‘ profits ’, in relation to a company for a period, means— (i) where the profit and loss account, or income statement, of the company for that period is required to be laid before the annual general meeting of the company, the amount of profits, after taxation, as shown in that profit and loss account, or that income statement, and (ii) in any other case, the amount of profits, after taxation, as shown in the profit and loss account, or income statement, of the company which is prepared in accordance with an accounting framework that, in the territory in which the company is incorporated, is generally accepted as presenting a fair view of the profit for that period; ‘ relevant territory ’ means— (i) a Member State of the European Communities, or (ii) not being such a Member State, a territory with the government of which arrangements having the force of law by virtue of section 826(1) have been made; ‘ trading profits ’, in relation to a company for a period, means the aggregate of so much of the profits of the company for that period as are, on a just and reasonable basis, attributable to— (i) the carrying on by the company of a trade, and (ii) the amount of dividends received by the company which are treated as trading profits by virtue of this section, but does not include amounts attributable to profits, or to dividends received by a company which are paid out of profits, of an excepted trade (within the meaning of section 21A). (b) For the purposes of this section— (i) references to a company by which a dividend is paid apply only to a company that throughout the period out of the profits of which the dividend was paid was, by virtue of the law of a relevant territory, resident for the purposes of tax in such a relevant territory, and for this purpose ‘ tax ’, in relation to a relevant territory, means any tax imposed in the relevant territory which corresponds to corporation tax in the State, (ii) so much of a dividend received by a company (in this subparagraph referred to as the ‘first-mentioned company’) which is paid by another company out of trading profits, or an amount treated by this section as trading profits, of the other company shall be treated as trading profits of the first-mentioned company, (iii) subject to subparagraph (iv), the period out of the profits of which a dividend is paid by a company shall be— (I) if the dividend is paid by the company for a specified period, that period, (II) if the dividend is not paid for a specified period but is paid out of specified profits, the period in which those profits arise, or
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(III) if the dividend is not paid by the company for a specified period nor out of specified profits, the last period for which accounts of the company were made up and which ended before the dividend became payable, and (iv) where, as respects a period identified in accordance with subparagraph (iii) or this subparagraph, the total dividend exceeds the profits available for distribution for that period, then so much of the dividend as is equal to the excess shall be treated as paid out of profits of the preceding period (other than profits of that period which were, or were treated for the purposes of this subparagraph as, previously distributed), and such period shall be treated as a period identified by subparagraph (iii) for the purposes of the further application of this subparagraph where required.
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(2)For the purposes of this section— (a) subject to paragraph (b), so much of a dividend paid by a company for a period, as bears to the amount of that dividend the same proportion as the amount of trading profits of the company for that period bears to the total profits of the company for that period, shall be treated as paid out of trading profits of the company, and (b) a dividend received by a company (in this paragraph referred to as the ‘receiving company’) within the charge to corporation tax in the State which is paid by a company (in this paragraph referred to as the ‘paying company’) out of the profits of a period shall be treated as paid out of trading profits of the paying company for that period if— (i) not less than 75 per cent of the total profits of the paying company for the period are trading profits, and (ii) the value at the end of the accounting period in which the dividend is received by the receiving company of assets (other than specified assets) used by the receiving company, and each company of which the receiving company is the parent company (within the meaning of section 626B), during that period for the purposes of the carrying on by those companies of a trade or trades is not less than 75 per cent of the value at the end of that period of the assets (other than specified assets) of those companies, and for this purpose an asset shall be treated as a specified asset if it consists of— (I) shares of one of those companies held by another of those companies, or (II) loans made by one of those companies to another of those companies.
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(3)Subject to subsection (4), this section applies as respects an accounting period of a company where the company receives a dividend chargeable under Case III of Schedule D from another company and the dividend is paid by the other company out of trading profits of the other company.
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(4)Where the income of a company (in this subsection referred to as the ‘first-mentioned company’) which is chargeable under Case III of Schedule D for an accounting period of the company includes a dividend paid to the company by another company and the first-mentioned company— (a) does not own, directly or indirectly, either alone or together with a person who is connected (within the meaning of section 10) with the first-mentioned company, more than 5 per cent of the share capital of the other company, and (b) does not hold more than 5 per cent of the voting rights in the other company, then the dividend shall be treated for the purposes of subsection (3) as a dividend received by the first-mentioned company which is paid by the other company out of trading profits of the other company.
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(5)Where a company proves that this section applies as respects an accounting period of the company and makes a claim in that behalf, then subsection (3) of section 21A shall not apply to so much of any income of the company chargeable under Case III of Schedule D as consists of a dividend received by the company from another company if the dividend is paid by the other company out of trading profits of the other company.
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(6)A claim by a company under this section as respects an accounting period of the company shall be included with the return under section 951 which falls to be made by the company for the accounting period.”, (c) in section 243A(3)— (i) in paragraph (a) by deleting “and” and in paragraph (b) by substituting “income, and” for “income,”, and (ii) by inserting the following after paragraph (b): “(c) income to which section 21A(3) does not apply by virtue of section 21B,”, (d) in section 396A(3)— (i) in paragraph (a) by deleting “and” and in paragraph (b) by substituting “income, and” for “income,”, and (ii) by inserting the following after paragraph (b): “(c) income to which section 21A(3) does not apply by virtue of section 21B,”, (e) in section 420A(3)(a)— (i) in subparagraph (i) by deleting “and” and in subparagraph (ii) by substituting “income, and” for “income,”, and (ii) by inserting the following after subparagraph (ii): “(iii) income to which section 21A(3) does not apply by virtue of section 21B,”, and (f) in Schedule 24, by substituting the following for paragraph 9E: “9E. (1) (a) In this paragraph— ‘ foreign company ’ means a company resident outside the State; ‘ unrelieved foreign tax ’ has the meaning assigned to it in subparagraph (2); ‘ unrelieved foreign tax in respect of specified dividends ’ has the meaning assigned to it in subparagraph (3). (b) For the purposes of this paragraph— (i) a dividend is a relevant dividend if it is received by a company (in this clause referred to as the ‘receiving company’) from a company which is not resident in the State (in this clause referred to as the ‘paying company’) and the paying company is related to the receiving company (within the meaning of paragraph 9B(5)(b)), and (ii) the aggregate amount of corporation tax payable by a company for an accounting period in respect of any dividends received by the company in the accounting period from foreign companies means so much of the corporation tax that, apart from this paragraph, would be payable by the company for that accounting period as would not have been payable had those dividends not been received by the company.
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(2)(a) Where, as respects a relevant dividend received in an accounting period by a company and which is charged to corporation tax in accordance with section 21A, any part of the foreign tax cannot, apart from this paragraph, be allowed as a credit against any of the Irish taxes and, accordingly, the amount of income representing the dividend is treated under paragraph 7(3)(c) as reduced by that part of the foreign tax, then an amount determined by the formula— 100 — R x D 100 where— R is the rate per cent specified in section 21A(3), and D is the amount of the part of the foreign tax by which the income is to be treated under paragraph 7(3)(c) as reduced, shall be treated for the purposes of clause (b) as unrelieved foreign tax of that accounting period. (b) The aggregate amount of corporation tax payable by a company for an accounting period in respect of relevant dividends received by the company in that accounting period from foreign companies shall be reduced by the unrelieved foreign tax of that accounting period. (c) Where the unrelieved foreign tax in relation to an accounting period of a company exceeds the aggregate amount of corporation tax payable by the company for the accounting period in respect of relevant dividends received by the company in that accounting period from foreign companies, the excess shall be carried forward and treated as unrelieved foreign tax of the next succeeding accounting period, and so on for succeeding accounting periods.
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(3)(a) In this subparagraph ‘ specified dividend ’ means a relevant dividend which is not charged to corporation tax in accordance with section 21A. (b) Where, as respects a specified dividend received in an accounting period by a company, any part of the foreign tax cannot, apart from this paragraph, be allowed as a credit against any of the Irish taxes and, accordingly, the amount of income representing the dividend is treated under paragraph 7(3)(c) as reduced by that part of the foreign tax, then an amount determined by the formula— 100 — R x D 100 where— R is the rate per cent specified in section 21, and D is the amount of the part of the foreign tax by which the income is to be treated under paragraph 7(3)(c) as reduced, shall be treated for the purposes of clause (c) as unrelieved foreign tax in respect of specified dividends of that accounting period. (c) The aggregate amount of corporation tax payable by a company for an accounting period in respect of specified dividends received by the company in that accounting period from foreign companies shall be reduced by the unrelieved foreign tax in respect of specified dividends of that accounting period. (d) Where the unrelieved foreign tax in respect of specified dividends in relation to an accounting period of a company exceeds the aggregate amount of corporation tax payable by the company for the accounting period in respect of specified dividends received by the company in that accounting period from foreign companies, the excess shall be carried forward and treated as unrelieved foreign tax in respect of specified dividends of the next succeeding accounting period, and so on for succeeding accounting periods.”.
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(2)This section shall be deemed to have applied as respects a dividend received on or after 1 January 2007.
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Amendment of Part 13 (close companies) of Principal Act.
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44.— (1) Part 13 of the Principal Act is amended— (a) in section 434— (i) in subsection (2) by substituting “and subject to subsection (3A) the distributions of a company” for “, the distributions of a company”, and (ii) by inserting the following after subsection (3): “(3A) (a) Where a close company pays a dividend, or makes a distribution, to another close company, the companies may jointly elect, by giving notice to the Collector-General in such manner as the Revenue Commissioners may require, that the dividend, or as the case may be the distribution, is to be treated for the purposes of section 440 as not being a distribution. (b) Where notice is given in accordance with paragraph (a), the dividend, or as the case may be the distribution, shall be treated— (i) for the purposes of section 440 as not being a distribution, and (ii) for the purposes of subsection (5) as not being franked investment income. (c) An election by a company under paragraph (a) as respects an accounting period shall be included with the return under section 951 which falls to be made by the company for the accounting period.”. and (b) in section 441(6)(a) by substituting “Subsections (2), (3), (3A), (6) and (7)” for “Subsections (2), (3), (6) and (7)”.
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(2)This section applies as respects a dividend paid, or distribution made, on or after 31 January 2008.
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Amendment of Part 24 (taxation of profits of certain mines and petroleum taxation) of Principal Act.
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45.— (1) Part 24 of the Principal Act is amended— (a) by renumbering section 697 as section 696A, and (b) by inserting the following after section 696A (renumbered by paragraph (a)): “Chapter 3 Profit Resource Rent Tax Interpretation and application (Chapter 3).
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696B.— (1) In this Chapter— ‘ cumulative field expenditure ’, in relation to an accounting period of a company in respect of a taxable field, means the aggregate of the taxable field expenditure of the company in respect of the taxable field— (a) for that accounting period, and (b) for any preceding accounting period beginning on or after 1 January 2007; ‘ cumulative field profits ’, in relation to an accounting period of a company in respect of a taxable field, means the aggregate of the net taxable field profits of the company in respect of the taxable field— (a) for that accounting period, and (b) for any preceding accounting period beginning on or after 1 January 2007, after deducting the amount of any loss incurred in respect of the taxable field for any such period; ‘ net taxable field profits ’, in relation to an accounting period of a company, means the taxable field profits of the company for the accounting period after deducting the amount of corporation tax (if any) which would, apart from this Chapter, be payable by the company for the accounting period if the tax were computed on the basis of those profits; ‘ profit ratio ’, in relation to an accounting period of a company in respect of a taxable field, means an amount determined by the formula— A B where— A is the cumulative field profits of the company in respect of the taxable field in relation to that accounting period, and B is the cumulative field expenditure of the company in respect of the taxable field in relation to that accounting period; ‘ profit resource rent tax ’ has the meaning given to it in section 696C; ‘ specified licence ’ means— (a) an exploration licence, or a reserved area licence, that is granted on or after 1 January 2007, or (b) a licensing option; ‘ taxable field ’ means an area in respect of which a petroleum lease entered into following on from a specified licence is in force; ‘ taxable field expenditure ’, in relation to an accounting period of a company, means the aggregate of the amounts of capital expenditure which consist of— (a) abandonment expenditure, (b) development expenditure, and (c) exploration expenditure, incurred by the company for the accounting period in respect of a taxable field; ‘ taxable field profits ’, in relation to an accounting period of a company, means the amount of the petroleum profits of the company in respect of a taxable field, 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—
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(a) those profits, or (b) income or chargeable gains, if any, included in those profits.
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(2)For the purposes of this Chapter— (a) the interpretations in section 684 shall apply, with any necessary modifications, in relation to expenditure and activities carried on under a specified licence as they would apply in relation to expenditure and activities carried on under a licence within the meaning of section 684 if such a licence was a specified licence, and (b) capital expenditure incurred on or after 1 January 2007 by a company in an area which is not a taxable field but which subsequently becomes a taxable field (or part of such a field) shall be treated as if it had been incurred by the company on the day on which the area first becomes a taxable field (or part of such a field).
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(3)(a) Where a company carries on a petroleum trade and that petroleum trade includes petroleum activities carried on under a specified licence, such activities shall, for the purposes of this Chapter, be treated in respect of each taxable field as a separate petroleum trade distinct from all other activities carried on by the company as part of the trade. (b) For the purposes of paragraph (a), any necessary apportionment shall be made in computing taxable field profits or taxable field expenditure of a company and the method of apportionment adopted shall be such method as appears to the inspector or on appeal the Appeal Commissioners to be just and reasonable. (c) Subject to paragraph (d) the provisions of sections 687 to 690 shall apply for the purposes of this Chapter in relation to any activities treated under paragraph (a) as a separate trade as they apply to a petroleum trade within the meaning of those sections. (d) For the purposes of applying this Chapter, in relation to an accounting period of a company in respect of a taxable field, no account shall be taken of any charges paid, interest payable or a loss incurred— (i) by any other company, or (ii) by the first-mentioned company, in respect of activities other than activities in relation to that field.
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Charge to profit resource rent tax.
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696C.— (1) Where for an accounting period of a company the profit ratio of the company in relation to a taxable field is equal to 1.5 or more, an additional duty of corporation tax (in this Chapter referred to as a ‘profit resource rent tax’) shall be charged on the profits of the company in accordance with the provisions of this Chapter.
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(2)Profit resource rent tax shall be charged on the profits to which this Chapter applies of a company for an accounting period at the rate of— (a) 5 per cent, where the profit ratio is less than 3, (b) 10 per cent, where the profit ratio is equal to or greater than 3 and less than 4.5, (c) 15 per cent, where the profit ratio is equal to or greater than 4.5.
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(3)The profits to which this Chapter applies as respects any taxable field for an accounting period of a company shall— (a) in respect of any accounting period in relation to which— (i) the profit ratio is equal to or greater than 1.5, and (ii) the profit ratio for the immediately preceding accounting period was less than 1.5, be determined by the formula— {A — (B x 1.5)} x 1010010 100 — R where— A is the cumulative field profits of the company in respect of the taxable field in relation to the accounting period, B is the cumulative field expenditure of the company in respect of the taxable field in relation to the accounting period, and R is the rate per cent specified in section 21A(3), and (b) in respect of any other accounting period of the company, be the taxable field profits of the company in respect of the taxable field for the accounting period.
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Provisions relating to groups (Chapter 3).
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696D.— (1) Where taxable field expenditure in respect of a taxable field is incurred by a company (in this section referred to as the ‘first company’) and (a) another company is a wholly-owned subsidiary of the first company, or (b) the first company is, at the time the taxable field 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 first company specifies, may at the election of that company be deemed to be taxable field expenditure in respect of the taxable field incurred— (i) in the case referred to in paragraph (a), by such other company (being a wholly-owned subsidiary of the first company) as the first company specifies, and (ii) in the case referred to in paragraph (b), by the parent company or by such other company (being a wholly-owned subsidiary of the parent company) as the first company specifies.
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(2)Where under subsection (1) taxable field expenditure incurred by a first 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 first company, and (b) in the application of this Chapter the expenditure shall— (i) be deemed to have been incurred by the other company for the purposes of determining the cumulative field expenditure of that company, and (ii) be deemed not to have been incurred by the first company for the purposes of determining the cumulative field expenditure of that company.
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(3)The same expenditure shall not be taken into account in relation to the determination of cumulative expenditure for more than one taxable field by virtue of this section.
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(4)Subsection (5) of section 694 applies for the purposes of subsection (1) as it applies for the purposes of that subsection.
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Returns (Chapter3).
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696E.— (1) In this section ‘ 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 statement by any electronic, photographic or other process approved of by the Revenue Commissioners.
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(2)A company carrying on petroleum activities under a specified licence shall, in addition to the return required to be delivered under section 951, prepare and deliver to the Collector-General at the same time as, and together with, the return required under section 951 on or before the specified return date for the chargeable period a full and true statement in a prescribed form of the details required by the form in respect of— (a) the amounts constituting the aggregate of the cumulative field expenditure for each field, (b) the amounts constituting the aggregate of the cumulative field profits for each field, (c) the breakdown of the amounts specified in paragraphs (a) and (b), and (d) the amount of profit resource rent tax, if any, payable in respect of each field, and of such further particulars in relation to this Chapter as may be required by the prescribed form.
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(3)An officer of the Revenue Commissioners may make such enquiries or take such actions within his or her powers as he or she considers necessary for the purposes of determining the accuracy or otherwise of any details or particulars contained in the statement referred to in subsection (2).
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(4)Subsections (9) and (10) of section 951 shall apply to a statement required to be delivered under this section as they apply to a return required to be delivered under that section, and for that purpose a reference in those subsections to a return, other than a reference to the specified return date for the chargeable period, shall be construed as a reference to a statement under this section.
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(5)Section 1052 shall apply to a failure by a person to deliver a statement under this section or the details or particulars referred to in subsection (3) as it applies to a failure to deliver a return referred to in section 1052.
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Collection and general provisions.
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696F.— (1) 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 profit resource rent tax charged under section 696C as they apply to corporation tax charged otherwise than under this Chapter.
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(2)(a) Any amount of profit resource rent tax payable in accordance with this Chapter without the making of an assessment shall carry interest at the rate of 0.0273 per cent for each day or part of a day from the date when the amount becomes due and payable until payment. (b) Section 1080 shall apply in relation to interest payable under paragraph (a) as it applies in relation to interest payable under section 1080.”.
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(2)This section is deemed to have applied in the case of profits in respect of any petroleum lease entered into following on from a licensing option or from an exploration licence, or a reserved area licence, awarded by the Minister for Communications, Energy and Natural Resources after 1 January 2007.
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Acceleration of wear and tear allowances for certain energy-efficient equipment.
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46.— (1) The Principal Act is amended— (a) by inserting the following section after section 285: “285A.— (1) In this section— ‘ energy-efficient equipment ’ means equipment, named on and complying with the criteria stated on the specified list, provided for the purposes of a trade and which at the time it is so provided is unused and not second-hand; ‘ relevant period ’ means the period commencing on the date on which the first order is made under subsection (4) and ending 3 years after that date; ‘ the specified list ’ means the list of energy-efficient equipment which— (a) complies with subsections (3) and (4), and (b) is maintained for the purposes of this section by Sustainable Energy Ireland — The Sustainable Energy Authority of Ireland; ‘ Table ’ means the Table in Schedule 4A.
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(2)Subject to this section, where for any chargeable period a wear and tear allowance is to be made under section 284 to a company which has incurred capital expenditure on the provision of energy-efficient equipment for the purposes of a trade carried on by that company, section 284(2) shall apply as if the reference in paragraph (ad) of that section to 12.5 per cent were a reference to 100 per cent.
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(3)The specified list shall contain only such equipment that— (a) is in a class of technology specified in column (1) of the Table, and (b) is of a description for that class of technology specified in column (2) of the Table.
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(4)For the purposes of this section, the Minister for Communications, Energy and Natural Resources, after consultation with and the approval of the Minister for Finance— (a) shall by order make the specified list— (i) stating the energy efficiency criteria to be met for, and (ii) naming the eligible products in, each class of technology specified in column (1) of the Table, and (b) may by order amend the specified list— (i) stating energy efficiency criteria to be met for, or (ii) naming eligible products in, any class of technology specified in column (1) of the Table.
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(5)Subsection (2) shall not apply— (a) where the person to whom the allowance is to be made in accordance with section 284 is not a company, or (b) where the energy-efficient equipment is leased, let or hired to any person.
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(6)Subsection (2) shall not apply in respect of expenditure incurred in a chargeable period on the provision of energy-efficient equipment in relation to a class of technology where the amount of that expenditure is less than the minimum amount specified in column (3) of the Table in relation to that class of technology.
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(7)(a) Subsection (2) shall not apply in respect of expenditure incurred on the provision of equipment where that expenditure is not incurred in the relevant period. (b) Where— (i) expenditure on equipment is incurred on or after 31 January 2008 but before the first order is made under subsection (4), and (ii) that equipment would have qualified as energy-efficient equipment under this section had such an order been made at the time the expenditure was incurred, then this section shall apply as if the order had been made at that time.
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(8)Where this section applies to capital expenditure incurred by a company on the provision of energy-efficient equipment and that equipment would not, apart from this section, be treated as machinery or plant, then that equipment shall be treated as machinery or plant for the purposes of this Chapter and Chapter 4 of this Part.
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(9)Any order made by the Minister for Communications, Energy and Natural Resources for the purpose of this section shall be laid before Dáil Éireann as soon as may be after it is made and, if a resolution annulling the order is passed by Dáil Éireann within the next 21 days on which Dáil Éireann 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.”, and (b) by inserting the following after Schedule 4: “SCHEDULE 4A TABLE (Class of Technology) (Description) (Minimum Amount)
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(1)
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(2)
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(3)Motors and Drives Motor: An asynchronous electric motor with a power rating of 1.1kW or greater, either standalone or as part of other equipment, meeting a specified efficiency standard.
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Variable speed drive: A drive that is specifically designed to drive an AC induction motor in a manner that rotates the motor’s drive shaft at a variable speed dictated by an external signal. €1,000 Lighting Lighting units, comprising fittings, lamps, and associated control gear, that meet specified efficiency criteria, or lighting control systems designed to improve the efficiency of lighting units. Includes occupancy sensors and high efficiency signs. €3,000 Building Energy Management Systems Computer-based systems, designed primarily to monitor and control building energy use with the aim of optimising energy efficiency and meeting specified efficiency standards. €5,000 .”.
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(2)Subsection (1) comes into operation on such day or days as the Minister for Finance may by order or orders appoint and different days may be appointed for different purposes or different provisions.
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Preliminary tax.
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47.— (1) The Principal Act is amended— (a) in section 958— (i) in subsection (1)(a)— (I) by inserting the following definitions after the definition of “pre-preceding chargeable period”: “ ‘ relevant accounting standards ’ has the same meaning as in Schedule 17A; ‘ relevant company ’ means a company in respect of which profits or gains for the purposes of Case I or II of Schedule D are computed in accordance with relevant accounting standards, which are, or include, relevant accounting standards in relation to profits or gains or losses on financial assets or liabilities;”, and (II) in the definition of “ relevant limit ” by substituting “€200,000” for “€150,000”, (ii) in subsection (4D)(b), by substituting the following for “no amount were included in the chargeable person’s profits for the chargeable period in respect of chargeable gains on the disposal by the person of assets in the part of the chargeable period which is after the date by which the first instalment for the chargeable period is payable in accordance with subsection (2A),”: “no amount were included in the chargeable person’s profits for the chargeable period— (i) in respect of chargeable gains on the disposal by the person of assets in the part of the chargeable period which is after the date by which, or (ii) in the case of a relevant company, in respect of profits or gains or losses accruing, and not realised, in the chargeable period on financial assets or financial liabilities as are attributable to changes in value of those assets or liabilities in the part of the chargeable period which is after the end of the month immediately preceding the month in which, the first instalment for the chargeable period is payable in accordance with subsection (2A),”, and (iii) in subsection (4E), by substituting the following for paragraph (b): “(b) the preliminary tax so paid by the chargeable person for the chargeable period is not less than 90 per cent of the amount which would be payable by the chargeable person for the chargeable period if no amount were included in the chargeable person’s profits for the chargeable period— (i) in respect of chargeable gains on the disposal by the person of assets in the part of the chargeable period which is after the date by which, or (ii) in the case of a relevant company, in respect of profits or gains or losses accruing, and not realised, in the chargeable period on financial assets or financial liabilities as are attributable to changes in value of those assets or liabilities in the part of the chargeable period which is after the end of the month immediately preceding the month in which,
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preliminary tax for the chargeable period is payable in accordance with subsection (2B), and”, and (b) by deleting subparagraph (6) of paragraph 4 of Schedule 17A.
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(2)(a) Subject to paragraph (b) this section has effect for any period of account beginning on or after 1 January 2005. (b) Subsection (1)(a)(i)(II) has effect as respects accounting periods in respect of which preliminary tax is payable after 5 December 2007.
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Purchase of own shares — supplementary.
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48.— (1) The Principal Act is amended by inserting the following section after section 176: “176A.— (1) Subject to subsection (2), no sum shall be deducted in computing the amount of the profits or gains charged to tax under Case I or II of Schedule D in respect of any payment that is treated by virtue of section 175 or 176 as not being a distribution.
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(2)Subject to section 81(2)(n), subsection (1) shall not apply to so much of any payment as consists of expenditure incurred by a company to the extent that it is incurred on shares acquired by the company and given by it as consideration for goods or services, or to an employee or director of the company.”.
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(2)This section applies as respects accounting periods ending on or after 31 January 2008.
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Amendment of Schedule 24 (relief from income tax and corporation tax by means of credit in respect of foreign tax) to Principal Act.
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49.— (1) Schedule 24 to the Principal Act is amended— (a) in paragraph 4(2A) (inserted by the Finance Act 2006 ) by substituting “foreign tax in respect of any income of a company (in this subparagraph referred to as ‘that income’), being income (other than income from a trade carried on by the company through a branch or agency in a territory other than the State) which is taken into account” for “foreign tax in respect of any income of a company (in this subparagraph referred to as ‘that income’), being income which is taken into account”, and (b) by inserting the following after paragraph 9G (inserted by the Finance Act 2006 ): “Dividends paid out of transferred profits 9H(1) This paragraph applies in any case where— (a) under the law of a territory outside the State, tax is paid by a company (in this paragraph referred to as the ‘first company’) resident outside the State in respect of any of its profits, (b) some or all of those profits become profits of another company (in this paragraph referred to as the ‘second company’) resident outside the State otherwise than by virtue of the payment of a dividend to the second company, and (c) the second company pays a dividend out of those profits to another company, wherever resident.
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(2)Where this paragraph applies, then for the purposes of allowing credit under this Schedule for foreign tax in respect of profits of the first company attributable to any dividends paid— (a) by any company (whether or not the second company) resident outside the State, (b) to a company resident in the State, this Schedule shall apply with any necessary modifications as if the second company had paid the tax paid by the first company in respect of those profits of the first company which have become profits of the second company in accordance with subparagraph (1)(b).
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(3)Subparagraphs (1) and (2) are subject to the following limitations— (a) the credit against corporation tax allowable to a company resident in the State shall not exceed the amount which would have been allowable to that company had those profits become profits of the second company by virtue of the payment of a dividend by the first company to the second company, and (b) no tax shall be taken into account in respect of profits referred to in subparagraph (1) where such profits become the profits of the second company by virtue of a scheme or arrangement the purpose or one of the main purposes of which is the avoidance of tax.”.
\n
(2)(a) (i) Subject to subparagraph (ii)(1)(a) applies as on and from 31 January 2008. (ii) Subsection (1)(a) shall be deemed to have applied as respects any company as on and from 1 January 2006, if an election in writing is made by the company to the Revenue Commissioners to that effect. (b) Subsection (1)(b) applies to dividends paid on or after 31 January 2008.
\n
Amendment of section 766 (tax credit for research and development expenditure) of Principal Act.
\n
50.— (1) Section 766 of the Principal Act is amended in subsection (1)(a) in the definition of “threshold amount”— (a) in paragraph (i) by substituting “1 January 2014” for “1 January 2010”, and (b) in paragraph (ii) by substituting “10 years” for “3 years”.
\n
(2)This section applies to accounting periods commencing on or after 1 January 2008.
\n
Dividends paid in connection with disposals of shares or securities.
\n
51.— (1) The Principal Act is amended by inserting the following after section 591— “591A.— (1) For the purposes of this section, a dividend paid, or a distribution made, by a company to a person in respect of shares or securities of the company in connection with a disposal of shares in the company shall be treated as being abnormal if the amount or value of the dividend, or as the case may be the distribution, exceeds the amount that could reasonably have been expected to be paid, or as the case may be made, in respect of the shares or securities of the company if there were no such disposal of the shares or securities.
\n
(2)Where, in connection with the disposal by a person of any shares or securities of a company, there exists any scheme, arrangement or understanding by virtue of which, either directly or indirectly, an abnormal dividend is paid, or an abnormal distribution is made— (a) where the person is a company, to that person or to any company connected (within the meaning of section 10) with that person, and (b) where the person is not a company, to any company connected (within the meaning of section 10) with the person, then, for the purposes of the Capital Gains Tax Acts, the amount or value of the dividend paid, or distribution made, to the person or, as the case may be, to the connected person, shall be treated as consideration received by the person for the disposal of the shares or securities, and shall be ignored for the purposes of the Tax Acts.
\n
(3)Subsection (2) does not apply if it is shown that the scheme, arrangement or understanding is effected for bona fide commercial reasons and is not, or does not form part of, any scheme, arrangement or understanding of which the main purpose or one of the main purposes is avoidance of liability to tax.”.
\n
(2)This section applies as respects a dividend paid, or a distribution made, on or after 19 February 2008.
\n
Amendment of Schedule 4 (exemption of specified non-commercial state sponsored bodies from certain tax provisions) to Principal Act.
\n
52.— (1) Schedule 4 to the Principal Act is amended by inserting the following after paragraph 26: “26A. Commission for Communications Regulation.”.
\n
(2)Subsection (1) is deemed to have come into force and have taken effect as on and from 1 December 2002.
\n
Amendment of section 448 (relief from corporation tax) of Principal Act.
\n
53.— (1) Section 448 of the Principal Act is amended— (a) by substituting the following for paragraph (b) of subsection (3): “(b) then deducting from the relevant sum any amounts allowed under sections 243A, 396A or 420A against the company’s income for the relevant accounting period from the sale of those goods.”, and (b) by substituting the following for subsection (5A): “(5A) Where any part of the profits of an accounting period of a company is charged to corporation tax in accordance with section 21A, then for the purposes of this section, the relevant corporation tax shall be reduced by an amount determined by the formula— 1R0 x S 100 where— R is the rate per cent specified in section 21A(3) 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 21A. (5B) 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 subsection (2) shall be the sum determined by section 4(4)(b) for that period reduced— (a) by any amounts allowed under sections 243A, 396A or 420A, and (b) 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 21A.”.
\n
(2)(a) Subsection (1)(a) has effect for accounting periods ending on or after 18 February 2008. (b) Subsection (1)(b) shall be deemed to have had effect for accounting periods ending on or after 31 January 2007.
\n
Chapter 5
\n
Capital Gains Tax Amendment of Chapter 6 (transfers of business assets) of Part 19 of Principal Act.
\n
54.— (1) The Principal Act is amended— (a) in section 598— (i) by inserting the following after subsection (3): “(3A) Where compensation has been received by a person under the scheme for compensation in respect of the decommissioning of fishing vessels implemented by the Minister for Agriculture, Fisheries and Food in accordance with Council Regulation (EC) No. 1198/2006 of 27 July 2006, relief under subsection (2) shall apply as if the period referred to in paragraph (i) of the definition of ‘qualifying assets’ in subsection (1)(a) were 6 years and the age referred to in subsection (2) were 45 years.”, and (ii) by inserting the following after subsection (7): “(8) This section shall not apply to a disposal of qualifying assets unless it is shown that the disposal is made 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 the avoidance of liability to tax.”, and (b) by inserting the following after section 598: “Relief on dissolution of farming partnerships.
\n
598A.— (1) In this section— ‘ farming ’ and ‘ trade ’ have the same meanings as in the Income Tax Acts; ‘ farming partnership ’ means a partnership comprised of individuals which carries on or has carried on the trade of farming; ‘ relevant asset ’ means an asset which is jointly owned by the partners in a farming partnership; ‘ relevant disposal ’ means a disposal which arises on the occasion of the partition of a relevant asset.
\n
(2)This section applies where a relevant asset has been owned and used for the purposes of farming by the farming partnership for a period of not less than 10 years ending with the relevant disposal.
\n
(3)Notwithstanding subsection (2), where one of the partners acquired his or her share of a relevant asset by way of inheritance, the period of ownership and use of that asset shall be deemed to have commenced on the date on which the person entered into partnership with the other partner or partners in the farming partnership.
\n
(4)Where a relevant disposal arises in respect of a relevant asset, a gain shall not be treated as accruing in respect of that disposal and the relevant asset shall be treated for the purposes of the Capital Gains Tax Acts as having been acquired at the same time and for the same consideration as it was originally acquired by the partner who disposed of that asset.
\n
(5)This section shall not apply if, until the disposal, the asset formed part of the trading stock of the farming trade carried on by the farming partnership or, if the asset is acquired as trading stock, for the purposes of a trade carried on by the partner acquiring the asset.”.
\n
(2)(a) Paragraph (a)(i) of subsection (1) comes into operation on such day or days as the Minister for Finance may by order or orders appoint and different days may be appointed for different purposes or different provisions. (b) Paragraph (a)(ii) of subsection (1) applies to disposals made on or after 31 January 2008. (c) Paragraph (b) of subsection (1 applies to disposals made on or after the date of the passing of this Act and will apply until 31 December 2013.
\n
Amendment of section 603A (disposal of site to child) of Principal Act.
\n
55.— (1) Section 603A of the Principal Act is amended— (a) in subsection (1A) by substituting “€500,000” for “€254,000”, and (b) by inserting the following after subsection (2): “(2A) For the purposes of subsection (2) ‘disposal’ includes a simultaneous disposal by both parents.”.
\n
(2)(a) Paragraph (a) of subsection (1) applies to disposals made on or after 5 December 2007. (b) Paragraph (b) of subsection (1) shall be deemed to have applied from 6 December 2000.
\n
Amendment of Schedule 15 (list of bodies for purposes of section 610) to Principal Act.
\n
56.— (1) Schedule 15 to the Principal Act is amended in Part 1 by inserting the following after paragraph 40: “41. The Commission for Communications Regulation.
\n
42.The Digital Hub Development Agency.”.
\n
(2)(a) As respects the Commission for Communications Regulation, subsection (1) is deemed to have applied as on and from 1 December 2002. (b) As respects the Digital Hub Development Agency, subsection (1) is deemed to have applied as on and from 1 January 2008.
\n
PART 2
\n
Excise
\n
Chapter 1
\n
Electricity Tax Interpretation (Chapter 1).
\n
57.— (1) In this Chapter and in Schedule 2 — “ accounting period ” means a calendar year, or such other period as the Commissioners may prescribe for the purposes of payment and returns under section 60 ; “ business use ” has the same meaning that it has in Article 11 of the Directive; “ claimant ” means a person claiming repayment under section 64 ; “ CN Code ” means a Community subdivision to the combined nomenclature of the European Communities referred to in Article 1 of Council Regulation (EEC) No. 2658/87 of 23 July 1987 as amended by Council Regulation (EEC) No. 2031/2001 of 6 August 2001; “ Commissioners ” means the Revenue Commissioners; “ consumer ” means a person who receives electricity for consumption; “ Directive ” means Council Directive No. 2003/96/EC of 27 October 2003; “ dwelling ” means a premises or part of a premises used primarily as a residence; “ electricity ” means electricity falling within CN Code 2716; “ electronic means ” includes electrical, digital, magnetic, optical, electromagnetic, biometric, photonic means of transmission of data and other forms of related technology by means of which data is transmitted; “ household use ” means use in a dwelling, other than for the purposes of any business activity in such dwelling; “ local authority ” has the same meaning that it has in the Local Government Act 2001 ; “ mixed supply ” means a single supply of electricity to a consumer for more than one use, where such uses are not all chargeable at the same rate of tax; “ non-business use ” means any use other than business use and includes household use, and use by a public authority or a local authority; “ officer ” means an officer of the Commissioners; “ prescribed ” means prescribed by regulations made by the Commissioners under section 66 ; “ public authority ” has the same meaning that it has in section 2 of the Local Government Act 2001 and includes any body prescribed by the Minister for the Environment, Heritage and Local Government pursuant to paragraph (g) of that definition; “ supplier ” means an entity which supplies electricity to a consumer for consumption by such consumer as a user; “ supply ” means a quantity of electricity supplied to a consumer; “ tax ” means electricity tax within the meaning of subsection (1) of section 58 ; “ unit ” means a megawatt hour.
\n
(2)A word or expression that is used in this Chapter and which is also used in the Directive has, unless a meaning is provided by subsection (1) or the contrary intention otherwise appears, the same meaning in this Chapter as it has in the Directive.
\n
Charging and rates.
\n
58.— (1) In addition to any other duty which may be chargeable, and subject to the provisions of this Chapter and any regulations made under it, a duty of excise, to be known as electricity tax, shall be charged, levied and paid at the rates specified in Schedule 2 on all electricity supplied in the State to consumers.
\n
(2)Subsection (1) shall apply to all electricity supplied by a supplier, for consumption by such supplier, where the average quantity so supplied in a calendar year exceeds 50 units.
\n
Liability.
\n
59.— (1) Tax shall be charged at the time the electricity is supplied by a supplier to a consumer.
\n
(2)Except where subsection (3), (4) or (5) applies, a supplier shall be accountable for and liable to pay the tax charged on the electricity supplied by such supplier.
\n
(3)Any supplier that is not established in the State shall establish a company in the State, and that company shall be liable to pay the tax due on the electricity supplied by such supplier, and shall assume all the functions and responsibilities of the supplier under this Chapter and any regulations under section 66 .
\n
(4)A supplier shall not be liable for any deficiency in the amount of tax charged on a supply of electricity, where such amount has been calculated in accordance with section 60 .
\n
(5)A consumer shall be liable for any deficiency in the amount of tax charged on a supply of electricity, where such deficiency has resulted from false or misleading information furnished to a supplier by such consumer.
\n
Returns and payment.
\n
60.— (1) For the purposes of section 59 , a supplier shall, before the end of the month following an accounting period, deliver to an officer a return in such form as the Commissioners may require, of— (a) the units supplied during such accounting period for business use and non-business use, (b) in respect of the reliefs under section 63 , the number of such units that have been deemed by the supplier to have qualified for relief under each paragraph of subsection (1) of that section.
\n
(2)For the purposes of subsection (1), the supplier shall, in accordance with prescribed criteria, deem whether a supply is taxable at a rate set down in Schedule 2 or is relieved from tax under section 63 .
\n
(3)The Commissioners may require that the return under subsection (1) be delivered to them by electronic means.
\n
(4)(a) Except where paragraph (b) applies, the supplier shall, in accordance with the return under subsection (1), pay the amount of tax due in respect of an accounting period before the end of the month following such accounting period, and such supplier shall ensure that the Commissioners are authorised to debit such amount from the account of such supplier in a financial institution. (b) Without prejudice to paragraph (a), where it is estimated that the tax liability of a supplier for an accounting period will exceed €100,000, the Commissioners may require such supplier to pay the tax due in respect of interim periods, determined by them, during such accounting period, and any such interim period shall not be less than one month or greater than 6 months. (c) Where paragraph (b) applies, the supplier shall pay the amount of tax due in respect of an interim period before the end of the month following such interim period, and shall ensure that the Commissioners are authorised to debit such amount from the account of such supplier in a financial institution.
\n
Mixed supply.
\n
61.— (1) In the case of a mixed supply, except where subsection (2) or (3) applies, tax shall, as appropriate, be charged on the quantity of electricity supplied for each use.
\n
(2)In the case of a mixed supply involving household use, it shall be assumed that any quantity up to one unit of such supply has been supplied for such use during each calendar month in an accounting period.
\n
(3)In the case of a mixed supply involving business and non-business use (other than household use), it shall be assumed that any quantity up to one unit of such supply has been supplied for business use during each calendar month in an accounting period.
\n
Registration.
\n
62.— Every supplier shall register with the Commissioners in accordance with such procedures as the Commissioners may prescribe or otherwise impose.
\n
Reliefs.
\n
63.— (1) Without prejudice to any other relief from tax which may apply, and subject to such conditions as the Commissioners may prescribe or otherwise impose, a relief from tax shall be granted on any electricity which is shown to the satisfaction of the Commissioners— (a) to have been supplied for household use, (b) to have been generated from renewable sources, (c) to have been produced from environmentally friendly heat and power cogeneration, where such cogeneration meets the requirements for high-efficiency cogeneration under Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004, (d) to have been used for chemical reduction, or in electrolytic or metallurgical processes, (e) to have been used for combined heat and power generation, (f) to have been used for the production of electricity or in connection with such production, (g) to have been produced on board a boat or other craft.
\n
(2)(a) For the relief under paragraph(b) of subsection (1), electricity shall be considered to have been generated from renewable sources if it is— (i) of solar, wind, wave, tidal or geothermal origin, (ii) of hydraulic origin produced in a hydroelectric installation, (iii) generated from biomass or from products produced from biomass, (iv) generated from fuel cells.
\n
(3)For the relief under paragraph(c) of subsection (1), a determination as to whether the cogeneration concerned meets the requirements for high-efficiency cogeneration under Council Directive 2004/8/EC, shall be made by a competent authority designated for that purpose by the Minister for Finance.
\n
(4)(a) The amount of the relief under paragraph (b) of subsection (1) shall be determined by the formula— A x P 1 x R 1 + A x P 2 x R 2 where— A is the total units from renewable sources, supplied by the claimant during the payment period, P 1 is the percentage of the total units, supplied by the claimant during the payment period, that was subject to tax at the rate for business use, P 2 is the percentage of the total units, supplied by the claimant during the payment period, that was subject to tax at the rate for non-business use, R 1 is the rate for business use, and R 2 is the rate for non-business use. (b) The amount of the relief under paragraph (c) of subsection (1) shall be determined by the formula— C x P 1 x R 1 + C x P 2 x R 2 where— C is the total units produced from environmentally friendly heat and power cogeneration, supplied by the claimant during the payment period, P 1 is the percentage of the total units, supplied by the claimant during the payment period, that was subject to tax at the rate for business use, P 2 is the percentage of the total units, supplied by the claimant during the payment period, that was subject to tax at the rate for non-business use, R 1 is the rate for business use, and R 2 is the rate for non-business use. (c) (i) For the purposes of paragraphs (a) and (b), where the total units produced from renewable sources or from environmentally friendly heat and power cogeneration (as the case may be) cannot otherwise be determined, a determination shall be made by reference to the data on the fuel mix in respect of the supplier concerned, as published by the Commission for Energy Regulation. (ii) For the purposes of subparagraph (i) the data on the fuel mix shall be that in respect of the most recent year for which the Commission for Energy Regulation has published such data.
\n
Repayments.
\n
64.— (1) Effect may be given to the reliefs under paragraphs (b), (c) and (d) of subsection (1) of section 63 by means of repayment.
\n
(2)(a) Claims for repayment under this section shall be in such form as the Commissioners may direct and shall be in respect of electricity supplied during an accounting period. (b) Except where the Commissioners may in any particular case otherwise allow, a repayment may not be made unless the claim is made within 6 months following the end of each such accounting period.
\n
(3)Repayments in respect of relief under paragraphs(b) and (c) of subsection (1) of section 63 shall be made to the supplier of the electricity concerned.
\n
Offence and penalty.
\n
65.— (1) It is an offence under this subsection for any person to contravene or fail to comply with any provision of this Chapter, or any regulation made under section 66 , or any condition imposed under this Chapter, or under such regulation in relation to such provision.
\n
(2)Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under subsection (1) is liable on summary conviction to a fine of €5,000.
\n
(3)Where an offence under subsection (1) is committed by a body corporate and the offence is shown to have been committed with the consent or connivance of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a member of the committee of management or other controlling authority of the body corporate, that person shall also be deemed to be guilty of an offence and may be proceeded against and punished as if guilty of the first-mentioned offence.
\n
Regulations (Chapter 1).
\n
66.— The Commissioners may, for the purposes of managing, securing and collecting electricity tax, or for the protection of the revenue derived from that tax, make regulations.
\n
Care and management (Chapter 1).
\n
67.— Electricity tax imposed by this Chapter is placed under the care and management of the Commissioners.
\n
Commencement (Chapter 1).
\n
68.— This Chapter comes into operation on 1 October 2008.
\n
Chapter 2
\n
Miscellaneous Amendment of Chapter 1 of Part 2 (consolidation and modernisation of general excise law) of Finance Act 2001.
\n
69.— (1) Chapter 1 of Part 2 of the Finance Act 2001 is amended— (a) by inserting the following after section 108: “Warehousing.
\n
108A.— (1) Subject to subsections (2) and (3), the following shall take place only in a tax warehouse— (a) the production and processing of excisable products, and (b) the holding of excisable products under a suspension arrangement.
\n
(2)Subsection (1)(a) does not apply to— (a) coal within the meaning of section 94 (as amended by Finance Act 2006) of the Finance Act 1999 , (b) any operation by which the user of mineral oil makes its re-use possible in his or her own undertaking, and where the mineral oil tax already paid on that mineral oil is not less than that which would be due if the mineral oil resulting from such operation was liable to excise duty, (c) the mixing or blending of excisable products with other excisable products or other materials, but only if— (i) the proper excise duty on such excisable products has already been paid, and (ii) the amount so paid is not less than the amount chargeable on the mixture or blend.
\n
(3)Without prejudice to the generality of subsection (1)(a), the Commissioners may, where a written application is made to them, exempt from that subsection— (a) operations during which small quantities of excisable products are produced incidentally, and (b) subject to such conditions as they deem fit to impose, production and processing operations involving excisable products on which the proper excise duty has already been paid, and where the amount so paid is not less than the excise duty that would be chargeable following such production or processing.
\n
(4)Excisable products held under a suspension arrangement in a tax warehouse are deemed to be so held until such time as such products are removed from the tax warehouse.
\n
(5)An authorised warehousekeeper, or any person acting on behalf of such warehousekeeper, shall provide such appliances, facilities and assistance as an officer may reasonably require to take account of any excisable products or materials, and allow an officer at any reasonable time to use anything so provided.”, and (b) by substituting the following for section 109: “Authorisation of warehouse-keepers and approval of tax warehouses.
\n
109.— (1) In this section— ‘ applicant ’ means a person who has applied in writing for authorisation under subsection (2); ‘ authorised ’ means authorised as an authorised warehousekeeper under this section; ‘ conditions of authorisation ’ means the conditions referred to in subsection (2)(c); ‘ excise law ’ means the statutes which relate to the duties of excise and the instruments relating to those duties made under statute; ‘ proprietor ’, in relation to a tax warehouse, means the authorised warehousekeeper who, for the time being, has possession or control of such tax warehouse; ‘ tenant ’, in relation to a tax warehouse, means an authorised warehousekeeper who has been accepted by a proprietor as a tenant in such tax warehouse in accordance with subsection (4).
\n
(2)The Commissioners may, under this section, authorise a person, who has applied to them in writing,— (a) as the proprietor of a tax warehouse or tax warehouses approved in relation to such proprietor in accordance with subsection (5), or as a tenant in accordance with subsection (4), (b) for specific activities, in relation to specific types of excisable products, in such tax warehouse or tax warehouses, and (c) for such periods, and subject to such conditions as they may think fit to impose in any particular case.
\n
(3)(a) An applicant shall only be authorised under subsection (2) where it is shown to the satisfaction of the Commissioners that such applicant or, where the applicant is a company, any director or person having control of such company within the meaning of section 11 of the Taxes Consolidation Act 1997 (No. 39 of 1997), can satisfy the conditions of authorisation. (b) An applicant shall only be authorised where it is shown to the satisfaction of the Commissioners that the business activity to be carried out in the tax warehouse is to be undertaken with a view to the realisation of profits from legitimate trade in excisable products. (c) No applicant may be authorised where such applicant or, where the applicant is a company, any director or person having control of such company within the meaning of section 11 of the Taxes Consolidation Act 1997 , has in the 10 years prior to such application been convicted of any indictable offence under the Acts referred to in section 1078 (1) of the Taxes Consolidation Act 1997 , or any corresponding offence under the law of another Member State. (d) No applicant shall be authorised who does not hold a current tax clearance certificate issued under section 1094 of the Taxes Consolidation Act 1997 . (e) No applicant shall be authorised for the production or processing of excisable products who does not hold a current licence for such production or processing, where such licence is required under excise law.
\n
(4)Without prejudice to subsections (2) and (3), an applicant who has applied in relation to a tax warehouse of which he or she is not to be the proprietor, may only be so authorised where— (a) such applicant has been accepted by the proprietor to be a tenant in that tax warehouse, (b) the terms of that acceptance, including a statement of the responsibilities of the proprietor in relation to products to be held by the tenant, are set out in a document signed or sealed by both and approved by an officer, and (c) a copy of such document is included in the authorisation documents of both proprietor and tenant.
\n
(5)(a) A premises or place shall be approved as a tax warehouse in relation to the authorisation of a proprietor, and such approval shall terminate when such authorisation is revoked or, for any other reason, ceases to have effect. (b) The approval of a tax warehouse shall be subject to such requirements as the Commissioners may think fit to impose in any particular case, and such requirements shall be included in the conditions of authorisation of the proprietor.
\n
(6)(a) The details of the authorisation, including the conditions of authorisation, shall be set down in a document, referred to in this section as the “authorisation document”. (b) The authorisation document shall be signed by the applicant and by an officer, and it shall, unless another date is specified, be effective from the date on which it is so signed.
\n
(7)(a) The proprietor shall at all times be responsible for the excise duty on the excisable products held in the tax warehouse, and shall, where required under the conditions of authorisation, provide security, at a level specified in the authorisation document, for such excise duty. (b) Without prejudice to paragraph (a) a tenant may be required under the conditions of authorisation, to provide security for the products held by such tenant in the tax warehouse. (c) Any authorised warehouse-keeper who dispatches excisable products from a tax warehouse under a suspension arrangement shall, before any such dispatch, provide security, at a level specified in the authorisation document, for the excise duty on such products.
\n
(8)An authorised warehousekeeper shall inform an officer of any changes or proposed changes that are relevant to the conditions of authorisation including, in the case of a proprietor, any changes or proposed changes to the tax warehouse.
\n
(9)The Commissioners may at any time, following such notice as is reasonable in the circumstances, vary the conditions of authorisation.
\n
(10)Where an authorised warehousekeeper is a company, the authorisation of such warehousekeeper, and the approval of any tax warehouse of which such warehousekeeper is the proprietor, shall expire immediately upon a change of control of such company, within the meaning of section 11 of the Taxes Consolidation Act 1997 .
\n
(11)Before the date when an authorised warehousekeeper ceases to act as such, all excisable products held by such authorised warehousekeeper, or by any tenant in respect of whom he or she acts as proprietor, shall be either— (a) removed from the tax warehouse, either on payment of the proper excise duty or under a suspension arrangement, or (b) otherwise disposed of to the satisfaction of an officer.
\n
(12)Authorisation under this section is at all times subject to the conditions of authorisation, and the Commissioners may revoke an authorisation where the authorised warehousekeeper— (a) contravenes or fails to comply with such conditions, (b) contravenes or fails to comply with any provision of excise law relating to the excisable products in respect of which the authorisation has been granted, or (c) no longer satisfies the requirements for authorisation.
\n
(13)Where the Commissioners propose to revoke an authorisation, they shall inform the holder of that authorisation of that intention, and afford such holder an opportunity to make representations to them in relation to the matter.
\n
(14)(a) Subject to paragraph (b), this section as amended by section 69 of the Finance Act 2008 shall, as appropriate, apply to all authorisations and approvals granted under this section prior to it being so amended. (b) The conditions attaching to any authorisation or approval granted under this section prior to its amendment by section 69 of the Finance Act 2008 shall remain in force until such time as such conditions are varied in accordance with subsection (9).”.
\n
(2)This section comes into operation on 1 October 2008.
\n
Amendment of Part 2 (consolidation and modernisation of general excise law) of Finance Act 2001.
\n
70.— (1) Part 2 of the Finance Act 2001 is amended— (a) in section 121(a)(i) by inserting “108A,” after “provision of sections”, (b) in section 124A(1)(a) by substituting “109” for “109(5)”, (c) in section 136— (i) in subsection (1) by inserting “, or from,” after “(other than a dwelling) in”, and (ii) in paragraph (a) of subsection (1) by inserting “, or the supply of electricity,” after “in section 97(1)”, and (d) in section 144A(2) by inserting “108A,” after “by section”.
\n
(2)This section comes into operation on 1 October 2008.
\n
Rates of mineral oil tax.
\n
71.— (1) The Finance Act 1999 is amended by substituting the following for Schedule 2 to that Act, as amended by section 59(a) of the Finance Act 2007 : “SCHEDULE 2 Rates of Mineral Oil Tax With effect as on and from 1 November 2008.
\n
Description of Mineral Oil Rate of Tax Light Oil:
\n
Petrol Aviation gasoline Heavy Oil:
\n
Used as a propellant Used for air navigation Used for private pleasure navigation Kerosene used other than as a propellant Fuel oil Other heavy oil Liquefied Petroleum Gas:
\n
Used as a propellant Other liquefied petroleum gas Coal:
\n
For business use For other use €442.68 per 1,000 litres €442.68 per 1,000 litres €368.05 per 1,000 litres €368.05 per 1,000 litres €368.05 per 1,000 litres €00.00 €14.78 per 1,000 litres €47.36 per 1,000 litres €63.59 per 1,000 litres €00.00 €4.18 per tonne €8.36 per tonne ”.
\n
(2)
\n
Section 59
\n
of the Finance Act 2007 is amended by deleting paragraph (b).
\n
(3)This section shall come into operation on 1 November 2008.
\n
Amendment of Chapter 1 (mineral oil tax) of Part 2 of Finance Act 1999.
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72.— (1) Chapter 1 of Part 2 of the Finance Act 1999 is amended— (a) in section 94(1)— (i) by deleting the definitions of “alumina”, “leaded petrol”, “super unleaded petrol”, and “unleaded petrol”, (ii) by inserting the following definition after the definition of “off-road dumper”: “ ‘ petrol ’ means any light oil, other than aviation gasoline, suitable for use as a propellant;”, (iii) by substituting the following definition for the definition of “private pleasure craft”: “ ‘private pleasure navigation’ means navigation in any craft, by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes, and in particular other than for the carriage of passengers or goods, the supply of services for consideration or for the purposes of public authorities;”, (b) in section 96— (i) in paragraph (a) of subsection (2A) by substituting “petrol” for “unleaded petrol” in both places where it occurs, (ii) in paragraph (b) of subsection (2A) by deleting “with a maximum sulphur content as provided for in that Schedule”, (c) by inserting the following after section 97— “Private pleasure navigation.
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97A.— (1) Subject to subsections (2) and (3), heavy oil which has been taxed at the rate specified in Schedule 2 for other heavy oil (referred to in this section as “marked gas oil”) may be used for private pleasure navigation.
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(2)Where subsection (1) applies, the owner of the craft used for private pleasure navigation shall, not later than the first day of March following the calendar year in which the marked gas oil was purchased for such use, deliver to an officer— (a) a return, in such form as the Commissioners may require, of the quantity in litres of marked gas oil purchased in that calendar year, and (b) payment of an amount of mineral oil tax calculated at the rate of 32.069 cent per litre (which is the difference between the mineral oil tax rate for marked gas oil and the rate for heavy oil used for private pleasure navigation) on such quantity.
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(3)The owner referred to in subsection (2) shall, together with vouched receipts for all purchases of the marked gas oil concerned, maintain a record of such purchases, in such form as the Commissioners may require.
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Private pleasure flying.
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97B.— (1) Subject to subsections (2) and (6), heavy oil which has not been taxed at the rate specified in Schedule 2 for heavy oil used for air navigation, may be used for private pleasure flying.
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(2)Where subsection (1) applies, the person who has used the heavy oil concerned shall, not later than the first day of March following the calendar year in which the heavy oil was so used, deliver to an officer— (a) a return, in such form as the Commissioners may require, of the quantity in litres of such heavy oil purchased for private pleasure flying in that calendar year, and (b) payment of the mineral oil tax, calculated at the rate set down in Schedule 2 for heavy oil used for air navigation, on such quantity.
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(3)Subject to subsection (4), where it is shown to the satisfaction of the Commissioners that aviation gasoline, on which mineral oil tax has been paid, has been used for air navigation other than private pleasure flying, the Commissioners shall, subject to compliance with such conditions as they may think fit to impose, repay to the user of such aviation gasoline the amount of mineral oil tax paid less an amount calculated at the rate of €166.16 per 1,000 litres.
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(4)Subsection (3) shall only apply to aviation gasoline on which mineral oil tax has been paid on a date subsequent to the coming into operation of this section.
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(5)(a) Claims for repayment under subsection (3) shall be made in such form as the Commissioners may direct and shall be in respect of aviation gasoline used within a period of not less than one and not more than 6 calendar months. (b) A repayment under subsection (3) may not be made unless the claim is made within 4 months following the end of each such period or within such longer period as the Commissioners may, in any particular case, allow.
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(6)For the purposes of the return and payment under subsection (2), and the repayment under subsection (3), the persons concerned shall maintain, in such form as the Commissioners may require, full and accurate records of purchase, receipt, storage and usage of the fuel concerned.”, (d) by deleting section 99, (e) in section 100(1)— (i) by deleting paragraphs (e) and (j), (ii) by substituting the following for paragraph (g): “(g) mineral oil intended for use or which has been used for chemical reduction or in electrolytic or metallurgical processes;”, (iii) in paragraph (h), by substituting “private pleasure navigation” for “in private pleasure craft”, (iv) in paragraph (n), by substituting “a craft used for private pleasure navigation” for “private pleasure craft”, (v) by inserting the following after paragraph (n): “(o) mineral oil intended for use or which has been used to produce electricity, where such electricity is either subject to Electricity Tax under subsection (1) of section 58 of the Finance Act 2008, or is supplied for consumption outside the State.”.
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(2)(a) Except where paragraph (b) or (c) applies, this section comes into operation on 1 November 2008. (b) Subparagraph (v) of paragraph (e) of subsection (1) comes into operation on 1 October 2008. (c) Subparagraph (ii) of paragraph (e) of subsection (1) and, in so far as it relates to the deletion of paragraph (e) of section 100
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(1)of the Finance Act 1999 , subparagraph (i) of that paragraph come into operation from the date of passing of this Act.
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Amendment of section 78A (relief for small breweries) of Finance Act 2003.
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73.— Section 78A (inserted by section 63 of the Finance Act 2005 ) of the Finance Act 2003 is amended by substituting the following for subsection (4): “(4) (a) For the purposes of subsection (1)(b) a brewery is not considered to be legally and economically independent of another brewery where such breweries are directly or indirectly owned or partly owned— (i) by the same person, or (ii) by associated companies within the meaning of section 432 of the Taxes Consolidation Act 1997 or by legal entities corresponding to such associated companies. (b) Notwithstanding subsection (1)(b) and paragraph (a), where a person referred to in subparagraph (i) or (ii) of paragraph (a) directly or indirectly owns two or more breweries and the combined total quantity of the beer brewed in those breweries in the previous calendar year has not exceeded 20,000 hectolitres, they may be treated for the purposes of this section as a single brewery which is legally and economically independent of any other brewery.”.
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Rates of tobacco products tax.
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74.— The Finance Act 2005 is amended by substituting the following for Schedule 2 to that Act (as amended by section 62 of the Finance Act 2007 ): “SCHEDULE 2 Rates of Tobacco Products Tax Description of Product Rate of Tax Cigarettes €160.57 per thousand together with an amount equal to 17.92 per cent of the price at which the cigarettes are sold by retail Cigars €229.917 per kilogram Fine-cut tobacco for the rolling of cigarettes €194.016 per kilogram Other smoking tobacco €159.507 per kilogram ”.
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Increase in duties on retailers’ off-licences.
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75.— The duties of excise imposed by section 43 of the Finance (1909-10) Act 1910 on the licences for the sale of intoxicating liquor shall, as respects any retailer’s off-licence specified in the First Schedule to that Act which is granted on or after 1 October 2008, be charged, levied and paid at the rates specified in the second column of the Table to this section on every off-licence of a description set out in the first column of the Table opposite the rate set out in the second column, in lieu of the rates specified in column (3) of Part I of the Sixth Schedule to the Finance Act 1992 in respect of such licences.
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TABLE Description of Retailer’s Off-Licence Rate of Duty Retailer of spirits €300 Retailer of beer €300 Retailer of wine €300 Retailer of cider €300 Retailer of sweets €300 Repeals relating to excise law.
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76.— (1) The enactments set out in Part 1 and Part 2 of Schedule 3 are repealed in the case of those set out in Part 1, and revoked in the case of those set out in Part 2, to the extent mentioned in the third column of those Parts opposite the reference to the enactment concerned.
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(2)Subsection (1) comes into operation on such day or days as the Minister for Finance may appoint by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.
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Amendment of penalties on summary conviction for certain excise offences.
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77.— (1) Subject to subsection (2), in each provision specified in column (1) of the Table to this section for the amount set out in column (2) of that Table at that entry there is substituted the amount set out at the corresponding entry in column (3) of that Table.
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(2)Subsection (1) applies as respects an offence committed on a day after the passing of this Act.
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TABLE Enactment amended Amount to be replaced Amount to be inserted
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(1)
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(2)
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(3)Betting Act 1931: section 2(2) €3,000 €5,000 Finance Act 1992: section 139(2) section 139(4) section 139(5)(a) €1,265 €1,265 €1,265 €5,000 €5,000 €5,000 Finance Act 1999: section 102(2) section 102(4)(a) €3,000 €3,000 €5,000 €5,000 Finance Act 2001: section 119(3)(a) section 124 €3,000 €3,000 €5,000 €5,000 Finance Act 2002: section 67(4) section 76 section 77(2) section 78(4) section 78(6)(b) section 78(7) €3,000 €3,000 €3,000 €3,000 €3,000 €3,000 €5,000 €5,000 €5,000 €5,000 €5,000 €5,000 Finance Act 2003: section 79(7) section 79(8)(a) €3,000 €3,000 €5,000 €5,000 Finance Act 2005: section 78(2) section 78(5)(a) €3,000 €3,000 €5,000 €5,000 Amendment of section 130 (interpretation) of Finance Act 1992.
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78.—
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Section 130
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of the Finance Act 1992 is amended by inserting the following definition after the definition of “conversion”: “ ‘ CO 2 emissions ’ means the level of carbon dioxide (CO 2) emissions for a vehicle measured in accordance with the provisions of Council Directive 80/1268/EEC of 16 December 1980 (as amended) and listed in Annex VIII of Council Directive 70/156/EEC of 6 February 1970 (as amended) and contained in the relevant EC type-approval certificate or EC certificate of conformity or any other appropriate documentation which confirms compliance with any measures taken to give effect in the State to any act of the European Communities relating to the approximation of the laws of Member States in respect of type-approval for the type of vehicle concerned;”.
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Amendment of section 132 (charge of excise duty) of Finance Act 1992.
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79.— (1)
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Section 132
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of the Finance Act 1992 is amended in subsection (3)— (a) by substituting the following for paragraphs (a), (aa) and (b): “(a) in case the vehicle the subject of the registration or declaration concerned is a category A vehicle— (i) by reference to the Table to this subsection, or (ii) where— (I) the level of CO2 emissions cannot be confirmed by reference to the relevant EC type-approval certificate or EC certificate of conformity, and (II) the Commissioners are not satisfied of the level of CO 2 emissions by reference to any other document produced in support of the declaration for registration, at the rate of an amount equal to the highest percentage specified in the Table to this subsection of the value of the vehicle or €720, whichever is the greater,”, and (b) by inserting the following Table after paragraph (f): “TABLE CO 2 Emissions (CO 2g/km) Percentage payable of the value of the vehicle 0g/km up to and including 120g/km 14% or €280 whichever is the greater More than 120g/km up to and including 140g/km 16% or €320 whichever is the greater More than 140g/km up to and including 155g/km 20% or €400 whichever is the greater More than 155g/km up to and including 170g/km 24% or €480 whichever is the greater More than 170g/km up to and including 190g/km 28% or €560 whichever is the greater More than 190g/km up to and including 225g/km 32% or €640 whichever is the greater More than 225g/km 36% or €720 whichever is the greater ”.
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(2)This section comes into effect on 1 July 2008.
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Amendment of section 134 (permanent reliefs) of Finance Act 1992.
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80.—
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Section 134
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of the Finance Act 1992 is amended in subsection (11) by substituting the following for paragraph (b) (other than for the proviso to that paragraph): “(b) In paragraph (a) ‘short-term self-drive contracts’ means contracts under which vehicles are hired to persons for the purpose of being driven by them for any term or part of a term which, when added to the term of any such hiring of the same vehicle or any other vehicle to the same person does not exceed 5 weeks in any period of 12 months from the date of the commencement of the last hiring:”.
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Remission or repayment in respect of vehicle registration tax on certain hybrid electric vehicles, or certain flexible fuel vehicles, or certain electric vehicles, or certain electric motorcycles.
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81.— Chapter IV of Part II of the Finance Act 1992 is amended by substituting the following for section 135C (substituted by section 65 of the Finance Act 2007 ): “135C.— (1) In this section— ‘ hybrid electric vehicle ’ means a vehicle that derives its motive power from a combination of an electric motor and an internal combustion engine and is capable of being driven on electric propulsion alone for a material part of its normal driving cycle; ‘ flexible fuel vehicle ’ means a vehicle that derives its motive power from an internal combustion engine that is capable of using a blend of ethanol and petrol, where such blend contains a minimum of 85 per cent ethanol; ‘ electric vehicle ’ means a vehicle that derives its motive power exclusively from an electric motor; ‘ electric motorcycle ’ means a motorcycle that derives its motive power exclusively from an electric motor.
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(2)Where a person first registers a category A vehicle or a category B vehicle during the period from 1 January 2008 to 30 June 2008 and the Commissioners are satisfied that the vehicle is— (a) a series production hybrid electric vehicle, or (b) a series production flexible fuel vehicle, then the Commissioners may remit or repay to that person 50 per cent of the vehicle registration tax payable or paid in accordance with paragraphs (a), (aa), (b) or (c) of section 132(3).
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(3)(a) Where a person first registers a category A vehicle or a category B vehicle during the period from 1 July 2008 to 31 December 2010 and the Commissioners are satisfied that the vehicle is— (i) a series production hybrid electric vehicle, or (ii) a series production flexible fuel vehicle, then the Commissioners may remit or repay to that person up to a maximum amount of €2,500 of the vehicle registration tax payable or paid by reference to the Table to this subsection in accordance with paragraphs (a), (b) or (c) of section 132(3). (b) In this subsection “age”, in relation to a vehicle means the time that has elapsed since the date on which the vehicle first entered into service.
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TABLE Age of vehicle Maximum amount which may be remitted or repaid New vehicle, first registration Not a new vehicle but less than 2 years 2 years or over but less than 3 years 3 years or over but less than 4 years 4 years or over but less than 5 years 5 years or over but less than 6 years 6 years or over but less than 7 years 7 years or over but less than 8 years 8 years or over but less than 9 years 9 years or over but less than 10 years 10 years or over €2,500 €2,250 €2,000 €1,750 €1,500 €1,250 €1,000 €750 €500 €250 Nil
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(4)A category A electric vehicle or a category B electric vehicle first registered during the period 1 January 2008 to 31 December 2010 is exempt from vehicle registration tax where the Commissioners are satisfied that such vehicle is a series production electric vehicle.
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(5)An electric motorcycle first registered during the period 1 January 2008 to 31 December 2010 is exempt from vehicle registration tax where the Commissioners are satisfied that such vehicle is a series production electric motorcycle.”.
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PART 3
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Value-Added Tax Interpretation (Part 3).
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82.— In this Part “ Principal Act ” means the Value-Added Tax Act 1972 .
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Amendment of section 1 (interpretation) of Principal Act.
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83.— With effect from 1 July 2008 section 1 of the Principal Act is amended in subsection (1)— (a) by inserting the following before the meaning assigned to “agricultural produce”: “ ‘ accountable person ’ has the meaning assigned to it by section 8; ‘ accounting year ’ means a period of 12 months ending on 31 December, but if a taxable person customarily makes up accounts for periods of 12 months ending on another fixed date, then, for such a person, a period of 12 months ending on that fixed date;”, (b) by substituting the following for the definition of “business”: “ ‘ business ’ means an economic activity, whatever the purpose or results of that activity, and includes any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, and the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis;”, (c) by inserting the following definition after the definition of “business”: “ ‘ capital goods ’ means developed immovable goods and a reference to a capital good includes a reference to any part thereof and the term capital good shall be construed accordingly;”, (d) by inserting the following definition after the definition of “Community”: “ ‘ completed ’, in respect of immovable goods, has the meaning assigned to it by section 4B;”, (e) by substituting in paragraph (a) of the definition of ‘exempted activity’ “sections 4(6), 4B(2) and 4C(2)” for “section 4(6)”, (f) by inserting the following after the definition of “free port”: “ ‘ freehold equivalent interest ’ means an interest in immovable goods other than a freehold interest the transfer of which constitutes a supply of goods in accordance with section 3;”, (g) by inserting the following after the definition of “importation of goods”: “ ‘independently’, in relation to a taxable person excludes a person who is employed or who is bound to an employer by a contract of employment or by any other legal ties creating the relationship of employer and employee as regards working conditions, remuneration and the employer’s liability;”, (h) by inserting the following after the definition of “intra-Community acquisition of goods”: “ ‘joint option for taxation’ has the meaning assigned to it by section 4B; ‘ landlord’s option to tax ’ has the meaning assigned to it by section 7A;”, (i) by inserting the following after “have expired” in the definition of “surrender”: “but in the case of an interest in immovable goods created on or after 1 July 2008, the failure of the lessee to exercise any option of the type referred to in subsection (1)(b) of section 4 in relation to that interest does not constitute a surrender”,
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and (j) by substituting the following for the definition of “taxable person”: “ ‘ taxable person ’ means a person who independently carries out any business in the State;”.
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Amendment of section 2 (charge of value-added tax) of Principal Act.
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84.— Section 2 of the Principal Act is amended with effect from 1 July 2008 in subsection (1) by substituting the following paragraph for paragraph (a): “(a) on the supply of goods and services effected within the State for consideration by a taxable person acting as such, other than in the course or furtherance of an exempted activity, and”.
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Amendment of section 3 (supply of goods) of Principal Act.
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85.— With effect from 1 July 2008 section 3 of the Principal Act is amended— (a) in subsection (1)(e) by substituting “being movable goods” for “being goods”, (b) by inserting the following after subsection (1B): “(1C) For the purposes of this Act in the case of immovable goods ‘ supply ’ in relation to goods shall be regarded as including— (a) the transfer in substance of the right to dispose of immovable goods as owner or the transfer in substance of the right to dispose of immovable goods, and (b) transactions where the holder of an estate or interest in immovable goods enters into a contract or agreement with another person in relation to the creation, establishment, alteration, surrender, relinquishment or termination of rights in respect of those immovable goods, apart from mortgages, and consideration or payments which amount to 50 per cent or more of the open market value of the immovable goods at the time the contract or agreement is concluded are payable pursuant to or associated with the contract or agreement or otherwise either before the making of the contract or agreement or within 5 years of the commencement of such contract or agreement.”, and (c) in subsection (8)— (i) by substituting “Where a person who is not established in the State makes an intra-Community acquisition of goods in the State and makes a subsequent supply of those goods to an accountable person in the State” for “Where a taxable person who is not established in the State makes an intra-Community acquisition of goods in the State and makes a subsequent supply of those goods to a taxable person in the State”, and (ii) in paragraph (a) of the proviso by substituting “the person” for “the taxable person”.
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Amendment of section 4 (special provisions in relation to the supply of immovable goods) of Principal Act.
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86.— Section 4 of the Principal Act is amended by inserting the following after subsection (10): “(11) Subject to section 4C the other provisions of this section, apart from subsections (9) and (10), shall not apply as regards— (a) a disposal of an interest in immovable goods, or (b) a surrender of possession of immovable goods, which occurs after 1 July 2008. Subsection (9) shall apply only as respects a reversionary interest created prior to 1 July 2008. Subsection (10) shall apply only as respects an interest which is disposed of prior to 1 July 2008.”.
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Amendment of section 4A (person liable to pay tax in relation to certain supplies of immovable goods) of Principal Act.
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87.— With effect from 1 July 2008 section 4A of the Principal Act is repealed.
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Supplies of immovable goods, etc.
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88.— The Principal Act is amended with effect from 1 July 2008 by inserting the following sections before section 5— “Supplies of immovable goods.
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4B.— (1) In this section— ‘ completed ’, in respect of immovable goods, means that the development of those goods has reached the state, apart from only such finishing or fitting work that would normally be carried out by or on behalf of the person who will use them, where those goods can effectively be used for purposes for which those goods were designed, and the utility services required for those purposes are connected to those goods; ‘ occupied ’, in respect of immovable goods, means— (a) occupied and fully in use following completion where that use is one for which planning permission for the development of those goods was granted, and (b) where those goods are let, occupied and fully in such use by the tenant.
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(2)Subject to subsections (3), (5) and (7), tax is not chargeable on the supply of immovable goods— (a) that have not been developed, (b) being completed immovable goods, the most recent completion of which occurred more than 5 years prior to that supply, and those goods have not been developed within that 5 year period, (c) being completed immovable goods that have not been developed since the most recent completion of those goods, where that supply— (i) occurs after the immovable goods have been occupied for an aggregate of at least 24 months following the most recent completion of those goods, and (ii) takes place after a previous supply of those goods on which tax was chargeable and that previous supply— (I) took place after the most recent completion of those goods, and (II) was a transaction between taxable persons who were not connected within the meaning of section 7A, (d) being a building that was completed more than 5 years prior to that supply and on which development was carried out in the 5 years prior to that supply where— (i) such development did not and was not intended to adapt the building for a materially altered use, and (ii) the cost of such development did not exceed 25 per cent of the consideration for that supply, or (e) being a building that was completed within the 5 years prior to that supply where— (i) the building had been occupied for an aggregate of at least 24 months following that completion, (ii) that supply takes place after a previous supply of the building on which tax was chargeable and that previous supply— (I) took place after that completion of the building, and (II) was a transaction between taxable persons who were not connected within the meaning of section 7A, and (iii) if any development of that building occurred after that completion— (I) such development did not and was not intended to adapt the building for a materially altered use, and (II) the cost of such development did not exceed 25 per cent of the consideration for that supply.
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(3)Where a person supplies immovable goods to another person and in connection with that supply a taxable person enters into an agreement with that other person or with a person connected with that other person to carry out a development in relation to those immovable goods, then— (a) the person who supplies the goods shall, in relation to that supply, be deemed to be a taxable person, (b) the supply of the said immovable goods shall be deemed to be a supply of those goods to which section 2 applies, and (c) subsection (2) does not apply to that supply.
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(4)Section 8(3) does not apply in relation to a person who makes a supply of immovable goods.
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(5)Where a taxable person supplies immovable goods to another taxable person in circumstances where that supply would otherwise be exempt in accordance with subsection (2) then tax shall, notwithstanding subsection (2), be chargeable on that supply, where the supplier and the taxable person to whom the supply is made enter an agreement in writing to opt to have tax chargeable on that supply (in this Act referred to as a ‘joint option for taxation’).
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(6)Where a joint option for taxation is exercised in accordance with subsection (5) then— (a) the person to whom the supply is made shall, in relation to that supply, be an accountable person and shall be liable to pay the tax chargeable on that supply as if that person supplied those goods, and (b) the person who made the supply shall not be accountable for or liable to pay the said tax.
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(7)(a) Where a taxable person supplies immovable goods to another person in circumstances where that supply would otherwise be exempt in accordance with subsection (2), tax shall, notwithstanding subsection (2), be chargeable on that supply where— (i) the immovable goods are buildings designed as or capable of being used as a dwelling, (ii) the person who makes that supply is a person who developed the immovable goods in the course of a business of developing immovable goods or a person connected with that person, within the meaning of section 7A, and (iii) the person who developed those immovable goods was entitled to a deduction under section 12 for tax chargeable to that person in respect of that person’s acquisition or development of those immovable goods. (b) In the case of a building to which this subsection would apply if the building were supplied by the taxable person at any time during the capital goods scheme adjustment period for that building— (i) section 12E(6) shall not apply, and (ii) notwithstanding section 12E(4) the proportion of total tax incurred that is deductible by that person shall be treated as the initial interval proportion of deductible use.
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Transitional measures for supplies of immovable goods.
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4C.— (1) This section applies to— (a) immovable goods which are acquired or developed by a taxable person prior to 1 July 2008 and have not been disposed of by that taxable person prior to that date, until such time as those goods have been disposed of by that taxable person on or after that date, and (b) an interest in immovable goods within the meaning of section 4 other than a freehold interest or a freehold equivalent interest, created by a taxable person prior to 1 July 2008 and held by a taxable person on 1 July 2008.
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(2)In the case of a supply of immovable goods to which subsection (1)(a) applies, being completed immovable goods within the meaning of section 4B,— (a) where the person supplying those goods had no right to deduction under section 12 in relation to the tax chargeable on the acquisition or development of those goods prior to 1 July 2008, and (b) if any subsequent development of those immovable goods occurs on or after 1 July 2008— (i) that development does not and is not intended to adapt the immovable goods for a materially altered use, and (ii) the cost of that development does not exceed 25 per cent of the consideration for that supply, then, subject to section 4B(3), that supply is not chargeable to tax but a joint option for taxation may be exercised in respect of that supply in accordance with section 4B(5) and that tax is payable in accordance with section 4B(6).
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(3)Where a person referred to in subsection (1)— (a) acquired, developed or has an interest in immovable goods to which this section applies, (b) was entitled to deduct tax, in accordance with section 12 on that person’s acquisition or development of those goods, and (c) creates a letting of those immovable goods to which paragraph (iv) of the First Schedule applies, then, that person shall calculate an amount in accordance with the formula in section 4(3)(ab) and that amount shall be payable as if it were tax due by that person in accordance with section 19 for the taxable period in which that letting takes place.
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(4)An assignment or surrender of an interest in immovable goods to which subsection (1)(b) applies is deemed to be a supply of immovable goods for the purposes of this Act for a period of 20 years from the creation of the interest or the most recent assignment or surrender of that interest before 1 July 2008, whichever is the later.
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(5)If a person makes a supply of immovable goods to which this section applies and tax is chargeable on that supply and that person was not entitled to deduct all the tax charged to that person on the acquisition or development of those immovable goods that person shall be entitled to make the appropriate adjustment that would apply under section 12E(7)(a) as if the capital goods scheme applied to that transaction.
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(6)In the case of an assignment or surrender of an interest in immovable goods referred to in subsection (4)— (a) tax shall be chargeable if the person who makes the assignment or surrender was entitled to deduct in accordance with section 12 any of the tax chargeable on the acquisition of that interest, or the development of those immovable goods, and (b) tax shall not be chargeable where the person who makes the assignment or surrender had no right to deduction under section 12 on the acquisition of that interest or the development of those immovable goods, but a joint option for taxation of that assignment or surrender may be exercised.
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(7)(a) Notwithstanding section 10, the amount on which tax is chargeable on a taxable assignment or surrender to which subsection (6) applies shall be the amount calculated in accordance with the formula in paragraph (b) divided by the rate as specified in section 11(1)(d) expressed in decimal form. (b) The amount of tax due and payable in respect of a taxable assignment or surrender to which subsection (6) applies is an amount calculated in accordance with the following formula:
\n
T x N Y where— T is the total tax incurred referred to in subsection (11)(d), N is the number of full intervals plus one, that remain in the adjustment period referred to in subsection (11)(c), at the time of the assignment or surrender, Y is the total number of intervals in that adjustment period for the person making the assignment or surrender, and section 4(8) shall apply to that tax.
\n
(8)(a) Where an interest in immovable goods referred to in subsection (6) is assigned or surrendered during the adjustment period and tax is payable in respect of that assignment or surrender, then the person who makes the assignment or surrender shall issue a document to the person to whom the interest is being assigned or surrendered containing the following information: (i) the amount of tax due and payable on that assignment or surrender, and (ii) the number of intervals remaining in the adjustment period. (b) Where paragraph (a) applies, the person to whom the interest is assigned or surrendered shall be a capital goods owner for the purpose of section 12E in respect of the capital good being assigned or surrendered, and shall be subject to the provisions of that section and for this purpose— (i) the adjustment period shall be the period referred to in subsection (11)(c) as correctly specified on the document referred to in paragraph (a), (ii) the total tax incurred shall be the amount of tax referred to in subsection (11)(d) as correctly specified in the document referred to in paragraph (a), and (iii) the initial interval shall be a period of 12 months beginning on the date on which the assignment or surrender occurs.
\n
(9)(a) Where a person cancels an election to be an accountable person in accordance with section 8(5A) then, in respect of the immovable goods which were used in supplying the services for which that person made that election, section 12E does not apply if those immovable goods are held by that person on 1 July 2008 and are not further developed after that date. (b) Section 8(5A) does not apply to immovable goods acquired or developed on or after 1 July 2008.
\n
(10)In the application of section 12E to immovable goods and interests in immovable goods to which this section applies, subsections (4), (5) and (6) of that section shall be disregarded in respect of the person who owns those immovable goods or holds an interest in those immovable goods on 1 July 2008.
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(11)For the purposes of applying section 12E to immovable goods, or interests in immovable goods to which this section applies— (a) any interest in immovable goods to which this section applies shall be treated as a capital good, (b) any person who has an interest in immovable goods to which this section applies shall be treated as a capital goods owner, but shall not be so treated to the extent that the person has a reversionary interest in those immovable goods if those goods were not developed, by, on behalf of, or to the benefit of that person, (c) the period to be treated as the adjustment period in respect of immovable goods to which this section applies is— (i) in the case of the acquisition of the freehold interest or freehold equivalent interest in those immovable goods, 20 years from the date of that acquisition, (ii) in the case of the creation of an interest in those immovable goods, 20 years or, if the interest when it was created was for a period of less than 20 years, the number of full years in that interest when created, whichever is the shorter, or (iii) in the case of the assignment or surrender of an interest in immovable goods the period remaining in that interest at the time of the assignment or surrender of that interest or 20 years, whichever is the shorter, but where the immovable goods have been developed since the acquisition of those immovable goods or the creation of that interest, 20 years from the date of the most recent development of those goods, (d) the amount of tax charged, or the amount of tax that would have been chargeable but for the application of sections 3(5)(b)(iii) or 13A, to the person treated as the capital goods owner on the acquisition of, or the most recent development of, the capital goods shall be treated as the total tax incurred, (e) the total tax incurred divided by the number of years in the adjustment period referred to in paragraph (c) shall be treated as the base tax amount, (f) each year in the adjustment period referred to in paragraph (c) shall be treated as an interval, (g) the first 12 months of the adjustment period referred to in paragraph (c) shall be treated as the initial interval, (h) the second year of the adjustment period referred to in paragraph (c) shall be treated as the second interval, (i) each year following the second year in the adjustment period referred to in paragraph (c) shall be treated as a subsequent interval, (j) the amount which shall be treated as the total reviewed deductible amount shall be the amount of the total tax incurred as provided for in paragraph (d) less—
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(i) any amount of the total tax incurred which was charged to the person treated as the capital goods owner but which that owner was not entitled to deduct in accordance with section 12, (ii) any amount accounted for in accordance with section 12D(4) by the person treated as the capital goods owner in respect of a transfer of the goods to that owner prior to 1 July 2008, and (iii) any tax payable in accordance with subsection (3) or section 4(3)(ab) by the person treated as the capital goods owner, (k) the amount referred to in paragraph (d) less the amount referred to in paragraph (j) shall be treated as the non-deductible amount, and for the purposes of applying paragraphs (f), (h) and (i) ‘ year ’ means each 12 month period in the adjustment period, the first of which begins on the first day of the initial interval referred to in paragraph (g).
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(12)Where a taxable person acquires immovable goods on or after 1 July 2007, then, notwithstanding subsection (10), section 12E(4) shall apply and, notwithstanding subsection (11)(j), the total reviewed deductible amount shall have the meaning assigned to it by section 12E. However this subsection does not apply where a taxable person has made an adjustment in accordance with section 12(4)(f) in respect of those goods.”.
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Amendment of section 5 (supply of services) of Principal Act.
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89.— With effect from 1 July 2008 section 5 of the Principal Act is amended— (a) in subsection (3)(a) by inserting “other than immovable goods” after “the use of goods”, and (b) by inserting the following after subsection (3A): “(3B) The use of immovable goods forming part of the assets of a business— (a) for the private use of an accountable person or of such person’s staff, or (b) for any purpose other than those of the accountable person’s business, is a taxable supply of services if— (i) that use occurs during a period of 20 years following the acquisition or development of those goods by the accountable person, and (ii) those goods are treated for tax purposes as forming part of the assets of the business at the time of their acquisition or development.”.
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Amendment of section 7 (waiver of exemption) of Principal Act.
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90.— Section 7 of the Principal Act is amended— (a) by inserting in subsection (3) “or in accordance with section 7B(3)” after “at the request of a person”, and (b) by inserting the following after subsection (4): “(5) (a) No waiver of exemption from tax in accordance with this section shall commence on or after 1 July 2008. (b) Any waiver of exemption from tax which applies under this section shall not extend to any letting of immovable goods where those goods are acquired or developed on or after 1 July 2008. (c) For the purpose of applying paragraph (b), a waiver of exemption, which is in place on 18 February 2008 in respect of the letting of immovable goods which are undergoing development on that day by or on behalf of the person who has that waiver, may extend to a letting of those immovable goods.”.
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Option to tax lettings of immovable goods, etc.
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91.— The Principal Act is amended with effect from 1 July 2008 by inserting the following sections after section 7: “Option to tax lettings of immovable goods.
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7A.— (1) (a) Tax shall be chargeable in accordance with this Act on the supply of a service to which paragraph (iv) of the First Schedule relates (in this section referred to as a ‘letting’) where, subject to subsections (2) and (4), the supplier (in this section referred to as a ‘landlord’) opts to make that letting so chargeable, and a landlord who exercises this option (referred to in this Act as a ‘landlord’s option to tax’) shall, notwithstanding section 8(3), be an accountable person and liable to account for the tax on that letting in accordance with this Act, and that letting shall not be a supply to which section 6 applies. (b) Where a taxable person is entitled to deduct tax on the acquisition or development of immovable goods on the basis that the goods will be used for the purpose of a letting or lettings in respect of which a landlord’s option to tax will apply, then— (i) that person shall be treated as having exercised the landlord’s option to tax in respect of any lettings of those immovable goods, and (ii) that option shall be deemed to continue in place until that person makes a letting in respect of which neither of the conditions of paragraph (c) are fulfilled. (c) A landlord’s option to tax in respect of a letting is exercised by— (i) a provision in writing in a letting agreement between the landlord and the person to whom the letting is made (in this section referred to as a ‘tenant’) that tax is chargeable on the rent, or (ii) the issuing by the landlord of a document to the tenant giving notification that tax is chargeable on the letting. (d) A landlord’s option to tax in respect of a letting is terminated— (i) in the case of an option exercised in accordance with paragraph (b), by making a letting of the immovable goods referred to in that paragraph in respect of which neither of the conditions of paragraph (c) are fulfilled, (ii) in the case of an option exercised in accordance with paragraph (c), by— (I) an agreement in writing between the landlord and tenant that the option is terminated and specifying the date of termination, or (II) the delivery to the tenant of a document giving notification that the option has been terminated and specifying the date of termination, (iii) when the landlord and tenant become connected persons, (iv) when a person connected with the landlord commences to occupy the immovable goods that are subject to that letting whether that person occupies those goods by way of letting or otherwise, or (v) when the immovable goods that are subject to that letting are used or to be used for residential purposes within the meaning of subsection (4).
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(2)(a) A landlord may not opt to tax a letting— (i) subject to paragraph (b), where that landlord and the tenant in respect of that letting are connected persons, or (ii) where the landlord is not connected to the tenant but is connected to any person who occupies the immovable goods that is subject to that letting, whether that person occupies those goods by way of letting or otherwise. (b) Paragraph (a)(i) shall not apply where the immovable goods which are the subject of the letting are used for the purposes of supplies or activities which entitle the tenant to deduct at least 90 per cent of the tax chargeable on the letting in accordance with section 12. However, where a landlord has exercised a landlord’s option to tax in respect of a letting to which paragraph (a)(i) would have applied but for this paragraph, paragraph (a)(i) shall apply from the end of the first accounting year in which the goods are used for the purposes of supplies or activities which entitle the tenant to deduct less than 90 per cent of the said tax chargeable.
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(3)(a) For the purposes of this section any question of whether a person is connected with another person shall be determined in accordance with the following: (i) a person is connected with an individual if that person is the individual’s spouse, or is a relative, or the spouse of a relative, of the individual or of the individual’s spouse, (ii) a person is connected with any person with whom he or she is in partnership, and with the spouse or a relative of any individual with whom he or she is in partnership, (iii) subject to clauses (IV) and (V) of subparagraph (v), a person is connected with another person if he or she has control over that other person, or if the other person has control over the first-mentioned person, or if both persons are controlled by another person or persons, (iv) a body of persons is connected with another person if that person, or persons connected with him or her, have control of that body of persons, or the person and persons connected with him or her together have control of it, (v) a body of persons is connected with another body of persons— (I) if the same person has control of both or a person has control of one and persons connected with that person or that person and persons connected with that person have control of the other, (II) if a group of 2 or more persons has control of each body of persons 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 he or she is connected, (III) if both bodies of persons act in pursuit of a common purpose, (IV) if 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 activities carried on or to be carried on by both bodies of persons, or (V) if both bodies of persons are under the control of any person or group of persons or groups of persons having a reasonable commonality of identity, (vi) a person in the capacity as trustee of a settlement is connected with— (I) any person who in relation to the settlement is a settlor, or (II) any person who is a beneficiary under the settlement. (b) In this subsection— ‘ control ’, in the case of a body corporate or in the case of a partnership, has the meaning assigned to it by section 8(3B); ‘ relative ’ means a brother, sister, ancestor or lineal descendant.
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(4)A landlord’s option to tax may not be exercised in respect of all or part of a house or apartment or other similar establishment to the extent that those immovable goods are used or to be used for residential purposes, including any such letting— (a) governed by the Residential Tenancies Act 2004 , (b) governed by the Housing (Rent Books) Regulations 1993 ( S.I. No. 146 of 1993 ), (c) governed by section 10 of the Housing Act 1988 , (d) of a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies, or (e) of accommodation which is provided as a temporary dwelling for emergency residential purposes, and a landlord’s option to tax, once exercised, shall immediately cease to have effect to the extent that the immovable goods which are the subject of the letting to which the option applies, come to be used for a residential purpose.
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Transitional measures: waiver of exemption.
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7B.— (1) This section applies to an accountable person who had waived his or her right to exemption from tax in accordance with section 7 and who had not cancelled that waiver before 1 July 2008 (hereafter in this section referred to as a ‘landlord’).
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(2)Section 12E does not apply to a landlord to the extent that tax relating to the acquisition or development of immovable goods has been or would be taken into account in calculating, in accordance with section 7(3), the sum, if any, due by that landlord as a condition of the cancellation of a waiver.
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(3)Where a landlord has made a letting and, were that letting not already subject to a waiver, that letting would be one in respect of which the landlord would not, because of the provisions of section 7A(2), be entitled to exercise a landlord’s option to tax in accordance with section 7A, then the landlord’s waiver of exemption shall, subject to subsection (4), immediately cease to apply to that letting, and— (a) that landlord shall pay the amount, as if it were tax due by that person in accordance with section 19 for the taxable period in which the waiver ceases to apply to that letting and the amount shall be the sum, if any, which would be payable in accordance with section 7(3) in respect of the cancellation of a waiver as if that landlord’s waiver applied only to the immovable goods or the interest in immovable goods subject to that letting to which the waiver has ceased to apply, and