Taxes Consolidation Act 1997

(b) that the whole or any part of a dividend paid out of profits or gains which consist of or include profits or gains in relation to which double taxation relief is given by virtue of this section is not to be regarded as income or profits for any purpose of the Tax Acts.

CHAPTER 2 Miscellaneous

830 Relief to certain companies liable to foreign tax. [CTA76 s163]

830.—(1) In this section—

“accounting period” includes a part of an accounting period;

“external tax” means a tax chargeable and payable under the law of the territory in which the paying company is resident, being a territory to which this section applies, and which corresponds to Irish corporation tax or income tax or both of those taxes, but a tax payable under the law of a province, state or other part of a country, or which is levied by or on behalf of a municipality or other local body, shall for the purposes of this subsection be deemed not to correspond to those taxes.

(2) This section shall apply to every territory other than—

(a) Northern Ireland and Great Britain,

(b) the United States of America, and

(c) a territory with the Government of which arrangements are for the time being in force by virtue of section 826.

(3) Where a company (in this section referred to as “the investing company”) has paid by deduction or otherwise, or is liable to pay, by reference to any part of its income arising in a territory to which this section applies, tax for any accounting period and it is shown to the satisfaction of the Revenue Commissioners that—

(a) that part of the investing company's income consists of a dividend or interest paid to it by a company resident in the territory (in this section referred to as “the paying company”) not less than 50 per cent of the voting power in which is controlled directly or indirectly by the investing company,

(b) that dividend or interest arose from the investment in the paying company by the investing company, whether by means of loan or otherwise, of a sum or sums representing—

(i) profits the Irish tax referable to which was reduced to nil under—

(I) Part III of the Finance (Miscellaneous Provisions) Act, 1956,

(II) Chapter IV of Part XXV of the Income Tax Act, 1967, or

(III) Part IV of the Corporation Tax Act, 1976,

(ii) such proportion of profits the Irish tax referable to which was reduced otherwise than to nil under those provisions as is equal to the proportion by which that Irish tax has been so reduced, or

(iii) profits arising from exempted trading operations which by virtue of—

(I) Parts I and II of the Finance (Miscellaneous Provisions) Act, 1958,

(II) Chapter I of Part XXV of the Income Tax Act, 1967, or

(III) Part V of the Corporation Tax Act, 1976,

were not, in relation to the company by which such operations were carried on, taken into account for any purpose of—

(A) the Income Tax Acts,

(B) Part V of the Finance Act, 1920, and the enactments amending or extending that Part, or

(C) the Corporation Tax Acts,

and

(c) the investing company has paid external tax in the territory in respect of that part of its income,

then, the Revenue Commissioners may grant to the investing company in respect of that accounting period such relief as is just with a view to affording relief in respect of the double taxation of that part of the investing company's income, but not exceeding the lesser of—

(aa) 50 per cent of the total of the corporation tax which but for this section would be payable by the investing company in respect of that part of its income, and

(bb) the amount of the external tax paid or payable in the territory in respect of that part of its income after deduction of any relief to which the company may be entitled in that territory.

(4) (a) External tax paid by the paying company in respect of its profits shall be taken into account in considering whether any, and if so what, relief ought to be allowed in respect of a dividend paid by the paying company to the investing company, and for the purposes of this section (other than this subsection) such tax or the appropriate part of such tax shall be regarded as external tax paid by the investing company.

(b) Paragraph 8 of Schedule 24 shall apply for the purpose of ascertaining the amount of the external tax paid by the paying company which is to be taken into account in relation to any dividend paid by the paying company to the investing company as it applies to the computation of foreign tax to be taken into account for the purposes of that paragraph.

(5) (a) Nothing in this section shall authorise the granting of relief under this section to any company in respect of any accounting period to such an extent as would reduce the aggregate amount (computed after deduction of any relief to which the company may be entitled in the territory) of the corporation tax and external tax payable by such company in respect of any part of its income of the kind described in subsection (3)(a) arising in a territory to which this section applies below the amount of corporation tax which would be payable by the company in respect of that part of its income if that part of its income had arisen in the State and had been liable in the hands of the investing company to corporation tax.

(b) In computing for the purposes of paragraph (a) the amount of corporation tax which would be so payable by the company in respect of that part of its income if that part had arisen in the State—

(i) no deduction for external tax shall be made from that part of its income, and

(ii) where pursuant to subsection (4) external tax paid by the paying company is regarded as external tax paid by the investing company, that part of the investing company's income shall be treated as increased by the amount of the external tax which is so regarded.

(6) Relief under this section shall be given as a credit against corporation tax chargeable by reference to the part of the investing company's income referred to in subsection (3)(a).

(7) (a) Any claim for relief under this section shall be made in writing to the inspector not later than 6 years from the end of the accounting period to which it relates.

(b) An appeal to the Appeal Commissioners shall lie on any question arising under this section in the like manner as an appeal would lie against an assessment to corporation tax, and the provisions of the Tax Acts relating to appeals shall apply accordingly.

831 Implementation of Council Directive No. 90/435/EEC concerning the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States. [FA91 s36]

831.—(1) (a) In this section—

“arrangements” means arrangements having the force of law by virtue of section 826;

“bilateral agreement” means any arrangements, protocol or other agreement between the Government and the government of another Member State;

“company” means a company of a Member State;

“company of a Member State” has the meaning assigned to it by Article 2 of the Directive;

“the Directive” means Council Directive No. 90/435/EEC of 23 July 1990[^1] on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States;

“distribution” means income from shares or from other rights, not being debt claims, to participate in a company's profits, and includes any amount assimilated to income from shares under the taxation laws of the State of which the company making the distribution is resident;

“foreign tax” means any tax which—

(i) is payable under the laws of a Member State other than the State, and

(ii) (I) is specified in paragraph (c) of Article 2 of the Directive, or

(II) is substituted for and is substantially similar to a tax so specified;

“Member State” means a Member State of the European Communities;

“parent company” means a company resident in the State which owns at least 25 per cent of the share capital of a company not so resident, but where a bilateral agreement contains a provision to the effect—

(i) that a company shall only be a parent company during any uninterrupted period of at least 2 years throughout which at least 25 per cent of the share capital of the company not resident in the State is owned by the first-mentioned company, or

(ii) that—

(I) the requirement (being the requirement for the purposes of this definition) that a company resident in the State own at least 25 per cent of the share capital of the company not so resident shall be treated as a requirement that the company so resident holds at least 25 per cent of the voting rights in the company not so resident, or

(II) that requirement shall be so treated and a company shall only be a parent company during any uninterrupted period of at least 2 years throughout which at least 25 per cent of the voting rights in the company not resident in the State is held by the first-mentioned company,

then, in its application to a company to which the provision in the bilateral agreement applies, this definition shall apply subject to that provision and shall be construed accordingly.

(b) For the purposes of this section, a company shall be a subsidiary of another company which owns shares or holds voting rights in it where the other company's ownership of those shares or holding of those rights is sufficient for that other company to be a parent company.

(c) A word or expression used in this section and in the Directive has, unless the contrary intention appears, the same meaning in this section as in the Directive.

(2) Subject to subsections (3) and (4), where a parent company receives a distribution chargeable in the State to corporation tax, other than a distribution in a winding up, from its subsidiary—

(a) credit shall be allowed for—

(i) any withholding tax charged on the distribution by the Federal Republic of Germany, the Hellenic Republic or the Portuguese Republic, pursuant to the derogations provided for in Article 5 of the Directive, and

(ii) any foreign tax, not chargeable directly or by deduction in respect of the distribution, which is borne by the company making the distribution, and is properly attributable to the proportion of its profits which is represented by the distribution, in so far as that foreign tax exceeds so much of any tax credit in respect of the distribution as is payable to the parent company by the Member State in which the company making the distribution is resident,

against corporation tax in respect of the distribution to the extent that credit for such withholding tax and foreign tax would not otherwise be so allowed, and

(b) notwithstanding Chapter 2 of Part 4, the distribution shall not be a dividend to which that Chapter applies.

(3) Where by virtue of subsection (2)(a) a company is to be allowed credit for tax payable under the laws of a Member State other than the State, Schedule 24 shall apply for the purposes of that subsection as if—

(a) the provisions of that subsection were arrangements providing that tax so payable shall be allowed as a credit against tax payable in the State, and

(b) references in Schedule 24 to a dividend were references to a distribution within the meaning of this section.

(4) Subsection (2) shall apply without prejudice to any provision of a bilateral agreement.

832 Provisions in relation to Convention for reciprocal avoidance of double taxation in the State and the United Kingdom of income and capital gains. [FA77 s39(1) and (3) to (5); FA96 s132(2) and Sch5 PtII]

832.—(1) In this section—

“the Convention” means the Convention between the Government of Ireland and the Government of the United Kingdom for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, and the Protocol amending the Convention, both of which are set out in the Schedule to the Double Taxation Relief (Taxes on Income and Capital Gains) (United Kingdom) Order, 1976 (S.I. No. 319 of 1976);

“dividend” means a dividend within the meaning of Article 11(4) of the Convention.

(2) Subject to sections 70 and 71 as modified by section 73, where a person is chargeable to income tax or corporation tax under Case III of Schedule D on income which is a dividend in respect of which the person is entitled to a tax credit under Article 11 (2)(b) of the Convention, the income so chargeable shall include the amount of the tax credit.

(3) For the purpose of giving effect to the Convention, the Tax Acts shall, for any year for which the Convention is in force, apply subject to the modifications in section 73.

(4) (a) In applying section 707 in the case of a society registered under the enactments for the time being in force in the United Kingdom corresponding to the Friendly Societies Acts, 1896 to 1977, only expenses of management attributable to the life business referable to contracts of assurance made on or after the 6th day of April, 1976, shall be taken into account.

(b) In applying subsection (4) of section 726 in the case of a society referred to in paragraph (a), there shall be excluded from the liabilities of which B in that subsection is the average any liabilities to policy holders arising from contracts made before the 6th day of April, 1976.

(c) This subsection shall be construed as one with Part 26.

833 Convention with United States of America. [ITA67 s358(2) and (3).]

833.—(1) Schedule 24 shall apply for the purposes of giving effect to the Convention set out in Schedule 25 concluded on the 13th day of September, 1949, between the Government of Ireland and the Government of the United States of America.

(2) The Revenue Commissioners may from time to time make regulations in relation to the granting of the reliefs specified in the Convention and may in particular by those regulations provide—

(a) for securing that no such reliefs from taxation imposed by the laws of the United States of America as are provided for in the Convention shall enure to the benefit of persons not entitled to such reliefs, and

(b) for authorising, in cases where tax deductible from any periodical payment has, in order to comply with the terms of the Convention, not been deducted and it is discovered that the Convention does not apply to that payment, the recovery of the tax by assessment on the person entitled to the payment or by deduction from subsequent payments.

834 Relief in respect of ships documented under laws of United States of America. [ITA67 s359]

834.—Exemption shall be granted from tax in respect of so much of the income of a citizen of the United States of America not resident in the State or of a corporation organised in the United States of America as is derived from the operation of a ship or ships documented under the laws of the United States of America.

835 Saver for arrangements made under section 362 of Income Tax Act, 1967. [FA87 s23(2)]

835.—Notwithstanding the repeal of section 362 of the Income Tax Act, 1967, by section 23(1) of the Finance Act, 1987, where before the 9th day of July, 1987, an order was made under section 362 of the Income Tax Act, 1967, the arrangement to which the order relates shall continue to have the force of law.

PART 36 Miscellaneous Special Provisions

836 Allowances for expenses of members of Oireachtas. [Section 4 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992]

836.—(1) An allowance payable under section 3 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992, shall be exempt from income tax and shall not be reckoned in computing income for the purposes of the Income Tax Acts.

(2) Sections 114 and 115 shall not apply in relation to expenses in full settlement of which an allowance is payable under section 3 of the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992, and no claim shall lie under those sections in respect of those expenses; but where a Minister of the Government, the Attorney General or a Minister of State, being—

(a) a member of Dáil Éireann for a constituency outside the county borough and the administrative county of Dublin, or

(b) a member of Seanad Éireann whose main residence is situated outside that county borough and administrative county,

is, arising out of the performance of his or her duties as an office holder or as a member of the Oireachtas, obliged to maintain a second residence in addition to his or her main residence, he or she shall be granted a deduction under section 114 in respect of expenses incurred by him or her in maintaining that second residence.

837 Members of the clergy and ministers of religion. [ITA67 s544(1); FA69 s65(1) and Sch5 PtI]

837.—In assessing the income tax chargeable under any Schedule on a member of the clergy or minister of any religious denomination, the following deductions may be made from any profits, fees or emoluments of his or her profession—

(a) any sums of money paid or expenses incurred by him or her wholly, exclusively and necessarily in the performance of his or her duty as a member of the clergy or minister of any religious denomination;

(b) such part of the rent (not exceeding one-eighth), as the inspector by whom the assessment is made may allow, paid by him or her in respect of a dwelling house any part of which is used mainly and substantially for the purposes of his or her duty as a member of the clergy or minister of any religious denomination.

838 Special portfolio investment accounts. [FA93 s14 (other than proviso to sub(4)(c) and sub(6)(b)); FA94 s12(2) and s34(b); FA95 s11(2); FA96 s37(1); FA97 s31, s146(1) and Sch9 PtI par17(1)]

838.—(1) (a) In this section—

“designated broker” means a person—

(i) which is a dealing member firm of the Irish Stock Exchange or a member firm (which carries on a trade in the State through a branch or agency) of a stock exchange of any other Member State of the European Communities, and

(ii) which has sent to the Revenue Commissioners a notification of its name and address and of its intention to accept specified deposits;

“gains” means chargeable gains within the meaning of the Capital Gains Tax Acts, including gains which but for section 607 would be chargeable gains;

“market value” shall be construed in accordance with section 548;

“ordinary shares” means shares forming part of a company's ordinary share capital;

“qualifying shares” means ordinary shares in a company which are—

(i) listed in the official list of the Irish Stock Exchange, or

(ii) quoted on the market known as the Developing Companies Market, or the market known as the Exploration Securities Market, of the Irish Stock Exchange,

other than—

(I) shares in an investment company within the meaning of Part XIII of the Companies Act, 1990,

(II) shares in an undertaking for collective investment in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), or

(III) shares in a company, being shares the market value of which may be expected to approximate at all times to the market value of the proportion of the assets of the company which they represent;

“relevant income or gains” means the aggregate of the income and gains, including losses, arising from relevant investments, but only so much of income arising to or gains accruing to the special portfolio investment account shall be relevant income or gains as is or is to be—

(i) paid to, or

(ii) accumulated or invested for the benefit of,

the individual in whose name the special portfolio investment account is held, or would be so paid, accumulated or invested if any gains accruing to the account in accordance with subsection (4)(e) were gains on an actual disposal of the assets concerned;

“relevant investment” means an investment in—

(i) qualifying shares and specified qualifying shares, or

(ii) qualifying shares, specified qualifying shares and securities,

as the case may be, acquired by a designated broker by the expenditure of money contributed by means of a specified deposit, and held by a designated broker in a special portfolio investment account;

“securities” means securities—

(i) issued under the authority of the Minister for Finance, or

(ii) issued by the Electricity Supply Board, Radio Telefís Éireann, ICC Bank plc, Bord Telecom Éireann, Irish Telecommunications Investments plc, Córas Iompair Éireann, ACC Bank plc, Bord na Móna, Aerlínte Éireann cuideachta phoiblí theoranta, Aer Lingus plc or Aer Rianta cuideachta phoiblí theoranta,

which are listed in the official list of the Irish Stock Exchange;

“special portfolio investment account” means an account opened on or after the 1st day of February, 1993, in which a relevant investment is held and in respect of which the conditions referred to in paragraph (c) are complied with;

“specified deposit” means a sum of money paid by an individual to a designated broker for the purpose of acquiring assets which will form part of a relevant investment;

“specified qualifying shares”, in relation to a special portfolio investment account, means qualifying shares in a company which when the shares are acquired for the account has an issued share capital the market value of which is less than £100,000,000.

(b) For the purposes of this section, Chapter 4 of Part 8 shall be construed as if—

(i) references to “deposit”, “interest”, “relevant deposit”, “relevant deposit taker”, “relevant interest” and “special savings account” were respectively references to “specified deposit”, “income or gains”, “relevant investment”, “designated broker”, “relevant income or gains” and “special portfolio investment account” within the meaning of this section, and

(ii) subsections (4) and (5) of section 258 and section 259 had not been enacted.

(c) Notwithstanding subsection (3), section 264 shall apply to a special portfolio investment account as if—

(i) paragraphs (d) to (i) of subsection (1) of that section had not been enacted, and

(ii) the conditions in subsection (2) of this section had been included in subsection (1) of that section.

(2) The conditions referred to in subsection (1)(c)(ii) are:

(a) each special portfolio investment account and all assets held in such an account shall be kept separately from all other investment accounts, if any, operated by a designated broker;

(b) the amount of a specified deposit or, if there is more than one, the aggregate of such amounts in respect of assets held at the same time as part of a special portfolio investment account shall not exceed—

(i) in the case of a special portfolio investment account in respect of which—

(I) the first specified deposit was made on or before the 5th day of April, 2000, and

(II) an amount (in this paragraph referred to as “the particular amount”) equal to the whole or a part of the specified deposit or specified deposits has been used to acquire shares in a company quoted on the market known as the Developing Companies Market of the Irish Stock Exchange

and those shares are at that time held as assets of the special portfolio investment account,

£50,000 increased by the lesser of—

(A) the particular amount, and

(B) £10,000,

and

(ii) in the case of any other special portfolio investment account, £50,000;

(c) the designated broker shall ensure that the aggregate of the market value of a relevant investment does not exceed £50,000 at any time on or after the fifth anniversary of the date on which the first specified deposit was made by an individual in respect of that relevant investment;

(d) the aggregate of the consideration given for shares which are at any time before the 1st day of February, 1994, assets of a special portfolio investment account shall not be less than—

(i) as respects qualifying shares, 40 per cent, and

(ii) as respects specified qualifying shares, 6 per cent,

of the aggregate of the consideration given for the assets of the account at that time;

(e) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1995, assets of a special portfolio investment account shall not be less than—

(i) as respects qualifying shares, 45 per cent, and

(ii) as respects specified qualifying shares, 9 per cent,

of the aggregate of the consideration given for the assets of the account at that time;

(f) the aggregate of the consideration given for shares which are at any time within the year ending on the 31st day of January, 1996, assets of a special portfolio investment account shall not be less than—

(i) as respects qualifying shares, 50 per cent, and

(ii) as respects specified qualifying shares, 10 per cent,

of the aggregate of the consideration given for the assets of the account at that time;

(g) the aggregate of the consideration given for shares which are at any time on or after the 1st day of February, 1996, assets of a special portfolio investment account shall not be less than—

(i) as respects qualifying shares, 55 per cent, and

(ii) as respects specified qualifying shares, 10 per cent,

of the aggregate of the consideration given for the assets of the account at that time;

and for the purposes of—

(I) paragraphs (b) and (c), a disposal of shares or securities, being shares or securities, as the case may be, of the same class acquired for a special portfolio investment account at different times, shall be assumed to be a disposal of shares or securities, as the case may be, acquired later, rather than of shares or securities, as the case may be, acquired earlier for the special portfolio investment account, and

(II) paragraphs (d) to (g), the amount of the consideration given for shares shall be determined in accordance with sections 547 and 580.

(3) Chapter 4 of Part 8 (other than section 259) shall, subject to this section and with any other necessary modifications, apply to special portfolio investment accounts as it applies to special savings accounts; but that Chapter shall so apply as if, in relation to relevant interest payable in respect of a relevant deposit or relevant deposits held in a special savings account, the rate of appropriate tax were 10 per cent.

(4) (a) Paragraphs (b) to (h) shall apply notwithstanding any other provision of the Tax Acts and the Capital Gains Tax Acts.

(b) Where for any year of assessment a loss arises from the computation of relevant income or gains, that loss shall be included in the computation of the relevant income or gains of the special portfolio investment account for the next year of assessment, and, in so far as relief for the loss cannot be so given, it shall be set against such relevant income or gains in the next year of assessment and, where appropriate, in each subsequent year of assessment in so far as it cannot be so relieved, and no further relief shall be allowed under any provision of the Tax Acts or the Capital Gains Tax Acts in respect of that loss.

(c) Sections 556, 601, 607 and 1028(4) shall not apply in relation to any gains referable to a relevant investment.

(d) (i) In this paragraph—

“the appropriate amount in respect of the interest” means the appropriate amount in respect of the interest which would be determined in accordance with Schedule 21 if the designated broker were the first buyer and the designated broker carried on a trade to which section 749(1) applies; but, in so determining the appropriate amount in respect of the interest in accordance with Schedule 21, paragraph 3(4) of that Schedule shall apply as if “in the opinion of the Appeal Commissioners” were deleted;

“securities” has the same meaning as in section 815.

(ii) Subject to subparagraph (iii), where—

(I) in a year of assessment (in this subparagraph referred to as “the first year of assessment”) securities which are assets of a special portfolio investment account are disposed of, and

(II) in the following year of assessment interest becoming payable in respect of the securities is receivable by the special portfolio investment account,

then, for the purposes of computing the relevant income or gains for the first year of assessment, the price paid by the designated broker for the securities shall be treated as reduced by the appropriate amount in respect of the interest.

(iii) Where for a year of assessment subparagraph (ii) applies so as to reduce the price paid for securities, the amount by which the price paid for the securities is reduced shall be treated as a loss arising in the following year of assessment from the disposal of the securities.

(e) For the purpose of computing relevant income or gains of a special portfolio investment account for a year of assessment, each asset of a special portfolio investment account on the 5th day of April in that year of assessment shall be deemed to have been disposed of and immediately reacquired by the designated broker on that day at the asset's market value on that day.

(f) Subject to subsection (5), where in a year of assessment the relevant income or gains of a special portfolio investment account includes a distribution from a company resident in the State—

(i) the aggregate of the amount or value of that distribution and the amount of the tax credit in respect of that distribution shall be taken into account in computing the relevant income or gains for that year of assessment, and

(ii) the designated broker may set the tax credit against appropriate tax payable in respect of that special portfolio investment account for the year of assessment in which the distribution is made and, where the tax credit exceeds that appropriate tax, may claim to have the excess paid to the designated broker in that person's capacity as the designated broker for that special portfolio investment account.

(g) A tax credit in respect of a distribution to which paragraph (f) applies shall not be available for any purpose other than that specified in that paragraph.

(h) Capital gains tax shall not be chargeable on the disposal of assets held as part of a relevant investment; but this paragraph shall not prevent any such disposals from being taken into account in computing the amount of relevant income or gains on which appropriate tax is payable.

(5) (a) In this subsection—

“eligible shares” has the same meaning as in section 488;

“qualifying company” has the meaning assigned to it by section 495.

(b) Without prejudice to the treatment of losses on eligible shares as allowable losses, gains accruing on the disposal or deemed disposal of eligible shares in a qualifying company shall not for the purposes of computing appropriate tax in accordance with subsection (6) be treated as gains.

(c) Distributions included in the relevant income or gains of a special portfolio investment account in respect of eligible shares in qualifying companies shall not be taken into account in computing appropriate tax in accordance with subsection (6); but, notwithstanding subsection (4)(f) or section 136, the tax credit in respect of a distribution to which this subsection applies shall be disregarded for the purposes of the Tax Acts and the Capital Gains Tax Acts.

(6) (a) For the purposes of sections 257 and 258, a designated broker shall, in relation to each special portfolio investment account—

(i) be deemed to have made a payment on the 5th day of April in each year of assessment of the amount of relevant income or gains for that year of assessment, and

(ii) be liable to make a payment of appropriate tax in relation to such payment.

(b) The designated broker may deduct an amount on account of any such payment of appropriate tax and the individual beneficially entitled to the assets in the special portfolio investment account shall allow such deduction from any income or from the proceeds of the sale of any assets which the designated broker holds as part of the special portfolio investment account; but, where there are no such funds or insufficient funds available out of which the designated broker may satisfy the appropriate tax, the amount of such tax shall be an amount due to the designated broker from the person beneficially entitled to the relevant investment.

(c) For the purposes of this section, section 258 shall apply as if in subsection (2) of that section “on or before the 1st day of November following that year of assessment” were substituted for “within 15 days from the end of the year of assessment”.

(7) Part 16 shall not apply in relation to any shares which form part of a relevant investment.

839 Limits to special investments. [FA93 s16; FA94 s34(c) to (g)]

839.—(1) Subject to subsection (2), an individual shall not at the same time have a beneficial interest in investments of more than one of the following classes of investment—

(a) special savings accounts within the meaning of section 256(1) (such an account being referred to subsequently in this section as a “special savings account”);

(b) special investment policies within the meaning of section 723(1);

(c) special investment units within the meaning of section 737;

(d) special portfolio investment accounts within the meaning of section 838.

(2) (a) An individual, whether married or not, who does not have a joint interest in an investment of a class mentioned in subsection (1) may have a beneficial interest, that is not a joint interest, in 2 such investments, being a special savings account and an investment of a class mentioned in paragraph (b), (c) or (d) of that subsection, during a period throughout which—

(i) as respects the special savings account, the condition specified in section 264(1) (i) would be satisfied if “£25,000” were substituted for “£50,000” in that condition, or

(ii) as respects the other investment, the condition specified in section 723(3) (b), 737(3) (a) (ii) or 838(2) (b) relevant to that investment would be satisfied if “£25,000” were substituted for “£50,000” in those conditions.

(b) A couple married to each other, neither of whom has an interest, that is not a joint interest, in an investment of a class mentioned in subsection (1), may have a joint beneficial interest—

(i) in 2 or 3 such investments, so long as those investments include a special savings account and an investment of a class mentioned in paragraph (b), (c) or (d) of that subsection, or

(ii) in 4 such investments, being 2 special savings accounts and 2 other investments of a class (which need not be the same class for the 2 investments) mentioned in paragraph (b), (c) or (d) of that subsection, during a period throughout which—

(I) as respects the special savings accounts, the condition specified in section 264(1) (i) would be satisfied if “£25,000” were substituted for “£50,000” in that condition, or

(II) as respects the other investments, the condition specified in section 723(3) (b), 737(3) (a) (ii) or 838(2) (b) relevant to each of those investments would be satisfied if “£25,000” were substituted for “£50,000” in those conditions.

(3) So long as an individual, whether married or not, does not have a beneficial interest in an investment of a class mentioned in subsection (1) other than—

(a) a beneficial interest, whether or not a joint interest, in one investment, or

(b) a joint beneficial interest in 2 investments, of a class (which need not be the same class where there are 2 investments) mentioned in paragraph (b), (c) or (d) of subsection (1), then, sections 723, 737 and 838 shall apply to that one investment or those 2 investments, as the case may be, as if every reference to £50,000 in those sections were a reference to £75,000.

(4) Where an individual may hold a beneficial interest, whether jointly or otherwise, in an investment of a class mentioned in subsection (1) only for as long as a condition specified in the Tax Acts in respect of the investment would be satisfied if a reference to £25,000 were substituted for a reference to £50,000 in the condition so specified, then, any provision of those Acts which apart from this subsection would have the effect at any time of restricting that investment to an investment the value of which does not exceed £50,000 shall apply to that investment as if the reference to £50,000 in the provision were a reference to £25,000.

(5) Any declaration referred to in—

(a) paragraph (b) of the definition of “special savings account” in section 256(1),

(b) paragraph (b) of the definition of “special investment policy” in section 723(1), or

(c) paragraph (b) of the definition of “special investment units” in section 737(1),

shall contain—

(i) such information in relation to the beneficial interest, which at the time the declaration is made the individual making the declaration holds, whether jointly or otherwise, in investments of a class mentioned in subsection (1), and

(ii) such undertakings, to the person to whom the declaration is made, to supply at any later time information in relation to such interests of that individual at that later time,

as the Revenue Commissioners may reasonably require for the purposes of this section.

840 Business entertainment. [FA 82 s20(1) to (6) and (8)]

840.—(1) In this section—

“business entertainment” means entertainment (including the provision of accommodation, food and drink or any other form of hospitality in any circumstances whatever) provided directly or indirectly by—

(a) any person (in this definition referred to as “the first-mentioned person”),

(b) any person who is a member of the first-mentioned person's staff, or

(c) any person providing or performing any service for the first-mentioned person, the entertainment being entertainment that is provided in the course of, or is incidental to, the provision or performance of the service,

in connection with a trade carried on by the first-mentioned person, but does not include anything provided by that person for bona fide members of that person's staff unless its provision for them is incidental to its provision also for others;

a reference to expenses incurred in, or to the use of an asset for, providing entertainment includes a reference to expenses incurred in, or to the use of an asset for, providing anything incidental thereto;

a reference to a trade includes a reference to a business, profession or employment;

a reference to the members of a person's staff is a reference to persons employed by the person, directors of a company or persons engaged in the management of the company being for this purpose deemed to be persons employed by the company.

(2) In respect of any expenses incurred in providing business entertainment, no sum shall be—

(a) deducted in computing the amount of profits or gains chargeable to tax under Schedule D,

(b) included in computing any expenses of management in respect of which a deduction may be claimed under section 83 or 707, or

(c) allowed under section 114.

(3) (a) In this subsection, “the specified provisions” means the provisions of Part 9 relating to machinery or plant.

(b) Where any asset is used or is provided for use wholly or partly for the purpose of providing business entertainment, no allowance under any of the specified provisions shall be made for any year of assessment or for any accounting period of a company in respect of the use of the asset or the expenditure incurred in the provision of the asset to the extent that it is used or is to be used for that business entertainment.

(4) The expenses to which subsection (2) applies include in the case of any person any sum paid by that person to, on behalf of or placed by that person at the disposal of a member of that person's staff for the purpose of defraying expenses incurred or to be incurred by the member of the staff in providing business entertainment.

(5) This section shall apply in relation to the provision of a gift as it applies in relation to the provision of entertainment.

(6) (a) Where by reason of the provision or performance of a service an amount is paid or payable to a person referred to in paragraph (c) of the definition of “business entertainment”, so much of the amount as is equal to the cost of any business entertainment that is provided in the course of, or is incidental to the provision or performance of, the service shall be deemed to be incurred in providing business entertainment.

(b) The cost of any business entertainment shall be determined by the inspector according to the best of his or her knowledge and judgment.

(c) A determination made under paragraph (b) may be amended by the Appeal Commissioners or by the Circuit Court on the hearing or the rehearing of an appeal against any deduction (including a case where no deduction is granted) granted on the basis of the determination.

841 Voluntary Health Insurance Board: restriction of certain losses and deemed disposal of certain assets. [FA97 s61(1), (3) and (4)]

841.—(1) In this section—

“the Board” means the Voluntary Health Insurance Board;

“market value” shall be construed in accordance with section 548.

(2) Section 396 shall not apply to a loss incurred by the Board in an accounting period ending before the 1st day of March, 1997.

(3) Notwithstanding any other provision of the Tax Acts, bonds and shares held by the Board on the 28th day of February, 1997, in the course of the business of carrying out schemes of voluntary health insurance shall be deemed to have been disposed of and immediately reacquired by the Board on that date at the assets' market value on that date.

842 Replacement of harbour authorities by port companies. [FA97 s48]

842.—(1) In this section, “relevant port company” has the same meaning as in paragraph 1 of Schedule 26.

(2) Schedule 26 shall apply where assets are vested in, or transferred to, a relevant port company pursuant to the Harbours Act, 1996.

(3) This section and Schedule 26 shall apply from the 1st day of March, 1997.

843 Capital allowances for buildings used for third level educational purposes. [FA97 s25]

843.—(1) In this section—

“approved institution” means an institution in the State in receipt of public funding which provides courses to which a scheme approved by the Minister for Education and Science under the Local Authorities (Higher Education Grants) Acts, 1968 to 1992, applies;

“qualifying expenditure” means capital expenditure incurred on—

(a) the construction of a qualifying premises, or

(b) the provision of machinery or plant,

which, following receipt of the advice of An tÚdarás, is approved for that purpose by the Minister for Education and Science with the consent of the Minister for Finance;

“qualifying premises” means a building or structure which—

(a) apart from this section is not an industrial building or structure within the meaning of section 268, and

(b) (i) is in use for the purposes of third level education provided by an approved institution,

(ii) is let to an approved institution on bona fide commercial terms for such consideration as might be expected to be paid in a letting of the building or structure which was negotiated on an arm's length basis, but does not include any part of a building or structure in use as or as part of a dwelling-house;

“An tÚdarás” means the Body established by section 2 of the Higher Education Authority Act, 1971.

(2) Subject to subsections (3) to (7), the provisions of the Tax Acts (other than section 317(2)) relating to the making of allowances or charges in respect of capital expenditure incurred on the construction of an industrial building or structure shall, notwithstanding anything to the contrary in those provisions, apply in relation to qualifying expenditure on a qualifying premises—

(a) as if the qualifying premises were, at all times at which it is a qualifying premises, a building or structure in respect of which an allowance is to be made for the purposes of income tax or corporation tax, as the case may be, under Part 9 by reason of its use for a purpose specified in section 268(1) (a), and

(b) where any activity carried on in the qualifying premises is not a trade, as if it were a trade.

(3) In relation to qualifying expenditure on a qualifying premises section 272 shall apply as if—

(a) in subsection (3) (a) (ii) of that section the reference to 4 per cent were a reference to 15 per cent, and

(b) in subsection (4) (a) (ii) of that section the reference to 25 years were a reference to 7 years.

(4) No allowance shall be made under subsection (2) unless, before the commencement of construction of a qualifying premises, the Minister for Finance certifies that—

(a) an approved institution has procured or otherwise secured a sum of money, none of which has been met directly or indirectly by the State, which sum is not less than 50 per cent of the qualifying expenditure to be incurred on the qualifying premises, and

(b) such sum is to be used solely by the approved institution for the following purposes—

(i) paying interest on money borrowed for the purpose of funding the construction of the qualifying premises,

(ii) paying any rent on the qualifying premises during such times as the qualifying premises is the subject of a letting on such terms as are referred to in paragraph (b) (ii) of the definition of “qualifying premises”, and

(iii) purchasing the qualifying premises following the termination of the letting referred to in subparagraph (ii).

(5) Notwithstanding section 274(1), no balancing charge shall be made in relation to a qualifying premises by reason of any of the events specified in that section which occurs more than 7 years after the qualifying premises was first used.

(6) This section shall come into operation on the 1st day of July, 1997.

(7) The Minister for Finance may not give a certificate under subsection (4) at any time later than the 1st day of July, 2000.

844 Companies carrying on mutual business or not carrying on a business. [CTA76 s29]

844.—(1) Subject to subsection (2), where a company carries on any business of mutual trading or mutual insurance or other mutual business, the provisions of the Corporation Tax Acts and of Schedule F relating to distributions shall apply to distributions made by the company, notwithstanding that they are made to persons participating in the mutual activities of that business and derive from those activities, but shall so apply only to the extent to which the distributions are made out of profits of the company which are brought into charge to corporation tax or out of franked investment income.

(2) In the case of a company carrying on any mutual life assurance business, the provisions of the Corporation Tax Acts and of Schedule F relating to distributions shall not apply to distributions made to persons participating in the mutual activities of that business and derived from those activities; but, if the business includes annuity business, the annuities payable in the course of that business shall not be treated as charges on the income of the company to any greater extent than if that business were not mutual but were being carried on by the company with a view to the realisation of profits for the company.

(3) Subject to subsections (1) and (2), the fact that a distribution made by a company carrying on any such business is derived from the mutual activities of that business and the recipient is a person participating in those activities shall not affect the character which the payment or other receipt has for the purposes of corporation tax or income tax in the hands of the recipient.

(4) Where a company does not carry on and never has carried on a trade or a business of holding investments, and is not established for purposes which include the carrying on of a trade or of such a business, the provisions of the Corporation Tax Acts and of Schedule F relating to distributions shall apply to distributions made by the company only to the extent to which the distributions are made out of profits of the company which are brought into charge to corporation tax or out of franked investment income.

845 Corporation tax: treatment of tax-free income of non-resident banks, insurance businesses, etc. [CTA76 s51(1), (2), (3) (a), (4), (5) and (6)]

845.—(1) In this section, “insurance business” includes assurance business within the meaning of section 3 of the Insurance Act, 1936.

(2) In this section and in section 846, “tax-free securities” means securities to which section 43, 49 or 50 applies and which were issued with a condition regulating the treatment of the interest on the securities for tax purposes such that the interest on the securities is excluded in computing income or profits.

(3) (a) In this subsection, “securities” includes stocks and shares.

(b) Where a banking business, an insurance business or a business consisting wholly or partly in dealing in securities is carried on in the State by a person not resident in the State, then—

(i) in computing for the purposes of the Tax Acts the profits arising from, or loss sustained in, the business, and

(ii) in the case of an insurance business, also in computing the profits or loss from pension business and general annuity business under section 715,

section 76 shall not prevent the inclusion of interest, dividends and other payments to which section 35 or 63 extends notwithstanding the exemption from tax conferred by those sections respectively.

(4) Where—

(a) any business referred to in subsection (3) (b) is carried on in the State by a person not ordinarily resident in the State, and

(b) in making any computation referred to in that subsection with respect to that business, interest on tax-free securities is excluded by virtue of a condition of the issue of such securities,

any expenses attributable to the acquisition or holding of, or to any transaction in, the securities (but not including in those expenses any interest on borrowed money), and any profits or losses so attributable, shall also be excluded in making that computation.

(5) In the case of an overseas life assurance company (within the meaning of section 706), in computing for the purposes of section 726 the income from the investments of the life assurance fund of the company, any interest, dividends and other payments to which section 35 or 63 extends shall be included notwithstanding the exemption from tax conferred by those sections respectively.

846 Tax-free securities: exclusion of interest on borrowed money. [CTA76 s52(1) to (4) and (6)]

846.—(1) This section shall apply where section 845(4) applies to a business for any accounting period.

(2) Up to the amount determined under this section (in this section referred to as “the amount ineligible for relief”), interest becoming due for payment on money borrowed for the purposes of the business—

(a) shall be excluded in any computation under the Tax Acts of the profits or loss arising from the business, and

(b) shall be excluded from the definition of “charges on income” in section 243.

(3) In determining the amount ineligible for relief, account shall be taken of all money borrowed for the purposes of the business outstanding in the accounting period up to the total cost of the tax-free securities held for the purposes of the business in that period; but account shall not be taken of any borrowed money carrying interest which apart from subsection (2) would not be included in the computation under paragraph (a) of that subsection and would not be treated as a charge on income for the purposes of the Corporation Tax Acts.

(4) The amount ineligible for relief shall be equal to a year's interest on the amount of money borrowed which is to be taken into account under subsection (3) at a rate equal to the average rate of interest in the accounting period on money borrowed for the purposes of the business, except that in the case of an accounting period of less than 12 months interest shall be taken for that shorter period instead of for a year.

(5) For the purposes of this section, the cost of a holding of tax-free securities which has fluctuated in the accounting period shall be the average cost of acquisition of the initial holding, and of any subsequent acquisitions in the accounting period, applied to the average amount of the holding in the accounting period, and this subsection shall be applied separately to securities of different classes.

847 Tax relief for certain branch profits. [FA95 s29]

847.—(1) (a) In this section—

“investment plan” means a plan of a company resident in the State—

(i) which involves the investment by the company or by a company associated with it of substantial permanent capital in the State for the purposes of the creation before a date specified in the plan of substantial new employment in the State in trading operations carried on or to be carried on in the State by the company or the company associated with it, and

(ii) which has been submitted before the commencement of its implementation to the Minister by the company for the purpose of enabling it to obtain relief under this section;

“the Minister” means the Minister for Finance;

“qualified company” means a company to which the Minister, following consultation with the Minister for Enterprise and Employment, has given a certificate, which certificate has not been revoked, under subsection (2);

“qualified foreign trading activities” means trading activities carried on by a qualified company through a branch or agency outside the State in a territory specified in the certificate given under subsection (2) to the company by the Minister following consultation with the Minister for Enterprise' Trade and Employment.

(b) For the purposes of this section—

(i) a company shall be associated with another company where one of the companies is a 75 per cent subsidiary of the other company or both companies are 75 per cent subsidiaries of a third company; but, in determining whether one company is a 75 per cent subsidiary of another company, the other company shall be treated as not being the owner of—

(I) any share capital which it owns directly in a company if a profit on the sale of the shares would be treated as a trading receipt of its trade, or

(II) any share capital which it owns indirectly and which is owned directly by a company for which a profit on the sale of the shares would be a trading receipt,

(ii) sections 412 to 418 shall apply for the purposes of this paragraph as they would apply for the purposes of Chapter 5 of Part 12 if section 411(1) (c) were deleted,

(iii) where a trade carried on by a qualified company consists partly of qualified foreign trading activities and partly of other trading activities, the company shall be treated as if it were carrying on distinct trades consisting of such qualified foreign trading activities and of such other trading activities,

(iv) there shall be attributed to each trade carried on, or treated under subparagraph (iii) as carried on, such profits or gains or losses as might have been expected to be made if each trade had been carried on under the same or similar conditions by a person independent of, and dealing at arm's length with, the person carrying on the other trade, and

(v) there shall be made all necessary apportionments as are just and reasonable for the purposes of computing—

(I) profits or gains or losses arising from, and

(II) the amount of any charges on income, expenses of management or other amount which can be deducted from or set off against or treated as reducing profits of more than one description as is incurred for the purposes of,

a trade carried on, or treated under subparagraph (iii) as carried on, by a qualified company.

(2) Where a plan has been duly submitted by a company resident in the State and the Minister, following consultation with the Minister for Enterprise, Trade and Employment, is satisfied that—

(a) the plan is an investment plan,

(b) the company, or a company associated with it, will, before a date specified in the plan and approved by the Minister, make the substantial permanent capital investment in the State under the investment plan for the purposes of the creation of the substantial new employment in the State,

(c) the creation of substantial new employment in the State under the investment plan will be achieved, and

(d) the maintenance of the employment so created in trading operations in the State will be dependent on the carrying on by the company of qualified foreign trading activities,

then, the Minister may give a certificate certifying that the company is a qualified company with effect from a date specified in the certificate.

(3) (a) The Minister shall draw up guidelines for determining whether for the purposes of subsection (2) a company and companies associated with it will create substantial new employment and will make a substantial permanent capital investment in the State.

(b) Without prejudice to the generality of paragraph (a), guidelines under that paragraph may—

(i) include a requirement for specified levels of—

(I) employment in the State, and

(II) permanent capital investment in the State,

and

(ii) specify such criteria for the purposes of this subsection as the Minister considers appropriate.

(4) A certificate issued under subsection (2) may be given subject to such conditions as the Minister, following consultation with the Minister for Enterprise, Trade and Employment, considers proper and specifies in the certificate.

(5) Where in the case of a company in relation to which a certificate under subsection (2) has been given the Minister, following consultation with the Minister for Enterprise, Trade and Employment, forms the opinion that such certificate ought to be revoked because any condition subject to which the certificate was given has not been complied with, the Minister may by notice in writing served by registered post on the company revoke the certificate with effect from such date as may be specified in the notice.

(6) Notwithstanding any other provision of the Corporation Tax Acts—

(a) profits or gains or losses arising from the carrying on of qualified foreign trading activities shall be disregarded for the purposes of those Acts, and

(b) no amount of any charges on income, expenses of management or other amount which apart from this paragraph may be deducted from or set off against or treated as reducing profits of more than one description, shall be so deducted, set off or treated, as is incurred for the purposes of a trade carried on, or treated under subsection (1) (b) (iii) as carried on, by a qualified company which consists of qualified foreign trading activities.

(7) A gain shall not be a chargeable gain for the purposes of the Capital Gains Tax Acts if it accrues to a qualified company on the disposal of an asset, other than an asset specified in paragraphs (a) to (d) of section 980(2), used wholly and exclusively for the purposes of a trade carried on, or treated under subsection (1) (b) (iii) as carried on, by a qualified company which consists of qualified foreign trading activities.

(8) An inspector may by notice in writing require a qualified company to furnish him or her with such information or particulars as may be necessary for the purposes of giving relief under this section.

848 Designated charities: repayment of tax in respect of donations. [FA95 s8(1) (a) and (c) and (2) to (7)]

848.—(1) (a) In this section—

“appropriate certificate”, in relation to a donation to a designated charity, means a certificate which is in such form as the Revenue Commissioners may prescribe and which contains—

(i) statements to the effect that—

(I) the donation satisfies the requirements of subsection (6), and

(II) the donor has paid or will pay to the Revenue Commissioners income tax of an amount equal to income tax at the standard rate for the relevant year of assessment on the grossed up amount of the donation, but not being—

(A) income tax which the donor is entitled to charge against any other person or to deduct, retain or satisfy out of any payment which the donor is liable to make to any other person, or

(B) appropriate tax within the meaning of Chapter 4 of Part 8,

and

(ii) the identifying number, known as the Revenue and Social Insurance (RSI) Number, of the donor;

“designated charity” means any body or institution in the State which, following application by it to the Minister in such form and containing such information as the Minister may require, is designated for the purposes of this section by the Minister with the consent of the Minister for Finance;

“the Minister” means the Minister for Foreign Affairs;

“qualifying donation” shall be construed in accordance with subsection (5);

“relevant year of assessment”, in relation to a qualifying donation, means the year of assessment in which the qualifying donation is made.

(b) For the purposes of this section, references, in relation to a donation, to the grossed up amount are to the amount which after deducting income tax at the standard rate for the relevant year of assessment leaves the amount of the donation.

(2) A body or institution shall not be designated by the Minister for the purposes of this section unless it shows to the satisfaction of the Minister that—

(a) it is a body of persons or trust established for charitable purposes only,

(b) it has been granted exemption from tax for the purposes of section 207 for a period of not less than 3 years before the date of the making of the application,

(c) the person concerned in the management or control of the body or institution ensures that in respect of each financial year of the body or institution there is prepared and furnished to the Minister—

(i) audited accounts comprising—

(I) an income and expenditure account or a profit and loss account, as appropriate, for its most recent financial year, and

(II) a balance sheet as at the last day of that financial year,

and

(ii) a report as to the activities of the body or institution, having regard to its charitable purposes, and

(d) it has as its sole object, relief and development in a country or countries where the country or countries concerned is or are for the time being on the List of Aid Recipients (Part 1: Aid to Developing Countries and Territories) produced by the Development Aid Committee of the Organisation for Economic Co-operation and Development.

(3) The Minister shall—

(a) maintain a list of the bodies and institutions designated for the purposes of this section, and

(b) from time to time as the Minister sees fit cause such list to be published in Iris Oifigiúil.

(4) Where the Minister is satisfied that a body or institution ceases to comply with subsection (2), the Minister shall, with the consent of the Minister for Finance—

(a) withdraw the designation previously granted and such withdrawal shall apply from the beginning of the year of assessment in which notice in accordance with paragraph (b) is given, and

(b) cause notice of such withdrawal to be published in Iris Oifigiúil within one month of such withdrawal.

(5) For the purposes of this section, a donation to a designated charity shall be a qualifying donation if—

(a) it is made by an individual (in this section referred to as “the donor”),

(b) it satisfies the requirements of subsection (6), and

(c) the donor—

(i) has given an appropriate certificate in relation to the donation to the designated charity, and

(ii) has paid the tax referred to in such appropriate certificate and is not entitled to claim a repayment of that tax or any part of that tax.

(6) A donation shall satisfy the requirements of this subsection if—

(a) it takes the form of the payment of a sum or sums of money,

(b) it is not subject to a condition as to repayment,

(c) neither the donor nor any person connected with the donor receives a benefit in consequence of making it,

(d) it is not conditional on or associated with, or part of an arrangement involving, the acquisition of property by the designated charity, otherwise than by means of gift, from the donor or a person connected with the donor,

(e) the sum or the aggregate of the sums paid in the relevant year of assessment to the designated charity is not less than £200,

(f) the sum or the aggregate of the sums paid does not, when aggregated with any other qualifying donation or qualifying donations made by the donor in the relevant year of assessment, exceed £750, and

(g) the donor is resident in the State for the relevant year of assessment.

(7) Where a donation is a qualifying donation, the Tax Acts shall apply in relation to the designated charity as if—

(a) the grossed up amount of the donation were an annual payment which was the income of the designated charity received by it under deduction of tax at the standard rate for the relevant year of assessment, and

(b) the provisions of those Acts which apply in relation to a claim to repayment of tax applied in relation to any claim to repayment of such tax by a designated charity;

but, if the total amount of the tax referred to in paragraph (i) (II) of the definition of “appropriate certificate” is not paid, the amount of any repayment which would otherwise be made to a designated charity in accordance with this section shall not exceed the amount of tax actually paid by the donor.

MANAGEMENT PROVISIONS

PART 37 Administration

849 Taxes under care and management of Revenue Commissioners. [ITA67 s155; CGTA75 s51(1) and Sch4 pars 1(1) and (2); CTA76 s6(5); FA96 s132(1) and Sch5 PtI par10(1)]

849.—(1) In this section, “tax” means income tax, corporation tax and capital gains tax.

(2) All duties of tax shall be under the care and management of the Revenue Commissioners.

(3) The Revenue Commissioners may do all such acts as may be deemed necessary and expedient for raising, collecting, receiving and accounting for tax in the like and in as full and ample a manner as they are authorised to do in relation to any other duties under their care and management and, unless the Minister for Finance otherwise directs, shall appoint such officers and other persons for collecting, receiving, managing and accounting for any duties of tax as are not required to be appointed by some other authority.

(4) All such appointments shall continue in force, notwithstanding the death, or the ceasing to hold office, of any Revenue Commissioner, and the holders shall have power to execute the duties of their respective offices and to enforce in the execution of those offices all laws and regulations relating to tax in every part of the State.

(5) The Revenue Commissioners may suspend, reduce, discharge or restore, as they see fit, any such officer or person.

(6) Any act or thing required or permitted by this or any other statute to be done by the Revenue Commissioners in relation to tax may be done by any one Revenue Commissioner.

850 Appeal Commissioners. [ITA67 s156; F(MP) A68 s1(1), s3(2) and Sch PtI]

850.—(1) The Minister for Finance shall appoint persons to be Appeal Commissioners for the purposes of the Income Tax Acts (in the Tax Acts and the Capital Gains Tax Acts referred to as “Appeal Commissioners”) and the persons so appointed shall, by virtue of their appointment and without other qualification, have authority to execute such powers and to perform such duties as are assigned to them by the Income Tax Acts.

(2) Appeal Commissioners shall be allowed such sums in respect of salary and incidental expenses as the Minister for Finance directs.

(3) The Minister for Finance shall cause an account of all appointments of Appeal Commissioners and their salaries to be laid before each House of the Oireachtas within 20 days of their appointment or, in the case of a House not then sitting, within 20 days after the next sitting of that House.

(4) Anything required to be done under the Income Tax Acts by the Appeal Commissioners or any other Commissioners may, except where otherwise expressly provided by those Acts, be done by any 2 or more Commissioners.

851 Collector-General. [ITA67 s162; FA74 s86 and Sch2 PtI; CGTA75 s51(1) and Sch4 par1(3); CTA76 s145(1); FA87 s52; FA97 s157]

851.—(1) There shall be a Collector-General, who shall be appointed by the Revenue Commissioners from among their officers and who shall hold such office at their will and pleasure.

(2) The Collector-General shall collect and levy the tax from time to time charged in all assessments to income tax, corporation tax and capital gains tax of which particulars have been transmitted to him or her under section 928.

(3) (a) The Revenue Commissioners may nominate persons to exercise on behalf of the Collector-General any or all of the powers and functions conferred on the Collector-General by the Tax Acts and the Capital Gains Tax Acts.

(b) Those powers and functions, as well as being exercisable by the Collector-General, shall also be exercisable on his or her behalf by persons nominated under this subsection.

(c) A person shall not be nominated under this subsection unless he or she is an officer or employee of the Revenue Commissioners.

(4) If and so long as the office of Collector-General is vacant or the holder of that office is unable through illness, absence or other cause to fulfil his or her duties, a person nominated in that behalf by the Revenue Commissioners from among their officers shall act as the Collector-General, and any reference in this or any other Act to the Collector-General shall be construed as including, where appropriate, a reference to a person nominated under this subsection.

(5) The Revenue Commissioners may revoke a nomination under this section.

852 Inspectors of taxes. [ITA67 s161; FA86 s116]

852.—(1) The Revenue Commissioners may appoint inspectors of taxes, and all such inspectors and all other officers or persons employed in the execution of the Income Tax Acts shall observe and follow the orders, instructions and directions of the Revenue Commissioners.

(2) The Revenue Commissioners may revoke an appointment made under this section.

(3) Inspectors of taxes appointed by the Minister for Finance before the 27th day of May, 1986, shall be deemed to have been appointed by the Revenue Commissioners.

853 Governor and directors of Bank of Ireland. [ITA67 s157; FA69 s12; FA76 s81(1) and Sch5 PtI]

853.—For the purpose of assessing and charging income tax in the cases mentioned in this section, the Governor and directors of the Bank of Ireland—

(a) shall be Commissioners,

(b) shall have all the necessary powers for that purpose, and

(c) shall make assessments under and subject to the Income Tax Acts in respect of—

(i) interest, annuities, dividends and shares of annuities, and the profits attached to the same, payable to the Bank of Ireland out of the public revenue of the State,

(ii) interest, annuities, dividends and shares of annuities entrusted to the Bank of Ireland for payment,

(iii) all other interest, annuities and dividends, and

(iv) all other profits chargeable with tax arising within any office or department under the management or control of the Bank of Ireland.

854 Appointment of persons for purposes of assessment of certain public offices. [ITA67 s158]

854.—Where the Minister for Finance determines that, by reason of special circumstances existing in any particular public office, it is not expedient that the powers and duties of assessing and charging income tax in relation to that office or any one or more of such powers and duties should be exercised and performed in relation to that office by the inspector or other officer appointed in that behalf, the Revenue Commissioners shall appoint such officers or persons as may be approved of by the Minister for Finance to exercise such powers and duties in relation to that office.

855 Declaration to be made by Commissioners. [ITA67 s159]

855.—The respective Commissioners for executing the Income Tax Acts in relation to offices and employments of profit and pensions and stipends shall, as soon as practicable after their appointment, meet and make and subscribe the declaration contained in Part 2 of Schedule 27 and may respectively elect a clerk and assessors and, if the tax cannot be deducted at the department or office of the Commissioners or at the office for which they act, they may, from among the officers in their respective departments, appoint separate assessors and collectors for each such department.

856 Disqualification of Commissioners in cases of personal interest. [ITA67 s160; CTA76 s146(2)]

856.—(1) Every Commissioner acting in the execution of the Income Tax Acts shall be chargeable with tax in the same manner as any other person, but shall take no part in the proceedings, and shall not be present, when any assessment, statement or schedule is under consideration, or any controversy or appeal is being determined, with reference to any case in which he or she is interested, either in his or her own right or in the right of any other person as his or her agent, except during the hearing of an appeal for the purpose of being examined orally by the Commissioners, and he or she shall withdraw during the consideration and determination of the controversy or appeal.

(2) A Commissioner who, in any case referred to in subsection (1), takes any part in the determination of any such controversy or appeal, or fails to withdraw, shall incur a penalty of £50.

(3) For the purposes of corporation tax, where an Appeal Commissioner is interested in his or her own right or in the right of any other person in any matter under appeal, he or she shall not take part in, or be present at, the hearing or determination of the appeal.

857 Declarations on taking office. [ITA67 s163; F(MP) A68 s3(4) and Sch PtIII; CTA76 s147(5)]

857.—(1) Every person appointed to one of the offices named in Part 1 of Schedule 27 shall, before he or she commences to act in the execution of the Income Tax Acts in so far as those Acts relate to tax under Schedule D, make and subscribe the declaration contained in that Part in respect of his or her office.

(2) The declaration may be made before a Peace Commissioner.

(3) A person who acts in the execution of his or her office in relation to tax under Schedule D (otherwise than in respect of any such declaration made before him or her) before he or she has made the prescribed declaration shall forfeit the sum of £100.

(4) All Commissioners and other persons employed for any purpose in connection with the assessment or collection of corporation tax shall be subject to the same obligations as to secrecy with respect to corporation tax as those persons are subject to with respect to income tax, and any declaration made by any such person as to secrecy with respect to income tax shall be deemed to extend also to secrecy with respect to corporation tax.

858 Evidence of authorisation. [FA97 s159]

858.—(1) In this section, except where the context otherwise requires—

“the Acts” means—

(a) (i) the Customs Acts,

(ii) the statutes relating to the duties of excise and to the management of those duties,

(iii) the Tax Acts,

(iv) the Capital Gains Tax Acts,

(v) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,

(vi) the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act,

(vii) the statutes relating to stamp duty and to the management of that duty,

and any instruments made thereunder or under any other enactment and relating to tax, and

(b) the European Communities (Intrastat) Regulations, 1993 (S.I. No. 136 of 1993);

“authorised officer” means an officer of the Revenue Commissioners who is authorised, nominated or appointed under any provision of the Acts to exercise or perform any functions under any of the specified provisions, and “authorised” and “authorisation” shall be construed accordingly;

“functions” includes powers and duties;

“identity card”, in relation to an authorised officer, means a card which is issued to the officer by the Revenue Commissioners and which contains—

(a) a statement to the effect that the officer—

(i) is an officer of the Revenue Commissioners, and

(ii) is an authorised officer for the purposes of the specified provisions,

(b) a photograph and signature of the officer,

(c) a hologram showing the logo of the Office of the Revenue Commissioners,

(d) the facsimile signature of a Revenue Commissioner, and

(e) particulars of the specified provisions under which the officer is authorised;

“specified provisions”, in relation to an authorised officer, means either or both the provisions of the Acts under which the authorised officer—

(a) is authorised and which are specified on his or her identity card, and

(b) exercises or performs functions under the Customs Acts or any statutes relating to the duties of excise and to the management of those duties;

“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

(2) Where, in the exercise or performance of any functions under any of the specified provisions in relation to him or her, an authorised officer is requested to produce or show his or her authorisation for the purposes of that provision, the production by the authorised officer of his or her identity card—

(a) shall be taken as evidence of authorisation under that provision, and

(b) shall satisfy any obligation under that provision which requires the authorised officer to produce such authorisation on request.

(3) This section shall come into operation on such day as the Minister for Finance may appoint by order.

859 Anonymity of authorised officers in relation to certain matters. [FA83 s19A; DCITPA96 s12; CABA96 s23]

859.—(1) In this section—

“authorised officer” means an officer of the Revenue Commissioners nominated by them to be a member of the staff of the body;

“the body” has the meaning assigned to it by section 58;

“proceedings” includes any hearing before the Appeal Commissioners (within the meaning of the Revenue Acts);

“the Revenue Acts” means—

(a) the Customs Acts,

(b) the statutes relating to the duties of excise and to the management of those duties,

(c) the Tax Acts,

(d) the Capital Gains Tax Acts,

(e) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,

(f) the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act,

(g) the statutes relating to stamp duty and the management of that duty,

(h) Chapter IV of Part II of the Finance Act, 1992, and

(i) Part VI of the Finance Act, 1983,

and any instruments made thereunder or under any other enactment and relating to tax;

“tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

(2) Notwithstanding any requirement made by or under any enactment or any other requirement in administrative and operational procedures, including internal procedures, all reasonable care shall be taken to ensure that the identity of an authorised officer shall not be revealed.

(3) In particular and without prejudice to the generality of subsection (2):

(a) where, for the purposes of exercising or performing his or her powers or duties under the Revenue Acts in pursuance of the functions of the body, an authorised officer may apart from this section be required to produce or show any written authority or warrant of appointment under those Acts or otherwise to identify himself or herself, the authorised officer shall—

(i) not be required to produce or show any such authority or warrant of appointment or to so identify himself or herself, for the purposes of exercising or performing his or her powers or duties under those Acts, and

(ii) be accompanied by a member of the Garda Síochána who shall, on request by a person affected, identify himself or herself as a member of the Garda Síochána and shall state that he or she is accompanied by an authorised officer;

(b) where, in pursuance of the functions of the body, an authorised officer exercises or performs in writing any of his or her powers or duties under the Revenue Acts or any provision of any other enactment, whenever passed, which relates to Revenue, such exercise or performance of his or her powers or duties shall be done in the name of the body and not in the name of the individual authorised officer involved, notwithstanding any provision to the contrary in any of those enactments;

(c) in any proceedings arising out of the exercise or performance, in pursuance of the functions of the body, of powers or duties by an authorised officer, any documents relating to such proceedings shall not reveal the identity of any authorised officer, notwithstanding any requirements to the contrary in any provision, and in any proceedings the identity of such officer other than as an authorised officer shall not be revealed other than to the judge or the Appeal Commissioner, as the case may be, hearing the case;

(d) where, in pursuance of the functions of the body, an authorised officer is required, in any proceedings, to give evidence and the judge or the Appeal Commissioner, as the case may be, is satisfied that there are reasonable grounds in the public interest to direct that evidence to be given by such authorised officer should be given in the hearing and not in the sight of any person, he or she may so direct.

860 Administration of oaths. [ITA67 s164; F(MP) A68 s3(1) and (3) and Sch PtI; CTA76 s147(1) and (2)]

860.—(1) A Peace Commissioner may administer an oath to be taken before a Commissioner by any officer or person in any matter relating to the execution of the Tax Acts.

(2) An Appeal Commissioner may administer an oath to be taken before the Appeal Commissioners under the Tax Acts by any officer or person in any matter relating to the execution of the Tax Acts.

861 Documents to be in accordance with form prescribed by Revenue Commissioners. [ITA67 s165; CGTA75 s51(1) and Sch4 par2; CTA76 s143(12) (b) and (c) and s147(1) and (2)]

861.—(1) Every assessment, charge, bond, warrant, notice of assessment or of demand, or other document required to be used in assessing, charging, collecting and levying income tax, corporation tax or capital gains tax shall be in accordance with the forms prescribed from time to time in that behalf by the Revenue Commissioners, and a document in the form prescribed and supplied or approved by them shall be valid and effectual.

(2) (a) In this subsection, “return” includes any statement, declaration or list.

(b) Any return under the Corporation Tax Acts shall be in such form as the Revenue Commissioners prescribe.

862 Exercise of powers, etc. of Minister for Finance under Tax Acts. [ITA67 s166(2); CTA76 s147(1) and (2)]

862.—Anything required under the Tax Acts to be done by the Minister for Finance may be signified under the hand of the Secretary General, a Deputy Secretary or an Assistant Secretary of the Department of Finance.

863 Loss, destruction or damage of assessments and other documents. [ITA67 s188(1); CGTA75 s51(1) and Sch4 par2; CTA76 s147(1) and (2)]

863.—(1) Subject to subsection (2), where any assessment to income tax or capital gains tax for any year, or any assessment to corporation tax for any accounting period or any return or other document relating to income tax, corporation tax or capital gains tax has been lost or destroyed, or has been so defaced or damaged as to be illegible or otherwise useless, the Revenue Commissioners, the Collector-General, inspectors and other officers respectively having powers in relation to income tax, corporation tax or capital gains tax may, notwithstanding anything to the contrary in any enactment, do all such acts and things as they might have done, and all acts and things done under or in accordance with this section shall be as valid and effectual for all purposes as they would have been if the assessment had not been made, or the return or other document had not been made or furnished, or required to be made or furnished.

(2) Where any person who is charged with income tax, corporation tax or capital gains tax in consequence or by virtue of any act or thing done under or in accordance with this section proves to the satisfaction of the Revenue Commissioners that that person has already paid any income tax or capital gains tax for the same year, or corporation tax for the same accounting period, in respect of the subject matter and on the account in respect of and on which that person is so charged, relief shall be given to the extent to which the liability of that person has been discharged by the payments so made either by abatement from the charge or by repayment, as the case may require.

864 Making of claims, etc. [ITA67 s432(1) (part of); CGTA75 s51(1) and Sch4 par2; CTA76 s4 and s146(1); FA84 s6(a)]

864.—(1) Notwithstanding any other provision of the Tax Acts or the Capital Gains Tax Acts—

(a) all claims of exemption or for any allowance or deduction under those Acts,

(b) all claims for repayment of income tax, corporation tax or capital gains tax under those Acts, and

(c) (i) all claims to relief under those Acts where the relief is measured in the provision under which it is given, and

(ii) all matters and questions relating to any relief so measured,

in relation to which a right of appeal from a decision is, otherwise than by section 949, not specifically provided,

shall be stated in such manner and form as the Revenue Commissioners may prescribe, and shall be made to and determined by the Revenue Commissioners or such officer of the Revenue Commissioners (including an inspector) as they may authorise in that behalf.

(2) Effect shall be given—

(a) to section 21(2) and to that section as modified by sections 24(2) and 25(3), and

(b) in so far as the exemptions from income tax conferred by the Corporation Tax Acts call for repayment of tax, to those exemptions,

by means of a claim.