Taxes Consolidation Act 1997

Type Act

Publication 1997-11-30

State In force

Source Irish Statute Book

articles 1104

(7) Where subsection (5) is applied in relation to a disposal of an asset by a husband to his wife, or by his wife to him, then, in relation to a subsequent disposal of the asset (not within that subsection), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.

(8) An application or notice of withdrawal under this section shall be in such form and made in such manner as may be prescribed.

1029 Application of section 1022 for purposes of capital gains tax. [CGTA75 s51(1) and Sch4 par10(2)]

1029.—Section 1022 shall apply with any necessary modifications in relation to capital gains tax as it applies in relation to income tax.

1030 Separated spouses: transfers of assets. [FA97 s72(1) to (3)]

1030.—(1) In this section, “spouse” shall be construed in accordance with section 2(2) (c) of the Family Law Act, 1995.

(2) Notwithstanding any other provision of the Capital Gains Tax Acts, where by virtue or in consequence of—

(a) an order made under Part II of the Family Law Act, 1995, on or following the granting of a decree of judicial separation within the meaning of that Act,

(b) an order made under Part II of the Judicial Separation and Family Law Reform Act, 1989, on or following the granting of a decree of judicial separation where such order is treated, by virtue of section 3 of the Family Law Act, 1995, as if made under the corresponding provision of the Family Law Act, 1995,

(d) a relief order (within the meaning of the Family Law Act, 1995) made following the dissolution of a marriage,

either of the spouses concerned disposes of an asset to the other spouse, then, subject to subsection (3), both spouses shall be treated for the purposes of the Capital Gains Tax Acts as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal.

(3) Subsection (2) shall not apply if until the disposal the asset formed part of the trading stock of a trade carried on by the spouse making the disposal or if the asset is acquired as trading stock for the purposes of a trade carried on by the spouse acquiring the asset.

(4) Where subsection (2) applies in relation to a disposal of an asset by a spouse to the other spouse, then, in relation to a subsequent disposal of the asset (not being a disposal to which subsection (2) applies), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.

1031 Divorced persons: transfers of assets. [Family Law (Divorce) Act, 1996, s35; FA97 s71(1) to (3)]

1031.—(1) In this section, “spouse” shall be construed in accordance with section 2(2) (c) of the Family Law (Divorce) Act, 1996.

(2) Notwithstanding any other provision of the Capital Gains Tax Acts, where by virtue or in consequence of an order made under Part III of the Family Law (Divorce) Act, 1996, on or following the granting of a decree of divorce, either of the spouses concerned disposes of an asset to the other spouse, then, subject to subsection (3), both spouses shall be treated for the purpose of the Capital Gains Tax Acts as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal.

PART 45 Charging and Assessing of Non-Residents

CHAPTER 1 Income tax and corporation tax

1032 Restrictions on certain reliefs. [ITA67 s153; FA74 s6(2) and Sch 1 Pt I par1(vii) (d); FA94 s155; FA96 s132(1) and Sch5 PtI par1(7)]

1032.—(1) Except where otherwise provided by this section, an individual not resident in the State shall not be entitled to any of the allowances, deductions, reliefs or reductions under the provisions specified in the Table to section 458.

(2) Where an individual not resident in the State proves to the satisfaction of the Revenue Commissioners that he or she—

(a) is a citizen of Ireland,

(b) is resident outside the State for the sake or on account of his or her health or the health of a member of his or her family resident with him or her or because of some physical infirmity or disease in himself or herself or any such member of his or her family, and that previous to such residence outside the State he or she was resident in the State,

(c) is a citizen, subject or national of another Member State of the European Communities or of a country of which the citizens, subjects or nationals are for the time being exempted by an order under section 10 of the Aliens Act, 1935, from any provision of, or of an aliens order under, that Act, or

(d) is a person to whom one of the paragraphs (a) to (e) of the proviso to section 24 of the Finance Act, 1920, applied in respect of the year ending on the 5th day of April, 1935, or any previous year of assessment,

then, subsection (1) shall not apply to that individual, but the amount of any allowance, deduction or other benefit mentioned in that subsection shall, in the case of that individual, be reduced to an amount which bears the same proportion to the total amount of that allowance, deduction or other benefit as the portion of his or her income subject to Irish income tax bears to his or her total income from all sources (including income not subject to Irish income tax).

(3) Notwithstanding subsection (2), where an individual not resident in the State proves to the satisfaction of the Revenue Commissioners that the individual is a resident of another Member State of the European Communities and that the proportion which the portion of the individual's income subject to Irish income tax bears to the individual's total income from all sources (including income not subject to Irish income tax) is 75 per cent or greater, subsection (1) or, as the case may be, subsection (2) shall not apply to that individual and he or she shall be entitled to the allowance, deduction or other benefit mentioned in subsection (1).

1033 Entitlement to tax credit in respect of distributions. [CTA76 s160; FA97 s146(1) and Sch9 PtI par10(8)]

1033.—An individual who, having made a claim in that behalf, is by virtue of subsection (2) or (3) of section 1032 entitled to relief in respect of any year of assessment under any of the provisions specified in the Table to section 458 shall be entitled to a tax credit in respect of any distribution received by him or her in that year to the same extent as if he or she were resident in the State, and section 153(1) shall not apply in relation to such an individual.

1034 Assessment. [ITA67 s200]

1034.—A person not resident in the State, whether a citizen of Ireland or not, shall be assessable and chargeable to income tax in the name of any trustee, guardian, or committee of such person, or of any factor, agent, receiver, branch or manager, whether such factor, agent, receiver, branch or manager has the receipt of the profits or gains or not, in the like manner and to the like amount as such non-resident person would be assessed and charged if such person were resident in the State and in the actual receipt of such profits or gains; but, in the case of a partnership, the precedent partner (within the meaning of section 1007) or, if there is no precedent partner, the factor, agent, receiver, branch or manager shall be deemed to be the agent of a non-resident partner.

1035 Profits from agencies, etc. [ITA67 s201]

1035.—A non-resident person shall be assessable and chargeable to income tax in respect of any profits or gains arising, whether directly or indirectly, through or from any factorship, agency, receivership, branch or management, and shall be so assessable and chargeable in the name of the factor, agent, receiver, branch or manager.

1036 Control over residents. [ITA67 s202]

1036.—Where a non-resident person, not being a citizen of Ireland or an Irish firm or company, or a branch of a non-resident person, carries on business with a resident person, and it appears to the inspector that, owing to the close connection between the resident person and the non-resident person and to the substantial control exercised by the non-resident person over the resident person, the course of business between those persons can be so arranged and is so arranged that the business done by the resident person in pursuance of that person's connection with the non-resident person produces to the resident person either no profits or less than the ordinary profits which might be expected to arise from that business, then, the non-resident person shall be assessable and chargeable to income tax in the name of the resident person as if the resident person were an agent of the non-resident person.

1037 Charge on percentage of turnover. [ITA67 s203; F(MP) A68 s3(2) and Sch PtI]

1037.—(1) Where it appears to the inspector or on appeal to the Appeal Commissioners that the true amount of the profits or gains of any non-resident person chargeable with income tax in the name of a resident person cannot in any case be readily ascertained, the non-resident person may, if it is thought fit by the inspector or the Appeal Commissioners, be assessed and charged on a percentage of the turnover of the business done by the non-resident person through or with the resident person in whose name the non-resident person is so chargeable, and in such a case the provisions of the Income Tax Acts relating to the delivery of statements by persons acting on behalf of others shall extend so as to require returns to be given by the resident person of the business so done by the non-resident person through or with the resident person in the same manner as statements of profits or gains to be charged are to be delivered by persons acting for incapacitated or non-resident persons.

(2) The amount of the percentage under subsection (1) shall in each case be determined, having regard to the nature of the business, by the inspector by whom the assessment on the percentage basis is made, subject to appeal to the Appeal Commissioners.

(3) Where either the resident person or the non-resident person is dissatisfied with the percentage determined either in the first instance or by the Appeal Commissioners on appeal, that person may within 4 months of that determination require the inspector or the Appeal Commissioners, as the case may be, to refer the question of the percentage to a referee or board of referees to be appointed for the purpose by the Minister for Finance, and the decision of the referee or board of referees shall be final and conclusive.

1038 Merchanting profit. [ITA67 s204; F(MP) A 68 s3(2) and Sch PtI]

1038.—Where a non-resident person is chargeable to income tax in the name of any branch, manager, agent, factor or receiver in respect of any profits or gains arising from the sale of goods or produce manufactured or produced outside the State by the non-resident person, the person in whose name the non-resident person is so chargeable may, if that person thinks fit, apply to—

(a) the inspector, or

(b) in case of an appeal, to the Appeal Commissioners,

to have the assessment to income tax in respect of those profits or gains made or amended on the basis of the profits which might reasonably be expected to have been earned by—

(i) a merchant, or

(ii) where the goods are retailed by or on behalf of the manufacturer or producer, by a retailer of the goods sold,

who had bought from the manufacturer or producer direct and, on proof to the satisfaction of the inspector or, as the case may be, the Appeal Commissioners of the amount of the profits on that basis, the assessment shall be made or amended accordingly.

1039 Restrictions on chargeability. [ITA67 s205]

1039.—(1) Nothing in this Chapter shall render a non-resident person chargeable in the name of—

(a) a broker or general commission agent, or

(b) an agent, not being—

(i) an authorised person carrying on the regular agency of the non-resident person, or

(ii) a person chargeable as if that person were an agent in pursuance of this Chapter,

in respect of profits or gains arising from sales or transactions carried out through such a broker or agent.

(2) The fact that a non-resident person executes sales or carries out transactions with other non-residents in circumstances which would make that person chargeable in pursuance of this Chapter in the name of a resident person shall not of itself make that person chargeable in respect of profits arising from those sales or transactions.

1040 Application of sections 1034 to 1039 for purposes of corporation tax. [CTA76 s8(4)]

1040.—Without prejudice to the general application of income tax procedure to corporation tax, the provisions of this Chapter relating to the assessment and charge of income tax on persons not resident in the State, in so far as they are applicable to tax chargeable on a company, shall apply with any necessary modifications in relation to corporation tax chargeable on companies not resident in the State.

1041 Rents payable to non-residents. [FA69 s25]

1041.—(1) Section 1034 shall not apply to—

(a) tax on profits or gains chargeable to tax under Case V of Schedule D, or

(b) tax on any of the profits or gains chargeable under Case IV of Schedule D which arise under the terms of a lease, but to a person other than the lessor, or which otherwise arise out of any disposition or contract such that if they arose to the person making it they would be chargeable under Case V of Schedule D,

where payment is made (whether in the State or elsewhere) directly to a person whose usual place of abode is outside the State; but section 238 shall apply in relation to the payment as it applies to other payments, being annual payments charged with tax under Schedule D and not payable out of profits or gains brought into charge to tax.

(2) Where by virtue of subsection (1) the tax chargeable for any year of assessment on a person's profits or gains chargeable to tax under either or both of the Cases referred to in that subsection would but for this subsection be greater than the tax which would be chargeable on such profits or gains but for subsection (1), then, on a claim in that behalf being made, relief shall be given from the excess, whether by repayment or otherwise.

CHAPTER 2 Capital gains tax

1042 Charging and assessment of persons not resident or ordinarily resident: modification of general rules. [CGTA75 s5(3); FA82 s33]

1042.—(1) Notwithstanding section 28(2), 31 or 979, any capital gains tax payable in respect of a chargeable gain which on a disposal accrues to a person not resident or ordinarily resident in the State at the time at which the disposal is made may be assessed and charged before the end of the year of assessment in which the chargeable gain accrues, and the tax so assessed and charged shall be payable at or before the expiration of a period of 3 months beginning with the time at which the disposal is made, or at the expiration of a period of 2 months beginning with the date of making the assessment, whichever is the later.

(2) In computing the amount of capital gains tax payable under subsection (1), section 31 shall apply with any necessary modifications as regards the deduction of any allowable losses which accrued to the person mentioned in subsection (1) before the date of making of the assessment mentioned in that subsection.

1043 Application of sections 1034 and 1035 for purposes of capital gains tax. [CGTA75 s51(1) Sch4 and par2(2)]

1043.—Without prejudice to the generality of section 931(2), sections 1034 and 1035 shall apply, subject to any necessary modifications, to capital gains tax.

PART 46 Persons Chargeable in a Representative Capacity

CHAPTER 1 Income tax and corporation tax

1044 Bodies of persons. [ITA67 s207]

1044.—(1) Subject to section 21, every body of persons shall be chargeable to income tax in the like manner as any person is chargeable under the Income Tax Acts.

(2) The treasurer (or other officer acting as such), auditor or receiver for the time being of any body of persons chargeable to income tax shall be answerable for doing all such acts as are required to be done under the Income Tax Acts for the purpose of the assessment of such body and for payment of the tax, and for the purpose of the assessment of the officers and persons in the employment of such body; but, in the case of a company, the person so answerable shall be the secretary of the company or other officer (by whatever name called) performing the duties of secretary.

(3) Every such officer may from time to time retain out of any money coming into his or her hands on behalf of the body so much of that money as is sufficient to pay the tax charged on the body, and shall be indemnified for all such payments made in pursuance of the Income Tax Acts.

1045 Trustees, guardians and committees. [ITA67 s208]

1045.—The trustee, guardian or committee of any incapacitated person having the direction, control or management of the property or concern of any such person, whether such person resides in the State or not, shall be assessable and chargeable to income tax in the like manner and to the like amount as that person would be assessed and charged if he or she were not an incapacitated person.

1046 Liability of trustees, etc. [ITA67 s209; CTA76 s8(4)]

1046.—(1) The person chargeable in respect of an incapacitated person or in whose name a non-resident person is chargeable shall be answerable for all matters required to be done under the Income Tax Acts for the purpose of assessment and payment of income tax.

(2) Any person charged under the Income Tax Acts in respect of any incapacitated or non-resident person may from time to time retain out of money coming into the first-mentioned person's hands on behalf of that incapacitated or non-resident person so much of that money as is sufficient to pay the tax charged, and shall be indemnified for all such payments made in pursuance of the Income Tax Acts.

(3) Without prejudice to the general application of income tax procedure to corporation tax, subsections (1) and (2), in so far as they are applicable to tax chargeable on a company, shall apply with any necessary modifications in relation to corporation tax chargeable on companies not resident in the State.

1047 Liability of parents, guardians, executors and administrators. [ITA67 s210(1) and (2)]

1047.—(1) Where a person chargeable to income tax is an infant or dies—

(a) the parent or guardian of the infant shall be liable for the tax in default of payment by the infant, and

(b) the executor or administrator of the deceased person shall be liable for the tax charged on such deceased person,

and on neglect or refusal of payment any such person so liable may be proceeded against in the like manner as any other defaulter.

(2) A parent or guardian who makes such payment shall be allowed all sums so paid in his or her accounts, and an executor or administrator may deduct all such payments out of the assets and effects of the person deceased.

1048 Assessment of executors and administrators. [ITA67 s211(1) to (3); F(MP) A68 s4(3)(a) and s6(7); FA78 s11(1)]

1048.—(1) Where a person dies, an assessment or an additional first assessment, as the case may be, may be made for any year of assessment for which an assessment or an additional first assessment could have been made on the person immediately before his or her death, or could be made on the person if he or she were living, in respect of the profits or gains which arose or accrued to such person before his or her death, and the amount of the income tax on such profits or gains shall be a debt due from and payable out of the estate of such person, and the executor or administrator of such person shall be assessable and chargeable in respect of such tax.

(2) No assessment under this section shall be made later than 3 years after the expiration of the year of assessment in which the deceased person died in a case in which the grant of probate or letters of administration was made in that year, and no such assessment shall be made later than 2 years after the expiration of the year of assessment in which such grant was made in any other case; but this subsection shall apply subject to the condition that where the executor or administrator—

(a) after the year of assessment in which the deceased person died, delivers an additional affidavit under section 38 of the Capital Acquisitions Tax Act, 1976, or

(b) is liable to deliver an additional affidavit under that section, has been so notified by the Revenue Commissioners and did not deliver the additional affidavit in the year of assessment in which the deceased person died,

such assessment may be made at any time before the expiration of 2 years after the end of the year of assessment in which the additional affidavit was or is delivered.

(3) The executor or administrator of any such deceased person shall, when required to do so by a notice given to the executor or administrator by an inspector, prepare and deliver to the inspector a statement in writing signed by such executor or administrator and containing particulars, to the best of such executor's or administrator's judgment and belief, of the profits or gains which arose or accrued to such deceased person before his or her death and in respect of which such executor or administrator is assessable under this section, and the provisions of the Income Tax Acts relating to statements to be delivered by any person shall apply with any necessary modifications to statements to be delivered under this section.

1049 Receivers appointed by court. [ITA67 s212; CTA76 s147(1) and (2)]

1049.—(1) A receiver appointed by any court in the State which has the direction and control of any property in respect of which income tax or, as the case may be, corporation tax is charged in accordance with the Tax Acts shall be assessable and chargeable with income tax or, as the case may be, corporation tax in the like manner and to the like amount as would be assessed and charged if the property were not under the direction and control of the court.

(2) Every such receiver shall be answerable for doing all matters and things required to be done under the Tax Acts for the purpose of assessment and payment of income tax or, as the case may be, corporation tax.

1050 Protection for trustees, agents and receivers. [ITA67 s213]

1050.—(1) A trustee who has authorised the receipt of profits arising from trust property by or by the agent of the person entitled to such profits shall not, if—

(a) that person or agent actually received the profits under that authority, and

(b) the trustee makes a return as required by section 890 of the name, address and profits of that person,

be required to do any other act for the purpose of the assessment of that person, unless the Revenue Commissioners require the testimony of the trustee pursuant to the Income Tax Acts.

(2) An agent or receiver of any person resident in the State, other than an incapacitated person, shall not, if that agent or receiver makes a return as required by section 890 of the name, address and profits of that person, be required to do any other act for the purpose of the assessment of that person, unless the Revenue Commissioners require the testimony of the agent or receiver pursuant to the Income Tax Acts.

CHAPTER 2 Capital gains tax

1051 Application of Chapter 1 for purposes of capital gains tax. [CGTA75 s51(1) and Sch4 par2(2)]

1051.—Chapter 1 other than section 1050 shall, subject to any necessary modifications, apply to capital gains tax.

PART 47 Penalties, Revenue Offences, Interest on Overdue Tax and Other Sanctions

CHAPTER 1 Income tax and corporation tax penalties

1052 Penalties for failure to make certain returns, etc. [ITA67 s70(4); s172(5) and s500; FA80 s57(2); FA82 s60; FA92 s248]

1052.—(1) Where any person—

(a) has been required, by notice or precept given under or for the purposes of any of the provisions specified in column 1 or 2 of Schedule 29, to deliver any return, statement, declaration, list or other document, to furnish any particulars, to produce any document, or to make anything available for inspection, and that person fails to comply with the notice or precept, or

(b) fails to do any act, to furnish any particulars or to deliver any account in accordance with any of the provisions specified in column 3 of that Schedule,

that person shall, subject to subsection (2) and to section 1054, be liable to a penalty of £750.

(2) Where the notice referred to in subsection (1) was given under or for the purposes of any of the provisions specified in column 1 of Schedule 29 and the failure continues after the end of the year of assessment following that during which the notice was given, the penalty mentioned in subsection (1) shall be £1,200.

(3) Subsections (1) and (2) shall apply subject to sections 877(5) (b) and 897(5).

(4) In proceedings for the recovery of a penalty incurred under this section or under section 1053—

(a) a certificate signed by an officer of the Revenue Commissioners, or, in the case of such proceedings in relation to a return referred to in section 879 or 880, by an inspector, which certifies that he or she has examined his or her relevant records and that it appears from those records that a stated notice or precept was duly given to the defendant on a stated day shall be evidence until the contrary is proved that the defendant received that notice or precept in the ordinary course;

(b) a certificate signed by an officer of the Revenue Commissioners which certifies that he or she has examined his or her relevant records and that it appears from those records that during a stated period a stated notice or precept has not been complied with by the defendant shall be evidence until the contrary is proved that the defendant did not during that period comply with that notice or precept;

(c) in the case of such proceedings in relation to a return referred to in section 879 or 880, a certificate signed by an inspector which certifies that he or she has examined his or her relevant records and that it appears from those records that during a stated period a stated return was not received from the defendant shall be evidence until the contrary is proved that the defendant did not during that period deliver that return;

(d) a certificate signed by an officer of the Revenue Commissioners which certifies that he or she has examined his or her relevant records and that it appears from those records that during a stated period the defendant has failed to do a stated act, furnish stated particulars or deliver a stated account in accordance with any of the provisions specified in column 3 of Schedule 29 shall be evidence until the contrary is proved that the defendant did so fail;

(e) a certificate certifying as provided for in paragraph (a), (b), (c) or (d) and purporting to be signed by an officer of the Revenue Commissioners or, as the case may be, by an inspector may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by such officer or, as the case may be, such inspector.

1053 Penalty for fraudulently or negligently making incorrect returns, etc. [ITA67 s501 and s502; F(MP) A68 s3(2) and Sch PtI; FA74 s86 and Sch2 PtI]

1053.—(1) Where any person fraudulently or negligently—

(a) delivers any incorrect return or statement of a kind mentioned in any of the provisions specified in column 1 of Schedule 29,

(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction or relief, or

(c) submits to the Revenue Commissioners, the Appeal Commissioners or an inspector any incorrect accounts in connection with the ascertainment of that person's liability to income tax,

that person shall, subject to section 1054, be liable to a penalty of—

(i) £100, and

(ii) the amount or, in the case of fraud, twice the amount of the difference specified in subsection (5).

(2) Where any person fraudulently or negligently furnishes, gives, produces or makes any incorrect return, information, certificate, document, record, statement, particulars, account or declaration of a kind mentioned in any of the provisions specified in column 2 or 3 of Schedule 29, that person shall, subject to section 1054, be liable to a penalty of £100 or, in the case of fraud, £250.

(3) Where any return, statement, declaration or accounts mentioned in subsection (1) was or were made or submitted by a person, neither fraudulently nor negligently, and it comes to that person's notice (or, if the person has died, to the notice of his or her personal representatives) that it was or they were incorrect, then, unless the error is remedied without unreasonable delay, the return, statement, declaration or accounts shall be treated for the purposes of this section as having been negligently made or submitted by that person.

(4) Subject to section 1060(2), proceedings for the recovery of any penalty under subsection (1) or (2) shall not be out of time because they are commenced after the time allowed by section 1063.

(5) The difference referred to in subsection (1) (ii) shall be the difference between—

(a) the amount of income tax payable for the relevant years of assessment by the person concerned (including any amount deducted at source and not repayable), and

(b) the amount which would have been the amount so payable if the return, statement, declaration or accounts as made or submitted by that person had been correct.

(6) The relevant years of assessment for the purposes of subsection (5) shall be, in relation to anything delivered, made or submitted in any year of assessment, that year, the next year and any preceding year of assessment, and the references in that subsection to the amount of income tax payable shall not, in relation to anything done in connection with a partnership, include any tax not chargeable in the partnership name.

(7) For the purposes of this section, any accounts submitted on behalf of a person shall be deemed to have been submitted by the person unless that person proves that they were submitted without that person's consent or knowledge.

1054 Increased penalties in case of body of persons. [ITA67 s503 and definition of “secretary” in ITA67 s509; FA73 s46]

1054.—(1) In this section, “secretary” includes persons mentioned in section 1044(2).

(2) Where the person mentioned in section 1052 is a body of persons—

(a) the body of persons shall be liable to—

(i) in a case where the notice was given under or for the purposes of any of the provisions specified in column 1 of Schedule 29 and the failure continues after the end of the year of assessment following that during which the notice was given, a penalty of £1,000, and

(ii) in any other case, a penalty of £500 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, a further penalty of £50 for each day on which the failure so continues, and

(b) the secretary shall be liable to—

(ii) in any other case, a separate penalty of £100.

(3) Where the person mentioned in section 1053 is a body of persons—

(a) in the case of such fraud or negligence as is mentioned in section 1053(1)—

(i) the body of persons shall be liable to a penalty of—

(I) £500 or, in the case of fraud, £1,000, and

(II) the amount or, in the case of fraud, twice the amount of the difference specified in section 1053(5), and

(ii) the secretary shall be liable to a separate penalty of £100 or, in the case of fraud, £200, and

(b) in the case of any such fraud or negligence as is mentioned in section 1053(2)—

(i) the body of persons shall be liable to a penalty of £500 or, in the case of fraud, £1,000, and

(ii) the secretary shall be liable to a separate penalty of £100 or, in the case of fraud, £200.

(4) This section shall apply subject to sections 877(5) (b) and 897(5), but otherwise shall apply notwithstanding anything in the Income Tax Acts.

1055 Penalty for assisting in making incorrect returns, etc. [ITA67 s505; FA74 s86 and Sch2 PtI; CTA76 s147(1) and (2)]

1055.—Any person who assists in or induces the making or delivery for any purposes of income tax or corporation tax of any return, account, statement or declaration which that person knows to be incorrect shall be liable to a penalty of £500.

1056 Penalty for false statement made to obtain allowance. [ITA67 s516; CTA76 s147(1) and (2); WCTIPA93 s11]

1056.—(1) In this section, “the specified difference”, in relation to a person, means the difference between—

(a) the amount of income tax or, as the case may be, corporation tax payable in relation to the person's or, as may be appropriate, another person's liability to income tax for a year of assessment or to corporation tax for an accounting period, as the case may be, and

(b) the amount which would have been the amount so payable if—

(i) any statement or representation referred to in subsection (2) (a) had not been false,

(ii) any account, return, list, declaration or statement referred to in subsection (2) (b) (i) had not been false or fraudulent, or

(iii) the full amount of income referred to in subsection (2) (b) (ii) had been disclosed.

(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if—

(a) in relation to the person's liability to income tax for a year of assessment or to corporation tax for an accounting period, as the case may be, the person knowingly makes any false statement or false representation—

(i) in any return, statement or declaration made with reference to tax, or

(ii) for the purpose of obtaining any allowance, reduction, rebate or repayment of tax, or

(b) in relation to liability to income tax of any other person for a year of assessment or to liability to corporation tax of any other person for an accounting period, as the case may be, the person knowingly and wilfully aids, abets, assists, incites or induces that other person—

(i) to make or deliver a false or fraudulent account, return, list, declaration or statement with reference to property, profits or gains or to tax, or

(ii) unlawfully to avoid liability to tax by failing to disclose the full amount of that other person's income from all sources.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction where the amount of the specified difference is—

(i) less than £1,200, to a fine not exceeding 25 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 12 months or to both;

(ii) equal to or greater than £1,200, to a fine not exceeding £1,200 or, at the discretion of the court, to a term of imprisonment not exceeding 12 months or to both;

(b) on conviction on indictment where the amount of the specified difference is—

(i) less than £5,000, to a fine not exceeding 25 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 2 years or to both;

(ii) equal to or greater than £5,000 but less than £10,000, to a fine not exceeding 50 per cent of the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 3 years or to both;

(iii) equal to or greater than £10,000 but less than £25,000, to a fine not exceeding the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 4 years or to both;

(iv) equal to or greater than £25,000 but less than £100,000, to a fine not exceeding twice the amount of the specified difference or, at the discretion of the court, to a term of imprisonment not exceeding 8 years or to both;

(v) equal to or greater than £100,000, to a fine not exceeding twice the amount of the specified difference and to a term of imprisonment not exceeding 8 years.

(4) Subsections (4) and (6) to (8) of section 1078 shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of that section.

(5) This section shall not apply to a declaration given under section 2 or 3 of the Waiver of Certain Tax, Interest and Penalties Act, 1993, by reason only of any false statement or false representation made in relation to subsection (3) (a) (iii) of section 2 of that Act or subsection (6) (b) (III) of section 3 of that Act, as the case may be.

1057 Fine for obstruction of officers in execution of duties. [ITA67 s515; CTA76 s147(1) and (2)]

1057.—(1) Where any person (in this subsection referred to as “the first-mentioned person”) or any person in the first-mentioned person's employ, obstructs, molests or hinders—

(a) an officer or any person employed in relation to any duty of income tax or corporation tax in the execution of his or her duty, or of any of the powers or authorities by law given to the officer or person, or

(b) any person acting in the aid of an officer or any person so employed,

the first-mentioned person shall for every such offence incur a fine of £100.

(2) Without prejudice to any other mode of recovery, the fine imposed under this section may be proceeded for and recovered in the like manner and, in the case of summary proceedings, with the like power of appeal as any fine or penalty under any Act relating to the excise.

1058 Refusal to allow deduction of tax. [ITA67 s520; CTA76 s147(1) and (2); FA96 s132(1) and Sch5 PtI par10(5)]

1058.—(1) A person who refuses to allow a deduction of income tax or corporation tax authorised by the Tax Acts to be made out of any payment shall forfeit the sum of £50.

(2) Every agreement for payment of interest, rent or other annual payment in full without allowing any such deduction shall be void.

1059 Power to add penalties to assessments. [ITA67 s513; CTA76 s147(3) and (4)]

1059.—Where an increased rate of income tax or corporation tax is imposed as a penalty, or as part of or in addition to a penalty, the penalty and increased rate of tax may be added to the assessment and collected and levied in the like manner as any tax included in such assessment may be collected and levied.

1060 Proceedings against executor or administrator. [ITA67 s504; CTA76 s147(3) and (4); FA78 s11(2)]

1060.—(1) Where the person who has incurred any penalty has died, any proceedings under the Tax Acts which have been or could have been commenced against that person may be continued or commenced against his or her executor or administrator, as the case may be, and any penalty awarded in proceedings so continued or commenced shall be a debt due from and payable out of his or her estate.

(2) Proceedings may not be commenced by virtue of subsection (1) against the executor or administrator of a person at a time when by virtue of subsection (2) of section 1048 that executor or administrator is not assessable and chargeable under that section in respect of income tax on profits or gains which arose or accrued to the person before his or her death.

1061 Recovery of penalties. [ITA67 s508; FA68 s6(6); CTA76 s147(3) and (4)]

1061.—(1) Without prejudice to any other mode of recovery of a penalty under the preceding provisions of this Part or under section 305, 783, 789 or 886, an officer of the Revenue Commissioners authorised by them for the purposes of this subsection may sue in his or her own name by civil proceedings for the recovery of the penalty in the High Court as a liquidated sum, and section 94 of the Courts of Justice Act, 1924, shall apply accordingly.

(2) Where an officer who has commenced proceedings pursuant to this section, or who has continued the proceedings by virtue of this subsection, dies or otherwise ceases for any reason to be an officer authorised for the purposes of subsection (1)—

(a) the right of such officer to continue the proceedings shall cease and the right to continue them shall vest in such other officer so authorised as may be nominated by the Revenue Commissioners,

(b) where such other officer is nominated under paragraph (a), he or she shall be entitled accordingly to be substituted as a party to the proceedings in the place of the first-mentioned officer, and

(3) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying that—

(a) a person is an officer of the Revenue Commissioners, and

(b) he or she has been authorised by them for the purposes of subsection (1),

shall be evidence of those facts until the contrary is proved.

(4) In proceedings pursuant to this section, a certificate signed by a Revenue Commissioner certifying that—

(a) the plaintiff has ceased to be an officer of the Revenue Commissioners authorised by them for the purposes of subsection (1),

(b) another person is an officer of the Revenue Commissioners,

(d) he or she has been nominated by them in relation to the proceedings for the purposes of subsection (2),

shall be evidence of those facts until the contrary is proved.

(5) In proceedings pursuant to this section, a certificate certifying the facts referred to in subsection (3) or (4) and purporting to be signed by a Revenue Commissioner may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been so signed.

(6) Subject to this section, the rules of the High Court for the time being applicable to civil proceedings shall apply to proceedings pursuant to this section.

1062 Proceedings where penalty recoverable cannot be definitely ascertained. [ITA67 s510; CTA76 s147(3) and (4)]

1062.—Notwithstanding that the amount of a penalty recoverable under the Tax Acts cannot be definitely ascertained by reason of the fact that the amount of income tax or, as the case may be, corporation tax by reference to which such penalty is to be calculated has not been finally ascertained, proceedings may be instituted for the recovery of such penalty and, if at the hearing of such proceedings the amount of such tax has not then been finally ascertained, the Court may, if it is of the opinion that such penalty is recoverable, adjourn such proceedings and shall not give any judgment or make any order for the payment of such penalty until the amount of such tax has been finally ascertained.

1063 Time limit for recovery of fines and penalties. [ITA67 s511; FA74 s86 and Sch2 PtI; CTA76 s147(3) and (4)]

1063.—Proceedings for the recovery of any fine or penalty incurred under the Tax Acts in relation to or in connection with income tax or corporation tax may, subject to section 1060, be begun at any time within 6 years after the date on which such fine or penalty was incurred.

1064 Time for certain summary proceedings. [ITA67 s517; FA79 s29; CTA76 s148]

1064.—Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings under section 889, 987 or 1056 may be instituted within 10 years from the date of the committing of the offence or incurring of the penalty, as the case may be.

1065 Mitigation and application of fines and penalties. [ITA67 s512; CTA76 s147(3) and (4); WCTIPA93 s10]

1065.—(1) (a) The Revenue Commissioners may in their discretion mitigate any fine or penalty, or stay or compound any proceedings for the recovery of any fine or penalty, and may also, after judgment, further mitigate the fine or penalty, and may order any person imprisoned for any offence to be discharged before the term of his or her imprisonment has expired.

(b) The Minister for Finance may mitigate any such fine or penalty either before or after judgment.

(2) Notwithstanding subsection (1)—

(a) where a fine or penalty is mitigated or further mitigated, as the case may be, after judgment, the amount or amounts so mitigated shall, subject to paragraph (b), not be greater than 50 per cent of the amount of the fine or penalty, and

(b) in relation to an individual, being an individual referred to in section 2(2) of the Waiver of Certain Tax, Interest and Penalties Act, 1993, or a person referred to in section 3(2) of that Act, who—

(i) fails to give a declaration required by section 2(3) (a) of that Act, or

(ii) gives a declaration referred to in subparagraph (i) or a declaration under section 3(6) (b) of that Act which is false or fails to comply with the requirements of subparagraph (iii) or (iv) of section 2(3) (a) of that Act or subparagraph (III) of section 3(6) (b) of that Act to the extent that any of those subparagraphs apply to that person,

no mitigation shall be allowed.

(3) Moneys arising from fines, penalties and forfeitures, and all costs, charges and expenses payable in respect of or in relation to such fines, penalties and forfeitures, shall be accounted for and paid to the Revenue Commissioners or as they direct.

1066 False evidence: punishment as for perjury. [ITA67 s518; CTA76 s147(1) and (2)]

1066.—If any person on any examination on oath, or in any affidavit or deposition authorised by the Tax Acts, wilfully and corruptly gives false evidence, or wilfully and corruptly swears any matter or thing which is false or untrue, that person shall on conviction be subject and liable to such punishment as persons convicted of perjury are subject and liable to.

1067 Admissibility of statements and documents in criminal and tax proceedings. [ITA67 s521; FA74 s86 and Sch2 PtI; CTA76 s147(1) and (2)]

1067.—(1) Statements made or documents produced by or on behalf of a person shall not be inadmissible in any proceedings mentioned in subsection (2) by reason only that it has been drawn to the person's attention that—

(a) in relation to income tax or, as the case may be, corporation tax, the Revenue Commissioners may accept pecuniary settlements instead of instituting proceedings, and

(b) although no undertaking can be given as to whether or not the Revenue Commissioners will accept such a settlement in the case of any particular person, it is the practice of the Revenue Commissioners to be influenced by the fact that a person has made a full confession of any fraud or default to which the person has been a party and has given full facilities for investigation,

and that the person was or may have been induced thereby to make the statements or produce the documents.

(2) The proceedings referred to in subsection (1) are—

(a) any criminal proceedings against the person in question for any form of fraud or wilful default in connection with or in relation to income tax or corporation tax, and

(b) any proceedings against the person in question for the recovery of any sum due from that person, whether by means of tax, fine, forfeiture or penalty, in connection with or in relation to income tax or corporation tax.

1068 Failure to act within required time. [ITA67 s507; CTA76 s147(1) and (2)]

1068.—For the purposes of this Chapter, a person shall be deemed not to have failed to do anything required to be done within a limited time if the person did it within such further time, if any, as the Commissioners or officer concerned may have allowed and, where a person had a reasonable excuse for not doing anything required to be done, the person shall be deemed not to have failed to do it if the person did it without unreasonable delay after the excuse had ceased.

1069 Evidence of income. [ITA67 s506 and definition of “assessment” in ITA67 s509; F(MP) A68 s3(2) and Sch PtI; CTA76 s147(1) and (2); FA88 s21(2)]

1069.—(1) In this section, “assessment” includes—

(a) an additional assessment, and

(b) an assessment as amended under section 955.

(2) For the purposes of this Chapter, any assessment which can no longer be varied by the Appeal Commissioners on appeal or by the order of any court shall be sufficient evidence that the income in respect of which income tax or, as the case may be, corporation tax is charged in the assessment arose or was received as stated in the assessment.

1070 Saving for criminal proceedings. [ITA67 s514; CTA76 s147(1) and (2)]

1070.—The Tax Acts shall not affect any criminal proceedings for a felony or misdemeanour.

CHAPTER 2 Other corporation tax penalties

1071 Penalties for failure to make certain returns. [CTA76 s143(7) (c) and (8)]

1071.—(1) Where any company has been required by notice served under section 884 to deliver a return and the company fails to comply with the notice—

(a) the company shall be liable to a penalty of £500 except in the case mentioned in subsection (2) and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and

(b) the secretary of the company shall be liable to a separate penalty of £100 except in the case mentioned in subsection (2).

(2) Where any failure mentioned in subsection (1) continues after the expiration of one year beginning with the date on which the notice was served, the first of the penalties mentioned in that subsection for which the company is liable shall be £1,000, and the secretary of the company shall be liable to a separate penalty of £200.

(3) The reference in subsection (1) to the delivery of a return shall be deemed to include a reference to the doing of any of the things specified in subparagraphs (i) and (ii) of paragraph (b) of section 884(9).

1072 Penalties for fraudulently or negligently making incorrect returns, etc. [CTA76 s143(9), (10) and (11)]

1072.—(1) Where a company fraudulently or negligently—

(a) delivers an incorrect return under section 884,

(b) makes any incorrect return, statement or declaration in connection with any claim for any allowance, deduction or relief in respect of corporation tax, or

(c) submits to an inspector, the Revenue Commissioners or the Appeal Commissioners any incorrect accounts in connection with the ascertainment of the company's liability to corporation tax,

the company shall be liable to a penalty of—

(i) £500 or, in the case of fraud, £1,000, and

(ii) the amount or, in the case of fraud, twice the amount of the difference specified in subsection (2), and

the secretary of the company shall be liable to a separate penalty of £100 or, in the case of fraud, £200.

(2) The difference referred to in subsection (1) shall be the difference between—

(a) the amount of corporation tax payable by the company for the accounting period or accounting periods comprising the period to which the return, statement, declaration or accounts relate, and

(b) the amount which would have been the amount so payable if the return, statement, declaration or accounts had been correct.

(3) Subsection (3) of section 1053 shall apply for the purposes of this section as it applies for the purposes of section 1053.

1073 Penalties for failure to furnish particulars required to be supplied by new companies. [CTA76 s141(2)]

1073.—Where a company fails to deliver a statement which it is required to deliver under section 882—

(a) the company shall be liable to a penalty of £500 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £50 for each day on which the failure so continues, and

(b) the secretary of the company shall be liable to a separate penalty of £100.

1074 Penalties for failure to give notice of liability to corporation tax. [CTA76 s142(2)]

1074.—Where a company fails to give a notice which it is required to give under section 883—

(b) the secretary of the company shall be liable to a separate penalty of £100.

1075 Penalties for failure to furnish certain information and for incorrect information. [CTA76 s149]

1075.—(1) Where any person has been required by notice given under or for the purposes of section 401 or 427 or Part 13 to furnish any information or particulars and that person fails to comply with the notice, that person shall be liable, subject to subsection (3), to a penalty of £100 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £10 for each day on which the failure so continues.

(2) Where the person fraudulently or negligently furnishes any incorrect information or particulars of a kind mentioned in section 239, 401 or 427 or Part 13, the person shall be liable, subject to subsection (4), to a penalty of £100 or, in the case of fraud, £250.

(3) Where the person mentioned in subsection (1) is a company—

(b) the secretary of the company shall be liable to a separate penalty of £100.

(4) Where the person mentioned in subsection (2) is a company—

(a) the company shall be liable to a penalty of £500 or, in the case of fraud, £1,000, and

(b) the secretary of the company shall be liable to a separate penalty of £100 or, in the case of fraud, £200.

(5) Subsection (3) of section 1053 shall apply for the purposes of this section as it applies for the purposes of section 1053.

1076 Supplementary provisions (Chapter 2). [CTA76 s154 and s147(3) and (4) (as it relates to application of ITA67 s172(5))]

1076.—(1) In this Chapter, “secretary” includes persons mentioned in section 1044(2) and, in the case of a company not resident in the State, the agent, manager, factor or other representative of the company.

(2) In proceedings for the recovery of a penalty incurred under the provisions of the Corporation Tax Acts—

(a) a certificate signed by an inspector which certifies that he or she has examined his or her relevant records and that it appears from those records that a stated notice was duly given to the defendant on a stated day shall be evidence until the contrary is proved that the defendant received that notice in the ordinary course;

(b) a certificate signed by an inspector which certifies that he or she has examined his or her relevant records and that it appears from those records that during a stated period a stated return was not received from the defendant shall be evidence until the contrary is proved that the defendant did not during that period deliver that return;

(c) a certificate certifying as provided for in paragraph (a) or (b) and purporting to be signed by an inspector may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by such inspector.

CHAPTER 3 Capital gains tax penalties

1077 Penalties for failure to make returns, etc. and for fraudulently or negligently making incorrect returns, etc. [CGTA75 s51(1) and Sch4 par3(2) and (6)]

1077.—(1) Without prejudice to the generality of section 913(1), Chapter 1 of this Part shall, subject to any necessary modifications, apply in relation to capital gains tax, and sections 1052, 1053 and 1054, as applied by this section, shall for the purposes of the Capital Gains Tax Acts be construed as if in Schedule 29 there were included—

(a) in column 1, references to sections 914 to 917,

(b) in column 2, a reference to section 945, and

(2) Where any person has been required by notice or precept given under the provisions of the Income Tax Acts as applied by section 913, or under section 914, 915, 916, 917 or 980, to do any act of a kind mentioned in any of the those provisions or sections, and the person fails to comply with the notice or precept, or where any person fraudulently or negligently makes, delivers, furnishes or produces any incorrect return, statement, declaration, list, account, particulars or other document (or knowingly makes any false statement or false representation) under any of those provisions or sections, Chapter 1 of this Part shall apply to the person for the purposes of capital gains tax as it applies in the case of a like failure or act for the purposes of income tax.

CHAPTER 4 Revenue offences

1078 Revenue offences. [FA83 s94; FA86 s40(2); FA89 s18 and Sch1 par3(2); FA92 s243; FA96 s132(1) and (2) and Sch5 PtI par13(2) and PtII]

1078.—(1) In this Part—

“the Acts” means—

(a) the Customs Acts,

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

(d) the Capital Gains Tax Acts,

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

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

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

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

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

“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise any of the powers conferred by the Acts;

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

(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person—

(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wilfully furnishes any incorrect information in connection with any tax,

(b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or accounts in connection with any tax,

(c) claims or obtains relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which, to the person's knowledge, the person is not entitled,

(d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax,

(e) (i) fails to make any deduction required to be made by the person under section 257(1),

(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 258(3), or

(iii) fails to pay to the Collector-General an amount on account of appropriate tax (within the meaning of Chapter 4 of Part 8) within the time specified in that behalf in section 258(4),

(f) (i) fails to make any deduction required to be made by the person under section 734(5), or

(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in paragraph 1(3) of Schedule 18,

(g) knowingly or wilfully fails to comply with any provision of the Acts requiring—

(i) the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax,

(ii) the furnishing of any other return, certificate, notification, particulars, or any statement or evidence, for the purposes of any tax,

(iii) the keeping or retention of books, records, accounts or other documents for the purposes of any tax, or

(iv) the production of books, records, accounts or other documents, when so requested, for the purposes of any tax,

(h) knowingly or wilfully, and within the time limits specified for their retention, destroys, defaces or conceals from an authorised officer—

(i) any documents, or

(ii) any other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form, which a person is obliged by any provision of the Acts to keep, to issue or to produce for inspection,

(i) fails to remit any income tax payable pursuant to Chapter 4 of Part 42, and the regulations under that Chapter, or value-added tax within the time specified in that behalf in relation to income tax or value-added tax, as the case may be, by the Acts, or

(j) obstructs or interferes with any officer of the Revenue Commissioners, or any other person, in the exercise or performance of powers or duties under the Acts for the purposes of any tax.

(3) A person convicted of an offence under this section shall be liable—

(a) on summary conviction to a fine of £1,000 which may be mitigated to not less than one fourth part of such fine or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.

(4) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (3) (a), and the reference in subsection (2) (a) of section 13 of the Criminal Procedure Act, 1967, to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.

(5) Where an offence under this section 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 the offence and may be proceeded against and punished accordingly.

(6) In any proceedings under this section, a return or statement delivered to an inspector or other officer of the Revenue Commissioners under any provision of the Acts and purporting to be signed by any person shall be deemed until the contrary is proved to have been so delivered and to have been signed by that person.

(7) Notwithstanding any other enactment, proceedings in respect of an offence under this section may be instituted within 10 years from the date of the commission of the offence or incurring of the penalty, as the case may be.

(8) Section 1 of the Probation of Offenders Act, 1907, shall not apply in relation to offences under this section.

(9) Sections 987(4) and 1052(4), subsections (3) and (7) of section 1053, and sections 1068 and 1069 and sections 26(6) and 27(7) of the Value-Added Tax Act, 1972, shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of those sections, including, in the case of such of those sections as are applied by the Capital Gains Tax Acts, the Corporation Tax Acts, or Part VI of the Finance Act, 1983, the purposes of those sections as so applied.

1079 Duties of relevant person in relation to certain revenue offences. [FA95 s172]

1079.—(1) In this section—

“the Acts” means—

(a) the Customs Acts,

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

(d) the Capital Gains Tax Acts,

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

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

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

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

“appropriate officer” means any officer nominated by the Revenue Commissioners to be an appropriate officer for the purposes of this section;

“company” means any body corporate;

“relevant person”, in relation to a company and subject to subsection (2), means a person who—

(a) (i) is an auditor to the company appointed in accordance with section 160 of the Companies Act, 1963 (as amended by the Companies Act, 1990), or

(ii) in the case of an industrial and provident society or a friendly society, is a public auditor to the society for the purposes of the Industrial and Provident Societies Acts, 1893 to 1978, and the Friendly Societies Acts, 1896 to 1977,

(b) with a view to reward, assists or advises the company in the preparation or delivery of any information, declaration, return, records, accounts or other document which he or she knows will be or is likely to be used for any purpose of tax;

“relevant offence” means an offence committed by a company which consists of the company—

(a) knowingly or wilfully delivering any incorrect return, statement or accounts or knowingly or wilfully furnishing or causing to be furnished any incorrect information in connection with any tax,

(b) knowingly or wilfully claiming or obtaining relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which there is no entitlement,

(c) knowingly or wilfully issuing or producing any incorrect invoice, receipt, instrument or other document in connection with any tax, or

(d) knowingly or wilfully failing to comply with any provision of the Acts requiring the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax, but an offence under this paragraph committed by a company shall not be a relevant offence if the company has made a return of income, profits or gains to the Revenue Commissioners in respect of an accounting period falling wholly or partly in the period of 3 years preceding the accounting period in respect of which the offence was committed;

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

(2) For the purposes of paragraph (b) of the definition of “relevant person”, a person who but for this subsection would be treated as a relevant person in relation to a company shall not be so treated if the person assists or advises the company solely in the person's capacity as an employee of the company, and a person shall be treated as assisting or advising the company in that capacity where the person's income from assisting or advising the company consists solely of emoluments to which Chapter 4 of Part 42 applies.

(3) If, having regard solely to information obtained in the course of examining the accounts of a company, or in the course of assisting or advising a company in the preparation or delivery of any information, declaration, return, records, accounts or other document for the purposes of tax, as the case may be, a person who is a relevant person in relation to the company becomes aware that the company has committed, or is in the course of committing, one or more relevant offences, the person shall, if the offence or offences are material—

(a) communicate particulars of the offence or offences in writing to the company without undue delay and request the company to—

(i) take such action as is necessary for the purposes of rectifying the matter, or

(ii) notify an appropriate officer of the offence or offences,

not later than 6 months after the time of communication, and

(b) (i) unless it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a), cease to act as the auditor to the company or to assist or advise the company in such preparation or delivery as is specified in paragraph (b) of the definition of “relevant person”, and

(ii) shall not so act, assist or advise before a time which is the earlier of—

(I) 3 years after the time at which the particulars were communicated under paragraph (a), and

(II) the time at which it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a).

(4) Nothing in paragraph (b) of subsection (3) shall prevent a person from assisting or advising a company in preparing for, or conducting, legal proceedings, either civil or criminal, which are extant or pending at a time which is 6 months after the time of communication under paragraph (a) of that subsection.

(5) Where a person, being in relation to a company a relevant person within the meaning of paragraph (a) of the definition of “relevant person”, ceases under this section to act as auditor to the company, then, the person shall deliver—

(a) a notice in writing to the company stating that he or she is so resigning, and

(b) a copy of the notice to an appropriate officer not later than 14 days after he or she has delivered the notice to the company.

(6) A person shall be guilty of an offence under this section if the person—

(a) fails to comply with subsection (3) or (5), or

(b) knowingly or wilfully makes a communication under subsection (3) which is incorrect.

(7) Where a relevant person is convicted of an offence under this section, the person shall be liable—

(a) on summary conviction, to a fine of £1,000 which may be mitigated to not less than one-fourth part of such fine, or

(b) on conviction on indictment, to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.

(8) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (7) (a), and the reference in subsection (2) (a) of section 13 of the Criminal Procedure Act, 1967, to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.

(9) Notwithstanding any other enactment, proceedings in respect of this section may be instituted within 6 years from the time at which a person is required under subsection (3) to communicate particulars of an offence or offences in writing to a company.

(10) It shall be a good defence in a prosecution for an offence under subsection (6) (a) in relation to a failure to comply with subsection (3) for an accused (being a person who is a relevant person in relation to a company) to show that he or she was in the ordinary scope of professional engagement assisting or advising the company in preparing for legal proceedings and would not have become aware that one or more relevant offences had been committed by the company if he or she had not been so assisting or advising.

(11) Where a person who is a relevant person takes any action required by subsection (3) or (5), no duty to which the person may be subject shall be regarded as having been contravened and no liability or action shall lie against the person in any court for having taken such action.

(12) The Revenue Commissioners may nominate an officer to be an appropriate officer for the purposes of this section, and the name of an officer so nominated and the address to which copies of notices under subsection (3) or (5) shall be delivered shall be published in Iris Oifigiúil.

(13) This section shall apply as respects a relevant offence committed by a company in respect of tax which is—

(a) assessable by reference to accounting periods, for any accounting period beginning after the 30th day of June, 1995,

(b) assessable by reference to years of assessment, for the year 1995-96 and subsequent years of assessment,

(d) chargeable on gifts or inheritances taken on or after the 30th day of June, 1995,

(e) chargeable on instruments executed on or after the 30th day of June, 1995, or

(f) payable in any other case, on or after the 30th day of June, 1995.

CHAPTER 5 Interest on overdue tax

1080 Interest on overdue income tax and corporation tax. [ITA67 s550(1), (3), (4) and (5); FA71 s17(2); FA74 s86 and Sch2 PtI; CTA76 s145(3); FA78 s46; FA85 s12; FA97 s146(1) and Sch9 PtI par10(7)]

1080.—(1) (a) Subject to this section and section 1081, any tax charged by any assessment to income tax or corporation tax shall carry interest at the rate of 1.25 per cent for each month or part of a month from the date when the tax becomes due and payable until payment.

(b) Any tax charged by any assessment to income tax shall, notwithstanding any appeal against such assessment, carry interest at the rate of 1.25 per cent for each month or part of a month from the date when, if there were no appeal against the assessment, the tax would become due and payable under section 960 until payment.

(2) Interest shall not be payable under this section on the tax charged by any assessment unless the total amount of the interest is not less than £1.

(3) The interest payable under this section—

(a) shall be payable without any deduction of income tax and shall not be allowed as a deduction in computing any income, profits or losses for any of the purposes of the Tax Acts, and

(b) shall be deemed to be a debt due to the Minister for Finance for the benefit of the Central Fund and shall be payable to the Revenue Commissioners,

and, subject to subsection (4)—

(i) every enactment relating to the recovery of any tax charged by an assessment,

(ii) every rule of court so relating,

(iii) section 81 of the Bankruptcy Act, 1988, and

(iv) sections 98 and 285 of the Companies Act, 1963,

shall apply to the recovery of any amount of interest payable on that tax as if that amount of interest were a part of that tax.

(4) In proceedings instituted by virtue of subsection (3)—

(a) a certificate by the Collector-General certifying that a stated amount of interest is due and payable by the person against whom the proceedings were instituted shall be evidence until the contrary is proved that that amount is so due and payable, and

(b) a certificate so certifying and purporting to be signed by the Collector-General may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by the Collector-General.

1081 Effect on interest of reliefs given by discharge or repayment. [ITA67 s551(1) and (2) (a); CTA76 s147(1) and (2)]

1081.—(1) Subject, in the case of income tax, to subsection (2)—

(a) where relief from income tax or corporation tax charged by any assessment referred to in section 1080(1) is given to any person by a discharge of any of that tax, such adjustment shall be made of the amount payable under that section in relation to the assessment, and such repayment shall be made of any amounts previously paid under that section in relation to the assessment, as are necessary to secure that the total sum, if any, paid or payable under that section in relation to the assessment is the same as it would have been if the tax discharged had never been charged, and

(b) where relief from income tax paid for any year of assessment, or corporation tax paid for any accounting period, is given to any person by repayment, that person shall be entitled to require that the amount repaid shall be treated for the purposes of this subsection to the extent possible as if it were a discharge of the tax charged on that person (whether alone or together with other persons) by any assessment for the same year or, as the case may be, the same accounting period; but the relief shall not be applied to any assessment made after the relief was given and shall not be applied to more than one assessment so as to reduce without extinguishing the amount of tax charged thereby.

(2) No relief, whether by means of discharge or repayment, shall be treated as affecting tax charged by an assessment to income tax unless it is a relief from income tax.

1082 Interest on overdue income tax and corporation tax in cases of fraud or neglect. [FA71 s20(1) to (4) and (6); FA74 s86 and Sch2 PtI; CTA76 s145(4); FA80 s14(2); FA82 s59]

1082.—(1) In this section, “neglect”, in the case of corporation tax, has the same meaning as in section 919(5) (a) and, in the case of income tax, has the same meaning as in section 924(2) (a).

(2) Where for any year of assessment or accounting period an assessment is made for the purpose of recovering an undercharge to income tax or corporation tax, as the case may be, attributable to the fraud or neglect of any person, the amount of the tax undercharged shall carry interest at the rate of 2 per cent for each month or part of a month from the date or dates on which the tax undercharged for that year or accounting period, as the case may be, would have been payable if it had been included in an assessment made—

(a) in the case of income tax, before the 1st day of October in that year, and

(b) in the case of corporation tax, on the expiration of 6 months from the end of that accounting period,

to the date of payment of the tax undercharged.

(3) Subject to subsection (5), section 1080(1) shall not apply to tax carrying interest under this section.

(4) Subsections (2) to (4) of section 1080 and, in the case of income tax, section 1081 shall apply to interest chargeable under this section as they apply to interest chargeable under section 1080.

(5) Where an assessment of the kind referred to in subsection (2) is made—

(a) the inspector concerned shall give notice to the person assessed that the tax charged by the assessment will carry interest under this section,

(b) the person assessed may appeal against the assessment on the ground that interest should not be charged under this section, and the provisions of the Tax Acts relating to appeals against assessments shall apply with any necessary modifications in relation to the appeal as they apply in relation to those appeals, and

(c) if on the appeal it is determined that the tax charged by the assessment should not carry interest under this section, section 1080(1) shall apply to that tax.

1083 Application of sections 1080 to 1082 for capital gains tax purposes. [CGTA75 s51(1) and Sch4 par2(2)]

1083.—Without prejudice to sections 931(2) and 976(2), sections 1080 to 1082 shall, subject to any necessary modifications, apply to capital gains tax.

CHAPTER 6 Other sanctions

1084 Surcharge for late returns. [FA86 s48; FA88 s16; FA90 s25(1); FA92 s245; FA95 s30(1)]

1084.—(1) (a) In this section—

“chargeable person”, in relation to a year of assessment or an accounting period, means a person who is a chargeable person for the purposes of Part 41;

“return of income” means a return, statement, declaration or list which a person is required to deliver to the inspector by reason of a notice given by the inspector under any one or more of the specified provisions, and includes a return which a chargeable person is required to deliver under section 951;

“specified return date for the chargeable period” has the same meaning as in section 950;

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