that year of assessment as if their marriage had not been dissolved.
num: 1027
paragraphs: —Payment of money pursuant to—
(a) an order under Part II of the Judicial Separation and Family Law Reform Act, 1989 ,
(b) an order under the Family Law Act, 1995 (other than section 12 of that Act), and
(c) an order under the Family Law (Divorce) Act, 1996 (other than section 17 of that Act),
shall be made without deduction of income tax.
num: 1028
paragraphs: —(1) Subject to this section, the amount of capital gains tax on chargeable gains accruing to a married woman in a year of assessment or part of a year of assessment during which she is a married woman living with her husband shall be assessed and charged on the husband and not otherwise; but this subsection shall not affect the amount of capital gains tax chargeable on the husband apart from this subsection or result in the additional amount of capital gains tax charged on the husband by virtue of this subsection being different from the amount which would otherwise have remained chargeable on the married woman.
(2) (a) Subject to paragraph (b), subsection (1) shall not apply in relation to a husband and wife in any year of assessment where, before the 6th day of July in the year following that year of assessment, an application is made by either the husband or wife that subsection (1) shall not apply, and such an application duly made shall have effect not only as respects the year of assessment for which it is made but also for any subsequent year of assessment.
(b) Where the applicant gives, for any subsequent year of assessment, a notice withdrawing an application under paragraph (a), that application shall not have effect with respect to the year for which the notice is given or any subsequent year; but such notice of withdrawal shall not be valid unless it is given before the 6th day of July in the year following the year of assessment for which the notice is given.
(3) In the case of a woman who during a year of assessment or part of a year of assessment is a married woman living with her husband, any allowable loss which under section 31 would be deductible from the chargeable gains accruing in that year of assessment to the one spouse but for an insufficiency of chargeable gains shall for the purposes of that section be deductible from chargeable gains accruing in that year of assessment to the other spouse; but this subsection shall not apply in relation to losses accruing in a year of assessment to either spouse where an application that this subsection shall not apply is made by the husband or the wife before the 6th day of July in the year following that year of assessment.
(4) Where apart from subsection (1) the amount on which an individual is chargeable to capital gains tax under section 31 for a year of assessment (in this subsection referred to as “the first-mentioned amount”) is less than £1,000 and the spouse of the individual (being, at any time during that year of assessment, a married woman living with her husband, or that husband) is apart from subsection (1) chargeable to capital gains tax on any amount for that year, section 601 (1) shall apply in relation to the spouse as if the sum of £1,000 mentioned in that section were increased by an amount equal to the difference between the first-mentioned amount and £1,000.
(5) Where in any year of assessment in which or in part of which the married woman is a married woman living with her husband, the husband disposes of an asset to the wife, or the wife disposes of an asset to the husband, both shall be treated as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal; but this subsection shall not apply if until the disposal the asset formed part of trading stock of a trade carried on by the spouse making the disposal, or if the asset is acquired as trading stock for the purposes of a trade carried on by the spouse acquiring the asset.
(6) Subsection (5) shall apply notwithstanding section 596 or any other provision of the Capital Gains Tax Acts fixing the amount of the consideration deemed to be given on a disposal or acquisition.
(7) Where subsection (5) is applied in relation to a disposal of an asset by a husband to his wife, or by his wife to him, then, in relation to a subsequent disposal of the asset (not within that subsection), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.
(8) An application or notice of withdrawal under this section shall be in such form and made in such manner as may be prescribed.
num: 1029
paragraphs: — Section 1022 shall apply with any necessary modifications in relation to capital gains tax as it applies in relation to income tax.
num: 1030
paragraphs: —(1) In this section, “spouse” shall be construed in accordance with section 2 (2) (c) of the Family Law Act, 1995.
(2) Notwithstanding any other provision of the Capital Gains Tax Acts, where by virtue or in consequence of—
(a) an order made under Part II of the Family Law Act, 1995 , on or following the granting of a decree of judicial separation within the meaning of that Act,
(b) an order made under Part II of the Judicial Separation and Family Law Reform Act, 1989 , on or following the granting of a decree of judicial separation where such order is treated, by virtue of section 3 of the Family Law Act, 1995 , as if made under the corresponding provision of the Family Law Act, 1995 ,
(c) a deed of separation, or
(d) a relief order (within the meaning of the Family Law Act, 1995 ) made following the dissolution of a marriage,
either of the spouses concerned disposes of an asset to the other spouse, then, subject to subsection (3), both spouses shall be treated for the purposes of the Capital Gains Tax Acts as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal.
(3) Subsection (2) shall not apply if until the disposal the asset formed part of the trading stock of a trade carried on by the spouse making the disposal or if the asset is acquired as trading stock for the purposes of a trade carried on by the spouse acquiring the asset.
(4) Where subsection (2) applies in relation to a disposal of an asset by a spouse to the other spouse, then, in relation to a subsequent disposal of the asset (not being a disposal to which subsection (2) applies), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.
num: 1031
paragraphs: —(1) In this section, “spouse” shall be construed in accordance with section 2 (2) (c) of the Family Law (Divorce) Act, 1996.
(2) Notwithstanding any other provision of the Capital Gains Tax Acts, where by virtue or in consequence of an order made under Part III of the Family Law (Divorce) Act, 1996 , on or following the granting of a decree of divorce, either of the spouses concerned disposes of an asset to the other spouse, then, subject to subsection (3), both spouses shall be treated for the purpose of the Capital Gains Tax Acts as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal.
(3) Subsection (2) shall not apply if until the disposal the asset formed part of the trading stock of a trade carried on by the spouse making the disposal or if the asset is acquired as trading stock for the purposes of a trade carried on by the spouse acquiring the asset.
(4) Where subsection (2) applies in relation to a disposal of an asset by a spouse to the other spouse, then, in relation to a subsequent disposal of the asset (not being a disposal to which subsection (2) applies), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.
num: 1032
paragraphs: —(1) Except where otherwise provided by this section, an individual not resident in the State shall not be entitled to any of the allowances, deductions, reliefs or reductions under the provisions specified in the Table to section 458 .
(2) Where an individual not resident in the State proves to the satisfaction of the Revenue Commissioners that he or she—
(a) is a citizen of Ireland,
(b) is resident outside the State for the sake or on account of his or her health or the health of a member of his or her family resident with him or her or because of some physical infirmity or disease in himself or herself or any such member of his or her family, and that previous to such residence outside the State he or she was resident in the State,
(c) is a citizen, subject or national of another Member State of the European Communities or of a country of which the citizens, subjects or nationals are for the time being exempted by an order under section 10 of the Aliens Act, 1935 , from any provision of, or of an aliens order under, that Act, or
(d) is a person to whom one of the paragraphs (a) to (e) of the proviso to section 24 of the Finance Act, 1920 , applied in respect of the year ending on the 5th day of April, 1935, or any previous year of assessment,
then, subsection (1) shall not apply to that individual, but the amount of any allowance, deduction or other benefit mentioned in that subsection shall, in the case of that individual, be reduced to an amount which bears the same proportion to the total amount of that allowance, deduction or other benefit as the portion of his or her income subject to Irish income tax bears to his or her total income from all sources (including income not subject to Irish income tax).
(3) Notwithstanding subsection (2), where an individual not resident in the State proves to the satisfaction of the Revenue Commissioners that the individual is a resident of another Member State of the European Communities and that the proportion which the portion of the individual's income subject to Irish income tax bears to the individual's total income from all sources (including income not subject to Irish income tax) is 75 per cent or greater, subsection (1) or, as the case may be, subsection (2) shall not apply to that individual and he or she shall be entitled to the allowance, deduction or other benefit mentioned in subsection (1).
num: 1033
paragraphs: —An individual who, having made a claim in that behalf, is by virtue of subsection (2) or (3) of section 1032 entitled to relief in respect of any year of assessment under any of the provisions specified in the Table to section 458 shall be entitled to a tax credit in respect of any distribution received by him or her in that year to the same extent as if he or she were resident in the State, and section 153 (1) shall not apply in relation to such an individual.
num: 1034
paragraphs: —A person not resident in the State, whether a citizen of Ireland or not, shall be assessable and chargeable to income tax in the name of any trustee, guardian, or committee of such person, or of any factor, agent, receiver, branch or manager, whether such factor, agent, receiver, branch or manager has the receipt of the profits or gains or not, in the like manner and to the like amount as such non-resident person would be assessed and charged if such person were resident in the State and in the actual receipt of such profits or gains; but, in the case of a partnership, the precedent partner (within the meaning of section 1007 ) or, if there is no precedent partner, the factor, agent, receiver, branch or manager shall be deemed to be the agent of a non-resident partner.
num: 1035
paragraphs: —A non-resident person shall be assessable and chargeable to income tax in respect of any profits or gains arising, whether directly or indirectly, through or from any factorship, agency, receivership, branch or management, and shall be so assessable and chargeable in the name of the factor, agent, receiver, branch or manager.
num: 1036
paragraphs: —Where a non-resident person, not being a citizen of Ireland or an Irish firm or company, or a branch of a non-resident person, carries on business with a resident person, and it appears to the inspector that, owing to the close connection between the resident person and the non-resident person and to the substantial control exercised by the non-resident person over the resident person, the course of business between those persons can be so arranged and is so arranged that the business done by the resident person in pursuance of that person's connection with the non-resident person produces to the resident person either no profits or less than the ordinary profits which might be expected to arise from that business, then, the non-resident person shall be assessable and chargeable to income tax in the name of the resident person as if the resident person were an agent of the non-resident person.
num: 1037
paragraphs: —(1) Where it appears to the inspector or on appeal to the Appeal Commissioners that the true amount of the profits or gains of any non-resident person chargeable with income tax in the name of a resident person cannot in any case be readily ascertained, the non-resident person may, if it is thought fit by the inspector or the Appeal Commissioners, be assessed and charged on a percentage of the turnover of the business done by the non-resident person through or with the resident person in whose name the non-resident person is so chargeable, and in such a case the provisions of the Income Tax Acts relating to the delivery of statements by persons acting on behalf of others shall extend so as to require returns to be given by the resident person of the business so done by the non-resident person through or with the resident person in the same manner as statements of profits or gains to be charged are to be delivered by persons acting for incapacitated or non-resident persons.
(2) The amount of the percentage under subsection (1) shall in each case be determined, having regard to the nature of the business, by the inspector by whom the assessment on the percentage basis is made, subject to appeal to the Appeal Commissioners.
(3) Where either the resident person or the non-resident person is dissatisfied with the percentage determined either in the first instance or by the Appeal Commissioners on appeal, that person may within 4 months of that determination require the inspector or the Appeal Commissioners, as the case may be, to refer the question of the percentage to a referee or board of referees to be appointed for the purpose by the Minister for Finance, and the decision of the referee or board of referees shall be final and conclusive.
num: 1038
paragraphs: —Where a non-resident person is chargeable to income tax in the name of any branch, manager, agent, factor or receiver in respect of any profits or gains arising from the sale of goods or produce manufactured or produced outside the State by the non-resident person, the person in whose name the non-resident person is so chargeable may, if that person thinks fit, apply to—
(a) the inspector, or
(b) in case of an appeal, to the Appeal Commissioners,
to have the assessment to income tax in respect of those profits or gains made or amended on the basis of the profits which might reasonably be expected to have been earned by—
(i) a merchant, or
(ii) where the goods are retailed by or on behalf of the manufacturer or producer, by a retailer of the goods sold,
who had bought from the manufacturer or producer direct and, on proof to the satisfaction of the inspector or, as the case may be, the Appeal Commissioners of the amount of the profits on that basis, the assessment shall be made or amended accordingly.
num: 1039
paragraphs: —(1) Nothing in this Chapter shall render a non-resident person chargeable in the name of—
(a) a broker or general commission agent, or
(b) an agent, not being—
(i) an authorised person carrying on the regular agency of the non-resident person, or
(ii) a person chargeable as if that person were an agent in pursuance of this Chapter,
in respect of profits or gains arising from sales or transactions carried out through such a broker or agent.
(2) The fact that a non-resident person executes sales or carries out transactions with other non-residents in circumstances which would make that person chargeable in pursuance of this Chapter in the name of a resident person shall not of itself make that person chargeable in respect of profits arising from those sales or transactions.
num: 1040
paragraphs: —Without prejudice to the general application of income tax procedure to corporation tax, the provisions of this Chapter relating to the assessment and charge of income tax on persons not resident in the State, in so far as they are applicable to tax chargeable on a company, shall apply with any necessary modifications in relation to corporation tax chargeable on companies not resident in the State.
num: 1041
paragraphs: —(1) Section 1034 shall not apply to—
num: 1042
paragraphs: —(1) Notwithstanding section 28 (2), 31 or 979 , any capital gains tax payable in respect of a chargeable gain which on a disposal accrues to a person not resident or ordinarily resident in the State at the time at which the disposal is made may be assessed and charged before the end of the year of assessment in which the chargeable gain accrues, and the tax so assessed and charged shall be payable at or before the expiration of a period of 3 months beginning with the time at which the disposal is made, or at the expiration of a period of 2 months beginning with the date of making the assessment, whichever is the later.
(2) In computing the amount of capital gains tax payable under subsection (1), section 31 shall apply with any necessary modifications as regards the deduction of any allowable losses which accrued to the person mentioned in subsection (1) before the date of making of the assessment mentioned in that subsection.
num: 1043
paragraphs: —Without prejudice to the generality of section 931 (2), sections 1034 and 1035 shall apply, subject to any necessary modifications, to capital gains tax.
num: 1044
paragraphs: —(1) Subject to section 21 , every body of persons shall be chargeable to income tax in the like manner as any person is chargeable under the Income Tax Acts.
(2) The treasurer (or other officer acting as such), auditor or receiver for the time being of any body of persons chargeable to income tax shall be answerable for doing all such acts as are required to be done under the Income Tax Acts for the purpose of the assessment of such body and for payment of the tax, and for the purpose of the assessment of the officers and persons in the employment of such body; but, in the case of a company, the person so answerable shall be the secretary of the company or other officer (by whatever name called) performing the duties of secretary.
(3) Every such officer may from time to time retain out of any money coming into his or her hands on behalf of the body so much of that money as is sufficient to pay the tax charged on the body, and shall be indemnified for all such payments made in pursuance of the Income Tax Acts.
num: 1045
paragraphs: —The trustee, guardian or committee of any incapacitated person having the direction, control or management of the property or concern of any such person, whether such person resides in the State or not, shall be assessable and chargeable to income tax in the like manner and to the like amount as that person would be assessed and charged if he or she were not an incapacitated person.
num: 1046
paragraphs: —(1) The person chargeable in respect of an incapacitated person or in whose name a non-resident person is chargeable shall be answerable for all matters required to be done under the Income Tax Acts for the purpose of assessment and payment of income tax.
(2) Any person charged under the Income Tax Acts in respect of any incapacitated or non-resident person may from time to time retain out of money coming into the first-mentioned person's hands on behalf of that incapacitated or non-resident person so much of that money as is sufficient to pay the tax charged, and shall be indemnified for all such payments made in pursuance of the Income Tax Acts.
(3) Without prejudice to the general application of income tax procedure to corporation tax, subsections (1) and (2), in so far as they are applicable to tax chargeable on a company, shall apply with any necessary modifications in relation to corporation tax chargeable on companies not resident in the State.
num: 1047
paragraphs: —(1) Where a person chargeable to income tax is an infant or dies—
(a) the parent or guardian of the infant shall be liable for the tax in default of payment by the infant, and
(b) the executor or administrator of the deceased person shall be liable for the tax charged on such deceased person,
and on neglect or refusal of payment any such person so liable may be proceeded against in the like manner as any other defaulter.
(2) A parent or guardian who makes such payment shall be allowed all sums so paid in his or her accounts, and an executor or administrator may deduct all such payments out of the assets and effects of the person deceased.
num: 1048
paragraphs: —(1) Where a person dies, an assessment or an additional first assessment, as the case may be, may be made for any year of assessment for which an assessment or an additional first assessment could have been made on the person immediately before his or her death, or could be made on the person if he or she were living, in respect of the profits or gains which arose or accrued to such person before his or her death, and the amount of the income tax on such profits or gains shall be a debt due from and payable out of the estate of such person, and the executor or administrator of such person shall be assessable and chargeable in respect of such tax.
(2) No assessment under this section shall be made later than 3 years after the expiration of the year of assessment in which the deceased person died in a case in which the grant of probate or letters of administration was made in that year, and no such assessment shall be made later than 2 years after the expiration of the year of assessment in which such grant was made in any other case; but this subsection shall apply subject to the condition that where the executor or administrator—
(a) after the year of assessment in which the deceased person died, delivers an additional affidavit under section 38 of the Capital Acquisitions Tax Act, 1976 , or
(b) is liable to deliver an additional affidavit under that section, has been so notified by the Revenue Commissioners and did not deliver the additional affidavit in the year of assessment in which the deceased person died,
such assessment may be made at any time before the expiration of 2 years after the end of the year of assessment in which the additional affidavit was or is delivered.
(3) The executor or administrator of any such deceased person shall, when required to do so by a notice given to the executor or administrator by an inspector, prepare and deliver to the inspector a statement in writing signed by such executor or administrator and containing particulars, to the best of such executor's or administrator's judgment and belief, of the profits or gains which arose or accrued to such deceased person before his or her death and in respect of which such executor or administrator is assessable under this section, and the provisions of the Income Tax Acts relating to statements to be delivered by any person shall apply with any necessary modifications to statements to be delivered under this section.
num: 1049
paragraphs: —(1) A receiver appointed by any court in the State which has the direction and control of any property in respect of which income tax or, as the case may be, corporation tax is charged in accordance with the Tax Acts shall be assessable and chargeable with income tax or, as the case may be, corporation tax in the like manner and to the like amount as would be assessed and charged if the property were not under the direction and control of the court.
(2) Every such receiver shall be answerable for doing all matters and things required to be done under the Tax Acts for the purpose of assessment and payment of income tax or, as the case may be, corporation tax.
num: 1050
paragraphs: —(1) A trustee who has authorised the receipt of profits arising from trust property by or by the agent of the person entitled to such profits shall not, if—
(a) that person or agent actually received the profits under that authority, and
(b) the trustee makes a return as required by section 890 of the name, address and profits of that person,
be required to do any other act for the purpose of the assessment of that person, unless the Revenue Commissioners require the testimony of the trustee pursuant to the Income Tax Acts.
(2) An agent or receiver of any person resident in the State, other than an incapacitated person, shall not, if that agent or receiver makes a return as required by section 890 of the name, address and profits of that person, be required to do any other act for the purpose of the assessment of that person, unless the Revenue Commissioners require the testimony of the agent or receiver pursuant to the Income Tax Acts.
num: 1051
paragraphs: — Chapter 1 other than section 1050 shall, subject to any necessary modifications, apply to capital gains tax.
num: 1052
paragraphs: —(1) Where any person—
num: 1053
paragraphs: —(1) Where any person fraudulently or negligently—
num: 1054
paragraphs: —(1) In this section, “secretary” includes persons mentioned in section 1044 (2).
(2) Where the person mentioned in section 1052 is a body of persons—
(a) the body of persons shall be liable to—
num: 1055
paragraphs: —Any person who assists in or induces the making or delivery for any purposes of income tax or corporation tax of any return, account, statement or declaration which that person knows to be incorrect shall be liable to a penalty of £500.
num: 1056
paragraphs: —(1) In this section, “the specified difference”, in relation to a person, means the difference between—
(a) the amount of income tax or, as the case may be, corporation tax payable in relation to the person's or, as may be appropriate, another person's liability to income tax for a year of assessment or to corporation tax for an accounting period, as the case may be, and
(b) the amount which would have been the amount so payable if—
(i) any statement or representation referred to in subsection (2) (a) had not been false,
(ii) any account, return, list, declaration or statement referred to in subsection (2) (b) (i) had not been false or fraudulent, or
(iii) the full amount of income referred to in subsection (2) (b) (ii) had been disclosed.
(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if—
(a) in relation to the person's liability to income tax for a year of assessment or to corporation tax for an accounting period, as the case may be, the person knowingly makes any false statement or false representation—
(i) in any return, statement or declaration made with reference to tax, or
(ii) for the purpose of obtaining any allowance, reduction, rebate or repayment of tax, or
(b) in relation to liability to income tax of any other person for a year of assessment or to liability to corporation tax of any other person for an accounting period, as the case may be, the person knowingly and wilfully aids, abets, assists, incites or induces that other person—
(i) to make or deliver a false or fraudulent account, return, list, declaration or statement with reference to property, profits or gains or to tax, or
(ii) unlawfully to avoid liability to tax by failing to disclose the full amount of that other person's income from all sources.
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction where the amount of the specified difference is—
(i) less than £1,200, to a fine not exceeding 25 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 12 months or to both;
(ii) equal to or greater than £1,200, to a fine not exceeding £1,200 or, at the discretion of the court, to a term of imprisonment not exceeding 12 months or to both;
or
(b) on conviction on indictment where the amount of the specified difference is—
(i) less than £5,000, to a fine not exceeding 25 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 2 years or to both;
(ii) equal to or greater than £5,000 but less than £10,000, to a fine not exceeding 50 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 3 years or to both;
(iii) equal to or greater than £10,000 but less than £25,000, to a fine not exceeding the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 4 years or to both;
(iv) equal to or greater than £25,000 but less than £100,000, to a fine not exceeding twice the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 8 years or to both;
(v) equal to or greater than £100,000, to a fine not exceeding twice the amount of the specified difference and to a term of imprisonment not exceeding 8 years.
(4) Subsections (4) and (6) to (8) of section 1078 shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of that section.
(5) This section shall not apply to a declaration given under section 2 or 3 of the Waiver of Certain Tax, Interest and Penalties Act, 1993 , by reason only of any false statement or false representation made in relation to subsection (3) (a) (iii) of section 2 of that Act or subsection (6) (b) (III) of section 3 of that Act, as the case may be.
num: 1057
paragraphs: —(1) Where any person (in this subsection referred to as “the first-mentioned person”) or any person in the first-mentioned person's employ, obstructs, molests or hinders—
(a) an officer or any person employed in relation to any duty of income tax or corporation tax in the execution of his or her duty, or of any of the powers or authorities by law given to the officer or person, or
(b) any person acting in the aid of an officer or any person so employed,
the first-mentioned person shall for every such offence incur a fine of £100.
(2) Without prejudice to any other mode of recovery, the fine imposed under this section may be proceeded for and recovered in the like manner and, in the case of summary proceedings, with the like power of appeal as any fine or penalty under any Act relating to the excise.
num: 1058
paragraphs: —(1) A person who refuses to allow a deduction of income tax or corporation tax authorised by the Tax Acts to be made out of any payment shall forfeit the sum of £50.
(2) Every agreement for payment of interest, rent or other annual payment in full without allowing any such deduction shall be void.
num: 1059
paragraphs: —Where an increased rate of income tax or corporation tax is imposed as a penalty, or as part of or in addition to a penalty, the penalty and increased rate of tax may be added to the assessment and collected and levied in the like manner as any tax included in such assessment may be collected and levied.
num: 1060
paragraphs: —(1) Where the person who has incurred any penalty has died, any proceedings under the Tax Acts which have been or could have been commenced against that person may be continued or commenced against his or her executor or administrator, as the case may be, and any penalty awarded in proceedings so continued or commenced shall be a debt due from and payable out of his or her estate.
(2) Proceedings may not be commenced by virtue of subsection (1) against the executor or administrator of a person at a time when by virtue of subsection (2) of section 1048 that executor or administrator is not assessable and chargeable under that section in respect of income tax on profits or gains which arose or accrued to the person before his or her death.
num: 1061
paragraphs: —(1) Without prejudice to any other mode of recovery of a penalty under the preceding provisions of this Part or under section 305 , 783 , 789 or 886 , an officer of the Revenue Commissioners authorised by them for the purposes of this subsection may sue in his or her own name by civil proceedings for the recovery of the penalty in the High Court as a liquidated sum, and section 94 of the Courts of Justice Act, 1924 , shall apply accordingly.
(2) Where an officer who has commenced proceedings pursuant to this section, or who has continued the proceedings by virtue of this subsection, dies or otherwise ceases for any reason to be an officer authorised for the purposes of subsection (1)—
(a) the right of such officer to continue the proceedings shall cease and the right to continue them shall vest in such other officer so authorised as may be nominated by the Revenue Commissioners,
(b) where such other officer is nominated under paragraph (a), he or she shall be entitled accordingly to be substituted as a party to the proceedings in the place of the first-mentioned officer, and
(c) where an officer is so substituted, he or she shall give notice in writing of the substitution to the defendant.
(3) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying that—
(a) a person is an officer of the Revenue Commissioners, and
(b) he or she has been authorised by them for the purposes of subsection (1),
shall be evidence of those facts until the contrary is proved.
(4) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying that—
(a) the plaintiff has ceased to be an officer of the Revenue Commissioners authorised by them for the purposes of subsection (1),
(b) another person is an officer of the Revenue Commissioners,
(c) such other person has been authorised by them for the purposes of subsection (1), and
(d) he or she has been nominated by them in relation to the proceedings for the purposes of subsection (2),
shall be evidence of those facts until the contrary is proved.
(5) In proceedings pursuant to this section, a certificate certifying the facts referred to in subsection (3) or (4) and purporting to be signed by a Revenue Commissioner may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been so signed.
(6) Subject to this section, the rules of the High Court for the time being applicable to civil proceedings shall apply to proceedings pursuant to this section.
num: 1062
paragraphs: —Notwithstanding that the amount of a penalty recoverable under the Tax Acts cannot be definitely ascertained by reason of the fact that the amount of income tax or, as the case may be, corporation tax by reference to which such penalty is to be calculated has not been finally ascertained, proceedings may be instituted for the recovery of such penalty and, if at the hearing of such proceedings the amount of such tax has not then been finally ascertained, the Court may, if it is of the opinion that such penalty is recoverable, adjourn such proceedings and shall not give any judgment or make any order for the payment of such penalty until the amount of such tax has been finally ascertained.
num: 1063
paragraphs: —Proceedings for the recovery of any fine or penalty incurred under the Tax Acts in relation to or in connection with income tax or corporation tax may, subject to section 1060 , be begun at any time within 6 years after the date on which such fine or penalty was incurred.
num: 1064
paragraphs: —Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings under section 889 , 987 or 1056 may be instituted within 10 years from the date of the committing of the offence or incurring of the penalty, as the case may be.
num: 1065
paragraphs: —(1) (a) The Revenue Commissioners may in their discretion mitigate any fine or penalty, or stay or compound any proceedings for the recovery of any fine or penalty, and may also, after judgment, further mitigate the fine or penalty, and may order any person imprisoned for any offence to be discharged before the term of his or her imprisonment has expired.
(b) The Minister for Finance may mitigate any such fine or penalty either before or after judgment.
(2) Notwithstanding subsection (1)—
(a) where a fine or penalty is mitigated or further mitigated, as the case may be, after judgment, the amount or amounts so mitigated shall, subject to paragraph (b), not be greater than 50 per cent of the amount of the fine or penalty, and
(b) in relation to an individual, being an individual referred to in section 2 (2) of the Waiver of Certain Tax, Interest and Penalties Act, 1993 , or a person referred to in section 3(2) of that Act, who—
(i) fails to give a declaration required by section 2(3) (a) of that Act, or
(ii) gives a declaration referred to in subparagraph (i) or a declaration under section 3(6) (b) of that Act which is false or fails to comply with the requirements of subparagraph (iii) or (iv) of section 2(3) (a) of that Act or subparagraph (III) of section 3(6) (b) of that Act to the extent that any of those subparagraphs apply to that person,
no mitigation shall be allowed.
(3) Moneys arising from fines, penalties and forfeitures, and all costs, charges and expenses payable in respect of or in relation to such fines, penalties and forfeitures, shall be accounted for and paid to the Revenue Commissioners or as they direct.
num: 1066
paragraphs: —If any person on any examination on oath, or in any affidavit or deposition authorised by the Tax Acts, wilfully and corruptly gives false evidence, or wilfully and corruptly swears any matter or thing which is false or untrue, that person shall on conviction be subject and liable to such punishment as persons convicted of perjury are subject and liable to.
num: 1067
paragraphs: —(1) Statements made or documents produced by or on behalf of a person shall not be inadmissible in any proceedings mentioned in subsection (2) by reason only that it has been drawn to the person's attention that—
(a) in relation to income tax or, as the case may be, corporation tax, the Revenue Commissioners may accept pecuniary settlements instead of instituting proceedings, and
(b) although no undertaking can be given as to whether or not the Revenue Commissioners will accept such a settlement in the case of any particular person, it is the practice of the Revenue Commissioners to be influenced by the fact that a person has made a full confession of any fraud or default to which the person has been a party and has given full facilities for investigation,
and that the person was or may have been induced thereby to make the statements or produce the documents.
(2) The proceedings referred to in subsection (1) are—
(a) any criminal proceedings against the person in question for any form of fraud or wilful default in connection with or in relation to income tax or corporation tax, and
(b) any proceedings against the person in question for the recovery of any sum due from that person, whether by means of tax, fine, forfeiture or penalty, in connection with or in relation to income tax or corporation tax.
num: 1068
paragraphs: —For the purposes of this Chapter, a person shall be deemed not to have failed to do anything required to be done within a limited time if the person did it within such further time, if any, as the Commissioners or officer concerned may have allowed and, where a person had a reasonable excuse for not doing anything required to be done, the person shall be deemed not to have failed to do it if the person did it without unreasonable delay after the excuse had ceased.
num: 1069
paragraphs: —(1) In this section, “assessment” includes—
(a) an additional assessment, and
(b) an assessment as amended under section 955 .
(2) For the purposes of this Chapter, any assessment which can no longer be varied by the Appeal Commissioners on appeal or by the order of any court shall be sufficient evidence that the income in respect of which income tax or, as the case may be, corporation tax is charged in the assessment arose or was received as stated in the assessment.
num: 1070
paragraphs: —The Tax Acts shall not affect any criminal proceedings for a felony or misdemeanour.
num: 1071
paragraphs: —(1) Where any company has been required by notice served under section 884 to deliver a return and the company fails to comply with the notice—
(a) the company shall be liable to a penalty of £500 except in the case mentioned in subsection (2) and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and
(b) the secretary of the company shall be liable to a separate penalty of £100 except in the case mentioned in subsection (2).
(2) Where any failure mentioned in subsection (1) continues after the expiration of one year beginning with the date on which the notice was served, the first of the penalties mentioned in that subsection for which the company is liable shall be £1,000, and the secretary of the company shall be liable to a separate penalty of £200.
(3) The reference in subsection (1) to the delivery of a return shall be deemed to include a reference to the doing of any of the things specified in subparagraphs (i) and (ii) of paragraph (b) of section 884 (9).
num: 1072
paragraphs: —(1) Where a company fraudulently or negligently—
(a) delivers an incorrect return under section 884 ,
(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction or relief in respect of corporation tax, or
(c) submits to an inspector, the Revenue Commissioners or the Appeal Commissioners any incorrect accounts in connection with the ascertainment of the company's liability to corporation tax,
the company shall be liable to a penalty of—
(i) £500 or, in the case of fraud, £1,000, and
(ii) the amount or, in the case of fraud, twice the amount of the difference specified in subsection (2), and
the secretary of the company shall be liable to a separate penalty of £100 or, in the case of fraud, £200.
(2) The difference referred to in subsection (1) shall be the difference between—
(a) the amount of corporation tax payable by the company for the accounting period or accounting periods comprising the period to which the return, statement, declaration or accounts relate, and
(b) the amount which would have been the amount so payable if the return, statement, declaration or accounts had been correct.
(3) Subsection (3) of section 1053 shall apply for the purposes of this section as it applies for the purposes of section 1053 .
num: 1073
paragraphs: —Where a company fails to deliver a statement which it is required to deliver under section 882 —
(a) the company shall be liable to a penalty of £500 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and
(b) the secretary of the company shall be liable to a separate penalty of £100.
num: 1074
paragraphs: —Where a company fails to give a notice which it is required to give under section 883 —
(a) the company shall be liable to a penalty of £500 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and
(b) the secretary of the company shall be liable to a separate penalty of £100.
num: 1075
paragraphs: —(1) Where any person has been required by notice given under or for the purposes of section 401 or 427 or Part 13 to furnish any information or particulars and that person fails to comply with the notice, that person shall be liable, subject to subsection (3), to a penalty of £100 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £10 for each day on which the failure so continues.
(2) Where the person fraudulently or negligently furnishes any incorrect information or particulars of a kind mentioned in section 239 , 401 or 427 or Part 13 , the person shall be liable, subject to subsection (4), to a penalty of £100 or, in the case of fraud, £250.
(3) Where the person mentioned in subsection (1) is a company—
(a) the company shall be liable to a penalty of £500 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and
(b) the secretary of the company shall be liable to a separate penalty of £100.
(4) Where the person mentioned in subsection (2) is a company—
(a) the company shall be liable to a penalty of £500 or, in the case of fraud, £1,000, and
(b) the secretary of the company shall be liable to a separate penalty of £100 or, in the case of fraud, £200.
(5) Subsection (3) of section 1053 shall apply for the purposes of this section as it applies for the purposes of section 1053 .
num: 1076
paragraphs: —(1) In this Chapter, “secretary” includes persons mentioned in section 1044 (2) and, in the case of a company not resident in the State, the agent, manager, factor or other representative of the company.
(2) In proceedings for the recovery of a penalty incurred under the provisions of the Corporation Tax Acts—
(a) a certificate signed by an inspector which certifies that he or she has examined his or her relevant records and that it appears from those records that a stated notice was duly given to the defendant on a stated day shall be evidence until the contrary is proved that the defendant received that notice in the ordinary course;
(b) a certificate signed by an inspector which certifies that he or she has examined his or her relevant records and that it appears from those records that during a stated period a stated return was not received from the defendant shall be evidence until the contrary is proved that the defendant did not during that period deliver that return;
(c) a certificate certifying as provided for in paragraph (a) or (b) and purporting to be signed by an inspector may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by such inspector.
num: 1077
paragraphs: —(1) Without prejudice to the generality of section 913 (1), Chapter 1 of this Part shall, subject to any necessary modifications, apply in relation to capital gains tax, and sections 1052 , 1053 and 1054 , as applied by this section, shall for the purposes of the Capital Gains Tax Acts be construed as if in Schedule 29 there were included—
(a) in column 1, references to sections 914 to 917 ,
(b) in column 2, a reference to section 945 , and
(c) in column 3, a reference to section 980 .
(2) Where any person has been required by notice or precept given under the provisions of the Income Tax Acts as applied by section 913 , or under section 914 , 915 , 916 , 917 or 980 , to do any act of a kind mentioned in any of the those provisions or sections, and the person fails to comply with the notice or precept, or where any person fraudulently or negligently makes, delivers, furnishes or produces any incorrect return, statement, declaration, list, account, particulars or other document (or knowingly makes any false statement or false representation) under any of those provisions or sections, Chapter 1 of this Part shall apply to the person for the purposes of capital gains tax as it applies in the case of a like failure or act for the purposes of income tax.
num: 1078
paragraphs: —(1) In this Part—
“the Acts” means—
(a) the Customs Acts,
(b) the statutes relating to the duties of excise and to the management of those duties,
(c) the Tax Acts,
(d) the Capital Gains Tax Acts,
(e) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(f) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(g) the statutes relating to stamp duty and to the management of that duty, and
(h) Part VI of the Finance Act, 1983 ,
and any instruments made thereunder and any instruments made under any other enactment and relating to tax;
“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise any of the powers conferred by the Acts;
“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.
(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person—
(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wilfully furnishes any incorrect information in connection with any tax,
(b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or accounts in connection with any tax,
(c) claims or obtains relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which, to the person's knowledge, the person is not entitled,
(d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax,
(e) (i) fails to make any deduction required to be made by the person under section 257 (1),
(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 258 (3), or
(iii) fails to pay to the Collector-General an amount on account of appropriate tax (within the meaning of Chapter 4 of Part 8 ) within the time specified in that behalf in section 258 (4),
(f) (i) fails to make any deduction required to be made by the person under section 734 (5), or
num: 1079
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Customs Acts,
(b) the statutes relating to the duties of excise and to the management of those duties,
(c) the Tax Acts,
(d) the Capital Gains Tax Acts,
(e) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(f) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(g) the statutes relating to stamp duty and to the management of that duty,
and any instruments made thereunder and any instruments made under any other enactment and relating to tax;
“appropriate officer” means any officer nominated by the Revenue Commissioners to be an appropriate officer for the purposes of this section;
“company” means any body corporate;
“relevant person”, in relation to a company and subject to subsection (2), means a person who—
(a) (i) is an auditor to the company appointed in accordance with section 160 of the Companies Act, 1963 (as amended by the Companies Act, 1990 ), or
(ii) in the case of an industrial and provident society or a friendly society, is a public auditor to the society for the purposes of the Industrial and Provident Societies Acts, 1893 to 1978, and the Friendly Societies Acts, 1896 to 1977,
or
(b) with a view to reward, assists or advises the company in the preparation or delivery of any information, declaration, return, records, accounts or other document which he or she knows will be or is likely to be used for any purpose of tax;
“relevant offence” means an offence committed by a company which consists of the company—
(a) knowingly or wilfully delivering any incorrect return, statement or accounts or knowingly or wilfully furnishing or causing to be furnished any incorrect information in connection with any tax,
(b) knowingly or wilfully claiming or obtaining relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which there is no entitlement,
(c) knowingly or wilfully issuing or producing any incorrect invoice, receipt, instrument or other document in connection with any tax, or
(d) knowingly or wilfully failing to comply with any provision of the Acts requiring the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax, but an offence under this paragraph committed by a company shall not be a relevant offence if the company has made a return of income, profits or gains to the Revenue Commissioners in respect of an accounting period falling wholly or partly in the period of 3 years preceding the accounting period in respect of which the offence was committed;
“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.
(2) For the purposes of paragraph (b) of the definition of “relevant person”, a person who but for this subsection would be treated as a relevant person in relation to a company shall not be so treated if the person assists or advises the company solely in the person's capacity as an employee of the company, and a person shall be treated as assisting or advising the company in that capacity where the person's income from assisting or advising the company consists solely of emoluments to which Chapter 4 of Part 42 applies.
(3) If, having regard solely to information obtained in the course of examining the accounts of a company, or in the course of assisting or advising a company in the preparation or delivery of any information, declaration, return, records, accounts or other document for the purposes of tax, as the case may be, a person who is a relevant person in relation to the company becomes aware that the company has committed, or is in the course of committing, one or more relevant offences, the person shall, if the offence or offences are material—
(a) communicate particulars of the offence or offences in writing to the company without undue delay and request the company to—
(i) take such action as is necessary for the purposes of rectifying the matter, or
(ii) notify an appropriate officer of the offence or offences,
not later than 6 months after the time of communication, and
(b) (i) unless it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a), cease to act as the auditor to the company or to assist or advise the company in such preparation or delivery as is specified in paragraph (b) of the definition of “relevant person”, and
(ii) shall not so act, assist or advise before a time which is the earlier of—
(I) 3 years after the time at which the particulars were communicated under paragraph (a), and
(II) the time at which it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a).
(4) Nothing in paragraph (b) of subsection (3) shall prevent a person from assisting or advising a company in preparing for, or conducting, legal proceedings, either civil or criminal, which are extant or pending at a time which is 6 months after the time of communication under paragraph (a) of that subsection.
(5) Where a person, being in relation to a company a relevant person within the meaning of paragraph (a) of the definition of “relevant person”, ceases under this section to act as auditor to the company, then, the person shall deliver—
(a) a notice in writing to the company stating that he or she is so resigning, and
(b) a copy of the notice to an appropriate officer not later than 14 days after he or she has delivered the notice to the company.
(6) A person shall be guilty of an offence under this section if the person—
(a) fails to comply with subsection (3) or (5), or
(b) knowingly or wilfully makes a communication under subsection (3) which is incorrect.
(7) Where a relevant person is convicted of an offence under this section, the person shall be liable—
(a) on summary conviction, to a fine of £1,000 which may be mitigated to not less than one-fourth part of such fine, or
(b) on conviction on indictment, to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.
(8) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (7) (a), and the reference in subsection (2) (a) of section 13 of the Criminal Procedure Act, 1967 , to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.
(9) Notwithstanding any other enactment, proceedings in respect of this section may be instituted within 6 years from the time at which a person is required under subsection (3) to communicate particulars of an offence or offences in writing to a company.
(10) It shall be a good defence in a prosecution for an offence under subsection (6) (a) in relation to a failure to comply with subsection (3) for an accused (being a person who is a relevant person in relation to a company) to show that he or she was in the ordinary scope of professional engagement assisting or advising the company in preparing for legal proceedings and would not have become aware that one or more relevant offences had been committed by the company if he or she had not been so assisting or advising.
(11) Where a person who is a relevant person takes any action required by subsection (3) or (5), no duty to which the person may be subject shall be regarded as having been contravened and no liability or action shall lie against the person in any court for having taken such action.
(12) The Revenue Commissioners may nominate an officer to be an appropriate officer for the purposes of this section, and the name of an officer so nominated and the address to which copies of notices under subsection (3) or (5) shall be delivered shall be published in Iris OifigiÃºil.
(13) This section shall apply as respects a relevant offence committed by a company in respect of tax which is—
(a) assessable by reference to accounting periods, for any accounting period beginning after the 30th day of June, 1995,
(b) assessable by reference to years of assessment, for the year 1995-96 and subsequent years of assessment,
(c) payable by reference to a taxable period, for a taxable period beginning after the 30th day of June, 1995,
(d) chargeable on gifts or inheritances taken on or after the 30th day of June, 1995,
(e) chargeable on instruments executed on or after the 30th day of June, 1995, or
(f) payable in any other case, on or after the 30th day of June, 1995.
num: 1080
paragraphs: —(1) (a) Subject to this section and section 1081 , any tax charged by any assessment to income tax or corporation tax shall carry interest at the rate of 1.25 per cent for each month or part of a month from the date when the tax becomes due and payable until payment.
(b) Any tax charged by any assessment to income tax shall, notwithstanding any appeal against such assessment, carry interest at the rate of 1.25 per cent for each month or part of a month from the date when, if there were no appeal against the assessment, the tax would become due and payable under section 960 until payment.
(2) Interest shall not be payable under this section on the tax charged by any assessment unless the total amount of the interest is not less than £1.
(3) The interest payable under this section—
(a) shall be payable without any deduction of income tax and shall not be allowed as a deduction in computing any income, profits or losses for any of the purposes of the Tax Acts, and
(b) shall be deemed to be a debt due to the Minister for Finance for the benefit of the Central Fund and shall be payable to the Revenue Commissioners,
and, subject to subsection (4)—
(i) every enactment relating to the recovery of any tax charged by an assessment,
(ii) every rule of court so relating,
(iii) section 81 of the Bankruptcy Act, 1988 , and
(iv) sections 98 and 285 of the Companies Act, 1963 ,
shall apply to the recovery of any amount of interest payable on that tax as if that amount of interest were a part of that tax.
(4) In proceedings instituted by virtue of subsection (3)—
(a) a certificate by the Collector-General certifying that a stated amount of interest is due and payable by the person against whom the proceedings were instituted shall be evidence until the contrary is proved that that amount is so due and payable, and
(b) a certificate so certifying and purporting to be signed by the Collector-General may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by the Collector-General.
num: 1081
paragraphs: —(1) Subject, in the case of income tax, to subsection (2)—
(a) where relief from income tax or corporation tax charged by any assessment referred to in section 1080 (1) is given to any person by a discharge of any of that tax, such adjustment shall be made of the amount payable under that section in relation to the assessment, and such repayment shall be made of any amounts previously paid under that section in relation to the assessment, as are necessary to secure that the total sum, if any, paid or payable under that section in relation to the assessment is the same as it would have been if the tax discharged had never been charged, and
(b) where relief from income tax paid for any year of assessment, or corporation tax paid for any accounting period, is given to any person by repayment, that person shall be entitled to require that the amount repaid shall be treated for the purposes of this subsection to the extent possible as if it were a discharge of the tax charged on that person (whether alone or together with other persons) by any assessment for the same year or, as the case may be, the same accounting period; but the relief shall not be applied to any assessment made after the relief was given and shall not be applied to more than one assessment so as to reduce without extinguishing the amount of tax charged thereby.
(2) No relief, whether by means of discharge or repayment, shall be treated as affecting tax charged by an assessment to income tax unless it is a relief from income tax.
num: 1082
paragraphs: —(1) In this section, “neglect”, in the case of corporation tax, has the same meaning as in section 919 (5) (a) and, in the case of income tax, has the same meaning as in section 924 (2) (a).
(2) Where for any year of assessment or accounting period an assessment is made for the purpose of recovering an undercharge to income tax or corporation tax, as the case may be, attributable to the fraud or neglect of any person, the amount of the tax undercharged shall carry interest at the rate of 2 per cent for each month or part of a month from the date or dates on which the tax undercharged for that year or accounting period, as the case may be, would have been payable if it had been included in an assessment made—
(a) in the case of income tax, before the 1st day of October in that year, and
(b) in the case of corporation tax, on the expiration of 6 months from the end of that accounting period,
to the date of payment of the tax undercharged.
(3) Subject to subsection (5), section 1080 (1) shall not apply to tax carrying interest under this section.
(4) Subsections (2) to (4) of section 1080 and, in the case of income tax, section 1081 shall apply to interest chargeable under this section as they apply to interest chargeable under section 1080 .
(5) Where an assessment of the kind referred to in subsection (2) is made—
(a) the inspector concerned shall give notice to the person assessed that the tax charged by the assessment will carry interest under this section,
(b) the person assessed may appeal against the assessment on the ground that interest should not be charged under this section, and the provisions of the Tax Acts relating to appeals against assessments shall apply with any necessary modifications in relation to the appeal as they apply in relation to those appeals, and
(c) if on the appeal it is determined that the tax charged by the assessment should not carry interest under this section, section 1080 (1) shall apply to that tax.
num: 1083
paragraphs: —Without prejudice to sections 931 (2) and 976 (2), sections 1080 to 1082 shall, subject to any necessary modifications, apply to capital gains tax.
num: 1084
paragraphs: —(1) (a) In this section—
“chargeable person”, in relation to a year of assessment or an accounting period, means a person who is a chargeable person for the purposes of Part 41 ;
“return of income” means a return, statement, declaration or list which a person is required to deliver to the inspector by reason of a notice given by the inspector under any one or more of the specified provisions, and includes a return which a chargeable person is required to deliver under section 951 ;
“specified return date for the chargeable period” has the same meaning as in section 950 ;
“specified provisions” means sections 877 to 881 and 884 , paragraphs (a) and (d) of section 888 (2), and section 1023 ;
“tax” means income tax, corporation tax or capital gains tax, as may be appropriate.
(b) For the purposes of this section—
(i) where a person fraudulently or negligently delivers an incorrect return of income on or before the specified return date for the chargeable period, the person shall be deemed to have failed to deliver the return of income on or before that date unless the error in the return of income is remedied on or before that date,
(ii) where a person delivers an incorrect return of income on or before the specified return date for the chargeable period but does so neither fraudulently nor negligently and it comes to the person's notice (or, if he or she has died, to the notice of his or her personal representatives) that it is incorrect, the person shall be deemed to have failed to deliver the return of income on or before the specified return date for the chargeable period unless the error in the return of income is remedied without unreasonable delay,
(iii) where a person delivers a return of income on or before the specified return date for the chargeable period but the inspector, by reason of being dissatisfied with any statement of profits or gains arising to the person from any trade or profession which is contained in the return of income, requires the person, by notice in writing served on the person under section 900 , to do any thing, the person shall be deemed not to have delivered the return of income on or before the specified return date for the chargeable period unless the person does that thing within the time specified in the notice, and
(iv) references to such of the specified provisions as are applied, subject to any necessary modifications, in relation to capital gains tax by section 913 shall be construed as including references to those provisions as so applied.
(2) (a) Subject to paragraph (b), where in relation to a year of assessment or accounting period a chargeable person fails to deliver a return of income on or before the specified return date for the chargeable period, any amount of tax for that year of assessment or accounting period which apart from this section is or would be contained in an assessment to tax made or to be made on the chargeable person shall be increased by an amount (in this subsection referred to as “the surcharge”) equal to—
(i) 5 per cent of that amount of tax, subject to a maximum increased amount of £10,000, where the return of income is delivered before the expiry of 2 months from the specified return date for the chargeable period, and
(ii) 10 per cent of that amount of tax, subject to a maximum increased amount of £50,000, where the return of income is not delivered before the expiry of 2 months from the specified return date for the chargeable period,
and, if the tax contained in the assessment is not the amount of tax as so increased, then, the provisions of the Tax Acts and the Capital Gains Tax Acts (apart from this section), including in particular those provisions relating to the collection and recovery of tax and the payment of interest on unpaid tax, shall apply as if the tax contained in the assessment to tax were the amount of tax as so increased.
(b) In determining the amount of the surcharge, the tax contained in the assessment to tax shall be deemed to be reduced by the aggregate of—
(i) any tax deducted by virtue of any of the provisions of the Tax Acts or the Capital Gains Tax Acts from any income, profits or chargeable gains charged in the assessment to tax in so far as that tax has not been repaid or is not repayable to the chargeable person and in so far as the tax so deducted may be set off against the tax contained in the assessment to tax,
(ii) the amount of any tax credit to which the chargeable person is entitled in respect of any income, profits or chargeable gains charged in the assessment to tax, and
(iii) any other amounts which are set off in the assessment to tax against the tax contained in that assessment.
(3) In the case of a person—
(a) who is a director within the meaning of section 116 , or
(b) to whom section 1017 applies and whose spouse is a director within the meaning of section 116 ,
subsection (2) (b) (i) shall not apply in respect of any tax deducted under Chapter 4 of Part 42 in determining the amount of a surcharge under this section.
(4) (a) Notwithstanding subsections (1) to (3), the specified return date for the chargeable period, being a year of assessment (in paragraph (b) referred to as “the first-mentioned year of assessment”) to which section 66 (1) applies, shall be the date which is the specified return date for the year of assessment following that year.
(b) Paragraph (a) shall only apply if throughout the first-mentioned year of assessment the chargeable person or that person's spouse, not being a spouse in relation to whom section 1016 applies for that year of assessment, was not carrying on a trade or profession set up and commenced in a previous year of assessment.
(5) This section shall apply in relation to an amount of preliminary tax (within the meaning of Part 41 ) whether paid under section 952 or specified in a notice under section 953 as it applies to an amount of tax specified in an assessment.
num: 1085
paragraphs: —(1) (a) In this section—
“chargeable period” means an accounting period of a company;
“group relief” has the meaning assigned to it by section 411 ;
“return of income” means a return which a company is required to deliver under section 951 ;
“specified return date for the chargeable period” has the same meaning as in section 950 .
(b) Subparagraphs (i), (ii) and (iii) of paragraph (b) of subsection (1) of section 1084 shall apply for the purposes of this section as they apply for the purposes of that section.
(2) Notwithstanding any other provision of the Tax Acts, where in relation to a chargeable period a company fails to deliver a return of income for the chargeable period on or before the specified return date for the chargeable period, then, subject to subsections (3) and (4), the following provisions shall apply:
(a) any claim in respect of the chargeable period under section 308 (4), 396 (2) or 399 (2) shall be so restricted that the amount by which the company's profits of that or any other chargeable period are to be reduced by virtue of the claim shall be 50 per cent of the amount it would have been if this section had not been enacted,
(b) the total amount of group relief which the company may claim in respect of the chargeable period shall not exceed 50 per cent of the company's profits of the chargeable period as reduced by any other relief from tax other than group relief,
(c) the total amount of the loss referred to in subsection (1) of section 420 for the chargeable period and the total amount of the excess referred to in subsection (2), (3) or (6) of that section for that period shall each be treated for the purposes of Chapter 5 of Part 12 as reduced by 50 per cent,
(d) any claim in respect of the chargeable period under section 160 (3) shall be so restricted that the amount of advance corporation tax which is treated as if it were advance corporation tax paid in respect of distributions made by the company in any preceding chargeable period shall be 50 per cent of the amount which would have been so treated if this section had not been enacted, and
(e) the company may not surrender under section 166 (1) more than 50 per cent of the excess of the total amount of advance corporation tax it has paid (and which has not been repaid) in respect of a dividend or dividends paid by it in the chargeable period over the amount of such advance corporation tax which under section 160 (2) is set against its liability to corporation tax for the chargeable period.
(3) Subject to subsection (4), any restriction or reduction imposed by paragraph (a), (b), (c), (d) or (e) of subsection (2) in respect of a chargeable period in the case of a company which fails to deliver a return of income on or before the specified return date for the chargeable period shall apply subject to—
(a) in the case of the restrictions or reductions imposed by paragraph (a), (b) or (c) of subsection (2), a maximum restriction or reduction, as the case may be, of £125,000 in each case for the chargeable period, and
(b) in the case of the restrictions imposed by paragraph (d) or (e) of subsection (2), a maximum restriction of £50,000 in each case for the chargeable period.
(4) Where in relation to a chargeable period a company, having failed to deliver a return of income on or before the specified return date for the chargeable period, delivers that return before the expiry of 2 months from the specified return date for the chargeable period, paragraphs (a) to (e) of subsection (2) shall apply—
(a) as if the references in those paragraphs to “50 per cent” were references to “75 per cent” in the case of paragraphs (a), (b), (d) and (e) and “25 per cent” in the case of paragraph (c), and
(b) subject to—
(i) in the case of the restrictions or reductions imposed by paragraph (a), (b) or (c) of subsection (2), a maximum restriction or reduction, as the case may be, of £25,000 in each case for the chargeable period, and
(ii) in the case of the restrictions imposed by paragraph (d) or (e) of subsection (2), a maximum restriction of £10,000 in each case for the chargeable period.
num: 1086
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts,
(c) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
(d) the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act,
(e) the statutes relating to stamp duty and to the management of that duty, and
(f) Part VI of the Finance Act, 1983 ,
and any instruments made thereunder;
“tax” means income tax, capital gains tax, corporation tax, value-added tax, gift tax, inheritance tax, residential property tax and stamp duty.
(2) The Revenue Commissioners shall, as respects each relevant period (being the period beginning on the 1st day of January, 1997, and ending on the 30th day of June, 1997, and each subsequent period of 3 months beginning with the period ending on the 30th day of September, 1997), compile a list of the names and addresses and the occupations or descriptions of every person—
(a) on whom a fine or other penalty was imposed by a court under any of the Acts during that relevant period,
(b) on whom a fine or other penalty was otherwise imposed by a court during that relevant period in respect of an act or omission by the person in relation to tax, or
(c) in whose case the Revenue Commissioners, pursuant to an agreement made with the person in that relevant period, refrained from initiating proceedings for the recovery of any fine or penalty of the kind mentioned in paragraphs (a) and (b) and, in place of initiating such proceedings, accepted or undertook to accept a specified sum of money in settlement of any claim by the Revenue Commissioners in respect of any specified liability of the person under any of the Acts for—
(i) payment of any tax,
(ii) payment of interest on that tax, and
(iii) a fine or other monetary penalty in respect of that tax.
(3) Notwithstanding any obligation as to secrecy imposed on them by the Acts or the Official Secrets Act, 1963 —
(a) the Revenue Commissioners shall, before the expiration of 3 months from the end of each relevant period, cause each such list referred to in subsection (2) in relation to that period to be published in Iris OifigiÃºil, and
(b) the Revenue Commissioners may at any time cause any such list referred to in subsection (2) to be publicised in such manner as they shall consider appropriate.
(4) Paragraph (c) of subsection (2) shall not apply in relation to a person in whose case—
(a) the Revenue Commissioners are satisfied that, before any investigation or inquiry had been commenced by them or by any of their officers into any matter occasioning a liability referred to in that paragraph of the person, the person had voluntarily furnished to them complete information in relation to and full particulars of that matter,
(b) section 72 of the Finance Act, 1988 , or section 3 of the Waiver of Certain Tax, Interest and Penalties Act, 1993 , applied, or
(c) the specified sum referred to in paragraph (c) of subsection (2) does not exceed £10,000.
(5) Any list referred to in subsection (2) shall specify in respect of each person named in the list such particulars as the Revenue Commissioners think fit—
(a) of the matter occasioning the fine or penalty of the kind referred to in subsection (2) imposed on the person or, as the case may be, the liability of that kind to which the person was subject, and
(b) of any interest, fine or other monetary penalty, and of any other penalty or sanction, to which that person was liable, or which was imposed on that person by a court, and which was occasioned by the matter referred to in paragraph (a).
num: 1087
paragraphs: —(1) Where in any year of assessment any payments have been made, before the passing of an Act increasing the rate of income tax for that year, on account of any interest, dividends or other annual profits or gains from which under the Tax Acts income tax is required to be deducted and tax has not been charged on or deducted from those payments, or has not been charged on or deducted from those payments at the increased rate of tax for that year—
num: 1088
paragraphs: —(1) In determining the amount of profits or gains for the purpose of income tax—
(a) no deductions shall be made other than those expressly provided for by the Income Tax Acts, and
(b) no deduction shall be made on account of any annuity or other annual payment (other than interest) to be paid out of such profits or gains in regard that a proportionate part of the income tax is allowed to be deducted on making any such payment.
(2) In determining the amount of profits or gains from any property described in the Income Tax Acts or from any office or employment of profit, no deduction shall be made on account of diminution of capital employed, or of loss sustained, in any trade or in any profession or employment.
num: 1089
paragraphs: —(1) Interest payable under—
(a) section 15 of the Stamp Act, 1891, and subsections (2) and (3) of section 69 of the Finance Act, 1973 ,
(b) section 21 of the Value-Added Tax Act, 1972 , or
(c) section 531 (9) or 991 ,
shall be payable without any deduction of income tax and shall not be allowed in computing any income, profits or losses for any of the purposes of the Income Tax Acts.
(2) Interest payable under section 18 of the Wealth Tax Act, 1975 , or section 41 of the Capital Acquisitions Tax Act, 1976 , shall not be allowed in computing any income, profits or losses for any of the purposes of the Tax Acts.
num: 1090
paragraphs: —Where an assessment has become final and conclusive for the purposes of income tax for any year of assessment, that assessment shall also be final and conclusive in estimating total income from all sources for the purposes of the Income Tax Acts, and no allowance or adjustment of liability, on the ground of diminution of income or loss, shall be taken into account in estimating such total income from all sources for such purposes unless that allowance or adjustment has been previously made on an application under the special provisions of the Income Tax Acts relating to that allowance or adjustment.
num: 1091
paragraphs: —(1) In this section, “company” means a company within the meaning of the Companies Act, 1963 , and a company created by letters patent or by or in pursuance of any statute.
(2) Every warrant, cheque or other order sent or delivered for the purpose of paying any interest which is not a distribution within the meaning of the Corporation Tax Acts by a company which is entitled to deduct income tax from such interest shall have annexed to it, or be accompanied by, a statement in writing showing—
(a) the gross amount which, after deduction of the income tax appropriate to such interest, corresponds to the net amount actually paid,
(b) the rate and amount of income tax appropriate to such gross amount, and
(c) the net amount actually paid.
(3) A company which fails to comply with subsection (2) shall incur a penalty of £10 in respect of each offence but the aggregate amount of the penalties imposed under this section on any company in respect of offences connected with any one payment or distribution of interest shall not exceed £100.
num: 1092
paragraphs: —(1) This section shall apply to any charge imposed on public moneys, being a charge for the purposes of relief (in this section referred to as “the relief”) under the Rates on Agricultural Land (Relief) Acts, 1939 to 1980, and any subsequent enactment together with which those Acts may be cited.
(2) Where a charge to which this section applies is to be made, the Revenue Commissioners or any officer authorised by them for that purpose may, in connection with the establishment of title to the relief of a person (in this subsection referred to as “the claimant”), notwithstanding any obligation as to secrecy imposed on them under the Income Tax Acts or under any other enactment, disclose to any person specified in column (1) of the Table to this section information of the kind specified in column (2) of that Table, being information in respect of the claimant which is required by that person when considering the claimant's title to the relief.
(3) In the Table to this section, “occupation” has the same meaning as in section 654 , and “rating authority” has the same meaning as in section 898 .
TABLE
(1)
(2)
Persons to whom information to be given
Information to be given
The secretary or clerk, or a person acting as such, to a rating authority or any officer of the Minister for the Environment and Local Government authorised by that Minister for the purpose of this section.
Information relating to the occupation of land by the claimant and the rateable valuation of such land.
num: 1093
paragraphs: —Any obligation to maintain secrecy or other restriction on the disclosure or production of information (including documents) obtained by or furnished to the Revenue Commissioners, or any person on their behalf, for taxation purposes, shall not apply to the disclosure or production of information (including documents) to the Ombudsman for the purposes of an examination or investigation by the Ombudsman under the Ombudsman Act, 1980 , of any action (within the meaning of that Act) taken by or on behalf of the Revenue Commissioners, being such an action taken in the performance of administrative functions in respect of any tax or duty under the care and management of the Revenue Commissioners.
num: 1094
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts, and
(c) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
and any instruments made thereunder;
“beneficial holder of a licence” means the person who conducts the activities under the licence and, in relation to a licence issued under the Auctioneers and House Agents Act, 1947 , includes the authorised individual referred to in section 8(4), or the nominated individual referred to in section 9(1), of that Act;
“licence” means a licence or authorisation, as the case may be, of the kind referred to in—
(a) the proviso (inserted by section 156 of the Finance Act, 1992 ) to section 49(1) of the Finance (1909-1910) Act, 1910,
(b) the further proviso (inserted by section 79 (1) of the Finance Act, 1993 ) to section 49(1) of the Finance (1909-1910) Act, 1910,
(c) the proviso (inserted by section 79 (2) of the Finance Act, 1993 ) to section 7 (3) of the Betting Act, 1931 ,
(d) the proviso (inserted by section 79 (3) of the Finance Act, 1993 ) to section 19 of the Gaming and Lotteries Act, 1956 ,
(e) the proviso (inserted by section 79 (4) (a) of the Finance Act, 1993 ) to subsection (1) of section 8 of the Auctioneers and House Agents Act, 1947 ,
(f) the proviso (inserted by section 79 (4) (b) of the Finance Act, 1993 ) to subsection (1) of section 9 of the Auctioneers and House Agents Act, 1947 (an auction permit under that section being deemed for the purposes of this section to be a licence),
(g) the proviso (inserted by section 79 (4) (c) of the Finance Act, 1993 ) to subsection (1) of section 10 of the Auctioneers and House Agents Act, 1947 ,
(h) the proviso (inserted by section 79 (5) of the Finance Act, 1993 ) to paragraph 12(12) of the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 ( S.I. No. 307 of 1975 ),
(i) the proviso (inserted by section 79 (6) of the Finance Act, 1993 ) to paragraph (b) of subsection (3) of section 45 of the Finance Act, 1989 , and
(j) section 93 , 116 or 144 of the Consumer Credit Act, 1995 ;
“specified date” means the date of commencement of a licence sought to be granted under any of the provisions referred to in paragraphs (a) to (i) of the definition of “licence” as specified for the purposes of a tax clearance certificate under subsection (2);
“tax clearance certificate” shall be construed in accordance with subsection (2).
(2) Subject to subsection (3), the Collector-General shall, on an application to him or her by the person who will be the beneficial holder of a licence due to commence on a specified date, issue a certificate (in this section referred to as a “tax clearance certificate”) for the purposes of the grant of a licence if—
(a) that person and, in respect of the period of that person's membership, any partnership of which that person is or was a partner,
(b) in a case where that person is a partnership, each partner,
(c) in a case where that person is a company, each person who is either the beneficial owner of, or able directly or indirectly to control, more than 50 per cent of the ordinary share capital of the company,
has or have complied with all the obligations imposed on that person or on them 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.
(3) Subject to subsection (4), where a person (in this section referred to as “the first-mentioned person”) will be the beneficial holder of a licence due to commence on a specified date and another person (in this section referred to as “the second-mentioned person”) was the beneficial holder of the licence at any time during the year ending on that date, and—
(a) the second-mentioned person is a company connected (within the meaning of section 10 as it applies for the purposes of the Tax Acts) with the first-mentioned person or would have been such a company but for the fact that the company has been wound up or dissolved without being wound up,
(b) the second-mentioned person is a company and the first-mentioned person is a partnership in which—
(i) a partner is or was able, or
(ii) where more than one partner is a shareholder, those partners together are or were able,
directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company, or
(c) the second-mentioned person is a partnership and the first-mentioned person is a company in which—
(i) a partner is or was able, or
(ii) where more than one partner is a shareholder, those partners together are or were able,
directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company,
then, a tax clearance certificate shall not be issued by the Collector-General under subsection (2) unless, in relation to the activities conducted under the licence, the second-mentioned person has complied with the second-mentioned person's obligations under the Acts as specified in subsection (2).
(4) Subsection (3) shall not apply to a transfer of a licence effected before the 24th day of April, 1992, or to such transfer effected after that date where a contract for the sale or lease of the premises to which the licence relates was signed before that date.
(5) An application for a tax clearance certificate under this section shall be made to the Collector-General in a form prescribed by the Revenue Commissioners and shall specify the commencement date of the licence to which the application relates and, where that licence is for a period of less than one year, the licensing period.
(6) Where an application for a tax clearance certificate under this section 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 person concerned.
(7) (a) Where an application under this section to the Collector-General for a tax clearance certificate 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 section in relation to any amount of tax or interest due under the Acts.
(b) A notice under paragraph (a) shall be valid only if—
(i) 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
(ii) any amount under the Acts which is due to be remitted or paid, and which is not in dispute, is duly remitted or paid.
(c) The Appeal Commissioners shall hear and determine an appeal made to them under this subsection as if it were an appeal against an assessment to income tax and, subject to paragraph (d), 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.
(d) On the hearing of an appeal made under this subsection, the Appeal Commissioners shall have regard to all matters to which the Collector-General is required to have regard under this section.
num: 1095
paragraphs: —(1) In this section—
“the Acts” means—
(a) the Tax Acts,
(b) the Capital Gains Tax Acts, and
(c) the Value-Added Tax Act, 1972 , and the enactments amending or extending that Act,
and any instruments made thereunder;
“the scheme” means a scheme of the Department of Finance for the time being in force requiring persons to show, by means of tax clearance certificates, compliance with the obligations imposed by the Acts in relation to the matters specified in subsection (2) before the award to them of contracts that are specified in a circular of the Department of Finance entitled “Tax Clearance Procedures— Public Sector Contracts”, numbered F 49/24/84 and issued on the 30th day of July, 1991, or any such circular amending or replacing that circular;
“tax clearance certificate” shall be construed in accordance with subsection (2).
(2) Subject to this section, where a person who is in compliance with the obligations imposed on the person by the Acts in relation to—
(a) the payment or remittance of any taxes, interest or penalties required to be paid or remitted under the Acts to the Revenue Commissioners, and
(b) the delivery of any returns required to be made under the Acts,
applies to the Collector-General in that behalf for the purposes of the scheme, the Collector-General shall issue to the person a certificate (in this section referred to as a “tax clearance certificate”) stating that the person is in compliance with those obligations.
(3) A tax clearance certificate shall not be issued to a person unless—
(a) the person and, in respect of the period of the person's membership, any partnership of which the person is or was a member,
(b) in a case where the person is a partnership, each person who is a member of the partnership, and
(c) in a case where the person is a company, each person who is either the beneficial owner of, or able directly or indirectly to control, more than 50 per cent of the ordinary share capital of the company,
is in compliance with the obligations imposed on the person and each other person (including any partnership) by the Acts in relation to the matters specified in paragraphs (a) and (b) of subsection (2).
(4) Where a person (in this subsection referred to as “the first-mentioned person”) applies for a tax clearance certificate in accordance with subsection (2) and the business activity to which the application relates was previously carried on by, or was previously carried on as part of a business activity carried on by, another person (in this subsection referred to as “the second-mentioned person”) and—
(a) the second-mentioned person is a company which is connected (within the meaning of section 10 as it applies for the purposes of the Tax Acts) with the first-mentioned person or would have been such a company but for the fact that the company has been wound up or dissolved without being wound up,
(b) the second-mentioned person is a company and the first-mentioned person is a partnership and—
(i) a member of the partnership is or was able, or
(ii) where more than one such member is a shareholder of the company, those members acting together are or were able,
directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company, or
(c) the second-mentioned person is a partnership and the first-mentioned person is a company and—
(i) a member of the partnership is or was able, or
(ii) where more than one such member is a shareholder of the company, those members acting together are or were able,
directly or indirectly, whether with or without a connected person or connected persons (within the meaning of section 10 as it applies for the purposes of the Tax Acts), to control more than 50 per cent of the ordinary share capital of the company,
then, a tax clearance certificate shall not be issued to the first-mentioned person unless, in relation to the business activity to which the application relates, the second-mentioned person is in compliance with the obligations imposed on that person by the Acts in relation to the matters specified in paragraphs (a) and (b) of subsection (2).
(5) Subsection (4) shall not apply to a business the transfer of which was effected before the 9th day of May, 1995, or a business the transfer of which is or was effected after that date if a contract for the transfer was made before that date.
(6) Subsections (5), (6) and (7) of section 1094 shall, with any necessary modifications, apply to an application for a tax clearance certificate under this section as they apply to an application for a tax clearance certificate under that section.
(7) A tax clearance certificate shall be valid for the period specified in the certificate.
num: 1096
paragraphs: —For the purpose of determining liability for assessment to and payment of income tax, the Electricity Supply Board is not and never was the State or a branch or department of the Government of the State.
num: 1097
paragraphs: —(1) Except where otherwise provided by or under this Act, this Act shall be deemed to have come into force—
(a) in relation to income tax, for the year 1997-98 and subsequent years of assessment,
(b) in relation to corporation tax, for accounting periods ending on or after the 6th day of April, 1997, and
(c) in relation to capital gains tax, for the year 1997-98 and subsequent years of assessment.
(2) So much of any provision of this Act as—
(a) authorises the making, variation or revocation of any order or regulation or other instrument,
(b) relates to the making of a return, the furnishing of a certificate or statement or the giving of any information, including any such provision which imposes a duty or obligation on—
(i) the Revenue Commissioners or on an inspector or other officer of the Revenue Commissioners, or
(ii) any other person,
(c) imposes a fine, forfeiture or penalty,
(d) (i) except where the tax concerned is all income tax for years of assessment before the year 1997-98, confers any power or imposes any duty or obligation the exercise or performance of which operates or may operate in relation to income tax for more than one year of assessment,
(ii) except where the tax concerned is all corporation tax for accounting periods ending before the 6th day of April, 1997, confers any power or imposes any duty or obligation the exercise or performance of which operates or may operate in relation to corporation tax for more than one accounting period, and
(iii) except where the tax concerned is all capital gains tax for years of assessment before the year 1997-98, confers any power or imposes any duty or obligation the exercise or performance of which operates or may operate in relation to capital gains tax for more than one year of assessment,
and
(e) relates to any tax or duty, other than income tax, corporation tax or capital gains tax,
shall be deemed to have come into force on the 6th day of April, 1997, in substitution for the corresponding provisions of the repealed enactments.
(3) For the purposes of subsection (2), anything done under or in connection with the provisions of the repealed enactments which correspond to the provisions of this Act referred to in that subsection shall be deemed to have been done under or in connection with the provisions of this Act to which those provisions of the repealed enactments correspond; but nothing in this subsection shall affect the operation of subsections (3) and (4) of section 1102 .
(4) Notwithstanding subsection (2), any provision of the repealed enactments which imposes a fine, forfeiture, penalty or punishment for any act or omission shall, in relation to any act or omission which took place or began before the 6th day of April, 1997, continue to apply in substitution for the provision of this Act to which it corresponds.
(5) If, and in so far as, by virtue of subsection (2), a provision of this Act operates from the 6th day of April, 1997, in substitution for a provision of the repealed enactments, any order or regulation made or having effect as if made, and any thing done or having effect as if done, under the excluded provision before that date shall be treated as from that date as if it were an order or regulation made or a thing done under that provision of this Act.
num: 1098
paragraphs: —(1) The enactments mentioned in column (2) of Schedule 30 (which in this Act are referred to as “the repealed enactments”) are hereby repealed as on and from the 6th day of April, 1997, to the extent specified in column (3) of that Schedule.
(2) Subsection (1) shall come into force in accordance with section 1097 , and accordingly, except where otherwise provided by that section, this Act shall not apply—
(a) to income tax for the year 1996-97 or any previous year of assessment,
(b) to corporation tax for accounting periods ending before the 6th day of April, 1997, and
(c) to capital gains tax for the year 1996-97 or any previous year of assessment,
and the repealed enactments shall continue to apply—
(i) to income tax for any year mentioned in paragraph (a),
(ii) to corporation tax for any period mentioned in paragraph (b), and
(iii) to capital gains tax for any year mentioned in paragraph (c),
to the same extent that they would have applied if this Act had not been enacted.
num: 1099
paragraphs: —This Act (other than subsections (2) to (4) of section 1102 ) shall apply subject to so much of any Act as contains provisions relating to or affecting income tax, corporation tax or capital gains tax as—
(a) is not repealed by this Act, and
(b) would have operated in relation to those taxes respectively if this Act had not been substituted for the repealed enactments.
num: 1100
paragraphs: — Schedule 31 , which provides for amendments to other enactments consequential on the passing of this Act, shall apply for the purposes of this Act.
num: 1101
paragraphs: — Schedule 32 , which contains transitional provisions, shall apply for the purposes of this Act.
num: 1102
paragraphs: —(1) The Revenue Commissioners shall have all the jurisdictions, powers and duties in relation to tax under this Act which they had before the passing of this Act.
(2) The continuity of the operation of the law relating to income tax, corporation tax and capital gains tax shall not be affected by the substitution of this Act for the repealed enactments.
(3) Any reference, whether express or implied, in any enactment or document (including this Act and any Act amended by this Act)—
(a) to any provision of this Act, or
(b) to things done or to be done under or for the purposes of any provision of this Act,
shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision in the repealed enactments applied or had applied, a reference to, or, as the case may be, to things done or to be done under or for the purposes of that corresponding provision.
(4) Any reference, whether express or implied, in any enactment or document (including the repealed enactments and enactments passed and documents made after the passing of this Act)—
(a) to any provision of the repealed enactments, or
(b) to things done or to be done under or for the purposes of any provision of the repealed enactments,
shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision of this Act applies, a reference to, or as the case may be, to things done or deemed to be done or to be done under or for the purposes of that corresponding provision.
(5) Notwithstanding any other provision of this Act, no act, whether of commission or omission, which was committed or occurred before the 6th day of April, 1997, and was not an offence at the time of commission or omission, shall be an offence in the period from the 6th day of April, 1997, to the date of the passing of this Act.
num: 1103
paragraphs: —(1) All officers appointed under the repealed enactments and holding office immediately before the commencement of this Act shall continue in office as if appointed under this Act.
(2) All officers who immediately before the commencement of this Act stood authorised or nominated for the purposes of any provision of the repealed enactments shall be deemed to be authorised or nominated, as the case may be, for the purposes of the corresponding provision of this Act.
(3) All instruments, documents, authorisations and letters or notices of appointment made or issued under the repealed enactments and in force immediately before the commencement of this Act shall continue in force as if made or issued under this Act.
num: 1104
paragraphs: —(1) This Act may be cited as the Taxes Consolidation Act, 1997.
(2) Sections 7 , 858 , 859 , 872 (1), 905 , 906 , 910 , 912 , 1002 , 1078 , 1079 and 1093 (in so far as relating to Customs) shall be construed together with the Customs Acts and (in so far as relating to duties of excise) shall be construed together with the statutes which relate to the duties of excise and to the management of those duties.
(3) Sections 7 , 811 , 858 , 859 , 872 (1), 887 , 905 , 906 , 910 and 912 , subsections (2) and (3) of section 928 , and sections 1001 , 1002 , 1006 , 1078 , 1079 , 1086 , 1093 , 1094 and 1095 (in so far as relating to value-added tax) shall be construed together with the Value-Added Tax Acts, 1972 to 1997.
(4) Sections 7 , 8 , 811 , 858 , 859 , 872 (1), 875 , 905 , 906 , 910 , 1002 , 1078 , 1079 , 1086 and 1093 (in so far as relating to stamp duties) shall be construed together with the Stamp Act, 1891, and the enactments amending or extending that Act.
(5) Sections 7 , 8 , 811 , 858 , 859 , 872 (1), 887 , 905 , 906 , 910 , 912 , 1002 , 1003 , 1006 , 1078 , 1079 , 1086 and 1093 (in so far as relating to capital acquisitions tax) and Part 34 (in so far as relating to capital acquisitions tax) shall be construed together with the Capital Acquisitions Tax Act, 1976 , and the enactments amending or extending that Act.
(6) Sections 7 , 811 , 859 , 872 (1), 887 , 905 , 906 , 910 , 912 , 1006 , 1078 , 1086 and 1093 (in so far as they relate to Part VI of the Finance Act, 1983 ) shall be construed together with that Part and enactments amending or extending that Part.