Finance Act 2005

73 Liability and payment.

73.—(1) Liability for tobacco products tax arises at the time tobacco products are released for consumption.

• (2) Payment of tobacco products tax in respect of specified tobacco products shall be by means of the purchase of tax stamps issued by the Commissioners except where the Commissioners, in exceptional circumstances, permit payment to be subject to the provisions governing other tobacco products.

• (3) Subject to section 74, the Commissioners shall only issue tax stamps on payment of an amount equivalent to the amount of tobacco products tax represented by such tax stamps.

• (4) The Minister may, by order, extend the provisions of this Chapter which relate to tax stamps and specified tobacco products to other tobacco products to which this Chapter relates.

74 Deferment of payment.

74.—The Commissioners may, subject to compliance with such conditions for securing payment of tobacco products tax as they may think fit to impose—

• (a) in respect of specified tobacco products where the issue of tax stamps arises in a period beginning on and including the fourth last day of a month up to and including the fifth last day of the subsequent month permit, subject to paragraph (b), payment of the amount referred to in section 73(3) or tobacco products tax to be deferred to a day not later than the last day of the second month following that subsequent month,

• (b) in respect of specified tobacco products where such issue arises during the period beginning on and including 28 October in any year and ending on and including 27 December in that year, permit payment of such amount or tobacco products tax arising up to and including 30 November in that year and half the total of such amount and such tobacco products tax arising in the said period thereafter, as determined by the Commissioners, to be paid not later than 31 December in that year, and

• (c) in respect of other tobacco products:

• (i) other than on the last day in the month of December, where tobacco products tax liability arises on a day in that month but such day is not a Saturday or a Sunday, permit payment of tobacco products tax to be deferred, as to one half, as determined by the Commissioners, of the tax to a day not later than the last day of that month and, as to the remainder of the tax, to a day not later than the last day of the next following month of January, and

• (ii) in any other case, permit payment of the tobacco products tax to be deferred to a day not later than the last day of the month immediately following that in which liability arises.

75 Ascertainment of retail prices of tobacco products.

75.—(1) Subject to subsection (2), where a rate of tobacco products tax is related to the price at which a tobacco product is sold by retail, that price shall be taken for the purposes of this Chapter to be the price at which the product and any packaging and any article or token, accompanying the product, are sold by retail.

• (2) A manufacturer or importer of cigarettes shall make a declaration in writing to the Commissioners of the price at which such manufacturer or importer will recommend that such cigarettes are to be sold by retail in respect of each category of quantity that the cigarettes are packaged for retail sale, and the price so declared shall, for the purposes of this Chapter, be taken to be the price at which such cigarettes are sold by retail.

• (3) In the case of cigarettes to which subsection (2) relates but in relation to which a price does not stand declared for the time being in the manner specified in that subsection or a price so stands that is, in the opinion of the Commissioners, lower by an unreasonably large amount than the price at which cigarettes of a similar type and character are being sold at the time the tax is being charged on the cigarettes, the Commissioners may determine a price for the purposes of this Chapter and the price at which they are sold by retail shall be taken, for the purposes of this Chapter to be such price as stands so determined for the time being.

• (4)
• (a) A manufacturer or importer of tobacco products shall not recommend, expressly or by implication, that cigarettes the price of which stands declared, but not determined for the time being under subsection (3) be sold by retail at a price higher than that so standing.

• (b) A manufacturer or importer of tobacco products shall not recommend, expressly or by implication, that cigarettes the price of which stands determined for the time being under subsection (3) be sold by retail at a price higher than that so standing.

76 Affixing of tax stamps.

76.—(1) With the exception of—

• (a) specified tobacco products to which section 104(2) of the Finance Act 2001 applies,

• (b) specified tobacco products being held or delivered under a suspension arrangement,

• (c) specified tobacco products where the payment of tax is permitted under section 73(2) to be subject to the provisions governing tobacco products other than specified tobacco products,

• (d) tobacco products which are not specified tobacco products,

specified tobacco products intended for sale, delivery or consumption in the State shall have affixed by the manufacturer to each pack in which the tobacco products are intended to be put up for retail sale, a tax stamp in respect of which the tax appropriate to the pack of such tobacco products has been paid.

• (2)
• (a) Tax stamps affixed in the State to packs of specified tobacco products shall be affixed in a tax warehouse and in such manner as the Commissioners may prescribe in regulations made under section 83.

• (b) Where packs of specified tobacco products are brought into the State with tax stamps affixed they shall be affixed in such manner as the Commissioners may prescribe in regulations made under section 83.

77 Repayment or remission.

77.—(1) The Commissioners may, subject to compliance with such conditions (if any) as they consider appropriate to impose, repay or remit tobacco products tax or an amount paid or due on the issue of tax stamps in respect of—

• (a) tobacco products destroyed under administrative supervision,

• (b) denatured tobacco products used for industrial or horticultural purposes,

• (c) tobacco products remanufactured by the manufacturer,

• (d) tobacco products which have been shown to their satisfaction to have been intended solely for scientific tests or for tests connected with product quality,

• (e) tax stamps which have been shown to their satisfaction to either have been destroyed or to be damaged or otherwise unsuitable for the use for which they were issued, and

• (f) tax stamps which have been shown to their satisfaction to have been affixed to specified tobacco products which have been the subject of an irregularity, within the meaning of Article 20 of Council Directive No. 92/12/EEC of 25 February 1992¹, in another Member State and where excise duty on such products has been paid in another Member State.

• (2) The amount of any repayment under subsection (1)(c) on tobacco products returned to a tax warehouse shall not exceed the amount of tobacco products tax which would be chargeable on such tobacco products at the time they are returned to the warehouse.

• (3)
• (a) Claims for repayment under this section shall be in such form as the Commissioners may direct and shall be in respect of qualifying events concerning tobacco products or tax stamps occurring within a period of 3 calendar months.

• (b) A repayment may not be made unless the claim is made within 6 months following the end of each such period of 3 calendar months or within such longer period as the Commissioners may, in any particular case, allow.

78 Offences in relation to tax stamps.

78.—(1) Except where subsection (4) or (5) applies, it is an offence under this subsection for any person to contravene or fail to comply with any provision of this Chapter or any regulation made under section 83 or any condition imposed under this Chapter or under such regulation in relation to such provision.

• (2) Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under subsection (1) is liable on summary conviction to a fine of €1,900.

• (3) With the exception of cases where payment of tobacco products tax is permitted under section 73(2) to be subject to the provisions governing other tobacco products it is an offence under this subsection to invite an offer to treat for, offer for sale, keep for sale or delivery, or be in the process of delivering specified tobacco products otherwise than in a pack or packs to which a tax stamp, by means of which tobacco products tax at the appropriate rate has been levied or paid in respect of such tobacco products, is affixed to each such pack in the prescribed manner unless such invitation, offer, sale or delivery takes place under a suspension arrangement.

• (4) It is an offence under this subsection to counterfeit, alter or otherwise make fraudulent use of, or to be knowingly concerned in holding, selling or dealing in a counterfeited or altered tax stamp.

• (5) Without prejudice to any other penalty to which a person may be liable, a person convicted under subsection (3) or (4) is liable—

• (a) on summary conviction, to a fine of €1,900 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months or to both, or

• (b) on conviction on indictment, to a fine not exceeding €12,695 or, at the discretion of the Court, to imprisonment for a term not exceeding 5 years or to both.

• (6) In a prosecution for an offence under subsection (3), it shall be presumed until the contrary is shown—

• (a) that tobacco products tax had not been paid in respect of any pack or packs which do not have a tax stamp affixed thereto,

• (b) that in respect of any pack or packs which do not have a tax stamp affixed thereto—

• (i) section 104(2), of the Finance Act 2001 does not apply,

• (ii) the pack or packs are not being held under a suspension arrangement, and

• (iii) the Commissioners have not permitted, under section 73(2), payment of the tax to be subject to the provisions governing tobacco products other than specified tobacco products,

• (c) in the case of a prosecution for keeping for sale or delivery, that the tobacco products concerned were so kept and were not kept for private use,

• (d) that a thing is a cigarette or other tobacco product where, in the opinion of an officer of the Commissioners, it is contained in any form of packaging which, by virtue of any wording thereon, its shape and other characteristics, is indicative of the contents consisting of one or more than one cigarette or of another tobacco product and the officer so states that opinion.

• (7) Any tobacco products or stamps in respect of which an offence has been committed under this section, any goods packed with or used to conceal such tobacco products and any vehicle or conveyance in which such tobacco products are found in, on or in any manner attached to, are liable to forfeiture.

• (8) 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 an offence and may be proceeded against and punished as if guilty of the first-mentioned offence.

79 Retail price (offence and penalty).

79.—(1) A person shall not invite an offer to treat, offer for sale or sell by retail any packet of cigarettes at a price which is higher than—

• (a) in the case of cigarettes sold or to be sold by means of a coin-operated vending machine, the nearest multiple of 5 cent to the price, or

• (b) in all other cases, the price,

being the price on the basis of which that part of tobacco products tax which is chargeable by reference to the price at which the cigarettes are sold by retail has been charged on the cigarettes in question.

• (2) Any person who so invites, offers or sells is guilty of an offence and is liable on summary conviction to a fine of €60 in respect of each such offence.

80 Account of materials.

80.—(1) Subject to subsection (2) the Commissioners may require a manufacturer of tobacco products to account to them to their satisfaction for all the materials received by such manufacturer and, in the case of materials not so accounted for, they may require such manufacturer to pay at the appropriate rate or rates tobacco products tax on such quantities of such tobacco products as, in their opinion, might reasonably be expected to be manufactured from those materials.

• (2) The Commissioners may, subject to compliance with such conditions as they may think fit to impose, waive, in relation to materials shown to their satisfaction to have been destroyed or otherwise disposed of in a manner approved of by them, tobacco products tax which, would be otherwise payable under this section.

81 Repeals, revocations and savings.

81.—(1) The enactments set out in Parts 1 and 2 of Schedule 3 (in this Chapter referred to as the “repealed enactments”) are repealed in the case of those set out in Part 1, and revoked in the case of those set out in Part 2, to the extent mentioned in the third column of those Parts opposite the reference to the enactment concerned.

• (2) If and in so far as a provision of this Chapter operates, as from the day appointed under section 86, in substitution for a provision of the repealed enactments, any order or regulation made or having effect as if made, and any thing done or having effect as if done, under the substituted provision before that day shall be treated as from that day as if it were an order or regulation made or a thing done under such provision of this Chapter.

82 General provisions and structure.

82.—(1) (a) Subject to paragraph (b) and to subsection (2), the provisions of the Customs Acts and of any instrument relating to duties of customs made under statute and not otherwise applied by this Chapter apply, with any necessary modifications, in relation to tobacco products tax imposed by section 72 on tobacco products imported into the State as they apply in relation to duties of customs.

• (b) Where there is a provision in this Chapter corresponding to a provision of the Customs Acts or of any instrument relating to duties of customs made under statute, the provision of the Customs Acts or of any such instrument does not apply in relation to tobacco products tax.

• (2)
• (a) Subject to paragraph (b), the provisions of the statutes which relate to the duties of excise and the management of those duties and of any instrument relating to the duties of excise made under statute and not otherwise applied by this Chapter apply, with any necessary modifications, in relation to tobacco products tax imposed by section 72 on tobacco products produced in the State or exported to or imported from another Member State, as they apply to duties of excise.

• (b) Where there is a provision in this Chapter corresponding to a provision of the statutes which relate to the duties of excise or of any other instrument relating to the duties of excise made under statute, the provision of those statutes or of any such instrument does not apply in relation to tobacco products tax.

• (3) This Chapter shall be construed—

• (a) so far as it relates to tobacco products tax on such products made in the State or exported to or imported from a Member State, together with the statutes which relate to the duties of excise and the management of those duties and any instruments relating to the duties of excise and the management of those duties made under statute,

• (b) so far as it relates to tobacco products tax on imported products, together with the Customs Acts and any instrument relating to duties of customs made under statute.

83 Regulations.

83.—(1) The Commissioners may make regulations for the purpose of giving full effect to the provisions of this Chapter.

• (2) In particular, but without prejudice to the generality of subsection (1), regulations under this section may—

• (a) govern the importation, production, treatment, storage and removal from storage of materials and tobacco products,

• (b) prescribe the method of charging, securing and collecting tobacco products tax,

• (c) require a manufacturer of tobacco products and a person who imports materials or tobacco products to keep in a specified manner, and to preserve for a specified period, such accounts and records relating to the purchase, receipt, sale, disposal or manufacture of materials and tobacco products as may be specified and to keep for a specified period any other books or documents relating to any of the matters aforesaid and to allow an officer to inspect and take copies of such accounts and records and of any other books or documents kept by the manufacturer relating to any of the matters aforesaid,

• (d) provide for the approval by the Commissioners of premises to be used for the receipt, storage, manufacture or delivery of materials or tobacco products and for compliance, as respects the premises, by the occupier with such conditions as may be specified in writing by an officer,

• (e) require a manufacturer of tobacco products to furnish at such times and in such form as may be specified returns in relation to such matters as may be specified,

• (f) where a rate of tobacco products tax is related to the price at which a tobacco product is sold by retail, require manufacturers and importers of tobacco products to supply such information relating to that price, and changes and proposed changes in that price,

• (g) prescribe the form of tax stamps to be used to collect tobacco products tax on specified tobacco products,

• (h) govern the printing, transportation, storage, sale, release and supply of tax stamps,

• (i) prescribe the manner in which tax stamps are to be affixed,

• (j) specify the records to be kept by tobacco manufacturers, importers, authorised warehousekeepers and tax representatives in relation to tax stamps which are either or both obtained and held by each one of them.

• (3) Regulations made under this section may make different provisions for—

• (a) different tobacco products and for different types of each product, and

• (b) persons, premises or products of different classes or descriptions, for different circumstances and for different cases.

84 Continuity.

84.—(1) The provisions of this Chapter shall apply subject to so much of any Act which contains provisions relating to or affecting excise duties as—

• (a) is not repealed by this Chapter, and

• (b) would have operated in relation to these duties if this Chapter had not been substituted for the repealed enactments.

• (2) The Commissioners shall have all the jurisdictions, powers and duties in relation to tobacco products tax which they had in relation to the corresponding excise duty.

• (3) The continuity of the operation of the law relating to excise duty on tobacco products shall not be affected by the substitution of this Chapter for the repealed enactments.

• (4) Any reference, whether express or implied, in any enactment (including this Chapter) or document—

• (a) to any provision of this Chapter, or

• (b) to things done or to be done under or for the purpose of any provision of this Chapter,

shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision in the repealed enactments applied or had applied, a reference to, or, as the case may be, to things done or to be done under or for the purposes of, that corresponding provision.

• (5) Any reference, whether express or implied, in any enactment or document (including the repealed enactments and enactments passed and documents made)—

• (a) to any provision of the repealed enactments, or

• (b) to things done or to be done under or for the purposes of any provision of the repealed enactments,

shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision of this Chapter applies, a reference to, or as the case may be, to things done or deemed to be done or to be done under or, for the purposes of, that corresponding provision.

• (6) Every officer who immediately before the commencement of this provision, stood authorised or nominated for the purposes of any provision of the repealed enactments is, upon such commencement, deemed to be authorised or nominated, as the case may be, for the purposes of the corresponding provision of this Chapter.

• (7) Every instrument, document, authorisation and letter or notice of appointment made or issued under the repealed enactments and in force immediately before the commencement of this provision continues, upon such commencement, in force as if made or issued under this Chapter.

85 Care and management.

85.—Tobacco products tax imposed by section 72 is placed under the care and management of the Commissioners.

86 Commencement.

86.—This Chapter comes into operation on such day as the Minister may appoint by order, and different days may be so appointed for different provisions or for different purposes.

Chapter 4 Miscellaneous Excise and Customs

87 Amendment of Finance (Excise Duty on Tobacco Products) Act 1977.

87.—(1) The Finance (Excise Duty on Tobacco Products) Act 1977 is amended—

• (a) in section 2A—

• (i) by substituting the following for subsection (2):

• “(2) Liability for duty imposed by section 2 arises at the time the tobacco products are released for consumption.”,

• (ii) by substituting the following for subsection (3):

• “(3) Subject to section 3(3) of this Act, the Revenue Commissioners shall issue tax stamps only on payment of an amount equivalent to the amount of duty represented by such stamps.”,

and

• (iii) by deleting subsection (4),

and

• (b) in section 3—

• (i) in subsection (1) by inserting “an amount paid or due in relation to the issue of tax stamps in respect of, or” after “repay or remit”,

• (ii) by substituting the following for subsection (1A):

• “(1A) The Revenue Commissioners may, subject to compliance with such conditions (if any) as they consider appropriate to impose, repay or remit duty or an amount paid or due on the issue of tax stamps—

  • (a) where it is shown to their satisfaction that the tax stamps have been destroyed or are damaged or otherwise unsuitable for the use for which they were issued, or

  • (b) where it is shown to their satisfaction that the stamps have been affixed to tobacco products which have been the subject of an irregularity, within the meaning of Article 20 of Council Directive No. 92/12/EEC of 25 February 1992¹, in another Member State and where excise duty on such products has been paid in another Member State.”,

and

• (iii) by substituting the following for subsection (3)(a):

• “(a) in respect of cigarettes and such other types of tobacco products as may be specified by order made under section 2A(5) where the issue of tax stamps arises in a period beginning on and including the fourth last day of a month up to and including the fifth last day of the subsequent month permit, subject to paragraph (aa), payment of the amount referred to in section 2A(3), or duty, to be deferred to a day not later than the last day of the second month following the subsequent month,

• (aa) in respect of cigarettes and such other types of tobacco products as may be specified by order made under section 2A(5) where the issue of stamps arises during the period beginning on and including 28 October in any year and ending on and including 27 December in that year permit payment of an amount referred to in section 2A(3), or duty, arising up to and including 30 November in that year and half the total of such amount and such duty arising in the said period thereafter, as determined by the Commissioners, to be paid not later than 31 December in that year, and”.

• (2) This section comes into operation on such day as the Minister for Finance may appoint by order.

88 Amendment of section 96 (interpretation) of Finance Act 2001.

88.—Section 96 of the Finance Act 2001 is amended in subsection (1)—

• (a) by substituting the following for the definition of “mineral oil”:

“ ‘mineral oil’ has the same meaning as it has in paragraph (c) of section 97(1);”,

• (b) by inserting the following definition after the definition of “prescribed”:

“ ‘prohibited goods’ has the same meaning as it has in either—

• (a) section 94 of the Finance Act 1999, or

• (b) section 73 (as amended by the Finance Act 2005) of the Finance Act 2003;”,

• (c) by substituting the following definition for the definition of “vehicle”:

“ ‘vehicle’ means a mechanically propelled vehicle or any other conveyance, and includes any container, trailer, tank or any other thing, which—

• (a) is or may be used for the storage of goods in the course of carriage, and

• (b) is designed or constructed to be placed on, in or attached to any such vehicle or other conveyance;”,

• (d) by substituting the following for the definition of “wine”:

“ ‘wine’ has the same meaning as it has in section 73 of the Finance Act 2003.”,

and

• (e) from such time as the Minister for Finance may appoint by order under section 86 for the coming into operation of section 71, by substituting the following for the definition of “tobacco products”:

“ ‘tobacco products’ has the same meaning as it has in paragraph (b) of section 97(1);”.

89 Amendment of section 97 (excisable products (Part 2)) of Finance Act 2001.

89.—Section 97 of the Finance Act 2001 is amended in subsection (1)—

• (a) by substituting the following for paragraphs (a) and (b):

• “(a) alcohol products chargeable with alcohol products tax under section 75 of the Finance Act 2003;”,

and

• (b) from such time as the Minister for Finance may appoint by order under section 86 for the coming into operation of section 71, by substituting the following for paragraphs (c) and (d):

• “(c) tobacco products chargeable with tobacco products tax under section 72 of the Finance Act 2005;

• (d) mineral oil chargeable with mineral oil tax under section 95 of the Finance Act 1999.”.

90 Amendment of section 103 (payment) of Finance Act 2001.

90.—Section 103 of the Finance Act 2001 is amended—

• (a) by inserting the following subsection after subsection (1):

• “(1A) Every sum due in respect of excise duty, every fine, penalty or forfeiture incurred in connection with excise duty and every amount of interest payable under this section is deemed to be a debt due to the Minister for Finance for the benefit of the Central Fund and shall be payable to the Commissioners and may (without prejudice to any other mode of recovery of such sum, fine, penalty, forfeiture or amount) be sued for and recovered by action, or other appropriate proceedings, at the suit of the Attorney General in any court of competent jurisdiction.”,

and

• (b) by deleting subsection (2)(b) (inserted by the Finance Act 2003).

91 Amendment of section 109 (warehousing) of Finance Act 2001.

91.—Section 109 of the Finance Act 2001, is amended by inserting the following after subsection (7):

• “(8) Excisable goods shall not be considered as having departed from a suspension arrangement until they have been removed from the warehouse where they are held under such an arrangement.

• (9) This section does not apply to coal within the meaning of section 94 of the Finance Act 1999.”.

92 Amendment of section 110 (scope (Chapter 2)) of Finance Act 2001.

92.—Section 110 of the Finance Act 2001 is amended by substituting the following for subsection (1):

• “(1) This Chapter shall apply to all excisable products except that, in the case of mineral oil, it shall apply only to products specified in paragraph (1) of Article 20 of Council Directive No. 2003/96/EC of 27 October 2003¹ or which have been the subject, under paragraph (2) of that article, of a decision to make such products subject to the control and movement provisions of the Directive.”.

93 Amendment of Part 2 (general excise law) of Finance Act 2001.

93.—Part 2 of the Finance Act 2001 is amended from such time as the Minister for Finance may appoint by order under section 86 for the coming into operation of section 78—

• (a) by substituting “section 78 of the Finance Act 2005” for “section 10A (inserted by the Finance Act, 1994) of the Finance (Excise Duty on Tobacco Products) Act, 1977,” in sections 138 and 141(2),

• (b) by substituting “section 78 of the Finance Act 2005,” for “section 10A (inserted by the Finance Act, 1994) of the Finance (Excise Duty on Tobacco Products) Act, 1977,” in each place where it occurs in sections 139(2)(a), 139(2)(b)(i) and 140(2), and

• (c) in section 139(2)(b)(ii) by substituting “section 78” for “section 10A”.

94 Amendment of section 144 (power to deal with seizures, before and after condemnation) of Finance Act 2001.

94.—Section 144 of the Finance Act 2001, is amended in subsection (3)(b) by inserting “or hazardous” after “perishable”.

95 Miscellaneous excise repeals.

95.—The enactments set out in Schedule 4 are repealed to the extent mentioned in the third column of that Schedule opposite the reference to the enactment concerned.

96 Amendment of section 2 of Customs and Excise (Miscellaneous Provisions) Act 1988.

96.—Section 2 of the Customs and Excise (Miscellaneous Provisions) Act 1988 is amended by inserting the following after subsection (8):

• “(9) In this section ‘vehicle’ means a mechanically propelled vehicle or any other conveyance, and includes any container, trailer, tank or any other thing, which—

  • (a) is or may be used for the storage of goods in the course of carriage, and

  • (b) is designed or constructed to be placed on, in or attached to any such vehicle or other conveyance.”.

97 Amendment of section 135C (remission or repayment in respect of vehicle registration tax on certain hybrid electric vehicles) of Finance Act 1992.

97.—(1) Section 135C (inserted by section 168 of the Finance Act 2001) of the Finance Act 1992 is amended in subsection (1) by substituting “31 December 2006” for “31 December 2004” (inserted by section 105 of the Finance Act 2003).

• (2) This section applies as and from 1 January 2005.

PART 3 Value-Added Tax

98 Interpretation (Part 3).

98.—In this Part—

“Act of 2004” means the Finance Act 2004;

“Principal Act” means the Value-Added Tax Act 1972.

99 Amendment of section 3 (supply of goods) of Principal Act.

99.—Section 3 of the Principal Act is amended in subsection (5)(b) by substituting the following for subparagraph (iii)—

• “(iii) being the transfer to a taxable person of a totality of assets, or part thereof, of a business even if that business or part thereof had ceased trading, where those transferred assets constitute an undertaking or part of an undertaking capable of being operated on an independent basis,”.

100 Amendment of section 4 (special provisions in relation to the supply of immovable goods) of Principal Act.

100.—(1) Section 4 of the Principal Act is amended—

• (a) in subsection (3)(a), by substituting “Subject to paragraphs (aa) and (b)” for “Subject to paragraph (b)”,

• (b) by inserting the following after paragraph (a) of subsection (3):

• “(aa) Where a person having an interest in immovable goods to which this section applies surrenders possession of those goods or of any part thereof in such circumstances that the surrender does not constitute a supply of the goods for the purposes of subsection (2), the provisions of paragraph (a) shall not apply when this paragraph and paragraph (ab) take effect pursuant to section 100(2) of the Finance Act 2005.

• (ab) Subject to paragraph (b), where a person having an interest in immovable goods to which this section applies surrenders possession of those goods or any part thereof in such circumstances that the surrender does not constitute a supply of the goods for the purposes of subsection (2), that person shall be liable for an amount, in this paragraph referred to as a deductibility adjustment, which shall be payable as if it were tax due by that person in accordance with section 19 for the taxable period in which the surrender occurred, and that deductibility adjustment shall be calculated in accordance with the following formula:

T × (Y-N)

————

Y

where—

T is the amount of tax which the person who surrenders possession of the goods was entitled to deduct in accordance with section 12 in respect of that person's acquisition of the interest in and development of the goods the possession of which is being surrendered,

Y is 20 or, if the interest when it was acquired by the person who surrenders possession of the goods was for a period of less than 20 years, the number of full years in that interest, and

N is the number of full years since that person acquired the interest in the immovable goods being surrendered or, if the goods were developed since that interest was acquired, the number of full years since the most recent development:

but if that N is greater than that Y, such deductibility adjustment shall be deemed to be nil.”,

• (c) by substituting the following for subsection (6) inserted by the Act of 2004:

• “(6)

  • (a) Tax shall not be charged on the supply of immovable goods—

    • (i) which were used in such circumstances so that the person making the supply had no right to deduction under section 12 in relation to tax borne or paid on the acquisition or development of those goods, or

    • (ii) which have been occupied before the specified day and had not been developed between that date and the date of the supply.

  • (b) Paragraph (a) does not apply to a supply of immovable goods, being goods—

    • (i) to which subsection 5 applies, or

    • (ii) which were acquired by the person making the supply as a result of a transfer in accordance with section 3(5)(b)(iii) and if tax had been chargeable on such transfer the person making the supply would have had a right to deduction under section 12 in relation to such tax.”,

• (d) by substituting the following for subsection (8) (inserted by the Finance Act 1997), and subsection (9) (inserted by the Finance Act 1998):

• “(8)

  • (a) Where tax is chargeable in relation to a supply of immovable goods which is a surrender of an interest in immovable goods or an assignment of an interest in immovable goods to—

    • (i) a taxable person,

    • (ii) a Department of State or a local authority, or

    • (iii) a person who supplies immovable goods of a kind referred to in paragraph (a) of the definition of ‘exempted activity’ in section 1 or services of a kind referred to in paragraphs (i), (iv), (ix), (xi), (xia), (xiii) and (xiv) of the First Schedule, in the course or furtherance of business,

    then, the person to whom those goods are supplied shall be accountable for and liable to pay the tax chargeable on that supply and the said tax shall be payable as if it were tax due by that person in accordance with section 19 for the taxable period within which the supply to the person took place and for these purposes the person to whom the goods are supplied shall be a taxable person and the person who made the surrender or assignment shall not be accountable for or liable to pay the said tax.

  • (b) Notwithstanding subsection (2A)(a) of section 8, if the supply referred to in paragraph (a) is to a Department of State or a local authority, that Department of State or local authority shall be accountable for and liable to pay the tax referred to in that paragraph.

  • (c) (i) A surrender or assignment of immovable goods referred to in paragraph (a) shall be treated as a supply of goods made by the person to whom the goods are supplied.

    • (ii) Upon the surrender or assignment of immovable goods referred to in subparagraph (i), the person who makes the surrender or assignment shall issue a document to the person to whom the surrender or assignment is made indicating the value of the interest being surrendered or assigned and the amount of tax chargeable on that surrender or assignment.

    • (iii) For the purposes of section 12, that section shall apply as if this paragraph had not been enacted.

• (9)

  • (a) Where an interest in immovable goods is created in such circumstances that a reversion on that interest (hereafter referred to in this subsection as a ‘reversionary interest’) is created and retained, then any subsequent disposal to another person of that reversionary interest or of an interest derived entirely therefrom shall be deemed to be a supply of immovable goods to which subsection (6) applies, provided that, since the date the first-mentioned interest was created, those goods have not been developed by, on behalf of, or to the benefit of, the person making such subsequent disposal: but the provisions of this subsection shall not be construed as applying to a disposal of an interest which includes an interval.

  • (b) The Revenue Commissioners may make regulations specifying the circumstances or conditions under which development work on immovable goods is not treated, for the purposes of this subsection, as being on behalf of or to the benefit of a person.”.

• (2) Paragraphs (a) and (b) of subsection (1) shall take effect as on and from such day as the Minister for Finance may, by order, appoint.

101 Amendment of section 5 (supply of services) of Principal Act.

101.—Section 5 of the Principal Act is amended—

• (a) in subsection (6)—

• (i) by inserting the following after paragraph (ee):

• “(eea) Where money transfer services are provided to a person in the State and are effectively used and enjoyed in the State, the place of supply of intermediary services provided in respect of or in relation to such money transfer services to a principal established outside the Community, shall be deemed, for the purposes of this Act, to be the State.”,

and

• (ii) in paragraph (eee) (inserted by the Finance Act 2003) by deleting “and has not also an establishment in the Community” after “an establishment outside the Community”,

and

• (b) in subsection (8)(a) by inserting “or in connection with a transfer of ownership of goods in accordance with section 3(5)(b)(iii)” after “had ceased trading,”.

102 Amendment of section 10 (amount on which tax is chargeable) of Principal Act.

102.—Section 10 of the Principal Act is amended in subsection (9) by inserting the following subparagraphs after the proviso to subparagraph (b):

• “(c) Where the Revenue Commissioners wish to ascertain the open market price of an interest in immovable goods, they may authorise a person to inspect the immovable goods and to report to them the open market price of such interest in those goods for the purposes of this Act, and a person having custody or possession of those goods shall permit the person so authorised to inspect the goods at such reasonable times as the Revenue Commissioners consider necessary.

• (d) Where the Revenue Commissioners require a valuation to be made by a person named by them, the costs of such valuation shall be defrayed by the Commissioners.”.

103 Amendment of section 11 (rates of tax) of Principal Act.

103.—With effect from 1 January 2005, section 11 of the Principal Act is amended in subsection (1)(f) (inserted by the Finance Act 1992) by substituting “4.8 per cent” for “4.4 per cent” (inserted by the Act of 2004).

104 Amendment of section 12 (deduction for tax borne or paid) of Principal Act.

104.—(1) Section 12 of the Principal Act is amended—

• (a) in subsection (1)(a)—

• (i) by substituting the following for subparagraph (iiic) (including the proviso to that subparagraph):

“(iiic) the tax chargeable during the period, being tax for which the taxable person is liable by virtue of section 4(8), in respect of a supply to that person of immovable goods,”,

and

• (ii) by deleting subparagraph (iiid),

and

• (b) by inserting the following after subsection (4)—

• “(5) At the time when a person disposes of an interest in immovable goods the possession of which that person had previously surrendered in circumstances where the person had paid a deductibility adjustment in accordance with section 4(3)(ab), that person is entitled to increase the amount of tax deductible for the taxable period within which the disposal is made, by an amount calculated in accordance with the following formula:

T × (Y-N)

————

Y

where—

T is the amount of tax which the person who previously surrendered possession of the goods was entitled to deduct in accordance with this section, prior to that surrender of possession, in respect of that person's acquisition of the interest in and the development of those goods,

Y is 20 or, if the interest when it was acquired by the person who surrendered possession of the goods was for a period of less than 20 years, the number of full years in that interest when it was so acquired, and

N is the number of full years since that person acquired the interest in the immovable goods being disposed of or, if the goods were developed since that interest was acquired, but before the deductibility adjustment in accordance with section 4(3)(ab) was payable, the number of full years since that development:

but if that N is greater than that Y, such amount shall be deemed to be nil.”.

• (2) Paragraph (b) of subsection (1) shall take effect as on and from such a day as the Minister for Finance may, by order, appoint.

105 Amendment of section 12A (special provisions for tax invoiced by flat-rate farmers) of Principal Act.

105.—With effect from 1 January 2005, section 12A (inserted by the Value-Added Tax (Amendment) Act 1978) of the Principal Act is amended in subsection (1) by substituting “4.8 per cent” for “4.4 per cent” (inserted by the Act of 2004).

106 Amendment of section 19 (tax due and payable) of Principal Act.

106.—Section 19 of the Principal Act is amended—

• (a) in subsection (1)—

• (i) by deleting “and” at the end of paragraph (b), and

• (ii) by inserting the following after paragraph (b):

• “(bb) in the case of continuous supplies being supplies of telecommunications services, electricity, or gas which has the meaning assigned to it in paragraph (i)(c) of the Sixth Schedule, for which a statement of account issues periodically, supplied to a person other than a person to whom an invoice is required under section 17 to be issued, at the time of issue of the statement of account in respect of those supplies, and in this paragraph ‘statement of account’ means a balancing statement, or a demand for payment which issues at least once every 3 months, and”,

and

• (b) in subsection (2) by substituting “paragraph (a), (b) or (bb)” for “paragraph (a) or (b)”.

107 Amendment of section 19A (statement of intra-Community supplies) of Principal Act.

107.—Section 19A (inserted by the Finance Act 1992) of the Principal Act is amended by substituting the following for subsection (6):

• “(6) In this section ‘intra-Community supplies’ means supplies of goods to a person registered for value-added tax in another Member State.”.

108 Amendment of section 24 (recovery of tax) of Principal Act.

108.—(1) Section 24 of the Principal Act is amended in subsection (1)—

• (a) by substituting the following for paragraph (a):

• “(a) Without prejudice to any other mode of recovery, the provisions of any enactment relating to the recovery of income tax and the provisions of any rule of court so relating shall, subject to any necessary modifications, apply to the recovery of any tax payable in accordance with this Act and the regulations thereunder as they apply in relation to the recovery of income tax.”,

and

• (b) by deleting paragraph (c).

• (2) Notwithstanding subsection (1)(b) regulations made under the Principal Act and to which section 24(1)(c) of that Act related shall continue in force and may be amended or revoked accordingly.

109 Amendment of section 26 (penalties generally) of Principal Act.

109.—Section 26 of the Principal Act is amended by inserting the following subsection after subsection (3A):

• “(3AA) Where a person is authorised in accordance with section 10(9)(c) to inspect any immovable goods for the purpose of reporting to the Revenue Commissioners the open market price of an interest in those goods and the person having custody or possession of those goods prevents such inspection or obstructs the person so authorised in the performance of his or her functions in relation to the inspection, the person so having custody or possession shall be liable to a penalty of €1,265.”.

110 Amendment of section 27 (fraudulent returns, etc.) of Principal Act.

110.—Section 27 of the Principal Act is amended—

• (a) in subsection (1)(b) (inserted by the Finance Act 1992) by deleting “, or in the case of fraud, twice the amount”,

• (b) in subsection (1A)(b) (inserted by the Finance Act 2003) by deleting “, or in the case of fraud twice the amount,”,

• (c) in subsection (5)(ii) (inserted by the Finance Act 1973) by deleting “, or, in the case of fraud, twice the amount”.

111 Amendment of section 32 (regulations) of Principal Act.

111.—Section 32 of the Principal Act is amended in subsection (1)—

• (a) by inserting the following after paragraph (t):

• “(ta) specifying the circumstances or conditions under which development work on immovable goods is not treated as being on behalf of, or to the benefit of, a person;”,

• (b) by inserting the following after paragraph (ww):

• “(www) the circumstances, terms and conditions under which a letting of immovable goods constitutes a letting in the short-term guest sector or holiday sector, or under which accommodation is or is not holiday accommodation (within the meaning of paragraph (xiii) of the Sixth Schedule);”,

and

• (c) in subsection (2A) by substituting “paragraph (w), (ww) or (www) of subsection (1)” for “subsection (1)(w) or (1)(ww)”.

112 Amendment of First Schedule to Principal Act.

112.—The First Schedule (inserted by the Value-Added Tax (Amendment) Act 1978) to the Principal Act is amended—

• (a) by substituting the following for paragraph (xv) (as inserted by the Finance Act 1980):

• “(xv) the acceptance of bets subject to excise duty imposed by section 67 of the Finance Act 2002 and of bets exempted from excise duty by section 68 of the Finance Act 2002;”,

• (b) by deleting paragraph (xva), and

• (c) by inserting in paragraph (xxiv) “a supply of immovable goods to which section 3(1)(c) or 4 relates, or” after “supply of goods other than”.

113 Amendment of Sixth Schedule to Principal Act.

113.—The Sixth Schedule (inserted by the Finance Act 1992) to the Principal Act is amended—

• (a) in paragraph (iv)—

• (i) by inserting “(other than bread as defined in subparagraph (d), of paragraph (xii) of the Second Schedule)” after “the supply of food”,

• (ii) by substituting in subparagraph (a) “heated, enabling” for “heated for the purpose of enabling”,

• (iii) by substituting in subparagraph (b) “heated after cooking, enabling” for “heated after cooking for the purpose of enabling”,

• (iv) by deleting in subparagraph (c) “for the purpose of”, and

• (v) by substituting “at the time it is provided to the customer” for “at the time of supply”,

and

• (b) with effect from 1 July 2005, by substituting the following for paragraph (xiii):

• “(xiii) subject to and in accordance with regulations, if any—

• (a) the letting of immovable goods (other than in the course of the provision of facilities of the kind specified in paragraph (viia))—

  • (I) in the hotel or guesthouse sector, or

  • (II) being a letting of all or part of a house, apartment or other similar establishment when that letting is provided in the short-term guest sector or holiday sector, or

  • (III) in a caravan park, camping site or other similar establishment,

  or

• (b) the provision of holiday accommodation;”.

PART 4 Stamp Duties

114 Interpretation (Part 4).

114.—In this Part “Principal Act” means the Stamp Duties Consolidation Act 1999.

115 Amendment of section 8 (facts and circumstances affecting duty to be set forth in instruments, etc.) of Principal Act.

115.—(1) Section 8 of the Principal Act is amended in paragraph (ii) of subsection (3) by deleting “, or in the case of fraud, twice the amount,”.

• (2) This section has effect in relation to instruments executed or statements delivered to the Commissioners on or after the date of the passing of this Act.

116 Amendment of section 40 (calculation of ad valorem duty on stock and securities) of Principal Act.

116.—(1) Section 40 of the Principal Act is amended by substituting the following for subsection (2):

• “(2) Where the consideration, or any part of the consideration, for a conveyance on sale of any property, consists of any security not being a marketable security, the conveyance shall be charged with ad valorem duty as a conveyance on sale of that property for a consideration equal to the value of that property on the date of execution of the conveyance.

• (3) For the purposes of subsection (2) ‘property’ includes any estate or interest in property.”.

• (2) This section applies as respects instruments executed on or after 2 March 2005.

117 Aggregation of transactions.

117.—(1) The Principal Act is amended by inserting the following after section 45:

“45A.—(1) In this section ‘dwellinghouse’ includes apartment.

• (2) Where an existing interest or, as the case may be, existing interests, in a dwellinghouse are conveyed or transferred by more than one instrument, executed within a period of 12 months, subsection (3) shall apply to each of those instruments which operate as a conveyance or transfer, whether on sale or as a voluntary disposition inter vivos.

• (3) An instrument to which this subsection applies shall be deemed for the purposes of the Heading ‘CONVEYANCE or TRANSFER on sale of any property other than stocks or marketable securities or a policy of insurance or a policy of life insurance’ in Schedule 1 to form part of a larger transaction or of a series of transactions in respect of which the amount or value, or the aggregate amount or value, of the consideration which is attributable to residential property, or which would be so attributable if the contents of residential property were considered to be residential property, is equal to the value of the dwellinghouse and contents therein.

• (4) Where a conveyance or transfer (referred to in this section as the ‘first transfer’) of an interest in a dwellinghouse is effected by one instrument and—

  • (a) before 1 March 2005 without regard to subsection (3), and

  • (b) on or after 1 March 2005 with or without regard to subsection (3),

  the duty chargeable (if any) in respect of the instrument has been accounted for to the Commissioners, and one or more conveyances or transfers (referred to in this section as ‘subsequent transfers’) of other interests in the same dwellinghouse are effected within the subsequent 12 month period, the transferee or where there is more than one transferee, each such transferee, being a party to the first transfer, jointly and severally, shall become liable to pay to the Commissioners a penalty in an amount equal to the amount of the difference between—

  - (i) the amount of duty chargeable if the first transfer was one to which subsection (3) applied, and
  
  - (ii) any duty paid on that first transfer together with the amount of any penalty previously paid in respect of that first transfer under this subsection,
  
    together with interest charged on that amount at a rate of 0.0322 per cent for each day or part of a day from the date when the instrument was executed to the date when the penalty is remitted.
  

• (5) For the purpose of subsection (4)(i), the amount of duty chargeable shall be determined without regard to relief under section 92B unless the transferee or, where there is more than one, each such transferee, being a party to either the first transfer or any subsequent transfers, are each a first time purchaser within the meaning of that section.

• (6) Where subsection (3) applies to an instrument conveying or transferring an interest in a dwellinghouse, relief under section 92B shall not apply to the instrument unless the transferee or, where there is more than one, each such transferee, being a party to either that conveyance or transfer or any previous conveyances or transfers of other interests in the same dwellinghouse executed in the previous 12 month period, are each a first time purchaser within the meaning of that section.”.

• (2) Subsection (1) applies as respects instruments executed on or after 3 February 2005.

• (3) As respects interest to be charged for any day or part of a day on or after 1 April 2005 in respect of any amount due whether before, on or after that date under section 45A of the Principal Act (as inserted by subsection (1)), that section is amended in subsection (4) by substituting “that amount, calculated in accordance with section 159D,” for “that amount at a rate of 0.0322 per cent for each day or part of a day”.

118 Amendment of section 76 (obligations of system-members) of Principal Act.

118.—(1) Section 76 of the Principal Act is amended in subsection (3) by deleting “, or twice the amount in the case of fraud,”.

• (2) This section has effect in relation to instructions entered or caused to be entered in a relevant system (for the purpose of Part 6 of the Principal Act) by a system-member (for that purpose) on or after the date of the passing of this Act.

119 Amendment of section 81 (young trained farmers) of Principal Act.

119.—(1) Section 81 of the Principal Act is amended in subsection (7) by substituting the following for paragraph (a):

• “(a) Where any person to whom land was conveyed or transferred by any instrument in respect of which relief from stamp duty under subsection (2) applied—

  • (i) disposes of such land, or part of such land (in this subsection referred to as a ‘part disposal’), within a period of 5 years from the date of execution of that instrument, and

  • (ii) does not fully expend the proceeds from such disposal, or as the case may be, such part disposal, in acquiring other land within a period of one year from the date of such disposal,

  then, such person or, where there is more than one such person, each such person, jointly and severally, shall become liable to pay to the Commissioners a penalty equal to an amount determined by the formula—

  S	×	N
  S	×	—
  S	×	V

  where—

  S is the amount of stamp duty which would have been charged on that instrument had relief under subsection (2) not applied,

  V is the market value of all the land that was conveyed or transferred by the instrument immediately before the disposal, or as the case may be, the part disposal of the land, and

  N is the amount of proceeds from the disposal, or as the case may be, the part disposal of the land that was not expended in acquiring other land.

• (aa) Interest shall be payable on a penalty incurred under paragraph (a) at a rate of 0.0322 per cent for each day or part of a day from the date of disposal, or as the case may be, part disposal of the land to the date the penalty is remitted.

• (ab) For the purposes of paragraph (a)—

  • (i) where a disposal of land is effected in whole or in part by way of a voluntary disposition inter vivos, an amount equal to the market value of the lands disposed of, at the date of the disposal, shall be deemed to be the proceeds from such disposal,

  • (ii) where any property is received by way of exchange, in whole or in part for a disposal, an amount equal to the market value of such property, at the date of the disposal, shall be deemed to be proceeds from such disposal, and

  • (iii) where subparagraph (ii) applies and property received by way of exchange is land or includes land, an amount equal to the market value of such land at the date of the disposal shall be deemed to have been expended in acquiring other land.

• (ac) A person shall not be liable to a penalty under paragraph (a), if and to the extent that any penalty or, as the case may be, the aggregate of any penalties, paid by that person under paragraph (a), exceeds the stamp duty which would have been charged on the instrument had relief under subsection (2) not applied.”.

• (2) This section shall apply as respects disposals or part disposals of land effected on or after 3 February 2005.

120 Amendment of section 81A (further relief from stamp duty in respect of transfers to young trained farmers) of Principal Act.

120.—(1) Section 81A (inserted by the Finance Act 2004) of the Principal Act is amended in subsection (11) by substituting the following for paragraph (a):

• “(a) Where any person to whom land was conveyed or transferred by any instrument in respect of which relief from stamp duty under subsection (6) applied—

  • (i) disposes of such land, or part of such land (in this subsection referred to as a ‘part disposal’), within a period of 5 years from the date of execution of that instrument, and

  • (ii) does not fully expend the proceeds from such disposal, or as the case may be, such part disposal, in acquiring other land within a period of one year from the date of such disposal,

  then, such person or, where there is more than one such person, each such person, jointly and severally, shall become liable to pay to the Commissioners a penalty equal to an amount determined by the formula—

  S	×	N
  S	×	—
  S	×	V

  where—

  S is the amount of stamp duty which would have been charged on that instrument had relief under subsection (6) not applied,

  V is the market value of all the land that was conveyed or transferred by the instrument immediately before the disposal, or as the case may be, the part disposal of the land, and

  N is the amount of proceeds from the disposal, or as the case may be, the part disposal of the land that was not expended in acquiring other land.

• (aa) Interest shall be payable on a penalty incurred under paragraph (a) at a rate of 0.0322 per cent for each day or part of a day from the date of disposal, or as the case may be, part disposal of the land to the date the penalty is remitted.

• (ab) For the purposes of paragraph (a)—

  • (i) where a disposal of land is effected in whole or in part by way of a voluntary disposition inter vivos, an amount equal to the market value of the lands disposed of, at the date of the disposal, shall be deemed to be the proceeds from such disposal,

  • (ii) where any property is received by way of exchange, in whole or in part for a disposal, an amount equal to the market value of such property, at the date of the disposal, shall be deemed to be proceeds from such disposal, and

  • (iii) where subparagraph (ii) applies and property received by way of exchange is land or includes land, an amount equal to the market value of such land at the date of the disposal shall be deemed to have been expended in acquiring other land.

• (ac) A person shall not be liable to a penalty under paragraph (a), if and to the extent that any penalty or, as the case may be, the aggregate of any penalties, paid by that person under paragraph (a), exceeds the stamp duty which would have been charged on the instrument had relief under subsection (6) not applied.”.

• (2) This section shall apply as respects disposals or part disposals of land effected on or after 3 February 2005.

121 Farm consolidation relief.

121.—The Principal Act is amended by inserting the following after section 81A: